author: WELCH, J. CARTER, C.J., GAIDRY, J., HUGHES, J.,

text:
    Sandy BELLANGER, individually and on behalf of her minor child, Tsunami S. Dodge v. Craig WEBRE, Sheriff of Lafourche Parish, the Lafourche Parish Sheriff's Office, Deputy Ben Dempster, Deputy Jeff Prevost and Deputy Jude Cantrelle.
    No. 2010 CA 0720.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      David W. Ardoin, Thibodaux, LA, for Plaintiffs-Appellees Sandy Bellagner, Individually and on Behalf of her Minor Child Tsunami S. Dodge.
    Donald F. Harang, Jr., Larose, LA, Louis C. LaCour, Jr., New Orleans, LA, for Defendants-Appellants Craig Webre, Sheriff for the Parish of Lafourche, La-fourche Parish Sheriffs Office, Deputy Ben Dempster, Deputy Jeff Prevost, and Deputy Jude Cantrelle.
    Before CARTER, C.J., KUHN, GAIDRY, HUGHES, and WELCH, JJ.
   WELCH, J.

12Pefendants, Craig Webre, Sheriff of Lafourche Parish, Benjamin Dempster, Jeffery Prevost, and Jude Cantrelle (collectively referred to as “the Sheriff’), appeal a judgment finding the Sheriff 50% at fault in causing the death of an infant and awarding plaintiff, Sandy Bellanger (Bel-langer), survival and wrongful death damages. The Sheriff also appeals a judgment awarding Bellanger damages for false imprisonment. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of May 23, 2007, an infant, Typhoon Dodge, died from a gunshot wound sustained during a shootout initiated when the child’s father, Albert Dewayne Dodge (Dodge), an aggravated battery suspect, suddenly and unexpectedly fired a hidden weapon at point-blank range at Lafourche Parish Sherriff s deputy Benjamin Dempster, who was attempting to arrest Dodge inside a FEMA trailer. Dodge also died from gunshot wounds sustained in the incident. Bellanger, Typhoon’s mother, filed this wrongful death lawsuit individually and on behalf of her minor child, Tsunami Dodge, against La-fourche Parish Sheriff Craig Weber and Deputy Dempster, Deputy Jeffery Pre-vost, and Deputy Jude Cantrelle. Bellan-ger alleged that the deputies were at fault in causing the child’s death for failing to abide by accepted police procedures in similar situations, for improperly entering a private home, and for engaging Dodge with weapons. Bellanger later amended her petition to state a claim for damages for false imprisonment based on her detention by police officers following the gun battle for attempting to conceal Dodge’s presence in the trailer to prevent his arrest. The Sheriff denied liability, asserting that Dodge’s intentional act of ambushing the officers endangered the life of his child and caused the child’s death. The Sheriff further pled the comparative negligence and/or fault of Bellanger, who, they urged, acted in disregard for her son’s life by failing to remove the child from the room in which Dodge was hiding |sto avoid arrest.

Following a bench trial, the trial court entered judgment in favor of Bellanger. In its oral reasons for judgment, the trial court found that while the officers did have probable cause to believe that Dodge had committed a crime, they did not have an arrest warrant or search warrant to enter the trailer to arrest Dodge. It found that exigent circumstances traditionally justifying a warrantless entry into a home were not present and concluded that the officers entered the home without lawful authority. The court further found that the officers’ unlawful entry played a factor in Typhoon’s death, but that Dodge, who initiated the gunfire by shooting at Deputy Demp-ster at close range after the deputy had holstered his gun, exceeded his lawful right to resist arrest and also contributed to his son’s death. Bellanger was awarded $175,000.00 for the death of her son and $15,000.00 in survival damages. Fault was apportioned 50% to the Sheriff and 50% to Dodge in causing the child’s death. Lastly, upon finding that Bellanger’s detention for obstruction of justice was without cause and for a longer period of time than necessary, the court awarded. Bellanger $7,500.00 on her false imprisonment claim.

In this appeal, the Sheriff contends that the trial court erred in finding that the deputies breached a duty to the child and that the alleged breach of duty was a cause in fact or the legal cause of Typhoon’s death. They also assert that the trial court erred in finding that the fatal shot was fired by Deputy Dempster and in its conclusion that Bellanger was falsely imprisoned.

DISCUSSION

Liability for the death of Typhoon Dodge

We first examine the propriety of the trial court’s finding of liability for the death of Typhoon based on the officers’ warrantless entry into the FEMA trailer to arrest Dodge. The record reflects that on May 23, 2007, Dodge and Bellanger | Jived together in a FEMA trailer at 213 West 136th Street in Cut Off, Louisiana with their one-year old daughter, Tsunami, and their infant son, Typhoon. There was a history of domestic violence between Dodge and Bellanger and both were drug addicts.

On the night of May 22, 2007, Dodge did not come home after work. Bellanger suspected that he had been using drugs again when he did not come home. She called her sponsor, who advised her to leave the trailer. Bellanger knew that Dodge kept a handgun on the side of their bed, but did not see it. She decided to stay at the trailer, but knowing that her sponsor would prevent her from doing so, she lied and told her sponsor that she had left or might leave.

At approximately 10:46 a.m. the following morning, Deputy Dempster responded to a battery complaint at the home of Edward Bourgeois. Upon arriving at Bourgeois’ home, Deputy Dempster discovered that Bourgeois had been badly beaten and was in an ambulance. During the investigation, Bourgeois told Deputy Dempster that his assailant was a white male he knew as “Scotty,” who drove a brown Jimmy truck with a wooden carpenter ladder on top. Bourgeois stated that he and his assailant had been using cocaine that morning and that when the man came out of the bathroom, he suddenly and for no apparent reason became irate and began attacking and beating Bourgeois. He stated that his assailant had him in a headlock and was trying to choke him, and Bourgeois believed that the man was trying to kill him. After Bourgeois punched the suspect in the groin, the suspect grabbed a fire extinguisher and started beating Bourgeois with it, then fled. While Deputy Dempster was investigating at the scene, neighbors confirmed that they had seen a brown Jimmy truck there that morning. Deputy Dempster followed Bourgeois to the hospital and continued his investigation, during which Bourgeois told him that his attacker used to live down West 136th or 137th Street behind “Old Bayou Inn” in a FEMA trailer near the end of a road that curved both to the left |5and right.

Following the directions given to him by Bourgeois, and after calling for backup because he knew that the suspect was on narcotics, Deputy Dempster spotted a brown Jimmy truck with a carpenter ladder on top parked outside of the lone FEMA trailer on 136th Street. He met Deputy Cantrelle, who responded to the back-up call, half-way down the street and proceeded to the FEMA trailer. Deputy Cantrelle immediately recognized the FEMA trailer because he had been there several times before in response to domestic violence incidents in which both Dodge and Bellanger had been charged. Deputy Cantrelle knew Bellanger from school and also knew of Dodge from the domestic violence incidents.

