author: DOMENGEAUX, Judge.

text:
    Kenneth P. NELSON, Plaintiff-Appellant-Appellee, v. TRAVELERS INSURANCE COMPANY and Avoyelles Valve, Inc., Defendants, Avoyelles Valve, Inc., Appellant-Appellee.
    No. 83-1105.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writ Denied March 22, 1985.

      James T. Lee, Bunkie, for plaintiff-appellant-appellee.
    Olivier & Brinkhaus, John L. Olivier, Sunset, for defendants.
    Edward E. Rundell, of Gold, Little, Simon, Weems & Bruser, Alexandria, for appellant-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

This appeal arises out of a worker’s compensation case. Plaintiff brought this suit seeking to recover benefits for injuries sustained in connection with his employment for Avoyelles Valve, Inc.

The underlying facts which gave rise to this appeal may be briefly stated as follows: From October 20, 1980, until May 24, 1982, plaintiff was employed as a maintenance laborer for Avoyelles Valve, Inc. During this period of time plaintiff suffered four separate job related injuries. At the time of the first three injuries Travelers Insurance Company was the employer’s worker’s compensation insurer. Some time shortly before the fourth injury the defendant — employer secured worker’s compensation coverage from Southern States Insurance Company.

Plaintiff was initially injured in the course and scope of his employment on October 20, 1980. This accident occurred when plaintiff was attempting to lift a 100 to 200 pound piece of equipment. After the injury Mr. Nelson was treated by Dr. Richard Michel, a general practitioner in Marksville, Louisiana. Doctor Michel diagnosed the injury as “bilateral paravertebral muscle spasm” and referred plaintiff to Dr. R.J. Beurlot, an orthopedist in Alexandria, Louisiana. Doctor Beurlot treated plaintiff and released him to return to work on November 14, 1980. During the time of plaintiff’s recovery he received compensation payments from Travelers.

After plaintiff had returned to work he sustained two other accidental injuries on May 14, 1981, and on January 10, 1982. Both times plaintiff was treated by Doctor Michel and released to return to work in just a few days.

On May 24, 1982, plaintiff sustained a fourth accidental injury which is the subject of this appeal. After this injury plaintiff was treated by Doctor Michel again and referred to Dr. Bruce Razza, an orthopedist who specializes in disorders of the spine. Doctor Razza diagnosed Mr. Nelson as having a disabling injury termed retrol-isthesis at the L-5-S-1 level and also L-4-5 levels of the spine.

On January 31, 1983, plaintiff brought suit against his employer, Avoyelles Valve, Inc., and its alleged worker’s compensation insurer, Travelers Insurance Company. In his petition plaintiff alleges that he had been disabled by the job related accident which occurred on October 20, 1980. Subsequently on June 21, 1983, he filed a supplemental and amending petition in which he alleged three additional injuries which occurred on May 14, 1981, January 20, 1982, and May 24, 1982. It is plaintiffs contention that the last three accidents simply aggravated the initial injury caused by the October 20, 1980 accident. During the time of the first three accidents Travelers was the employer’s worker’s compensation insurer. Southern States Insurance Company who was presumably the employer’s worker’s compensation insurer at the time of the last accident of May 24, 1982, was impleaded as a third party defendant by Avoyelles Valve, Inc. Before the proceedings began the trial court severed the employer’s third party demand against Southern States Insurance Company.

After trial of the matter the lower court found no liability on the part of Travelers but found the plaintiff to be totally and permanently disabled and entered judgment in favor of the plaintiff against the defendant employer. From that judgment both parties have appealed. The issues on appeal are: (1) Whether the trial court’s factual determinations are correct; (2) Which of the employer’s worker’s compensation carriers should be liable, i.e., Travelers or Southern States Insurance Company, or both? (3) Is plaintiff entitled to statutory penalties and attorney’s fees from Travelers?

In finding liability on the part of Avo-yelles Valve, Inc., the trial court made the following findings: (1) Plaintiff was totally and permanently disabled; (2) Plaintiff fully recovered from his first three accidents; and (3) That it was the March 24th injury which totally and permanently -disabled plaintiff.

On appellate review the trial court’s factual findings are entitled to great weight and should not be disturbed when there is evidence before the trier of fact which upon the latter’s reasonable evaluation of credibility furnishes a reasonable factual basis for the trial court’s findings. Unless clearly wrong a reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact, even though the reviewing court may be of the opinion that other evaluations and inferences are as reasonable. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

The trial court’s finding that plaintiff is totally and permanently disabled was amply supported by the record. The uncon-tradicted medical testimony of Doctor Raz-za and Doctor Michel show that they were both of the opinion that as of the time of the trial plaintiff was totally and permanently disabled and unable to return to work.

Also supported by the record is the trial court’s finding that plaintiff fully recovered from the first three accidents because Doctor Michel, who treated plaintiff after each of his four accidents, stated that: “Plaintiff has fully recovered from the first three accidents, regaining his pre-accident status following limited treatment.”

The trial court’s finding that plaintiff’s disability was a result of his May 24, 1982 accident is also correct. In order to be partially disabled a plaintiff’s injuries must prevent him from performing the duties in which he was customarily engaged when injured or prevent him from performing duties of the same or similar character, nature, or description for which he was suited by education, training, and experience. Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982). After each of plaintiff’s first three accidents, he returned to his employment after little or no time off and performed the same duties as he performed prior to his injury. Thus plaintiff could not have been considered even partially disabled after any of the first three accidents.

The jurisprudence has also recognized that a worker may be considered partially disabled where an employee experiences substantial pain when working in his former occupation but cannot perform other work without experiencing such pain. McBroom v. Argonaut Insurance Company, 370 So.2d 212 (La.App. 3rd Cir.1979). However, the evidence in this case does not indicate plaintiff suffered this type of pain. As pointed out earlier, according to Doctor Michel, plaintiff fully recovered from the first three accidents. There is no history of an on-going medical treatment after any of those first accidents. The medical evidence in the record when taken as a whole strongly supports the conclusion that plaintiff fully recovered from the first three accidents and was totally and permanently disabled by the fourth.

For the reasons to which we have adverted, the uncontradicted medical evidence, in conjunction with the lay testimony, and the governing law applicable thereto, we are required to affirm the trial court’s conclusion that: (1) Plaintiff is now totally and permanently disabled; (2) Plaintiff fully recovered from his first three accidents; and (3) The accident which disabled plaintiff occurred on May 24, 1982.

At trial the defendant-employer claimed that it was the first injury which disabled plaintiff and that the three subsequent accidents simply aggravated the injury of October 20, 1980. It was thus the employer’s contention that plaintiff’s claim had prescribed. As pointed out earlier this suit was filed on January 31, 1983, alleging disability from the October 20, 1980 accident. However, plaintiff’s petition was properly amended to bring before the trial court the existence of the three subsequent injuries. The trial court considered all the evidence and held that plaintiff was not in any way been disabled by the first three accidents but that he had been totally and permanently disabled by the May 24, 1982 accident. Because we have affirmed those decisions this suit was timely filed and, although it was amended more than one year following the disabling accident, in our view, the amendment relates back to the initial filing of the worker’s compensation suit. Therefore, suit was timely filed within the period required by La.R.S. 23:1209, and defendant’s plea of prescription was properly overruled.

The final inquiry herein pertains to the question of which insurer should be held responsible for plaintiff’s injuries. Southern States Insurance was allegedly the worker’s compensation insurer at the time of the May 24, 1982 accident. Because the defendant employer’s third party demand against this insurance company was severed before trial, that issue is not before us. Travelers Insurance Company however had been made a party to the proceedings in the trial court. Travelers was the worker’s compensation insurance carrier at the time of the first three accidents. We held that the plaintiff fully recovered from those accidents and that the disabling injury occurred on May 24, 1982. At that time Travelers was no longer the employer’s insurance carrier, thus there is no liability on its part. Further, Travelers was justified in not assuming responsibility for a crippling accident which occurred after its policy was no longer in effect. This action by Travelers cannot be construed as arbitrary and capricious action which would give rise to a claim for penalties and attorney’s fees.

Of course, as aforesaid, the status or liability of Southern States Insurance Company in connection with this case is not before us inasmuch as the demand against it was previously severed. Whatever liability which may rest on that insurance company must be decided in further proceedings in the district court.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are assessed equally against the plaintiff, Kenneth P. Nelson, and the employer, Avoyelles Valve, Inc.

AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    CNA INSURANCE COMPANY, Plaintiff-Appellant, v. NUTONE CORPORATION, A DIVISION OF SCOVILL MANUFACTURING, CO., et al., Defendants-Appellees.
    No. 83-1106.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, for plaintiff-appellant.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for plaintiff-appellee-appellant.
    Bolen & Erwin, Ltd., Greg S. Erwin and John B. Honeycutt, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

This suit arises as a result of a fire which occurred on September 21, 1980, at the home of Edwin and Debra Cabra. This case was consolidated for trial with the case of Edwin L. Cabra, Individually and as Administrator of the Estate of the Minors, Lance Edwin Cabra and Emily Bree Cabra, and Brenda Cabra v. Nutone Corporation, A Division of Scovill Manufacturing Company, et al., in which suit we this day render a separate decree. 461 So.2d 523 (La.App. 3rd Cir.1984).

CNA Insurance Company, the Cabra’s homeowner’s insurer, filed this suit against Victor Scott, Nutone Corporation, a Division of Scovill Manufacturing Company (Nutone) and its insurer, Liberty Mutual Insurance Company, claiming subrogation rights for the amount it paid to the Cabras for the property loss occurring as a result of the fire. The Cabras’ action against the same defendants seeks recovery of the depreciated value of their home as well as damages for the alleged mental anguish which they suffered as a result of the fire. Prior to trial on the merits, Victor Scott died. Plaintiffs took no steps to pursue either matter against the legal successor of Victor Scott. La.C.C.P. Article 801 et seq.

All parties to the companion’ suit moved to have that suit consolidated with this suit brought by CNA Insurance Company. The motions were granted and the consolidated cases were tried before a jury. By unanimous verdict, the jury found for defendants, Nutone and Liberty Mutual Insurance Company, and against all plaintiffs. Judgment was accordingly rendered dismissing both suits with prejudice and at plaintiffs’ cost. Plaintiffs in both suits have appealed. We affirm.

This appeal presents three issues for review:

(1) Whether the jury erred in finding that Nutone was not liable by virtue of the warranty agreement on the Nutone security system;

(2) Whether the jury erred in finding that Victor Scott was not working within the course and scope of his employment with Nutone when he installed the Nutone security system in the Cabra’s home; and,

(3) Whether the jury erred in finding Mrs. Cabra 100% contributorily negligent.

FACTS

There is little dispute over the facts of this case. Mr. and Mrs. Cabra were in the process of building a new home in 1979. While their new home was being constructed, the Cabras lived at the home of friends, Mr. and Mrs. Claude Leach, who were out of the state during this period of time. The Cabras met Victor Scott while staying in the Leach home. Scott was doing repair work on the Leach’s Nutone security system. The Cabras disclosed to Scott their interest in equipping their new home with a burglar and fire alarm system similar to the one in the Leach home. Scott informed the Cabras that he could install a similar system in their new home for a low price. Scott’s bid was lower than any other which the Cabras had received, thus they contracted with him to install the Nutone security system. This particular system consisted of smoke and fire detectors as well as a burglar alarm feature. The system was installed by Scott prior to the completion of the Cabra’s home in November of 1979.

The fire occurred on September 21, 1980. On that evening, Mrs. Cabra had placed four or five baby bottle rings in a saucepan on the kitchen cooktop to be sterilized. Mrs. Cabra failed to turn the burner off before she retired to the bedroom area of the house. The water boiled out of the pan, causing the baby bottle rings to overheat and catch on fire. This, in turn, caused the plastic grating over the stove to fall onto the stove and melt, spreading dense smoke throughout the house. Neither of the two heat detectors in the kitchen were activated by the fire. The Cabras were first apprised of the situation when the smoke detector located on the far end of the home near the bedrooms sounded. Mr. Cabra thereupon went into the kitchen and extinguished the fire. By this time, the entire house was filled with smoke.

CNA Insurance Company paid $9,118.78 to the Cabras for the loss occasioned by the fire. It was stipulated to and agreed upon by all parties to this suit that this sum constituted fair and reasonable compensation for the damages to the Cabra home. All parties also agreed to the fact that the Nutone system in the Cabra home was not defective. The testimony at trial clearly showed that the sole cause for the failure of the heat and smoke detectors at the time of the fire was that they were improperly installed by Scott. Had the system been properly installed, the evidence indicated that the detectors would have operated as intended.

WARRANTY

The first assignment of error by the plaintiffs is that the jury erred in finding that Nutone was not liable under the warranty provisions of the Nutone security system. The warranty on the “Nutone Intruder/Fire Alarm System” provides in pertinent part as follows:

“Our warranty does not cover damage or failure caused by Acts of God, abuse, misuse, abnormal usage, faulty installation, improper maintenance or any repairs other than those provided by an Authorized Nutone Service Center....”

Plaintiffs contend that this provision is ambiguous and that it could be construed to mean that the warranty covers damage or failure resulting from faulty installation provided by an Authorized Nutone Service Center. Under this interpretation, Nutone would be liable to the Cabras since their system was installed by an Authorized Nu-tone Service Center, Victor Scott. The plaintiffs assert that this ambiguity should be construed in a light most favorable to them since Nutone drafted the warranty.

In our view, the provisions of the warranty quoted above are clear and unambiguous. The warranty states that it does not apply if the damages or failure are caused by any of the following:

Acts of God
abuse
misuse
abnormal usage
faulty installation
improper maintenance
any repairs other than those provided by an Authorized Nutone Service Center.

Each of these enumerated causes is separate and distinct from the other, as is evidenced by the use of commas between them. The assertion that the qualifying phrase “other than those provided by an Authorized Nutone Service Center” relates back to “faulty installations” is unreasonable in light of the entire sentence structure. Under this rationale, it would follow that such phrase would relate back to each separate cause listed in the warranty. This interpretation would lead to absurd results. If the warranty is to be read as plaintiffs contend, then it necessarily follows that it could also be read to mean: Our warranty does not cover damages or failure caused by Acts of God other than those provided by an Authorized Nutone Service Center.

Our jurisprudence is clear that when a contract is susceptible of two conflicting but reasonable interpretations, the ambiguous phrase is to be strictly construed against the party who prepared the contract. La.C.C. Arts. 1957 and 1958. Par-Co. Drilling, Inc. v. Franks Petroleum, Inc., 360 So.2d 642 (La.App.3rd Cir.1978); Rayford v. Louisiana Savings Association, 380 So.2d 1232 (La.App.3rd Cir.1980), writ denied, 384 So.2d 793 (La.1980). However, in the instant case, we find that there is no ambiguity in the provisions of the warranty. There is but one reasonable interpretation in light of the entire warranty, i.e., that the qualifying phrase refers only to repair work provided by Authorized Nu-tone Service Centers. In furtherance of this conclusion is the fact that Authorized Nutone Service Centers are only authorized by Nutone to perform in-warranty repair work. It would thus be contradictory for Nutone to warrant installation work performed by its Authorized Nutone Service Centers when they are neither authorized nor compensated by Nutone for'doing such. For these reasons, we find no error in the jury’s conclusion that Nutone is not responsible under its warranty agreement with the Cabras.

COURSE AND SCOPE OF EMPLOYMENT

Plaintiffs next argue that the jury erred in finding that Victor Scott was not working within the course and scope of his employment or acting as an agent for Nu-tone at the time he installed the Nutone system in the Cabra home.

Victor Scott became an Authorized Nu-tone Service Center in August of 1975. As such, he was responsible for doing Nu-tone’s in-warranty repair work for the Alexandria-Leesville area of Louisiana. At the time he was the only Authorized Nu-tone Service Center for the entire area. The evidence at trial established that Scott’s scope of authority was clearly delineated by Nutone. Scott’s sole responsibility to Nutone was to do in-warranty repair work on Nutone products in the designated area. Scott was provided with a decal to place on his service truck which designated him as an Authorized Nutone Service Center. The service agreement which Scott entered into with Nutone expressly authorized him to perform in-warranty repair work and nothing more. This agreement also set forth the rate structure which Scott was to abide by. Scott was paid directly by Nutone for the in-warranty repair work he performed once he sent in a service report and such report was approved by the regional service manager. If Scott was called upon to do any out-of-warranty repair work, he was paid directly by the customer and had no obligation to Nutone.

Plaintiffs contend that although Scott was not specifically authorized by Nutone to perform installation of their system, he was vested with the apparent authority to do so by virtue of his position as an Authorized Nutone Service Center.

Scott was a retired construction electrician at the time he became an Authorized Nutone Service Center. Mrs. Scott indicated at trial that this was just a part-time job for her husband and that he did not even make enough money from his repair work to file income taxes. The average time which Scott spent doing in-warranty repair work for Nutone was only a couple of hours per week. This left a considerable amount of time remaining for his own personal endeavors. Mrs. Scott also stated at trial that her husband was not hired by Nutone as an installation man.

Mr. and Mrs. Cabra testified that they relied on Scott’s representations to them because he was an Authorized Nutone Service Center and that he could install the Nutone security system at a lower price than anyone else. The Cabras assert that Scott told them that since he could deal directly with the factory, he could guarantee them a better price on the Nutone system they wanted. Scott’s bid for the installation job was indeed lower than all of the other bids, including another bid on the same Nutone security system.

