author: REDMANN, Chief Judge.

text:
    John THOMAS v. W & W CLARKLIFT, INC. and Reliance Insurance Company.
    No. CA-0685.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.
    Writ Denied April 13, 1984.

      Harold B. Carter, Jr., Diane K. Zink, Montgomery, Barnett, Brown & Read, New Orleans, for third party plaintiffs.
    Daniel J. Caruso, Michael R. Daigle, Simon, Peragine, Smith & Redfearn, New Orleans, for third party defendants.
    Before REDMANN, C.J., and GULOTTA and AUGUSTINE, JJ.
   REDMANN, Chief Judge.

W & W Clarklift, Inc. completely overhauled a used forklift truck and sold it to Dennis Sheen Transfer, Inc. Three weeks later Sheen employee John Thomas was seriously injured when the forklift’s 6,000-pound counterweight fell upon him as that forklift was raised a few inches by another. Thomas sued Clarklift, who third-partied the John Leckerts, Sr. and Jr., the principal executive officers of Sheen. Thomas’s demand was settled. The third-party demand was dismissed after trial on the merits. Clarklift now appeals.

The question is whether the Leckerts were also liable to Thomas for his damages so as to make them liable in solido with Clarklift, La.C.C. 2091, entitling Clarklift to contribution from the Leckerts, C.C. 2103, unless “the affair ... concern only one of the co-obligors in solido, [in which case] that one is liable for the whole debt towards the other codebtors ..C.C. 2106. We conclude that any liability the Leckerts might have is not the result of their personal fault but only of a vicarious or strict liability for the fault of Clarklift, and that therefore, in the words of C.C. 2106, the affair concerns only Clarklift and Clarklift is liable for the whole debt towards the Leckerts. We affirm the rejection of Clarklift’s demand for contribution from the Leckerts.

On this particular forklift (unlike on others Sheen had, whose counterweights are mounted with four bolts), the counterweight is mounted by letting it down upon two heavy, somewhat wedge-like brackets that angle upwards from the forklift frame and fit snugly into two matching-angled recesses in the counterweight itself. The counterweight has a vertical, molded shape that appears to be a continuation of the body of the forklift. Once it is properly positioned, gravity holds it against the frame, although it is intended to be finally secured by a single bolt, 12 or 13 inches long and an inch or more in diameter, that is recessed five inches into the counterweight, 16 inches above floor level, and screws through the counterweight into the frame.

Clarklift concedes on appeal that the securing bolt was not present on the forklift in question when delivered to Sheen.

The forklift became stranded on the concrete floor of a 70' by 120' shed in Sheen’s equipment yard when its drive wheel lost contact with the floor, either because the forklift lodged atop a wooden chock used to keep trailers in place, as Sheen employee Frank Burns testified, or because the wheel went into a shallow depression in the floor, as John Thomas testified. To free the forklift, Burns intended to lift it with another forklift just enough to enable Thomas either to remove the chock from underneath or to place a chock beneath the wheel to restore traction. When Burns lifted with the second forklift, the first forklift’s unbolted counterweight was lifted off its supporting brackets and fell upon Thomas, causing his injuries.

Clarklift argues that the Leckerts, as executive officers of Sheen, had the responsibility of discharging Sheen’s statutory duty to provide reasonably safe equipment and a reasonably safe place to work, La. R.S. 23:13, and breached that duty by allowing wooden chocks to be on the shed floor, by failing to inspect the forklift or to have it inspected, and by failing to instruct subordinate employees in proper forklift operation.

The Leckerts would be personally liable if they neither prevented nor reasonably delegated to a subordinate the prevention of a dangerous floor condition that was a legal cause of Thomas’s injury. But that is not our case. Our less than ideal floor condition may satisfy the “but for” element of duty-risk analysis — as does Thomas’s having got out of bed that day— but no other element. It is true that the forklift would not have become stranded if the floor had been level and no chock had been present (just as Thomas would not have suffered this injury had he stayed in bed). But the only legal duty of Sheen and therefore of the Leckerts is to provide a reasonably safe floor: the Leckerts did not have the legal duty to provide an ideal floor (just as Thomas did not have the legal duty not to get out of bed that day). Moreover, the duty to provide a reasonably safe floor is not designed to protect against the risk that a forklift with a concealed counterweight-bolt missing might become stranded on a non-level surface, and might require being lifted to free it, which might cause the unsecured counterweight to fall upon an employee. There is no ease of association between a slight depression in the floor, or a wooden chock’s presence, and injury from the absence of a counterweight bolt. In fact, one employee testified that in his 30 years with Sheen it had never previously happened that a forklift had become stranded on a chock. It is not the unlevel floor and the stranding of the forklift that puts the bystander at risk, but the attempt to free the forklift when (a) the counterweight is unsecured and (b) the person lifting it does not inspect to determine whether it is secured.

Nor was any failure by the executives to properly instruct employees in forklift use a legal cause of the injury. The testimony is uncontradicted that lifting a stranded forklift (e.g., on riverfront docks) is standard practice. It presents no risk of dislodging a secured counterweight. There is no legal duty towards persons nearby not to lift a stranded forklift with another to free it. At most there is a duty to ascertain that the counterweight is secured before lifting, and to include advice to do so in proper instruction in forklift use.

Thus, whether because of a faulty floor or failure to instruct or the direct charge of failure to inspect or have inspected, the theories by which Clarklift charges the Leckerts with personal negligence all resolve into failure to inspect — failure to discover Clarklift’s negligence. On this record, it cannot be said that the Leckerts knew or should have known of the missing bolt; it was not only not obvious but was in fact concealed by its deeply recessed position towards the bottom of the counterweight.

Conceivably, as between Thomas and Sheen, Sheen (but for the exclusivity of workers’ compensation, R.S. 23:1032) — and conceivably Sheen’s executive officers— could have some strict liability toward Thomas, perhaps as the custodian of a dangerously defective thing, C.C. 2317, or perhaps for failure to provide reasonably safe equipment, R.S. 23:13. But as between Clarklift and Sheen (or Sheen’s officers charged with discharging Sheen ⅛ responsibility), it is Clarklift that is directly responsible for its personal failure to install the securing bolt, while Sheen and Sheen’s executives have only the vicarious liability without actual fault that C.C. 2317 or R.S. 23:13 impose in favor of the injured third-party or employee.

Furthermore, as between Clark-lift as seller-overhauler and Sheen as buyer of the overhauled forklift, the codal articles on sales are applicable, even in a “tort” case, Philippe v. Browning Arms Co., 395 So.2d 310 (La.1980). The complete overhauling that this record shows that Clark-lift undertook, to sell this forklift with contractual “warranty” (although for 45 instead of 90 days) otherwise reserved for new equipment (instead of “as is,” reserved by its printed form for used equipment), justifies treating Clarklift as the manufacturer of this forklift, in the sense that Clarklift must be charged with knowledge of its defects; see Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (La.1972). (Indeed, the extent of this overhaul justifies the conclusion that some Clarklift employee was actually at fault in failing to install the retaining bolt; see Borne v. Mike Persia Chevrolet Co., Inc., 396 So.2d 326 (La.App. 4 Cir.1981).) The consequence is that Clarklift is properly treated as a “seller, who knows the defect of the thing he sells and omits to declare it, ... answerable to the buyer in damages,” C.C. 2545. Any liability that Sheen would have (but for the exclusivity of workers’ compensation) towards Thomas because of vicarious liability for the latent defect that Clarklift “knows ... [but] omits to declare” is a damage to Sheen for which Clarklift would be liable to Sheen under C.C. 2545. Sheen could not, therefore, be liable to Clarklift for contribution (even ignoring exclusivity) notwithstanding any theoretical solidarity of liability between Clarklift and Sheen towards Thomas. The breach of Sheen’s obligations towards Thomas in respect to discovering latent defects thus cannot make Sheen liable towards Clarklift. And therefore, because the executive officers have only Sheen’s obligations towards Thomas in respect to discovering latent defects, their breach by the executive officers do not make the executive officers liable towards Clarklift.

In summary, the executive officers can only be liable to Thomas because of failure to inspect for Clarklift’s negligence or because of strict liability for Clarklift’s negligence. In either case the fault is Clarklift’s insofar as the executive officers are concerned, and the executive officers’ liability is only vicarious for the negligence of Clarklift.

Accordingly, notwithstanding the possibility that the executive officers might have been liable in solido with Clarklift towards Thomas, and that C.C. 2103 ordinarily allows contribution among solidary co-obligors, in this case C.C. 2106 dictates that Clarklift be denied contribution: the “affair ... concern[s] only one of the co-ob-ligors in solido, [and] that one is liable for the whole debt towards the other codebtors

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SPEEDEE OIL CHANGE NO. 2, INC. v. NATIONAL UNION FIRE INSURANCE COMPANY.
    No. CA-0980.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.