Dodge, who was inside the trailer with Bellanger, Tsunami, and Typhoon, spotted police vehicles driving in the area and told Bellanger “don’t let them in, they’re coming for me, don’t let them in.” Bellanger stated that upon her return to the trailer from a walk at around noon, she discovered that Dodge was injured, and Dodge told. Bellanger he had been in a fight. Bellanger could tell that Dodge was high, and they argued about his drug use. Bel-langer stated that they later made up and had sex. When Dodge told her that the police were coming for him, Bellanger questioned whether he had killed someone. Dodge told her that he had been in a fight with someone he was getting high with, and that was why he believed the police were coming to get him. At this time, Typhoon was in the bedroom with his parents, either in his parents’ bed or in a crib beside his parents’ bed, from which the infant would crawl onto his parents’ bed and back to the crib. Tsunami was taking a nap on the sofa.

When Deputies Dempster and Cantrelle arrived at the trailer, Deputy Dempster went to the front door of the trailer, knocked repeatedly for approximately 2 to 4 minutes, and announced, “Sheriffs Office.” He stated that he could hear loud thumps and noises by the front door, but when no one answered, [nhe went around to the back door, where Deputy Cantrelle had been knocking and announcing the officers’ presence. Deputy Prevost also went to the back door upon arriving at the scene. Deputy Prevost realized that the suspect they were looking for was Dodge because he too had been to a trailer that was formerly parked directly behind the FEMA trailer in which Dodge lived.

The officers could hear the sounds of footsteps shuffling about the trailer, but no one immediately responded to their knocks. Bellanger explained that she did not answer the front door because she was getting dressed and that when she finished dressing, she heard the back door “jiggle” and open, and she headed toward the back door. Bellanger recounted that when she left the bedroom, Typhoon was in the bed with Dodge, and Tsunami followed her to the back door.

According to Deputy Cantrelle, the back door to the trailer was damaged and when he pulled on the lock, the door opened. He saw Bellanger standing at the back door with a child. Because of the previous domestic violence situations and because he could hear running about in the trailer after knocking on the door, Deputy Can-trelle feared that a violent situation may be transpiring in the trailer. He told Bel-langer that he was looking for the driver of the brown Jimmy truck, and Bellanger told him he was not there. Deputy Can-trelle told her that the man had just committed an aggravated battery and may have been doing cocaine, and that she and her child may be in danger. Bellanger told him she did not want the police to go inside and again told Deputy Cantrelle that Dodge was not there. Deputy Can-trelle described Bellanger as being in a “frantic panic,” and stated that he sensed she was afraid. Deputy Cantrelle told Bellanger that the deputies wanted to go in and clear the trailer to make sure that Dodge was not there.

Bellanger exited the trailer, followed by the child, and Deputy Cantrelle stayed outside with her. Deputy Cantrelle stated that he believed they were faced with an emergency situation requiring an immediate entry into the home given the |7fact that the officers believed an aggravated battery suspect who had been on a cocaine binge was hiding in the trailer, there was a known history of domestic violence between Dodge and Bellanger, and when she answered the door, Bellanger appeared to be frightened.

Deputy Dempster testified that he asked Bellanger if there was any one else in the trailer, and she told him “no.” He stated that he even asked her if there were any animals in the house and again she answered negatively, telling him there was “nothing” inside of the trailer. Deputy Dempster suspected that Bellanger was hiding Dodge’s presence in the trailer from the officers. He believed that because the crime Dodge was suspected of committing demonstrated a high level of violence and because Dodge was believed to have been doing cocaine, Dodge presented a danger to himself, anyone inside the trailer, and anyone he may come into contact with that day. The deputy also thought that Dodge was inside of the trailer because of the noises he had heard after knocking on the door and his belief that Bellanger was lying because of the suspicious manner in which she was acting.

Deputy Dempster entered the trailer first, followed by Deputy Prevost. The officers had them weapons drawn and walked to the front of the trailer, where the bedroom was. Deputy Prevost testified that he saw a child sitting on the bed as they made their way to the bedroom. When Deputy Dempster first spotted Dodge, he was naked, crouching between the bed and the wall. Deputy Dempster ordered Dodge to get up, and when he refused to respond, Deputy Dempster holstered his weapon and leaned over the bed to grab him. As Deputy Dempster leaned over, Dodge pulled out a .357 magnum revolver, pointed it at the deputy’s face, and fired a shot at Deputy Dempster. The bullet hit Deputy Dempster on the top of his bullet proof vest and the impact of the gunshot caused Deputy Dempster to spin completely around. Deputy Dempster squared up to Dodge and started returning |sfire. As Deputy Dempster returned fire, Dodge continued to advance toward him, climbing over the bed. Deputy Dempster continued to fire and retreat, attempting to put as much distance between himself and Dodge as possible. Dodge continued advancing and the gunfire continued until Deputy Dempster ran out of ammunition. When the shooting ceased, Deputy Prevost, who had immediately sought cover after the first shot was fired, helped Deputy Dempster get outside the trailer. Deputies Prevost and Can-trelle reentered the trailer. They found Dodge’s body by the front door and Dodge’s revolver. The deputies found Typhoon lying within a foot of the bed. The infant lived a short time and was pronounced dead by paramedics who arrived later at the scene.

The evidence showed that Deputy Dempster fired 13 shots from his weapon, 9 of which struck Dodge. It was not established at trial how many shots were fired from Dodge’s weapon, but his gun was empty when it was found near his body after the shooting. The parties concede that there were no bullet fragments to determine which gun the bullet that killed Typhoon was fired from.

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. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) 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; (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries; (4) the substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Mathieu v. Imperial Toy Corporation, 94-0952, pp. 4-5 (La.11/30/94), 646 So.2d 318, 322. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Bridgefield Casualty Insurance Company v. J.E.S., Inc., 2009-0725, p. 5 (La.App. 1st Cir.10/23/09), 29 So.3d 570, 573.

|flA party’s conduct is a cause in fact of the harm if it was a substantial factor in bringing about the harm. The act is a cause in fact in bringing about the injury when the harm would not have occurred without it. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Toston v. Pardon, 2003-1747, p. 11 (La.4/23/04), 874 So.2d 791, 799. A cause in fact determination is a factual one that is governed by the manifest error standard of review. White v. City of Baker, Baker City Police Department, 95-2009, p. 5 (La.App. 1st Cir.5/17/96), 676 So.2d 121, 124, writ denied, 96-1547 (La.9/27/96), 679 So.2d 1351. Legal cause, on the other hand, presents a legal question, and requires a proximate relation between the actions of a defendant and the harm which occurs, and such relation must be substantial in character. Raudo v. Anco Insulations, Inc., 2008-1163, 2008-1169, p. 31 (La.5/22/09), 16 So.3d 1065, 1088; Roberts v. Benoit, 605 So.2d 1032,1055 (La.1991).

The trial court found that the “negligent act” forming the basis for the imposition of liability was the officers’ entry into the FEMA trailer absent a warrant or exigent circumstances and that their unlawful presence inside of the trailer caused Typhoon’s death. Bellanger urges that the deputies breached the constitutional requirement to obtain a warrant before entering a home or in the alternative, to have exigent circumstances, and the defendant’s breach of these requirements caused Typhoon’s death. She also urges that the officers violated one of the very tenants of their training — to attempt to avoid a potentially dangerous, life threatening situation. She submits that Deputies Dempster and Prevost entered the trailer unlawfully and escalated what they knew could be a dangerous situation. Bellanger argues that the entire situation could have been easily avoided had the deputies simply remained outside and obtained a warrant. She also faults the deputies for failing to remove Typhoon, who was in plain sight on the bed, from |inthe potentially dangerous situation.