A principal may be bound for the acts of an agent who acts with actual'or apparent authority. Apparent authority is a concept of estoppel operating in favor of a third person seeking to bind a principal for the unauthorized act of an agent. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973). The burden of proving apparent authority is on the person seeking to bind the principal. Vermilion Bank and Trust Co. v. Miller, 284 So.2d 662 (La.App.3rd Cir.1973).

The judicially created doctrine of apparent authority has two requirements:

(1) The principal must make some form of manifestation to an innocent third party; and,

(2) The third party must rely reasonably on the purported authority of the agent as a result of the principal’s manifestations.

Pargas, Inc. v. Estate of Taylor, 416 So.2d 1358 (La.App.3rd Cir.1982).

In this case, there was no manifestation made by Nutone which would lead the Cabras to believe that Victor Scott had the authority to install their Nutone security system. Nutone, in fact, went out of its way to keep its service centers separate and distinct from its sales departments. The decal which Nutone provided for Scott read, “Authorized Nutone Service Center.” The word “sérvice” does not imply sales or installation authority. Nutone also provided the public with a toll-free telephone number, listed in the telephone directory as “Nutone DIV. OF SCOVILL MFG CO— Sales and Service Information,” through which one could obtain information about Nutone products. Nutone purposefully directed any callers either to a local distributor if sales information was sought or to a local service center if repair work was desired. Additionally, Nutone only sold its products through distributors. Contrary to the alleged representation made by Scott to the Cabras, Service Centers could not buy Nutone products directly from Nutone’s factory. Such products could only be obtained through a local distributor.

A third party seeking to benefit from the doctrine of apparent authority may not blindly rely on the assertions of an agent. He has a duty to inquire into the nature and extent of the powers of the agent. Buckley v. Woodlawn Development Corporation, 233 La. 662, 98 So.2d 92 (La.1957). The Cabras failed to inquire into the extent of Scott’s authority. Had they done so, they would have been informed of the fact that his authority as agent for Nutone was limited to in-warranty repair work. Nutone was not responsible for nor could it limit any activities which Scott, or any of its part-time service centers, undertook on their own time, and for their own profit. Scott was paid directly by the Cabras for the installation job. Any profit he made was strictly his own and Nutone received none of the proceeds.

We therefore hold that the jury’s finding that Scott was not within the course and scope of his employment at the time he installed the Nutone security system in the Cabra home was correct. Whatever appearance of authority Scott presented to the Cabras arose strictly from Scott’s actions and not from Nutone.

CONTRIBUTORY NEGLIGENCE

The plaintiffs’ final assignment of error is that the jury erred in finding Mrs. Cabra to be 100% contributorily negligent. In answer to special interrogatories, the jury found that:

“(1) Victor Scott was negligent and his negligence was a proximate cause of the accident, occurrence or loss;

(2) Victor Scott was an employee or agent of Nutone Corporation on the date of installation of the Nutone Security System;

(3) Victor Scott was not working within the course and scope of his employment or acting as an agent for Nutone Corporation relative to the services he performed for Mr. and Mrs. Cabara;

(4) Nutone Corporation was not liable to the plaintiffs under/or by virtue of the warranty agreement on the Nutone Security System;

(5) Mrs. Brenda Cabra was guilty of contributory negligence which was a cause of the accident, occurrence or loss;

(6) Mrs. Brenda Cabra’s negligence contributed 100% to the damages sustained;

(7) Edwin L. Cabra, individually and as administrator of the estate of his minor children, and Brenda Cabra, individually, were not entitled to damages against the defendants as a result of the fire.”

Since we have already expressed our agreement with the jury’s finding that Nu-tone is not liable to the Cabras under the warranty agreement nor by way of apparent authority, we need not address the question of Mrs. Cabra’s contributory negligence. Had Scott’s legal successor been substituted as a party defendant to this suit, it would have been a viable issue.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


text:
    Edwin L. CABRA, Individually and as Administrator of the Estate of the Minors, Lance Edwin Cabra and Emily Bree Cabra, and Brenda Cabra, Individually, Plaintiffs-Appellants, v. NUTONE CORPORATION, A DIVISION OF SCOVILL MANUFACTURING CO., et al., Defendants-Appellees.
    No. 83-1107.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, for plaintiff-appellant.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for plaintiff-appellee-appellant.
    Bolen & Erwin, Ltd., Greg S. Erwin and John B. Honeycutt, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

For the reasons stated in the companion case of CNA Insurance Company v. Nutone Corporation, A Division of Scovill Manufacturing Co., et al., 461 So.2d 518 (La.App. 3rd Cir.1984), in which a separate decision is being rendered by us this day, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.


author: LABORDE, Judge.

text:
    Audrey LEWIS, Plaintiff-Appellant, v. Otis OUBRE and State Farm Fire and Casualty Company, Defendants-Appellees.
    No. 83-1134.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writs Denied March 22, 1985.

      Armentor & Wattigny, David W. Groner, New Iberia, for plaintiff-appellant.
    Roy, Forrest & Lopresto, L. Albert Forrest, New Iberia, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

This is a slip and fall case. Plaintiff, Audrey Lewis, instituted this suit against defendants, Otis Oubre, owner of the premises where the incident occurred, and his insurer State Farm Fire & Casualty Company, to recover damages sustained when she slipped on defendant’s carport. The trial court dismissed plaintiff’s suit after finding that the carport did not pose an “unreasonable risk of harm” to plaintiff and that the Oubres were not negligent. We affirm.

FACTS

Audrey Lewis was employed as a substitute sitter for the elderly and now deceased Mr. Oubre. She assisted Mr. Oubre in his room with medication, personal hygiene and other related errands. Audrey was then 59 years old and was paid $3.35 per hour for these services.

On March 10,1981, at approximately 3:00 p.m., Audrey left Mr. Oubre’s room. She went out of the kitchen and across the concrete driveway carrying a garbage can to be emptied. After emptying the garbage, she returned up the driveway. Upon reaching the carport, between the driveway and kitchen door, she slipped on the damp, slick carport, catching the bumper of defendant’s car to break the fall. She allegedly twisted her back in the process and upon landing, seriously injured her lower back.

The defendant’s carport is concrete with a smooth “trowelled” finish to which a sealer has been applied. The sealer constitutes the sheen or glossy appearance giving rise to a slippery surface. It is difficult to discern whether the carport is wet or dry because of the effect of the sealer. On the day of the accident, it was reported that the carport surface was moist or damp because of humid weather conditions typical in South Louisiana.

Plaintiff’s slip and fall allegedly caused her back injury which resulted in back surgery, i.e., a partial hemilaminectomy of the L4-L5 disc on the right. She contends that defendants are liable for her injuries on the theory of strict liability and/or negligence. The trial court dismissed her claim after finding that the carport did not constitute an unreasonable risk of harm to her, nor that the defendant, Oubre, was negligent. This appeal followed.

At trial, the parties stipulated to the dismissal of plaintiff’s workman’s compensation claim and to all claims against the Oubres individually. This action was maintained only against the defendant homeowner insurer.

ISSUE

The dispositive issue on appeal is whether the condition of the carport constituted an unreasonable risk of harm to plaintiff or whether defendants were negligent in exposing her to the risk of harm from which she allegedly suffered.

STRICT LIABILITY OF A HOMEOWNER

In order for a plaintiff to recover under LSA-C.C. articles 2317 and 2322 against the owner of a building, the injured person must prove that the building or its appurtenances posed an unreasonable risk of injury to others, and that the risk of harm was the cause-in-fact of the alleged injury and resulting damages. Upon proof of these elements, the owner is responsible for the damages, unless he proves by exculpatory evidence that the injury was caused, in part or in whole, by the fault of the victim, by the fault of a third person, or, by an irresistible force. The owner cannot exculpate himself by alleging his ignorance of the dangerous condition, nor by circumstances that the defect or vice could not be easily detected. The owner of a building has the non-delegable duty to keep his building and its appurtenances in repair, or in a condition, so as to avoid the unreasonable risks of injury to others. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979); Loescher v. Parr, 324 So.2d 441 (La.1975).

In this instance, the trial judge recognized and applied the correct legal principles and concluded that the defendant’s carport surface did not constitute an unreasonable hazard or risk of harm to plaintiff. It was encumbent upon plaintiff to show by a preponderance of the evidence that her injuries were caused by a quality of the building that posed an unreasonable risk of harm to her. We now proceed to determine whether the trial judge’s application of these principles and factual determinations were warranted by the evidence.

In Entrevia v. Hood, 427 So.2d 1146 (La.1983), the Supreme Court stated:

“The requirement that an injured person in order to recover under Article 2317 or 2322 must prove that the risk from which his damage resulted posed an unreasonable risk of harm places a limitation on a building owner’s strict liability. He cannot be held responsible for all injuries resulting from any risk posed by his building, only those caused by an unreasonable risk of harm to others."

