text:
    STATE of Louisiana, Plaintiff-Appellant v. Kevin Wade BIRDWELL, Defendant-Appellee.
    No. 47,126-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Jonathan M. Stewart, District Attorney, Daniel W. Newell, Kenneth Patrick Haines, James R. Hatch, Assistant District Attorneys, for Plaintiff-Appellant State of Louisiana.
    Kevin W. Birdwell, In Proper Person.
    Robert W. Sharp, Jr., Ruston, LA, for Defendant-Appellee.
    Law Offices of Katherine C. Dorroh, by Kellie Curry, for Third Party Intervenor-Appellee Kelly W. Birdwell.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   GASKINS, J.

|,The State of Louisiana, through the office of the District Attorney in Claiborne Parish, appeals from a trial court judgment releasing firearms seized in connection with a series of drug offenses committed by Kevin Wade Birdwell and ordering that Mr. Birdwell’s former wife, Kelly Birdwell, hold the weapons in trust for their minor children. For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS

Mr. Birdwell sold drugs to undercover officers and a warrant was obtained to search his house. That search was conducted on May 21, 2010. Mr. Birdwell was found to be in possession of numerous kinds of drugs. He was arrested and items from his home were seized, including approximately 30 firearms. By grand jury indictment, Mr. Birdwell was charged with 14 offenses resulting from the controlled dangerous substances (“CDS”) found in his house.

A plea bargain was reached whereby some of the charges were reduced and others dismissed. One of the charges dismissed was possession of firearms while in possession of CDS. On September 20, 2010, Mr. Birdwell pled guilty to possession with intent to distribute methamphetamine, cocaine and marijuana, and to simple possession of hydrocodone, oxycodone, methylphenidate, amphetamine, morphine, dextropropoxyphene, clonazepam, phenter-mine, and legend drugs. Mr. Birdwell was sentenced to serve seven years at hard labor for each |gcount of possession with intent to distribute and five years at hard labor for each count of simple possession. The sentences were ordered to be served concurrently.

At the guilty plea and sentencing, the prosecutor stated that several items seized at the time of the arrest were to be forfeited in conjunction with the plea agreement. Mr. Birdwell’s attorney responded that some of the guns seized did not belong to Mr. Birdwell and that his former wife was intent on getting them back because they were family heirlooms. The prosecutor said that the state asked that any seized guns be forfeited, but if they were not owned by the defendant and if the owner could produce proof of that, those guns would not be forfeited. The court ruled that all items seized were to be forfeited unless excepted by a motion filed with the district attorney with evidence that the firearms or other items are not owned by Mr. Birdwell. A coin collection and baseball cards were excepted from forfeiture at the guilty plea hearing.

On December 6, 2010, Mr. Birdwell’s former wife, Kelly Birdwell, on behalf of her two minor sons, filed a motion to release seized property under La. R.S. 15:41 (C). This statute deals with the disposition of property seized in connection with a criminal proceeding which is not to be used as evidence or is no longer needed as evidence. She alleged that the parties were divorced in 2006, and in 2008, in connection with their community property settlement, they agreed to transfer the possession of the guns located at the prior matrimonial domicile to Mr. Birdwell. However, the weapons were intended to be the property of the minor children. Ms. Birdwell noted that, in the present case, the only charge against Mr. |aBirdwell dealing with firearms was dismissed and the guns were no longer needed for evidence and should be released.

A hearing was held on Ms. Birdwell’s motion to release the guns on January 20, 2011. The attorney who represented her in the divorce and community property settlement also represented her in this matter. The community property settlement, which was executed in February 2008, was admitted into evidence and provided in pertinent part:

KEVIN WADE BIRDWELL hereby receives and KELLY RENEE BIRD-WELL hereby grants, bargains, sells and conveys unto him with full guaranty of title and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed unto him, all of her right, title and interest in and to the following described property:
j) All guns (Approximately 30, some belonging to the minor children and some Kelly Renee Birdwell’s separate property)

