author: ROLAND L. BELSOME, Judge.

text:
    Preston RUSSELL v. Arthur A. MORRELL, Orleans Parish Clerk of Court.
    No. 2011-CA-1635.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2012.

      Preston Russell, Angola, LA, Plaintiff/Appellant.
    M. Claire Trimble, M. Claire Trimble, PLC, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   ROLAND L. BELSOME, Judge.

Bln this appeal, Preston Russell seeks review of the trial court judgment denying his request for a rehearing. For the following reasons, we affirm.

STATEMENT OF FACTS/PROCEDURAL HISTORY

Mr. Russell filed a petition for a writ of mandamus, seeking to have the trial court order Arthur A. Morrell, the Orleans Parish Clerk of Criminal Court, to comply with Mr. Russell’s public records’ request. Mr. Russell alleged that he sent a letter to the Clerk of Court seeking the cost to obtain a copy of his Boykin transcripts and did not receive a response. Mr. Russell alleged that Mr. Morrell is the custodian of the Boykin transcripts. On July 8, 2011, the trial court determined that Mr. Mor-rell was not the custodian of the Boykin transcripts and issued a judgment denying Mr. Russell’s request for a writ of mandamus.

On July 20, 2011, Mr. Russell filed a motion for a rehearing, seeking to vacate the July 8, 2011 judgment. After holding a hearing, in which Mr. Russell was present, the trial court denied the motion for a rehearing on September 27, 2011. This appeal followed.

Mr. Russell argued that the trial court erred in denying his petition for a writ of mandamus and request for rehearing.

| ¡.First, we address Mr. Russell’s argument that the trial court erred in denying his petition for a writ of mandamus. “Mandamus is a writ directing a public officer ... to perform any of the duties set forth in Articles 3863 and 3864.” La. C.C.P. art. 3861. Such a writ may be issued when “the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice.” La. C.C.P. art. 3862. A writ of mandamus is an extraordinary remedy. Henderson v. Bigelow, 2007-1441, p. 3, fn. 3 (La.App. 4 Cir. 4/9/08), 982 So.2d 941, 943. “Mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed. It never issues in doubtful cases.” Chaney v. Department of Public Safety & Corrections (Office of Motor Vehicles), 2009-1543, pp. 3-4 (La.App. 1 Cir. 3/26/10), 36 So.3d 328, 331, citing Morris v. Patient’s Compensation Fund Oversight Bd., 2007-2468, p. 5 (La.App. 1 Cir. 5/28/08), 991 So.2d 551, 554.

The Louisiana Constitution provides that “[n]o person shall be denied the right to ... examine public documents, except in cases established by law.” La. Const, art. 12, § 3. Under the Public Records Act, the custodian of public records has a duty and responsibility to provide access to the public records. La. R.S. 44:31. If the public record is not in the custody of the person to whom the application is made:

[S]uch person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.

La. R.S. 44:34.

13Mr. Russell argued that Mr. Mor-rell’s assertion that he is not the proper custodian fails because the Boykin colloquies have been transcribed. Mr. Russell pointed to our decision in State v. Russell, 2011-1469, unpub., p. 1 (La.App. 4 Cir. 11/21/11) as proof that a Boykin colloquy has been transcribed. In that decision, this Court denied Mr. Russell’s writ application, finding that the district court complied with this Court’s prior order to provide Mr. Russell with a copy of his Boykin transcript. Id.

Mr. Russell concluded that once a proceeding is transcribed, the transcript is filed in the court’s record, which makes Mr. Morrell, as the Clerk of Court, the custodian of the transcript. Mr. Russell argued that according to La. R.S. 44:31, he has the right to obtain a reproduction of the transcripts in the record from the custodian.

Mr. Russell argued that even though the time for filing a petition for post-conviction relief has passed, he is still entitled to the transcripts. Mr. Russell cited State ex rel. McKnight v. State, 98-2258 (La.App. 1 Cir. 12/3/98), 742 So.2d 894, in support of his argument that he is still entitled to the transcripts. In McKnight, the court noted:

A “person” who wants to examine public records must make the request to the custodian of the records. See La. R.S. 44:31 & 44:32. An individual in custody after sentence following felony conviction who has exhausted his appellate remedies is permitted access to public records if the request is limited to grounds upon which the individual could file for postconviction relief under La. Code Crim. P. art. 930.3. La. R.S. 44:31.1. Section 31.1 does not prevent an inmate from seeking records simply because the three-year time limitation for the filing of postconviction relief has passed. State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325. See La.Code Crim. P. art. 930.8. If a request for public records is denied by the custodian, before seeking relief from this court, the person must first institute civil proceedings for a writ of mandamus at the trial court level. See La. R.S. 44:35(A). Should the person prevail, he should be prepared to pay the regular service fees for copies of the |4documents. See State ex rel. Nash v. State, 604 So.2d 1054 (La.App. 1st Cir. 1992). After the trial court issues a ruling in the civil proceeding, the person may seek a civil appeal of the trial court?s action, if he desires. See La. R.S. 44:35(C).

Id., 98-2258, p. 1, 742 So.2d at 895.

Thus, Mr. Russell is correct that he may obtain a copy of his Boykin transcripts via a public records request whether or not the time limitation for filing an application for post-conviction relief has passed, provided he pay the regular fee.

However, Mr. Russell is to make his request to the custodian of the Boykin transcripts. Mr. Russell concluded that Mr. Morrell, as the Clerk of Court, is the proper custodian of the Boykin transcripts. But, Mr. Russell cited no support for his conclusion that Mr. Morrell is the custodian on the Boykin transcripts.

“In felony cases, ... the clerk or court stenographer shall record all of the proceedings ...” La.C.Cr.P. art. 843. In Orleans Parish, the court reporter or stenographer shall:

Prepare, make up, and furnish to the clerk of the criminal district court the transcript of the testimony, including bills of exceptions, motions, writs, and all court proceedings, taken in all cases appealed from judgments of the criminal district court to the judges of this court sitting as a court of appeals, and to the supreme court, as may be required by the clerk of the appropriate appellate court. The clerk of the criminal district court shall prepare, make up, and furnish the transcripts of appeals to the supreme court.

La. R.S. 13:1373(B)(3).

We have found no requirement that Mr. Morrell, Clerk of Criminal District Court, file a transcript into the criminal record, thereby making him | Bthe custodian of the transcript. The clerk of court merely receives the transcript and sends it on to the appellate court and/or counsel. Thus, in order to obtain a transcript, one must, contact the district court division wherein the proceeding took place. It is the duty of the trial court to require that “criminal proceedings [shall] be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.” La.C.Cr.P. art. 17. The jurisprudence supports this conclusion. See State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214, 216 (wherein the court noted that it is the duty of the trial judge to insure that the court reporter makes a true copy of the proceedings, citing La.C.Cr.P. art. 17) and State v. Johnson, 256 La. 592, 237 So.2d 389, 392 (1970) (wherein the court stated that it is incumbent upon the trial judge to order the court reporter to transcribe testimony taken).

Thus, there is no clear and specific legal duty that ought to be performed by Mr. Morrell. We find no error in the trial court?s determination that Mr. Morrell was not the custodian of the record sought by Mr. Russell and denial of Mr. Russell’s petition for a writ of mandamus.

In his second assignment of error, Mr. Russell argued that the trial court erred in denying his request for a rehearing. In essence, Mr. Russell sought a new trial. A trial court shall grant a new trial when:

(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
|fi(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

La. C.C.P. art. 1972.

Mr. Russell’s request for rehearing argued that the trial court did not consider his response to the Clerk of Court’s answer prior to issuing its judgment of July 8, 2011. Mr. Russell’s response to the answer alleges that all of the transcripts have been transcribed and, thus, Mr. Mor-rell is the custodian. Also, Mr. Russell argues that the Clerk of Court failed to certify in writing that he did not possess the records pursuant to La. R.S. 44:84. Mr. Russell also attached a letter from Judge Pittman’s law clerk, alleging that the letter provided Mr. Russell was to contact Mr. Morrell for the transcripts.

We have already addressed Mr. Russell’s argument that Mr. Morrell became the custodian of the transcripts upon their completion. We find no support for this contention.

Next, we notice that the record lacks proof that the Clerk of Court complied with La. R.S. 44:34 by sending Mr. Russell a writing certifying why he could not produce the requested public records. However, the law provides no remedy for the non-compliance of this statute by a noncus-todian. Further, the appellee brief and this opinion outline why the Clerk of Court is not the custodian of the transcripts. Requiring the Clerk of Court to certify in writing why he is not the custodian would serve no useful purpose. This Court has found that “[a] case is ‘moot’ when a rendered judgment or decree can serve no useful purpose and give no practical relief |7or effect.” Fourroux v. Board of Com’rs for Orleans Levee Dist., 2002-0374, p. 9 (La.App. 4 Cir. 1/8/03), 837 So.2d 698, 704, citing Robin v. Concerned Citizens for Better Education in St. Bernard, Inc., 384 So.2d 405, 406 (La.1980).

Lastly, Mr. Russell misconstrued the letter from Judge Pittman’s law clerk. The letter reads, “If you are seeking these transcripts, you need to contact these sections directly with a transcript request form.” Nothing in the letter indicates that Mr. Morrell is in possession of the transcripts or is the custodian of the transcripts.

The July 8, 2011 judgment was not clearly contrary to the law and the evidence, and Mr. Russell submitted no new evidence. Thus, we find that the trial court did not err in denying Mr. Russell’s request for a rehearing.