Id. at 1149 (emphasis added).

After considering the facts, the trial judge held that the risk of harm posed by the surface of the carport did not present an “unreasonable” risk of harm. After reviewing the circumstances peculiar to this case, we agree. Plaintiff was very familiar with the condition of the carport and had traversed it several times that morning. Mrs. Oubre testified that plaintiff’s fall was the first and only incident occurring on the carport. The area where the fall occurred was under a roof and enclosed on two sides. The “trowelled” finish is apparently slick because of the very evident glossy appearance. The moisture or dampness which allegedly accumulated by the time of the accident is a common occurrence in the humid areas of Louisiana. These conditions are virtually unavoidable at times and in most instances cannot be prevented by the owner of an open slab or concrete surface resting on the soil.

The activities of a defendant for which he may be held liable without acting negligently are to be determined after a study of the law and customs, a balancing of claims and interests, a weighing of the risk of harm against the magnitude and likelihood of harm, and a consideration of individual and societal obligations. Entrevia v. Hood, supra; Langlois v. Allied Chemical Corporation, 258 La. 1067, 1084, 249 So.2d 133, 140 (La.1971).

After conducting a review of the record, with our focus upon the customs, standards and patterns of utility, we do not find the “sealed” carport surface in this isolated instance to be unreasonably dangerous. The magnitude and likelihood of harm presented by the slab, in this limited instance, does not outweigh the social utility and benefit to society. The facts indicate that the magnitude of the risk posed, and the gravity of the harm threatened, are nominal in comparison with that of other risks presented by things and objects in our society. See Entrevia v. Hood, supra. Accordingly, although the sealed slab may in fact be dangerous, we do not find that such danger was of a magnitude that it would be “unreasonably dangerous.” For this reason, plaintiff may not recover under the theory of strict liability.

NEGLIGENCE

In determining whether defendant was negligent, we will first determine defendant’s duty to plaintiff, if any in this instance. This is a question of law which involves weighing of the standards and patterns of utility, and the magnitude of harm in the basic Duty/Risk analysis. This is similar to the determination of “unreasonable risk of harm” in a strict liability case as we have discussed above. See Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). For the policy reasons considered above, we find that the maintenance of an open concrete carport, with a “sealed” surface, does not violate any duty owed to plaintiff. Plaintiff had traversed the carport several times, and was well aware of the condition of the carport without necessity of warning. It is inescapable that even the most reasonable and prudent owners of an open concrete slab may experience accumulations of moisture or dampness on the surface of the slabs given our humid weather conditions. Our imposition of a legal duty for a homeowner to protect others from these natural accumulations would be unreasonable. The burden would be too great. Therefore, defendant did not owe a duty to plaintiff to protect her from the condition of the carport in this isolated instance. Since defendant did not owe plaintiff a duty to protect her from the damp carport, and since plaintiff had knowledge of the condition, we find that defendant was not negligent.

Accordingly, for the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant, Audrey Lewis.

AFFIRMED.


author: YELVERTON, Judge.

text:
    DANIEL OIL COMPANY, et al., Plaintiffs-Appellants, v. SIGNAL RENTAL TOOLS & OILFIELD SERVICE, INC., et al., Defendants-Appellees.
    No. 83-1150.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.

      André J. Mouledoux, New Orleans, for plaintiffs-appellants.
    Donald A. Hammett, William B. Gaudet and Mark J. Spansel, of Adams & Reese, Faris, Ellis, Cutrone, Gilmore & Lauten-schlaeger, Clarence A. Frost, New Orleans, for defendants-appellees.
    Before LABORDE, DOUCET and YlL-VERTON, JJ.
   YELVERTON, Judge.

Daniel Oil Company and other working interest owners in an oil well, having sued two defendants and their insurers for damages caused by a well blowout, appeal a summary judgment dismissal of one defendant, Tesoro Land & Marine Rental Company, contending that the evidence does not support a summary judgment in that defendant’s favor. We agree, and reverse and remand for further proceedings.

Plaintiffs filed suit against Signal Rental Tools & Oilfield Services, Inc. (Signal), and Tesoro Land & Marine Rental Co. (Tesoro), and their insurers. The petition alleged that the plaintiffs were working interest owners in certain mineral leases which comprised the North Roanoke Prospect on which the Cook No. 1 Well was drilled in Jefferson Davis Parish; that in connection with the drilling of the well, defendant Signal rented and/or leased to Daniel Oil Company certain tubing which was placed in the well; that Signal had rented and/or leased the tubing from Tesoro; that on June 2, 1981, the tubing leased from Signal failed, causing a blowout in the well; that the tubing was defective; and that the defendants were liable for damages in tort or under breach of contract. Tesoro answered generally denying the plaintiffs’ allegations. It further answered that the damage was caused by the plaintiffs’ negligence; that plaintiffs voluntarily assumed the risk; and that plaintiffs had waived any and all liability on the part of Signal and Tesoro and assumed liability for all losses such as claimed in the petition.

Tesoro then also filed a motion for summary judgment, alleging that the terms of the lease between Tesoro and Signal included a waiver of liability in which Signal assumed all liability arising out of the lease, including liability arising out of torts or breach of contract. Signal, and its insurer, likewise filed motions for summary judgment alleging Signal gave no express or implied warranties in connection with the furnishing of materials to Daniel Oil. The motions were heard, and the district court granted Tesoro’s motion for summary judgment, dismissing it from the lawsuit, but the court denied Signal’s motion for summary judgment.

The summary judgment for Tesoro was based on the following reasoning by the trial court: Signal leased the tubing from Tesoro, and Daniel Oil leased it from Signal. Consequently, Daniel Oil could have no greater rights against Tesoro than Signal had. Signal made a knowing waiver of all warranties when it leased the equipment from Tesoro. Therefore, Daniel Oil cannot assert any action against Tesoro.

Appellants contend on appeal that the waiver of warranty in the contract between Tesoro and Signal had no effect on the relationship between appellants and those parties. Appellants also argue that the summary judgment evidence does not foreclose their contract rights and tort claims against Tesoro, and that the summary judgment should not have been granted.

Before discussing these contentions we will first examine the summary judgment evidence, which consisted of affidavits and attached documents. The affidavit of M.E. Douglas, division manager of Tesoro, established that Tesoro rented tubing to Signal. The invoice, delivery ticket, and manual provided to Signal all contained waivers of warranty. After Tesoro transferred the tubing to Signal, Tesoro personnel did not have further contact with the tubing. Te-soro was not the manufacturer. Before the rental to Signal the tubing was visually inspected according to normal Tesoro procedure. The tubing was then pressure-tested by Cooper Testing. Then Tesoro had the tubing electronically tested for defects and thickness. The tubing again was visually inspected, and an inside diameter drift indicator was run through it to check for thickness of walls and mashed areas. According to this affiant, the tubing Signal leased from Tesoro consisted solely of joints that passed all of the foregoing tests and inspections.

The attached testing results by Cooper Testing show that the various joints were tested in April and May of 1981. (The tubing was put in plaintiffs well in early June 1981.) Of the 501 joints tested on April 10 and April 21 only 448 joints were found to be good. According to another April 24 report, of 363 joints tested, 11 were rejected and 352 were found to be premium although, of these, 50 tested crooked. In May, 42 joints were tested and only one was found to be crooked.

According to the affidavit of Henry C. Harrison, Jr., Signal’s .president, Signal is in the business of renting tools for energy purposes. In early 1981 he met with Fred Nassar of Daniel Oil in Houston to solicit business from Daniel for tool rentals in connection with drilling operations in the Lafayette area. At that time he gave Nas-sar a copy of the price list which set forth the terms and conditions of the rental of equipment. On various occasions after-wards, Signal leased equipment to Daniel Oil, and on each occasion the form used contained a waiver of warranty. On May 14, 1981, he received a call from Bob Babi-neaux, drilling foreman for Daniel Oil, who ordered certain equipment, including tubing, to be delivered on May 16. He advised Babineaux that Signal did not keep tubing in stock, and that it would have to be ordered from others and subleased to Daniel Oil. Babineaux replied that as long as the tubing had been tested, that was fine. The affiant called a representative of Teso-ro and was advised that tubing which had been tested was available and ready for use. He then ordered the tubing and subsequently received the test reports. He arranged for a trucking company to pick up the tubing from Tesoro on May 16. The truck then picked up additional equipment at Signal and delivered the whole load to the Cook No. 1 well site. After the tubing was delivered to Daniel Oil, the affiant said that Signal had no further contact with the tubing.

The exhibits show that Signal delivered 378 tubing joints to Daniel Oil on May 16, 1981. The delivery ticket from Tesoro shows that Tesoro rented the 378 tubing joints to Signal on that date.

