author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    HARBOR CONSTRUCTION COMPANY, INC. v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 2010-CA-1663.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2011.

      Caryl H. Vesy, Phillips & Vesy, New Orleans, LA, for Plaintiff/Appellee, Harbor Construction Company.
    David J. Shelby, II, Kari A. Bergeron, Taylor Porter Brooks & Phillips L.L.P., Baton Rouge, LA, Katherine B. Muslow, Louisiana State University Health Sciences Center, New Orleans, LA, for Appellant, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, on behalf of Louisiana State University Health Sciences Center in New Orleans.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PAUL A. BONIN, and Judge DANIEL L. DYSART).
   JOAN BERNARD ARMSTRONG, Chief Judge.

11Defendant, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (LSU), appeals from a judgment of the trial court awarding its contractor, Harbor Construction Company, Inc. (Harbor), direct expenses of $17,225.07 and overhead expenses of $33,828.90 sustained as a result of a work stoppage ordered by LSU. For the reasons that follow, we affirm the judgment of the trial court.

Following a bench trial on the merits, the trial court found the following facts:

Following a competitive bid process, LSU chose Harbor to replace acid basin tanks located at the LSU Clinical Sciences Research Building in New Orleans. On July 22, 2004, LSU instructed Harbor to stop work on the project, when Harbor severed a sewer pipe located six feet below the work site. Harbor was allowed to resume work on November 11, 2004. The sewer pipe is not shown on the site plan LSU provided to Harbor, nor is it referenced in LSU’s plans or specifications for the contract. The trial court found as a fact that neither the contract nor any change order placed a burden on Harbor to discover the existence [ aof underground pipes. It held as a matter of law that Harbor had no duty to check the plans and specification furnished to it by LSU to determine if they were accurate and sufficient before proceeding with the execution of the contract. Furthermore, Harbor was entitled to rely on the accuracy and sufficiency of the plans and its only obligation was to perform in accordance with those plans. The trial court concluded that Harbor proved its damages by a preponderance of the evidence adduced at the trial.

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its |adecision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

If trial court legal errors have tainted the fact finding process, the verdict below is not reviewed under the manifest error standard and, if the record is complete, the appellate court may make a de novo review of the record and determine the preponderance of the evidence. Rosell v. ESCO, 549 So.2d 840, 844 fn. 2 (La.1989); Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975).

It is our duty to review LSU’s legal arguments de novo, and to apply the manifest error standard to its claims of factual error. LSU argues that the trial court’s judgment was legally erroneous because the plaintiff had a contractual duty to discover underground utilities not shown on the construction drawings. LSU contends that this contractual duty also precludes application of La. R.S. 9:2771 to relieve it of that alleged contractual duty. LSU also claims that the trial court erroneously found that Harbor performed its work in accordance with the contract, erroneously did not find that the delays and damages were caused by Harbor’s breach of the contract, and erroneously awarded damages that were not probed by a preponderance of the evidence. These latter claims will be reviewed under the manifest error standard of review.

|4The trial court received testimony from Thomas Foret, Harbor’s project manager in 2003 and 2004; Joseph Skinner, Harbor’s owner and president; Robert S. Parker, Jr., LSU’s director of purchasing; and Michael James May, LSU’s construction coordinator.

The contract form entered into by LSU and Harbor on August 28, 2003 incorporates by reference “the Drawings, Specifications, Addenda Number(s) 2, Information for Bidders and General Conditions, Proposal Form, Specific Conditions and Advertisement for Bids”. Mr. Foret testified that he had been in the construction business since 1975, moving up from a position in the construction crew to foreman, general foreman, and ultimately to project manager. He assisted Mr. Skinner in the preparation of Harbor’s bid for the LSU project, reviewing the bid documents, including plans and specifications, prepared by Wink, Inc., LSU’s engineering firm. Mr. Foret testified without contradiction that Harbor took no part in the preparation of those bid documents, plans or specifications.

Mr. Skinner testified that the purpose of the site plans prepared by LSU was to show the things that should be taken into consideration by the contractor when bidding the job. He stated that an owner does not expect a bidding contractor to show up for an inspection of the jobsite with a shovel and a backhoe. He identified the plans and specifications for the LSU job, and testified without contradiction that the sewer pipe shown on the plan was the only sewer line shown and was not |fithe sewer line that was severed. Mr. Skinner also testified that the owner should designate any underground obstructions on the site plan. According to Mr. Skinner’s testimony, had the bid package required Harbor to locate all existing sewer and electrical lines, he would not have bid on the project.

Mr. Foret described the LSU project as removal of existing acid-waste tanks, construction of a new concrete vault, and installation of new acid-waste tanks and double-insulated piping to and from the tanks. The hole to be dug would be twelve feet with a sub-base.

In preparing Harbor’s bid, Mr. Foret and Mr. Skinner made a visual inspection of the job site, at which Mr. Skinner told the general superintendent to ask where the building’s footings were located, since they might be in the way of the construction. As a civil engineer, Mr. Skinner knew the building would have to have footings. Mr. Skinner, Mr. Foret, and the superintendent probed to see if there were footings and located them. Mr. Foret noted that building footings constituted an obstruction to the project, reducing the available work area.

Mr. Skinner testified that there was not adequate space between Perdido Street and the sidewalk and the building’s footings to perform the work. This required a reconfiguration of the work, according to Mr. Skinner, from placement of two 1250 gallon tanks to one 2,000 gallon tank. This reconfiguration was performed with a Wink, Inc. engineer. Mr. Foret testified that he requested a soil report during the “bid walk”, but, receiving none, went forward in the preparation and submission of the bid. Mr. Skinner confirmed that Harbor never received a | (¡geotechnical report on the project. He testified that had LSU obtained this sort of report, it would have shown very soft soil at the location of the severed sewer pipe.

On January 2, 2004, Mr. May issued a request for proposal for changes in the Contract Sum and Contract Time for proposed modifications described as:

1. Provide removal of liquid from existing acid sumps.
2. Provide excavation as required to locate the animal waste piping from the building exit to the animal waste sump, and to determine the usage and location of the sewer cleanout near the animal waste sump.
3. Provide backfill over excavated piping, with detectable warning tape 24 inches below grade, and temporary identification of piping location at grade during construction....

In response, on January 9, 2004, Mr. Foret submitted a proposal to remove existing liquids and perform the excavation, including backfilling with warning tape, for a total of $11,640.00, proposing: (1) to pump down liquids in tanks to existing limestone rocks; (2) existing electric ground light may require complete removal; (3) backfill sloped to approximately two inches below top of existing tanks to allow an unobstructed view of the existing tanks and to prevent foreign material from entering the tanks; (4) to provide temporary wood cover to cover the tanks during excavation and backfilling; (5) the work will require an extension of time, the duration of which will be determined once the revised scope of work is known; and (6) the price is based on straight time uninterrupted work.

Mr. Foret re-worked the proposal and submitted Change Order # 1, dated January 23, 2004. This change order proposed removal of existing liquids, costing $3,418.00, and excavation, costing $5,345.00. The proposal states the following 17work would be performed pursuant to Change Order # 1: (1) existing liquids in tanks will be pumped down to existing limestone rocks; (2) existing electric ground light may require complete removal; (3) as per LSU’s instructions, in order to make the work less expensive, no back-fill is included; (4) provide a temporary wood cover to cover the tanks during excavation and backfilling; (5) an extension of time will be required, the duration of which will be determined once the revised scope of work is known; and (6) the price is based on straight time uninterrupted work. According to Mr. Foret’s testimony, as confirmed by Mr. Skinner’s testimony, this change order was to locate an animal waste line and sewer clean-out, which features were located and are not relevant to the sewer line that later was severed.

On cross-examination, defense counsel suggested that this additional excavation was also to determine other hidden conditions. Mr. Foret responded that the intention was to locate a known animal waste line and sewer clean-out, and that there was no reason to believe there were obstructions or utilities on the sidewalk side of the excavation. He also noted that if the term “excavation” were to include excavation to locate the severed sewer line that was six feet below the surface, such excavation would have required construction of a cofferdam.

The defense referred Mr. Foret to an LSU internal memorandum dated January 27, 2004, written by Gary Desimone of LSU’s purchasing department, indicating that Change Order # 1 in the amount of $8,763.00 was for removal of existing liquids in the existing acid basin tanks and for “excavation to reveal [shidden conditions and determine location of animal waste line.” Mr. Foret testified to no prior knowledge of that memorandum. We note that LSU’s January 2, 2004 request for proposal and Harbor’s proposed and final change orders do not mention “hidden conditions,” and Mr. Foret specifically denied that the object of the change order’s excavation was to do anything more than to locate the animal waste line and sewer clean-out, features unrelated to the severed sewer line. This testimony appears to have been accepted by the trial court, and is reasonable. We note that the only mention of “hidden conditions” is contained in an LSU internal memorandum that, by its own terms, does not appear to have been circulated prior to commencement of this litigation.

Prior to excavation of the pit, Harbor installed a temporary bypass system, and drove sheet metal to form a cofferdam to allow for the excavation and prevent surrounding dirt from sliding into the pit. The sheet piling was twenty feet deep and the excavation was between ten and twelve feet. During the construction of the sheet piling cofferdam, Harbor severed a sewer pipe.

Mr. Foret identified the Wink, Inc. site plans incorporated in the contract, adding by a drawing in red the pipe that was severed. It is clear from the site plan that the plan did not show the pipe that ultimately was severed. Mr. Foret testified that the severed pipe lay buried about six feet beneath the surface. There was no visible indication of any sewer pipe in the area, and the plan showed, in other locations on the site, existing six inch sewer piping, animal waste sumps, acid waste drain piping, and underground animal waste drain piping. Mr. Foret |9testified that had the sewer line been shown on the site plan, Harbor’s bid would have been substantially different, and Harbor might not have bid on the project. The site plan and Mr. Foret’s testimony clearly support the trial court’s conclusion that the sewer pipe that was severed is not shown on the site plan.

In order to comply with the specifications’ requirement that Harbor supply the necessary equipment to keep the bottom of the pit relatively dry during this work, Harbor provided a well point and pumps to keep the water below the work area. This is standard practice in New Orleans, since the ordinary water table in the city is probably three to four feet below the surface. Mr. Foret testified that these pumps would turn on and off automatically, as needed, and should have taken care of removal of any standing water in the excavation pit.

Mr. Foret testified that the excavation took approximately five hours. When it was completed, he had concern because he noted that the soil was extremely soft, and he did not feel it would hold up the sub-base that was to be installed to support the concrete vault. He called in the LSU representative, who ■ called in the engineer. Subsequently, LSU halted work on the project on July 22, 2004, instructing Harbor to vacate the site. It is clear from the testimony of Mr. Foret and Mr. Skinner that LSU shut down the job not because of the broken sewer pipe but because of the poor condition of the soil at the bottom of the pit.

Mr. May testified to the contrary. Harbor’s representatives denied having received any soil reports prior to the shutdown, and LSU did not offer any soil reports into evidence. In light of the conflicting testimony, it is apparent that the hntrial court accepted Harbor’s position that the severance of the sewer pipe did not cause the soil condition that led to LSU’s decision to stop work and change the bed for the vault. We find the trial court’s decision to accept Harbor’s position to be reasonable and not manifestly erroneous or clearly wrong.

During the cessation of work, Harbor moved out its crane and pumps, and left equipment it had rented in place. Harbor advised LSU, through Mr. May, on August 3, 2004 that because of LSU’s lack of a timely decision on the soil problems experienced at the site, it would remove its crane that day. The remaining rented equipment included sheet piling, a bypass pumping system and the bypass tank. During the cessation of work, Harbor continued to pay rent for this equipment. Harbor also carried over its city permits and parking meter permits, expecting to complete the project when LSU allowed work to continue.

The concrete vault was fabricated by Harbor’s subcontractor, and weighed approximately 67,000 pounds. The original plans and specifications called for it to rest on twelve inches of limestone. Mr. Foret testified that, despite Harbor’s request, LSU did not provide a geotechnical report, soil borings or other evidence of the soil consistency at a depth of ten feet. LSU ultimately decided to put in a pile-supported concrete base for the vault.

Mr. Foret testified, and Mr. Skinner confirmed, that, at the time LSU stopped work on the project, Harbor was ready, willing, and able to complete the project pursuant to the original plans and specifications. The eventual use of a | npile-sup-ported concrete slab was not the project on which Harbor had bid. LSU rejected Harbor’s offer to construct the pile-supported pad as a change order.

Mr. Skinner testified that when LSU shut down the job, it did not ask Harbor to remove its equipment. He understood that LSU expected Harbor to return to the jobsite and finish the project.

Mr. Foret testified on cross-examination that the rented sheet pilings had to remain on the site during construction of the pile-supported pad in order to hold back the surrounding soil while LSU’s contractor drove the piles and installed the concrete pad. The parking meter also was required to remain in place to allow access for the pile driving crane and for the LSU contractor to do his work.

Mr. Foret testified that several months later, LSU allowed Harbor to return to the site, whereupon Harbor completed the job, installing the vault, the tank, the limestone in the tank, and the connecting piping. Everything shown as “to remain” on the site plan remained and was reconnected, if necessary, by Harbor.

It is clear that the statutory non-liability of a contractor for destruction or deterioration of work performed according to the supplied plans and specifications “shall not be subject to waiver by the contractor.” This mandatory language demonstrates the legislative intent to offer a strong protection to a contractor who relies on plans and specifications submitted to him by the owner or its representative. This protection is not absolute, however. In New Orleans Unity Society of Practical Christianity v. Standard Roofing Co., 224 So.2d 60 (La.App. 4th Cir. 1969), this Court held that while an obvious purpose of the statute was to | ¶ ¿relieve a contractor of liability for defects of which he was unaware in materials furnished, but not manufactured by, the contractor, the immunity could be lost should the contractor offer a specific guaranty in connection with the work. The contractor offered a ten-year guaranty of the roof, and this Court held that the statute did not insulate the contractor from liability on his guaranty. Likewise, in third party tort actions, Louisiana courts have held that a contractor may not blindly rely on plans and specifications furnished to the contractor, and could be held liable to third parties if the contractor had reason to believe that compliance with specifications or plans would create a hazardous situation. See, Morgan v. Lafourche Recreation Dist. No. 5, 01-1191 (La.App. 1 Cir. 6/21/02), 822 So.2d 716; Cormier v. Honiron Corp., 00-446 (La.App. 3 Cir. 9/27/00), 771 So.2d 193; Van Alton v. Fisk Elec., Inc., 531 So.2d 1175 (La.App. 4th Cir.1988). Because the statutory immunity is non-waivable and is subject only to exceptions as noted above, we shall examine the contract and change order to determine whether the trial court’s judgment, implicitly finding no guaranty by Harbor, is reasonable.

LSU relies on the following contractual provisions as bases for Harbor’s liability:

Base Bid: Also, the bidder shall visit the site of the proposed work in order to become familiar with the facilities, difficulties, and restrictions involved in attending the execution of the contract. The Contractor shall not be allowed any additional compensation for failure to be so informed. [Emphasis added.]
Intent: 5. All drawing provided by LSU indicating the location and dimensions of spaces and equipment are meant as a guide to the contractor. It is the responsibilities (sic) of the contractor to field verify all 113dimensions and job site conditions that may affect the cost of the project. Verification of job conditions and dimensions prior to bid is the responsibility of the contractor. [Emphasis added.]
Coordination of Work: 6. Verify location of all utilities, i.e. ... water, drains, ... etc. and existing conditions. Notify the Construction Coordinator of conditions that may require any deviation from the specified locations shown on the drawings for the installation of these utilities. [Emphasis added]
Field Engineering: 1. All drawings are for reference only. The contractor is responsible for field verification of all dimensions and job site conditions that may affect the cost of the project. 2. Verify and locate utilities, existing facilities, and equipment. 3. Inspect, examine, and layout improvements, utilities, structures, and components. [Emphasis in original]
Site plan: 5. Contractor shall visit the site prior to bid and shall thoroughly familiarize himself/herself with the existing conditions. By the act of submitting a bid, this contractor accepts the conditions under which he/she will be required to work.... 7. Contractor shall protect existing buildings, structures and utilities from damage. Any damage caused by the contractor shall be repaired at no expense to the owner.

Mr. Foret testified that the sewer pipe, buried some six feet beneath the surface, would not have been apparent upon a field inspection. Mr. Parker testified that LSU expected that the contractor bidding the project would take specific on-site measurements, and do whatever they needed to do to be able to bid the project accurately and include all costs associated with the bid and the project. Mr. May testified that in order to familiarize itself with the job site, Harbor could have used sonar, probe, or digging. He did not indicate which, if any, of these measures would have located the severed sewer pipe. It is not unreasonable to reject LSU’s interpretation of the contract language to require a bidder to excavate the entire jobsite to a level of six feet in order to comply with the contractual inspection requirement.

I14LSU also relies on the contract’s provision requiring Harbor to maintain the existing utilities that are “indicated to remain”. It is reasonable to interpret this clause as imposing an obligation to maintain the utilities that are indicated on the drawings to remain. The severed sewer pipe was not “indicated to remain” on the drawings LSU submitted to Harbor. Similarly, LSU relies on the contract’s demolition section requiring the contractor to protect existing structures “which are to remain”, properly to protect all pipes which “are not noted to be demolished or removed”, and to maintain existing utilities and services “not slated for demolition.” Since the severed sewer pipe is not noted on the drawings, it is reasonable to infer that Harbor was not required to protect or maintain that unmarked pipe pursuant to these contract provisions.

As Justice Brandéis noted, writing for a unanimous court in United States v. Spearin, 248 U.S. 132, 136, 54 Ct.Cl. 187, 39 S.Ct. 59, 61, 63 L.Ed. 166 (1918):

[I]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work, ... [Citations omitted]

The Spearin opinion was cited by the Louisiana Supreme Court in Louisiana Shipbuilding Co. v. Bing Dampskibsalctieselskab, 158 La. 548, 104 So. 364 (1925), decided decades before adoption of the immunity statute. In the Louisiana case, ships built according to the owner’s plans were not approved by the American Bureau of Shipping. The builder was not at fault since it had followed the owner’s specifications. We find it reasonable to conclude, as did Justice Brandéis nearly a hscentury ago, that the standard contractual language requiring a contractor to visit the site, check plans, and inform themselves of the requirements of the work does not overcome the owner’s responsibility for providing correct plans and specifications.

Neither does Change Order # 1 require reversal of the trial court judgment. The order itself is limited to pumping down the liquids in the existing tanks, possibly removing an existing electric ground light, and providing a temporary wood cover for the tanks during excavation. Mr. Parker testified that he approved the change order with the expectation that Harbor would do exploratory excavations “to reveal anything that was going to be difficult for them to deal with during the execution of the job, as well as to remove the liquids that were there.” On cross-examination, Mr. May admitted that LSU’s excavation request was specific to the animal waste piping and location of the sewer cleanout near the animal waste sump.

Excavation for “hidden” obstructions is mentioned only in LSU’s memorandum of January 27, 2004. Mr. May testified that Harbor’s letter of January 23, 2004 was a change order including removal of existing liquids in the acid sump tanks “as well as excavation of the hidden conditions in the acid, acid lines.” We note, however, that the referenced letter makes no mention of “hidden conditions”. While Mr. Parker claimed that the LSU memorandum of January 27, 2004 was sent to Harbor, he did not identify the person who allegedly sent it, when it was sent and to whom, and provided no objective evidence of such transmittal by facsimile cover sheet, copy shown on the memorandum, or otherwise. It is reasonable to conclude that this was an LSU internal memorandum that was not a part of the final change order. As previously noted, the trial court reasonably could | ifihave accepted Mr. Foret’s testimony that LSU’s request that it provide excavation as required to locate the animal waste piping from the building exit to the animal waste sump, and to determine the usage and location of the sewer cleanout near the animal waste sump referred only to the animal waste piping and sump and the attendant sewer cleanout, and not to the entire underground beneath the job site, or, specifically, to the severed sewer pipe.

We find nothing in the contract that would constitute a guaranty by Harbor similar to that existing in the Standard Roofing case. Nor do we find the trial court’s conclusions from the evidence concerning the nature of Harbor’s contractual undertakings to be unreasonable.

LSU contends that Harbor did not prove its expenses and overhead costs by a preponderance of the evidence.

On August 19, 2004, Harbor advised LSU through Mr. May of its continuing expenses caused by the work stoppage, and noted:

As you are aware, the actual flow rate required for the temporary bypass system far exceeds the engineers [sic] estimate. LSU ... has elected to perform monitoring, emptying and modifications of this system to compensate for the increased flow rates. Please be informed that due to these changes we have concluded that LSU ... assumes full responsibility for this changed condition.

In that same letter, Harbor requested a meeting with “all pertinent parties” to expedite completion of the project. On September 17, 2004, by letter to LSU through Mr. May, Harbor advised LSU of its continuing expenses arising from the 117work delay, and that Harbor would make a claim for its losses. On May 14, 2005, Mr. Skinner sent Wink, Inc. its itemized claim for losses to that point in time:

Crane rental $ 2,233.32

Street sign rental 7/22/04-8/10/04 644.06

City Roadway and Parking Meter fee 1,650.25

Sheet pile rental 7/22/04-11/10/04 1,138.11

Temp, acid tank rental 7/22/04-11/10/04 5,456.32

Builders Risk Policy extension 576.15

Empty overflowing 6500 gal. acid waste tank 2,389.99

Home office overhead 14,018.19

Markup on bond 545.65

Damage caused to cofferdam by LSU plumber 798.62

Home office overhead, Change Order and 2 21,886.10

TOTAL: $51,336.76

In support of its claim, Harbor provided through the testimony of Mr. Skinner evidence of expenses, including:

Copies of invoices from B & G Crane Service (B & G), LLC, for crane rental and Harbor’s cancelled check to that company. Harbor’s check to B & G for $3,411.50 included $577.50 for the first moving in and out of the crane and for rental from July 8, 2004 through August 3, 2004. Harbor did not claim reimbursement for the initial moving charge or for rental from July 8, 2004 through July 22, 2004, for a total, with 15% markup, of $2,233.32.
Copies of invoices from United Rentals Highway Technologies (United), for street signs, and Harbor’s cancelled check to that company. Harbor’s check to United for $980.11 represents payment of rent from July 7, 2004 through August 10, 2004. Harbor claimed reimbursement only for the period from July 22, 2004 through August 10, 2004, with 15% markup, or $644.06.
Copies of applications for city roadway and parking meter fees, and Harbor’s cancelled checks for those permits in the amounts of $420.00, $420.00, $970.00, and $1015.00. Harbor claimed reimbursement for the second roadway fee ($420.00) and second parking hstneter rental for July 10, 2004 through August 8, 2004 ($970.00), for a total, -with 15% markup, of $1,650.25.
Copies of invoices from J.D. Fields and Company, Inc. for sheet pile rental, and Harbor’s cancelled checks to that company in the amounts of $5,802.64, $273.11, $273.11, and $273.11. Harbor claimed reimbursement for rentals from July 22, 2004 through November 12, 2004, less a credit for the last two days in November, for a total, with 15% markup, of $2,345.32
Copies of invoices from Baker Tanks, Inc. for temporary acid tank rental, and Harbor’s cancelled checks to that company in the amounts of $1,589.35, $1,309.35, $1,309.35, $1,333.43, and $1,333.43. Harbor claimed reimbursement for rental from July 22, 2004 through November 11, 2004, less late charges and rental for November 11, 2004, for a total, with 15% markup, of $6,023.01
Copy of Fireman’s Fund invoice for extension of builder’s risk policy, and Harbor’s cancelled check to that company, for a total, with 15% markup, of $576.15.
Copy of invoice from Garner Environmental Services, Inc. for emptying overflowing acid waste tank, supporting documentation, and copy of Harbor’s cancelled check to that company, for a total, with 15% markup, of $2,389.99.
Copy of invoice from J.D. Fields and Company (Fields) to remedy two sheet pilings damaged by Lang Mechanical Contractor, Inc., LSU’s plumbing contractor, and copy of Harbor’s cancelled check to Fields, for a total, with additional bonding cost and 15% markup, of $798.62
Hartford Casualty Insurance Company — New Class B Rate bond charge for a total, including 15% markup, of $545.65
Statement of home office overhead for delays from 7/22/04 to 11/11/04, supporting overhead of $13,207.89.
Statement of home office overhead for change orders 1 and 2 with additional bond cost in the amount of $20,621.01.
119Audits by Pechón & Pechón, L.L.C., Certified Public Accountants, showing Harbor’s general overhead expenses for the years ended 12/31/03 and 12/31/04

The foregoing documentation supports the expenses as revised, claimed by Harbor. We note that our computation of the actual expenses results in a total of $17,206.37, which is $18.70 less than the amount awarded by the trial court. We therefore amend the amount awarded for actual expenses to $17,206.37. We find this award to be supported by the documents offered in connection with Mr. Skinner’s testimony.

In reviewing the award of overhead expenses, we note that Mr. Skinner testified that the overhead charge listed on Harbor’s Exhibit # 16 related to delays caused by Change Orders # 1 and # 2. According to the exhibit, overhead was calculated as $118.99 per day for 170 days. The days were calculated as follows:

“Notice to Proceed to Change Order No. 1 November 10,2003 to January 27,2004 78 days
Change Order No. 1 to Change Order No. 2 January 27, 2004 to April 6, 2004 71 days
Change Order No. 2 to Remobilization April 6,2004 to June 22, 2004 77 days
Minus the time from Notice to Proceed until Mobilization on our original Nov. 17, 2003 Schedule November 10, 2003 to January 5, 2004 (56 days)
Total Delays: 170 days”

The issue of overhead was addressed in Bert K. Robinson, Construction Law: Elements of Contractors’ Damages, 38 La. B.J. 247 (1990):

The contractor is entitled to be reimbursed all of its expenses, direct and indirect, caused by the owner’s breach of contract. One of these expenses is overhead. Overhead may consist of direct expenditures made for job site overhead (also called direct overhead or field overhead), and home office overhead (also referred to as indirect overhead).
| gnWith regard to home office overhead (obviously a very real, but indirect, expense), some courts simply award a figure of 10 percent or 15 percent, whereas other courts prefer an attempt at a more accurate figure. The most generally accepted computation in the United States is found in Eichleay Corp. [Cited in footnote as 60-2 BCA [P] 2688, affd 61-1 BCA [P] 2894 (I960)], which “computes the daily amount of overhead that the contractor would have charged to the contract had there been no delay, and gives the contractor this amount of overhead for each day of delay that has occurred during performance.” [Citing in footnote Nash, Government Contract Changes, 397-398 (1975) ] It is a standard accounting practice to attribute main office expenses to various company projects on some basis.
Job site overhead, being a direct expense, has historically been awarded to the delayed contractor. Louisiana courts, consistent with those of other states, also award the delayed contractor its home office, i.e., indirect, overhead. [Citing in footnote McCarty Corp. v. Industrial Scaffolding, Inc., 413 So.2d 1322 (La.App. 1st Cir.1981); see also, Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir.1978) ] [Citations omitted unless specifically noted.]

A contractor is entitled to recover for wasted overhead expenses as an element of damages in connection with his claim for reimbursement of outlay. These overhead expenses are recoverable where, as a result of the defendant’s conduct (in this case, LSU’s failure to assess the condition of the soil underneath the proposed tank and to mark on the plans and specifications the ultimately severed sewer line), the plaintiff may have suffered a work stoppage and may have wasted overhead expenses because labor and equipment were idle during such a stoppage. S.R. Shapiro, 3 A.L.R.3d 689, § 9. The right to recover overhead as an element of damages has also been recognized in Louisiana in Magnolia 21Construction Co., L.L.C. v. Parish of St. Charles, 06-543, p. 5 (La.App. 5 Cir. 11/28/06), 947 So.2d 747, 749.

In the Al Smith’s Plumbing & Heating, Inc. case, this Court found that the evidence provided by River Crest was insufficient to allow the Court to determine if the contractor’s loss was due in part or entirely to the defaulting party’s delay, or it if represented River Crest’s own underbid. The Court awarded a ten percent “customary overhead” award as indirect costs on overruns attributable to Smith’s breach.

In awarding Harbor’s overhead expenses, the trial court cited McCarty Corp. v. Industrial Scaffolding, Inc., 413 So.2d 1322 (La.App. 1st Cir.1981). In that case, the Court noted:

As the record shows overhead or indirect expenses consists [sic] generally of the expenses of a business enterprise for salaries of executives, central office staff personnel, rent, communications, vehicles, utilities, interest on borrowed capital and numerous other expenses which are extremely necessary for the operation of the business, but which are not directly attributable to a particular construction job or project.... Overhead or indirect expenses are in fact an expense. They are as true a cost of doing business as are the direct costs. For these reasons, it is customary to make an award of overhead in both actions of breach of contract and tort actions to cover indirect expenses of the nature testified to in this case ... which are not reflected by a direct expense incurred in remedying the damage sustained, and such expenses need not be proved item by item. Indeed, if we were to require an item by item proof of indirect expenses or overhead, we would be requiring the impossible for most business enterprises, and ruling out recovery of overhead, which is a portion of damages clearly permitted by our laws. Furthermore, if we were to rule out overhead in the present case, we would be interfering with the “much discretion” permitted the trial judge ... in awarding damages by LSA-C.C. art. 1934.

| aaGiven the record taken as a whole, including Mr. Skinner’s testimony and the certification by the certified public accountants, we cannot say that the trial court abused its much discretion in awarding overhead to Harbor in the amount of $33,828.90.

For the foregoing reasons, we amend the award of direct damages to $17,206.37, and affirm the award of overhead expenses.

AMENDED AND, AS AMENDED, AFFIRMED.

      . La. R.S. 9:2771 provides:
      Non-liability of contractor for destruction or deterioration of work.
      No contractor ... shall be liable for destruction, ... in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, ... was due to any fault or insufficiency of the plans or specifications .... The provisions of this Section shall not be subject to waiver by the contractor.

      . At the time of the activities relevant to this lawsuit, Mr. Parker served as LSU's assistant director of purchasing.

      . On June 15, 2009, the sheet pile rental figure was revised to $2345.32; the acid tank rental figure was revised to $6023.01; the home office overhead was revised to $13,207.89; the markup on bond was revised to $564.35; and the home office overhead caused by change orders 1 and 2 was revised to $20,621.01, resulting in a total claim of $41,053.97.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Garold Wayne BURDINE, Jr., et al., Plaintiffs-Appellants v. L.C. ROBERTSON, et al., Defendants-Appellees.
    No. 46,213-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Stephen T. Collins, Shreveport, LA, for Plaintiff-Appellant, Garold Wayne Bur-dine, Jr.
    Norman R. Gordon & Associates, Shreveport, LA, by W. Brett Cain, for Plaintiff-Appellant, Lauren Duos.
    Mayer, Smith & Roberts, Shreveport, LA, by David F. Butterfield, for Defendants-Appellees, L.C. Robertson, Bedsole Wood Corp., and Empire Indemnity Insurance Company.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

Iiln this two-vehicle collision case, the plaintiff/driver and his plaintiff/passenger both appeal from a trial court judgment that assessed the plaintiff/driver with 85 percent fault and the defendant/driver, whose log truck obstructed the favored road while entering from a private road, with only 15 percent fault. We amend the trial court judgment and, as amended, affirm.

FACTS

On October 24, 2006, Garold Wayne Burdine, age 19, was driving a 1991 Ford Ranger pickup truck south on Woolworth Road in Caddo Parish. The area is rural and lacks street lighting. Burdine was accompanied by his 16-year-old girlfriend, Lauren Duos. L.C. Robertson was driving a loaded log truck for his employer, Bed-sole Wood Corporation (“Bedsole”). As Robertson pulled onto Woolworth Road from a private road, heading south, his truck obstructed both sides of Woolworth Road. Burdine’s truck struck the trailer portion of the log truck. Both he and his passenger were injured. Robertson was cited for failure to yield while entering from a private drive; he pled guilty and paid a fine.

On October 9, 2007, Burdine and Ms. Duos’ mother, acting on behalf of her minor daughter, filed suit against Robertson, Bedsole, and Bedsole’s alleged auto insurer, Zurich American Insurance Company (“Zurich”). In their answer, the defendants stated that Empire Indemnity Insurance Company was the correct name of their insurer; Zurich was subsequently dismissed from the suit by the plaintiffs. The defendants also asserted that fault by Burdine caused the accident and that the plaintiffs had failed to 12mitigate their damages. In April 2009, Ms. Duos, no longer a minor, filed an amended petition against Burdine and his insurer, Allstate Insurance Company (“Allstate”), alleging, in addition to the claims pertaining to Robertson made in the original petition, that the accident was also caused by Burdine’s negligence.

Bench trial was held on March 25, 2010. Prior to trial, Ms. Duos settled her claims against Burdine and his insurer, Allstate. Trial testimony was given by both plaintiffs and the deputy sheriff who investigated the accident. Also testifying were Robertson and two independent witnesses to the accident. At the conclusion of the testimony, the matter was taken under advisement.

On April 8, 2010, the trial judge gave oral reasons for judgment in open court. He assessed fault of 85 percent to Burdine and 15 percent to Robertson. The judge observed that both plaintiffs and the deputy sheriff testified that the accident occurred after darkness fell while Robertson and the two independent witnesses indicated that it was just before dark and that there was some visibility. The judge found evidence of some inattentiveness on Burdine’s part, noting Ms. Duos’ testimony that they were engaged in a discussion as they approached the log truck. However, the court also found that Robertson was negligent in not using warning signs when pulling out onto the road as he knew that his vehicle would completely obstruct the road. Damages of $39,941.88 ($30,000 in general damages plus her medical bills) were awarded to Ms. Duos and $37,985.71 ($25,000 in general damages plus his medical bills) to Burdine; these | .^amounts were subject to 85 percent reduction. The court assessed 85 percent of the court costs incurred by the defendants to Burdine, while the defendants were assessed with 15 percent of the court costs incurred by Burdine and Ms. Duos. Judgment was signed May 4, 2010.

Both Burdine and Ms. Duos appealed.

LAW

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2128 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

After an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to |4the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607.

As to the allocation of fault, the trier of fact is bound to consider the nature of each party’s wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985); Fontenot v. Patterson Insurance, 2009-0669 (La.10/20/09), 28 So.3d 259.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4)the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Insurance Co., supra.

An appellate court must give great deference to the allocation of fault as determined by the trier of fact. Fontenot v. Patterson Insurance, supra; Clement v. Frey, supra. The allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and any allocation by the fact finder ■within that range cannot be clearly wrong. Fontenot v. Patterson Insurance, supra. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award. Fontenot v. Patterson Insurance, supra; 5Schysm v. Boyd, 45,-336 (La.App.2d Cir.8/16/10), 47 So.3d 977, writ denied, 2010-2113 (La.11/19/10), 49 So.3d 390.

If a motorist fails to see what he should have seen, the law charges him with having seen what he should have seen, and the court examines his subsequent conduct on the premise that he did see what he should have seen. Fontenot v. Patterson Insurance, supra.

La. R.S. 32:124 provides:
The driver of a vehicle about to enter or cross a highway from a private road ... shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.

TRIAL TESTIMONY

The accident occurred on Woolworth Road, which is a two-lane blacktop road running north and south; there are no streetlights in the area where the instant collision occurred. The witnesses described the accident as happening at the bottom of a hill just past Walnut Hill Elementary School. A motorist driving south on Woolworth Road would pass Walnut Hill Elementary School before heading down the hill. At the bottom of the hill, there is a ditch on the west side of the road; there is no improved shoulder in this part the road. Just south of the accident site is a bridge. The speed limit in this area is 55 mph. The log truck was entering the roadway from a private log road on the east side of Woolworth Road. In order to go south, the log truck had to make a left-hand turn. Due to the size of the road and the truck, this maneuver required Robertson, the log truck driver, to cross both lanes, stop when he reached the edge of the west side of |fithe road, back up, and then turn again. If he did not back up, the truck would begin to go down into the ditch on the west side of the road.

Visibility at the time of the accident was an issue at trial. According to information introduced from the U.S. Naval Observatory, sunset on the day of the accident occurred at 6:32 p.m. and the end of civil twilight was at 6:57 p.m. The trial testimony of the witnesses as to visibility and the time of the accident varied greatly. Burdine and Ms. Duos said it was dark when the collision occurred. The deputy sheriff testified that he received the call about the accident at 7:30 p.m. and that he arrived at the accident scene at 7:34 p.m. His estimated time for the collision was 7:27 p.m. He testified that it was dark when he arrived at the scene and he needed a flashlight to see while conducting his investigation.

Robertson testified that the collision occurred as the sun was going down behind the trees and that it was not dark at that point. However, he also testified that it was dark when he put his warning signs and flares out about five to 10 minutes after the accident. Furthermore, Robertson admitted that it was dark when the police arrived. George Rainer, a southbound driver who witnessed the accident and called 911, agreed that it happened on “the edge of darkness.” In his written statement to the police, he gave the accident time as around 7:20 p.m. He testified that he was already calling 911 as he stopped at the accident site; a few minutes later, Burdine asked him to call his parents. Although the 911 call did not show up on Mr. Rainer’s phone bill because it was not a billable call, the phone bill showed that the call to Burdine’s parents was placed at 7:23 p.m. 17Rainer testified there was enough daylight left that he was able to avoid the log truck and he believed that the Burdine pickup should have been able to do the same. Michael Pennywell, another southbound driver who saw the accident, said he was sure it was daylight; he was uncertain of the time but had thought it could have been as early as 4:30 p.m. He also testified that the pickup truck had ample opportunity to stop before hitting the log truck.

Burdine and Ms. Duos also testified that they both could see lights at the bottom of the hill. As they continued down the road, they discussed the lights and concluded that there was possibly a disabled car on the side of the southbound lane. Both were aware that there was a deep ditch on the west side of the road that would have prevented such a vehicle from pulling all the way off the road. Burdine acknowledged that he was aware that there was a bridge close to where he saw the lights. Burdine reduced his lights from high beam to low beam so as not to blind the motorist he was approaching. Burdine, who testified that he was going 50 to 55 mph in a 55 mph zone, stated that he slowed down to between 40 to 45 mph, and moved into the northbound lane to pass what he perceived to be a stalled vehicle. He admitted that Ms. Duos told him to slow down and be careful. Ms. Duos testified that Burdine only slowed from 55 mph to 50 mph. The young couple also testified that immediately before the accident they were engaged in conversation.

Rainer testified that Burdine passed him shortly before the accident and that Bur-dine was perhaps going 65 mph. Penny-well, who admitted to a 2008 drug possession conviction, testified that Burdine also passed him; |8while he was unsure of Bur-dine’s speed, Pennywell was able to say that he was going 60 mph when Burdine passed him.

DISCUSSION

The overwhelming objective evidence indicates that the accident occurred at approximately 7:20 p.m. At this time, it was dark enough to require the use of headlights to drive safely. Both vehicles involved in the accident were utilizing their headlights. Robertson testified that the trailer had some lights on it, as well as lights on the back of the trailer; however, given the position of the trailer, Burdine was unable to see the lights on the back of it. Burdine did testify that he could see hazard lights blinking on the back of the truck itself as he approached the collision site. Additionally, Rainer, one of the independent witnesses, noted that the lights at the bottom of the hill appeared “weird” and “awkward”; this put him on alert as he approached.

Applying the Watson factors to the instant matter, we note that the log truck driver, Robertson, had an awareness of the danger caused by his actions in obstructing the entire road as he entered from a logging road. The length of his vehicle and the narrowness of the road required him to perform a complicated maneuver to enter the roadway. This maneuver required care and could not be completed as quickly as driving a regular truck onto the road. The risk created by Robertson’s conduct was great, especially considering the diminished visibility. His capacity was certainly superior, not inferior, to that of Burdine, and there were no extenuating circumstances requiring him to proceed hastily and without thought. As noted by the trial |3court, he could have utilized safety measures in achieving his entry onto the roadway.

Based upon our review of the facts of this case, we find that a greater degree of fault must be attributed to Robertson, a professional driver. The accident occurred at twilight in an area surrounded by tall trees which further darkened the area. Robertson indicated that he had been working in the area for about a month and that they would leave the work site at about 6:00 p.m. because of the loss of daylight. The log truck traversed the road in such a manner that its lights failed to clearly reveal to oncoming traffic that the vehicle was perpendicular to the roadway. Even though he knew that he was required to perform a dangerous turn to get onto the road, Robertson made no attempt to warn motorists that he was blocking both lanes of traffic.

On the other hand, Burdine had a lesser degree of fault. He was aware that there were some activity involving another vehi-ele — possibly stalled or disabled — at the bottom of the hill. He also knew that there was a deep ditch on the west side of the road that would have compromised the ability of the driver to safely remove such a disabled vehicle completely from the roadway. He further admitted that he realized that there might even be occupants of the vehicle standing in the roadway outside of it. Another factor is that Burdine realized that there was a bridge a short distance beyond the area where he observed the lights; knowledge of the location of this bridge should have inspired greater caution on Burdine’s part. While he reduced his speed to a small degree and moved over into the | innorthbound lane to pass what he assumed to be a stalled car, he failed to exercise sufficient caution and vigilance by slowing down more significantly. Had he done so, this youthful driver would have had an increased ability to react once he approached and more accurately perceived the peril that lay in his path.

Our careful review of the record demonstrates that the trial court was manifestly erroneous in its allocation of fault. Therefore, we are obliged to adjust the percentages of fault. We raise the assessment of fault against Robertson from 15 percent to the lowest percentage which is reasonably within the trial court’s discretion, or 60 percent. Correspondingly, we lower Bur-dine’s percentage of fault from 85 percent to 40 percent.

CONCLUSION

The judgment of the trial court is amended to raise the percentage of fault assessed against L.C. Robertson from 15 percent to 60 percent and to lower the percentage of fault assessed against Ga-rold Wayne Burdine from 85 percent to 40 percent. The costs awarded in the lower court are amended in accordance with these percentages. As amended, the trial court judgment is affirmed. Costs of this appeal are assessed to the defendants.

AMENDED AND, AS AMENDED, AFFIRMED.


author: PEATROSS, J.

text:
    Yolanda Marie EBARB, Plaintiff-Appellee v. Philip David MATLOCK, et al., Defendants-Appellants.
    No. 46,243-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Mark A. Goodwin, for Appellants.
    Gregorio, Gregory & Payne, Shreveport, LA, by Sam N. Gregorio, Scott J. Chafin, Jr., Julie Payne Johnson, Joseph A. Gregorio, for Appellee.

      Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| tPlaintiff, Yolanda Marie Ebarb, brought suit against Phillip David Matlock and his insurance company, American States Insurance Company (collectively referred to as “Mr. Matlock”), and David L. Terry and his liability insurer, Louisiana Farm Bureau Insurance Company, for injuries and damages sustained as a result of a three-car collision which occurred on December 3, 2008.

Mr. Matlock filed an answer denying liability to Ms. Ebarb’s petition for damages. Shortly thereafter, a motion for summary judgment was filed on behalf of Mr. Terry requesting that the trial court dismiss Ms. Ebarb’s claims against him. The trial court granted summary judgment in favor of Mr. Terry and Ms. Ebarb did not appeal that judgment. Ms. Ebarb then filed a motion for partial summary judgment against Mr. Matlock on the issue of liability. Mr. Terry also filed a motion for partial summary judgment against Mr. Matlock adopting the same position as Ms. Ebarb. The trial judge granted summary judgment in Ms-. Ebarb’s favor and against Mr. Matlock on the issue of liability only. Mr. Matlock appeals from this summary judgment. For the reasons stated herein, we affirm.

FACTS

On December 3, 2008, around noon, in Bossier City, Louisiana, Ms. Ebarb was traveling in the left eastbound lane of 1-20 in a 2007 Kia Sorento to meet her husband for lunch. Ms. Ebarb began to approach the Old Minden Road overpass and saw that traffic was stalled in both eastbound lanes of the interstate. According to Ms. Ebarb, she was traveling between 55-60 miles per hour when she began to drive up the 1 ¡.slope of the overpass; and, on noticing the stalled traffic, she applied her brakes and came to a complete stop, leaving sufficient space between herself and the vehicle in front of her.

Mr. Terry was traveling with his mother and 4-year-old daughter in his Jeep Cherokee at approximately 60 miles per hour, directly behind Ms. Ebarb in the left eastbound lane of the interstate. As he began to approach the overpass, Mr. Terry saw that traffic in both eastbound lanes had stalled. Mr. Terry was able to slow his vehicle to a complete stop at a safe distance behind Ms. Ebarb’s vehicle.

After coming to a complete stop, Mr. Terry noticed in his rear-view mirror that a Ford F-250 truck was approaching directly behind him at a high rate of speed. Mr. Terry’s mother, who was sitting in the passenger seat, commented on the high rate of speed at which the approaching truck was traveling, so Mr. Terry decided to steer his vehicle as far as he could onto the left shoulder of the interstate to avoid a potential collision with the approaching truck.

The approaching truck was being driven by Mr. Matlock. According to Mr. Mat-lock, he was traveling at 60 miles per hour as he began to approach the Old Minden Road overpass. As Mr. Matlock neared the overpass, he observed stationary traffic blocking both eastbound lanes of the interstate. He further testified that he applied his brakes and slowed his vehicle, but, nevertheless, rear-ended Mr. Terry’s vehicle, which then began to roll over, ultimately colliding into Ms. Ebarb’s vehicle.

|sMs. Ebarb was transported from the crash site to the hospital by an ambulance. She suffered from a spinal injury that required surgery. The Bossier City Police Department issued a traffic citation to Mr. Matlock for “Following To Close” [sic]. Mr. Matlock paid the fíne.

As previously stated, Ms. Ebarb filed suit against Mr. Terry and Mr. Matlock on November 2, 2009. Mr. Matlock filed an answer denying liability and Mr. Terry filed a motion for summary judgment on his own behalf also denying liability. The trial judge granted the motion for summary judgment in favor of Mr. Terry and, in his oral reasons for judgment, noted that it was clear from the testimony that Mr. Terry had come to a complete stop without hitting Ms. Ebarb and it was only as a result of being rear-ended by Mr. Matlock that Mr. Terry was forced into colliding with Ms. Ebarb.

Ms. Ebarb then filed a motion for summary judgment against Mr. Matlock. During the summary judgment hearing, the trial judge noted the legal principle that a following motorist who rear-ends another motorist is presumed to be at fault and bears the burden of proving otherwise. The trial judge acknowledged that there was a discrepancy between Mr. Matlock’s affidavit and his deposition as to where his vehicle was on the overpass when he saw the stalled traffic in the eastbound lanes of the interstate. Nevertheless, the trial judge maintained that Mr. Matlock’s vehicle had been in essentially the same position as the vehicles of Ms. Ebarb and Mr. Terry, who were both able to safely stop without causing a collision.

|4The trial judge also recognized that Mr. Matlock paid the fine after being issued the traffic citation for following too closely, which was tantamount to a guilty plea. In light of the aforementioned evidence, the trial judge concluded that Mr. Matlock had failed to overcome the legal presumption that a following motorist who rear-ends another motorist is at fault and rendered summary judgment against Mr. Matlock on the issue of liability.

This appeal ensued.

DISCUSSION

Mr. Matlock argues that the trial judge erred in granting summary judgment against him on the issue of liability. Mr. Matlock claims that he rebutted the presumption of liability against him through the submission of his affidavit which stated that he had his vehicle under control, that he closely observed the preceding vehicle and that he followed at a safe distance under the circumstances. Mr. Matlock argues that, because the overpass was elevated and he was unable to see over the other side of the crest where the traffic was stalled in the eastbound lanes, there was nothing more he could have done to avoid impact.

Mr. Matlock concedes that he was ticketed for following too closely and that he paid the ticket; however, he asserts that he did so to avoid spending time and money fighting the ticket, not because he was guilty. Finally, Mr. Matlock argues that he did not have the benefit of slowing traffic ahead of him before he reached the crest of the overpass; thus, he was |snot operating under the same circumstances as Mr. Terry and Ms. Ebarb were when they were able to bring their vehicles to a safe stop.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Roach Plumbing & Heating, Inc. v. Fairfield Towers, L.L.C., 44,551 (La.App.2d Cir.8/19/09), 17 So.3d 493; NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories and admissions on file together with affidavits show that there exists no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Sears, Roebuck and Co. v. Richardson, 32,951 (La.App.2d Cir.4/5/00), 759 So.2d 190.

Once the mover has made a prima facie showing that the motion should be granted, the burden shifts, to the adverse party to present evidence demonstrating that material factual issues remain. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. To satisfy his burden of proof, the nonmov-ing party must not rely on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967; Hardy v. Bowie, supra.

|fiA fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Hardy v. Bowie, supra; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App.2d Cir.4/4/01), 785 So.2d 101. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. Knowles v. McCright’s Pharmacy, Inc., supra. The failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Sears, Roebuck and Co., supra.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of La. C.C. art. 2315. Bates v. Prater, 42,149 (La.App.2d Cir.5/9/07), 956 So.2d 814. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (i) the defendant had a duty to conform his conduct to a specific standard of care; (2) the defendant failed to conform his conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270; Bates v. Prater, supra. Duty is a question of law. Bates v. Prater, supra; Beck v. Schrum, 41,647 (La.App.2d Cir.11/1/06), 942 So.2d 669. The inquiry is whether a plaintiff has any law — statutory, jurisprudential or arising from general 1 principles of fault — to support his or her claim. Hardy v. Bowie, supra; Bates v. Prater, supra.

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. See La. R.S. 32:81(A). A following motorist in a rear-end collision is presumed to have breached this duty and, therefore, is presumed negligent. Mart v. Hill, 505 So.2d 1120 (La.1987); Broussard v. Zurich American Ins. Co., 44,695 (La.App.2d Cir.9/23/09), 23 So.3d 370; Bennett v. Louisiana Farm Bureau Cas. Ins. Co., 43,216 (La.App.2d Cir.4/30/08), 983 So.2d 966.

To avoid liability, a following motorist who rear-ends another vehicle must prove he was not at fault by establishing that he had his vehicle under control, closely observed the lead vehicle and followed at a safe distance under the circumstances. Broussard v. Zurich American Ins. Co., supra; Bennett v. Louisiana Farm Bureau Cas. Ins. Co., supra; Bates v. Prater, supra; Morris v. Flores, 36,932 (La.App.2d Cir.3/7/03), 840 So.2d 1257; Chambers v. Graybiel, 25,840 (La.App.2d Cir.6/22/94), 639 So.2d 361, writ denied, 94-1948 (La.10/28/94), 644 So.2d 377. The following motorist may also avoid liability by showing that the lead motorist negligently created a hazard which could not reasonably be avoided. Broussard v. Zurich American Ins. Co., supra; Bennett v. Louisiana Farm Bureau Cas. Ins. Co., supra; Bates v. Prater, supra; Morris v. Flores, supra.

The rule of sudden emergency, however, cannot be invoked by one who has not used due care to avoid the emergency. Anderson v. May, 801—1031 (La.App. 5th Cir.2/13/02), 812 So.2d 81. The sudden emergency doctrine is only applicable to the standard of conduct after an emergency has arisen. Id. It does not apply to lower the standard of care required of motorists before the emergency occurs. Id. The fact that the second driver is able to see and avoid an emergency situation ahead sets the standard of care applicable to the other following drivers. Anderson v. May, supra; Potts v. Hollier, 344 So.2d 70 (La.App. 4th Cir.1977). Moreover, the law charges the driver with having seen what he should have seen and subsequent events are judged as though he did see what he should have seen. Stephens v. Fuller, 39,918 (La.App.2d Cir.6/29/05), 907 So.2d 917; Duncan v. Safeway Ins. Co. of Louisiana, 35,240 (La.App.2d Cir.10/31/01), 799 So.2d 1161.

Generally, where other vehicles are able to stop behind the lead vehicle, the driver of the last vehicle that precipitates the chain reaction collision is negligent. Billiot v. Noble Drilling Corp., 236 La. 793, 109 So.2d 96 (1959); Knowles v. McCright’s Pharmacy, Inc., supra; Chambers v. Graybiel, supra; Domingo v. State Farm Mut. Auto. Ins. Co., 10-264 (La. App. 5th Cir. 11/9/10), 54 So.3d 74.

In the case sub judice, it is undisputed that Mr. Matlock rear-ended Mr. Terry’s vehicle, thereby forcing it into a collision with Ms. Ebarb’s vehicle. There is a presumption, therefore, that Mr. Matlock breached his duty under La. R.S. 32:81 and, hence, acted negligently. To rebut this presumption, Mr. Matlock has offered an affidavit exhibiting his own self-jserv-ing9 statements that he had his vehicle under control, closely observed the lead vehicle and followed at a safe distance under the circumstances.

It is undisputed that Ms. Ebarb and Mr. Terry were traveling at speeds of 55 mph and 60 mph, respectively, the same speed at which Mr. Matlock claimed to have been traveling, ie., 60 mph. It is further undisputed that both Ms. Ebarb and Mr. Terry were confronted with stalled traffic in the eastbound lanes of the interstate and, subsequently, were able to bring their vehicles safely to a stop at a comfortable distance behind the preceding vehicles. Accordingly, Ms. Ebarb and Mr. Terry established the reasonable standard of care under the circumstances. Moreover, given that Ms. Ebarb and Mr. Terry were able to safely stop their vehicles and avoid a collision when confronted with the stalled traffic, it is clear that the circumstances did not give rise to a sudden emergency. Anderson v. May, supra.

Additionally, we are not persuaded by Mr. Matlock’s assertion that he lacked the same forewarning of the stalled traffic that Ms. Ebarb and Mr. Terry had because he did not have the benefit of “slowing traffic” as he. was approaching the overpass as they did. As an initial matter, there is no evidence in the record that Ms. Ebarb ever testified as to whether the traffic |1flwas completely stopped as opposed to “slowing” when she was approaching the overpass. Second, Mr. Terry stated in his deposition that when he approached the crest of the overpass, the traffic was “stopped.” When pressed by opposing counsel to clarify, Mr. Terry stated that the traffic was “maybe at a slight roll ... [but] ... pretty much stopped.” We are not persuaded that there is any appreciable difference between the standard of care applicable to a vehicle traveling at 60 mph that encounters stopped traffic as opposed to the standard of care applicable to a vehicle traveling at 60 mph that encounters traffic that might be at a slight roll but is “pretty much stopped.”

Mr. Matlock failed to adhere to the reasonable standard of care established by Ms. Ebarb and Mr. Terry. Anderson v. May, supra; Potts v. Hollier, supra. Approaching the same overpass, confronted with the same stalled traffic blocking both eastbound lanes and traveling at approximately the same speed as Ms. Ebarb and Mr. Terry, Mr. Matlock was unable to safely bring his vehicle to a stop and avoid a collision. Additionally, to rebut the objective evidence that two other drivers were able to safely stop and avoid a collision, Mr. Matlock has failed to offer any competent evidence, other than the self-serving statements contained in his affidavit, that he had his vehicle under control, closely observed the lead vehicle or that he was following at a safe distance prior to rear-ending Mr. Terry’s vehicle and forcing it into a collision with Ms. Ebarb’s vehicle. See La. C.C.P. arts. 966 & 967; Domingo v. State Farm Mut. Auto. Ins. Co., supra; Anderson v. May, supra; Potts v. Hollier, supra. Mr. Matlock has failed to [ n establish that he will be able to rebut the presumption of his own negligence at trial. La. C.C.P. art. 966.

CONCLUSION

For the foregoing reasons, the summary judgment of the trial court on the issue of liability in favor of Yolanda Marie Ebarb is affirmed. Costs of this appeal are assessed to appellants, Phillip David Matlock and American States Insurance Company.

AFFIRMED.

      . Since the issue of where Mr. Matlock's vehicle was when he first saw the stalled traffic, i.e., half-way up, near or at the crest of the overpass, is not a material fact in this case and, thus, is not dispositive to the issue of whether or not summary judgment was properly granted by the trial court, we decline any discussion of whether or not the statements in Mr. Matlock’s affidavit conflicted with those contained in his deposition testimony, in addition to any consequences resulting therefrom. See La. C.C.P. art. 966; Hardy v. Bowie, supra; Smith v. Our Lady of the Lake Hosp., Inc., supra; Knowles v. McCright’s Pharmacy, Inc., supra.

        . In his brief, Mr. Matlock cites Rudd v. United Services Auto. Assn, 626 So.2d 568 (La.App. 3rd Cir.1993), in support of his contention that summary judgment was improperly granted by the trial judge. We find Rudd v. United Services Auto. Ass'n, supra, distinguishable because, in that case, there was conflicting testimony as to whether or not the lead driver in the collision slammed on her brakes, thus creating a hazard which precipitated the collision. In the case sub judice, it is undisputed that both Ms. Ebarb and Mr. Terry were able to safely bring their vehicles to a complete stop at a comfortable distance behind the vehicles preceding them, prior to Mr. Terry's vehicle being rear-ended by Mr. Mat-lock’s vehicle.