author: VICTORY, J. KNOLL, J.,

text:
    Arlene CHAMBERS v. VILLAGE OF MOREAUVILLE.
    No. 2011-C-898.
    Supreme Court of Louisiana.
    Jan. 24, 2012.

      Karen Day White, for Applicant.
    The Law Offices of Darrel D. Ryland, Darrel Dee Ryland, Marksville, LA, for Respondent.
   VICTORY, J.

hWe granted a writ in this personal injury case to determine whether the Village of Moreauville (“Moreauville”) breached its duty to keep its sidewalk in a reasonably safe condition. The specific issue is whether a one-and-one-quarter to. one- and-one-half inch deviation created an unreasonable risk of harm. After review of the record and the applicable law, we find Moreauville’s failure to repair the deviation did not amount to a breach of its duty to keep its sidewalk in a reasonably safe condition. Therefore, we reverse the judgments of the lower courts and render judgment in favor of the defendant.

FACTS AND PROCEDURAL HISTORY

On April 19, 2008, Arlene Chambers (“Chambers”) and a friend, Annette Bowman (“Bowman”), were walking from a former co-worker’s funeral at Simpson Baptist Church to Chambers’ home. Although they were driven to the church by a friend, they decided to walk the seven-tenths of a mile to Chambers’ home, where Bowman’s car was parked. During most of this walk, Bowman walked slightly in front of Chambers on the left portion of the sidewalk, while Chambers walked on the right portion of the sidewalk. When adjacent to 234 | gTassin Street, Chambers noticed one panel of the sidewalk sloped down and the adjacent panel sloped upward and began navigating these slopes. However, she did not see a one-and-one-quarter to one-and-one-half inch ledge at the top of the upward slope on the right edge of the sidewalk, and she tripped and fell when her boot caught the ledge. As a result, Chambers sustained a comminuted fracture of the radius of her right arm.

Chambers sued Moreauville claiming damages for injuries sustained in the fall. The claim was tried as a bench trial on August 4, 2010, resulting in a judgment in favor of the plaintiff, finding Moreauville one hundred percent at fault, and assessing damages in the amount of $S49,214.39.

At trial, plaintiffs expert, Philip Beard (“Beard”), a consulting civil and structural engineer, testified that the ledge is a tripping hazard because it is a vertical change in elevation exceeding one-half inch. He further testified that the decline and incline immediately preceding the ledge make the ledge even more dangerous. He explained that normally, when people are walking on a level surface their body remains vertical, and as they step their foot swings in a small arch, which is never more than one-half inch to one inch above the surface of the sidewalk. However, when there is a slope before they get to a ledge, their body has changed to an upward posture and their steps are shorter so their foot is closer to the ledge, making the ledge more dangerous. Defendant’s expert, J. Ronald Landreneaux (“Landre-neaux”), a consulting environmental and civil engineer, testified that the sidewalk’s condition is not unreasonably dangerous. He ^concluded Chambers was aware of the poor condition of the sidewalk on this street, she acknowledged the sidewalk condition before she reached it, and safely traveled the decline. Landreneaux further opined Chambers could have walked on the smooth side of the sidewalk because Bowman was in front of her at this location. Finally Landreneaux concluded Chambers could have avoided this incident by stepping over the elevation or moving to the left and not encountering this point.

After discussing the expert testimony and case law relating to whether this defect constituted an unreasonable risk of harm, the trial judge stated in his oral reasons for judgment:

The deviation is not important to me. What is important is the cost factor and it’s important in my ruling. I cannot allow a municipality to say the cost factor will be our escape clause. But a municipality can say it would cost ... to[sic] much. I am not saying it’s a judicially imposed duty on a municipality but if you got sidewalks in your custody and guard your[sic] responsible for them not the landowners. The law is clear. They’ve got to be reasonably safe for pedestrians. The municipality has to budget and prepare for this. They just got to. They can’t just let them go and then say well you got an escape clause. It’s a cross[sic] factor. We can’t fix them all over town. We’ve got to. I mean if we don’t, if a municipality can play that card every time and say the cost factor well then they ... no longer have to keep them reasonably safe. So for those reasons, I find the City of Moreauville one hundred percent at fault for the accident at issue.

On appeal to a three-judge panel, the judgment was affirmed in part and reversed in part. Chambers v. Village of Moreauville, 10-1368 (La.App. 3 Cir. 4/6/11), 60 So.3d 125. The court of appeal affirmed the portion of the trial court’s ruling which provided that the elevated differential created an unreasonable risk of harm, but it amended the trial court judgment to attribute ten percent of the fault to Chambers. Id. at 132-33. Additionally, the court of appeal reversed the portion of the trial court judgment awarding Chambers damages for loss of future earnings. Id. at 134.

|4We granted Moreauville’s writ application to consider whether the one-and-one-quarter to one-and-one-half inch sidewalk deviation created an unreasonable risk of harm. Chambers v. Village of Moreauville, 11-0898 (La.9/2/11), 68 So.3d 532.

LAW AND DISCUSSION

Generally, a court of appeal may not set aside a trial court’s or jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Evans v. Lungrin, 97-0541, (La.2/6/98), 708 So.2d 731, 735 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). However, if a legal error interdicts the fact finding process, the manifest error standard of review is no longer applicable, and, if the record is otherwise complete, the appellate court should make an independent de novo review of the record and determine which party should prevail by a preponderance of evidence. Evans, supra at 735 (citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 747 rev’d in part, on other grounds, 96-3028 (La.7/1/97), 696 So.2d 569, reh’g denied, 96-3028 (La.9/19/97), 698 So.2d 1388); McLean v. Hunter, 495 So.2d 1298, 1303 (La.1986). There is a legal error when a trial court applies incorrect principles of law and these errors are prejudicial. Evans, supra at 735. Legal errors are prejudicial when they deprive a party of substantial rights and materially affect the outcome. Evans, supra at 735. When a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court must, if it can, render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans, supra at 735 (citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993)).