The affidavit of A.M. Nassar, Vice President of Drilling & Production for Daniel Oil, indicated that in May 1981 he ordered for lease from Harrison of Signal certain oilfield equipment, including joints of tubing. He specifically instructed Harrison that all tubing must be electronically tested and approved before delivery and Harrison agreed to this condition. Affiant declared that he never was provided any electronic test certificates, although Mr. Harrison assured him that the tubing had been tested. After the blowout, the test certificates received from Signal indicated the tubing had not been electronically tested, and Harrison informed him of this and acknowledged that the tubing should have been electronically tested.

Nassar’s affidavit went on to say that after the blowout, the tubing provided by Signal was electronically tested by Plastic Applicators and numerous joints were found to be defective and unfit for use. He further stated that no operations performed on the well by Daniel Oil using the tubing could have contributed to a reduction in wall thickness or otherwise render the tubing unfit during the time of its possession.

The attached test certificates by Plastic Applicators indicated that 55 out of 282 joints tested were rejected as unfit.

The pleadings, and the above affidavits and exhibits, constitute the summary judgment evidence in the case, and it is on this evidence that we must determine whether there is a genuine issue as to material fact, and whether Tesoro was entitled to judgment as a matter of law. As this court stated in Chargois v. Trip-L-Quik, 441 So.2d 45 (La.App. 3rd Cir.1983):

A motion for summary judgment should be granted only if “... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), writ denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). Only when reasonable minds must inevitably concur, as a matter of law, on the facts before the court is a summary judgment warranted, and any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits. Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir.1980). The likelihood that a party will be unable to prove his allegations upon trial on the merits does not constitute a basis for rendering a summary judgment. Teledyne Movible Offshore, Inc. v. C & K Offshore Company, 376 So.2d 357 (La.App. 3rd Cir.1979).
On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence that material facts are still at issue, and only at this point may he no longer rest on the allegations and denials contained in his pleadings. Begnaud v. Pedestal Crane, Inc., 408 So.2d 24 (La.App. 3rd Cir.1981).

In the present case we are concerned with whether or not there is a genuine issue of material fact as regards appellants’ claims under breach of contract and in tort as against Tesoro.

. Regarding appellants’ claim under breach of contract, the facts are undisputed that Tesoro leased the tubing joints to Signal, that Daniel Oil was not a party to that contract, that Signal then leased the tubing joints to Daniel Oil, that Tesoro was not a party to that contract, and that there is no provision in the lease to Daniel Oil which operated as an assignment of Signal’s rights under its lease.

Daniel Oil is merely a sublessee of the tubing joints. The rights of a sublease are derived only from the terms of the sublease. Ducote v. Callico, 307 So.2d 644 (La.App. 4th Cir.1974), writ denied 309 So.2d 337 (La.1974). The sublease in question does not assign Signal’s rights against Tesoro to Daniel. Since there is no contractual relationship between the original lessor and the sublessee, Daniel Oil must assert its breach of contract claim against its lessor, Signal, only. See Audubon Hotel Co. v. Braunnig, 120 La. 1089, 46 So. 33 (1908); Berman v. Brown, 224 La. 619, 70 So.2d 433 (1953); Pepper v. Pyramid Oil & Gas Corporation, 287 So.2d 620 (La.App. 3rd Cir.1973). Daniel Oil has no contract claim against Tesoro.

Although a cause of action based on breach of contract does not exist, this does not preclude Daniel Oil from asserting a claim for damages based on tort against Tesoro. See Gurtler, Hebert and Company, Inc. v. Weyland Machine Shop, Inc., 405 So.2d 660 (La.App. 4th Cir.1981); writ denied 410 So.2d 1130 (La.1982). A subles-see has a direct action against the original lessor for his torts. Audubon Hotel Co. v. Braunnig, supra.

In the present case the plaintiffs have alleged that Tesoro is strictly liable for the property damage they suffered under the provision of LSA-C.C. Art. 2317 and under general allegations of negligence under LSA-C.C. Art. 2315. We now must determine whether a genuine issue of material fact exists as to these claims.

LSA-C.C. Art. 2317 provides in pertinent Part:

“Art. 2317. Acts of others and of things in custody.
“Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody....”

In Goudchaux v. State Farm Fire & Casualty Company, 407 So.2d 1317 (La. App. 3rd Cir.1981) this court stated:

“For recovery under LSA-C.C. Article 2317, a plaintiff must show: (1) that the thing which caused the injury was in the care or custody of the defendant/owner; (2) that a vice or defect existed in the thing; and, (3) that the vice or defect caused the injury. A vice or defect is defined as one which creates an unreasonable risk of injury to another. Loescher v. Parr, 324 So.2d 441. (La.1975); Reinhard v. City of New Orleans, 371 So.2d 286 (La.App. 4 Cir.1979).”

In the present case there are genuine issues of material fact as to whether a defect existed in the tubing joints and whether the defect, if any, caused the damage. Tesoro’s exhibits allege that the tubing joints passed all test inspections for defects. However, Daniel’s exhibits reveal a large part of the equipment, including the tubing joints placed in the well, were defective and unfit for use.

Tesoro contends that Daniel Oil had the care and custody of the equipment at the time of the accident; therefore, Tesoro contends it cannot, as a matter of law, be held responsible under LSA-C.C. Art. 2317. We disagree. There is a genuine issue of material fact as to whether Tesoro, or Daniel Oil, had the care and custody of the tubing joints, as demonstrated by the reasoning in the following two cases.

In Cardwell v. Jefferson Rentals Division of J-R Equipment Corporation Assurance Company, 379 So.2d 255 (La.App. 4th Cir.1979), writ application withdrawn, 382 So.2d 164 (La.1980), defendant had rented a chain hoist to another firm for use by its employees. One of the employees picked up the chain hoist from defendant one day for use the next morning. The chain hoist broke almost immediately after being put to use, causing injury to two persons. The court found the relationship between the lessee and the thing was insufficient to support a finding that the care and custody of the thing had been transferred from the lessor to the lessee.

Similarly, in Goudchaux v. State Farm Fire & Casualty Company, 407 So.2d 1317 (La.App. 3rd Cir.1981), a homeowner rented a sewer auger from a rental company to clear out some blockage in his sewer line. The auger was defective and a neighbor helping the homeowner use the machine was injured. The neighbor sued the homeowner under LSA-C.C. Art. 2317. The court found that the rental company, which had the responsibility for maintaining the machine, had the direction and control over the sewer auger and derived benefits from its rental, and, therefore, the homeowner’s relationship to the sewer auger was insufficient to result in the imposition of strict liability under LSA-C.C. 2317, even though he was in possession of the machine at the time of the accident and had used the machine prior to the accident.

In the present case it is clear that Tesoro had the responsibility for maintaining the tubing joints. However, the summary judgment facts do not show whether or not Daniel Oil’s possession and control of the joints was sufficient to say that there had been a transfer of the custody and care of the joints from Tesoro to either Signal or Daniel Oil. For this reason we find that the trial court erred in granting Tesoro’s motion for summary judgment. Because the summary judgment is being reversed for this reason alone, we pretermit a discussion as to Daniel’s claim against Tesoro based on negligence.

For these reasons, the summary judgment in favor of Tesoro is reversed, and the case is remanded to the trial court for further proceedings. Costs of this appeal are to be paid by Tesoro.

REVERSED AND REMANDED.


author: DOUCET, Judge.

text:
    W.C. LAMB, Plaintiff-Appellant, v. Helyn H. LAMB, Defendant-Appellee.
    No. 83-1156.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writs Denied March 15, 1985.

      Warren D. Rush, Lafayette, for defendant-appellant.
    J. Michael Artigue and Caliste, Beard, Lafayette, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   DOUCET, Judge.

Following an absolute divorce of the parties on June 3, 1983, resulting from two consolidated cases instituted by each party herein, Helyn Lamb filed this Rule seeking permanent alimony pursuant to La.C.C. Art. 160. From a judgment awarding Mrs. Lamb $3,000 per month of permanent alimony, both parties have appealed. Because the issues are identical in both of the consolidated eases, the case entitled Helyn Lamb v. W.C. Lamb, 461 So.2d 533, will be disposed of in this opinion.

The issues on this appeal are: (1) whether Mrs. Lamb waived her right to alimony by waiting to seek alimony in this rule rather than at the trial on the divorce; and (2) whether the trial court abused its discretion in fixing the amount of permanent alimony at $3,000 per month.

Mr. Lamb contends that the right to seek permanent alimony was waived by Mrs. Lamb because she did not pray for alimony at the divorce trial but rather seeks alimony improperly through summary proceedings. This contention is without merit. La.C.C.P. art. 2591(8) specifically authorizes use of summary proceedings as a means of obtaining an original grant of permanent alimony. Mrs. Lamb has properly used a Rule to Show Cause as her means for seeking permanent alimony pursuant to La.C.C.P. art. 2591(8). There was no waiver of the right to alimony by the use of summary proceedings for its enforcement subsequent to the adjudication of the issue of fault. See 460 So.2d 634.