It was argued that some of the guns were inherited by Ms. Birdwell and that the Birdwells agreed at the time of the community property partition that Mr. Bird-well would keep the guns for Kelly and the children. The district attorney stated that he had no objection at all to whatever the court ruled. Ms. Birdwell was placed on the stand and questioned about which guns she inherited. She was not familiar with guns and stated that the firearms she inherited were older model guns, but could not give specific information. Because she could not be more specific, the prosecution agreed to allow Ms. Birdwell some time to determine which guns she was claiming. The court stated that it would sign a judgment in favor of Ms. Birdwell with a listing of the serial numbers of the guns claimed by her. The court also asked Ms. J^Birdwell to obtain an affidavit from Mr. Birdwell releasing any ownership interest he might have in the guns.

On May 16, 2011, Mr. Birdwell filed a pro se petition for a writ of mandamus with this court, claiming that in January 2011, he petitioned the trial court for release of all personal papers and property and that the trial court had failed to act on his petition. On June 2, 2011, this court granted the writ of mandamus for the limited purpose of transferring the matter to the trial court for action. On June 6, 2011, the trial court denied the writ of mandamus, but set a hearing date for Ms. Birdwell’s motion to release property.

Another hearing was held on August 2, 2011. Mr. Birdwell was brought into court and testified that he relinquished any ownership he had in the guns to his minor children, to be held in trust for them by Ms. Birdwell. Mr. Birdwell testified that, of the 30 guns seized in connection with his arrest, all but three were either inherited by Ms. Birdwell or purchased for the children. Mr. Birdwell testified that he owned a .40 caliber Smith and Wesson pistol and two .50 caliber rifles.

At the close of the hearing, the district attorney said that he would not object to the guns that Mr. Birdwell testified were inherited by Ms. Birdwell being returned to her. The district attorney also said that he had no objection to returning the BB and pellet guns to Ms. Birdwell, and would leave the disposition of the other weapons to the court, but deemed Mr. Birdwell’s testimony that the other guns were purchased for the children to be self-serving.

|sThe trial court stated that it considered the community property agreement which indicated that possession and custody of the firearms was given to Mr. Birdwell no matter where the ownership originated “because the relationship Mr. Birdwell had with firearms and the children was such that the children would be able to use the firearms with his — his being around them.” The trial court ordered that all the firearms be given to the care, custody, and control of Ms. Birdwell and terminated all ownership rights in those weapons that Mr. Birdwell had previously. The trial court signed a judgment ordering the Claiborne Parish Sheriffs Office to release all the guns to Ms. Birdwell to be held in trust for the children until they reach the age of majority. Ownership of the guns was transferred from Mr. Birdwell to the children. The state appealed the trial court judgment.

FORFEITURE OF WEAPONS

The state argues that the trial court erred in ordering that the guns be released to Ms. Birdwell based on a finding that she or her children owned the weapons. The district attorney urges that, in the community property settlement, Mr. Birdwell attained full ownership of all the weapons and Ms. Birdwell produced no evidence, other than the testimony of Mr. Birdwell, that she or the children owned any of the guns. The state contends that under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, contained in La. R.S. 40:2601, et seq., the weapons were subject to seizure and forfeiture due to Mr. Birdwell’s illegal drug activity.

Discussion

La. Const. art. I, § 4, provides in pertinent part:

| fiEvery person hag the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
(C) Personal effects, other than contraband, shall never be taken.
(D) The following property may be forfeited and disposed of in a civil proceeding, as provided by law: contraband drugs; property derived in whole or in part from contraband drugs; property used in the distribution, transfer, sale, felony possession, manufacture, or transportation of contraband drugs; property furnished or intended to be furnished in exchange for contraband drugs; property used or intended to be used to facilitate any of the above conduct; or other property because the above-described property has been rendered unavailable.

Civil forfeiture is the process by which governments seize property without compensating its owner, based on its connection with the commission of a crime. There is no prerequisite that a crime be proven before property is subject to confiscation. State v. Edwards, 2000-1246 (La.6/1/01), 787 So.2d 981; State v. $107,156 U.S. Currency Seized from Marlin Morton and Richard Woods, 41,090 (La.App.2d Cir.6/30/06), 935 So.2d 827, writ denied, 2006-2271 (La.11/22/06), 942 So.2d 557.