As explained herein, we find the trial court applied incorrect principles of law because it failed to consider a necessary component of the risk-utility balancing test in determining whether the instant deviation created an unreasonable |firisk of harm. Specifically, the trial judge erred when he expressly declined to consider cost, an indispensable component of the risk-utility balancing test. Additionally, we find this error prejudicial because it skewed the trial court’s finding of a material issue of fact, that the condition of the sidewalk created an unreasonable risk of harm. Accordingly, this Court will make an independent de novo review of the record and address whether the trial court erred in finding the condition of the sidewalk created an unreasonable risk of harm.

Under La. R.S. 9:2800, in order to prove a public entity is liable for damages caused by a thing, the plaintiff must establish: (1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682, 690; Dupree v. City of New Orleans, 1999-3651 (La.8/31/00), 765 So.2d 1002, 1008. Here, the specific issue is whether the instant sidewalk deviation created an unreasonable risk of harm.

Courts have adopted a risk-utility balancing test to determine whether a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and the risk of harm against the individual and societal utility and the cost and feasibility of repair. Pryor v. Iberia Parish School Bd., 10-1683 (La.3/15/11), 60 So.3d 594, 596 (citing Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362, 365; Boyle v. Board of Sup’rs, Louisiana State University, 96-1158 (La.1/14/97), 685 So.2d 1080, 1083). This Court has applied the risk-utility balancing test to determine whether a defect in a sidewalk creates an unreasonable risk of harm, and determined there is no fixed rule in determining whether a defect in a sidewalk is unreasonably dangerous. Boyle, supra at 1082 (citing White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620 (1949)). Instead, the facts and ^surrounding circumstances of each case control. Id. However, the test applied requires the consideration of whether or not the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Id. Therefore, although municipalities have a duty to maintain its sidewalks in a reasonably safe condition, they are not insurers of the safety of pedestrians and are not required to maintain sidewalks in perfect condition. Id. To be liable for damages caused by a defect, the defect must be dangerous or calculated to cause injury. Id. Moreover, when traveling down a sidewalk a pedestrian is not required to exercise the care required in traversing a jungle, but he must exercise ordinary care, keeping in mind that irregularities exist in sidewalks. Id.

Regarding the risk of harm, in Boyle, we considered the following factors in determining that the risk of injury created by the sidewalk deviation was low: the depression was relatively small; it developed due to Louisiana climate and settling Louisiana soil; it existed for several years; it was located in a high traffic area; and the plaintiff was the only person ever reported to have fallen there. 685 So.2d at 1083. These same factors are equally relevant in this sidewalk case.

The size of a deviation is a necessary consideration in determining the risk of harm created by a sidewalk defect. We find that as in other cases involving similar sidewalk deviations, the one-and-one-quarter to one-and-one-half inch ledge here is relatively small. In Boyle, this Court held that a sidewalk depression that was one inch in one corner of the sidewalk and one-half inch in the other corner did not present an unreasonable danger. Id. at 1082-84. Additionally, injfWhite, this Court held a one-and-one-half inch to two inch deviation in a sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. 43 So.2d at 620. Further, Louisiana jurisprudence has consistently held that a one-and-one half inch deviation does not generally present an unreasonable risk of harm. Shavers v. City of Baton Rouge/Parish of East Baton Rouge, 00-1682 (La.App. 1 Cir. 9/28/01), 807 So.2d 883, (writ denied) 01-2848 (La.1/4/02), 805 So.2d 207 (affirmed trial court ruling that a one-half to two inch raised portion of a sidewalk did not present an unreasonable risk of harm); Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, (writ denied) 00-0011 (La.2/18/00), 754 So.2d 974 (a one-and-one-half inch deviation in a parking lot did not create an unreasonable risk of harm); Hughes v. Sewerage & Water Bd. of City of New Orleans, 70 So.2d 760 (La.App.Orleans 1954) (affirmed trial court ruling that a three feet wide and two feet deep excavation in a sidewalk did not create an unreasonable risk of harm); Jones v. City of Baton Rouge, 191 So. 734 (La.App. 1 Cir.1939) (affirmed trial court ruling that a three to four inch depression in the sidewalk did not create an unreasonable risk of harm).

As stated above, another factor relevant to the risk of harm in a sidewalk case is the number of years the defect has existed relative to the pedestrian traffic and the number of incidents reported. In Boyle, this Court considered that the defect, which had been in existence for several years, “is in a high traffic area, and Mrs. Boyle is the only person ever reported to have fallen there” in its determination that a sidewalk deviation did not create an unreasonable risk of harm. 685 So.2d at 1083. Additionally, in White, this Court considered that the one-and-one-half to two inch sidewalk deviation had been in existence for several years and no person was injured or complained of it to the city, notwithstanding the defect being located in a semi-business district and the sidewalk was used | ^frequently, in determining that a sidewalk deviation did not create an unreasonable risk of harm. 43 So.2d at 619. In this case, the trial judge’s oral reasons for judgment reveal that the judge did not consider the amount of time the deviation had been in existence, the traffic over the particular area, and whether anyone else had ever reported falling there. In fact, the trial judge criticized Mayor Lionel Bordelon, whose house is located adjacent to the sidewalk where Chambers fell, for testifying to these factors. Here, the may- or testified that the deviation has been in existence since he moved into his house, approximately forty years before the fall. Further, both the mayor and John Gui-droz, the Public Works Superintendent for Moreauville, testified there have been no reported falls prior to the incident even though the mayor testified that roughly twenty-five pedestrians pass this area of the sidewalk daily.