The remaining issue on this appeal is the propriety of the award of $3,000 per month in permanent alimony by the trial court pursuant to La.C.C. art. 160. La.C.C. art. 160 provides for “support” to be furnished by one spouse to the other spouse who has insufficient means for her “support”. Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981). The term “support” has been interpreted to include food, clothing, and shelter as well as reasonable and necessary transportation expenses, utility expenses, medical and drug expenses, household expenses and income tax liability generated by the alimony payments. Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir.1980); Freet v. Freet, 442 So.2d 1366 (La.App. 3rd Cir.1983). Among the factors to be considered in determining the entitlement and the amount of alimony are the financial obligations and the health and age of the spouse in need. See La.C.C. art. 160.

Mrs. Lamb contends that in light of her outstanding financial obligations along with her health problems, the amount fixed by the trial court is wholly inadequate to provide her with maintenance and support. On the other hand Mr. Lamb contends that the evidence of Mrs. Lamb’s needs included many items which are not expenses which are to be considered in determining the amount of permanent alimony. Mr. Lamb points out that Mrs. Lamb submitted the same list of expenses used for the determination of temporary alimony pursuant to La.C.C. art. 148 that she submitted in this case. Both parties argue that the trial court abused its discretion in fixing permanent alimony for their respective reasons.

Much discretion is vested in the trial court in determining the amount of permanent alimony. Only if the judge has abused his discretion and gone beyond the acceptable range of alimony awards is the award to be adjusted or renewed. Buxton v. Buxton, 411 So.2d 1273 (La.App. 3rd Cir.1982). Although the itemized list submitted by Mrs. Lamb included items which are not to be considered as proper expenses. The evidence as a whole supports the trial court’s determination of $3,000 per month in permanent alimony. The trial court obviously disregarded listed items which are not properly within the ambit of “support” and fixed the amount on the basis of legitimate expenses and legitimate outstanding debts of Mrs. Lamb. From our review of the record we cannot say that the trial court abused its discretion in determining the amount of permanent alimony.

For the foregoing reasons, the trial court’s judgment is affirmed. Each party is equally cast with the costs of this appeal.

AFFIRMED.

      . La.C.C.P. art. 2591 Use of Summary Proceedings.
      Summary proceedings may be used for trial or disposition of the following matters only: (8) The original granting of, subsequent change in. or termination of, child custody, alimony, child support in behalf of minor children, and support between ascendents and descendents ... (emphasis added)'


text:
    Helyn H. LAMB, Plaintiff-Appellee, v. W.C. LAMB, Defendant-Appellant.
    No. 83-1155.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writs Denied March 15, 1985.
    Warren D. Rush, Lafayette, for defendant-appellant.
    J. Michael Artigue and Caliste, Beard, Lafayette, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

For the reasons assigned in the matter entitled W.C. Lamb v. Helyn H. Lamb, 461 So.2d 531 (La.App. 3rd Cir.1984), our Docket Number 83-1156, this case is affirmed, and both parties are cast with the costs of this appeal.

AFFIRMED.


author: CUTRER, Judge.

text:
    Oscar SYLVESTER, Jr., Plaintiff-Appellant, v. ST. LANDRY PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 83-1162.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied Feb. 4, 1985.
    Before FORET, CUTRER and CULPEP-PER , JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

For the reasons assigned in Oscar Sylvester, Jr. v. St. Landry Police Jury, et al., 461 So.2d 533 (La.App. 3rd Cir.1984), the judgment of the trial court is reversed and a tacit dedication to public use is declared of the roadway known as “Oscar Sylvester Road,” or Parish Road Number 6-245, traversing the property of Milbert St. Amand.

All costs are assessed against Milbert St. Amand and the St. Landry Parish Police Jury, with each to pay one-half of such costs.

REVERSED.


text:
    Oscar SYLVESTER, Jr., Plaintiff-Appellant, v. ST. LANDRY PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 83-1161.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      C. Brent Cored, Ville Platte, for plaintiff-appellant.
    Young & Burson, I.J. Burson, Jr., Eunice, Edwards, Stefanski & Barousse, Christopher A. Edwards, Crowley, Kermit Dou-cet, Lafayette, for defendants-appellees.
    Before FORET, CUTRER and CULPEP-PER , JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

This case was consolidated for trial with the suit of Oscar Sylvester, Jr. v. St. Landry Parish Police Jury, et al, Number 83-1162 on the docket of this court. These declaratory judgment suits remained consolidated on appeal and, since the law and relevant facts are common to both, our opinion here is equally applicable. However, we render a separate judgment in the consolidated case of Oscar Sylvester, Jr. v. St. Landry Parish Police Jury, et al., 461 So.2d 534 (La.App. 3rd Cir.1984).

These two consolidated suits have previously been appealed and considered by this court. The procedural, complexities of the cases are such that we shall reiterate, in part, the principal procedural activities as set forth by us in the prior appeals. We feel that this will be beneficial in clarifying these appeals.

“Oscar Sylvester, Jr., owns a tract of land in the northwest corner of St. Landry Parish. The only access to his property is by gravel road commonly referred to as ‘Oscar Sylvester Road’ but designated on the highway map of St. Landry Parish as ‘Parish Road 5-245.’ This road traversed property owned by Milbert St. Amand (the pleadings erroneously refer to him as Milburn St. Amand).
“On July 6, 1977, the Police Jury, by resolution, declared Road 5-245 a public road and also expressed the intention of maintaining it. On July 28, 1978, Sylvester filed a suit for a declaratory judgment seeking to have Road 5-245 declared a public road pursuant to LSA-R.S. 48:491, or, alternatively to have a servitude of passage by ten years acquisitive prescription recognized in his favor. Defendants in that suit were St. Amand and the Police Jury. After the suit was filed, the Police Jury, on September 6, 1978, by resolution declared Road 5-245 to be a private road.
“On June 1, 1979, Sylvester filed a ‘Petition for a Writ of Injunction’ seeking a temporary restraining order and preliminary injunction to prevent St. Amand from constructing a gate or fence across the road which would prevent Sylvester’s access to his property. The petition for injunction alleged that St. Amand had begun the construction of a gate across the road and that an injunction was necessary to prevent such action since the previously filed petition for a declaratory judgment was pending. Such litigation was filed for the purpose of determining whether the road was public or private. A temporary restraining order was issued and a hearing date set; however, the parties entered into a ‘Consent and Stipulated Judgment.’ The substance of the judgment was that St. Amand granted Sylvester the use of the road for passage to and from his farm for an annual consideration of $2,500.00. This judgment was signed June 25, 1979.
“On July 6, 1979, Sylvester filed this second ‘Suit for Declaratory Judgment and for Damages,’ alleging the public nature of Road 5-245. The petition also alleged that the Police Jury had, by resolution, abandoned Road 5-245 on April 3, 1979. The petition attacks the validity of that resolution.”

On appeal, we reversed the trial court judgment granting St. Amand’s exception of res judicata and remanded the suits for trial on the merits.

After remand, the trial court rendered judgment dismissing both of Sylvester’s suits on the ground that the roadway in question was private and had not become a public road by virtue of three years maintenance of the Police Jury. Sylvester appeals in both suits. We reverse.

The substantial issue presented in these cases are whether the road in question had become a public road by virtue of three years maintenance by the Police Jury and tacitly dedicated under the provisions of LSA-R.S. 48:491, which reads as follows:

“All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish government authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be...”

Deciding whether a road is public or private is a factual decision. The question of whether a public body has maintained a road, so as to amount to a tacit dedication thereof as public, is one of degree.

We shall examine the evidence to determine whether the trial court was manifestly erroneous when he concluded that the Police Jury’s maintenance of the road in question was only “sporadic, intermittent and minimal” and did not amount to a tacit dedication of the road.

St. Amand owned approximately 473 acres of land on March 25, 1950, which land fronted on Louisiana Highway 29. Sylvester purchased a large tract of land in 1953, which was to the rear of the St. Amand property and did not front on Louisiana Highway 29. Sylvester could have installed another route to gain access to the highway, but he preferred a route across St. Amand’s property to gain access to Louisiana 29. Sylvester asked St. Amand for a right-of-way across his land to reach the highway. St. Amand gave him oral permission to install a road and maintain it.

The right-of-way requested by Sylvester was an old roadway which had not been used for many years. Sylvester cleared the old roadway, built a bridge and added gravel to the surface. The right-of-way was approximately one and one-half miles in length.

Lee Richard, a police juror from 1964 until 1972, stated that the roadway was located in the ward from which he was elected. The police jury was working on a “ward system.” Each juror was responsible for the maintenance of the roads in his particular ward. He stated that, at Sylvester’s request, his grader operator began grading the road. He testified that it was the practice of the Police Jury to help farmers by grading their farm roads.