We need not determine whether the officers would have been required to obtain a warrant before entering the FEMA trailer for the purpose of a criminal prosecution to resolve the liability issue. While both the United States and Louisiana Constitutions protect against unreasonable searches and seizures, the penalty for violating these protections is the exclusion of evidence in a criminal prosecution. State v. Benjamin, 1997-3065, pp. 2-3 (La.12/1/98), 722 So.2d 988, 989. The absence of a warrant could only be actionable for the purpose of civil liability under the duty-risk analysis if it is both a cause in fact and the legal cause of the harm. We find that under all of the circumstances of this case, the absence of a warrant was not the cause in fact or the legal cause of Typhoon’s death, and hold that the trial court erred in imposing liability on the Sheriff on the basis of the deputies’ warrantless entry into the FEMA trailer.

The absence of a warrant was not the cause of Typhoon’s death for the simple reason that there has been no showing that the possession of a warrant would have altered the outcome. Dodge clearly knew that the officers were coming to arrest him; however, there is nothing in the record to indicate that Dodge was aware they did not have a warrant or that he would have abandoned his murderous plan to escape arrest if the officers in fact had a warrant. In short, there is no evidence from which it could be found, more likely than not, that the same result would not have occurred had the officers obtained a warrant before entering the trailer.

Moreover, the failure of the officers to obtain a warrant prior to entering the trailer was not the legal cause of Typhoon’s death. The record demonstrates that Dodge, believing that the police were going to arrest him, decided to evade arrest by arming himself with a weapon and hiding out near the bed on which he had to know his infant son was present. Upon entering the bedroom and seeing Dodge | n crouched naked in a corner, there was no reason for the officers to believe that Dodge presented a lethal threat to anyone in the room. In fact, the evidence showed that Deputy Dempster holstered his gun as he bent over to grab Dodge. However, Dodge, who had waited for Officer Demp-ster to get as close as possible to him before revealing his weapon, pointed a gun at Deputy Dempster’s face and fired a shot at him at point-blank range. At that point, Deputy Dempster had no alternative but to protect himself and Deputy Prevost by returning fire. We find that Dodge’s initiation of the gunfight by his ambush assault on Deputy Dempster, within the confines of the cramped FEMA trailer and in close proximity to his son, in complete disregard for his son’s life, constituted the sole cause of Typhoon’s death. Accordingly, we reverse that portion of the judgment awarding Bellanger wrongful death and survival damages.

False Imprisonment

The basis for Bellanger’s false imprisonment claim is that after the shootout at her trailer, she was detained and placed in custody and handcuffed to a bench for several hours before giving her statement and ultimately being released. The record reflects that Deputy Cantrelle placed Bel-langer under arrest for obstruction of justice for lying to the deputies about Dodge’s presence in the trailer. Deputy Cantrelle handcuffed Bellanger and placed her in the back seat of his police car. He testified that he was separated from her at that point because he and the other deputies were brought to the station to give their statements. Bellanger was transported to the station and held there until she gave a statement to State Police at 5:10 p.m. She was not prosecuted for the crime. The trial court found that Bellanger had been falsely imprisoned because her detention for obstruction of justice was without cause and for a longer period of time than necessary.

|12The tort of false arrest or false imprisonment occurs when one arrests and restrains another against his will and without statutory authority. Kennedy v. Sheriff of East Baton Rouge, 2005-1418, p. 32 (La.7/10/06), 935 So.2d 669, 690. There are two essential elements to this tort: (1) detention of the person; and (2) unlawfulness of the detention. Id. Bellanger clearly was detained following the shootout. The only dispute is whether the detention was unlawful.

A peace officer may lawfully arrest a person without a warrant when the person to be arrested has committed an offense in his presence or when the officer has reasonable cause to believe that the person has committed an offense, even if not in the presence of the officer. La. C.Cr.P. art. 213(1) & (3). Reasonable cause exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Gibson v. State, 99-1730, p. 7 .(La.4/11/00), 758 So.2d 782, 788, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000); Wolfe v. Wiener Enterprises, Inc., 94-2409 (La.1/13/95), 648 So.2d 1293, 1295. Whether a law enforcement officer has complied with the reasonable cause standard in making a warrantless arrest is a substantive determination to be made by the trial court from the facts and circumstances of each case. Theriot v. State Department of Wildlife and Fisheries, 94-1536, p. 8 (LaApp. 1 Cir. 4/7/95), 661 So.2d 986, 991, unit denied, 95-1617 (La.10/6/95), 662 So.2d 1041. The proper standard of review is whether the trial court committed an error of law or made a factual finding that is manifestly erroneous or clearly wrong. If the trial court’s decision is reasonable in light of the record reviewed in its entirety, this court may not reverse even if we would have weighed the evidence differently. Where there is no dispute of fact, the question of probable cause is a question of law. Gibson, 99-1730 at p. 6, 758 So.2d at 788.

11sLouisiana Revised Statutes 14:25 defines “accessory after the fact” as any person who, after the commission of a felony, harbors, conceals, or aids the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment. Bellanger clearly had reasonable ground to believe that Dodge committed a felony, as she testified that Dodge told her he had been in a fight and that the police were coming to arrest him. Despite this knowledge, Bellanger attempted to conceal Dodge in the trailer by lying to the deputies about his presence to prevent his arrest. Because it was established that Bellanger knew that Dodge had committed a serious crime and that the police were looking for him to arrest him and also that Bellanger attempted to conceal Dodge to prevent his arrest, the trial court erred in finding that Bellanger’s detention for obstruction of justice after the shooting was without reasonable cause. Therefore, we reverse that portion of the judgment awarding damages to Bellanger for false arrest.

CONCLUSION

For the foregoing reasons, the judgment appealed from is reversed. Judgment is hereby rendered dismissing all of plaintiffs claims against all defendants. All costs of this appeal are assessed to appellant, Sandy Bellanger.

REVERSED AND RENDERED.

KUHN, J., concurs for the reasons assigned before CARTER.

GAIDRY, J., dissenting in part and concurring in part.

CARTER, C.J., concurs with reasons.

HUGHES, J., dissents with reasons.

CARTER, C.J.,

concurring.

|,I join in the decision of the court and write separately to express an additional reason for reversing the finding of liability on the part of the Sheriffs Office and the officers.

The scope of an officer’s duty is to choose a course of action that is reasonable under the circumstances. Syne v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1177. The following factors, originally set forth in Kyle v. City of New Orleans, 353 So.2d 969 (La.1977), must be considered to determine whether the officers’ conduct was reasonable: 1) the known character of the arrestee; 2) the risks and dangers faced by the officer; 3) the nature of the offense involved; 4) the chance of the ar-restee’s escape if the particular means are not employed; 5) the existence of alternative means of arrest; 6) the physical size, strength, and weaponry of the officer as compared to the arrestee; 7) the exigency of the moment. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318, 323-24.