In Boyle, this Court considered that the “depression had been developing due to the Louisiana climate and settling Louisiana soil” in weighing the risk of harm the sidewalk deviation created. 685 So.2d at 1083. Furthermore, in White, this Court stated a sidewalk deviation “resulted from natural causes, not by any deliberate act of the defendant” in determining the deviation did not create an unreasonable risk of harm. 43 So.2d at 620. Here, Chambers’ expert, Beard, testified that the deviation was caused by natural causes. More specifically, Beard stated that the deviation was caused by water under the sidewalk that had progressed from a nearby catch basin and which silted the sidewalk’s sand base.

Accordingly, we find the risk of harm is not great because the deviation is relatively small, there have been no reported complaints in the approximately forty years that the deviation has been in existence in spite of this area being traveled by twenty-five pedestrians a day, and the deviation was not deliberately created by the defendant.

|cAs stated earlier, the risk-utility balancing test requires balancing the gravity and the risk of harm against the individual and societal utility and the cost and feasibility of repair. Pryor, supra at 596 (citing Reed, supra at 365; Boyle, supra at 1083). Therefore, cost is a necessary part of the risk-utility balancing test. But, the trial judge’s reasons for judgment reveal that the judge expressly declined to consider cost, stating:

What is important is the cost factor and it’s important in my ruling. I cannot allow a municipality to say the cost factor will be our escape clause. But a municipality can say it would cost ... to[sic] much. I am not saying it’s a judicially imposed duty on a municipality but if you got sidewalks in your custody and guard your[sic] responsible for them not the landowners. The law is clear. They’ve got to be reasonably safe for pedestrians. The municipality has to budget and prepare for this. They just got to. They can’t just let them go and then say well you got an escape clause. It’s a cross[sie] factor. We can’t fix them all over town. We’ve got to. I mean if we don’t, if a municipality can play that card every time and say the cost factor well then they ... no longer have to keep them reasonably safe.

Because the cost factor is essential to the risk-utility balancing test, we find this to be legal error. This legal error was prejudicial because it skewed the trial court’s finding of a material issue of fact, i.e., that the sidewalk presented an unreasonable risk of harm. Therefore, this legal error resulted in our de novo review of this case.

As part of the cost analysis, the physical and financial inability of a municipality to maintain its things in anything more than a reasonably safe condition has been considered by this Court as a factor in determining whether such condition creates an unreasonable risk of harm. Brooks v. State ex rel. Dept. of Transp. and Development, 10-1908 (La.7/1/11), 74 So.3d 187, 193. This includes not only the cost to fix the instant deviation, but also all similar deviations. Boyle, supra at 1083.

|1ftAt trial, Beard testified that there were at least twelve areas of sidewalk in need of repair between the church and the instant condition, which the record reflects was approximately three-tenths of a mile. Beard further testified that it would cost between $500.00 and $600.00 dollars to repair the sidewalk deviation at issue. This is compounded by Beard’s testimony that there are a substantial number of sidewalks in Moreauville. Accordingly, the cost to Moreauville to fix all sidewalk deviations of one-and-one-fourth to one-and-one-half inches would apparently be substantial.

Moreover, even though the record does not reveal precisely the number of sidewalks in Moreauville or exactly how many similar deviations exist on these sidewalks, such evidence is not critical here. Instead, central to our ruling is the fact that the cost of fixing all deviations similar to the instant deviation is out of proportion to the gain in fixing such deviations because the risk of someone being seriously injured by such a small sidewalk defect is so slight. This is evident here by the fact that Chambers is the only person who has reported tripping on this defect in the approximately forty years the defect has existed. Therefore, although it may be fiscally possible for Moreauville to fix such deviations, there would be little gained in fixing them. In effect, a ruling finding the deviation creates an unreasonable risk of harm would be sending a message out to the State and all of its municipalities that they are burdened with the fiscally exorbitant task of fixing all sidewalk deviations of one-and-one-half to one-and-one-quarter inches, even though the risk of someone being injured by such a defect is minimal. For the aforementioned reasons, we find the cost factor weighs heavily in favor of finding the instant deviation does not create an unreasonable risk of harm.

An additional basic principle applicable to sidewalk cases is that public entities only have a duty to keep sidewalks in a reasonably safe condition for pedestrians exercising reasonable care, keeping in mind that irregularities exist in | n sidewalks. White, supra at 620. In White, this Court considered that the sidewalk deviation was readily observable in determining the deviation was not dangerous or calculated to cause injury; there were no shrubs or trees in close proximity to it; and, a street light lit the area where the deviation was located during the night the plaintiff fell. Id. at 619. Here, we find the deviation was readily observable. Chambers testified that the sun was shining at the time of her fall. The pictures and testimony indicate there was no grass covering the deviation, and there were no trees obstructing Chambers’ view when approaching this area. Additionally, pictures and testimony reveal there was a coloring differential between the ledge and the sidewalk, making the ledge obvious to pedestrians. Although Chambers testified she did not see the ledge, she testified she saw the incline and decline, which were located directly adjacent to the instant ledge. We believe because Chambers was navigating this decline and incline immediately preceding the ledge, she should have been exercising a higher standard of care while traversing the decline and incline, and therefore, she should have been alerted to the ledge.