The procedural posture of this case is somewhat unclear. The district attorney -argues that the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (“Forfeiture Act”), contained in La. R.S. 40:2601, et seq., is controlling in this case. The district attorney argues that, as a condition of Mr. Bird-well’s plea agreement, the court ordered that all items seized at his arrest would be forfeited, with the exception ■ that a 17motion be filed and evidence presented that items in dispute were owned by someone other than Mr. Birdwell. La. R.S. 40:2608 sets forth the procedures to be followed by the district attorney to commence forfeiture proceedings, including providing Notice of Pending Forfeiture to the owner and interest, holder in the property. The district attorney may bring a forfeiture proceeding in rem or in person-am or both. See La. R.S. 40:2612 and 2613. Hearings are then held by the trial court to determine whether the property is to be forfeited. The appellate record does not contain any documentation regarding a forfeiture proceeding instigated by the district attorney’s office.

Ms. Birdwell asserted her claim to ownership of at least some of the weapons, not under the Forfeiture Act, but under La. R.S. 15:41, which provides in pertinent part:

A. If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.
B. If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:
(1) The seized property shall be returned to the owner, unless a statute declares the property to be contraband, in which event the court shall order the property destroyed if the court determines that its destruction is in the public interest;....
C. Where the release of seized property is sought by a person claiming to be the owner, it shall be released only upon motion contradictorily with the clerk of court. In all other cases the court may either render an ex parte order for the disposition of the property as herein provided on motion of any interested person, or on its own motion, or the court may require a motion contradictorily with the apparent owner or the person in possession of the property at the time of the seizure.

Ms. Birdwell noted that Mr. Bird-well had been charged with possession of firearms while in possession of controlled dangerous substances, a violation of La. R.S. 14:95(E). This charge was dismissed as a part of the guilty plea agreement. Because the weapons were no longer needed as evidence of that offense, Ms. Bird-well chose this statute to assert her claim of ownership of the guns. Regardless of which statute is applied to seek the return of the weapons, or whether this was an agreed disposition pursuant to the plea, it is undisputed that Ms. Birdwell had the burden of showing that the ownership of the guns did not rest with Mr. Birdwell, but with her and the children.

Ms. Birdwell asserted that she inherited some of the guns and that some of them belonged to the children. She stated that, in executing the community property settlement, the parties intended for Mr. Bird-well to possess the guns for her and the children.

Mr. Birdwell’s testimony corroborated that of Ms. Birdwell. He stated that in the community property settlement, the parties intended that he would possess the guns inherited by Ms. Birdwell and those owned by the minor children. Mr. Bird-well was questioned about each gun that was seized when he was arrested. He identified the guns inherited by Ms. Bird-well and those that were purchased as gifts for the minors. Mr. Birdwell also testified that he owned two .50 caliber rifles and a .40 caliber pistol.

In a civil forfeiture proceeding, the trial court’s findings of fact are subject to the manifest error/clearly wrong standard of appellate review. State v. Isaac, 31,277 (La.App.2d Cir.12/9/98), 722 So.2d 353. Under |9that standard, the fact finder’s reasonable evaluations of credibility and reasonable inferences of fact made to resolve conflicts in the testimony of the trial witnesses should not be disturbed. When there are two permissible views of the evidence, the fact finder’s decision to credit one and discredit the other can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

At the close of the hearing in the trial court, the district attorney stated that he had no objection to the trial court releasing to Ms. Birdwell the guns she inherited and the BB and pellet guns seized at the time of Mr. Birdwell’s arrest. He only objected that Mr. Birdwell’s testimony was not sufficient to show that the other guns were given to the children. The district attorney on appeal argues that the community property settlement conveyed full ownership of all the guns to Mr. Birdwell and therefore, the trial court erred in releasing all the guns to Ms. Birdwell.

The trial court assessed the credibility of the testimony and evidence and found that all of the guns should be released' to Ms. Birdwell to hold for the minor children. We find that the trial court was not manifestly erroneous in that portion of its decision specifying that Ms. Birdwell should have possession of the guns she inherited along with the guns purchased for the children until the children are no longer minors.