Felton Carrier was a motor grader during the time Lee Richard was police juror. Carrier testified that he worked for the Police Jury from 1964 until 1972. During this time he operated a grader in the ward represented by Lee Richard. Carrier stated that he worked the road in question by grading it every 60 to 90 days for the eight years he was employed by the Police Jury. He stated that no one told him not to grade the road. He had not discussed the maintenance with St. Amand or Sylvester.

George Buller was a police juror from 1952 to 1977. By virtue of a reapportionment in 1972, the road in question came under his jurisdiction. Also, Buller was parish manager from 1966 to 1977. He stated that he had the road graded every 60 to 90 days during those years. The road was gravel and he applied gravel on two occasions during 1976 and 1977.

Lawrence Leger farmed on land owned by Sylvester. He had farmed the land for twelve years and had moved his family into a house on the roadway in 1976. He stated that a police jury graded the road several times per year for several years before 1977. Leger testified that the roadway was used by him and his family. Also, two other families, who worked for Leger used the road. The road served the farming operations which included a commercial crawfish lake and a hunting camp. Various members of the public utilized these facilities.

Floyd Charles operated a motor grader during the years of 1972 through 1982. He worked under the direction of George Bul-ler. He stated that he graded the road four or five times per year. However, he was not aware of the installation of gravel.

Milbert St. Amand admitted that the Police Jury had worked upon the road by grading it. He stated that the road was usually pretty smooth. He maintained that the work was done as a favor to Sylvester and he did not intend that the road be a public road.

Oscar Sylvester testified that the Police Jury started helping him maintain the road in the latter part of the 1950’s and continued until it was stopped by St. Amand in 1977. He stated that it was graded approximately every two months.

We also note that, in the early 1970’s, a road numbering plan was prepared by engineers for the Parish of St. Landry. The roadway in question was designated by the engineers as Parish Road Number 5-245.

On May 4, 1977, St. Amand, through his attorney, notified the Police Jury by letter that the jury was not to maintain the road as he did not want it to become a public road. This is the first formal objection made by St. Amand. Prior to 1977, he had made some verbal objection to Lee Richard in the 1960’s but it is unclear if other objections were made by St. Amand to the maintenance.

The trial court held that the grading of the road amounted to no more than a brushing up or a token maintenance, citing Bordelon v. Heard, 33 So.2d 88 (La.App. 1st Cir.1947), and Jackson v. Town of Logansport, 322 So.2d 281 (La.App. 2nd Cir.1975). In Bordelon, there was an occasional grading of the road but this maintenance had been practically discontinued several years before the suit as the result of the installation of another gravel road. The court held that this did not constitute three year maintenance by the Police Jury. In Jackson, a short roadway connecting two streets, which had been mowed once a year and two loads of dirt dumped thereon, did not constitute three year maintenance so as to convert it to a public street.

Jackson and Bordelon are clearly distinguishable from the facts at hand. Under the facts of this case we cannot classify the maintenance here as “token.” The evidence clearly reflects that grading of the road was carried out, beginning in the 1960’s, and continued up until this controversy arose in 1977. The estimates of the amount of grading vary but it was performed at least three to four times per year. Some gravel was placed upon the road. Also, the road was in continuous use by members of the public. The families living on the road and persons who participated in the commercial crawfishing and hunting on the farm used the road.

In the case of Boynton v. Bertrand, 309 So.2d 769 (La.App. 3rd Cir.1975), the police jury graded the road three times per year for twelve years plus some cleaning of ditches. The court held that the road was a public road. See the similar cases of Trahan v. Fontenot, 380 So.2d 1240 (La.App. 3rd Cir.1980); Beard v. Beauregard Parish Police Jury, 378 So.2d 625 (La.App. 3rd Cir.1979), writ refused, 380 So.2d 101 (La.1980); Mouton v. Bourque, 253 So.2d 689 (La.App. 3rd Cir.1971); Latour v. Du puis, 164 So.2d 620 (La.App. 3rd Cir.1964); and Curtis v. Goebel, 101 So.2d 462 (La.App. 1st Cir.1958).

We conclude that the trial court erred in holding that the maintenance was insufficient to amount to a tacit dedication by three years maintenance by the Police Jury. We hold that the substantial maintenance by the Police Jury amounted to a tacit dedication of the roadway which became public and not private.

The second issue to be determined by us is whether the resolution adopted by the Police Jury on April 2, 1979, was effective.

By 1979, Sharon Lee had become a member of the Police Jury. He replaced Buller who had retired. Sharon Lee is the nephew of St. Amand’s wife. On April 2, 1979, after this litigation had begun, Sharon Lee was requested by St. Amand and his attorney to introduce a resolution, for adoption by the Police Jury, which would have the effect of abandoning the roadway in question. This procedure is authorized by LSA-R.S. 48:701.

Lee had the secretary of the Police Jury to make the proper advertisements of the Police Jury’s intention to abandon the road. After the timely advertisements were made, the resolution was presented to the Police Jury for adoption.

Sharon Lee testified that St. Amand and his attorney had requested the abandonment resolution. He also stated that he felt that the roadway should not be declared a public road as the land was owned by St. Amand. The resolution was presented by Sharon Lee to the other members of the Police Jury. He explained to them that his ward lacked funds to continue maintenance of the roadway in question. He stated that he needed the money for other parish roads which were more heavily populated. The resolution passed unanimously with one juror absent.

Ten of the twelve members of the Police Jury testified. The substance of the testimony of each was that, when a resolution, such as the one presented by Sharon Lee, was presented, they would defer to his request and reasons without making any further individual inquiry into the reason for the abandonment. Practically none of the jurors who testified were acquainted with the road. They had not inspected it. Also, they were not made aware that the road was involved in litigation. They stated that, if they had been better informed, they would have probably voted differently-

Counsel for Sylvester, citing the case of Luneau v. Avoyelles Parish Police Jury, 196 So.2d 631 (La.App. 3rd Cir.1967), contends that the abandonment of the roadway was arbitrary and should be set aside.

In Luneau, this court set forth the following criteria for determining whether an abandonment was arbitrary or capricious:

“Under the jurisprudence of this state, any interested party may challenge as unreasonable and arbitrary the abandonment of a public roadway by the governing body of a parish or municipality. State ex rel. Torrance v. City of Shreveport, 231 La. 840, 93 So.2d 187 (1957); Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App. 2d Cir.1960); Comment, 16 La.L.Rev. 521. In reviewing the decisions of parish or municipal bodies, however, the courts require that the plaintiff allege and prove that the action of the governing body was capricious or arbitrary or based upon substantially incomplete or incorrect information. Caz-Perk Realty, Inc. v. Police Jury of East Baton Rouge Parish, 213 La. 935, 35 So.2d 860 (1948). Thus the court, at the instance of an interested party, may examine the circumstances surrounding the abandonment of a permanent roadway to determine whether at the time of the governing body’s decision to abandon the road the roadway has been abandoned or is no longer needed for public purposes. R.S. 48:701.”

As we examine the testimony of the police jurors who testified as to the adoption of the resolution of abandonment, we find that it is clear that the action of the jury was arbitrary or capricious. The members, other than Sharon Lee, voted for the abandonment without any knowledge of the circumstances surrounding the roadway in question. They voted for it simply because it was recommended by Sharon Lee in whose ward the roadway was located. It is clear that the governing body’s decision to abandon the roadway was made without any information as to whether it was being used for public purposes.

LSA-R.S. 48:701 authorizes a parish governing authority to abandon parish public roads when those roads are no longer needed for a public purpose. In the case at hand, the use of the land by the public was continuing and had not diminished. Under these circumstances, the resolution of April 2, 1979, abandoning the road in question, is arbitrary and shall be set aside. The trial court erred when it ruled that this resolution would remain effective.

We find that the requisites of LSA-R.S. 48:491 were met for a tacit dedication of this roadway as a public road, and that the resolution of abandonment was arbitrary and shall be set aside. Thus, the judgment of the trial court shall be reversed.

For these reasons, the judgment of the trial court is reversed and a tacit dedication to public use is declared of the roadway known as “Oscar Sylvester Road,” or Parish Road Number 5-245, traversing the property of Milbert St. Amand.

All costs are assessed against Milbert St. Amand and the St. Landry Parish Police Jury, with each to pay one-half of such costs.

REVERSED.

      . Sylvester v. St. Landry Parish Police Jury, 414 So.2d 793 (La.App. 3rd Cir.1982); Sylvester v. St. Landry Parish Police Jury, 414 So.2d 796 (La.App. 3rd Cir.1982).


author: FORET, Judge.

text:
    Cecil HOLLEY and Elaine Holley, Plaintiffs-Appellants, v. Anthony J. PALERMO, and Palermo Construction Company, Inc., Defendants-Appellees.
    No. 84-10.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.

      Steven Broussard and Robert L. Coll-ings, Lake Charles, for plaintiffs-appellants.
    Daniel K. Rester, Lake Charles, for defendants-appellees.
    Before FORET, CUTRER and CULPEP-PER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

Plaintiffs, Cecil Holley and Elaine Holley, filed suit against defendants, Anthony J. Palermo and Palermo Construction Company, Inc., for rescission of the sale of the home constructed by defendant corporation or, in the alternative, seeking to recover damages for defendants’ breach of a construction contract. Defendant, Anthony J. Palermo, filed a motion for summary judgment asking to be dismissed from the suit. Plaintiffs filed a motion to strike the motion for summary judgment or, in the alternative, the affidavit filed along with it, based on their contention that defendant had failed to answer interrogatories which would have provided information pertinent to his motion for summary judgment. After a hearing on both motions, the trial court overruled plaintiffs’ motion to strike and granted defendants’ motion for summary judgment, dismissing defendant, Anthony J. Palermo, from the suit without prejudice.

Plaintiffs have appealed the lower court’s ruling and presented this Court with two issues:

(1) Whether the court erred in overruling plaintiffs’ motion to strike defendants’ motion for summary judgment or, in the alternative, the affidavit filed along with it, and;
(2) Whether the court erred in granting defendant, Anthony J. Palermo’s, motion for summary judgment, dismissing him from the suit.

FACTS

Plaintiffs, Cecil Holley and Elaine Holley, contracted with defendant corporation, Palermo Construction Company, Inc., for the construction of a home. The home was built and the money due defendant corporation for its work was paid by plaintiffs. More than a year after the completion of the home, defendants began to experience problems with the home due to “settling”. These problems included such things as cracks in the slab and walls of the home, detached sheetrock, misaligned doors, and broken bricks. Soon thereafter, plaintiff contacted defendant and defendant made some repairs to the home at no cost to plaintiffs. The problems, however, continued.

On June 3, 1983, plaintiffs filed suit against Anthony J. Palermo and Palermo Construction Company, Inc., seeking either to rescind the sale of the home and to collect damages resulting from that sale or, in the alternative, to collect damages for breach of the construction contract. After some1 initial exceptions were filed and disposed of, defendant, Anthony J. Palermo, filed a motion for summary judgment asking the court to dismiss him from the suit. Plaintiff responded with a motion to strike defendant’s motion for summary judgment or, in the alternative, the affidavit filed along with it. Plaintiffs claimed the defendant had failed to answer two interrogatories put to him and that the answers to these interrogatories would have been pertinent to defendant’s motion for summary judgment. The interrogatories had asked for the amount that each contributor had put into the corporation at the time of incorporation and the amount of earnings which were retained within the corporation each year since the business’s incorporation.

After a hearing, the court overruled plaintiffs’ motion to strike and sustained defendant’s motion for summary judgment, dismissing defendant, Anthony J. Palermo, from the suit without prejudice.

PLAINTIFFS’ MOTION TO STRIKE

Plaintiffs contend that the trial court erred in overruling their motion to strike. They maintain that defendant had failed to answer certain interrogatories and that the answers to these interrogatories would have been pertinent to his motion for summary judgment. They argue that, as a sanction for defendant’s failure to answer these interrogatories, the court should have sustained their motion to strike defendant’s motion for summary judgment or, in the alternative, the affidavit filed in support of it.

LSA-C.C.P. Art. 1471 sets forth the sanctions which a court may impose when a party fails to comply with requests for discoverable information or documents. Although Art. 1471 provides that a court may order the striking out of pleadings or parts thereof, the article authorizes such an order only where the offending party has failed to comply with an order to compel discovery. There are three steps prerequisite to the imposition of the sanctions of Article 1471. First, the party seeking discovery must file a motion to compel discovery. Second, the court must issue an order compelling discovery. Finally, the party from whom discovery is sought must fail to comply with that order. When defendant failed to answer interrogatories addressed to him, plaintiffs should have filed a motion to compel discovery. If the court had then ordered defendant to provide answers to the interrogatories and defendant had refused, the court could have imposed the sanctions of Art. 1471. The fact remains that plaintiffs never filed a motion to compel discovery and, therefore, the court acted properly when it overruled plaintiffs motion to strike.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

A motion for summary judgment should only be granted if there is no genuine issue of material fact. LSA-C.C.P. Art. 966. Any doubt as to the appropriateness of a summary judgment should be resolved in favor of a trial on the merits. Verrett v. Cameron Telephone Company, 417 So.2d 1319 (La.App. 3 Cir.1982); Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). Additionally, a court should scrutinize the papers supporting the position of the party moving for a summary judgment while treating with indulgence those of the opposing, party. Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981).

In the case before us, defendant, Anthony J. Palermo, bases his motion for summary judgment on the grounds that plaintiffs had contracted with defendant corporation and that he, defendant, was not individually liable for the corporation’s obligations. In his brief, defendant correctly points out that the general rule is that shareholders are not liable for corporate debts. American Bank of Welch v. Smith Aviation, 433 So.2d 750 (La.App. 3 Cir.1983); Buckeye Cotton Oil Company v. Amrhein, 168 La. 139, 121 So. 602 (La.1929). Nevertheless, there are exceptions to this general rule. Under certain circumstances, a creditor may “pierce the corporate veil” and reach the corporation’s stockholders. One such situation arises when a shareholder, acting through the corporation, defrauds or deceives a third party. LSA-R.S. 12:95; American Bank of Welch v. Smith Aviation, supra; Kingsman Enterprises, Inc. v. Bakerfield Electric Company, Inc., 339 So.2d 1280 (La.App. 1 Cir.1976). In the absence of fraud, a creditor may pierce the corporate veil where the shareholder has not conducted corporate business on a corporate footing but has disregarded the corporate entity to such an extent that the corporation has ceased to be distinguishable from its shareholders. American Bank of Welch v. Smith Aviation, supra; Youngblood v. Dettenheim, 352 So.2d 265 (La.App. 2 Cir.1977); Kingsman Enterprises, Inc. v. Bakerfield Electric Company, Inc., supra.

The decision to ignore the corporate entity is based on the totality of the circumstances. Some factors which may justify the piercing of the corporate veil are: the co-mingling of corporate and shareholders’ funds; the failure to follow the statutory formalities for incorporation in the transaction of corporate affairs; undercapitalization; failure to provide separate bank accounts and bookkeeping records; and failure to hold regular shareholders and directors meetings. American Bank of Welch v. Smith Aviation, supra; Kingsman Enterprises, Inc. v. Bakerfield Electric Company, Inc., supra.

In their petition, plaintiffs set forth several grounds for piercing the corporate veil: the corporation was defendant’s alter ego, corporate assets were co-mingled with defendant’s individual assets, the corporation was undercapitalized, the statutory formalities for incorporation were not followed, and fraud was perpetrated against them by defendant acting through the corporation.

In their affidavits filed in opposition to defendant’s motion for summary judgment, plaintiffs alleged that defendant “always spoke and handled things as if he were performing under the contract on a personal basis”. Also, according to plaintiffs, they made two of the payments for the home in cash to defendant and, a third by a cashier’s check payable to defendant.

Defendant’s affidavit and supporting documents do show that defendant deposited the payments he received from plaintiffs in the corporation’s bank account. However, as to any other corporate funds, defendant’s affidavit and supporting documents are silent. The mere fact that the proceeds from this one contract were not co-mingled is not sufficient to refute plaintiffs’ allegation of co-mingling. To pierce the corporate veil, there is no requirement that the co-mingling involved funds received from the creditor attempting to impose liability upon the shareholders. As to plaintiffs’ charge that the corporation was undercapitalized, defendant’s only attempt to refute this charge is his answer to an interrogatory in which he claims that the value of the corporation is $20,000. Defendant makes no attempt to show that this amount is sufficient capitalization for a corporation of the size and type of defendant corporation. Whether $20,000 represents sufficient capitalization is a material issue of fact which is in dispute. Finally, defendant makes no attempt to show that regular directors and stockholders meetings have been held.

The trier of fact must consider a number of factors in determining whether or not the business of defendant corporation was conducted on a corporate footing. Defendant’s affidavits and supporting documentation are silent as to a number of these factors. After having considered the evidence before us, we find that a genuine issue of fact remains as to whether or not the business of defendant corporation was conducted on a corporate footing. We are forced to conclude that the trial court erred in granting defendant’s motion for summary judgment.

DECREE

For the foregoing reasons, the summary judgment granted by the trial court is reversed and the case is remanded for further trial on the merits.

Costs of this appeal are taxed against the defendants-appellees; all other costs are to await the final disposition of this case.

REVERSED AND REMANDED.