Furthermore, the testimony revealed that during her walk from the church to the scene of the accident she had to negotiate approximately twenty-five other deviations to get to the instant deviation. Chambers testified she was aware of the general condition of the sidewalk in this area, and also had similar deviations in front of her own home, less than a half-mile from the instant condition. Nonetheless, at the time of the accident she was not looking at the sidewalk, and instead, she was looking straight ahead talking with Bowman. Given Chambers’ testimony that this was her first time traversing this particular area of the sidewalk, and she was aware of the general condition of the sidewalk, Chambers had a duty to exercise a higher standard of care. For the aforementioned reasons, we find 112Chambers’ failure to see the condition likely resulted from her failure to exercise the requisite standard of care while traversing down this particular sidewalk.

Considering the moderate gravity of the harm, the small size of the defect, the absence of complaints regarding this area of the sidewalk for the forty years the condition has been in existence, the development of the defect due to natural causes, the cost to fix all similar deviations, the high utility of the sidewalk, the overt nature of the defect, and Chambers’ failure to exercise the requisite standard of care while traversing this area of the sidewalk, we conclude that the instant deviation does not present an unreasonable risk of harm.

CONCLUSION

As stated, a municipality is not an insurer of the safety of pedestrians traversing its sidewalks. Instead, it is only liable for conditions that create an unreasonable risk of harm. Here, the utility of the sidewalk is high. Additionally, it would be fiscally exorbitant to require municipalities to correct all sidewalk deviations of one-and-one-quarter to one-and-one-half inches. Further, the risk of harm created by the deviation is low; there has never been a reported complaint about the deviation in the approximately forty years it has been in existence, the area of the sidewalk is well traveled, the deviation is relatively small, and it developed due to natural causes. Additionally, the deviation was readily observable, and Chambers failed to exercise the requisite standard of care while traversing this particular area of the sidewalk. Accordingly, we find the condition does not present an unreasonable risk of harm. To hold otherwise would place an unreasonable burden on the State and its municipalities to ensure their sidewalks are free from all similar deviations of one-and-one-quarter to one-and-one-half inches.

11SDECREE

For the reasons stated herein, the judgments of the court of appeal and trial court are reversed and judgment is rendered in favor of the defendant, dismissing the plaintiffs claim against the Village of Mor-eauville with prejudice.

REVERSED AND RENDERED.

JOHNSON, Justice, dissents.

KNOLL, Justice, dissents and assigns reasons.

KNOLL, J.,

dissenting.

|,I respectfully dissent from the majority opinion which, in my view, improperly applies a de novo standard of review in overruling the findings of the trier of fact despite ample evidence supporting the verdict in favor of plaintiff. The record reflects the trial court properly applied the law regarding municipal liability, and the appropriate standard of review is manifest error. As there is sufficient evidence to support the finding of liability on the part of defendant, I would affirm the judgment of the lower courts.

The facts of this case are relatively simple. It is undisputed that Ms. Chambers tripped over a defect in the sidewalk in the Village of Moreauville. As a result, she broke her wrist, underwent surgery, and incurred significant medical expenses. The defendant admits it had actual or constructive notice of the defective section of the sidewalk as required by La.Rev.Stat. § 9:2800. The only issue in dispute is whether the uneven section of sidewalk — a depressed area which slopes downwards, then upwards, leading to a 1 J4 to 1 ½ inch lip — created an “unreasonable risk of harm” under Louisiana law.

| aThe majority opinion claims the trial court “erred when he expressly declined to consider cost, an indispensable component of the risk-utility balancing test.” The trial court judge did not “expressly decline” to consider cost; indeed, he explicitly noted the importance of the cost factor in making his ruling: “What is important is the cost factor and it’s important in my ruling. I cannot allow a municipality to say the cost factor will be our escape clause. But a municipality can say it would cost it would cost to [sic] much.” (emphasis added). The court also stated, concerning the “cost of repair versus the cost of injury or the threat of injury and the utility and I did, I did ponder those, those types of considerations.” Given these statements by the trial court judge, it is difficult to understand how the majority came to the conclusion that he “expressly declined” to take into account the potential cost of repair.

The trial court’s detailed oral reasons, which take up 22 pages in the record, reflect that he carefully considered the state of the law and jurisprudence — he cites and discusses no less than thirteen cases when considering the Village’s liability, many of which expressly discuss the cost factor of the risk-utility test. Contrary to the majority’s representations, the court did consider the cost factor and correctly applied the law in this case. A de novo review is, therefore, inappropriate.

This Court has repeatedly held municipalities have a duty to keep sidewalks and roadways in reasonably good repair. Molbert v. Toepfer, 550 So.2d 183, 186 (La.1989); Shipp v. City of Alexandria, 395 So.2d 727, 728 (La.1981); White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620 (1949). As a practical matter, this maintenance is not free. The cost factor of the risk-utility test simply ^recognizes a municipality cannot fix every minor problem in every sidewalk, and there is no duty to make a repair where the proposed repairs are so expensive or onerous as to outweigh any benefit. The application of this test is a question of fact left for the trial court’s determination.

Here, both the plaintiffs expert and the mayor agreed the proposed repairs would have cost between five and six hundred dollars. While this amount is not exactly trivial for a small municipality such as Moreauville, neither is it so expensive that the proposed repairs would be impractical. Considering the obvious trip hazard presented by the sidewalk and the mayor’s firsthand knowledge of the sidewalk’s poor condition, a reasonable municipality would have made the appropriate repairs. Therefore, I find no manifest error in the trial court’s rejection of the cost defense.

Having reviewed the remainder of the record, I find sufficient evidence for a reasonable trier of fact to find the sidewalk was unreasonably dangerous. The photographic evidence submitted to this court clearly shows a slab of the sidewalk is broken and depressed, and the edge of the broken slab has a lip of approximately 1 ⅜ to 1 ⅛ inches high, tall enough for a pedestrian'to trip over. Phillip Beard, a civil and structural engineer who testified on behalf of plaintiff, believed the decline and incline of the sidewalk, combined with the 1 ⅜ to 1 ⅜ inch lip, created an unreasonably dangerous condition. As this Court has repeatedly held, determining which expert is more credible is the exclusive provenance of the trial court. “Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible.” Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670, 688. I/The trial court found the plaintiffs evidence more compelling; there are no grounds for this Court to disturb this finding.