However, we note that Mr. Bird-well testified that he personally owned two .50 caliber rifles and one .40 caliber pistol. He did not say that these weapons were inherited by Ms. Birdwell or were purchased for the children. We find that the trial court erred in giving possession of these three guns to Ms. Birdwell. We reverse that portion of the trial court | judgment and remand the matter to the trial court in order that the district attorney may seek to obtain forfeiture of these weapons.

CONCLUSION

For the following reasons, we affirm that portion of the trial court judgment finding that the guns inherited by Kelly Birdwell and those given as gifts to the minor children are to be held by Ms. Bird-well for the minors until they reach the age of majority. We reverse that portion of the trial court judgment releasing two .50 caliber rifles and one .40 caliber pistol to Ms. Birdwell. Mr. Birdwell testified that these guns were owned by him. The matter is remanded to the trial court to allow the district attorney to pursue forfeiture of these weapons through the proper procedures.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . Conduct giving rise to forfeiture is set forth in La. R.S.40:2603. Property that is subject to forfeiture is described in La. R.S. 40:2604. Property intérests exempt from forfeiture are outlined in La. R.S. 40:2605.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Loren S. JONES and Stephanie Jones, Plaintiffs-Appellants v. WINNEBAGO INDUSTRIES, INC. and Stevens RV Center, Inc., Defendants-Appellants.
    No. 47,137-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.

      Bernard, Cassisa, Elliott, Davis, Metair-ie, LA, by Robert W. Maxwell, Philip A. Dominique, for Defendant/First Appellant, Winnebago Industries.
    Breithaupt, Dunn, DuBos, Shafto, Monroe, LA, by Michael L. DuBos, K. Lamar Walters, III, for Plaintiffs/Second Appellants, Loren S. Jones and Stephanie Jones.
    Kraft, Gatz, Lane, Benjamin, by Walter K. Jamison, III, Marjorie B. Breaux, Samuel R. Aucoin, Lafayette, LA, for Defendant/Appellee, Stevens RV.
    Before BROWN, GASKINS, and DREW, JJ.
   BROWN, Chief Judge.

11 In this redhibition action, both the plaintiffs and the manufacturer have appealed from the trial court’s judgment which was entered in accordance with a jury verdict in favor of plaintiffs. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Loren and Stephanie Jones, with their two daughters, have been RV enthusiasts for years. Together the family enjoyed RV road trips to places such as the Ozark Mountains, Galveston and Houston, Texas, and Monroe, Louisiana, just to name a few. In 2005 the Jones purchased them first RV “starter bus,” a Safari Sim-ba.

In 2008, plaintiffs decided to upgrade to a diesel-powered RV with air brakes and larger slide-out rooms for added cabin space. On February 28, 2008, plaintiffs purchased a new 2008 Winnebago Destination RV from Stevens RV Center in Lafayette, Louisiana. The purchase price for the 2008 Destination was $189,667.60 after a $10,000 rebate. Plaintiffs financed their purchase for 20 years.

When plaintiffs bought the RV they obviously expected to have quality use of the RV for a significant period of time; however, they did not take a single trip in the RV where multiple component parts did not fail. In their first year of owning the 2008 Destination, the motor home was out of service due to repairs for a total of 242 days. As of trial, almost three years after the Joneses bought their motor home from Stevens RV, there were only 10,500 miles on the RV: 1,356 of those miles were accrued on the trip |9from the Winnebago factory in Iowa to the dealership in Lafayette; 6,250 of the miles were from trips back and forth between plaintiffs’ home in Oak Grove and Stevens RV in Lafayette; and only 2,904 miles were logged due to recreational use by plaintiffs.

On March 3, 2008, within three days of its purchase, the RV was returned to Stevens RV after plaintiffs attempted to take the motor home to Memphis but were unable to reach their destination due to several problems. First, the locking latch mechanism on the fuel door fell off, causing the fuel door to flap against the motor home. Also, water poured into the RV as plaintiffs encountered snow on the interstate. Both repairs were made and covered by the Winnebago warranty.