CONCLUSION

Accordingly, the judgment of the trial court denying the petition for writ of mandamus is affirmed.

AFFIRMED.

      . This does not limit the right of the custodian to make an inquiry pursuant to La. R.S. 44:31.1.

      . Mr. Morrell cited La. R.S. 13:961 in support of his argument that the court reporter is the custodian of the transcript. However, that statute applies to all parishes except Orleans Parish.

      . Further, Mr. Russell submitted a letter from Judge Pittman’s law clerk which provided that Mr. Russell was to contact directly the division wherein the proceeding took place to obtain a copy of his transcript.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Michael BROUSSARD v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 12-15.
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2012.

      Edward O. Taulbee, IV, Max Michael Menard, Lafayette, LA, for Defendant-Appellant, Farm Bureaus Casualty Insurance Company.
    Kevin P. Tauzin, Yul D. Lorio, Lafayette, LA, for Plaintiff-Appellee, Michael Broussard.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), appeals the trial court’s judgment granting Plaintiff, Michael Broussard, a summary judgment finding coverage under the Farm Bureau insurance policy. Finding that Plaintiff was entitled to judgment as a matter of law, we affirm the judgment of the trial court.

FACTS

The facts herein are not at issue. On March 31, 2009, Michael Broussard was operating a 1996 Ford Mustang belonging to Brandy Oppenheimer. Broussard and Oppenheimer lived together and had a child together but were not married. Broussard had Oppenheimer’s permission to drive her car. While driving on South College Road in Lafayette, Louisiana, Broussard was hit from behind by the pickup truck driven by Charles Renot. Renot was uninsured. Oppenheimer maintained uninsured motorist insurance on her vehicle and her insurer, GEICO Indemnity Insurance Company, tendered its $10,000.00 policy limits to Broussard.

At the time of the accident, Broussard owned a 2006 Hummer which was insured by Farm Bureau and had uninsured motorist coverage in the amount of $10,000.00 per person and medical payments in the amount of $5,000.00. Broussard made a demand for payment under Farm Bureau’s uninsured motorist coverage which Farm Bureau denied.

On January 19, 2010, Broussard brought suit against Farm Bureau seeking payment under the uninsured motorist coverage on his 2006 Hummer. Farm Bureau answered Broussard’s petition asserting that the policy did not cover the accident in that Broussard was operating a vehicle that was not listed in the policy. Farm Bureau filed a motion for summary | ¿judgment on the issue of coverage. Broussard filed a cross motion for summary judgment. The trial court granted Plaintiffs motion finding that Broussard was entitled to recover under the Farm Bureau UM coverage. Farm Bureau appeals.

DISCUSSION

Summary Judgment

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure, which is designed to secure the just, speedy, and inexpensive determination of civil actions, is now favored in our law. LSA-C.C.P. art. 966(A)(2). The summary judgment procedure is also an appropriate procedure for determining certain insurance coverage issues. See, e.g., Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024.

Sensebe v. Canal Indem. Co., 10-0703, p. 5 (La.1/28/11), 58 So.3d 441, 445.

Coverage

The trial court herein found in its written reasons for judgment that to exclude coverage would allow Farm Bureau to write a policy in derogation of La.R.S. 22:1295.

Louisiana Revised Statutes 22:1295(1) provides in pertinent part that:

(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subpara-graph (l)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under such policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage ^provision or policy; however, with respect to other insurance available, the policy of insurance or endorsement shall provide the following with respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, and the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary.
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

Farm Bureau cites the following policy language as excluding coverage for Brous-sard’s accident:

d. This insuring policy does not apply: (1) To any automobile owned by or furnished for the regular use to either the named insured or a member of the same household.

and;

This policy does not apply: (g) Under division 1 of coverage to bodily injury to the insured, his spouse or members of household sustained while in or entering into or alighting from an automobile owned by the insured, his spouse, or members of the household except the one described in the declarations.

We agree, however, with the trial court that the policy language cannot change the requirements of the statute. See Salvaggio v. Allstate Ins. Co., 08-585 (La.App. 3 Cir. 11/5/08); 997 So.2d 845. The Farm Bureau policy seeks to exclude UM coverage for injuries sustained in a vehicle owned by someone in the same household as the insured. The law allows for an exclusion pertaining to a spouse or relative’s policies. It cannot be interpreted to apply to the situation herein. “[T]he anti-stacking statute is not ^applicable when separate legal persons have entered into separate contracts with an insurer to provide coverage that does not include the other contracting person as an insured.” Hardy v. Augustine, 10-384, pp. 3-4 (La. App. 3 Cir. 2/2/11), 54 So.3d 1246 (citing Boullt v. State Farm Mut. Auto. Ins. Co., 99-942 (La.10/19/99), 752 So.2d 739). Therefore, the Farm Bureau policy is more restrictive than the law allows and cannot be given effect.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendant.

AFFIRMED.

      . While this case was decided on a prior version of the statute, it continues to stand for the proposition that policy language cannot change the requirements of statute.


author: EDWIN A. LOMBARD, Judge. TOBIAS, J.,

text:
    Lillie LABIT and Hayes Labit v. The PALMS CASINO & TRUCK STOP, INC. and J & R Amusement, Inc.
    No. 2011-CA-1552.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2012.

      Caleb H. Didriksen, III, Diane R. Co-senza, Didriksen Law Firm, New Orleans, LA, for Plaintiff/Appellant.
    Freeman R. Matthews, Timothy R. Richardson, Usry Weeks & Matthews, Gerald A. Melchiode, Mary E. Lorenz, Galloway Johnson Tompkins Burr & Smith, New Orleans, LA, Michael R. Zsembik, Metairie, LA, for Defendant/Ap-pellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

_jjThe plaintiffs appeal the judgment of the trial court granting summary judgment in favor of the defendants. After a de novo review of the evidence in light of the relevant law, we affirm the trial court’s judgment.

Relevant Facts and Procedural History

On Christmas evening of 2006, Mrs. La-bit delivered a gift and a meal to her daughter, Ms. Dinah Letellier, an employee of The Palms Casino & Truck Stop, Inc. (“the Palms Casino”) in St. Bernard Parish. She was driven to the Palms Casino in a 2000 Nissan Quest van by her daughter, Ms. Yvonne Brown; Mrs. Labit’s husband, now deceased, accompanied them. Ms. Brown pulled into a handicapped parking stall, but did not park squarely within the blue marked lines and, thus left approximately twenty-four (24) inches of the wheel stop in front of her van exposed on the right. The handicapped parking space in which she parked was to the right of the marked ramp/rise/walkway to gain entrance to the sidewalks leading to the Palms Casino.

Upon their return to the van, Mrs. Labit fell on the passenger side of the vehicle. Ms. Brown, however, was entering the driver’s side of the vehicle and did |2not see her mother fall. As Mrs. Brown was opening her car door, Mrs. Labit fell on the wheel stop on the opposite side of the van. Subsequently in her deposition testimony, Mrs. Labit conceded that, although she had no trouble seeing the ground because of the lighting conditions, she was unsure of what caused the fall. Although she assumed it was because of the wheel stop because “they” told her so, no eyewitnesses came forward to testify as to whether the accident was caused by the wheel stop.

Mrs. Labit and her husband, Hayes La-bit, filed this personal injury action against the Palms Casino; the landowner, J & R Amusement Co., Inc. (“J & R Amusement”); and the subcontractor responsible for renovating the casino parking lot after Hurricane Katrina, Delmas Bo-sarge d/b/a Bosarge Striping Service (“Mr. Bosarge”). The plaintiffs allege that the defendants were negligent in: a) failing to provide sufficient lighting to illuminate the presence of the wheel stop in question; b) failing to paint or mark the wheel stop so that its presence would be visible to handicapped pedestrians; c) failing to otherwise warn handicapped persons that the wheel stop presented a tripping hazard; d) improperly placing a wheel stop in the handicapped parking space in question; and e) failing to remove the wheel stop or warn handicapped pedestrians of its presence after becoming aware of previous tripping incidents.

|sAfter taking the depositions of Mrs. Labit, Mr. Bosarge, Darryl Eckert (the project manager for J & R Amusement), and Ms. Brown, each defendant filed a motion for summary judgment.

On July 28, 2011, the plaintiffs and the defendant, the Palms Casino, filed a joint motion for hearing on August 18, 2011 to be submitted on the record, without oral argument. On September 9, 2011, the trial court granted the motions for summary judgment in favor of all the defendants. The plaintiffs appeal.

Applicable Law

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966(B). The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 10-0343, p. 6 (La.1/19/11), 57 So.3d 1002, 1006, citing Samaha v. Rau, 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been supported by the moving party, the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion.” Id.; (citations omitted).

The threshold issue in any negligence action is whether the defendant owed |4the plaintiff a duty. Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 8 (La.3/10/06), 923 So.2d 627, 633 (citations omitted). Whether a duty is owed is a question of law. Id. (citations omitted). As a general rule, the owner or occupier of land has a duty to keep the property in a reasonably safe condition. Pryor v. Iberia Parish School Bd., 10-1683, p. 3 (La.3/15/11), 60 So.3d 594, 596. This includes a duty to discover any unreasonably dangerous conditions on the premises and either correct the condition or warn potential victims of its existence. McCloud v. Housing Authority of New Orleans, 08-0094, p. 3 (La.App. 4 Cir. 6/11/08), 987 So.2d 360, 363.

There are two theories of liability available to a plaintiff who claims she was injured as a result of the condition of a thing: negligence, under Louisiana Civil Code Articles 2315 and 2316, and strict liability, under Louisiana Code Articles 2317 and 2317.1. Under both theories of liability, a plaintiff must prove that the condition of the thing presented an unreasonable risk of harm, or was defective, and that this condition of the thing was a cause-in-fact of her injuries. McCloud v. Housing Authority of New Orleans, 08-0094, p. 3, 987 So.2d 360 at 362.

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83. Discussion

On appeal, the plaintiffs assign as error (1) the trial court erred when it dismissed the plaintiffs’ claims against J & R Amusement; (2) the trial court erred when it dismissed the plaintiffs’ claims against the Palms Casino; and (3) the trial court erred |fiwhen it dismissed the plaintiffs’ claims against Mr. Bosarge.

J & R Amusement’s Motion for Summary Judgment against the Plaintiffs

J & R Amusement asserts that it is entitled to judgment as a matter of law because the plaintiffs will be unable to meet their burden of proof at trial as the conditions at issue were not unreasonably dangerous, and even if they were, J & R Amusement had no notice that said conditions were unreasonably dangerous or defective. In support of its motion, J & R Amusement submits (1) the deposition testimony of Mr. Eckert stating that J & R Amusement relied on the expertise of Mr. Bosarge to properly reconstruct the parking lot and to notify J & R Amusement should any part of the lot fail to meet the applicable safety standards; (2) the deposition of Mr. Bosarge, who testified that he would not have expected the owner (J & R Amusement) to know if there was anything unreasonably dangerous about having an unpainted wheel stop; (3) the deposition testimony of Ms. Brown stating that she did not park squarely within the parking stall; and (4) the affidavit of Mr. Eckert attesting that numerous parking lots in St. Bernard Parish contain unpainted wheel stops in configurations similar to J & R Amusement’s property.

In opposition to J & R Amusement’s motion for summary judgment, the plaintiffs assert summary judgment is inappropriate because genuine issues of material fact exist as to whether the wheel stop was unreasonably dangerous, specifically: (1) whether J & R Amusement owed a duty to the plaintiffs to paint the wheel stop or use a bollard; and (2) whether the wheel stop should have been obvious to Mrs. Labit. In support of their opposition, the plaintiffs submit (1) the deposition testimony of Ms. Brown stating that Mrs. Labit had been to the Palms Casino “a couple times” before the accident and when they arrived at the Palms (r,Casino it was getting dark; (2) the deposition of Mrs. Labit testifying that she had been to the Palms Casino before the accident; (3) the deposition Mr. Bosarge testifying that it was his personal preference to paint a wheel stop in a location where there may be some pedestrian traffic, that painting one wheel stop would have cost $6.00, and that with respect to whether or not the wheel stop could create a dangerous condition, there were other factors involved in this particular instance, including the lighting; (4) the deposition of Charles Bienvenu, the corporate president of J & R Amusement and the Palms Casino, testifying that the parking lot at the Palms Casino was the same before and after Hurricane Katrina; (5) excerpts from Touro medical records; and (6) the affidavit of Mike Deharde, a registered professional engineer in Louisiana, with attached photographs of the wheel stop at issue.

In reply to the plaintiffs’ opposition to the motion for summary judgment, J & R Amusement asserts that summary judgment is appropriate because the condition is not an unreasonable risk based upon common application and there was no reason for J & R Amusement to have known that this common application represents an unreasonable dangerous condition. In support, J & R Amusement submits (1) the deposition of Mrs. Labit stating that she did not recall seeing the wheel stop, but she believed that the “something” she tripped on was the wheel stop based on what she was told by others; (2) the deposition testimony of Mr. Eckert, who states that he relied on the knowledge and expertise of a traffic engineer to ensure compliance with all applicable safety standards; and (3) the deposition testimony of Mr. Bosarge stating that he never raised any safety issues regarding the failure to paint the wheel stops and would not have expected J & R Amusement to have known that a safety issue existed.

| ./Throughout its pleadings, J & R Amusement uses the term, “unreasonably dangerous,” a term of art for products liability cases. However, the proper standard for negligence cases, such as the case at bar, is “unreasonable risk of harm.” We also note that the terms, “unreasonably dangerous” and “unreasonable risk of harm” have been used interchangeably in caselaw, resulting in the intertwining and overlapping of the standards. See McCloud v. Housing Authority of New Orleans, 08-0094 (La.App. 4 Cir. 6/11/08), 987 So.2d 360; see also Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541 (slip and fall negligence action was characterized as a premises liability action using the standard of “unreasonably dangerous”). However, for the purposes of our analysis, we will be using the standard “unreasonable risk of harm.”

Once J & R Amusement pointed out there is an absence of factual support for one or more elements to the plaintiffs’ claim, the burden shifted to the plaintiffs to produce factual support sufficient to establish that a genuine issue of material fact exists and that summary judgment is not appropriate. La.Code Civ. Proc. Art. 966(C)(2); Greenhouse v. C.F. Kenner Associates Ltd. P’ship, 98-0496 (La.App. 4 Cir. 11/10/98), 728 So.2d 1004, 1007. Thus, in this ease, the plaintiffs needed to submit competent evidence to prove that (1) the unpainted wheel stop in the parking lot was a defect; and (2) J & R Amusement knew or should have known that this condition posed an unreasonable risk of harm to a reasonable and prudent person exercising ordinary care, such as expert testimony stating that unpainted wheel stops are an unreasonable risk of harm and not in line with applicable building codes and industry standards and/or records indicating a history of accidents due to unpainted wheel stops. The plaintiffs, however, only point to the testimony of Mr. Bosarge stating that it is his personal preference to paint wheel |8stops. Clearly, the “preference,” even of an expert, does not constitute evidence that a condition creates an unreasonable risk of harm. Because the plaintiffs failed to introduce the necessary evidence that there is a genuine issue of material fact, J & R Amusement is entitled to summary judgment as a matter of law.

The Palms Casino and Truck Stop, Inc.’s Motion for Summary Judgment against the Plaintiffs

The Palms Casino asserts that, because the plaintiffs will not be able to produce factual support sufficient to satisfy their evidentiary burden of proof at trial to show that the wheel stop was in any way defective, nor will they be able to prove that the Palms Casino knew or should have known of such a defect, if one did exist, the Palms Casino is entitled to judgment as a matter of law. In support of their motion, the Palms Casino submits the affidavit of Fred Vanderbrook, an engineer licensed in Louisiana, attesting that there is no building code or other Louisiana requirement that requires wheel stops to be painted and that the Palms Casino’s wheel stops met all building requirements, including all state and local building codes.

In opposition to the Palms Casino’s motion for summary judgment, the plaintiffs argue that the affidavit containing an opinion does not resolve a disputed issue of material fact and the Palms Casino offers no evidence other than an affidavit of an engineer whose credentials on the issue of the applicable standards are not established. Further, the plaintiffs aver that the fact that a condition does not violate a building code or standard does not ipso facto render it “safe.” Thus, the plaintiffs argue that a genuine issue of material facts exists as to whether or not the wheel stop was unreasonably dangerous, making summary judgment inappropriate. In support of these allegations, the plaintiffs submit only deposition | testimony that the Palms Casino did not have a formal lease but paid rent to J & R Amusement.

In reply, the Palms Casino reiterates that no legal requirement to paint a wheel stop exists and the plaintiffs cannot meet their burden of proving negligence or that the Palms Casino knew or should have known of any dangerous condition.

Pursuant to Louisiana Code of Civil Procedure article 967(B), an adverse party may not rest on mere allegations or deni-ais in his pleading in response to a properly made and supported motion for summary judgment, but must come forward, by affidavits or otherwise, with specific facts showing a genuine issue for trial. Contrary to what the plaintiffs argue, it is not the burden of the Palms Casino to establish that the unpainted wheel stop was safe; instead, it is the burden of the plaintiffs to show that the unpainted wheel stop posed an unreasonable risk of harm. Thus, it was incumbent on the plaintiffs to introduce some competent evidence, such as expert testimony, that unpainted wheel stops violate a building code or that unpainted wheel stops present an unreasonable risk of harm. However, the plaintiffs did not produce any testimony, lay or expert, that unpainted wheel stops create a hazardous condition. Further, the plaintiffs offer no design standards or studies to prove their theory that unpainted wheel stops create an unreasonable risk of harm. See Doane v. Wal-Mart Discount Stores, Inc., 96-2716, (La.App. 4 Cir. 6/25/97), 697 So.2d 309 (Summary judgment was appropriate where (1) there was no testimony in the record, lay, or expert, that painting speed bumps the same color as stripes, creates an unreasonable risk of harm; and (2) the plaintiff offered no design standards or studies to prove her theory that the use of the same color on the speed bump was unreasonably dangerous). Moreover, Mrs. Labit’s deposition testimony indicates that she does not know what she tripped on. See Mooty v. Centre at Westbank L.L.C, 10-792 (La.App. 5 Cir. 3/29/11), 63 So.3d 1062 (“whether the tire stop complied with the ADA is of no moment given the fact that the plaintiffs cannot show that the tire stop in question caused the plaintiffs fall”). Accordingly, the Palms Casino is entitled to judgment as a matter of law.

Delmas Bosarge’s Motion for Summary Judgment against the Plaintiffs

Mr. Bosarge asserts that he is entitled to summary judgment because the plaintiffs’ allegations against him are beyond the scope of the contract he had with J & R Amusement and the plaintiffs will be unable to prove at trial that he owes a duty to the plaintiffs to provide services, such as painting the wheel stops, which was not requested by J & R Amusement. Mr. Bosarge contends that he was asked to simply restore the parking lot to its pre-Katrina condition, and that he was never asked to perform any other activities. Further, Mr. Bosarge avers that there is no evidence in the record that an unpainted wheel stop constitutes a defect. In support of his motion, Mr. Bosarge submits (1) his deposition testimony that he has been a traffic engineer with Jefferson Parish for eighteen years and there are no building code requirements that wheel stops be painted; (2) the deposition testimony of Mr. Eckert, who has an extensive background in construction, stating that he hired Mr. Bosarge to restripe the Palms Casino’s parking lot to “duplicate what was there” before Hurricane Katrina, that he did not speak with Mr. Bosarge until the work was completed and that he was satisfied with Mr. Bosarge’s work; and (3) the copy of the “Plaintiffs’ Responses to Written Discovery Interrogatories to Lillie La-bit.”

Inin opposition to Mr. Bosarge’s motion for summary judgment, the plañí-tiffs assert that Mr. Bosarge is not entitled to summary judgment because Mr, Bo-sarge had a duty to inform J & R Amusement that unpainted wheel stops were hazardous and, further, his failure to inform was a breach of his duty to third parties, such as Mrs. Labit. In support of its opposition, the plaintiffs submit (1) the deposition testimony of Mr. Bosarge stating that he believes that wheel stops “in likely pedestrian pathways should be painted because otherwise pedestrians may trip on them,” and that painting the wheel stops would have made them more noticeable; (2) the deposition testimony of Mr. Eckert stating that he hires subcontractors for their expertise and thus, relies on their expertise to inform him of how to complete a job safely and correctly; (3) the affidavit and attached report of David Hall, the plaintiffs’ expert in traffic engineering, who attests that, in his opinion, the wheel stop should have been painted yellow.

In reply, Mr. Bosarge asserts that the plaintiffs’ opposition memorandum is “totally inapposite to the present facts herein,” and, therefore, the plaintiffs have failed to show any breach of duty by Mr. Bosarge or any other defendant. Mr. Bo-sarge asserts that the wheel stop was unpainted before Katrina and his restriping |12of the parking lot left the wheel stop unaffected and, thus, he did not create a defect. Moreover, he points out that the plaintiffs have submitted no evidence that an unpainted wheel stop constitutes a defect. He further contends that he was hired to restripe the parking lot and return it to its pre-Katrina status and there is no evidence to show that he was hired to perform any traffic engineering duties. Finally, he avers that the plaintiffs’ argument that a painted wheel stop provides a greater contrast than an unpainted one is a statement of the obvious, requiring no expertise, especially to those involved in the construction trades.

While Mr. Bosarge is correct in his assertion that there is no legal requirement that a contractor owes a duty to a third-party to provide services which are not requested by the customer, a contractor does owe third parties a duty to exercise ordinary care and refrain from creating hazardous conditions in the fulfillment of its contractual obligations. Lyncker v. Design Engineering, Inc., 2007-1522, p. 3 (La.App. 4 Cir. 6/25/08) 988 So.2d 812, 814. But, as Mr. Bosarge points out, the plaintiffs’ have failed to submit factual support for the essential element in their case, that the unpainted wheel stop created a hazardous condition. Mr. Hall’s opinion, like Mr. Bosarge’s personal preference, does not constitute evidence that an unpainted wheel stop is a hazardous condition. Thus, because the plaintiffs have failed to come forward with any evidence that an unpainted wheel stop creates a hazardous condition, Mr. Bosarge is entitled to summary judgment as a matter of law. See La.Code Civ. Proc. art. 966; see also Doane, supra; Mooty, supra.

Conclusion

Upon de novo review, we find no genuine issue of material fact exists. Accordingly, the motions for summary judgment granted in favor of defendants, |iaJ & R Amusement Co., Inc., Delmas Bosarge, and The Palms Casino and Truck Stop, Inc. are affirmed.

AFFIRMED.

TOBIAS, J., dissents in part and assigns reasons.

TOBIAS, J.,

dissents in part and assigns reasons.

h This case comes to this court for review of the trial court’s granting of the defendants/appellees motions for summary judgment. It is a case in which the plaintiffs/appellants have requested a trial by jury. In my view, the majority clearly errs in affirming two of the three trial court granted motions for summary judgment because genuine issues of material fact remain.

The majority, in my view, omits material facts from their opinion relative to this trip and fall case. Further, the majority’s analysis of the law is flawed based upon the facts in this case. Thus, their de novo review reaches an incorrect result insofar as the appellants’ claims against The Palms Casino & Truck Stop, Inc. (“The Palms Casino”) and J <& R Amusement Co., Inc. (“J & R Amusement”). The issue is not whether the wheel stop was “unreasonably dangerous,” as the majority says and the defendants repeatedly argue; rather, the issue is whether a wheel stop in an inadequately lit parking lot creates an unreasonable risk of harm to an individual such as the plaintiff, Lillie Lab it. “Unreasonably dangerous” applies to a products liability case, not a trip and fall, resulting in injury. See La. R.S. 9:2800.51, et seq. No matter how many times the majority and the appellees state or urge that the wheel stop was not unreasonably dangerous, that is simply not the relevant test or law in this case. For the reasons that follow, I would reverse the |2granting of the motions for summary judgments in favor of The Palms Casino and J & R Amusement, but affirm the granting of the motion for summary judgment in favor of Delmas Bosarge d/b/a Bosarge Striping Service (“Bosarge”).

/.

At issue in this case is a 4.5-inch high, 7-inch wide, 72-inch long, gray concrete wheel stop. The wheel stop at issue is located 3 feet from the edge of a 4.5-inch high curb that adjoins and is at the same height of a gray concrete sidewalk. The face of the curb is painted yellow, but the top of the curb (which level with and immediately joins a concrete sidewalk) is not painted. Further, the wheel stop is in a portion of a gray concrete parking lot designated as for handicapped parking only. At night, an elderly woman stepping from the sidewalk into the parking lot across the curb trips and falls on an exposed portion of the wheel stop. The question is whether the wheel stop in this factual scenario creates an unreasonable risk of harm at night to those walking through the handicapped parking area of the lot. A duty-risk analysis of liability applies to this case. As the Louisiana Supreme Court said in Rando v. Anco Insulations, Inc., 08-1163, 08-1169, pp. 26-27 (La.5/22/09), 16 So.3d 1065, 1085-86,

The standard negligence analysis we employ in determining whether to impose liability under La. Civ.Code art. 2315 is the duty/risk analysis, which consists of the following four-prong inquiry: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a eause-in-faet of the harm which occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318, 321-22. Under a duty/risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. As such, 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 (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). Davis v. Witt, 02-3102 (La.7/2/03), 851 So.2d 1119, 1127.

Applying a duty-risk analysis to the facts of this case begs the following two questions: Did the wheel stop in its location on the day and at the time (night) of the accident, which resulted in very serious injuries to the plaintiff/appellant, Lillie Labit, create an unreasonable risk of harm to her as a pedestrian in the handicapped parking area of the parking lot? Similarly, comparative fault factors into the liability issues in this case, to-wit, was The Palms Casino, J & R Amusement, and/or Bosarge negligent, and was Mrs. Labit comparatively at fault for her own injuries? La. C.C. art. 2323. What more likely than not happened on Christmas night 2006 cannot be ascertained from an analysis and review of all of the motions for summary judgment and their attached affidavits, deposition, and other evidence.

The majority erroneously, in my view, tries to say that the phrases “unreasonably dangerous” and “unreasonable risk of harm” are basically synonymous. Therefore they surmise that when a defendant talks about a wheel stop not being unreasonably dangerous, the defendant means that the wheel stop did not create an unreasonable risk of harm. As I read the parties’ briefs, it is eminently clearly that the parties meant only that the wheel stop was not unreasonably dangerous. I think everyone is in agreement that a wheel stop per se is not unreasonably dangerous as understood in laymen’s terms, as opposed to what unreasonably dangerous means in our law. It’s not that the wheel stop is and of itself unreasonably dangerous. What you do with the wheel stop — where you |4place it and how you identify it and make it obvious to clientele/patrons — can create an unreasonable risk of harm depending upon the facts of each individual case.

The majority’s reliance on Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541 is misplaced. First, Eisenhardt was decided after a bench trial, and not on a motion for summary judgment. Second, the plaintiff therein was injured when he fell on some steps that had not been completely clean off by hosing following a spill of trash. As the Court said therein:

Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case.
In the case at bar, the court of appeal premised its opinion on a finding that the district court made a factual determination that an unreasonably dangerous condition was created when Ms. Snook washed the steps after spilling trash on them. However, a complete reading of the district court’s reasons for judgment reveals that it made no such finding. Although the district court referred to a “hazard,” it did so in the context of explaining that Mr. Eisenhardt “should have seen the water and known that there was a hazard.” The court further stated, “I think it’s all Mr. Eisenhardt’s fault.” From these statements, it was obvious that the district court made a finding that Ms. Snook was not liable for Mr. Eisenhardt’s injuries because the condition of the steps should have been observed by Mr. Eisenhardt 1 ¡¡in the exercise of reasonable care. [Emphasis added; internal citations omitted.]

Eisenhardt, pp. 5-6, 8 So.3d at 544-45. In context, the Supreme Court said and meant that the court of appeal erred in overturning a factual finding of the trial court that was neither manifestly erroneous nor clearly wrong — that the plaintiff was totally responsible for his own injuries. The issue was not one of unreasonably dangerous but rather whether the situation created an unreasonable risk of harm.

Similarly, the majority’s reliance on McCloud v. Housing Authority of New Orleans, 08-0094 (La.App. 4 Cir. 6/11/08), 987 So.2d 360, is misplaced. The plaintiff in McCloud stepped in a mud filled hole in a construction site. As court said:

[A] plaintiff must prove that the condition of the thing presented an unreasonable risk of harm, or was defective, and that this condition of the thing was a cause-in-fact of her injuries. Both theories are analyzed under the duty/risk analysis. The duty-risk analysis is employed on a case by case basis. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of the harm was within the scope of the protection afforded by the duty breached.
At the hearing on the motion for summary judgment, Defendants did not dispute that they had custody of the construction site at the time of the accident, but they contended that an unreasonably dangerous condition did not exist for which it owed a duty of care to Ms. McCloud under the circumstances.
The existence of a duty is a question of law. In general, the owner or occupier of land has a duty to keep the property in a reasonably safe condition. This includes a duty to discover any unreasonably dangerous conditions on the premises and either correct the condition or warn potential victims of its existence. Moreover, one doing construction work has a duty to properly label, mark, or barricade places in a construction site that present an unreasonable risk of harm to a passerby.
|fiTo determine whether a risk is unreasonable, the court must balance the probability and magnitude of the risk against the utility of the thing. The probability of harm plus the gravity of the harm which may ensue must be balanced against the utility of the thing and its condition on the day of the accident. Moreover, not every minor imperfection or irregularity will give rise to strict liability; the defect must be of such a nature as to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances.
Additionally, the degree to which a danger is evident to a potential victim is one factor in determining whether the condition is unreasonably dangerous. A person who has custody of a thing may have no duty to protect against an open and obvious hazard; if the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. A landowner (or occupier) is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of reasonable care or was as obvious to a visitor as it was to the landowner. [Boldface emphasis added; internal citations omitted.]

McCloud, pp. 8-5, 987 So.2d at 362-63. Obviously, someone walking across a construction site has a greater duty to observe where he is going as compared to one walking in a paved parking lot. The foregoing boldfaced language in McCloud states the law correctly. In the case before us, a genuine issue of fact is raised as to what an elderly person walking at night in a parking lot might expect. From the facts shown by the parties, the issue cannot be resolved in this case on the present motion for summary judgment.

II.

The record on appeal from the district court in St. Bernard Parish discloses the following operative facts, which the majority omits:

1. Mrs. Labit was 76 years of age at the time of the subject accident. (Relevant because an elderly person’s visual acuity, memory, and balance decline |7with age; further, an elderly person suffering physical injury is more likely than a youthful person suffering the same injury to have greater memory problems.)

2. , The location of the accident scene is not clearly shown in the attached exhibits to the motions for summary judgment, the oppositions, and the replies to the oppositions.

3. The sidewalk, curb, parking lot, and wheel stops are gray colored concrete. (Relevant, inter alia, because in reduced lighting conditions, things made of gray concrete tend to blend in appearance.)

4. The lateral face of the sidewalk or curb is painted yellow, but that yellow is not visible for those walking away from The Palms Casino into the parking lot, and visible only those entering The Palms Casino from the parking lot. (Relevant because one would observe the yellow delineation, consciously or unconsciously, walking into the casino, and would expect, consciously or unconsciously, similar delineation on the way out.)

5. Ms. Brown says that she and Mrs. Labit delivered the gift and meal to Ms. Letellier. Contrariwise, Mrs. Labit says that only she delivered the meal. (Relevant because one person following another to whom he/she is related tends to be less observant, expecting the person in the lead to be watching and warning of hazards.)

6. The record does not clearly disclose how long Mrs. Labit and/or Ms. Brown were inside the casino, although it appears to be a brief period of time. | s(Relevant because of the time it takes one’s pupils to adjust to changes in light; this is discussed further, infra.) Upon exiting The Palms Casino, Ms. Brown was in the lead as she and Mrs. Labit walked back to the van.

Ms. Brown stepped down from the curb into the parking lot to get into the driver’s side door of her van.

7. Although Mrs. Labit in deposition does say that she did not know what she tripped over, her last statement in deposition relative to the issue is that she tripped over a protruded portion of the wheel stop.

8. A hand-drawn diagram of the route taken by Mrs. Labit and/or Ms. Brown is in evidence. (Relevant because people do not always take a ramp or rise, instead choosing to take a shorter route such as stepping off a curb.)

9. Mrs. Labit fell and fell hard, sustaining a concussion, a broken nose in two places, broken cheekbones, bleeding in her brain, fractured one and [perhaps] both orbits of her skull, a stroke, seizures, memory loss and impairment, hallucinations, lacerations, extensive facial bruising, nightmares, depression, et cetera. She remained in the hospital for 3.5 months following her fall. She now requires caregivers and forgets where she is and how to return to her home. (Relevant, inter alia, because the nature of Mrs. Labit’s injuries would cause an elderly person not to remember clearly how her injury occurred.)

10. The accident occurred at night; it is undisputed that the parking lot in that area was only dimly lit. Shadows were present. Part of the lighting was provided by a colored neon light from inside The Palms Casino. (Relevant because lighting affects that which is seen or should be seen and that which is perceived.)

11. The Palms Casino was destroyed by Hurricane Katrina. It was not reopened until November 2006, less than 2 months before Mrs. Labit’s injury. (Relevant because Mrs. Labit would not necessarily remember in any detail the layout of the parking lot.)

|fl12. Bosarge, who was hired by the premises owner (as explained in greater detail infra), further opines that the curb face should not have been the only thing painted; rather four inches on the top of the curb should likewise have been painted. (Relevant to what a pedestrian sees or should see.)

III.

The following are some, but not all, of the unanswered factual considerations that must be analyzed and factored into a consideration of this case, some of which are based upon the record and some from the common human experiences:

• Looking from the dark into a building that is lighted on the inside, one can see what is going on in the building. Contrariwise, one inside a lighted building looking towards the darkness outside cannot clearly see that which is outside.
• One’s pupils contract when entering a lighted building from the darkness; when one exists a lighted building into the darkness, one’s pupils dilate. The eyes’ adjustment can take several seconds. And when exiting under such circumstances, one can find it difficult to see clearly until the eyes adjust to the lighting.
• A casino is a high foot-traffic area with people entering and exiting frequently and at all hours. The interiors are generally lit in such a way to induce patrons to engage in gaming.
• The accident occurred in an area of the parking lot designated for handicapped parking. It goes without saying that those parking in a designated handicapped parking space are going to be physically impaired, whether by movement or sight. See La. R.S. 40:1742 A(l).
ho* At night, unlevel concrete (caused by the presence of a curb) may not be readily perceived as unlevel, especially by people of advanced age and when the lighting conditions are less than ideal. A gray concrete wheel stop at night in a concrete parking lot may not be readily visible absent markings, and/or sufficient lighting.
• A person does not always look down when walking on concrete.
• An individual walking in and out of a parking area for a video poker truck stop at night has an expectation that the pathway is level and clear.
• Not everyone reports every trip and/or fall to the premises owner or premises occupant/lessee. If no injury or no material injury occurs in a trip and/or fall, a report of the incident is unlikely to be made.
• What things had been happening on Christmas day in Mrs. Labit’s life before the accident and what the later evening “entertainment” was going to be for Mrs. Labit after dropping off the gift and meal (e.g., was Mrs. Labit in a rush).
• An individual of advanced age is likely to experience declining night vision and problems with balance and strength.
|n*A significant observable percentage of the patrons of a casino are elderly.

IV.

Mrs. Labit was an invitee onto the premises. Louisiana law on invitees can best be summarized as follows:

An invitee, by definition, is considered to be one who enters upon the premises of another in answer to a direct or implied invitation. But there are few cases in which the occupant of the premises extends a personal invitation which solicits the entrance by various and sundry individuals thereupon. For the most part, cases involving invitation are concerned with implied invitation, that is, invitations which are assumed by virtue of the business of the possessor of the premises and the purpose that occasions the visit of the so-called invitee. It is thus apparent that the purpose of the entry is an important feature in defining and establishing the class in which a given individual should be placed. In determining the purpose of the visitor, with regard to his classification, it is well-established that such purpose must be one concerning a matter of mutual interest, the performance of some duty, a proceeding in the usual course of business, or a matter which will benefit the owner or occupant of the premises.

Mercer v. Tremont & G. Ry. Co., 19 So.2d 270, 275 (La.App. 2nd Cir.1944)(in-ternal citations omitted).

As stated in Doe v. Hawkins, 09-1184 (La.App. 3 Cir. 6/9/10), 42 So.3d 1000:

Our law has long recognized that business proprietors must maintain their premises in a reasonably safe condition for their patrons. Harris v. Pizza Hut of La., Inc., 455 So.2d 1364 (La.1984). A proprietor is not the insurer of his patrons or guests, but he has a two-pronged duty to persons on his premises: he must exercise reasonable care for their safety and he must not expose them to “unreasonable risks of injury or harm.” St. Hill v. Tabor, 542 So.2d 499, 502 (La. 1989) (quoting Walker v. Union Oil Mill, Inc., 369 So.2d 1043, 1047 (La. 1979)). This is a general duty which obligates the proprietor to protect his patrons “from insult, annoyance, and danger.” J.B. Saucier v. Players Lake Charles, LLC, 99-1196, p. 9 (La.App. 3 Cir. 12/22/99), 751 So.2d 312, 318.

Doe, 09-1184, p. 9, 42 So.3d at 1007.

Thus, an invitee is entitled to the expectation that the premises, including pathways for ingress and egress, of a commercial establishment are safe. And the commercial establishment has an affirmative duty to make sure the premises are reasonably safe for anticipated invitees.

V.

The following balancing test must be used to decide whether a commercial establishment owes a duty of care to protect its customers and those visiting the premises: (1) the foreseeability of the risk on the defendant’s property; (2) the gravity of the risk so as to determine the existence and the extent of the defendant’s duty; (3) the greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business; and (4) a very high degree of foreseeability is required to give rise to a duty to post personnel, but a lower degree of foreseeability may support a duty to implement lesser measures such as installing improved lighting. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances. See Daniels v. Essex Ins. Co., 04-579 (La.App. 5 Cir. 11/30/04), 890 So.2d 599. The foreseeability and gravity of the harm are to be determined by the facts and circumstances of each case.

In sum in the case at bar, it is a genuine issue of fact from the conflicting deposition testimony, affidavits, and exhibits, considering the lighting conditions on 25 December 2006 and the observability of a gray concrete wheel stop located in a gray concrete handicapped parking area, whether the wheel stop and curb created an unreasonable risk of harm for a trip and fall injury to an elderly person walking in t he area. Even Bosarge acknowledges in his deposition that a wheel stop can present a risk of injury if inadequate lighting is present. In evidence is 11sthe deposition of David Hall, a professional engineer employed by the appellants, who opines that wheel stops should not be placed in a foreseeable pedestrian path where low lighting conditions exist; further, color contrasts are needed. Such would certainly apply to a handicapped parking area.

It is Hornbook law that if genuine issues of material fact exist considering all of the circumstances, summary judgment is inappropriate. See La. C.C.P. arts. 966 and 967. The case at bar clearly establishes that genuine issues of material fact exists as to (a) what happened on the night of Christmas 2006, (b) what the lighting conditions were like in the parking lot on that evening, and (c) the length of time Mrs. Labit was inside The Palms Casino and how long it would reasonably take for her eyes to have adjusted going into the night and into a partially lit parking lot. The issue for the trier of fact is not only the reasonableness of the actions and inactions of The Palms Casino and/or J & R Amusement respecting the parking lot, but also the comparative fault, if any, of Mrs. Labit and even her daughter on that Christmas night. A duty-risk analysis of facts embraces a “but for” analysis of those same facts. That is, would an injury have occurred but for an elderly Mrs. Labit exiting The Palms Casino at night in an apparently partially lit parking lot and tripping over a gray concrete wheel stop located on top of gray concrete, regardless of whether a vehicle partially obstructed the view of part of the wheel stop. These are all material facts precluding summary judgment in favor of The Palms Casino and J & R Amusement.

VI.

| ^However, like the majority, I do not find that the trial court erred in granting the motion for summary judgment of Bo-sarge. Bosarge had no duty to Mrs. La-bit; he had no contract, express or implied, with her. Bosarge’s only duty was to the person who employed him to res-tripe the parking lot. What he told or did not tell The Palms Casino and J & R Amusement is between them. Bosarge was only hired to restripe the parking lot over the same previous markings that were in place before Hurricane Katrina. In fact, Bosarge acted only as the person who billed J & R Amusement for the restriping work, relying upon Danny Puffer to relay and describe to him the work that needed to be done so that he, Bo-sarge, could quote a price. Bosarge subcontracted the restriping work out to Mr. Puffer who did the actual work. And Bo-sarge only went out to the site after the work was completed and then related presentation to his bill for the services performed, not as a safety advisor about repainting the striping in the parking lot. He was not consulted or even asked by The Palms Casino’s or J & R Amusement’s offieers/employees for an opinion concerning safety. Although Bosarge worked for Jefferson Parish in traffic engineering and has testified in the past as an expert in that field, he is not a licensed traffic or civil engineer. Bosarge himself, even as a direct defendant, opines that light can affect what type of markings are needed in a parking lot. He is aware of the requirements of the ADA Accessibility Guidelines as mandated by La. R.S. 40:1742 A(l) and its requirements. He further opines that the curb face should not have been the only thing painted; rather four inches on the top of the |1scurb should likewise have been painted. He over and over again asserts that he was never employed by The Palms Casino and/or J & R Amusement to advise them before Mrs. Labit’s fall what type of painting or striping was needed. He states that bollards would have been a better choice than concrete wheel stops in the handicapped area next to the curb and sidewalk.

VII.

In my view, this case presents one of the clearest cases why (on the affidavits, depositions, and exhibits (as supplemented) attached to the motions for summary judgment and the oppositions thereto) summary judgment should not have been granted in favor of The Palms Casino and J & R Amusement.

I respectfully dissent in part from the decision of the majority.

      . There is no deposition testimony in the record of Mr. Labit.

      . Mr. Labit died on December 25, 2008, and pursuant to La. Civ.Code Art. 2315.1(a)(1), Lillie Labit, Joann Watson, Yvonne Brown, and Diana Greer inherited Mr. Labit's cause of action against the defendants upon his death. Notably, Dinah Letellier, the daughter Mrs. Labit went to visit at the Palms Casino, is not a plaintiff in this suit.

      .The plaintiffs did not produce any evidence to indicate a history of previous tripping incidents.

      . J & R Amusement also filed an opposition to Mr. Bosarge's motion, asserting that the wheel stop at issue was not an unreasonably dangerous condition but, in the event that the court finds an unpainted wheel stop may be an unreasonably dangerous condition, it opposes Mr. Bosarge's motion on the grounds that Mr. Bosarge may be liable for the creation of the unreasonably dangerous condition and failed to warn J & R Amusement of said hazard. In support of its opposition, J & R Amusement submits (1) the deposition testimony of Mr. Eckert stating that he hires subcontractors for their expertise and thus, relies on their expertise to inform him of how to complete the job safely and correctly; (2) the deposition testimony of Mr. Bosarge stating that, upon completion of his work on the parking lot, he did not find any defects; he agrees that the unpainted wheel stop is not in an unreasonably dangerous or defective condition and, if the unpainted wheel stop was a defect, he would not have expected the owner to have been aware of it; and (3) a copy of the proposal and contract as submitted by Mr. Bosarge to Mr. Eckert indicating the project, scope of work, and pricing for the parking lot. Because the plaintiffs fail to come forward with any evidence that the unpainted wheel stop created an unreasonable risk of harm, we pretermit further discussion of J & R Amusement’s opposition to Mr. Bosarge’s motion for summary.

      . A "wheel stop” is an object placed at the front of a parking stall to keep a vehicle from striking a wall (or in the case at bar, the concrete curb.)

      . The motions for summary judgment were submitted to the trial court without oral argument.

      . Obviously, if for some unknown reason a wheel stop had been placed by The Palms Casino immediately in front of the main door partially obstructing it and Mrs. Labit had tripped over it, one would have to say that the wheel stop created an unreasonable risk of harm to her in its location, even though the wheel stop in and of itself was not unreasonably dangerous.

      . The location of the accident is shown in a black and white photocopy of a photograph attached to a motion for summary judgment. The photograph is blurred, dark, and unclear to understand what the scene actually looked like and therefore would have likewise been unclear to the trial judge. The movers apparently did not submit the actual color photographs to the trial judge, instead submitting an affidavit from Darryl Eckert, manager of J & R Amusement, with photocopies of photographs attached. Further, both copies of the record on appeal are photocopies, not the original record bearing original signatures. The absence of the color photographs from the physical record in the case at bar creates a misunderstanding of the facts, just as occurred in the appeal in Zito v. Advanced Medical Emergency Services, Inc., 11-0218, p. 18 n. 10, (Tobias, J., dissenting), unpub. (La.App. 4 Cir. 9/28/11), 72 So.3d 490, writ granted, 11-2382 (La. 1/13/12), 77 So.3d 967.

      . La. R.S. 40:1742 A(l) states:
      Each state agency and political subdivision having jurisdiction over street parking or a government facility and each owner or lessee of a public facility shall, in accordance with applicable zoning and building codes, provide and maintain a minimum number of specially designed and marked motor vehicle parking spaces for the exclusive use of persons whose vehicles are identified by license plates, hang tags, or special parking cards for the mobility impaired issued pursuant to R.S. 47:463.4 or 463.4.1. The mobility impaired parking spaces shall adhere to the ADAAG [American Disabilities Act Accessibility Guidelines] specifications and shall include mobility-impaired loading and unloading areas, access aisles, access ramps, and curb cuts. The minimum number of such parking spaces shall be as established by ADAAG. Public facility, as the term is used in this Section, shall be as defined in R.S. 40:1732, and shall include private property which is open to the public and to which the public is invited for commercial or governmental purposes. [Emphasis supplied.]

      . In footnote 3 of the majority opinion, the statement is made, “The plaintiffs did not produce any evidence to indicate a history of tripping incidents.” In essence, in context, the statement ignores the issue that perhaps Mrs. Labit was the first person who tripped and sustained serious injuries. Someone has to be first.

      . The majority’s reliance upon Doane v. Wal-Mart Discount Stores, Inc., 96-2716 (La.App. 4 Cir. 6/25/97), 697 So.2d 309, is misplaced. Doane was decided following a trial, not on a motion for summary judgment.

      . This is not to say that Mrs. Lábil was not negligent, even substantially negligent, for her trip and fall; but the evidence does not remove reasonable inferences and direct evidence that The Palms Casino and/or J & R Amusement were also negligent.

      . While the majority notes that Darryl Eckert of J & R Amusement states that he relied upon Bosarge to properly "reconstruct” the parking lot, Bosarge emphatically asserts that all that he was called upon to do was res-triped the parking lot (touch up the paint). Regardless of the conflict in testimony, in the absence of Bosarge being made a party defendant by J & R Amusement and/or The Palms Casino, the issue is immaterial to a decision of any duty owed to Mrs. Labit by Bosarge. And contrary to what Mr. Eckert says and the majority notes, it is immaterial that other parking lots in St. Bernard Parish do not have painted wheel stops. Different businesses have different clientele necessitating different precautions; none of the other premises are a video poker truck stop casino with a parking lot like that of J & R Amusement.

      .Interestingly, both the appellants and ap-pellees in brief speak of what is required under ASTM [American Society for Testing and Materials] requirements, not the statutorily mandated ADA Accessibility Guidelines.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Larry LAWRENCE, Jr.
    No. 2011-KA-1764.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

| j Larry Lawrence, Jr. (“Mr. Lawrence”) appeals his life sentence for his conviction for second degree murder, requesting only a review of the record for errors patent. Finding no errors, we affirm.

The state obtained an indictment on 2 April 2004, charging Mr. Lawrence with the first degree murder of Lionel Freeman, Jr. (“Lionel”), a twenty-month-old child. The state later amended the charge to second degree murder. On 18 March 2009, a twelve-person jury found Mr. Lawrence guilty as charged. On 24 June 2009, the trial court denied his motions for new trial and post-verdict judgment of acquittal. Mr. Lawrence announced readiness for sentencing, and the court imposed the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence.

On appeal, this court affirmed Mr. Lawrence’s conviction but vacated his sentence, partially on the basis that the trial court indicated that it could not consider a lesser sentence than the mandatory one set forth in La. R.S. 14:30.1. State v. Lawrence, 09-1637 (La.App. 4 Cir. 8/25/10), 47 So.3d 1003. We remanded the case for the trial court to rule upon an outstanding motion for reconsideration of sentence and |2to conduct an evidentiary hearing wherein Mr. Lawrence would be permitted to present any evidence to support his claim that a life sentence imposed in his case would be unconstitutionally excessive as per State v. Dorthey, 623 So.2d 1276 (La.1993).

On remand, the trial court conducted an evidentiary hearing on 10 June 2011, at the conclusion of which the court re-imposed the life sentence at hard labor without benefit of parole, probation, or suspension of sentence. The court then denied Mr. Lawrence’s motion to reconsider sentence and granted his motion for appeal.

At the evidentiary hearing on remand, the defense presented the testimony of Hilda Lawrence (“Ms. Lawrence”), Mr. Lawrence’s mother; Sherry Lawrence (“Sherry”), his sister; and Mr. Lawrence. Ms. Lawrence asked the court to impose a sentence of less than life imprisonment because she believed that Mr. Lawrence did not commit the crime. She stated that Mr. Lawrence called her on the night that Lionel’s mother, Kay Williams (“Ms. Williams”), dropped Lionel off at the house that Mr. Lawrence shared with his girlfriend, Angela Gerdes (“Ms. Gerdes”). Ms. Lawrence stated that Mr. Lawrence told her that Ms. Williams had a coat over Lionel when he arrived, and Ms. Williams put the baby in the bed before leaving. Ms. Lawrence testified that she heard that Lionel had bruises all over his body on the days before his murder. She insisted that Ms. Williams inflicted the injuries that caused Lionel’s death.

Sherry attempted to testify as to Ms. Gerdes’ reason for moving in with her after Lionel’s death, but the court disallowed the testimony as irrelevant to the issue before it. Sherry then testified that Mr. Lawrence was a good brother to her and watched her three children and their sister’s seven children without incident. |sShe testified that Mr. Lawrence practically raised her seventeen-year-old son, and she characterized Mr. Lawrence as a gentle person who was always there to help her. She stated that she did not believe that Mr. Lawrence killed Lionel.

Mr. Lawrence explained that the charge against him was a mistake that arose from his desire to help Ms. Gerdes and her children. He testified that the investigating officers told him that because Ms. Gerdes admitted in her statement that she entered the room where Lionel and the other children were, in order to check on them, they were going to charge her with the murder and would take away her children. He stated that he tried to tell them that Ms. Williams was responsible, but the officers did not want to hear about her. He testified that the officers convinced him that they would release Ms. Gerdes if he admitted that Lionel was injured while they were playing, and they would speak with the district attorney in order to help him; he did not know that he would be charged with second degree murder.

Mr. Lawrence denied entering the room where the children, including Lionel, were sleeping, until the next morning. He stated that Ms. Gerdes entered the room around 11:00 p.m. to check on the children, but he insisted that he was asleep in bed by that time. He maintained that he did not know what condition Lionel was in when Ms. Williams brought him over the night before because she had him covered with a coat. He denied seeing Ms. Williams put Lionel to bed, and he denied punching or squeezing Lionel. He stated that he only entered the room the next morning with Ms. Gerdes to awaken the children for school, and at that time Ms. Gerdes’ oldest child told him that Lionel had vomited. He testified that he pulled back the cover and discovered a red substance all over Lionel and the bed. He stated that he noticed Lionel was not breathing when he picked him |4up. He testified that he changed Lionel’s diaper (the old one was falling off) and called 9-1-1. He stated that he attempted to perform CPR, and then his neighbor arrived and took over that task. However, no one could find the neighbor by the time of trial. Mr. Lawrence reiterated that the police wanted him to confess to causing the injuries, and they threatened to charge Ms. Gerdes with some sort of drug offense and take her children away if he did not do so.

Defense counsel also gave the court written statements from other people who were not present. Defense counsel stated that she had hired a private investigator to locate witnesses in Mr. Lawrence’s behalf.

At the conclusion of the hearing, the court found that the fact that Mr. Lawrence denied committing the crime was not new evidence in that he had always maintained that he did not commit it and that his trial counsel played Ms. Williams’ statement for the jury. The court' noted that the written statements that defense counsel supplied merely gave details and facts about the case, but they did not address the excessive nature of the mandatory life sentence. Nonetheless, the jury found him guilty of second degree murder. The court then stated:

And I’ve not heard anything that would persuade this Court under State v. Johnson that the imposition of pain and suffering [sic], or that it’s out of proportion to the crime, which this was a two-year old child that was killed.
Medical evidence was presented, and the jury believed beyond a reasonable doubt that you killed Lionel Freeman.

The court, finding that the defense had presented no evidence to convince it to deviate from the mandatory sentence reimposed the life sentence without benefit of parole, probation, or suspension of sentence.

|fiBy his sole assignment of error, Mr. Lawrence requests a review of the record for errors patent. His counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). His counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. His counsel moved to withdraw because she believes, after a conscientious review of the record, that no non-frivolous issue for appeal exists. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. A copy of counsel’s brief was forwarded to Mr. Lawrence, and this court informed him that he had the right to file a brief in his own behalf. Although this court forwarded Mr. Lawrence a copy of the record, he has failed to file a brief. Thus, this court’s review is limited to errors appearing on the face of the record. La.C.Cr.P. art. 920.

Because this appeal has been taken from resentencing only, and our opinion in Mr. Lawrence’s earlier appeal indicated that our review of the record revealed no patent errors, our review in the present appeal is limited to events that happened on remand. Mr. Lawrence was present and represented by counsel at his evidentiary hearing and at resentencing. This court’s review reveals no patent error and no non-frivolous issue or trial court ruling that arguably supports the present appeal.

Accordingly, we affirm Larry Lawrence, Jr.’s sentence. We also grant appellate counsel’s motion to withdraw as counsel for Mr. Lawrence.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The detailed facts of Mr. Lawrence’s conviction are set forth in our prior opinion and we will not repeat them here.

      . State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Nicholas LUTHER.
    No. 2011-KA-1003.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appellant.

      James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|2The district attorney appeals the trial court’s sustaining of the defendant’s motion to quash. Nicholas Luther, the defendant, moved to quash the second bill of information filed against him on the grounds that the district attorney had exceeded his authority to dismiss the first bill of information and re-institute prosecution in this case. Along with a number of other cases pending before him, and after receiving only limited oral argument and no evidence, the trial judge sustained Mr. Luther’s motion. The prosecution appealed. See La. C. Cr. P. art. 912 B(l).

Because we find that there was no showing that Mr. Luther has suffered prejudice to his right to a fair trial on account of the district attorney’s exercise of his dismissal-reinstitution authority, we reverse the trial court’s ruling and remand the matter for trial.

We explain our decision in the following Parts.

In this Part we set forth the basic facts relevant to our disposition of this appeal.

On October 9, 2008, the district attorney filed the first bill of information against Mr. Luther in proceedings numbered 481-078, in which the district attorney charged him with simple burglary and unauthorized use of a motor vehicle occurring in August 2008. When the time came for the hearings on Mr. Luther’s pretrial motions, the prosecution sought continuances, the first of which was granted but the second of which was denied. Because of the absence of any witness at the preliminary hearing, the trial judge found no probable cause and released Mr. Luther from custody. Trial was scheduled for September 29, 2009. The prosecution sought, and the trial judge denied, a continuance of the trial. The district attorney then dismissed the bill of information.

On December 9, 2010, the district attorney filed the second bill of information against Mr. Luther in proceedings numbered 502-549, charging the same offenses as the first bill. Two weeks after Mr. Luther’s arraignment, and before hearings on his pretrial motions, Mr. Luther filed his motion to quash the second bill of information. Mr. Luther made two claims in his motion to quash about the state’s practice of dismissal-reinstitution of charges in order to grant itself a continuance: (1) it violates his right to due process, and (2) it violates the separation of powers doctrine.

|4On February 8, 2011, without argument or evidence, the trial-court judge sustained Mr. Luther’s motion to quash and dismissed the charges against him with prejudice. At the same time and in the same hearing, the trial-court judge also sustained similar defense motions in five other unrelated cases.

At the time of the ruling, the defense relied upon the decision of State v. King, 10-074 (La.App. 1 Cir. 10/29/10), 48 So.3d 1288. Subsequent to the ruling, the Louisiana Supreme Court reversed. See State v. King, 10-2638 (La.5/6/11), 60 So.3d 615. And subsequent to the briefing in this case, we decided State v. Hayes, 10-1538 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, writ den., 11-2144 (La.3/2/12), 83 So.3d 1043. We directed the parties to address by supplemental briefs the applicability of Hayes to Mr. Luther’s case. Both the prosecution and Mr. Luther agree that the holding in Hayes is dispositive of the claims raised by Mr. Luther. Thus, we turn to our decision in Hayes.

II

At the outset we note that Mr. Luther’s motion to quash did not assert a claim that his constitutional or statutory rights to a speedy trial have been violated. See State v. Reaves, 376 So.2d 136 (La.1979); see also La. C. CR. P. art. 532(7). He also did not contend that the prosecution was attempting to avoid the time limitations for the commencement of trial. See La. C. Cr. P. art. 576. Mr. Luther argues that the prosecution is flaunting its authority, and that its exercise in this |5case of its dismissal and reinstitution power violates his due process rights as well as the constitutional separation of powers doctrine. This is precisely the posture in Hayes. 10-1538, p. 1, 75 So.3d at 11.

In Hayes we thoroughly examined the district attorney’s vast discretionary power to institute a prosecution, dismiss or nolle prosequi a prosecution, and to re-institute a prosecution. Hayes. 10-1538, p. 6, 75 So.3d at 13. We specially noted that “the decision to take any action to prosecute or not prosecute is within the district attorney’s constitutionally granted powers.” Briede v. Orleans Parish Dist. Attorney’s Office, 04-1773, p. 5 (La.App. 4 Cir. 6/22/05), 907 So.2d 790, 793; see also La. Const. art. V, § 26(B) and La. C. Cr. P. art. 61. Once having instituted a prosecution, “[t]he district attorney has the power to dismiss [it] ... and in order to exercise that power it is not necessary that he obtain consent of the court.” La. C. Cr. P. art. 691. See also La. C. Cr. P. art. 576. “The entering of a nolle prosequi [dismissal] rests entirely within the discretion of the prosecuting attorney.” State v. Sykes, 364 So.2d 1293, 1297 (La.1978). The district attorney possesses “absolute discretion” to dismiss a prosecution. Id.

We also reviewed in Hayes considerations of the district attorney “flaunting” his dismissal-reinstitution authority. Hayes, 10-1538, pp. 7-10, 75 So.3d at 13-15. Notwithstanding the extent of his discretionary prosecutorial authority in the dismissal-reinstitution of formal charges, the district attorney may not, however, flaunt “his authority for reasons that show he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses.” State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. But we emphasized that “the flaunting of the prosecutor’s authority is merely a gateway consideration to granting a motion to quash on thesé grounds.” Hayes, 10-1538, p. 8, 75 So.3d at 14. And “[t]he granting of a motion to quash on the ground of prosecutorial abuse of its authority is dismissal with prejudice.” Id., citing to State v. King, 10-2638, p. 5 (La.5/6/11), 60 So.3d at 618.

We then explained that “[b]eeause of the severe remedy, a trial court may not quash the formal charges and dismiss them with prejudice when the prosecution’s abusive exercise of its authority simply disrupts a trial court’s conduct of the proceedings or challenges the court’s authority to manage its docket.” Hayes, 10-1538, pp. 8-9, 75 So.3d at 14. If the prosecution’s abusive exercise of its authority “does not significantly disadvantage the defense at any forthcoming trial,” the motion to quash should not be sustained and the prosecution should not be dismissed with prejudice. Id., citing to State v. King, 10-2688, p. 6, 60 So.3d at 619.

We concluded by holding that “[t]he defendant must show that the district attorney’s abusive exercise of its power actually violates the defendant’s constitutional right to a fair trial.” Hayes, 10-1538, p. 9, 75 So.3d at 14. “An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify on his own behalf.” La. Const, art. 1, § 16 (emphasis added). The Louisiana Supreme Court requires the defendant “to make a showing of specific prejudice to his | ^defense.” State v. King, 10-2638, p. 8, 60 So.3d at 620, citing to State v. Love, supra, and Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Therefore, “a prosecutor’s evident, flagrant, objectionable, and ill-motived ‘flaunting’ is not in itself specific prejudice to the defense at a forthcoming trial.” Hayes, 10-1538, p. 9, 75 So.3d at 15. “In order to sustain a motion to quash, the resulting specific prejudice to his right to a fair trial must be shown by the defendant.” Hayes, 10-1538, pp. 9-10, 75 So.3d at 15.

Ill

Thus, the identical elaims asserted here by Mr. Luther were rejected in Hayes. We rejected the defendant’s claim in which he argued reliance upon the holding in Wardius v. Oregon that the Due Process Clause of the Fourteenth Amendment “speak[s] to the balance of forces between the accused and his accuser.” Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). See Hayes, 10-1538, p. 3, 75 So.3d at 11-12 (“The prejudice he identifies in his motion is the self-evident inequity of one party’s ability to avoid trial without authorization of the court.”). And we rejected the defendant’s related claim in which he argued that the prosecutor’s perceived displacement of the trial judge as the effective decider of his own motion for a trial postponement or continuance violates the separation of powers. See Hayes, 10-1538, p. 9, 75 So.3d at 15. In other words, neither claim | ^suffices for the requisite showing of “specific prejudice to his right to a fair trial.” Hayes, 10-1538, p. 10, 75 So.3d at 15.

IV

In Hayes we applied an abuse-of-discretion standard because the complementary roles of the trial court and of our intermediate appellate court demand that deference is given by us to a trial court’s decision. See Hayes, 10-1538, p. 10, 75 So.3d at 15, citing to State v. Love, 00-3347, pp. 9-10, 847 So.2d at 1206-1207. Applying that standard of review, we find that the trial-court judge abused his discretion because he was required to find that Mr. Luther has shown specific prejudice to his defense at any forthcoming trial, but Mr. Luther has made no such showing. See Hayes, 10-1538, p. 11, 75 So.3d at 15. “A trial court necessarily abuses its discretion if its ruling is based on an erroneous view of the law.” Id., citing to Cooter & Gelt v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (noting that discretionary choices are not left to a court’s inclination, but to its judgment, which is guided by sound legal principles).

Here, as we noted at the outset, Mr. Luther made no allegation, much less showing, of specific prejudice to his right to a fair trial. And the most serious kind of prejudice is “the possibility that the defense will be impaired.” Barker v. Wingo, 407 U.S. at 582, 92 S.Ct. 2182. Notably, his motion to quash was sustained very early in the pretrial stages of the reinstituted prosecution and before his case was even set for trial. Mr. Luther does not suggest that the district attorney’s actions in this case |ndeprived him of the availability of a defense witness or otherwise prevented him from presenting a defense at trial. Just as the defendant in Hayes, Mr. Luther filed his motion to quash virtually as soon as the formal charges were reinstituted. See Hayes, 10-1538, p. 14, 75 So.3d at 16. He was not confronted with a trial setting at which he was unable to produce any witness. Id. He was not confronted with a denial of a request for a continuance due to the absence of his witness. Hayes, 10-1538, p. 14, 75 So.3d at 16-17. These are, as we noted in Hayes, the kinds of conditions under which a defendant could show specific prejudice that his defense has been significantly disadvantaged at a forthcoming trial. Id., citing to King, 10-2638, p. 6, 60 So.3d at 619.

Mr. Luther has not shown, as he is required to show, specific prejudice to his defense from the prosecution’s use of its dismissal-reinstitution authority. Because in this case at this point in time the trial judge could not have found such specific prejudice which would justify a dismissal with prejudice, granting the motion to quash was an abuse of discretion and we accordingly reverse the ruling.

DECREE

The ruling of the trial court sustaining the motion to quash filed by Nicholas Luther is reversed. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

JONES, C.J., concurs in the result.

      . See State v. Williams, 11-946 (La.App. 4 Cir. 4/11/12), 89 So.3d 422; State v. Cornell Glover and Carla Ledet, 2011-KA-1167 (pending; submitted for decision 4/24/12); State v. Mat-sukata Keeling, 2011-KA-0945 (pending; submitted for decision on 4/03/12). We have no record of the disposition respecting the fifth defendant, Calvin Sanchez.

      . Mr. Luther references La. Const, art. II, § 2: "Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” We note en passant that the prose-cutorial power under the Louisiana constitution, unlike the federal, is in the judicial branch and not in the executive branch. See La. Const, art. V, § 26.