The majority opinion places great weight on the lack of prior reported injuries on this section of the sidewalk. However, as plaintiff points out, this is not proof that no one has ever tripped there before. At best, we know no one has tripped on this section and suffered a serious injury. Most sidewalk trips result in nothing more than a minor embarrassment and perhaps a skinned knee, and would never be reported. Although the absence of prior reported incidents may be a factor for the trier of fact to consider, it is not an absolute bar to recovery. Numerous courts have found unreasonable risk of harm even where plaintiffs injury was the first reported injury at a certain place. The majority suggests a municipality has no duty to repair a hazard until someone has already been injured, which is a classic example of shutting the barn door after the horse has escaped.

This case is quite similar to our decision in Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1108 (La.1990), in which the plaintiff tripped over a 1 inch ledge at the entrance of a restaurant and suffered serious injuries to her shoulder and hip. The trial court held in favor of plaintiff, but the court of appeal reversed. This Court reinstated the judgment of the trial court, holding it was the duty of the trier of fact to judge which expert was correct and “when there are two permissible views of evidence, a fact finder’s choice between them cannot be manifestly wrong or clearly erroneous.” Id. at 1114. If, as is true in the case sub judice, the trial court’s account of the evidence is plausible in light of the record viewed in its |Bentirety, this Court should not reverse even if we are convinced that, had we been sitting as the trier of fact, we would have weighed the evidence differently. Louisiana’s three-tiered court system allocates the fact finding function to the trial courts, not to the Supreme Court. Virgil v. American Guarantee and Liability Ins. Co., 507 So.2d 825, 826 (La.1987) (per curiam). Therefore, I dissent and would affirm the lower courts’ determination of liability.

      . Although pictures in the record reveal at the extreme outside edge of the sidewalk the ledge clearly measures one-and-one-half inches, Chambers did not trip on the part of the ledge on the extreme outside edge of the sidewalk, and therefore, it is estimated the area of the ledge Chambers tripped on was between one-and-one-quarter to one-and-one-half inches.

      . The damages were categorized as follows: $46,616.17 in past medical expenses, $10,000.00 for future medical expenses, $3,617.34 in past lost wages, $54,148.00 in future lost wages, $5,050.00 in expert fees, $467.20 for medical record fees, $695.10 in court reporter fees, $620.58 in court costs, $200,000 for pain and suffering, and $25,000 for loss of enjoyment of life.

      . The trial court did not consider gravity of the harm as part of its duty-risk analysis. Here, the plaintiff fractured her right arm. This exemplifies the type of injury that can be expected as a result of tripping on a defective sidewalk. In contrast to the type of harm that can result from other types of defects, such as a defective traffic light, the gravity of harm here is only moderate. While the trial court’s failure to consider the gravity of the harm can be considered "legal error,” it is hard to say that was "prejudicial” so as to require de novo review, in that it probably did not materially affect the outcome of the case because unlike costs, the moderate gravity of the harm here really does not weigh in favor or against a finding that the sidewalk was unreasonably dangerous. It is, however, a factor to be considered in our de novo review.

      . The trial judge’s oral reasons for judgment are devoid of any consideration of the utility of the sidewalk. Here, the utility of the sidewalk is apparently high, as it serves a residential area that is adjacent to a school. However, like the trial court's failure to consider gravity of the harm, failure to consider the utility of the sidewalk probably did not materially affect the outcome of the case and thus did not provide the grounds for de novo review in this case.

      . Notably, during the trial, Chambers testified that she could see a difference in color between the sidewalk and the ledge when shown a picture of the area of the sidewalk where she fell.

      . Notably, the phrase "unreasonable risk of harm” is not used in any of the statutes governing premises liability or governmental entity liability. See La. Civ.Code arts. 2317-2317.1 and La.Rev.Stat. § 9:2800. However, Louisiana courts have consistently applied this test in premises liability cases for over thirty-five years, and the doctrine has attained the status of jurisprudence constante. See Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, 1008; Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216, 218; Oster v. DOTD, 582 So.2d 1285, 1288 (La.1991); Landry v. State, 495 So.2d 1284, 1287 (La.1986); Loescher v. Parr, 324 So.2d 441, 446 (La.1975).

      . Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176; Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990); Central Louisiana Elec. Co. v. Williams, 181 So.2d 844, 846 (La.App. 2 Cir.1965)("Where experts differ ... the .trial judge is in a better position to determine their credibility and the weight to be accorded their testimony than is the appellate court.”)

      . See Beckham v. Jungle Gym, LLC, 45,325 (La.App. 2 Cir. 5/19/10), 37 So.3d 564, 568; Lawrence v. City of Shreveport, 41,825 (La.App. 2 Cir. 1/31/07), 948 So.2d 1179, 1185-86; Buchignani v. Lafayette Ins. Co., 41,384 (La.App. 2 Cir. 8/23/06), 938 So.2d 1198, 1204-05; Temple v. DOTD, 02-1977 (La.App. 1 Cir. 6/27/03), 858 So.2d 569, 578; Hutchison v. Knights of Columbus, Council No. 5747, 02-1817 (La.App. 4 Cir. 5/7/03), 847 So.2d 665, 669; Burdis v. Lafourche Parish Police Jury, 618 So.2d 971, 977 (La.App. 1 Cir.1993).


source: Caselaw Access Project

author: KNOLL, J. VICTORY, J., CLARK, Justice,

license: Public Domain

text:
    In re Judge Robert E. BURGESS, Forty-Second Judicial District Court, Parish of DeSoto, State of Louisiana.
    No. 2011-O-2182.
    Supreme Court of Louisiana.
    Jan. 24, 2012.

      Office of Special Counsel, Henry Nathan Bellamy, Special Counsel, Michael Bewers, Assistant Special Counsel, for Applicant.

      Ronald J. Miciotto, Shreveport, for Respondent.
   KNOLL, J.

| j This matter comes before the Court on the recommendation of the Judiciary Commission of Louisiana, pursuant to La. Const, art. V, § 25(C), that Robert E. Burgess, District Judge of the 42nd Judicial District Court, Parish of DeSoto, be publicly censured for violations of the Code of Judicial Conduct. For the following reasons, we adopt the recommendations of the Judiciary Commission, publicly censure Judge Burgess, and order him to pay costs in the amount of $1,738.49.

FACTUAL BACKGROUND

These disciplinary proceedings arise out of a divorce proceeding between Tad Russell VanZile and the niece of Judge Burgess, Jenifer Susanne Colvin VanZile. On November 7, 2007, Jenifer filed a petition for divorce in the 4th Judicial District Court for the Parish of Ouachita. This petition included a request for a temporary restraining order (“TRO”) enjoining Tad from “harming or harassing [Jenifer] in any way and from going to [Jenifer’s] place of abode for the purpose of harming or harassing [her].” The TRO was granted on November 20, 2007, and the matter was set for hearing on May 22, 2008, before Judge Alvin Sharp.

On January 20, 2008, Judge Burgess went to Monroe to visit his sister Eva, 12Jenifer’s mother. During his visit, Jenifer arrived at Eva’s house in apparent distress and said Tad had come to her house uninvited to take the children for visitation. Jenifer refused, as she believed it was not his day to have the children. Their argument escalated to pushing and shoving. Jenifer said Tad’s rough treatment left her with a bruise on her neck and “claw marks” on her daughter’s arm. Judge Burgess advised Jenifer to speak with her attorney, Robert Tew.

Instead, on January 23, 2008, Jenifer filed a pro se petition for a protective order and a criminal complaint against Tad. The petition for a protective order was not filed as part of the divorce proceeding, and Jenifer marked the section of the form reading “A suit for divorce between the parties is not pending.” As a result, it was assigned a new docket number and randomly assigned to Judge Wilson Rambo. Judge Rambo immediately signed the petition for a protective order and set the matter for a hearing on January 31, 2008. Before the hearing could be held, on January 28, 2008, Judge Rambo vacated the January 23, 2008 protective order because it had not been properly filed as part of the ongoing divorce proceedings. Judge Rambo’s order expressly stated: “any subsequent application for protective order by either party herein shall be presented to the Honorable Alvin R. Sharp for consideration and action.”

The criminal complaint created an apparent conflict of interest with Jenifer’s attorney, Robert Tew, who was a Ouachita Parish Assistant District Attorney. On January 25, 2008, he filed a motion to be relieved as counsel, meaning Jenifer was effectively not being represented by an attorney.

Some time in February 2008, Judge Burgess called Geary Aycock, his longtime friend and a Ouachita Parish Assistant District Attorney, for advice about obtaining a protective order against Tad. Aycock told Judge Burgess the procedure for obtaining a protective order in Ouachi-ta Parish. On February 29, 2008, Judge IsBurgess, Jenifer, and Jenifer’s parents went to the Ouachita Parish District Attorney’s office. There they spoke with the Assistant District Attorney handling the pending criminal charges against Tad. The Assistant District Attorney explained how the case was being handled by the District Attorney’s office and told Jenifer where to go to file a petition for a protective order. Jenifer then left to go on a private interview with a staff member while Judge Burgess visited with Aycock. Jenifer filled out and submitted another petition for domestic abuse protection based on the January 20, 2008 incident.

However, Judge Sharp was not available to sign the protective order. Jenifer and her family were upset by this further delay, and Judge Burgess took it upon himself to find a duty judge to try to “find out what was next.” He went upstairs into the lobby of the judges’ office, where he saw Judge Hamilton Stephens Winters, a judge of the 4th Judicial District Court. Judge Burgess recognized Judge Winters from a judicial conference they had attended together, although Judge Winters did not immediately recognize Judge Burgess.

Judge Burgess said his niece wished to file a petition for a protective order in a domestic case, but Judge Sharp was not available to sign it. Judge Burgess asked Judge Winters what he could do to get the matter on the docket as quickly as possible. Because Judge Winters had an exclusively criminal docket at the time, he called Judge Sharp’s office for advice on how to proceed. There was no answer, and he left a message. Judge Sharp’s secretary soon called back and said Judge Sharp was in Tulsa, Oklahoma, and would not be returning for a few days. She told Judge Winters to review the request for a protective order on Judge Sharp’s behalf and, if necessary, set the matter for hearing.

Judge Winters called the District Attorney’s office and asked them to bring the petition for a protective order back to his office. Judge Winters read the petition |4and signed the order while Judge Burgess was still in the office. A hearing on the rule to show cause was set for March 6, 2008, and Judge Burgess volunteered information about Tad’s schedule so he could be served as quickly as possible. Judge Burgess then left Judge Winters’s office and went to the clerk of court, where he asked for copies of the protective order for Jenifer to distribute at the children’s schools.

On March 6, 2008, Judge Sharp dismissed Jenifer’s petition for a protective order, noting it was filed in violation of Judge Rambo’s previous order. Later the same day, Judge Burgess called Judge Winters and told him the protective order had been vacated, and certain parties claimed Judge Burgess’s discussion with Judge Winters regarding the order was “inappropriate.”

PROCEDURAL HISTORY

In April 2008, Tad filed a complaint against Judge Burgess alleging he had “personally assisted” Jenifer in filing the petition for a protective order and “then ‘walked’ the protective order over to the Fourth Judicial District Court.” Tad asserted he had “incurred significant attorney’s fees, costs and embarrassment” as a result of his wife’s actions “and the actions of those individuals who have helped her.”

The Office of Special Counsel forwarded Tad’s complaint to Judge Burgess. Judge Burgess was invited to respond to any allegations raised in the complaint and was specifically asked to answer the following questions:

1. Whether you assisted your niece, Jennifer [sic] Susanne Colvin VanZile, by contacting and convincing Judge Stephen H. Winters [sic] to sign a protective order in favor -of Ms. VanZile and against Tad Russell VanZile?
2. Whether you assisted your niece, Jennifer [sic] Susanne Colvin VanZile, by contacting and discussing with an employee of the Ouachita Parish | ¡¿District Attorney’s Office a protective order in favor of Ms. VanZile and against Tad Russell VanZile?

Judge Burgess responded by letter:

1. No, I did not assist my niece, Jennifer [sic] Susanne Colvin VanZile, by contacting and convincing Judge Stephen H. Winters [sic] to sign a protective order in favor of Ms. VanZile and against Tad Russell VanZile.
2. No, I did not assist my niece, Jennifer [sic] Susanne Colvin VanZile, by contacting and discussing with an employee of the Ouachita Parish District Attorney’s Office a protective order in favor of Ms. VanZile and against Tad Russell VanZile.
If I can assist you further, please do not hesitate to contact me.

The Judiciary Commission authorized an investigation against Judge Burgess. On October 13, 2008, he submitted a second, more detailed response to the complaint. He admitted his first response, while “technically accurate,” did not “provide a complete picture of the situation.” The second response recounted the relevant events in greater detail and admitted to contacting Geary Aycock for advice and speaking with Judge Winters about the protective order.

Formal charges against Judge Burgess were filed on December 30, 2010, alleging violations of the Code of Judicial Conduct, Canons 1, 2 A, and 2 B, and |fiLa. Const, art. V, § 25(C). The parties entered into a stipulation of facts and of violations of the Code of Judicial Conduct and the Louisiana Constitution as charged. Judge Burgess appeared and testified before Judiciary Commission members on August 19, 2011, and the Judiciary Commission agreed to dispense with a formal hearing and to accept the stipulated facts and law. On October 7, 2011, the Judiciary Commission formally recommended Judge Burgess be publicly censured.

DISCUSSION

This Court is vested with exclusive original jurisdiction in judicial disciplinary proceedings under La. Const, art. V, § 25(C), which states:

On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.

|7The Code of Judicial Conduct, adopted by this Court under its supervisory authority, supplements the Constitution’s substantive grounds for disciplinary action against a judge. In re Justice of the Peace Cook, 05-783 (La.6/29/05), 906 So.2d 420, 424. Any violation of the Canons set forth in the Code of Judicial Conduct may serve as grounds for discipline. In re Cresap, 06-1242 (La.10/17/06), 940 So.2d 624, 638. Because Judge Burgess has stipulated to violations of Canons 1, 2A, and 2B of the Code of Judicial Conduct and to Article V, § 25(C) of the Louisiana Constitution, the only question for this Court is the appropriate sanction. In re Shea, 02-0643 (La.4/26/02), 815 So.2d 813, 816.

SANCTION

In re Chaisson, 549 So.2d 259, 266 (La.1989), citing Matter of Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987), sets forth a non-exclusive list of factors to consider in imposing discipline on a judge:

(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct;
(b) the nature, extent and frequency of occurrence of the acts of misconduct;
(c) whether the misconduct occurred in or out of the courtroom;
(d) whether the misconduct occurred in the judge’s official capacity or in his private life;
(e) whether the judge has acknowledged or recognized that the acts occurred;
(f) whether the judge has evidenced an effort to change or modify his conduct;
(g) the length of service on the bench;
(h) whether there have been prior complaints about this judge;
(i) the effect the misconduct has upon the integrity |sof and respect for the judiciary; and
(j) the extent to which the judge exploited his position to satisfy his personal desires.

Applying these factors to the facts of this case, we find Judge Burgess acted impermissibly by intervening on behalf of his niece. While his actions were not performed in the courtroom or directly in the course of his official business as a judge, Judge Burgess used the prestige and personal connections gained through his office to assist his niece in obtaining an accelerated disposition of her petition for a protective order. Although Judge Winters testified Judge Burgess’s status as a judge did not influence his decision to sign the protective order, two judges meeting behind closed doors to discuss a case involving one of the judge’s relatives creates an obvious appearance of impropriety.

Judge Burgess went into the chambers of a fellow judge, introduced himself as a judge, and asked for help in finding the “most expeditious means” of getting his niece’s petition before the court. Although Judge Burgess claims he was not acting in his judicial function, but merely as an uncle, we do not believe a judge can “step out” of his judicial function so easily. Both Geary Aycock and Judge Winters knew Judge Burgess was a judge, Aycock because of their long friendship and Judge Winters because Judge Burgess introduced himself as a judge and reminded Judge Winters they had attended a judicial conference together. Judge Burgess later acknowledged a judge is “not just a citizen” but “someone that people react to ... my mere presence has an influence whether it’s intentional or unintentional.” We are also troubled by the ex parte nature of the discussion between Judge Winters and Judge Burgess.

Judge Burgess’s initial refusal to take responsibility for his actions is a further aggravating factor. The initial responses to the Judiciary Commission were | incomplete and misleading, as Judge Burgess did not admit to taking any actions with respect to Jenifer’s case. Judge Burgess emphasizes the conjunctive nature of the first question posed by the Judiciary Commission — whether he “contacted and convinced” Judge Winters to sign the protective order. Judge Burgess admits he contacted Judge Winters regarding the order, but denies he “convinced” Judge Winters to sign it; therefore, he claims his response was technically accurate. This Court expects judges to be as honest and forthright as possible in their dealings with the Office of Special Counsel and the Judiciary Commission. By relying on semantic notions of “technical accuracy,” Judge Burgess was, at the least, less than completely forthcoming.

Judge Burgess’s response to the second question, in which he denied contacting an employee of the Ouachita Parish District Attorney’s office and discussing Jenifer’s protective order, was not even technically accurate. Judge Burgess admits he contacted Geary Aycock, a Ouachita Parish Assistant District Attorney and a longtime friend, who advised him of the proper procedure for obtaining a protective order. However, his initial response to the Judiciary Commission denied contacting any member of the Ouachita Parish District Attorney’s office regarding Jenifer’s case. This was clearly false. Judges are expected to act with the utmost candor in their dealings with the Commission, and Judge Burgess’s misleading and incomplete responses fell well short of this standard.

In mitigation, we recognize Judge Burgess is a seasoned veteran of the bench and this is the first time he has been brought on charges before this Court. 11flThis appears to have been an isolated incident, with no pattern of similar misconduct. He has “come clean” before the Commission, albeit somewhat belatedly, stipulated fault, and has expressed remorse for his actions.

This case is similar to In re Parro, 03-0792 (La.5/2/03), 847 So.2d 1178. Judge Parro, a judge of the First Circuit Court of Appeal, impermissibly intervened on behalf of his niece, who had been charged with felony theft. Judge Parro contacted the District Attorney to discuss the possibility of a pre-trial intervention program. He also asked both the District Attorney and the victim’s father, Judge Parro’s lifelong friend, whether they would consider dropping the charges in return for full payment of restitution to the victim, and personally contacted the presiding judge to obtain a trial continuance.- Judge Parro claimed he was not acting in his capacity as judge, but as an “uncle and a godparent.” Id. at 1179. We nonetheless found “the prestige of his office was brought to bear on those whom he contacted ... thereby undermining the judicial process,” and Judge Parro was publicly censured and ordered to pay costs. Id. at 1181-82.

Similarly, in In re Lonschein, 50 N.Y.2d 569, 408 N.E.2d 901, 430 N.Y.S.2d 571 (1980), a Justice of the Supreme Court of New York was admonished for intervening with the New York City Taxi and Limousine Commission on behalf of a friend who believed the Taxi Commission was giving him “the runaround” on a license application. Justice Lonschein called a deputy counsel for the Taxi Commission, told him about his friend’s predicament, and said “See what you can do for this fellow.” Id. at 571, 430 N.Y.S.2d 571, 408 N.E.2d 901. Although there was no evidence of bad faith or a venal motive, the Court of Appeal nonetheless found he “placed the prestige of his office behind the request” and thus violated the New York Rules Governing | n Judicial Conduct. Id. at 572-73, 430 N.Y.S.2d 571, 408 N.E.2d 901. We find Judge Burgess’s wrongful conduct was substantially similar to the actions of both Judge Parro and Justice Lonschein, and a similar sanction of public censure is appropriate.

The Judiciary Commission also seeks reimbursement of its eosts pursuant to La. S.Ct. Rule XXIII, § 22, which permits this Court to “tax all or any portion of the costs recommended by the commission.” The Office of Special Counsel and Judiciary Commission have included itemized costs statements in the amount of $1,738.49. Judge Burgess does not dispute this figure. We have reviewed the statements, find the requested costs are reasonable, and hereby order Judge Burgess to reimburse the Commission for the full amount of $1,738.49.

DECREE

For the reasons assigned, it is ordered that Judge Robert E. Burgess be publicly censured for violating Canons 1, 2 A, and 2 B of the Code of Judicial Conduct and La. Const, art. V, § 25(C). Judge Burgess is ordered to reimburse the Louisiana Judiciary Commission for costs in the amount of $1,738.49.

VICTORY, Justice, concurs in the result and assigns reasons.

CLARK, Justice, concurs in the result for the reasons assigned by Justice VICTORY.

VICTORY, J.,

concurs.

|7I concur only in the result reached by the majority because Judge Burgess stipulated to the violations and the sanction imposed is consistent with the stipulated violations. However, I do not view Judge Burgess’s actions to be nearly as bad as the majority opinion implies.

CLARK, Justice,

concurring.

hi concur for the reasons expressed by Justice Victory.

      . The relevant portions of the Code of Judicial Conduct provide:
      Canon 1
      An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code are to be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of judicial independence.
      Canon 2
      A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      As used in this Code, "impartiality” or "impartial” denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.
      B. A judge shall not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness. Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation. Letters of recommendation may be written only on private stationery which does not contain any official designation of the judge's court, but the judge may use his or her title. A judge shall not initiate the communication of information in any court or disciplinary proceeding, but may provide such information for the record in response to a formal request by a court or disciplinary agency official.

      . In 2006, an attorney filed a complaint alleging Judge Burgess made an improper ex parte communication in a civil case. The complaint was resolved via a letter of caution from the Judiciary Commission. Although such letters are confidential, they may be referred to in later disciplinary proceedings. In re Cresap, 06-1242 (La.10/17/06), 940 So.2d 624, 632 n. 6 (citing La. S.Ct. Rule XXIII, § 3(d)).

      . The Supreme Court of New York is the equivalent of our Judicial District Court.