Between March 3 and April 28, 2008, a number of other defects were identified and repairs were made by Stevens RV. In particular, were the first of a continuing series of problems with the slide-outs on the RV. Repairs to the slide-out were covered by Winnebago’s warranty. Numerous other problems were also addressed during this month and a half following plaintiffs’ purchase of the RV.

RThomas Jardell, Stevens RV Center’s service manager, testified that he had 30 years experience in the RV service business, and he thought that plaintiffs had experienced an excessive number of problems with their motor home within the first few months after its purchase. On April 21, 2008, Jardell wrote plaintiffs a letter and included the work order history on plaintiffs’ RV through that date. In this letter, Jardell reassured plaintiffs that Stevens RV Center would continue to do its best to address any and all problems that arose on their RV under the Winnebago warranty. The next day, April 22, 2008, Jardell wrote a letter to Winnebago’s Service District Manager, Mike Muffoletto, notifying him of the service-related problems plaintiffs had been experiencing with their Winnebago “from day one.”

Jardell stated that on May 21, 2008, Mrs. Jones called him to let him know that there had been too many problems with their RV, which was a “lemon,” and they either wanted their money back or a replacement RV. Jardell felt that her concerns were legitimate in light of the situation. Mrs. Jones also told Jardell that her brother passed away, and she asked for a hotel allowance since they did not have the use of their motor home due to ongoing repair issues. Jardell contacted Winnebago to ask for a $200 hotel allowance for plaintiffs. Winnebago refused to even split the hotel allowance with Stevens RV Center. On May 28, 2008, Jardell notified Winnebago that Loren Jones felt that their motor home was a lemon and they no longer wanted the RV. At that point, Jardell felt that plaintiffs’ ^concerns were reasonable and their desire to return the RV was not “buyer’s remorse” but was directly related to all of the problems they had experienced since buying the motor home.

On August 5, 2008, more defects were acknowledged by Winnebago under warranty. The most significant was that the motor for the RV’s windshield wipers failed while the family traveled in the motor home during a heavy rainstorm. The wipers stopped working while the RV was traveling at a speed of 70 mph on I — 10 near the 1-49 exit to Lafayette. Jones had to use his GPS device to exit the interstate.

While packing for a Thanksgiving trip in 2008, Jones discovered that the large slide-out was not working properly. As it retracted, it made crunching and popping sounds. The bed frame broke and slid across the floor. The slide-out then locked into place and could not be moved until Jardell provided Jones with instructions on how to override the computer system. Upon its return to Stevens RV Center on December 1, 2008, the RV was discovered to have another slide-out alignment problem. The RV was taken to Stevens RV Center again on March 23, 2009, for a number of warranty repairs, including another broken gear on the right slide-out and failure of the right slide-out to retract flush against the RV.

A trip in May 2009 to the air show at Barksdale AFB was made by Jones and a friend. Upon their return, Jones left the slide-outs extended after unloading the RV. It rained overnight and water poured into the RV at the site of the slide-outs. At that point, plaintiffs stopped using their RV.

| ¡Almost one year later, in March 2010, Jones and two friends took the RV to the Texas Motor Speedway. As Jones drove in traffic on the interstate, one friend rode on the couch in one of the slide-out areas. That friend began screaming that the slide-out was coming out and extending while they were driving on the interstate. Jones returned the RV to Stevens RV Center for repairs on March 8, 2010.

At that time, technicians discovered that the brake lever on the slide-out had disengaged from the front right forward slide room motor. According to Jardell, this should never occur as it is a major safety issue which can pose a risk for a fatal accident. Also it was discovered that the circuit board on the LP gas monitor failed, and a light socket fell out of the dash panel. A bad leak on the passenger side slide-out when retracted was diagnosed as well. Although Jones was quoted a price for further testing of the leak by Stevens RV Center, he requested that all further testing and repairs be put on hold as the RV was no longer under warranty.

Jardell testified that in all of his experience in the RV service business, he had never seen another motor home with the number, type and breadth of problems that plaintiffs’ RV had. According to Jar-dell, the majority of repairs made until the expiration of the Winnebago warranty were issues that clearly met Winnebago’s definition of a warranty defect.