Considering the totality of the circumstances and the Kyle factors, I find that the officers did not breach them duty by entering the trailer residence as plaintiff contends. The officers were informed that Dodge had ingested cocaine and violently battered a man earlier in the day without provocation. Upon arriving at 12the trailer residence, the officers knocked and announced their presence. The officers suspected that a violent, potentially inebriated man with a known history of domestic violence was inside the trailer. The plaintiff, who answered the door, was not forthcoming about whether Dodge was present in the trailer. The officers heard additional people moving in the trailer, and it was unclear exactly how many people were present and subject to Dodge’s violent whims.

The role of the courts in considering officers’ conduct is not to determine whether the officers should have acted differently or if there were better options available, but only whether the officers’ actions were reasonable under a totality of the circumstances. Syrie, 693 So.2d at 1177. As set forth herein, I find that the officers’ actions were reasonable under the circumstances.

GAIDRY, J.,

dissenting in part and concurring in part.

hi respectfully disagree with the majority’s conclusion that the trial court committed manifest error when it concluded that the defendants were liable to Sandy Bel-langer for the death of her minor child, although I may have seen this differently had I been the trier of fact. While I recognize that a police officer does not need to first obtain an arrest warrant to arrest someone who has committed a felony, I do not believe this right to arrest allows a police officer to violate the Fourth Amendment of the United States Constitution and Louisiana Constitution, article 1, Section 5, and to make a warrantless entry into someone’s home unless that entry is justified under an exception to the warrant requirement (ie. consent, exigent circumstances). That being said, I do not find the warrant/warrantless entry issue to be the legal cause of the plaintiffs injuries.

The standard negligence analysis employed in determining whether to impose liability under Louisiana Civil Code article 2315 is the duty-risk |2analysis. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard; (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. Mathieu v. Imperial Toy Corp., 94-0952, pp. 4-5 (La.11/30/94), 646 So.2d 318, 322.

We first consider the duty owed by the defendants to Typhoon Dodge and Sandy Bellanger. A police officer has a duty to the public which arises from a social contract that confers upon him the authority to enforce the laws of the city and state within his jurisdiction and subject to the order of his superior officers. The police officer’s duty is to exercise the authority conferred upon him with respect and concern for the well being of those he is employed to protect and serve. Dyer v. City of New Orleans, 96-2802, p. 5 (La. App. 4 Cir. 8/20/97), 700 So.2d 866, writ denied, 97-2347 (La.11/26/97), 703 So.2d 650.

In considering whether an officer breached the duty owed to the public, the officer’s conduct is evaluated based on its reasonableness under the circumstances. His course of conduct need only be reasonable, not ideal. Dyer, 96-2802 at p. 6, 700 So.2d at 869. The court must evaluate the officer’s actions against those of ordinary, prudent, and reasonable persons placed in the same position as the officer, with the same knowledge as that possessed by the officer at the time of the incident. The following factors should be considered: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense involved; (4) the chance of the arrestee’s escape if the particular means are not employed; | s(5) the existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the officer as compared to the arrestee; and (7) the exigency of the moment. Mathieu, 94-0952 at p. 6, 646 So.2d at 322-28, citing Kyle v. City of New Orleans, 353 So.2d 969, 973 (La.1977).

Thus, the proper inquiry is whether, considering the Mathieu factors, the deputies exercised their authority with respect and concern for the wellbeing of others. First, the deputies knew when they went to the FEMA trailer that they were there to arrest Dodge for an aggravated battery. The deputies were all aware that Dodge had reportedly been using drugs that morning, that his behavior had been erratic and violent, and it was broad daylight. Secondly, the trailer had only two entrances, and there were three deputies present. There was no known immediate danger to anyone nor was there any ongoing crime being committed. Before entering, the deputies removed a woman and child (Bellanger and Tsunami) from the trailer. Nothing prevented the deputies from determining whether there were any other adults or children still in the trailer. After entering the trailer and seeing the child, nothing prevented the deputies from exiting and seeking a method (wait, talk, cut off utilities, etc.) to safely remove the child and/or Dodge himself. There were no exigent circumstances requiring Dodge’s immediate arrest. In failing to do so, I find that the deputies breached their duty to act reasonably to exercise their authority with respect and concern for the well being of those they are employed to protect and serve.

The next step in our inquiry is to determine whether Bellanger met her burden of establishing a factual, causal relationship between the deputies’ actions and Typhoon’s death, i.e., a cause in fact. Cause in fact is generally a “but for” inquiry; that is, if Typhoon probably would not have died but for the deputies’ substandard conduct, such conduct is a cause in fact. Roberts v. Benoit, 605 So.2d 1032, 1042 (La.1991). Stated differently, the inquiry is “[d]id the defendant contribute to the plaintiffs harm or is the defendant a cause of the plaintiffs harm?” Id. An alternative method for determining cause in fact, which is generally used when multiple causes are present, is the “substantial factor” test. Under this test, cause in fact is found to exist when the defendant’s conduct was a “substantial factor” in bringing about plaintiffs harm. Id. Under either method, it is irrelevant to the determination of cause in fact whether the defendants’ actions were lawful, unlawful, intentional, unintentional, negligent or non-negligent; rather, the cause in fact inquiry is a neutral one, free of the entanglements of policy considerations-morality, culpability or responsibility-involved in the duty-risk analysis. Id. The cause in fact inquiry is of very limited scope. To the extent the defendant’s actions had something to do with the injury the plaintiff sustained, the test of a factual, causal relationship is met. Id. Although certainly not the only cause of Typhoon’s death, the deputies’ entry into the trailer at the time, and under the circumstance of this case as set forth above, was a cause in fact of the resulting harm.

As to which bullet struck the child, the trial court noted that during the exchange of gunfire, Dodge was moving towards the deputies and away from Typhoon. Deputy Dempster was shooting in Typhoon’s general direction. Based on this evidence, the court concluded that Typhoon died as a result of shots fired by Deputy Dempster. This finding has not been shown to be clearly wrong or manifestly erroneous. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

Having determined that the deputies’ negligence was a cause in fact of Typhoon’s death, we now must consider whether their actions were a legal cause of his death, ie., whether the injury plaintiff sustained was within the | ^contemplation of the duty discussed above. There is no “rule” for determining the scope of the duty; it is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Roberts, 605 So.2d at 1044. Clearly, the harm sought to be prevented by an officer’s duty to act reasonably in the exercise of his authority with respect and concern for the well-being of innocent bystanders is exactly the sort of harm which occurred in this case; thus the legal cause prong of the duty-risk analysis is also satisfied in this case.

The final prong of the duty-risk analysis is actual damages, which were without a doubt sustained in this case.

Thus, having found that Bellanger met her burden of proof to recover damages under Louisiana Civil Code art. 2815, we must affirm that portion of the trial court judgment awarding damages to Bellanger for Typhoon’s death.

I concur with the majority opinion reversing the judgment of the trial court on the issue of false imprisonment.

HUGHES, J.,

dissenting.

|TI respectfully dissent.

The deputies asked permission to enter Ms. Bellanger’s home because they believed a suspect from a crime committed approximately 6 hours earlier might be inside. Ms. Bellanger did not give permission. The deputies went in anyway and saw the suspect and an infant child. They ignored the child and laid hands on the suspect, known to them to be dangerous. The child died in the resulting shoot-out. All shots in the direction of the child came from the deputy that fired.

The actions of the officer after he was shot are not the issue. The child should have been secured before the suspect was apprehended. Police officers are charged with protecting the public. Apprehension of criminals must yield to this primary duty.

The actions of the officers are completely understandable and difficult to criticize, yet the child should have been secured. Therefore, I believe the officers bear some responsibility for what happened, as set forth by Judge Gaidry in his well-reasoned dissent.

      . Because of our resolution of the causation issue, we need not address the remaining assignments of error pertaining to the trial court's liability determination for Typhoon's death.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Angela COTTON, Andy Cotton and Blaine Cotton v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Kerry A. Carter, Government Employee’s Insurance Company, and State of Louisiana, through the Department of Transportation and Development.
    No. 2010 CA 1609.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      E. James Gaidry, Jr., Houma, LA, for Plaintiffs/Appellees Angela Cotton, Andy Cotton and Blaine Cotton.
    Joseph F. d’Aquin, III, Metairie, LA, for Cross-Claimant/Appellee Government Employees Insurance Company.
    James D. “Buddy” Caldwell, Attorney General, William S. Culver, Jr., Assistant Attorney General, New Orleans, LA, for Defendant/Appellant Louisiana Department of Transportation and Development.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

IpThe State of Louisiana, through the Department of Transportation and Development (the DOTD), appeals a judgment rendered pursuant to a jury verdict finding it liable for a car accident allegedly caused by a malfunctioning traffic signal at an intersection.

FACTS AND PROCEDURAL HISTORY

On Christmas Eve 2006, Angela Cotton and her stepson, Blaine Cotton, were traveling south on Highway 661 in Houma, Louisiana to attend midnight mass. On reaching the intersection of Highway 661 and Highway 24, Mrs. Cotton stopped for the red light. According to Mrs. Cotton and her stepson, when the light on the traffic signal turned green, she proceeded to enter the intersection, where her vehicle was struck by a vehicle driven by Kerry A. Carter, who was traveling east on Highway 24. Mr. Carter reported that the traffic signal governing his path of travel also displayed a green light at the time he drove into the intersection and collided with Mrs. Cotton’s vehicle.

On April 5, 2007, Blaine, Mrs. Cotton, and her husband, Andy Cotton, jointly filed a petition for damages against the DOTD, and the case was tried before a jury that found the DOTD to be 100 percent at fault for causing the December 24, 2006 accident. The jury awarded Mrs. Cotton $851,973.00 and Blaine $8,204.98 in general and special damages. The jury further awarded Mr. Cotton $20,000 for past and future loss of consortium. The trial court signed a judgment in conformity with the jury’s verdict on January 20, 2010, which the DOTD suspensively appeals.

J^ISSUES PRESENTED FOR REVIEW

The DOTD suspensively appealed the January 20, 2010 judgment, alleging the following:

1. The jury erred in finding that there was a defect in the traffic signal at the intersection of Highway 661 and Highway 24 that caused the traffic signal to display green lights to both Mrs. Cotton and Mr. Carter simultaneously.
2. The jury erred in finding that the DOTD had actual or constructive notice of the alleged defect in the traffic signal prior to the accident.
3. The jury erred in finding that Mrs. Cotton’s neck and right shoulder injuries, and related medical treatment, were proximately caused by the December 24, 2006 accident.
4. The jury erred in awarding Mrs. Cotton damages based on a finding that she is partially disabled.
5. The jury erred in awarding Mrs. Cotton past and future loss of wages and loss of earning capacity.

DISCUSSION

ISSUES ONE AND TWO:

Generally, in order to recover damages against the DOTD, a public entity, a plaintiff must prove: (1) the DOTD had custody of the thing that caused plaintiffs damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and (4) the defect was a cause-in-fact of plaintiffs injuries. See La. R.S. 9:2800; La. C.C. arts. 2317 and 2317.1; Netecke v. State, DOTD, 98-1182, p. 7 (La.10/19/99) 747 So.2d 489, 494. The trier of fact’s findings regarding defect and notice under La. R.S. 9:2800 are subject to the manifest error standard of review. See Ricks v. City of Shreveport, 42,675, p. 8 (La.App.2d Cir.10/24/07), 968 So.2d 863, 868.

The DOTD does not dispute that it had custody of the traffic signal at issue; however, it greatly disputes the assertion that the traffic signal was defective or that it had actual or constructive notice of any allegedly defective condition in the |4traffic signal. Our review of the record reveals that there was sufficient evidence presented to support the jury’s findings on these issues.

The DOTD argues that none of the witnesses who testified that the traffic signal displayed green for opposing lanes of travel actually saw the simultaneous display of green. However, the police officers who investigated the December 24, 2006 accident verified the claims of the accident victims that the traffic signal was displaying conflicting green lights. At trial, the investigating police officers, Jarrod Math-erne and Joseph Renfro, testified that they sat in their individual police cars at right angles to the intersection to observe the traffic signal from southbound Highway 661 and eastbound Highway 24, respectively. While so positioned, the officers testified that they both reported the traffic signal to display green at the same time for their observed direction about every fourth light phase. They testified that they observed the traffic signal display simultaneous green lights at least four times on the night of the accident, which testimony supported the claims of Mrs. Cotton, Blaine, and Mr. Carter that the signal was displaying green for their respective directions of travel at the time the accident occurred.

The plaintiffs also presented the testimony of an expert witness in the field of traffic signal engineering, Dr. Peter Par-sonson, who posited two reasons why the signal was defective and malfunctioned on the date of the accident. First, Dr. Par-sonson explained that, according to industry and manufacturer standards, the conflict monitor controlling a traffic signal should be removed and fully tested (bench tested) to ensure that it is operating properly. Dr. Parsonson described a typical traffic signal as being in a solid state assembly (meaning that it has no moving parts) with semi-conductor components inside that “are supposed to conduct electricity at certain times, [and not] conduct electricity at other times.” |sHowever, he explained “a semi-conductor can fail by shorting through, which means that it is going to conduct, when it [is] not supposed to be conducting electricity.”

Dr. Parsonson testified that since 1968, every single traffic signal installed at an intersection is required to have a conflict monitor installed in a cabinet positioned on the street corner. According to Dr. Par-sonson, the purpose of the conflict monitor is to monitor the voltages that are sent out from the cabinet over field wires to overhead signals. The conflict monitor contains a program card that identifies which signals are compatible, such as displaying a green light for eastbound traffic would be compatible with displaying a green light for westbound traffic. In further explaining how a conflict monitor functions, Dr. Parsonson stated:

[I]t sits there and it watches the voltages that go out over the field wires to the signal heads; and if it sees one hundred twenty (120) volts going out, to two (2) greens that are in conflict with one another, it allows that conflict to take place for as long as one-half (1/2) second. In other words, the conflicting greens will in fact be shown; but for no more than one-half (1/2) second. And we know that drivers cannot react within a half second, and so it is safe. But, the monitor is giving the equipment a half second to recover and to work correctly. But, if that conflict is still being shown to the drivers at that one-half (1/2) second, the conflict monitor forces the intersection to go to flashing operations.

In his expert opinion, and according to articles and books he had reviewed, Dr. Parsonson stated that at a minimum, the conflict monitor should have been bench tested once a year; however, according to the DOTD, the conflict monitor had never been bench tested. Dr. Parsonson stated that in Gwinnett County, Georgia, where he lived, it is discovered that occasionally a conflict monitor fails on testing, although the traffic signal appeared to be cycling normally out in the field. Dr. Parsonson therefore stated, “what this teaches us is that we cannot assume that if the monitor fails, we can count on it to throw the intersection on flash. That’s just not true at all.” Dr. Parsonson also criticized the actions of the|fitraffic signal technicians for those occasions when they would simply turn off the power to the equipment and then turn the power back on to correct the traffic signal. He said such actions are “not fixing anything.” He explained that “what it may be doing with solid state equipment is to allow a failing component to cool off enough to start working properly again, for a while.”

The second reason Dr. Parsonson gave for finding the traffic signal to be defective relates to the construction of the traffic signal. He stated that because of the construction of the signal, rain falling at the time of the accident likely entered the traffic signal and caused it to display conflicting green lights. According to his testimony:

If, in fact, there were conflicting greens as five (5) witnesses are saying, there were, then more likely than not — very probably, certainly with a great degree of engineering probability and certainty, I can say that the conflicting green situation was caused by rainwater entering the wiring at some point.... [T]he rainwater entered the wiring and because water conducts electricity, the water causes a short-circuit from an energized signal wire, one that had one hundred twenty (120) volts in it. A short-circuit over to a wire that provides the green signal, but was not supposed to be receiving one hundred twenty (120) volts at this time. And so, the rainwater was creating a short-circuit that turned on an undesired and inappropriate green signal, that created this crash; caused the crash.
Now, what happens is that ... short is hot. And if you have ever felt a short-circuit go across your fingers, you know it is pretty hot. And what it does is, it causes the water to evaporate. And so, that short dries out, and there is no longer a short. In other words, the continuity in the water is broken. The short is stopped. And the conflicting greens stop. And so, for a period of time, there is no conflict. But then, during that period of time, new rainwater can come into that area, and when enough of it builds up, then the short occurs again; and we have that green coming on [inappropriately], for a certain period of time. And this is exactly what the police officers testified to — in other words[,] they testified that they witnessed conflicting greens in about one (1) cycle out of every four (4). And so, this intermittent conflict is easy to explain. If it occurred during rain, and we know from the police report that it was raining at the time. So, this intermittent conflict is easy to explain on the basis of water entering the wiring system and creating a short. And then the short dries up from the heat that is generated by it. And you go through a period with no conflicting greens. But then new rainwater comes in and creates the cycle all over again. And so, for as long as it rains, we have this cycle of conflict — no conflict — conflict—no conflict.

17Pr. Parsonson then went on to explain that he believed that rainwater entered the traffic signal via the quick disconnect hanger used to attach the signal to the span of field wire from which the traffic signal is suspended. He stated that use of quick disconnect hangers is a good practice in Louisiana because of the occurrence of hurricanes. Nevertheless, he opined that the DOTD could have easily discovered and fixed the problem of water entering the signal via the quick disconnect hanger.

In addition to the testimony of the plaintiffs expert, the DOTD’s expert in traffic engineering, traffic control, accident reconstruction, and highway design, construction and maintenance, Mr. Vernon Odean Tekell, admitted that water could enter the wiring system and cause a short as Dr. Parsonson described. However, Mr. Te-kell opined that the short would cause the red and yellow lights to shine faintly at the same time as the green shone brightly, rather than causing conflicting green lights to display, “unless the wire was [insulated], and it was rubbed off of the green wire, on the adjacent head, and such that when the water intrusion caused the small voltage to come through, that is the only way you can get (quote) ‘these lights to go out at the same time’.”

In considering expert testimony, the trier of fact may accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given expert testimony is within the broad discretion of the trier of fact. The trier of fact may accept or reject any expert’s view, even to the point of substituting its own common sense and judgment for that of an expert witness where, in the trier of fact’s opinion, such substitution appears warranted by the evidence as a whole. Morgan v. State Farm Fire and Casualty Company, Inc., 07-0334, pp. 8-9 (La.App. 1st Cir.11/2/07), 978 So.2d 941, 946. The law is well settled that where the testimony of expert witnesses differs, the trier of fact has great, even vast, |8discretion in determining the credibility of the evidence, and a finding of fact in this regard will not be overturned unless clearly wrong. Harper v. Falrig Offshore, Inc., 03-28, p. 3 (La.App. 3d Cir.4/30/03), 845 So.2d 589, 591, writ denied, 03-1905 (La.10/31/03), 857 So.2d 483.

Considering the foregoing testimony, the jury could have found the evidence was sufficient to prove that the traffic signal at issue was defective. Both experts testified that the display of conflicting green lights could occur, and the fact witnesses presented by the plaintiffs all testified that such a happening did in fact occur. Therefore, we find the jury was not clearly wrong in finding the traffic signal to be defective.

Still, the DOTD contends that even accepting the finding that the traffic signal was defective, the plaintiffs failed to establish that it had actual or constructive notice that a defect existed in the traffic signal that would allow it to display conflicting green lights. All of the local witnesses that were familiar with the intersection, including the plaintiffs and the investigating police officers, testified that prior to the accident, they had never observed the traffic signal display conflicting green lights, nor could anyone state that such a phenomenon had been observed since the accident. Nevertheless, the plaintiffs presented evidence that the DOTD did not perform any specifically-scheduled or regular preventive maintenance of the traffic signal, nor did it keep sufficiently detailed repair records regarding the traffic signal to verify that such an occurrence had not previously occurred.

Travis P. Cortez, whose responsibilities included supervising crews in charge of signal light, sign, and facility maintenance for the DOTD, testified that the traffic signal crew in charge of maintenance for the parishes of Terrebonne and Lafourche was made up of only two people. Consequently, he testified that he was unable to provide a schedule for the performance of regular preventative | maintenance of the traffic signals in the area, but he could only direct the crew to work on specific problems as they arose.

As previously stated, Dr. Parsonson testified that industry and manufacturer standards for conflict monitors recommend that the monitors be removed and tested on at least an annual basis. The DOTD admits that such testing was never performed on the conflict monitor that controlled the traffic signal at issue. Thus, Dr. Parsonson opined that the DOTD’s failure to test the conflict monitor resulted in the agency not discovering that the conflict monitor was defective.

Dr. Parsonson also testified that whenever the conflict monitor sets the traffic signal at an intersection to flashing, the reason why the traffic signal was set to flash is displayed on the conflict monitor’s LCD screen. He observed that for multiple work orders that he reviewed, the traffic signal technicians failed to document why the traffic signal was set to flash. As a result, it is unknown whether the reason the traffic signal went to flash on those prior occasions was because of a simple power surge or because the signal was displaying conflicting green lights. He further observed that the conflict monitor was never removed for bench testing, despite the frequent number of times the work orders showed that the traffic signal was displaying flashing lights. Dr. Par-sonson opined that the DOTD improperly relied on the conflict monitor to set the traffic signal to flashing and such reliance is misguided, because the monitor could fail. The plaintiffs’ position is that the conflict monitor failed at the time of the accident rather than going into flash, and in the exercise of reasonable care, if the DOTD had tested the conflict monitor, it would have revealed the monitor was defective and deteriorating to the point that it could no longer perfectly function.

Mr. Cortez admitted that the multiple work orders showing that the signal had been set to flash did make him think that “maybe something was going on with this light at this intersection.” As he stated, “in this case, I am sure I told [the 11fltraffic signal crew] we need to check it out. We probably have a short somewhere, that it kicked into flash; and this ... specific incident, I am sure it was when it rained, we had water causing the problem.”

Based on this evidence, the jury could have reasonably concluded that the numerous work orders completed for the traffic signal at issue provided the DOTD with notice that the traffic signal was defective and that something more than simple repair was necessary to prevent further malfunctioning of the traffic signal at issue. See Barthel v. State, Department of Transportation and Development, 04-1619, pp. 5-7 (La.App. 1st Cir.6/10/05), 917 So.2d 15, 19-20; see also Warden v. Richoux, 09-794, pp. 7-10 (La.App. 5th Cir.3/23/10), 40 So.3d 139, 145-47, writ denied, 10-0921 (La.6/25/10), 38 So.3d 340. Further, the jury could have found that the exercise of reasonable care required the removal and testing of the conflict monitor to reveal the defect. As such, we cannot say the jury was manifestly erroneous in determining that the DOTD had notice of the defect. Accordingly, we reject the argument presented in DOTD’s second issue for review.

ISSUES THREE AND FOUR

Prior to the December 24, 2006 accident, a colectomy surgery was performed on Mrs. Cotton in September 2006 to remove an extensive portion of her colon. As a result of the surgery, Mrs. Cotton developed a condition called “scapular winging,” for which she was being treated at the time of the December 24, 2006 accident. Although many of Mrs. Cotton’s complaints of pain in her right arm, shoulder, and neck following the December 24, 2006 accident appear to be identical to her complaints of pain in her right arm, shoulder, and neck prior to the Inaccident, which her healthcare providers related to the scapular winging, the record discloses that there was objective medical evidence presented to show that the December 24, 2006 accident caused additional injury to Mrs. Cotton.

Dr. Brett Casey, Mrs. Cotton’s treating orthopedist, first examined her relative to the accident on March 26, 2008, although he had previously examined her regarding her scapular winging on December 7, 2006, prior to the auto accident. According to the medical history Dr. Casey recorded, Mrs. Cotton reported that after the accident, she had some weakness and pain in her right shoulder that was in a different location than she had before with the scapular winging. On examination, Dr. Casey observed that she had pain in her a/c joint, which is the joint where the clavicle or collar bone meets the shoulder. He further noted that Mrs. Cotton had pain moving her arm and some signs of impingement, which is injury to the rota-tor cuff. Based on her presentation, Dr. Casey performed shoulder arthroscopy with an arthroscopic rotator cuff repair, a distal clavicle resection, and a sub-chromium decompression, which treated the impingement. Dr. Casey opined that based on Mrs. Cotton’s history, he related the rotator cuff repair surgery to the December 24, 2006 accident, as he found that she did not have any rotator cuff symptoms when he examined her prior to the accident on December 7, 2006.

Likewise, Dr. Phillip McAllister, the neurosurgeon who operated on Mrs. Cotton’s neck following the December 24, 2006 accident, testified that diagnostic tests of Mrs. Cotton’s cervical spine showed visible changes in Mrs. Cotton’s condition following the accident. The first time Dr. McAl-lister saw Mrs. Cotton was in January 2007. In treating Mrs. Cotton, Dr. McAl-lister reviewed an EMG scan that had been performed in November 2006, and compared that scan to the scan he had ordered in January 2007. In comparing the scans, it was observed that the post-accident scan showed a right C-6 radiculo-pathy that had developed since [ 12the November 2006 scan. Dr. McAllister explained that radiculopathy means that there has been some trauma or pathology of the nerve root in the spine. Thus, the term radiculopathy “not only tells [us] that there has been a change for the worse in the nerve root, but that it also localizes it to the spinal level.”

Dr. McAllister also had a myelogram performed to show Mrs. Cotton’s nerve roots, and that test revealed that there was bi-lateral spondylolysis at C-6, without evidence of spondylolisthesis. As Dr. McAllister explained:

What that means is that spondylolis-thesis is that the bones have shifted in alignment. But what had occurred through hyperflexion and hyperextension, and acceleration and deceleration force to the neck is the ligaments of the neck and the muscles are incredibly strong. So, there has been a fracture that occurred. There has been a fracture which occurred bi-laterally at C-6, right here, which showed that the excessive force of the ligaments had been so great that they had caused a fracture in the neck. Fortunately, the disc and the ligaments surrounding the disc had held so fortunately, there was not spinal cord injury, as you would see in the more severe injuries. However, the CAT Scan showed from bony detail that there had been enough force transmitted through the muscles and ligaments of the back, or posterior aspect of the cervical spine, and indeed fracture bone.

Based on what he observed, Dr. McAllister performed an anterior cervical discectomy and fusion surgery on Mrs. Cotton.

Accordingly, the foregoing evidence supports the jury’s finding that the injuries to Mrs. Cotton’s neck and right shoulder, and related medical treatment, were proximately related to the December 24, 2006 automobile accident.

Encompassed within the damages awarded to Mrs. Cotton is the sum of $13,500.00 allocated specifically for Mrs. Cotton’s past and future disability. The DOTD asserts that the jury erred in awarding Mrs. Cotton damages for past and future disability. For purposes of a general tort claim, disability damages are recognized as those general damages constituting any permanent disability or impairment that is secondary to the injuries sustained in the accident. Brossett v. Howard, 08-535, p. 19 (La.App. 3d Cir.12/10/08), 998 So.2d 916, 931, writ de nied, 09-0077 (La.3/6/09), 3 So.3d 492; see also Matos v. Clarendon National Insurance Company, 00-2814, p. 11 (La. App. 1 Cir. 2/15/02), 808 So.2d 841, 848-49.

As a result of the anterior cervical dis-cectomy and fusion surgery, Dr. McAllis-ter stated that the restrictions Mrs. Cotton would have would primarily be from residual pain from any ligament, tendon, or muscle injury; however, he noted the fusion could cause some limitation in range of motion and some increased arthritic changes at the cervical levels above and below the area fused.

Physical therapist Donald Paul Kinnard performed a functional capacity evaluation (FCE) on Mrs. Cotton in June 2008, which indicated that the range of motion for Mrs. Cotton’s right shoulder on flexion and abduction was 170 out of a possible 180, external rotation was 80 out of a possible 90, and internal rotation was 75 out of a possible 90. The strength level of Mrs. Cotton’s right shoulder showed a flexion and abduction of 4 out of a possible 5, external and internal rotation of a 4 out of possible 5, while elbow flexion and extension was a perfect 5 out of a possible 5. Based on the FCE, Mr. Kinnard determined that Mrs. Cotton is capable of performing work duties of a light physical demand level, requiring lifting of no more than 15 pounds on a frequent basis.

At trial, Andy Cotton testified that his wife was just 75% back to normal. He stated that the limitation on her sweeping, mopping, and dusting lasted for about a year to a year and a half and that there was a decrease in marital intimacy for four to five months after the accident because of Mrs. Cotton’s neck injury.

Mrs. Cotton testified that it took nine months before she could completely lift her hand overhead following the shoulder surgery. As of the date of trial, she testified that her neck was “pretty good,” although she felt it “every now and then”; however, for her shoulder, she stated that she has “a lot of weakness in [her] hands; shoulders, just muscle strength.” She admitted that she is still able to engage in Ii4many of the activities she did before the accident, but she just is unable to engage in such activities for as long as she could before.

Nevertheless, according to Dr. Casey’s medical records, by October 2008, he found that there was full range of motion in Mrs. Cotton’s shoulder and her strength was good, although she still suffered with some aching pain. In a medical note dated three months later in January 2009, Dr. Casey reported “Ms. Cotton returns for continued evaluation of her right shoulder. That is doing fine. She has great range of motion and good strength without pain.”

Considering this evidence, we find merit in the DOTD’s assertion that the jury erred in awarding Mrs. Cotton damages for past and future disability. While the evidence presented demonstrated that there have been some slight changes in Mrs. Cotton’s physical endurance and lifestyle, those changes are not of the scale that the changes could be deemed disabling. Moreover, none of Mrs. Cotton’s healthcare providers assessed her with any rating of disability. Cf. Brossett, 08-535 at 20, 998 So.2d at 931; Matos, 00-2814 at 11, 808 So.2d at 849; Rizzuto v. Walker, 00-876, p. 4 (La.App. 5th Cir.9/26/00), 779 So.2d 759, 760-61. Thus, we hold that the jury erred in finding that the plaintiffs met their burden of proving that Mrs. Cotton is entitled to an award for past and future disability.

ISSUE FIVE

In the fifth issue presented for review, the DOTD contends that the jury erred in awarding Mrs. Cotton future loss of earnings and earning capacity. According to the verdict form, the jury awarded Mrs. Cotton a lump sum for past and future loss of earnings and earning capacity in the amount of $33,770.00. The DOTD and the plaintiffs presented the testimony of competing economic experts regarding Mrs. Cotton’s wage losses. The plaintiffs’ expert, Dr. Randolph Rice, testified that Mrs. Cotton’s past loss of earnings from January 1, 2007, through the date of trial, based on $10 an hour and a forty-hour work week, would equal 11fi$63,027.00. Dr. Rice then projected that Mrs. Cotton’s future wage loss could equal as little as $192,028.00, based on her work life expectancy, and as much as $326,606.00, based on Mrs. Cotton working to a retirement age of 66 years and ten months.

The DOTD’s expert, Dr. Kenneth Bou-dreaux, calculated Mrs. Cotton’s past lost wages by averaging her yearly income for 2004, 2005, and 2006, and then alternatively using just the years 2004 and 2005, as the two years she had earned her highest income. Using the three-year average, Dr. Boudreaux determined that Mrs. Cotton’s past wage loss from January 1, 2007, through the date of trial was $21,820.00. Using the two-year figure for the same time period, Dr. Boudreaux calculated that Mrs. Cotton’s past wage loss was $27,996.00. Because the FCE performed by Mr. Kinnard showed that Mrs. Cotton was capable of resuming employment earning income at the same rate she had prior to the accident, Dr. Boudreaux did not project any future loss of income for Mrs. Cotton.

Based on the figures presented by the economic experts, it appears that the jury did not award. Mrs. Cotton any damages for future loss of earnings or earning capacity. The wage loss amount awarded is much less than any amount projected by Dr. Rice. Moreover, although the amount awarded is greater that the highest sum calculated by Dr. Boudreaux as Mrs. Cotton’s past lost wages, the sum is less than the figure offered by Dr. Rice. Thus, we find that the amount awarded should be properly considered as an award of past loss of earnings only.

A plaintiff seeking damages for past lost wages bears the burden of proving lost earnings, as well as the duration of time missed from work due to the accident. Boyette v. United, Services Automobile Association, 00-1918, p. 3 (La.4/3/01), 783 So.2d 1276, 1279. The trier of fact has broad discretion in assessing awards for lost wages, but there must be a factual basis in the record for the award. Driscoll v. Stucker, 04-0589, p. 29 (La.1/19/05), 893 So.2d 32, 53. Where there is no basis 116for a precise mathematical calculation of a past lost wage claim, the trier of fact can award a reasonable amount of damages without abusing his discretion. Burrell v. Williams, 05-1625, p. 10 (La.App. 1st Cir.6/9/06), 938 So.2d 694, 701.

Apparently the jury found merit in both experts’ testimony, as the amounts awarded Mrs. Cotton for past loss of earnings appear to be a compromise of the two figures presented by the competing experts. Where, as here, a conflict in the evidence exists and neither party presents evidence that is wholly inconsistent, implausible on its face, or unbelievable in light of objective evidence, the appellate court must defer to the factfinder’s decision unless that decision is manifestly erroneous or clearly wrong. Henderson v. Nissan Motor Corporation U.S.A 03-606, p. 14 (La.2/6/04), 869 So.2d 62, 71. Having reviewed the evidence presented, we cannot say that the amount awarded Mrs. Cotton for past lost earnings was an abuse of the jury’s discretion. Accordingly, we reject this final argument by the DOTD in the issues presented for review.

CONCLUSION

For the foregoing reasons, we amend the January 20, 2010 judgment to delete the award for past and future disability. In all other respects, the judgment is affirmed. All costs of this appeal, in the amount of $7,421.50, are assessed to the State of Louisiana, through the Department of Transportation and Development.

AMENDED, AND AS AMENDED, AFFIRMED.

PARRO, J., concurs.

      . The plaintiffs also named their UM insurer, Government Employees Insurance Company (GEICO), Mr. Carter, and Mr. Carter’s liability insurer, State Farm Mutual. Automobile Insurance Company, as additional defendants in the petition. GEICO filed a cross claim against the other named defendants, seeking to recover amounts it expended on property damage and rental reimbursement for its insured, as well as to recover the deductible and rental expenses incurred by its insured. The plaintiffs later settled with GEICO and dismissed their claims against it prior to trial. The plaintiffs also dismissed their claims against Mr. Carter and State Farm with full prejudice.

      . Although the trial transcript shows Dr. Par-sonson’s name spelled as "Parsonsons,” other documents that appear in the record, including Dr. Parsonson's curriculum vitae, indicate that the correct spelling of his name is without and “s” at the end.

      . Scapular winging is described as a condition where the hack muscle is weakened so that the scapula, or the hack part of the shoulder, pulls off the back so that it looks like there is a wing on the back. It usually comes from a muscle that has been paralyzed, but over time the muscle re-awakens and the condition repairs itself. According to Dr. Brett Casey, an orthopedist, Mrs. Cotton likely developed the condition as the result of being positioned on the operating table during her colectomy surgery in such a way that it placed pressure on a nerve that is in the axial under the arm.