      Richard V. Dymond, Gulfport, Miss., Hugh D. Aldige, Metairie, for plaintiff.
    Robert E. Couhig, Jr., Philip A. Franco, Adams & Reese, New Orleans, for defendant.
    Before REDMANN, C.J., and GULOTTA and AUGUSTINE, JJ.
   REDMANN, Chief Judge.

A legal malpractice insurer appeals from a judgment in this direct action, La.R.S. 22:655, for $54,800 damages from failure to timely exercise an option to extend a lease. The attorney at law insured by defendant had advised one of plaintiff corporation’s promoters in writing that the option to extend could be exercised until 31 days after the termination of the lease.

The basic issues are whether the corporation has any right to recover for the attorney’s mistaken advice to the promoter, and whether the attorney’s advice was so obviously a mistake that the promoter and the corporation cannot reasonably have accepted and acted upon it and it therefore cannot be a legal cause of the corporation’s loss.

We conclude that the corporation as an intended third-party beneficiary may recover from the attorney upon his contract with its promoters; and that the corporation’s vice-president’s breach of his own contractual duty to the corporation by relying on the obviously mistaken advice does not relieve the attorney of liability towards the corporation.

Facts

The attorney had earlier incorporated SpeeDee Oil Change, Inc., for three persons. Those three persons later incorporated plaintiff corporation, and for convenience are referred to as its promoters. The promoters learned in the summer of 1980 that Gulf Refining Company intended to abandon a service station operation at a leased location that the promoters deemed suitable for a second oil-change business. Gulf’s lease, then almost 25 years old, provided rent of $350 a month over its whole life, with an initial term of 15 years, “expiring March 14, 1971 ... [with] the right to extend this lease for three additional terms of five years each, by giving lessor written notice of [lessee’s] election to exercise this right of extension at least 30 days before the expiration of each term.” The first two five-year extension options had been exercised by Gulf. Gulf agreed to transfer the lease and its equipment etc. on the site for $6,000, and about July 28, 1980 was paid $600 as a deposit. By agreement dated August 19, 1980 by Gulf in Texas (with attached settlement calculations dated September 2, 1980), Gulf assigned the lease to SpeeDee Oil Change (apparently “Inc.,” changed by handwriting to “No. 2, Inc.”), and “SpeeDee Oil Change No. 2, Inc.” dated its acknowledgments of execution September 10, 1980 in Louisiana. The assignment was effective September 1, 1980.

Meanwhile, the promoters had consulted the attorney who had incorporated the first SpeeDee, in regard to their (or the first SpeeDee’s?) interest in Gulf’s lease, and the tangible results were an August 18, 1980 letter from the attorney to one of the promoters (including the mistaken advice on the extension) and the September 9, 1980 articles of incorporation of a new corporation, SpeeDee Oil Change No. 2, Inc., with the three promoters as its directors and equal and sole shareholders. The attorney did not bill anyone for these services, he testified, but he had agreed on a flat fee. (One of the promoters answered they “might have mentioned it in passing” when asked whether they asked the attorney to “wait until you were on your feet and send you a bill.”)

The August 18 letter reads:

“Re: Ground Lease-SpeeDee Oil Change, Inc. No. 2
“Dear Gary:
“Please be advised that I have reviewed the Lease Agreement and Amendment to Lease in connection with SpeeDee Oil Change, Inc. No. 2. According to the terms of the lease, Gulf Refining Company does not need the written consent of the Lessor in order to enter into a Sublease with SpeeDee Oil Change, Inc. [Sic.] It also appears that the lease contains a provision that in the event Gulf be unable to operate a service station on the premises because of zoning or building restriction, Gulf has the option to terminate said lease. I believe that this provision should also be contained in the sub-lease between yourself and Gulf. I also wish to point out the manner by which the option is exercised. As you know, on March 14, 1981 the second five-year option period will terminate. In order to exercise the last three-year [sic] option, notice must be given in writing to the Lessor not later than April 14, 1981 in order to effect the third-year [sic] option. [Emphasis and bracketed matter added.]
“In reviewing the lease, I find nothing which would prevent you from entering into a sub-lease with Gulf Oil Corporation and utilizing the premises for your intended purposes.
“Trusting this will suffice for intended purposes, I remain, Yours very truly....”

The addressee of that letter was the person who acted for all three promoters in negotiating for the Gulf lease. The letter’s reference to SpeeDee No. 2 shows that by the date of the letter, to the knowledge and presumably with the advice of the attorney, the promoters had decided to incorporate SpeeDee No. 2 to acquire the lease and operate a business on the leased premises. The letter’s addressee later became the corporate vice-president, charged with attending to the corporation’s “legal affairs” including the lease.

One of the three promoters took very little part in this matter because he was terminally ill at all pertinent times (although he was taken to see the proposed new site, was elected chairman and president of the new corporation, and as such signed the assignment of the lease). He died in December or January, before the time to exercise the option passed. The other two testified they never read the lease, although they knew it had to be extended by exercising the third five-year option.

The vice-president did not timely exercise the option because, he testified, he relied on the attorney’s letter’s advice and therefore marked his calendar for April 2 to renew before April 14. On March 16 the owner notified plaintiff that the lease had expired and this lawsuit resulted.

(It may also be said that Gulf’s agent testified that, both at the time of the assignment and again in January 1980 when he reviewed Gulf’s other leases, he had told the negotiating promoter, later vice-president, of the need to exercise the option 30 days before March 14. The vice-president testified he did not remember any such advice but in any event would take his attorney’s advice rather than Gulf’s agent’s.)

The Corporation’s Right

Defendant correctly states the basic principle that a corporation not yet in existence cannot be a party to a contract, because not then “legally capable of contracting,” La.C.C. 1779(1).

But “All things, in the most extensive sense of the expression, ... to which rights can legally be acquired, may become the object of contracts,” C.C. 1885, including future things, art. 1887; “all things that are not forbidden by law may legally become the subject of, or the motive for contracts,” Hayes v. Muller, 245 La. 356, 158 So.2d 191, 194 (1963). Although a promoter may ordinarily bind only himself, one “may contract, in his own name, that another shall ratify or perform the stipulation which he makes,” art. 1889, so that a promoter may oblige himself that his intended corporation will perform a stipulated obligation, such as to pay an attorney for pre-incorporation services (as authorized by La.R.S. 12:27). More pertinent to our case, “A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract ...; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked,” art. 1890, so that a promoter may stipulate for the benefit of his intended corporation. The third-party beneficiary need not exist at the time of a contract in his favor by others; Pla-ñid, Civil Law Treatise (La. Law Inst. trans.) II, 1241; Henn, Corporations (2d ed.) § 111.

By the time of the attorney’s August 18 letter he understood that his legal advice on the option was intended for the use and benefit of the future corporation that he was in the process of forming. He had to know and intend that not the individual promoters but the future corporation would use his advice in respect to exercising the option to extend. The other party to the contract, the promoters, also knew and intended that. The future corporation was therefore the intended third-party beneficiary of the parties’ contract for the lawyer’s advice; and the corporation accepted the stipulation in its favor by (as the trial court found, supported by sufficient evidence) acting upon the advice.

As the intended and accepting third-party beneficiary of the contract, the corporation has the right to sue for damages from its' breach.

Liability

The attorney concedes that his August 18 letter mistakenly stated a date a month after rather than before the lease’s expiration. But his insurer argues that the corporation’s vice-president could not reasonably have accepted and acted upon advice that (a) the lease terminates on March 14 and (b) the option to extend (to prevent termination) can be exercised as late as April 14, 31 days after termination occurs.

One may agree that the corporation’s vice-president was, at the least, inattentive to his own contractual obligations to the corporation in relying on that advice. Had the attorney’s mistake been not so obvious — for example, had he not set forth the March 14 expiration date; or had he written that the option had to be exercised by February 14, 1981, a calendar month of 28 rather than 30 days before expiration— perhaps the vice-president could not be faulted for relying on that advice instead of reading the lease for himself. But no reading of a lease is necessary for the person of ordinary common sense to know that, once a lease has expired, its expiration can no longer be prevented, and therefore the letter’s advice was on its face mistaken. One may agree that the vice-president should not have accepted the attorney’s advice because so obviously mistaken.

Yet the attorney’s gross inattentiveness to his obligation to give correct legal advice, to give a correct interpretation of a simple contractual provision, was also a legal cause of the corporation’s loss, for had the attorney not given that mistaken advice the vice-president could not have thoughtlessly relied on it and presumably would not have allowed termination of the lease to occur without exercising the option to extend.

The corporation’s loss was thus the result of the combined inattentiveness of both its vice-president and its attorney when both were contractually obliged towards the corporation to be attentive in respect to the time for exercising the option.

We reject the attorney’s insurer’s suggestion that, as in the case of delictual damage to a third person, the vice-president’s “negligence” should be imputed to the corporation. Ours is not such a case. Ours is a contract case, in which only the corporation itself has been injured, and the injury is the result of breaches of contractual duty by two persons each contractually bound to the corporation. If we could say that the vice-president’s breach made him liable to the corporation, that would neither eliminate nor reduce the attorney’s liability, for vice-president and attorney would each be liable in solido.

The attorney’s insurer is therefore liable to the corporation for its damages.

We are not unaware of the anomaly that the vice-president, although arguably of fault comparable to that of the attorney, will indirectly benefit from a judgment in favor of the corporation because he owns one third of its shares. Arguably, he may be liable to defendant, for contribution individually under C.C. 2103 and for unjust enrichment as a shareholder under C.C. 1965. But the corporation is not liable for its officers’ or shareholders’ debts, and the vice-president is not a party to this litigation. We therefore cannot here decide his rights or liabilities.

Quantum

We do correct the $54,800 amount of the judgment. Plaintiff paid only the old rent of $350 in the first and, as far as shown, second months after expiration of the lease. Instead of the $350 provided by the lease, it had to pay $1,150 for the next 36 months and $1,350 for the last 22 months of the lost five-year extension. Total damages are therefore only $50,800.

Decree

Amended to $50,800 principal amount and otherwise affirmed.


author: SCHOTT, Judge.

text:
    Joyce Faciane, wife of/and John MARTIN v. SOUTHERN BAPTIST HOSPITAL OF NEW ORLEANS, INC.
    No. CA 0926.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.

      Monte J. Ducote, New Orleans, for defendant-appellee.
    Abbott J. Reeves, Gretna, for plaintiff-appellant.
    Before SCHOTT, BARRY, and WARD, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing her suit on an exception of prescription. In April, 1982, she sued for damages allegedly resulting from breach of contract by defendant hospital when she was a patient there in May, 1972. The issue is whether plaintiffs cause of action can be considered as an action in contract so that the ten year prescription of LSA-C.C. Art. 3544 applies or must it be considered as a tort action which has prescribed under the one year limitation of C.C. Art. 3536.

When plaintiff was admitted to the hospital for a hysterectomy she signed an admit form containing the following:

“In consideration of the hospital care and services furnished and to be furnished by Southern Baptist Hospital, I hereby authorize the respective insurance companies to pay directly to said hospital all hospital benefits now due and to become due and payable to me under my hospitalization insurance policy(ies) by virtue of my admission to said hospital.”

In her petition plaintiff alleged the following: On May 1, 1972, when she sought medical treatment from a Dr. Vaughn, “a physician-patient contractual relationship” was entered into between her and defendant with Dr. Vaughn contracting in his capacity as her physician and as an agent of defendant to provide hospital care and service, including but not limited to the performance of the hysterectomy. However, Dr. Vaughn did not perform the hysterectomy, but a Dr. Steele did without her consent or approval. This conduct constituted a breach of the contract between her and defendant. She further alleged as follows:

“X
As a direct result of the defendant hospital’s breach of contract, Joyce Paciane Martin suffered personal injury and economic losses including, but not limited to: unnecessary surgery to stop hemorrhaging due to absence of attending physicians, absence of attending physician to order catherization of bladder, contracting serum hepatitis, chronic progressive active hepatitis, chronic persistent hepatitis, chronic quiescent hepatitis, back fracture, prednizone induced acne, obesity, personality change, nervousness, damaged liver, jaundice, loss of availability for employment, in the amount of $125,-000.00.
“XIV.
The defendant hospital further breached its express contract with petitioners by releasing confidential information of petitioners to unauthorized persons.
XVII.
By virtue of the hospital, for consideration, agreeing to provide hospital care and services toward the petitioner, Joyce Faciane Martin, as her known condition might require and further agreed that the petitioner was to be free from mental and physical abuse and was to be treated with consideration, respect, and full recognition of her dignity and individuality, several incidents of neglect, lack of proper supervision, abuse, and the like amounted to a breach of the plaintiff’s express contractual obligations as set forth above.

In analyzing plaintiffs petition we find five factual allegations of misconduct on the part of defendant:

1. It allowed Dr. Vaughn to abandon plaintiff who was his patient and allowed Dr. Steele to perform the operation without plaintiffs consent.

2. It subjected plaintiff to ‘unnecessary surgery to stop hemorrhaging due to the absence of an attending physician to order catherization of the bladder.

3. It allowed plaintiff to contract hepatitis.

4. It allowed plaintiff to suffer back fracture, acne, obesity, psychological problems and liver problems.

5. It released confidential information about plaintiff to unauthorized persons.

In addition to the exception of prescription defendant filed an exception of res judicata based on a suit filed by her against the hospital which suit was dismissed by the trial court and affirmed by this court at 352 So.2d 351 (La.App. 4th Cir.1977) writ refused 354 So.2d 210 (La.1978). Defendant also filed an exception of no right of action on the basis of C.C.P. Art. 425’s proscription against division of an obligation for the purpose of bringing separate actions on different portions thereof.

On the basis of the pleadings, memoran-da, and arguments of counsel the trial court overruled the exception of res judica-ta, but sustained the exception of prescription. The trial court did not rule on the exception of no right of action. Defendant did not answer plaintiff’s appeal but did file in this court another exception of no right of action based upon C.C.P. Art. 425.

Our opinion in plaintiffs earlier case reveals that it was an action to recover damages for serum hepatitis she allegedly contracted from a blood transfusion while she was in surgery at the hospital. Her cause of action was based on defendant’s negligence. Insofar as the present case seeks damages for hepatitis

Art. 425 clearly precludes her recovery. Having already pursued recovery on defendant’s obligation against causing her to contract hepatitis she cannot divide the same obligation into separate suits. Thus, the exception of no right of action is sustained as to her claim based upon the hepatitis and that portion of her claim is dismissed.

The broader question remains as to whether any of plaintiff’s remaining claims can be considered contractual rather than delictual so as to avoid the one year prescription of C.C. Art. 3536.

In Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963) the court held that an action for medical malpractice prescribes in one year unless there is a specific contract to cure. However, in Brooks v. Robinson, 163 So.2d 186 (La.App. 4th Cir.1964) writ refused 246 La. 583, 165 So.2d 481 (1964), this court made a distinction between nonperformance and unskillful performance of medical services and concluded that nonperformance gives rise to an action for breach of contract with the attendent ten year prescription of C.C. Art. 3544. In the instant case plaintiff argues that defendant’s involvement with Dr. Vaughn’s “abandonment” of her as a patient constituted non-performance as in Brooks and is therefore actionable in contract.

In Sciacca v. Polizzi, 403 So.2d 728 (La.1981) the court held flatly that medical malpractice suits are tort and not contract actions. Although Brooks was not specifically mentioned in the opinion, it was clearly overruled by implication. Consequently, any part of plaintiff’s action against defendant arising out of Dr. Vaughn’s alleged abandonment of her is prescribed and to that extent the judgment of the trial court is affirmed.

Plaintiff’s claim based on defendant’s alleged allowing a Dr. Steele to perform the operation is likewise prescribed. If Dr. Steele performed' a non-emergency, elective hysterectomy on plaintiff without her consent and approval he may have committed assault and battery on her regardless of whether he performed the operation properly or not. This would be a tort and if defendant cooperated in the commission of the tort it was liable in tort under C.C. Art. 2324. Insofar as plaintiffs suit is based on this conduct it is barred by the one year prescription of C.C. Art. 3536.

As we read plaintiffs petition (paragraph X quoted above) one of her claims is that she was subjected to unnecessary surgery (we assume beyond the hysterectomy) to stop hemorrhaging because defendant failed to provide her with an attending physician to order catheterization of the bladder. Because of the vagueness of this allegation we do not know whether she is charging that defendant failed to have someone present in the operating room while the hysterectomy was being performed or failed to have an attending physician present to attend plaintiff after the operation was performed when she was in the recovery room or in her own room. In the former case, her claim has prescribed because the operating physician was responsible for her condition during the hysterectomy. As already discussed, any claim arising out of this particular conduct has prescribed. On the other hand, once the operation was performed and Dr. Vaughn or Dr. Steele was gone, plaintiff was in defendant’s care and entitled to receive the care and services defendant had contracted to furnish including the presence of an attending physician on duty.

In Dillon v. Hospital Affiliates of Baton Rouge, 407 So.2d 493 (La.App. 1st Cir.1982) writ denied 409 So.2d 663 (La.1982), the court found contractual liability on the part of the hospital when a patient, on the second day following a double mastectomy, and while under sedation, fell as she was returning from the bathroom unassisted. She testified that she had called for assistance, but when no one came for thirty minutes she had to go to the bathroom by herself. The court distinguished the case from Sciacca because it did not arise out of medical malpractice and was not based on a physician’s negligence but rather from alleged breach of contractual due care. Similarly, if plaintiff’s petition is construed to mean that while she was recovering from her surgery she began to hemorrhage so that she required the services of a physician but her condition went unnoticed by hospital personnel, or she was not treated because no physician was on duty, she may be able to prove that defendant breached its contract to provide adequate care and services. To this extent her claim would not be barred by the one year prescription.

Plaintiff’s allegation that the hospital allowed her to suffer back fracture, acne, obesity, psychological problems, and liver problems is again difficult to address because it is so vague. It seems to be a recitation of conditions which resulted from the various derelictions charged to the hospital and Drs. Vaughn and Steele but we can only speculate as to how they may be connected. If they resulted from physician malpractice such claims have prescribed, but if they resulted from the failure of the hospital to provide adequate care and services they have not.

Finally, in paragraph XIV plaintiff claims that defendant released confidential information about her to unauthorized persons and alleges that this constituted a breach of contract. This curious allegation does not appear to be related to plaintiff’s overall claim and the failure to specify the date of its occurrence leads us to conclude that it is entirely unrelated to the other claims. Nowhere in her brief or argument to this court did plaintiff explain or even refer to the claim. In any event, we regard such conduct as a breach of the general duty owed by a hospital to the patient and not a breach of its contractual obligation to provide adequate care and services. Thus, this part of the claim prescribed unless the alleged violation of plaintiff’s confidentiality occurred less than a year before she filed suit.

Accordingly, defendant’s exception of no right of action is sustained with respect to any part of her claim growing out of hepatitis she may have incurred.

The judgment of the trial court sustaining the exception of prescription is affirmed with respect to any portion of her claim arising out of malpractice on the part of Drs. Vaughn or Steele but it is reversed only to the extent that plaintiff can prove damages arising out of hospital personnel failing to provide adequate care and services and/or to the extent that she can prove that defendant violated her confidentiality within a year before she filed her suit.

The ease is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are taxed against defendant with other costs to await the outcome of this case.

EXCEPTION OP NO RIGHT OF ACTION SUSTAINED IN PART; JUDGMENT AFFIRMED IN PART AND REVERSED IN PART: REMANDED.

      . This case is a pre-1975 case which is not governed by R.S. 9:5628 providing a one year prescription for both contract and tort claims. In Lott v. Haley, 370 So.2d 521 (La.1979) the court held that Act 808 of 1975 which added R.S. 9:5628 to the revised statutes was not retroactive.

      . On the other hand, if there was a physician on duty, and her condition was brought to the physician’s attention but he failed to treat her, or treated her improperly, the claim has prescribed under Sciacca.


author: KLEES, Judge.

text:
    STATE of Louisiana, ex rel. William J. GUSTE, Jr., Attorney General, the Department of Natural Resources, and the State Mineral Board v. BOARD OF COMMISSIONERS OF the ORLEANS LEVEE DISTRICT.
    No. CA-0925.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Granted March 16, 1984.

      William J. Guste, Jr., Atty. Gen., Robert H. Carpenter, Jr., Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for plaintiffs-ap-pellees.
    Richard J. McGinity, McGinity & McGinity, New Orleans, for defendant-appellant.
    Before KLEES, GARRISON and CIAC-CIO, JJ.
   KLEES, Judge.

This suit was for a Declaratory Judgment instituted by the State of Louisiana, the Department of Natural Resources and the Louisiana State Mineral Board. (Hereinafter referred to as the State). Petitioners were seeking to have themselves declared the owners of those portions of the bed and bottom of Lake Pontchartrain situated within the territorial limits of the “Lakefront Improvement Project” and under the jurisdiction of the Orleans Levee Board (hereinafter referred to as the Levee Board) not filled in or reclaimed by the Levee Board. The State further sought recognition of its ownership of the mineral rights to those portions above described and in addition to those areas actually filled in or reclaimed by the Levee Board pursuant to its grant of authority. The Levee Board answered and reconvened seeking recognition of its ownership of the land and minerals within its jurisdiction. The matter was submitted to the Trial Court upon Stipulation of Facts and Exhibits and judgment was rendered in favor of the State except as to those lands already filled in or reclaimed by the Levee Board. It is from this judgment that the Levee Board appeals.

The issue presented on appeal is whether Article 16 § 7 of the 1921 Constitution granted title in and to the bed and bottom of Lake Pontchartrain within the territorial limits of the Lakefront Improvement Project to the Levee Board. We conclude that it did and for the following reasons we reverse the judgment of the trial court in part and affirm in part.

The area of land in dispute is that contained in the grant of state lands made to the Levee Board in Article 16 § 7 of the 1921 Constitution, as amended by Act No. 106 of 1922 and Act No. 292 of 1928, now enacted as statute in La.R.S. 38:1235.1 et seq. Article 16 § 7(a), as amended in 1928, defines the territorial limits of the lakefront improvement project and thereby the jurisdiction of the Levee Board as,

“... along, over and on the shores, bottom and bed of Lake Pontchartrain in the Parish of Orleans from its western boundary to the boundary line separating township 11 south range 12 east, from township 11 south, range 13 east, at a distance not to exceed three miles from the present shore line, as the said Board may determine, and along and on the shores adjacent to said Lake and along the canals connected therewith; ...

The general powers of the Levee Board are enumerated in Article 16 § 7(a) as follows:

“The Board of Levee Commissioners of the Orleans Levee District shall have and exercise all and singular the powers now conferred upon said Board by law, and exclusive right, jurisdiction, power and authority to locate, relocate, construct, maintain, extend and improve levees, embankments, seawalls, jetties, breakwaters, water-basins, and other works in relation to this project, and to conduct all dredging operations necessary in connection therewith and/or incidental thereto."
(emphasis supplied)

Article 16 § 7(h) states:

“To enable the said Board to perform the work herein provided for and to assist in defraying the cost and expenses thereof, and to carry out the purposes of existing laws and this Article of the Constitution, the State of Louisiana hereby grants and releases to said Board the title of the State in and to all public property necessary for the purposes hereof and all lands reclaimed or filled in within any levee embankments, slopes, retaining walls, sea walls, and breakwaters, constructed hereunder and in and to all lands lying within the territorial limits of said project and hereby releases said land from any public trust or dedication and said Board shall have jurisdiction, power and authority to sell and lease, or otherwise dispose of such portion of the lands reclaimed and other property acquired for the purpose of said improvement, except the lands herein required to be dedicated by it for public use, together with any building, improvements or other works constructed thereon, under such terms and conditions and by such methods as said Board may deem proper....” (emphasis supplied)

The State asserts that it could not have granted to the Levee Board title to the bed of Lake Pontchartrain and to the minerals under it as it would have been a prohibited alienation under Article 4 § 2 of the 1921 Constitution. The case of State v. Grace, 161 La. 1039, 109 So. 830 (La.1926) and the cases that follow it do not support the State’s position. In Grace, the Tensas Basin Levee District sued to have the state lands granted to it certified by the state land office and state auditor 37 years after the act granting it was passed. The grant of state land in question also contained no express reservation of the minerals, and the State asserted that the grant violated Article 4 § 2. The court said,

“We think that the auditor and the register are in error when they say that the constitutional provision, cited, repeals, even partially, Act 103 of 1892, in so far as relates to the making of the grant, made in that act, or that it revokes to any extent that grant. The Tensas Basin Levee District was created and organized by the state as a means of discharging its duty to protect the lands in said district from inundation. The district is a state agency, created and continued in existence by the state with the foregoing purpose in view. The state, should it transfer the land to the district, including the mineral rights, in accordance with the grant made by it, would not be parting with the property within the meaning of the constitutional section cited, but would only be placing it under the control of one of its agencies for the purpose of constructing and maintaining levees. The land would, to all practical intents and purposes, still be the property of the state. The district could not sell it without reserving itself the mineral rights, for the reason that its creator, for whom it holds, could not do so. We see no reason, therefore, in so far as the section of the Constitution, cited, is concerned, why the auditor and the register should not execute the conveyance.” Grace 109 So. at 831-832.

The grant of state lands to the Orleans Levee District does not contain a reservation of the minerals to the State. As this is not a prohibited alienation within the meaning of the Constitution, we would agree with Justice Dixon’s holding in Arnold v. Board of Levee Commissioners, etc., 366 So.2d 1321, 1324 (La.1978), wherein he stated that, “Article 16 § 7(h) of the Louisiana Constitution of 1921 vested in the Orleans Levee Board all rights formerly held by the state to the bed and shores of Lake Pontchartrain within designated territorial limits...” (emphasis supplied). Thus this grant would be in accord with the broad powers given to the Board for the development of the lakefront area for flood protection.

The State asserts further that in the event that the transfer of title to the Board was not prohibited, that the section was intended to grant title only to those lands actually reclaimed by the Levee Board. This position might be tenable if the sole purpose of the act was for reclamation of the bed of the Lake, but the Levee Board and the Lakefront Improvement Project were to accomplish more than reclamation. Great discretion was given to the Levee Board as regards this ongoing project of protecting the city from inundation by the waters of Lake Pontchartrain. It was within their discretion to establish a front line of development within the 3 mile territorial limit and the Article does not say that once such a line is established that title to any remaining land not reclaimed within the territorial limits will revert to the State. The State attempts to interpret the Article in that manner by reading into it an intent to deny the Board any jurisdiction once a front line is established within the 3 miles. They use the prohibition in Article 16 § 7(h) against any further reclamation or construction once the front line is established which applies to both the State and the Levee Board. This interpretation supposes 1) that once a front line was established the purpose of the Article was fulfilled, and 2) that the singular purpose of the Article was reclamation of the bed of the Lake. Article 16 § 7(a), quite to the contrary, enumerates power and authority which go beyond the act of reclamation. The Article also states that the grant of title was to enable the board to perform their functions and to defray the costs and expenses of the project.

The Legislature certainly had the ability to make any contrary intent more clear in this constitutional amendment as demonstrated in Article 14 § 38 of the 1921 Constitution which authorized public improvement districts for Jefferson Parish.

Article 14 § 38(d) states in pertinent part,

“To enable the said districts to perform the work herein provided for and to assist in defraying the cost and expenses thereof, the State of Louisiana, acting by and through the Register of the State Land Office, is hereby authorized, empowered and directed to grant to districts now or hereafter created in accordance herewith, the title to all property owned by the State of Louisiana, or the title to which stands in the name of the State, and all property which, by its nature, situation and location, is not susceptible of private ownership under the present laws and Constitution of the State, and which land is to be reclaimed or filled in within any levee embankments, slopes, retaining walls, seawalls, and breakwaters to be constructed hereunder; provided, however, that the mineral rights on any and all of said lands shall be reserved to the State of Louisiana.”

This is not the language used in the Article before us, though the powers and purposes of each were almost identical.

Article 16 § 7 makes no mention of any divesting of title by certain acts of the Levee Board or that there will be divestiture upon failure to reclaim.

The grant of title to the state land in question does not appear to us to be ambiguous. The standard to be applied interpreting constitutional provisions is enunciated in Barnett v. Develle, 289 So.2d 129, 146 (La.1974),

“In the event of conflict or inconsistencies between different sections of the Constitution, they should be construed in such manner as to allow each to stand and be given effect, if possible. Citing Meyers v. Flournoy, 209 La. 812, 25 So.2d 601.”

and,

“Constitutional provisions should be so construed as to give effect to the purpose indicated by a fair interpretation of the language used, citing State ex rel, Fernandez v. Feucht, 182 La. 134, 161 So. 179.”

We find that a fair interpretation of the language of Article 16 § 7 leads to the inescapable conclusion that a grant of title in and to all lands lying within the territorial limits of the project was made to accomplish the many important and continuing purposes of the Board and any divestiture of title would be better accomplished by legislative means. Until such time as the Legislature institutes the proper provisions to divest the Levee Board of title they continue to act as an agent of the state having no greater powers to alienate the bed and bottom of the Lake than would its sovereign the State. The bed and bottom of the Lake remain insusceptible of private ownership despite title being vested in an agency of the State. Accordingly, that portion of the judgment declaring and recognizing the State as owner of that portion of the bed and bottom of the Lake not reclaimed or filled in by the Levee Board and, declaring the State to be the proper authority to grant leases for the development of the mineral resources of that portion of the bed and bottom of the Lake not reclaimed or filled in is reversed and we herein declare the Orleans Levee Board to be owner of that land along, over and on the shores, bottom and bed of Lake Pontchartrain in the Parish of Orleans from its western boundary to the boundary line separating township 11 south range 12 east, from township 11 south, range 13 east, at a distance not to exceed 3 miles from the present shoreline, as the said Board may determine, and along and on the shores adjacent to said Lake and along the canals connected therewith.

REVERSED IN PART, AFFIRMED IN PART.


author: LOBRANO, Judge.

text:
    Wayne R. DUNNE, Individually and as Natural Tutor of/for the Minor Kevin Dunne v. ORLEANS PARISH SCHOOL BOARD and Charles V. and Lynne Cuccia, d/b/a Gay-Lynne School of Dance.
    No. CA-0985.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Granted April 2, 1984.

      Trevor G. Bryan, Jefferson, Bryan & Gray, New Orleans, for appellant Orleans Parish School Bd.
    Peggy LeBlane, Michael Riehlmann, New Orleans, for plaintiff/appellee Wayne R. Dunne.

      W. Marvin Hall, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for defendants/appellants Charles V. and Lynne Cuccia, d/b/a Gay-Lynne School of Dance.
    John A. Cvejanovich, Law offices of James J. Morse, New Orleans, for defendant/appellee Louis Koster.
    Before BYRNES, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

Wayne Dunne, on behalf of the minor Kevin Dunne, brought this action against the Orleans Parish School Board (hereinafter referred to as the Board) and Charles V. and Lynne Cuccia, d/b/a Gay-Lynne School of Dance (hereinafter referred to as Gay-Lynne), seeking damages for the injury to Kevin who fell off a gymnastic ring in the gymnasium of Martin Abramson High School, owned and operated by the Board. Third party demands were filed by the Board against Gay-Lynne and Louis Koster, as tutor of the minor Kirk Koster. Kirk Koster was a minor who was involved in the incident which resulted in plaintiffs injuries. Both denied liability, and Gay-Lynne sought full indemnity against the Board. The trial court found in favor of plaintiff and against the Board and Gay-Lynne holding them liable jointly and in solido in the full amount of $38,788.45. The various third party demands were dismissed. From this judgment the Board and Gay-Lynne appeal.

The pertinent facts are as follows: On May 15, 1980, 9 year old Kevin Dunne accompanied his parents to a dance revue given by Gay-Lynne School of Dance. Gay-Lynne had leased the auditorium at Martin Abramson High School in order to stage the event.

Approximately mid-way through the dance revue Kevin and his 10 year old cousin Robbie went to get a drink of water. They went to the water fountain in the lobby. While drinking water they could see into the gymnasium which was adjacent to the lobby. Upon seeing that the gymnasium lights were on, they looked into the gym and witnessed several boys playing on the gymnastic rings that were suspended from the ceiling. Robbie recognized one of the boys as Kirk Koster, a friend he had played with in the past, so he went into the gym to talk with Koster. Kevin followed him. Kevin, by standing on a chair provided by one of the youths, grabbed onto the rings. The other boys pulled Kevin back by the feet and let him go. As Kevin was swinging forward the rings came to an abrupt halt, causing him to fall to the floor and injure himself.

LIABILITY OF THE BOARD

Plaintiff contends that the Board was guilty of culpable negligence in failing to properly safeguard the gymnasium and secure the rings in light of the fact that it had specific knowledge that the gym was in close proximity to the auditorium and would remain open and accessible to children who might wander into it. Further it was contended that the Board was fully aware of the potential dangers of children playing on the rings yet failed to take the proper precautions to prevent their misuse.

We affirm the trial court’s decision with regard to the Board’s negligence. The testimony of Dr. Octave Tournillion, site principal of Abramson High School, who was in charge of and responsible for the approval and rental of the premises to Gay-Lynne clearly indicates that he recognized the dangers posed by the rings. He testified that he knew and recognized the rings to be dangerous, and as a result of that very knowledge, made it school policy that the rings were to be tied up to keep the students from playing on them “because the rings can be a dangerous element”.' He further testified he had no idea whether the rings were properly tied up on the evening in question.

Under Hill v. Lundin, 256 So.2d 620 (La.1972) and its progeny, Louisiana employs the duty risk analysis in determining whether a particular defendant is guilty of negligence. This duty risk analysis involves the following inquiries.

The first is one of causation. There must be a causal relationship between the harm to the plaintiff and the defendant’s alleged conduct. Once plaintiff proves that the action of defendant was a substantial cause in fact of the accident, it then must be ascertained whether defendant had a duty to protect against a foreseeable risk, and whether that duty was breached. Hill v. Lundin, supra.

In addition to the above requirements a landowner’s liability is further governed by the test stated in Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979).

“In determining an owner’s liability under Civil Code Articles 2315 and 2316 the test has been stated to be whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (La.1976). The owner and operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. In determining a particular defendant’s duty consideration should be given to the nature of the facility and the dangers presented by it. In considering a defendant’s duty to a particular person, consideration should be given to the person’s age, maturity, experience, familiarity with the premises and its dangers, and other such factors which might increase or decrease the risk of harm to that person. The duty would be greater to a person of young age and immature judgment. It would be lesser to a person with experience, knowledge and familiarity with the premises.” Id. at 1047. (emphasis added)

Applying those tests to the case at bar, it becomes clear that the Board failed to act reasonably in the management of the premises in view of the probability of injury to others, especially young children such as Kevin Dunne. As recognized by the Board’s own agent, Dr. Tournillion, an unsupervised unlocked gymnasium with gymnastic rings posed a grave danger to children. Recognizing this danger it was the school’s policy to lock the gym and secure the rings. On the date in question the Board breached this duty. But for their failure to lock the gym, Kevin Dunne would not have been injured on the rings.

The Board argues that it was the failure of Wayne Dunne, Kevin’s father to properly supervise him that led to the accident. The record shows that Kevin and his cousin requested and was granted permission to leave the auditorium to get a drink of water. The action of the parents in permitting them to temporarily leave the auditorium does not fall below the standard of parental care outlined in Smolinski v. Taulli, 276 So.2d 286 (La.1973). In Smolinski the Supreme Court stated:

“Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence_ A mother of small children is not required to chain them up or to act as their constant jailer in order to absolutely secure them from exposure to hazards negligently created or maintained by a tortfeasor. She is required only to use reasonable precautions, and her conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances_” at p. 290.

Measured by that standard the Dunne’s precautions against harm to their child were reasonable and did not fall below the standard of conduct required for such protection.

Lastly the Board claims that it should fall under the provisions of La.R.S. 9:2795, which provides for limited liability of landowners whose property is used primarily for recreation purposes. The stated purpose of this statute was to encourage owners of land to make their property and water area available to the public for recreational purposes by limiting their liability. See Comments to La.R.S. 9:2795. The Board clearly does not qualify under the act in that its land is used primarily for educational and not recreational purposes. In addition Paragraph B of the statute exempts from its coverage any owner of “commercial recreational developments or facilities”. In discussing when a facility is a “commercial” one for purposes of that exception, the Third Circuit held that the landowner/lessor must intend to make a profit to be so exempted. Thomas v. Jeane, 411 So.2d 744 (La.App. 3rd Cir.1982). Surely the Board intended to make a profit when it collected the $516.00 in rent from Gay-Lynne and therefore would not come under the lienent standard of care imposed by La.R.S. 9:2795.

LIABILITY OF GAY-LYNNE

The trial court found Gay-Lynne liable to plaintiff not because of any negligence on its part, but rather as a result of the following provision in the lease agreement between Gay-Lynne and the Board.

“The applicant group agrees to assume responsibility for any legal liability for injury or damage to the person or property of the applicant or others and for any injury or damage to school personnel or property in connection with the use of school facilities, (emphasis ours) The applicant group agrees to reimburse the board for any such damage.”

Since the trial court found no negligence on Gay-Lynne’s part, it was clearly erroneous to hold Gay-Lynne liable based on the above quoted provision. That provision is essentially an indemnity agreement between Gay-Lynne and the Board. Plaintiffs were not a party to the contract and Gay-Lynne cannot be held liable to them on that basis. See Brown v. Soupenne, 416 So.2d 170 (La.App. 4th Cir.1982). We therefore reverse that portion of the lower court ruling.

The Board complains that Gay-Lynne should be responsible on its third party demand for indemnification. We disagree. Louisiana law is well settled to the effect that any time a contract of indemnity calls for one to be indemnified against the consequences of one’s own negligence, that contract is to be strictly construed. The courts have universally held that unless such intention is expressed in unequivical terms, indemnity will be denied. Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977). Our interpretation of the subject clause is that it does not express an intent to impose an obligation so extraordinary and harsh that Gay-Lynne is to be liable for damages occasioned by the Board's sole negligence.

Additionally the clause only provides for indemnity in connection with the use of the school facility leased. Gay-Lynne leased and was only authorized to use the auditorium, not the gymnasium where the injuries occurred. Rule 1 of the “Orleans Parish School Board’s Rules and Regulations Regarding Use of School Facilities” provides:

“The use of school facilities is limited to the specific areas requested (cafeteria, gymnasium, athletic field, auditorium, classrooms, etc.).”

Mrs. Delores Centanni, secretary of facilities use for the Orleans Parish School Board testified that different portions of the high school was subject to be let singly, or in combination with other portions and that the rental would vary with the particular portion of the premises that was leased. Mrs. Centanni further testified that Gay-Lynne leased only the auditorium and not the gymnasium. That if they had leased the gymnasium, they would have been required to pay an additional amount for that portion of the premises. Clearly a lessee cannot be held liable on the basis of his lease for injuries occurring outside of the leased premises.

LIABILITY OF LEWIS ROSTER

Lewis Roster, the father of Rirk Roster, a minor with whom the plaintiff was allegedly playing at the time of the accident was also named as a defendant. Neither appellee nor appellants in brief dispute the trial court’s dismissal of their claims against Lewis Roster. Thus we consider any appeal on the portion of the judgment pertaining to Lewis Roster to be abandoned.

The judgment of the trial court in favor of the plaintiff and against the Orleans Parish School Board is affirmed. The judgment against Charles V. and Lynne Cuccia, d/b/a Gay-Lynne School of Dance is reversed. All other judgments of the trial court are affirmed.

AFFIRMED IN PART, REVERSED IN PART.


author: WARD, Judge. SCHOTT, Judge,

text:
    Mrs. Ronald DUPLECHAIN v. Arthur TURNER, Isaac Turner, Individually and d/b/a 5106 Club Partnership, National Security Fire and Casualty Company and Shelly Neveaux.
    No. CA-0691.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.
    Writ Denied April 13, 1984.

      Allain F. Hardin, Wiedemann & Fransen, New Orleans, for Mrs. Ronald Duplechain, plaintiff-appellee.
    Pamela J. Bayer, Howell & Bayer, New Orleans, for Arthur Turner, Isaac Turner, Individually and d/b/a 5106 Club Partnership, defendants-appellants.
    Robert B. Nolan, Rebecca A. Bush, New Orleans, for National Sec. Fire & Cas. Co., defendants-appellees.
    Before WARD, SCHOTT and CIACCIO, JJ.
   WARD, Judge.

Ronald Duplechain, an off-duty New Orleans police officer, was shot and killed on November 17, 1979, in the 5106 Club, a bar on Claiborne Avenue in New Orleans. That bar is owned and operated by Arthur and Isaac Turner who are brothers and partners. Arthur Turner, a public school teacher during the day, was on duty that night and it was he who shot Officer Du-plechain. The widow of Officer Duplechain sued Arthur and Isaac Turner, their partnership as a separate entity, and their insurer, National Security Fire and Casualty Company, asking damages for his wrongful death.

The Trial Judge held that Arthur Turner was not liable for a battery of Duplechain because his conduct was justified, and that National Security Fire and Casualty Company was not liable because the policy contains a provision which excludes coverage of an insured if he inflicts injuries by an “assault and battery”. Nonetheless, the Trial Judge awarded Mrs. Duplechain $90,-000 in general and special damages, holding Arthur, Isaac and the partnership liable under a negligence theory because of a breach of duty imposed on bar owners by a criminal statute, La.R.S. 26:88(5).

Arthur and Isaac Turner and the partnership have appealed. Mrs. Duplechain has answered the appeal, asking that we affirm that part of the judgment holding Arthur and Isaac Turner liable; but also asking that we reverse and hold National Security liable as Mr. Turner’s insurer, and that we amend the judgment to increase the award of damages. National Security has also answered Mrs. Duplechain’s appeal, and it asks that we affirm that part of the judgment in its favor, holding that the policy provisions exclude coverage.

We reverse, and hold that none of the defendants are liable to Mrs. Duplechain.

There is some dispute as to the evidence but after piecing together the testimony of the witnesses the essential facts show that on November 17, 1979, not long after midnight, Officer Duplechain had gone to the Disco 2000 bar where he happened to meet David Beaulieu, an acquaintance of approximately six months and a,civilian employee of the New Orleans Police Department. Neither Duplechain nor Beaulieu was in uniform. Duplechain and Beaulieu had two drinks at that bar before going to the Brick Factory Lounge where they had one drink and stayed for an hour. Their next stop was The Famous Disco, and Beaulieu testified they stayed there until 6:00 a.m., or for about three hours, but they had nothing to drink. After leaving the Famous Disco, and while on their way home, they entered the 5106 Club so Duplechain could make a telephone call.

After Duplechain entered the bar and while he was using the telephone, a customer, Shelby Neveaux, began to argue with the barmaid, Esther Ruffins. He had wanted to use a barstool reserved for Ruf-fins’ use and she refused to let him. The argument became heated, Neveaux began cursing Esther Ruffins, and she called to her boyfriend, Gary Marshall, for help. When Marshall approached, Neveaux pulled a gun, cocked the hammer, pointed the gun at Marshall, and Marshall backed off. Duplechain heard most of the argument, saw Neveaux threaten Marshall, and he drew his service revolver and identified himself as a police officer. Instead of surrendering his gun, Neveaux fired at Duple-chain, hitting him under his left arm, wounding him, but not severely. Duple-chain fired back, wounding Neveaux, and the two exchanged several more shots. Wounded and bleeding, Neveaux fell behind the bar, and Duplechain went after him, leaned over the bar, and again fired at Neveaux. When Arthur Turner entered from the back room, Duplechain had a gun in his hand and was standing near the bar.

Turner had been in the back storeroom counting the night’s cash receipts when he first heard the argument between Esther Ruffins and Shelby Neveaux. While he was still in the back room, he heard someone say they were going to shoot up the place, then he heard shots, and almost simultaneously Ruffins came running into the room and told Turner they were shooting up the place. Turner put away his money, picked up his .22 pistol, ran into the bar, and, as he entered the barroom door, a bullet struck the door frame inches away. He saw Duplechain near the bar with a gun, and concluded that he had shot Nev-eaux who was lying behind the bar on his back. Turner fired three times at Duple-chain and killed him.

Ballistics experts examined the pellet that struck the door and concluded it was from a .38 caliber pistol. Since the pellet was smashed, no other identification was possible, and since both Neveaux and Du-plechain had .38’s, the experts could not tell from which gun the pellet came.

Some testimony is disputed. Arthur Turner testified as to what he observed and described his state of mind: he thought a robbery was in progress and he believed his life and the lives of his customers and employee’s were in danger. In his pre-trial deposition, Turner gave different testimony as to his state of mind, as to where Duple-chain was standing, and as to what he observed Dupleehain doing. Nonetheless, during trial, Turner testified that when he entered the bar there was chaos. He saw a man he had never seen before standing near the bar, poised, with his gun pointed at Neveaux. He also testified that Duple-chain turned in his direction as if he were going to shoot, he thought he was in mortal danger, and he shot Dupleehain.

This was contradicted by David Beaulieu, who testified that Dupleehain could not have turned towards Turner because Du-plechain was still leaning over the bar aiming at Neveaux when Turner shot him. He said Turner gave no warning and he did not give Officer Dupleehain an opportunity to drop the gun or to identify himself.

For the purpose of this opinion, we deem it expedient to first review the Trial Judge’s finding that Turner was not liable for a battery of Dupleehain. In general, a person is criminally responsible and civilly liable for the intentional use of force or violence upon the person of another. Such actions constitute a battery. Nevertheless, conduct which would otherwise be criminal, such as a battery, may be justified. Justification is a defense to a criminal charge, as when a battery is committed for the purpose of preventing a forcible offense against the person or against property in his possession. Nonetheless, to justify the battery, the force or violence used must be reasonable and apparently necessary to prevent the offense. L.S.A.R.S. 14:18 et seq.

Likewise, conduct which would otherwise be a tortious battery may be justified as self-defense, or in defense of others. When justified, there is no civil liability. Patterson v. Kuntz, 28 So.2d 278 (La.App. Orleans 1946).

When, however, a homicide results, a different and higher standard must be met before the conduct is justified. LSA-R.S. Article 14:20:

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
(2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business while committing or attempting to commit a burglary of such dwelling or business. The homicide shall be justifiable even though the person does not retreat from the encounter.

The reporters’ notes explain in greater detail:

In order to justify a homicide, as being in self-defense, the person who is attacked must actually believe that he is in imminent danger of losing his life or of receiving serious personal injury. Such a belief must also be a reasonable one. The danger need not be real but the person attacked must reasonably believe that he is in actual danger. Not only must the person attacked reasonably believe that he is in imminent danger, but he must also reasonably believe that it is necessary to kill in order to save himself. These principles of law are a codification of existing Louisiana jurisprudence. State v. St. Geme, 31 La.Ann. 302 (1879); State v. Sadler, 51 La.Ann. 1397, 26 So. 390 (1899); State v. LeJeune, 116 La. 193, 40 So. 632 (1906).
It has been held that a person’s belief that he is in danger of losing his life or receiving serious personal injury is not “reasonable” unless it is founded upon an actual physical attack or hostile demonstration by the deceased. State v. Halliday, 112 La. 846, 36 So. 753 (1904). The same interpretation should be given the “reasonable belief” requirement in this section.

We believe these standards are applicable to civil suits where a death has ensued, as in this case. Nevertheless, even after judging Arthur Turner’s conduct by the higher standards, we agree with the Trial Judge: Turner’s conduct was justified; he reasonably believed he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary to save himself. We also believe it was justified because it was done for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm to others, and Turner reasonably believed an offense was about to be committed and that the killing was necessary to prevent it. When he entered the bar, a bullet struck the door frame inches away, Duplechain was standing by the bar with a gun. Neveaux was lying on his back behind the bar, wounded and bleeding and Duplechain was either aiming at Neveaux or had wheeled around to face Turner as he entered. All of this led the Trial Judge to conclude Turner’s actions were justified and that he acted reasonably under the circumstances. We therefore believe that the Trial Judge was correct; and that neither Arthur nor Isaac Turner nor the partnership is civilly liable for the battery.

We also believe the Trial Judge was correct when he held National Security was not liable. Their policy excludes coverage for injuries inflicted by “assault and battery”. Mrs. Duplechain argues that National Security is liable because Arthur Turner was negligent in erroneously evaluating the situation before he shot, and Du-plechain’s death was caused by Turner’s negligence before the battery, and that National Security as an insurer of negligent acts is liable. We reject this argument. If Arthur Turner had acted unreasonably when he committed the battery, then his conduct would not have been justified, and he would be liable for it. Force or violence was intentionally inflicted, however, thus, a battery occurred and it caused the death. Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir.1975). Therefore, the exclusionary provision of the policy is applicable, and National Security is not liable in any event, whether the conduct was justified or not.

Although no litigant considered the point, the Trial Judge, after taking the matter under advisement, found Arthur and Isaac Turner and the partnership negligent because of a violation of a criminal statute, La.R.S. 26:88(5):

No person holding a retail dealer’s permit ... shall do or permit any of the following acts to be done on or about the licensed premises:
(5) Permit any disturbance of the peace or obscenity, or any lewd, immoral, or improper entertainment, conduct, or practices on the licensed premises.

We believe the Trial Judge erred. Criminal statutes are not, in and of themselves, determinative of liability. They are merely guidelines to consider in deciding whether a particular conduct violates a duty owed to a particular person. Laird v. Traveler’s Insurance Company, 263 La. 199, 267 So.2d 714 (1972). Nonetheless, our analysis must go further, because, although violation of a statute is not negligence per se, the pertinent questions under duty-risk analysis remain and require consideration of the duty Arthur Turner owed to Ronald Duplechain and whether he breached that duty.

We believe Turner owed a duty to Duplechain from harm from employees and other patrons.

The proprietor of a public place is not the guarantor of his patrons safety. He owes them the duty to exercise reasonable care to protect them from harm at the hands of a fellow guest or at the hands of his employees_” Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir.1973).

This means Turner had a duty to protect Duplechain from injury at the hands of Neveaux. Mrs. Duplechain argues that Turner violated his duty to protect bar patrons, and that his failure to act timely to protect them by stopping the fight between Neveaux and Ruffins and Neveaux and Duplechain caused the death of Duple-chain. We, however, do not believe Arthur Turner violated that duty. While it is true that he did not react immediately as soon as he heard a loud argument, he had no reason to believe at that time that one patron would harm another. Loud arguments are normal occurrences in bars. As soon as Turner had knowledge that the argument escalated into more than mere words, he acted promptly and reasonably to protect both patrons and employees. When he either heard shots or was informed that patrons were shooting up the place, he grabbed his gun and ran into the bar. There is no evidence to show unreasonable delay or a failure to timely act. Ironically, the unfortunate tragic killing was the result of Turner trying to fulfill his duty to protect his patrons and employees, not because he failed to do so.

We have previously discussed Turner’s liability for battery, meaning breach of a duty owed by him not to intentionally harm Duplechain, and we concluded that his conduct was justified and excusable. In fulfilling the additional duty to protect patrons and employees, he was not negligent and he did not violate this duty when he acted in their defense and in his own self defense.

In sum, we believe the Trial Judge was ■ correct when he held Turner was not liable for a battery of Duplechain and that National Security was not liable under the clause excluding damages arising from a battery. We believe, however, the Trial Judge erred when he held Arthur Turner negligent because he violated a statute. We also believe that Arthur Turner did not violate a duty owed to Ronald Duplechain as a patron of the bar.

We therefore reverse the judgment that holds Arthur and Isaac Turner and their partnership liable. We affirm the judgment holding National Security not liable.

All cost of trial and appeal must be paid by plaintiff, Mrs. Duplechain.

REVERSED IN PART, AFFIRMED IN PART.

SCHOTT, J., concurring with reasons.

SCHOTT, Judge,

concurring:

I agree with the majority opinion on the question of the liability of Arthur and Isaac Turner and their partnership, but I do not reach the question of National Fire and Casualty Company’s liability.

Plaintiff sued National alleging that it insured the other defendants for their liability in this case. The Turners filed a third party demand against National seeking reimbursement and indemnity in the event of a judgment against them. The trial court rendered judgment in favor of plaintiff against the Turners but found no coverage under National’s policy. The Turners appealed, thereby preserving the issue of National’s coverage, and plaintiff took her own appeal from the dismissal of her claim against National.

Once we conclude that the Turners are not liable to plaintiff, the question of National’s liability to plaintiff and its obligation to the Turners under the policy for reimbursement and indemnification becomes moot and the troublesome coverage question need not be addressed.

I have considered whether the question of National’s obligation to defend the Turners (separate from its obligation to indemnify) is properly before us and conclude that it is not. In the body of their third party demand the Turners speak only of entitlement to reimbursement and indemnity from National in the event plaintiff secures judgment against them. They do not allege that they tendered their defense to National, that National refused to defend them, and what costs they incurred in their own defense. At the trial of the case they put on no evidence of their costs to defend. In their briefs to this court they limited their arguments to indemnity, omitting any reference to a duty on National’s part to defend.

In the prayer of their third party demand the Turners do include after their prayer for indemnity in the event they are cast in judgment to plaintiff a prayer for “reasonable attorney’s fees to be fixed by [the trial court],” but I do not consider this as sufficient to warrant our addressing the issue of National’s duty to defend considering the totality of their pleadings, their evidence at trial, and their briefs to this court.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Ronald L. KELEMAN, Appellant.
    No. 15575-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied March 23, 1984.

      Paul Henry Kidd, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Lowen B. Loftin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., Ray-ville, for appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

Defendant appeals his conviction of armed robbery and his sentence to 45 years at hard labor after a trial by judge. LRS 14:64. He assigns errors which concern the admissibility of a statement made by the defendant, the effectiveness of defendant’s counsel at trial, and the sufficiency of the sentencing hearing. We affirm.

About noon on August 26, 1982, Mrs. Nobie Gibson was robbed of about $150 at gunpoint and then shot in the head two times at Wilson’s Hardware Store in Delhi where Mrs. Gibson was employed. Fortunately, Mrs. Gibson was able to telephone for help and was treated in a Monroe hospital.

The defendant was arrested a day later about 6:00 p.m. at a Rayville motel where he was then staying. He was arrested on an outstanding bench warrant from West Carroll Parish for failure to appear on a speeding charge. A person in Delhi had told sheriff’s deputies that defendant was in the area of the hardware store on the morning the robbery occurred. Others had described a person of similar appearance near the store before defendant’s arrest occurred. Defendant was taken to the Richland Parish Sheriff's Office for questioning, where he signed a waiver of rights form at 6:30 p.m. He admitted being in Delhi the day before and being in the hardware store, but denied any involvement in the robbery or shooting. He stated that he owned a .22 caliber pistol and that it was located in his car at the motel. A search warrant was issued for defendant’s car at 8:43 p.m. The basis for the warrant was defendant’s statement that he owned a .22 pistol, the fact that the victim had been shot by a small caliber weapon, the statements by the witness that defendant had been in the area, and the descriptions given by the victim and other witnesses.

The defendant moved to suppress his statement and the pistol. He claims that his statement was not freely and voluntarily made because he was not clearly informed of the reason for the questioning. He claims that the pistol should be suppressed because the basis for the search warrant was his own statement.

Two of the officers who had been in the room during questioning and the defendant testified at the hearing on the motion to suppress. Both officers stated that no questions were asked of defendant before he signed the waiver of rights form at 6:30 p.m. The officers stated that immediately after defendant’s rights were explained to him, defendant was informed that he was being questioned about a shooting and robbery that had occurred in Delhi the day before. The waiver of rights form contains the signature of defendant in two places. The first signifies that the defendant had read the statement of rights and that he understands them. The second signifies his willingness to waive those rights and make a statement. Defendant admitted signing the rights form and stated that no promises had been made to him by the police. Defendant was formally arrested on the robbery and attempted murder charges at 9:18 p.m. and was asked to sign a second waiver of rights form with the charges noted thereon. He refused to sign this form and no further questioning took place.

The trial judge saw and heard the witnesses testify at the hearing on the motion to suppress and his conclusions on credibility are entitled to great weight. State v. Rodrigue, 409 So.2d 556 (La.1982). Both police officers testified that defendant was informed of the reason for the questioning before the statement was made. The trial judge believed these two witnesses. We find no error in the determination that the statement was made freely and voluntarily.

The pistol was also properly admitted into evidence. The search warrant was based on credible evidence other than defendant’s statement that he owned a .22 caliber pistol and in any event the statement has been found admissible and not tainted.

Defendant next contends he was deprived of effective assistance of counsel at trial. This issue was raised and heard on the motion for new trial in the district court. While this issue is normally relegated to post conviction relief applications, we consider it and find it without merit in this appeal. State v. Burkhalter, 428 So.2d 449, 456 (La.1983). Defendant complains of the failure of his attorney to obtain an independent ballistics examination of the gun, to explain the consequences of his waiver of a jury trial, to call witnesses showing an alibi defense, and to show that the victim had made a prior inconsistent statement.

The gun found in defendant’s car and a spent bullet which was found in the hardware store were sent to the state crime laboratory in Baton Rouge for testing. The results of the test showed that the bullet had been fired from the defendant’s weapon. A copy of that report was furnished to defense counsel. The attorney testified at the motion for new trial that he decided not to have an independent ballistics examination conducted because of the fear that an independent report would also be conclusive and would be used against the defendant by the state. Defendant’s trial attorney testified that had the state report been questionable at. all, he would have had an independent examination conducted but that under the circumstances, his judgment was that it would not be in the best interest of the defendant to have an independent examination. The state ballistics examiner testified that the bullet was easily identified with the pistol and that there was no question in his mind that the bullet had been fired from the defendant’s gun. This circumstance does not suggest ineffectiveness in our opinion.

Defendant testified on the motion for a new trial that he knew what a jury trial was, that he knew he was signing a waiver of a jury trial, and that he did so on the advice of his counsel. The defendant completed high school and one year of college. He had pleaded guilty to other unrelated charges before this charge and was not ignorant of the right to a trial by jury. The advice to the defendant that he should waive a jury trial was a matter of professional judgment and we cannot say that the judgment of his trial attorney fell below the competency demanded of defense counsel in criminal cases. See State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Several of the witnesses whom defendant claims should have been called at trial, were called at the hearing on defendant’s motion for new trial. None of these witnesses was able to provide an alibi for the defendant at the time the robbery and shooting occurred. Defendant testified that he was on his way to or at Josie Thomas’ house at the time the robbery and shooting occurred. However, Mrs. Thomas testified that defendant did not come to her house until 1:20 or 1:30 that afternoon. The robbery and shooting occurred between 12:00 and 12:30. Defendant would have had time to commit the crime in Delhi and drive to Mrs. Thomas’ house in Ray-ville in this amount of time. Witnesses at the motion for a new trial testified that they did not see defendant until about 1:30 p.m. or later on the day of the robbery. These circumstances do not show ineffectiveness of counsel.

The “prior inconsistent statement” that defendant claims his counsel should have pursued was a statement by the victim that defendant had been in the store twice on the morning of the shooting while her testimony was that defendant came in the store three times. This inconsistency is minor and is not crucial in the light of the overwhelming evidence that defendant committed the crime.

The final assignment is the propriety of the sentencing process. The defendant contends that the trial court erred in not ordering a pre-sentence investigation, in not granting a continuance at the sentencing, and in not complying with the sentencing guidelines of CCrP Art. 894.1.

A pre-sentence investigation may be ordered by the court, but it is not a right of the accused and is not mandatory. CCrP Art. 875. The purpose of a PSI is to aid the court in its sentencing decision. The defendant did not request a pre-sen-tence investigation until the day of the sentencing hearing which had once before been continued. On this record, we do not find that it was an abuse of the trial court’s discretion to refuse to honor defendant’s belated request for a pre-sentence investigation. State v. Bell, 377 So.2d 275 (La.1979).

The defendant moved for a continuance on the morning of the sentencing hearing which followed the hearing on the motion for new trial. On our own motion, we note that CCrP Art. 873 requires a delay of 24 hours before sentencing after a motion for new trial is overruled. Sentencing occurred immediately after the motion for new trial was overruled. However, absent a showing that defendant was prejudiced by the failure to observe the delay, we are not required to remand for resen-tencing, especially where a substantial time has passed between trial and sentencing. State v. White, 404 So.2d 1202 (La.1981). The guilty verdict was returned on December 9, 1982. Sentencing was originally set for December 28, 1982, but was delayed on request of defendant’s counsel. The sentencing occurred on January 4, 1983. Witnesses at the motion for new trial had testified to defendant’s character. Defendant has not shown that any further favorable evidence could have been produced had a continuance been granted. Under these circumstances, the sentencing without delay will not compel a remand.

We are also of the opinion that the trial court sufficiently complied with the sentencing guidelines of CCrP Art. 894.1 and illumines substantial recognition of the 894.1 factors. The transcript of the hearing for the continuance and the sentencing reveals that the court considered the absence of mitigating factors and found that a lesser sentence would deprecate the seriousness of the offense. The trial court noted that the defendant had used a gun in the commission of the offense and had seriously injured the victim by shooting her twice. The guidelines were substantially observed and that the sentence of 45 years at hard labor is not excessive.

The defendant’s conviction and sentence are AFFIRMED.