Plaintiffs filed suit against Stevens RV Center and Winnebago Industries, Inc. A jury trial was held from February 22-25, 2011. At the close of plaintiffs’ case, Stevens RV Center moved for and was granted a | ¡¡directed verdict on plaintiffs’ negligent repair claim against them. The jury rendered a verdict in favor of plaintiffs, awarding them the return of the purchase price of the Winnebago ($189,667.50), together with interest ($35,320) and insurance ($4,800) payments made. The amount of attorney fees to be awarded to plaintiffs was addressed by the parties post-trial. The trial court found that plaintiffs were entitled to an attorney’s fee of 35% of the gross amount awarded by the jury, $80,425. A judgment rescinding the sale of the 2008 Winnebago Destination and awarding the above amounts, together with legal interest and costs, was signed on April 15, 2011, and filed on April 21, 2011. The trial court rejected plaintiffs’ request for nonpecuniary damages. Both Winnebago and plaintiffs have appealed.

DISCUSSION

Existence of Redhibitory Defects

La. C.C. art. 2520 states, in part:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.

La. C.C. art. 2545 provides:

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for |7the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.

While a minor defect or defects alone may not rise to the level of a redhibi-tory defect, multiple minor defects, even when repaired, may support a claim for redhibition. Berney v. Rountree Olds-Cadillac Co., 33,388 (La.App.2d Cir.06/21/00), 763 So.2d 799. The purchaser need not show the particular cause of the defects, but may simply prove the existence of defects which make the item unfit for its intended purchase. Young v. Ford Motor Co., Inc., 91-0561 (La.03/02/92), 595 So.2d 1123. The existence of redhibitory defects is a question of fact which will not be disturbed in the absence of manifest error. Berney, supra; Ford Motor Credit v. Laing, 30,160 (La.App.2d Cir.01/21/98), 705 So.2d 1283.

In situations where new vehicles present such defects as would render their use inconvenient and imperfect to the extent that the buyer would not have purchased the automobile had he or she known of the defects, the buyer is entitled to a rescission of the sale instead of merely a reduction in the price. Davidson v. New Roads Motor Co., Inc., 385 So.2d 319 (La.App. 1st Cir.), writ refused, 391 So.2d 454 (La.1980). Moreover, a manufacturer is presumed to have knowledge of defects in the object it produces. La. C.C. art. 2545.

18The present case is unlike Berney, wherein this court amended the judgment to limit relief to a reduction of the sales price. In the present case, there is no manifest error in the jury’s determination that the recreational vehicle manufactured by defendant Winnebago had major as well as numerous minor redhibitory defects. The jury was presented with very significant evidence of defects that existed at the time the RV was purchased by plaintiffs. In fact, the evidence and the testimony established that the only possible source/ cause of the defects was the RV’s manufacturer, Winnebago. The first post-sale work order was prepared on March 3, 2008, within three days of plaintiffs’ purchase of the motor home. The first slide-out problems were reported by plaintiffs within one month of the RV’s purchase, on April 3, 2008. Expert testimony established that the slide-out was improperly installed by Winnebago, which led to the repeated problems plaintiffs had with the slide-out, including the significant leaks, the bed frame being ripped from the floor, a number of broken gear teeth, and torn wipe seals. In fact, the slide-out deployed while the RV was being driven on an Interstate highway. The jury had more than enough evidence from which it could have found that the RV purchased by plaintiffs contained redhibitory defects which entitled them to judgment rescinding the sale. As noted by the trial court, “It is obvious from the[ir] verdict that the jury reasonably concluded that no one would have bought this motor |flhome, given its numerous defects, for any price.” The record fully supports this determination.

Denial of Motions for JNOV/New Trial

Winnebago’s second assignment of error is that their motion for new trial/JNOV should have been granted.

The record reflects that the trial court applied the correct standard in considering defendant’s motion for JNOV and did not find that the evidence pointed so strongly in favor of Winnebago that reasonable jurors could not reach a different conclusion. Forbes v. