author: EDWARDS, Judge.

text:
    Henry A. SIBLEY, III, Curator of Jane Elizabeth Sibley, Interdict v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 83-CA-0411.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 1983.
    Rehearing Denied Feb. 28, 1984.
    Writ Granted May 25, 1984.

      David W. Robinson, and Steve Marks, Baton Rouge, for plaintiff-appellant.
    Vincent Fornias, Baton Rouge, for defendant-appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.

      . His partner did administer a low dose of stel-lazine, a mild tranquilizer, while he was on vacation for a week, but he stopped that medication when he returned on August 4.

   EDWARDS, Judge.

Henry A. Sibley, III, brother and curator of Jane Elizabeth Sibley, sued the Board of Supervisors (the Board) of Louisiana State University and Agricultural and Mechanical College (LSU) and Louisiana Health Services, doing business as Blue Cross, for injuries suffered by Ms. Sibley during her hospitalization and treatment in the psychiatric ward of the Confederate Memorial Medical Center (Confederate), owned by the State and operated by the Board as an adjunct to the Louisiana State University Medical Center (LSUMC) in Shreveport.

Plaintiff successfully proved at trial that Ms. Sibley was misdiagnosed at Confederate for psychotic depression and wrongly administered certain antipsychotic drugs, called neuroleptics, over a period of five weeks in dosages and combinations which reached toxic levels in her bloodstream. Weakened and poisoned by the drugs, she eventually suffered a cardiopulmonary arrest. She survived but during the crisis, her brain was deprived of oxygen and she suffered massive permanent brain damage as a result.

The trial court rendered judgment in favor of the plaintiff, but under the provisions of LSA-R.S. 40:1299.39 limited the defendant’s liability to $500,000.00. Plaintiff appeals this judgment, contending that the limitation of liability in LSA-R.S. 40:1299.39 is not applicable because of the independent “corporate” negligence of Confederate. He also argues that if LSA-R.S. 40:1299.39 is applicable, its limitation of liability provision violates Article XII, Section 10(A) of the Louisiana Constitution.

The following facts, presented in some detail, are undisputed. During the summer of 1980, Jane Sibley, 19 years old, was living in Shreveport, Louisiana, with her great-aunt and uncle and working at Willis-Knighton Hospital. She had been living with her mother aUd sister in Baton Rouge, and had briefly attended LSU there, but her mother’s alcoholism along with other family problems had caused her to move away. She returned home for a visit over the 4th of July weekend. Something happened over that weekend which was never brought out at trial, and which apparently precipitated Ms. Sibley’s subsequent mental illness. After she returned to Shreveport, within a very short time she became increasingly withdrawn and uncommunicative. Her co-workers noticed a change in her normally cheery disposition and neat appearance. Diane Andrews, her supervisor at Willis-Knighton had her examined by a hospital physician who immediately referred her to Dr. George Seiden, a private psychiatrist who practices out of Brent-wood Hospital, a private mental health facility in Shreveport.

Dr. Seiden diagnosed her condition as reactive depression, an affective disorder in which changes in a person’s mood are caused by external or environmental stresses, and which is distinguished from endogenous depression which results from internal or biological changes affecting one’s mood or emotional state independent of any environmental stresses or stimuli. He prescribed no medication for her treatment, opting instead for psychotherapy. He treated her for three weeks, from mid-July to August 7, before financial difficulties necessitated her transfer to Confederate.

On August 7, 1980, under an emergency certificate of commitment, Ms. Sibley was transferred to the psychiatric ward on the tenth floor of Confederate.

In the psychiatric service, two teams are responsible for treatment of the patients. Each is headed by a faculty psychiatrist responsible for supervising and training the residents, assigned to the team on a rotating monthly basis as part of their training. Each team also includes at least one social worker and a staff psychologist. Medical students are also assigned to the team as part of their education to learn about psychiatry. According to the testimony elicited at trial, the team system at LSUMC is not fundamentally different from that employed by teaching hospitals throughout the country.

Dr. Joel L. Steinberg, staff member and assistant professor of psychiatry at LSUMC, headed the team assigned to Ms. Sibley. He obtained his medical degree (M.D.) in 1974 and was appointed to the faculty in 1979. He was assisted by resident Dr. Mary Jo Fitzgerald, who obtained her M.D. on May 31, 1980, and had been assigned to the team on August 1, 1980, and by resident Dr. Mitchell Stevens, who obtained his degree in 1978, and who replaced Dr. Fitzgerald on September 1. Also assigned to the team was Susan Pinta-do, a medical student expecting her degree in 1982. Each of these individuals was under the direct supervision of Dr. Stein-berg, who maintained throughout trial that all the dosages were administered in accordance with his directions and approval.

Dr. Seiden telephoned Dr. Fitzgerald at Confederate and related to her Ms. Sibley’s problem and history. After conducting a physical and mental examination, Dr. Fitzgerald agreed with Dr. Seiden's diagnosis of depression and made the appropriate notations in the hospital record. The following day, August 8, Ms. Sibley was seen on rounds by the entire team. On the basis of what he observed to be signs of catanoia and delusions, Dr. Steinberg changed the diagnosis to “acute unspecified psychosis,” with “possible schizophreniform disorder” and immediately placed her on neuroleptic therapy.

According to Dr. Frank J. Ayd, a psychiatrist and a world-renowned expert and pioneer in the field of psycho-pharmacoth-erapy (the treatment of disorders of the central nervous system through the use of psychotropic drugs), neuroleptic drugs (also known as major tranquilizers, antipsy-chotic agents and psychotropic medications), chemically affect the central nervous system, altering thought processes and producing dramatic physical effects in the body. Neuro-transmitters, or chemical agents in the brain, control and keep in balance the dopaminergic and cholinergic systems of the body. The dopaminergic system, so-named for the neuro-transmitter dopamine, controls body movements and muscle tone. The cholinergic system, named for the neuro-transmitter acetylcho-line, controls the vegetative and secretory functions of the body, including digestion, perspiration, urination and exretion. All neuroleptics, regardless of their chemical group, impede the flow of dopamine from the brain, resulting in the depression of the dopaminergic system. When the dopami-nergic system is chemically depressed, the patient will develop certain physical reactions or side effects from the drugs, including akinesia, akathisia, dystonia and par-kinsonism. These symptoms are collectively designated as “extrapyramidal signs” (EPS), which may require additional medication, such as benadryl, to counteract.

Neuroleptic drugs upset the balance between the dopmainergic and cholinergic systems. When this happens, the body will experience an increase in cholinergic activity, which will result in an increasing, and sometimes rapid, loss of body fluids as the body attempts to compensate. Depending upon the severity and rapidity of the loss, the patient may require anti-cholinergic medication to suppress the heightened cho-linergic activity and restore the balance. If not closely monitored, the cholinergic system may be depressed too much, and the balance may swing too far in the other direction. The body could develop a central anti-cholinergic syndrome (CAS), a combination of symptoms indicating an excessive and dangerous inhibition of the cholinergic functions. CAS can cause severe physical damage and death. To counter CAS, certain drugs, such as symmetrel, can be administered to raise the level of depression on the dopaminergic system by countering the effects of the neuroleptics.

Because of the potentially dangerous side effects associated with the use of neu-roleptic therapy, Dr. Ayd testified that such drugs should not be administered in the absence of a clear clinical justification, such as definite signs of psychosis or extreme agitation rendering the patient unmanageable. Although Dr. Steinberg attempted at trial to justify his diagnosis of psychosis and his institution of neuroleptic therapy, the record clearly demonstrates, and the parties do not dispute the finding, that Ms. Sibley was misdiagnosed and mistreated for psychosis with a myriad of neu-roleptic drugs and anti-cholinergic medications which resulted in an anti-cholinergic crisis and a cardio-pulmonary arrest on September 15, 1980.

Apart from Dr. Steinberg’s initial misdiagnosis and the unwarranted institution of neuroleptic therapy, Dr. Ayd specifically criticized the team’s practice of what he called polypharmacy, that is, the use of more than one medication to treat a disease. During her confinement in the psychiatric ward, she was administered no less than four potent neuroleptic drugs, including haldol and navane, equally potent neu-roleptics registering nine on a scale of ten. These drugs produced extrapyramidal reactions in Ms. Sibley necessitating the administration of other drugs, principally bena-dryl, to counter act the side effects. It was also necessary to administer anti-cholinergic drugs to suppress the loss of body fluid as a result of the administration of the neuroleptic drugs. Dr. Ayd testified that the use of these drugs in combination masked signs of a growing drug toxicity and an emerging anti-cholinergic crisis. He charged the doctors of treating symptoms rather than a specific disorder. He testified that a cardinal rule in psychiatry is to assume that any symptom manifesting itself after the institution' of medication is a result of the drug rather than a symptom of a disease. None of the doctors involved, but especially Dr. Steinberg, who had ultimate responsibility for the treatment of Ms. Sibley, heeded that rule.

At 5:45 a.m., on September 15, 1980, Ms. Sibley went into a cardiopulmonary arrest. Her breathing became shallow and irregular, her blood pressure dropped, her pulse rapidly increased. Her rectal temperature reached 108 degrees Parenheit. Her breathing eventually stopped. She was transferred to the intensive care unit in the medical service, and there her condition was stabilized. She survived, but is permanently and severely brain damaged. In December of that year she was transferred to Brooke Army Medical Center at Fort Sam Houston, Texas, and from there to the Annex at Baton Rouge General Hospital, a facility for the treatment of non-ambulatory patients, where she is currently being cared for.

There is no question but that the present suit involves a clear case of malpractice on the part of Dr. Steinberg and the other members of the team. In his reasons for judgment, the trial court said, “and this is a malpractice, basically a malpractice case — Call it what you want, but that’s what it is.” The court found no difficulty in finding liability, nor do we, nor do the parties, since liability is not at issue on appeal. Plaintiff objects rather to the application and the constitutionality of the limitation of liability provision found in LSA-R.S. 40:1299.39.

In Williams v. Lallie Kemp Charity Hospital, 428 So.2d 1000 (La.App. 1st Cir.1983), cert. denied, 434 So.2d 1093 (La.1983), this court recently affirmed the application of the subject statute in a suit against a state-owned hospital for damages suffered as a result of a negligently performed Caesarian section. Equating the suit against the hospital as a suit against the state, the court reasoned that the legislature intended to cover not only employees of the state providing health care services (through the state-owned hospital), but also the state itself. The court specifically held that the subject statute applies to “suits against the state for alleged acts of malpractice committed by its health care provider employees.” Id. at 1009. The court went on to say, however, “LKCH [Lallie Kemp] was not alleged nor found to be independently negligent, but was held liable for the unintentional torts of [the attending physicians] and several of the nurses committed before and during the baby’s delivery.”

In the present suit, plaintiff has seized upon the cited language in Lallie Kemp to argue that the independent “corporate” negligence of LSU, or more precisely the medical staff at Confederate, renders the hospital directly rather than vicariously liable for Ms. Sibley’s damages. Consequently, he argues, the Board, and therefore the state, is liable to the full extent of Ms. Sibley’s injuries, alleged to be well in excess of ten million dollars, because the statute does not apply to independently negligent institutions.

Plaintiff’s argument is essentially the same as that argued in Lallie Kemp: Since a “hospital” is not included within the definition of “person” in LSA-R.S. 40:1299.39 A(l) and therefore not a health care provider within the meaning of the statute, it cannot benefit from the limitation of liability as provided in LSA-R.S. 40:1299.39 C. Despite plaintiff’s reliance on the distinction between direct and vicarious liability in his assertion that Confederate is independently negligent, this case is conceptually indistinguishable from Lallie Kemp and therefore calls for a similar result.

Along with nearly every other state in the union, Louisiana passed its medical malpractice statutes, including that found in LSA-R.S. 40:1299.39, in response to what has been described as the medical malpractice crisis of the ’70’s. It was feared that unlimited recovery in malpractice claims would make and was, in fact, making malpractice insurance economically unfeasible, and that the availability of medical care would be seriously curtailed. As a result, these statutes were passed to insure the availability of medical malpractice insurance by limiting liability to a specific insurable amount. The specific purpose behind the statute in question is “to insure that state medical services will remain available at low or no costs to the citizens of Louisiana.” Lallie Kemp, 428 So.2d at 1012.

This court acknowledged in Lallie Kemp that the legislature’s approach was “blunt and crude.” Id. at 1012. The court also stated that the valid end sought to be achieved by the legislature on behalf of the community as a whole warrants a deferential, and we add, a liberal stance towards the statute. A narrow or hypertechnical interpretation of the statute would be inconsistent with that approach. Moreover, the legislature’s intention to provide as broad a base of coverage as possible is clearly reflected in recent amendments expanding the definition of “person” in LSA-R.S. 40:1299.39 A(l) and reinforces that approach.

In its original form, the definition of “person” read:

“Person” means a physician, dentist, registered nurse, licensed practical nurse, pharmacist, optometrist, podiatrist, physical therapist, laboratory or x-ray technician, acting in the course and scope of his employment, health care facility staff appointment, or assignment for or on behalf of the state, or a resident, intern, trainee or a student of any discipline listed herein who is assigned as a part of his prescribed training when acting in the course and scope of his employment, staff appointment, or assignment for or on behalf of the state.

In 1978, “person” was redefined to mean “any individual acting in a professional capacity in providing health care services, by or on behalf of the state, and shall include but not be limited to ” a list of individual professionals that followed. In 1982, the original list was expanded to include clinical social workers and hospital administrators.

The critical language in the 1978 amendment is “shall include but not be limited to.” This language clearly reflects the legislature’s intention to provide broad coverage of the statute. By holding the statute applicable to suits against the state, this court in Lallie Kemp noted a legislative intent of providing an equally broad application of the statute. Lallie Kemp, 428 So.2d at 1008.

It is true that several jurisdictions have held hospitals directly liable for plaintiffs’ injuries under the theory of “corporate negligence,” apart from any basis of vicarious liability, and even in the absence of any negligence on the part of the treating physician. As we understand it, corporate negligence has developed in response to three basic factors. First, with the now almost universal abolition of charitable immunity, hospitals are no longer shielded from liability in malpractice claims. Second, by requiring physicians utilizing their facilities to subject their work to staff consultation and review as a condition for obtaining staff privileges, modern hospitals have increasingly injected themselves into the regulation of the medical treatment of the patient, providing medical services beyond the basic accommodations of room and board. Finally, by holding hospitals, by and large operated as separate corporate entities, directly liable in malpractice cases, courts have added hospitals’ corporate assets to the pool of assets available for the payment of malpractice claims and increased a plaintiff’s chance of recovery. Thus, “the emerging trend is to hold the hospital responsible when the hospital has failed to monitor and review services being provided within its wall.” Fridena v. Evans, 127 Arizona 516, 519, 622 P.2d 463, 466 (Sup.1980).

In frank terms, the underlying policy of the doctrine of corporate negligence is to expand malpractice liability, a policy inconsistent with what this court has interpreted to be the legislative purpose behind LSA-R.S. 40:1299.39, namely, to limit liability in the hope of insuring low cost medical care in state health care facilities.

It is significant that Confederate’s medical staff, entrusted by the Board with the duty of providing quality medical services to its patients, has no separate corporate status apart from the Board itself. See LSA-R.S. 17:1517; R.S. 17:3351. Thus, there is no separate pool of assets apart from that payable by the state available to the claimants in this case. Each member of the medical staff is now and was in 1978 individually covered by the act. Had the plaintiff sued any one of them directly, there would have been no question as to the statute’s application. But, by suing the board only, and by urging the application of the doctrine of corporate negligence, the plaintiff is attempting to preclude the statute’s application on the basis of the staff’s “collective” liability.

We are unpersuaded by this argument. The state is of course ultimately liable for the payment of the judgment. Since this court has already held in Lallie Kemp that the state is covered by the act, we see no reason to deviate from that decision in this case by the application of the doctrine of corporate negligence. We therefore hold that LSA-R.S. 40:1299.39 applies in any claim against the state that can rationally be classified as one for malpractice, whether based upon the negligence of an individual health care provider or upon the negligence of the medical staff of a state-owned health care facility as a whole. Thus, we affirm the trial court’s application of LSA-R.S. 40:1299.39 in this case.

Plaintiff’s second argument is that the limitation of liability found in LSA-R.S. 40:1299.39 C, as applied to the state, violates Article XII, Section 10(A) of the Louisiana Constitution, which provides:

Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.

Specifically, he argues that any statute which limits the state’s tort liability is unconstitutional and cites the following language from Segura v. Louisiana Architects Selection Board, 362 So.2d 498, 499 (La.1978):

Costs of court are part of the “liability” to which a party cast in litigation is subject. As plaintiff in this suit Segura was required to advance costs to the clerks of the courts through which this litigation progressed. These advances, insofar as they have been incurred, and other costs paid by plaintiff and properly chargeable to this suit, would reduce the value of the award in Segura’s favor if he could not be reimbursed to that extent. The consequence would be that the State was relieved of part of its liability. The Constitution makes no such concession.

Plaintiff reads Segura too broadly. As we read it, Segura struck down the offending statute, LSA-R.S. 13:4521, only because it attempted to favor the state with a privilege, that is, exemption from payment of court costs, unavailable to other defendants in similar suits, not because it was “limiting” the state’s liability with respect to the plaintiff’s recovery to the full extent of his injury.

While there may remain questions as to how far Section 10(A) goes in abolishing sovereign immunity in Louisiana, at least within the literal limits of the language, Section 10(A) merely places the state in the same position as any other defendant. It is only when the state attempts to limit its liability on the basis of its status as a sovereign that it violates Section 10(A). Thus, to the extent the legislature may constitutionally limit the liability of any defendant, that same limitation applied to the state is not unconstitutional. See Pratt v. State, 408 So.2d 336 (La.App. 3rd Cir.1981), cert. denied, 412 So.2d 1098 (La.1982); see also Hargrave, “Statutory” and “Hortatory” Provisions of the Louisiana Constitution of 1974, 43 La.L.Rev. 647, 653 (1983); cf. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980).

Thus, the question arises is the limitation of liability constitutional? In Lallie Kemp, this court upheld the constitutionality of the statute against alleged violations of due process and equal protection and the prohibition against special and local laws. It would be fruitless, as well as redundant, to restate all of the reasons given for that holding here. But some of the points mentioned briefly in Lallie Kemp bear repeating.

First, Lallie Kemp noted that the Louisiana Supreme Court has held that a litigant does not have the fundamental right to full recovery of his tortious injuries. Lallie Kemp, 428 at 1010, citing Bazley v. Tortorich, 397 So.2d 475 (La.1981). Second, the Supreme Court in Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381 (La.1978), reaffirmed the rule that the legislature may abolish causes of action before they vest. Finally, the Supreme Court explicitly rejected the quid pro quo argument that when a legislature abolishes a pre-ex-isting right it must provide a substantial benefit in its place. Everett v. Goldman, 359 So.2d 1256 (La.1978).

It has been said that a legislative power to create includes the power to destroy. If so, it also includes the power to limit. Thus, we hold that the limitation of liability in LSA-R.S. 40:1299.39 as applied to the state is not unconstitutional.

We are not unmindful of hardships that this decision may work upon the plaintiff, nor insensitive to the personal tragedy suffered by Ms. Sibley. Aware that the greater good hoped to be achieved by this statute is abstract and remote, and that the statute’s application in this case seems harsh and immediate, we can only defer to the wisdom of the legislature for its passage of the law and note that it is our duty to interpret and apply that law as objectively and fairly as we can.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against the appellant.

AFFIRMED.

APPENDIX “A”

A. As used in this Part:

(1) “Person” means any individual acting in a professional capacity in providing health care services, by or on behalf of the state, and shall include but not be limited to a physician, psychologist, dentist, registered nurse, licensed practical nurse, pharmacist, optometrist, podiatrist, physical therapist, laboratory or x-ray technician, clinical social worker, or hospital administrator, acting within the course and scope of his employment, pursuant to a contract with the state, which contract specially names that health care provider, for professional services or to render other health care services, health care facility staff appointment, or assignment for or on behalf of the state, whether he receives compensation or not, without regard to where the services are performed, or performing voluntary professional services in a health care facility or institution for or on behalf of the state, or a resident, intern, or student, of any discipline listed herein who is assigned as a part of his prescribed training when acting within the course and scope of his assigned training or staff appointment, without regard to where the services are performed.

(2) “Physician” means a person with a license or permit to practice medicine in this state.

(3) “Patient” means a natural person who receives or should have received health care from a person covered by this Part.

(4) “Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession licensed to practice in the state of Louisiana who is in good standing in a similar community or locale, and to use reasonable care and diligence, along with his best judgment, in the application of his skill; provided, however, that in the case of a health care provider practicing in a recognized field of specialty, the standard of care in rendering professional services or health care to a patient shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of that specialty in good standing, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

(5) “Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient.

(6) “Health care” means any act or treatment performed or furnished or which should have been performed or furnished by any person covered by this Part for, to, or on behalf of, a patient during the medical care, treatment or confinement of the patient.

B. Limitation of liability. Notwithstanding any other provisions of the law to the contrary, no judgment shall be rendered, and no settlement or compromise shall be entered into for the injury or death of any patient in any action or claim for an alleged act of malpractice in excess of five hundred thousand dollars plus interests and costs.

C. Coverage. Notwithstanding any other provision of the law to the contrary, the state shall pay any damages, interest, cost of investigation and defense, and any other costs in connection with any claim lodged against any health care provider (“person” as defined herein) for an alleged act of medical malpractice, resulting in the injury or death of a patient up to the limits set forth in this Part. The coverage provided herein shall apply only when the health care provider (“person” as defined herein) is acting within the course and scope of his employment, pursuant to a contract to render health care services, health care facility staff appointment, or assignment by or on behalf of the state, whether he receives compensation or not, without regard to where the services are performed; or while he is providing voluntary professional services in a health care facility or institution by or on behalf of the state, or a resident, intern or student, of any discipline listed in this Part who is assigned as a part of his prescribed training when acting within the course and scope of his assigned training or staff appointment, without regard to where the services are performed.

D. All malpractice claims against the state shall be submitted to and administered by the Division of Administration. In the administration of such claims, the Division of Administration shall cause a timely and thorough investigation of the circumstances surrounding each malpractice claim, assemble all data relevant thereto, and coordinate with legal counsel designated by the attorney general for the defense of such cases. With the approval of such legal counsel, the Division of Administration may compromise and settle any suit or claim up to the limits set forth in this Part. Provided further that in any suit or claim brought pursuant to this Part, the Division of Administration shall have the authority to pay all defense and investigative costs, and any other costs incurred in connection with the defense of these actions as said costs accrue.

E. The attorney general shall, with the concurrence of the Division of Administration, designate an attorney experienced in the defense of medical malpractice claims to act as legal counsel for the Division of Administration in the defense of claims filed under this Part. The attorney general shall establish a fee schedule providing for payment of attorneys under contract on an hourly fee basis.

Except for the claims designated in Subsection F, any written compromise or settlement effected between the state and the claimant with the approval of legal counsel designated as provided above shall be binding upon the claimant and the state subject only to the approval of such compromise or settlement by the district court of the parish where the claimant is domiciled or the state capital is domiciled. The petition seeking court approval shall recite the essential facts alleged to constitute malpractice, the damages sustained, and the amount to be paid the claimant. The petition shall be executed by the claimant or his attorney and by legal counsel for the state. The court shall render and sign immediately a judgment, if it finds from an examination of the petition, attached exhibits, if any, and statements of the parties that the compromise or settlement is in the best interest of the state. At the first session of the legislature following the rendition of such judgment, the Division of Administration shall cause to be introduced a bill appropriating money to pay said judgment.

F. The Division of Administration, with the concurrence of appointed counsel, shall have the authority to compromise or settle, and pay any suit or claim brought pursuant to this Part up to $25,000.00 exclusive of interest and costs, without regard to the procedures outlined in Section E above.

G. Any person covered by this Part shall be considered as a named insured, and the coverage provided herein shall be primary.

      . The suit against Blue Cross was severed before trial. Issues relating to its liability are not present in this appeal.

      . See LSA-R.S. 17:1517, added by Acts 1976, No. 470, § 1.

      .Confederate, as mentioned above, is operated as an adjunct to LSUMC, and is primarily a teaching hospital. One of the requirements for becoming a member of the medical staff, to which the Board has delegated the functions of providing medical care to its patients, is to hold an LSU faculty appointment. See By-Laws of LSU Medical and Dental Staff, Confederate Memorial Medical Center, as adopted on March 17, 1977.

      . LSA-R.S. 40:1299.39 as amended by Acts 1982, No. 851, § 1, is attached as Appendix "A.” The only difference between the present statute and the statute as amended by Acts 1979, No. 450, § 1, applicable to the present claim, is the addition of clinical social workers and hospital administrators in par. A(l).

      . Specifically, he argues that the medical staff was negligent in failing to supervise, review, or require consultation in the treatment of Ms. Sibley. He also argues that Confederate negligently structured the treatment of its patients' around a "team” system approach in which the least experienced members of the team, the residents and medical students, are given primary responsibility for the day-to-day care and observation of the patient, while the senior and most experienced member, the faculty psychiatrist, has the least contact with the patient.

      . See Comment, Recent Medical Malpractice Legislation — A First Check-up, 50 Tul.L.Rev. 655 (1976). See also, LSA-R.S. 40:1299.41 et seq.

      . LSA-R.S. 40:1299.39 A(l), as added by Acts 1976, No. 66, § 1.

      . Acts 1978, No. 611, § 1 (emphasis added).

      . Acts 1982, No. 851, § 1.

      . See Garlington v. Kingsley, 289 So.2d 88 (La.1974), wherein the Louisiana Supreme Court explicitly rejected the application of the doctrine of charitable immunity in Louisiana.

      . See By-Laws of the LSU Medical and Dental Staff, Confederate Memorial Medical Center, n. 4, supra. The preamble to the by-laws acknowledges the board’s, and therefore the state’s, ultimate responsibility for the medical care of the patients treated at Confederate. However, since the individual members of the board are political appointees with no qualification or expertise in the field of medicine, it would be unreasonable and impractical to impose upon any one of them a duty of personally supervising or reviewing the medical treatment administered to the patients at Confederate. That duty falls squarely upon the medical staff, if anywhere.

      . Consequently, we need not decide whether plaintiff’s particular allegations of Confederate’s negligence are meritorious or not.

      . See Hargrave, "Statutory” and "Hortatory" Provisions of the Louisiana Constitution of 1974, 43 La.L.Rev. 647, 650 (1983), where Professor Hargrave says, "In short, the convention did not adopt broad sovereign immunity in all suits, but it did assume that sovereign immunity existed in some areas. Those areas were never defined." He describes this section as a compromise between complete abrogation and precise categorization.

      . "Thus, whenever private citizens would be liable for certain conduct causing damage to person or property, the state and its agencies and political subdivisions also shall be liable for similar conduct.” (Citations omitted.)

      . In Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), the U.S. Supreme Court cast similar doubt on the constitutional requirement of a quid pro quo: “Initially, it is not at all clear that the Due Process Clause in fact requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy.” 98 S.Ct. at 2638. (Footnote omitted.)


source: Caselaw Access Project

author: BYRNES, Judge. GULOTTA, Judge

license: Public Domain

text:
    Freddie E. FACIANE v. SOUTHERN SHIPBUILDING CORP., Employers Mutual Liability Insurance Company.
    Nos. CA 0222, CA 0223.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1984.
    Rehearing Denied March 21, 1984.

      Bendana & Carlton, Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Robert P. Hogan, Covington, for defendants-third party plaintiffs-appellants.
    Frank J. Peragine, Daniel J. Caruso, Michael R. Daigle, New Orleans, for American Optical Corp.
    Before BYRNES, GULOTTA and AUGUSTINE, JJ.
   BYRNES, Judge.

This is an appeal from the granting of an exception of no cause of action in a suit by an injured worker against the executive officers of his former employer, Southern Shipbuilding Corporation (hereinafter “Southern”). We reverse.

Appellant was employed by Southern for approximately 18 years as a welder/gau-ger. His work required him to spend most days inside the hulls of vessels under construction, in an atmosphere laden with various potentially harmful particles such as silica, asbestos, and iron oxide. After experiencing increasing shortness of breath, appellant sought medical help in May of 1977, and was diagnosed as having silicosis, a disabling lung disease.

Two months later, in July 1977, appellant filed suit against the executive officers and various supervisory personnel of Southern, alleging that their negligence resulted in his exposure to the particles which caused his disease. A products liability suit was also filed against the manufacturer of various protective devices which were meant to protect workers from inhalation of the harmful particles, but allegedly did not.

The executive officers filed an exception of no cause of action alleging that appellant’s cause of action accrued after the 1976 amendment to the Louisiana Workers’ Compensation Act prohibiting tort suits against executive officers. A motion for summary judgment was also filed by several past insurers of the executive officers who contended that their occurrence-type liability policies did not cover damage sustained after the expiration date of those policies. The trial judge granted the motion for summary judgment and maintained the exception of no cause of action, ruling that “plaintiff’s cause of action arose May 7, 1977, when his lung disease was diagnosed.” It is with this conclusion of the trial judge that we disagree.

THE DISEASE

Silicosis is “a chronic pulmonary disease due to inhalation of dust with a high concentration of silica (SI02), characterized by widespread fibrosis and clinically by shortness of breath and increased susceptibility to tuberculosis.” Blakiston’s GOULD MEDICAL DICTIONARY, (4th Ed.1979).

Medical experts agree that silicosis is caused by the body’s reaction to the presence of silica particles. These particles react chemically with the body of the victim, creating toxic compounds which irritate bodily tissues and lead to the destruction of certain cells vital to the immunological process. The body’s natural cleansing mechanisms, maimed and overworked by a combination of the presence of silica and its toxic effects, break down. The compounds produced in reaction to the presence of silica stimulate the growth of connective tissues which in turn lead to fibrosis, a state where a fibrous growth obscures and impairs healthy tissue. Eventually this process damages the lungs to such an extent that disability occurs. The degree of exposure necessary to create this condition varies from person to person by reason of the individual’s make up and bodily chemistry, as well as various environmental influences.

The condition is progressive in nature in the sense that once the disease process begins, it continues to worsen even when the victim is removed from exposure to silica particles. There is no known cure for this disease. Those suffering from silicosis not only experience decreased pulmonary function, but are more vulnerable to diseases of any type, due to lowered body resistance.

By its very nature this type of injury is not immediately manifest but develops slowly over a period of time. The rate at which the disease develops depends on many factors including the type of particle involved, the environment in which the exposure occurs, the type of protective equipment used, the number of years of exposure, and the health and habits of the particular worker. For a good general discussion of the causes and development of silicosis see, Hamilton & Hardy’s INDUSTRIAL TOXICOLOGY, (4th Ed.) Revised by Asher J. Finkel, and CLINICS IN CHEST MEDICINE, (Vol. 2 No. 2, May 1981), Occupational Lung Diseases, by Stuart M. Brooks.

THE CAUSE OF ACTION

There is no dispute among medical authorities, or among the parties to this suit, that regardless of the time at which the disability caused by silicosis arises, the disease process itself invariably begins years earlier. The question posed by this appeal is; when does a plaintiff’s cause of action for damages caused by silicosis arise?

Appellee argues strenuously that a cause of action accrues only when the disease manifests itself by physical symptoms and disability. This contention is based on the theory that negligence without injury or damage is not actionable. While this is a correct statement of the law, it begs the question at hand. This appeal is concerned with what constitutes injury, in a legal sense, in cases of silicosis, and when that injury occurs. Resolution of this question seems to hinge primarily on how one defines the injury which, when coupled with a defendant’s negligence, gives rise to a cause of action.

The trial judge took the position that injury does not occur until the disease is diagnosed or manifested by physical symptoms. While this theory has the advantage of being easy to apply, it ignores the reality of the situation. There is no doubt whatsoever that by the time a plaintiff is ‘diagnosed as having silicosis, the disease has been present for some time. It would be the purest fiction to assert that no injury has occurred before the date of manifestation. Injury occurred when the cumulation of exposure reached the point where the plaintiff contracted the disease. The fact that the symptoms of the disease manifest themselves years later does not change the essential fact that the damage has already been done.

We have concluded that in the unique circumstances presented by cases of cumulative diseases such as silicosis, it is the contraction of the disease which creates a cause of action and not the later manifestation of the consequences of that disease. To hold otherwise would be to ignore the facts. While the ultimate manifestation of the disease by physical disability may be a convenient, easily fixed point at which to find that a cause of action accrues, we cannot disregard the fact that but for the earlier contraction of the disease, there would be no symptoms to manifest themselves.

The problem with this approach is that it is extremely difficult to accurately fix the point in time at which the disease is contracted. This difficulty does not change the unavoidable reality that the disease exists, in the sense that irreversible biological changes which will inevitably result in disease and disability, take place before manifestation of the condition by way of disabling symptoms. There is universal medical opinion that the date of detection is not the date at which the disease is contracted.

It seems implicit from much of the medical evidence that once silica dust has so damaged and maimed the body that the fibrogenic effects of silica inhalation will progress independent of further exposure, a disease has been contracted. It is at this point and not before that the consequences of exposure to silica becomes inevitable and in our opinion, actionable. The victim’s body has been injured just as surely as if it had been hit by a truck.

We realize that this is not a point in time which is subject to easy determination. However, for purposes of an exception of no cause of action, which is the issue before us in this appeal, the exact point is not essential. The plaintiff need only allege that, at some time prior to October 1, 1976, (the effective date of the amendment of R.S. 23:1032), he contracted silicosis. The trial judge was clearly wrong in ruling that appellant’s cause of action did not arise until the date on which his disease was diagnosed.

While plaintiff’s petition does not make a specific allegation that silicosis was contracted before 1976, it does allege that continued exposure for 18 years caused him to contract the disease and that he became aware of this fact in May, 1977. Pleadings should be liberally construed in favor of stating a cause of action. Neblett v. Placid Oil Co., 257 So.2d 167 (La.App. 3rd Cir.1971). In ruling on an exception of no cause of action all well pled facts must be accepted as true, and any doubts resolved in favor of finding that the pleadings are sufficient to state a cause of action. Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir., 1981); Landry v. Landry, 339 So.2d 360 (La.App. 1st Cir., 1976). An exception of no cause of action should be maintained only where the allegations of fact in the petition disclose no cause of action on any ground whatsoever. Leatherman v. Parish of East Baton Rouge, 275 So.2d 806 (La.App. 1st Cir.1972). This is because the peremptory exception of no cause of action is intended to test the legal sufficiency of the petition, and not the evidence which may or may not be available to prove the allegations of the petition at trial. Vancouver Plywood Co. Inc. v. Sumrall, 415 So.2d 625 (La.App. 3rd Cir.1982); Hero Lands Co. v. Texaco Inc., 310 So.2d 93 (La.1975) Indeed the policy behind liberal construction of pleadings is to give plaintiffs the opportunity to present evidence in support of their claims. Hero Lands Co. v. Texaco, Inc. supra.

In this case we feel appellant’s petition gave defendants adequate notice of his claim and its factual basis. Appellant should have the right to present evidence in support of his claim. We, therefore, reverse the ruling of the trial court maintaining appellee’s exception of no cause of action.

SUMMARY JUDGMENT

We now address the trial judge’s dismissal of prior insurers of the executive officers by summary judgment.

It is well settled that summary judgment should be granted only when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. C.C.P. Art. 966. All doubts should be resolved against the granting of summary judgment and in favor of trial on the merits.

In this case the trial judge erred by granting summary judgment. There are several issues of material fact in dispute, not the least of which relates to when injury in cases of silicosis occurs.

The policies in question contain the following language:

Application of Policy: This policy applies only to injury (1.) by accident occurring during the policy period, or (2.) by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease, occurs during the policy period.

The question then becomes, is the contraction of silicosis to be classified as bodily injury by accident or bodily injury by disease?

In Fazande v. Continental Grain Co., 363 So.2d 1253 (La.App. 4th Cir., 1978), this court interpreted identical language and held that only the policy in effect at the time of the last exposure to conditions causing the disease provided coverage.

However, Fazande, did not discuss the classification of silicosis as bodily injury by accident or bodily injury by disease under the policies then before the court. We must therefore assume that the definitions of these terms were clear and unambiguous. This is not so in the present case and we distinguish Fazande on that basis.

Section 3 of the policy at issue here contains definitions of certain terms used throughout the policy. Sub-Section C. deals with the definition of injury and states:

The contraction of disease is not an accident within the meaning of the word “accident” in the term “bodily injury by accident” and only such disease as results directly from a bodily injury by accident is included within the term “bodily injury by accident.” The term “bodily injury by disease” includes only such disease as is not included within the term “bodily injury by accident”.

To say the least this definition is unclear. On one hand it seems to exclude contraction of disease as an injury by accident. However, the next clause of the same sentence seems to allow the contraction of some diseases to be classified as accidental injury. Given these circumstances it seems that a genuine issue of material fact as to the classification of appellant’s injury existed. The granting of summary judgment was therefore inappropriate.

CONCLUSION

A cause of action arises in cases of silicosis when the disease is contracted, not when it is manifested by symptoms. The allegations of plaintiff’s petition must be accepted as true for purposes of an exception of no cause of action. When the petition can fairly be said to allege contraction of silicosis prior to the 1976 amendment to the Workers’ Compensation Act, a cause of action has been stated and the granting of an exception of no cause of action is error. It is likewise error to dismiss liability insurer’s by summary judgment on the basis that no injury occurred during the effective dates of their respective policies until the date of the injury and its classification under those policies has been fixed. The judgments of the trial court are reversed and the ease is remanded for trial on the merits. Each party to bear their respective costs.

REVERSED AND REMANDED.

GULOTTA, J., concurs.

GULOTTA, Judge

concurring.

I concur in the result reached by the majority in reversing the trial court and overruling the exception of no cause of action.

The instant case is distinguishable from our holding in Fazande v. Continental Grain Co., 363 So.2d 1253 (La.App. 4th Cir.1978), where we held liable an insurer which was providing worker’s compensation coverage at the time of the plaintiff-employee’s disability. In Fazande, after a trial on the merits, we concluded that the disability from the disease occurred within the term of the compensation policy of the last insurer, where several successive insurers had provided coverage during plaintiff’s long work history at one company.

Unlike Fazande, the instant ease involves an appeal from the trial court’s judgment maintaining an exception of no cause of action in tort against executive officers. I am of the opinion that the trial judge more properly should have referred the exception to a trial on the merits. Furthermore, it appears that the allegations in the instant case are more closely akin to Hanlon v. Sline Industrial Painters, Inc., 358 So.2d 700 (La.App. 3rd Cir.1978), which we distinguished in Fazande, supra.

For the same reasons, I likewise concur in the majority’s denial of the motion for summary judgment. Because there are genuine issues of material fact as to the nature of plaintiff’s disease and defendant’s insurance coverage, the question of the insurer’s liability is the proper subject of a trial on the merits.


author: WARD, Judge.

text:
    Arthur QUICK v. MURPHY OIL COMPANY, et al.
    No. 13258.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    On Rehearing Jan. 25, 1984.
    Writs Denied April 2, 1984.

      Michael A. Fenasci, New Orleans, for plaintiff-appellant.
    Linda S.A. Burke, Rene A. Curry, Jr., New Orleans, for defendants-appellees.
    William S. Marshall, Jr., Alan Dean Weinberger, New Orleans, La., amicus curiae.
    Before WARD, BYRNES and KLEES, JJ.
   WARD, Judge.

Arthur Quick, a long-time employee of Murphy Oil Corporation, brought this suit in the Twenty-Fourth Judicial District Court claiming damages from sixty-six defendants for injuries which he allegedly received during his employment. Among the sixty-six defendants are his former employer, Murphy Oil Corporation, and its executive officers: M.J. Leumas, Dave Thomas, James O’Neal, Jr., John Chutz, III, Leonard King, Elliott Smith, and Camille Trahan. Quick’s lawsuit alleges negligence and, alternatively, intentional torts and asks for damages for asbestosis, a lung disease, which Quick claims was caused by his intermittent exposure to asbestos during the twenty-five years he was employed by Murphy Oil Corporation. In defense, Murphy Oil Corporation and the executive officer group filed exceptions of no right and no cause of action. The Trial Judge sustained the exceptions and dismissed Quick’s lawsuit against these defendants. Neither the Trial Judge’s ruling nor this appeal affects the remaining defendants whom Quick has described as the Asbestos Group.

Quick appeals the Trial Court’s judgment of dismissal, urging two assignments of error. Quick argues that the Trial Judge erred in retroactively applying Act 147 of 1976 which amended the Worker's Compensation Law by granting immunity to fellow employees from claims of negligence. The act permits claims against fellow employees based on intentional torts, and Quick also contends that the Trial Judge erred in sustaining the exception of no right or cause of action, arguing that the allegations set forth in his petition sufficiently state a cause of action based on intentional torts.

We do not believe that the Trial Judge erred when he held that Act 147 of 1976 bars Quick’s claims of negligence. We, however, reverse the Trial Judge’s ruling on the exception of no cause of action insofar as the allegations of intentional torts; we find that the allegations of Quick’s petition are sufficient to state a cause of action for intentional torts.

As to the claims for negligence, Quick contends that the Trial Judge erroneously applied the amending act retroactively to a claim based on continuous tortious acts that occurred before the amendment and during his 25 years of employment, even though it is well settled that Act 147 of 1976 may not be applied to a cause of action that arose before its effective date. Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4th Cir.1977), writ denied, 354 So.2d 210 (La.1978). We believe, nonetheless, that the question is not retroactive application, but is whether the cause of action arose before Act 147 of 1976.

A cause of action has been defined by the Louisiana Supreme Court as, “the state of facts which gives a party the right to judicially assert an action against a defendant.” Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350, 353 (La.1975). Hence, a cause of action does not arise until the injury becomes known.

In a case similar to this, Smith v. Hurd, 408 So.2d 357 (La.App. 1st Cir.1976), an executive officer suit based on negligence, it was held that a widow’s cause of action for wrongful death could not arise prior to her husband’s death which occurred after the amendment. The First Circuit Court of Appeal rejected the argument that the claim arose when the injuries from exposure to sand and dust particles were inflicted prior to the effective date of the amendment and held that the exception of no cause of action or no right of action was properly sustained by the Trial Court.

In the instant case, Quick does not claim either that the injury manifested itself or that he contracted asbestosis before the effective date of Act 147 of 1976. The record reflects that asbestosis was discovered after Quick was examined by physicians in February of 1980, four years after Act 147 of 1976.

Because the Supreme Court’s definition of a cause of action is controlling and because we agree with the First Circuit’s decision in Smith v. Hurd, supra, we find that Quick’s cause of action did not arise until asbestosis was diagnosed in 1980, four years after the effective date of Act 147 of 1976. Therefore, the Trial Judge was correct in his application of Act 147 of 1976 which bars claims against fellow employees based on negligence.

In his second assignment of error, Quick argues that even if Act 147 is applicable and immunizes executive officers from liability for injuries caused by their negligence, it does not immunize these officers from claims for injuries resulting from their intentional acts. He contends that the Trial Judge erred when he ruled that Quick’s petition did not state a cause of action under this theory.

In his petition, Quick alleges:

Each of the defendants, executive officers, directors or shareholders knew the identity of the products being used at the Murphy Oil Company facility and they knew that the products that were used at that facility were extremely dangerous and would cause serious and/or fatal injuries to any person handling those materials.
Each of the defendant executive officers personally knew that the plaintiff was handling extremely dangerous materials containing asbestos from August of 1955 to February of 1980. Each of the defendant executive officers, directors, or shareholders personally knew that the plaintiff had not been provided with the required and/or necessary and/or adequate equipment for the handling of these extremely dangerous materials containing asbestos.
Likewise, each of the defendants, executive officers, directors or shareholders knew that the plaintiff had not been adequately warned concerning the hazards of handling extremely dangerous materials containing asbestos.
[Arthur Quick’s] injuries and his damages resulting therefrom, were caused by defendant’s executive officers, directors or shareholders intentional acts, in that the injurious consequences were substantially certain to follow from their acts.

In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Louisiana Supreme Court defined “an intentional act”:

... The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than the act itself. Id. at 481.

The Court further noted:

... Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional. Id. at 481.

For the purpose of ruling on an exception of no cause of action, all well-pleaded allegations are accepted as true, and any doubts must be resolved in favor of the sufficiency of pleadings to state a cause of action. Guy Scroggins, Inc. v. Emerald Exploration, 401 So.2d 680, 684 (La.App. 3rd Cir.1981), writ denied, 404 So.2d 1257 (La.1981). The allegations of Quick’s petition may be interpreted to allege that the executive officers did an intentional act or intentionally abstained from acting with the knowledge that Quick’s injuries were substantially certain to follow. We conclude that these allegations are sufficient to state a cause of action based on intentional acts. Therefore, Quick should have an opportunity in trial or summary proceedings to prove his allegations of intentional torts. Accordingly, insofar as the petition alleges intentional torts, we reverse the Trial Court and overrule defendant’s exception of no cause or right of action.

For the foregoing reasons, the judgment of the Trial Court dismissing Quick’s claims based on negligence is affirmed. The judgment of the Trial Court dismissing Quick’s claims based on intentional torts is reversed.

AFFIRMED IN PART. REVERSED IN PART.

ON REHEARING GRANTED

We granted a rehearing to reconsider the question: Is Quick’s cause of action barred by Act 147 of 1976 which amended the worker’s compensation law by granting immunity to fellow employees from claims of negligence? After our initial decision in this case, other claims for injuries from asbestosis or silicosis have been brought to this and other appellate courts of this state which raise the same question. Consequently, to promote internal consistency within this circuit, we have delayed considering anew this interesting question until we could also consider the arguments made in these other cases.

We now believe our original decision was wrong and reverse the Trial Court’s ruling which held that Quick’s cause of action was barred by the 1976 amendment to the worker’s compensation law.

Another panel of this court has considered this exact question, and although that case involved the disease of silicosis, and did not arise in exactly the same factual context, we find the decision to be persuasive. See Faciane v. Seligman, et al., 446 So.2d 770 (1984). That decision holds in pertinent part:

There is no dispute among medical authorities, or among the parties to this suit, that regardless of the time at which the disability caused by silicosis arises, the disease process itself invariably begins years earlier. Thus the question posed by this appeal is; when does a plaintiff’s cause of action for damages caused by silicosis arise?
Appellee argues strenuously that a cause of action accrues only when the disease manifests itself by physical symptoms and disability. This contention is based on the theory that negligence without injury or damage is not actionable. While this is a correct statement of the law, it begs the question at hand which asks what is injury, in a legal sense, in cases of silicosis, and when does that injury occur?
Appellant maintains that injury occurs with each inhalation of silica dust. The result of such a conclusion would be the creation of a cause of action at each exposure. The obvious problem with this approach is that the injurious effect of breathing silica dust is generally viewed as the result of exposure over a period of time rather than from a single exposure.
Our understanding is that everyone, especially in urban environments, inhales silica particles without substantial harm. The body’s natural cleansing mechanism is adequate to handle some degree of exposure without harm. It is only when the body’s defense mechanisms break down that the real damage, which those particles can cause, begins. To this extent we do not feel any actionable injury occurs by the mere inhalation of silica particles.
What then should courts do when faced with the problem of when a cause of action for silicosis arises? Resolution of this question seems to hinge primarily on how one defines the injury which, coupled with defendant’s negligence, gives rise to a cause of action.
The trial judge took the position that injury does not occur until the disease is diagnosed or manifested by physical symptoms. While this theory has the advantage of being easy to apply, it ignores the reality of the situation. There is no doubt whatsoever that by the time a plaintiff is diagnosed as having silicosis, the disease has been present for some time. It would be the purest fiction to assert that no injury has occurred before the date of manifestation. Injury occurred when the cumulation of exposure reached the point where the plaintiff contracted the disease. The fact that the symptoms of the disease manifest themselves years later does not change the essential fact that the damage has already been done.
We have concluded that in the unique circumstances presented by eases of cumulative diseases such as silicosis, it is the contraction of the disease which creates a cause of action and not the later manifestation of the consequences of that disease. To hold otherwise would be to ignore the facts. While the ultimate manifestation of the disease by physical disability may be convenient, easily fixed point at which to find a cause of action accrues we cannot disregard the fact that, but for the earlier contraction of the disease, there would be no symptoms to manifest themselves.
The problem with this approach is that it is extremely difficult to accurately fix the point in time at which the disease is contracted. This difficulty does not change the unavoidable reality that the disease existed in the sense that irreversible biological changes which inevitably result in disease and disability take place before manifestation of the condition by way of disabling symptoms. There is universal medical opinion that the date of detection is not the date at which the disease is contracted.
It seems implicit from much of the medical testimony that once silica dust has so damaged and maimed the body that the fibrogenic effects of silica inhalation progress independent of further exposure, a disease has been contracted. It is at this point that the consequences of exposure to silica become unavoidable. The victim’s body has been injured just as surely as if it had been hit by a truck.
We realize that this is not a point in time which is subject to easy determination. However, for purposes of an exception of no cause of action, which is the issue before us in this case, the exact point is not essential. The plaintiff need only allege that at some time prior to October 1, 1976, the effective date of the amendment of R.S.23:1031, he contracted silicosis. The trial judge was clearly wrong in ruling that appellants cause of action did not arise until the date on which his disease was diagnosed.
Pleadings should be liberally construed in favor of stating a cause of action. Neblett v. Placid Oil Co., 257 So.2d 167 (La.App.Cir.1971), application denied [260 La. 1121] 258 So.2d 376. In ruling on an exception of no cause of action all well pled facts in the petition must be accepted as true, and any doubts resolved in favor of a finding that the pleadings are sufficient to state a cause of action. Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir.1981); Landry v. Landry, 339 So.2d 360 (La.App. 1st Cir.1976). An exception of no cause of action should be maintained only where the allegations of fact in the petition disclose no cause of action on any ground whatsoever. Leatherman v. Parish of East Baton Rouge, 275 So.2d 806 (La.App. 1st Cir.1973). This is because the peremptory exception of no cause of action is intended to test the legal sufficiency of the petition and not the evidence which may or may not be available to prove allegations of the petition at trial. Vancouver Plywood, Inc. v. Sumrall, 415 So.2d 625 (La.App.1982); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975). Indeed the policy behind liberal construction of pleadings is to give plaintiffs the opportunity to present evidence in support of their claims. Hero Lands Co. v. Texaco, Inc., supra.

We find no reason to distinguish Quick’s cause of action for asbestosis, from Fa-ciane’s cause of action for silicosis.

We do distinguish, however, the time when a cause of action arises from when prescription begins to run. A cause of action arises when injury occurs, while prescription begins to run only when the injured party becomes aware of his injury.

We recognize there exists persuasive authority for the view that Quick’s action was barred. Apparently this same question has troubled other courts and has been certified to the Louisiana Supreme Court. See Ducre v. Mine Safety Appliances, et al, 573 F.Supp. 388, United States District Court, Eastern District of Louisiana.

In the meantime, for the reasons expressed above, we reverse and remand for trial on the merits.

REVERSED AND REMANDED.

      . Arthur Quick died after his suit was filed.


author: BYRNES, Judge.

text:
    ABC SCHOOL UNIFORMS, INC. v. LE HIG’S UNIFORM CENTER.
    No. CA 1123.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Anthony J. Milazzo, Jr., Kenner, for plaintiff-appellant.
    C. Monk Simons, III, New Orleans, for defendant-appellee.
    Before BYRNES, AUGUSTINE and WARD, JJ.
   BYRNES, Judge.

This appeal involves a suit on an open account. ABC School Uniforms, Inc. [ABC], plaintiff-appellant filed suit in the Civil District Court, Orleans Parish, to collect $10,650.23 allegedly owed by LeHig’s Uniform Center Inc., [LeHig’s]. Judgment was granted in favor of ABC and against LeHig’s in the amount of $5,392.75 with interest and costs. The trial court found that ABC failed to properly credit LeHig’s account for merchandise returns in the amount of $5,257.57. ABC appeals.

ISSUE

ABC contends that the trial court erred in not awarding the full amount sought and by failing to award attorney fees.

FACTS

In 1977 Daisy clothing stores went out of business. Daisy had previously sold uniforms for ABC. However when théy closed, ABC approached LeHig’s to distribute their uniforms. LeHig’s has stores in New Orleans; Biloxi, Mississippi; and Mobile, Alabama.

At the inception of their business relationship ABC shipped LeHig’s approximately $25,000.00 of merchandise, which remained from Daisy’s inventory. Of this original shipment $7,967.00 of goods were returned to ABC. The remaining merchandise was shipped to LeHig’s various stores. Some. of the remaining merchandise was used to fill orders and the rest was returned to ABC.

LeHig’s made payments to ABC on a rather irregular basis. At one point ABC wrote LeHig’s a letter outlining amounts owed at $22,667.25. However, through payments and returns LeHig’s managed to decrease the balance due by some $12,-000.00. ABC’s ledger showed the amount due to be $10,650.23 when this action was brought.

AMOUNT DUE

ABC submitted statements and invoices into evidence to support its claim. Further, ABC’s president testified as to the amounts owed and that he was personally involved in the shipments made to LeHig’s. Thus, ABC established a prima facie case.

Once a prima facie case has been established the burden shifts to the debtor to “... disprove the existence or correctness of the account either in whole or in part.” See Shear v. Castrinos, 327 So.2d 558, 558 (La.App. 4th Cir.1976).

In the present case, LeHig’s asserts that the statement of account submitted by ABC was incomplete in that it did not include several returns made by them. ABC contends that LeHig’s has inflated the amount of credit to which they are entitled by using prices higher than those they paid for the merchandise.

As noted by the trial court in its reasons for judgment, LeHig’s business practices were rather poor regarding record keeping. Many of the records submitted by LeHig’s were masses of numbers scrawled on scraps of paper. By the same token, although ABC kept comparitively scrupulous records many of the credit memos which they introduced into evidence did not list the inventory allegedly credited to LeHig’s account, they merely stated total dollar amounts. Without evidence of which items were credited it is impossible to match these credit memos with LeHig’s records.

It is clear that the trial court was faced with a serious evidentiary problem involving conflicting testimony and incomplete evidence. Under such circumstances, the trial court is mandated to reconcile the apparent contradictions in testimony wherever possible and to examine the evidence in light of all surrounding circumstances to render an equitable judgment. See Nelson v. Zurich Insurance Company, 247 La. 438, 172 So.2d 70 (1965) and Williams v. Griffin, 422 So.2d 199 (La.App. 4th Cir.1982). Further, on appeal, we are mandated to accord great weight to the factual findings and reasonable evaluations of creditibility made by the trial court. Foster v. R.E. Schanzer, Inc., 350 So.2d 254 (La.App. 4th Cir.1977).

The trial court found that returns in the amount of $4,032.25 itemized by Le-Hig’s were not properly credited. A review of the record reveals that a corresponding credit memo does not appear. Further, the prices used by LeHig’s in computing the amount to be credited were identical to those charged by ABC when the merchandise was originally purchased. Accordingly, LeHig’s account should reflect a $4,032.25 credit.

The trial court also found that ABC failed to credit other returns in the amount of $1,225.32 and a review of the record does not reveal a corresponding credit memo by ABC. While LeHig’s originally used an inflated price to compute the amount to be credited, the record shows that they deducted 40% to reflect the original price paid and also deducted $2,699.88 for an unitemized credit memo which may or may not have been for the specific merchandise returned. This still left $1,225.32 uncredited. Accordingly, we agree with the trial court’s finding that LeHig’s account should also reflect a $1,225.32 credit.

ATTORNEY FEES

Appellant contends that they are entitled to attorney fees under LSA-R.S. 9:2781. That statute states in pertinent part:

When a person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. [Emphasis added]

This section must be strictly complied with for a claimant to be entitled to attorney’s fees. Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3rd Cir.1979).

In a letter dated March 16, 1979 ABC informed LeHig’s that they were seriously in arrears in the amount of $22,-667.25. The letter demanded payment within 30 days or within several months via an outlined monthly payment plan. The testimony at trial establishes that ABC and LeHig’s later agreed orally to payments of at least $500.00 per month and that all further orders would be cash on delivery. The terms were complied with until October 1980, when by means of payments and returns, LeHig’s reduced their balance by some $12,000.00. There is no evidence that another demand letter was sent prior to filing of this action. Since $22,667.25 was no longer the amount owed and ABC did not send another demand letter stating the current balance due they have failed to meet the requirements that they make “... written demand ... correctly setting forth the amount owed.” Plaintiff failed to strictly comply with R.S. 9:2781. Accordingly, they are not entitled to attorney’s fees.

For the above reasons the judgment of the trial court is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    DELTA DEVELOPMENT CO., INC. v. George B. JURGENS, III, et al.
    No. CA-1007.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 1984.
    Writ Granted April 2, 1984.
    Raymond J. Salassi, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for'plaintiff-appellant.
    Frank A. Tessier, Clave E. Gill, III, New Orleans, for defendants-appellees.
    Before SCHOTT, BARRY and WARD, JJ.
   BARRY, Judge.

Delta Development Co., Inc.’s lawsuit to reform real estate deeds was dismissed, except as to one defendant, based on abandonment under LSA-C.C.P. Art. 561, and appeals.

On May 30, 1961 Delta sued the heirs of George B. Jurgens and all defendants were served except George E.J. Boden. On December 11, 1961 all defendants, including Boden, filed an exception of prescription which was dismissed on September 10, 1973. On September 2, 1975 Delta took a preliminary default against all defendants. On August 25, 1980 Delta propounded interrogatories to only one of the defendants, William John Tessier. In January, 1982 the other defendants or their heirs filed a Rule to dismiss based on abandonment and it was granted on March 2, 1983, except as to Mr. Tessier.

The sole question is whether the interrogatories to Mr. Tessier was a “step” which would interrupt the five year abandonment period as to the other defendants.

Delta .argues any step taken by any party tolls the five year period, citing Gros v. Houma Medical and Surgical Clinic, 343 So.2d 1115 (La.App. 1st Cir.) writ denied 345 So.2d 504 (1977) and Succession of Adams, 336 So.2d 967 (La.App. 4th Cir.1976). Defendants counter urging that a step must be taken as to each defendant. Bolden v. Brazile, 172 So.2d 304 (La.App. 4th Cir.1965); McClure v. A. Wilbert’s Sons Lumber & Shingle Co., 232 So.2d 879 (La.App. 1st Cir.1970); Tucker v. New Orleans Laundries, Inc., 145 So.2d 365 (La.App. 4th Cir.1962), Wicker v. Coca-Cola Bottling Co., 418 So.2d 1378 (La.App. 5th Cir.) writ denied 423 So.2d 1148 (1982).

Delta claims the cases cited by defendants involve no service of process on the dismissed parties. This Court has expressed disapproval of the overly broad rule: “any steps taken to ‘hasten the matter to judgment’ are ineffective as to defendants not served.” Murphy v. Hurdle Planting and Livestock, Inc., 331 So.2d 566 (La.App. 1st Cir.) writ denied 334 So.2d 434 (La.1976). In Landry v. Thomas, 422 So.2d 513, 514 (La.App. 4th Cir.1982) writ denied 429 So.2d 143 (La.1983), we stated:

In our opinion, the rule announced in Murphy does not necessarily follow from the principles established in Bolden and McClure, supra, upon which the court relied for its decision. In each of those cases, more than five years had elapsed between the filing of suit and service of process upon the defendants. In the interim, the plaintiff had taken no formal steps whatsoever to move the case toward judgment against the unserved defendants. In each case, it was held correctly that under those circumstances, the plaintiff must be regarded as having abandoned his case as to those defendants. From such a holding, it does not follow ineluctably that “any steps taken to ‘hasten the matter to judgment’ are ineffective as to defendants not served.” Murphy, supra, at 568. Bolden and McClure merely stand for the proposition that when more than five years pass between one formal step in the prosecution and the next, the case shall be considered abandoned. In neither ease was the failure to effect service the disposi-tive element: that fact was purely incidental to the plaintiff’s failure to file any formal motion whatsoever (against the abandoned defendants).

The source of Art. 561 was C.C. Art. 3519 which was in the section of the Civil Code dealing with interruption of prescription. “Thus, both historically and theorti-cally, the rule on abandonment of actions is a species of liberative prescription....” Melancon v. Continental Casualty Company, 307 So.2d 308, 311 (La.1975); Chevron Oil Co. v. Traigle, 436 So.2d 530 (La.1983).

C.C. Art. 2097 provides that “a suit brought against one of the debtors in solido interrupts prescription with regard to all.” In the absence of solidarity between unnamed and named defendants, the petition will not interrupt prescription as to unnamed defendants. Melancon v. Tassin Amphibious Equipment Corp., 427 So.2d 932 (La.App. 4th Cir.) writ denied 433 So.2d 166 (1983). Although Art. 2097 does not expressly apply to the Art. 561 abandonment, it is logical to conclude that a “step” in the proceedings against one defendant (not a solidary obligor) will not interrupt the Art. 561 abandonment as to other defendants.

Here the “step” was filing of interrogatories directed to and served on only one defendant. If the step had been effective as to all defendants (such as a motion to set for trial), or if the defendants were solidary obligors, obviously the “step” would apply to all defendants. However, these defendants are not solidary obligors, and the “step” was directed to only one defendant. Therefore, we agree the five year abandonment period covered all defendants except Mr. Tessier.

Under this rationale all cases can be reconciled or distinguished, except Gros and Murphy, supra, with which we disagree. In Gros, the “step” was filing an exception of no cause or right of action by one defendant. Subsequently, plaintiff dismissed this defendant. However, the court concluded defendant’s exception was sufficient to interrupt the abandonment period as to the remaining defendants. It is unclear from the opinion whether defendants were solidary obligors. If they were not, the exception did not apply to all and we would disagree with the conclusion.

In Murphy, supra, the defendants in a tort suit were alleged to be debtors in solido. A timely motion to set for trial was action filed as to some of the defendants. One defendant was not served until after five years and was dismissed. As stated above, this Court expressed disapproval of Murphy in Landry, supra.

In King v. American Motorists Insurance Co., 295 So.2d 26 (La.App. 4th Cir.1974) the defendants in a tort suit were alleged solidary obligors. A supplemental petition was filed within five years of the last action and included a request for service on all defendants. This was sufficient to toll prescription as to all.

American Eagle, Inc. v. Employers Liability Assurance Corporation Ltd., 389 So.2d 1339 (La.App. 1st Cir.1980) writ denied 396 So.2d 885, 886 (1981), fell squarely within one of the exceptions to the Art. 561 rule, i.e., when the failure to proceed is caused by circumstances beyond plaintiff’s control. Chevron Oil, supra. In American Eagle the delay was attributable to the inability of the court reporter to prepare the transcript. In addition, a post-trial conference was considered a step which inured to the benefit of all parties. The court properly concluded the case should not be dismissed as to any party.

In McClure, Bolden and Wicker, supra, the defendants were not solidary obligors and those courts correctly held that no action as to certain defendants within five years resulted in abandonment as to those defendants. The defendants in Rollins v. Causey, 427 So.2d 1291 (La.App. 2d Cir.1983) were alleged to be solidary obligors and that court rightly held that a motion to compel answers to interrogatories directed to one physician served to interrupt the abandonment period as to all defendants.

Delta also cites Succession of Adams, supra, (a will contest), but since this was a succession proceeding it is distinguishable. We note the legislature acknowledged this distinction by amending Art. 561 with Act 670 of 1983 making the article inapplicable to succession proceedings. Act 670, by its terms, applies retroactively. Thus, if Adams supported plaintiff’s position we are not persuaded that it has precedential value to the case sub judice.

Here we are concerned with alleged former co-owners of real estate who, as such, are not solidary obligors. It was stipulated that five of the original defendants died since 1961 and prior to the timely filing of interrogatories on Mr. Tessier in 1980, none of the deceased defendants’ heirs were substituted nor were any of the heirs served with any pleadings. Delta’s petition does not allege solidarity between the owners. We are satisfied the trial court correctly held that interrogatories directed to one defendant was not a “step” sufficient to interrupt the abandonment period as to the other defendants.

Delta also argues the interrogatories to Mr. Tessier was an effort to identify the heirs to be substituted. The failure to substitute parties is of no moment as long as the Art. 561 abandonment period has not run. Borne v. Brumfield, 363 So.2d 79 (La.App. 4th Cir.1978). If Delta had taken a “step” involving the cited defendants (though deceased), or a “step” which could be construed as inuring to the benefit of all parties, even if the proper parties had not been substituted, this would have tolled the five year period.

Finally, plaintiff urges under Chevron Oil Co. v. Traigle, supra, the movers for dismissal have not been substituted as parties defendant, hence, they waived their right to seek abandonment. We disagree. In Chevron the defendants filed motions for summary judgment before claiming Art. 561 relief. The Supreme Court said: “By allowing a suit to be submitted for decision, the defendant clearly consents to have the matter resolved upon its merits.” Id. 436 So.2d at 534. The court expressly stated it was not passing upon the effect of any other action by defendant “short of submission of the case for decision.” Id. at 535. The failure to substitute parties did not constitute a waiver of the movers’ right to seek dismissal on the basis of abandonment as contemplated by the jurispruden-tially recognized exceptions to the abandonment rule.

Art. 561 by its terms is self-operative and the order of dismissal shall be entered on the “ex parte motion of any party or other interested person.” Movers clearly had not waived their right to seek abandonment, were “interested person[s]” within the meaning of the article, and were entitled to move for dismissal on abandonment.

The judgment of the District Court is affirmed. Costs to be paid by appellant.

AFFIRMED.

      . LSA-C.C.P. Art. 561 provides in part:
      An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or any interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

      . Defendants acknowledge the filing of interrogatories constitutes a "step” in the procéedings. Edwards v. Giambrone, 353 So.2d 326 (La.App. 1st Cir.1977) writ denied 354 So.2d 1375 (1978). Plaintiff concedes there was no other “step” to interrupt the abandonment.

      . “Under article 3519, two exceptions to the rule of five year abandonment were recognized: (1) when the failure to prosecute was caused by circumstances beyond plaintiff's control, and (2) when the defendant waived his right to plead abandonment by taking any action in the case inconsistent with an intent to treat the case as abandoned. Melancon v. Continental Casualty Co., supra, 307 So.2d at 311. See La.Code Civ.P. art. 561, Comment (c) (1960), and cases cited therein." Chevron Oil Co., supra, at 533.


author: GARRISON, Judge. SCHOTT, Judge,

text:
    Isaac WILSON, Individually and as Administrator of the Estate of the Minor Child, Denita Marie Wilson, Theresa Mitchell Brown, Wife of Melvin Brown, Individually and On Behalf of Her Minor Child, Denita Marie Wilson and Melvin Brown v. ALLSTATE INSURANCE COMPANY, Cerdan Monroe, State Farm Mutual Automobile Insurance Company and the City of New Orleans, Department of Streets In Solido.
    No. CA 0296.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 17, 1984.

      Bernard J. Rice, III, Gretna, for plaintiffs-appellants-appellees, Theresa Brown, individually and as administratrix of her minor child, Denita Wilson and Melvin Brown.
    Donovan & Lawler, Christopher E. Lawler and Marshall G. Weaver, Metairie, for defendant-appellant-appellee, Allstate Ins. Co.
    Salvador Anzelmo, City Atty., Douglas P. Wilson, Chief Deputy City Atty., Bernette J. Johnson, Asst. City Atty., New Orleans, for defendant-appellee, The City of New Orleans.
    Before SCHOTT, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This suit arises out of an intersectional automobile collision which occurred on August 11, 1978. Plaintiff Isaac Wilson was driving his vehicle southbound on Cypress Acres Drive. He was accompanied by guest passengers Theresa Brown, his former wife; Denita Wilson, their minor daughter; and Melvin Brown, Theresa Brown’s present husband. Defendant Cer-dan Monroe was driving his vehicle eastbound on Vespasian Street, which is the favored street. All parties agreed that there is ordinarily a stop sign at this intersection which controls traffic on Cypress Acres Drive entering the intersection. However, the sign had either been removed or destroyed at the time Wilson approached the intersection and the two-car collision resulted.

Wilson and the three guest passengers filed suit in August, 1979, for injuries sustained in the accident. Defendants named in the suit were Cerdan Monroe; Allstate Insurance Company, Monroe’s liability insurer; the City of New Orleans; and State Farm Mutual Automobile Insurance Company, Wilson’s uninsured/underinsured motorist carrier. The petition alleged that Monroe was negligent in failing to stop or slow down at the intersection, and that the City was at fault both in failing to replace the missing stop sign and in allowing weeds and shrubs to obscure vision at the intersection.

Monroe, Allstate, the City and State Farm answered the petition and filed third party demands against each other and against Wilson for indemnification and contribution.

In October, 1980, plaintiffs filed an amended petition naming State Farm as an additional defendant in its capacity as Wilson’s liability carrier. State Farm filed an exception of prescription, which was referred to the merits of the trial in order to determine whether Wilson was a joint tort-feasor and, thus, a solitary obligor.

The parties stipulated prior to trial that no judgment would be rendered against either insurer in excess of their respective policy limits per person or per occurrence. The trial court rendered judgment granting recovery to the plaintiff guest passengers, denying recovery to plaintiff Isaac Wilson and dismissing all claims against the City. The court reasoned that the negligence of both Wilson and Monroe was “an intervening cause between that of the City, if the City was at all negligent.” Defendants Allstate and State Farm were found to be liable in solido to the plaintiff guest passengers. Theresa Brown was awarded $15,-000 individually and $15,000 in her capacity as administratrix of Denita Wilson’s estate. Melvin Brown was awarded $1,500.

Defendant Allstate appeals the trial court’s finding of negligence on the part of its insured, Cerdan Monroe and the court’s dismissal of the City of New Orleans. Theresa Brown, both individually and in her administrative capacity, and Melvin Brown appeal only that portion of the judgment which dismisses the City.

On appeal, defendant Allstate argues that:

(1) the trial court erred in finding Cerdan Monroe negligent; and
(2) the trial court erred in failing to find the City of New Orleans liable under either a theory of strict liability or of negligence.

The facts in the case of Pepitone v. State Farm Mutual Automobile Insurance Company, 369 So.2d 267 (La.App. 4th Cir.), writ denied 371 So.2d 1343 (La.1979), are analogous to those in the instant case. In Pepitone, the plaintiff was traveling on a road normally controlled by a stop sign. However, the sign was completely obscured at the time and plaintiff entered the intersection and was involved in a collision which caused his fatal injuries. The decedent’s widow and children sued the other drivers’ insurers and the public entity for damages. In affirming the dismissal of the plaintiffs’ claim against the public entity, the court in Pepitone stated that:

“The duty of a motorist who approaches an uncontrolled intersection with a street of equal dignity is to determine that he can make the crossing safely before proceeding into the intersection, [citations omitted] Therefore, when two cars approach an uncontrolled intersection of local neighborhood streets, neither motorist can reasonably believe he has an unqualified right of way. Accordingly, a motorist approaching an intersection, who actually does not have the right of way, but who is led to believe the intersection is uncontrolled, cannot reasonably be said to have been trapped or deluded into the belief that he had an unqualified right of way.” (Emphasis in original) Pepitone, p. 270.

The Pepitone court based its decision of affirming the dismissal of the public entity on the case of Lochbaum v. Bowman, 353 So.2d 379 (La.App. 4th Cir.1977), writ denied 354 So.2d 1380 (La.1978), which states that when a public entity undertakes control of intersecting roads or streets by installation of signs or mechanical devices, the entity then has the duty to maintain the signs or devices only so as not to cause traps or undue, dangers to motorists using these roads and streets. The court in Pepi-tone specifically held that an obstructed stop sign at an intersection of local neighborhood streets of equal dignity does not, as a matter of law, constitute a trap to motorists approaching the intersection on the unfavored street. Therefore, because plaintiff Wilson was traveling on the unfavored street, the trial court in the instant case was correct in finding no liability on the part of the City.

The trial judge found both drivers negligent in failing to keep a proper lookout at the intersection. In his reasons for judgment, the trial judge, citing the case of Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir.), writ denied 256 La. 266, 236 So.2d 36 (1970), stated that:

“The law is also settled on the principle that when innocent third parties are injured as the result of the collision between two drivers, each of the drivers is deemed guilty of negligence, per se, and the burden of proof falls upon each to exculpate himself to negligence proximately causing the injuries to the third party.... Accordingly, the court finds both drivers have failed to exculpate themselves with negligence under the circumstances.”

The appellate court will not disturb the factual findings of the trial court unless the record establishes that the findings are manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In light of the record and the Pepitone case, we find no manifest error in the trial court’s decision to find defendant Monroe negligent and to dismiss all claims against the City.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

SCHOTT, J., dissents.

SCHOTT, Judge,

dissenting in part:

In the claim by Wilson’s guest passengers the burden of proof was on both drivers to exculpate themselves from negligence. Poche v. Frazier, 232 So.2d 851 (La.App. 3rd Cir.1970) writs refused 256 La. 266, 236 So.2d 36. While each driver argued that weeds and grass interfered with his ability to see the other and Wilson testified that this overgrowth prevented him from realizing he was approaching an intersection the trial judge apparently rejected this explanation. This conclusion is not manifestly erroneous. The trial judge likewise rejected the drivers’ explanation of the missing stop sign, but this is a more difficult problem to resolve.

Wilson was proceeding on the unfavored street, that is, the street which the missing stop sign would have faced. Monroe had traveled this route before and assumed that his street was protected by the stop sign. Pepitone v. State Farm Mut. Auto. Ins. Co., 369 So.2d 267 (La.App. 4th Cir.1979) writs refused 371 So.2d 1343, stands for the proposition that a driver like Wilson proceeding on the unfavored street into an intersection of streets of apparent equal size and dignity gets no consolation from the missing stop sign where there is a collision because he is in the same position as anyone else entering an uncontrolled intersection. Thus, the trial court was correct in concluding that Wilson was negligent and his negligence was a cause of the accident.

However, Pepitone does not apply to Monroe because he was on the favored street and was justified in assuming that drivers like Wilson would yield in the face of a stop sign which had been there before on the occasions he followed this route. Nonetheless, the trial judge found that Monroe was negligent because “had he been keeping a proper lookout, he could have seen whether or not the stop sign was there.” I respectfully submit that this is an impossible burden to place on any driver. I cannot conclude that a driver who knows he is on a favored street and who believes from past experience that his street is protected by stop signs facing the inferior intersecting streets has a duty to check at each intersection to determine that each stop sign has not been stolen, removed, or knocked down. There is testimony by Monroe in response to questions by the court (Tr. 169-170) to the effect that he saw the pole without the stop sign attached as he approached the intersection but I cannot conclude from this that he had the time to consider the circumstances and become placed under the legal duty of a driver entering an uncontrolled intersection. Thus, I would reverse the trial court’s judgment against Monroe’s insurer.

The next question concerns the liability of the City of New Orleans to Wilson’s guests under these circumstances. If the city has notice of a missing stop sign and fails to take action to replace- it within a reasonable period of time it may be liable to an innocent plaintiff for his injuries. Cangiamilla v. Brindell-Bruno, Inc., 210 So.2d 534 (La.App. 4th Cir.1968). There the stop sign had been knocked down and reported to the city six weeks before the accident sued on. In the instant case there is no evidence as to when the stop sign was removed from the pole. It may have been removed a few minutes before the accident or it may have been days. I am unable to conclude that the city was negligent with respect to the sign.

The final question is whether the city is strictly liable under LSA C.C. Art. 2317 and, its application in Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980) and Scott v. State, Dept. of Transp., etc., 392 So.2d 482 (La.App. 1st Cir.1980) writ refused February 6, 1981. In Jones the defective “thing” in the custody of the governmental agencies was a catch basin and its cover. In Scott, the plaintiff’s automobile entered a large pothole on a highway bridge so that the bridge was apparently Art. 2317’s defective “thing.” In Jones v. Sewerage & Water Board of New Orleans, 430 So.2d 1063 (La.App. 4th Cir.1980) writ refused 438 So.2d 573, 574, we found that a useless drain cleanout cover was a defective “thing” for which the governmental authorities were liable under Art. 2317 because this seemed to be a logical extension of Jones v. City of Baton Rouge and was distinguishable from Goodlow v. City of Alexandria, 407 So.2d 1305 (La.App. 3rd Cir.1981).

Goodlow was a policy limitation on the application of Jones v. City of Baton Rouge. The court reasoned that the only way this heavy manhole cover could become a risk was for vandals or thieves to remove it or a heavy vehicle to strike it in some freak manner so as to dislodge it. In balancing this risk against the utility of the manhole and its cover the court concluded that there was no liability on the governmental entity.

I reach the same conclusion in the instant case. This is not the case of a stop sign knocked down sometime before the accident. Nor is there any evidence that it was worn and dilapidated so as to suggest that the sign fell off the pole. Apparently, it was removed, whether by a thief or a prankster, no one knows. The utility of the stop sign is obvious. As a policy determination should the city be liable for this missing stop sign? Should the city be made to inspect on a constant basis to insure the integrity of every one of its thousands of stop signs in order to avoid exposure to claims such as this? Would it be more practical for the city to eliminate most of its stop signs than to face the risk of liability for signs which are removed? In my judgment the imposition of liability on the city in a case like this places an intolerable burden on the taxpayers and I cannot extend Jones v. City of Baton Rouge to cover this situation. Perhaps the Supreme Court would, but, until it does, I conclude that the city is not strictly liable to these plaintiffs under Art. 2317.

Thus, I would reverse the judgment against Allstate Insurance Company and affirm in all other respects.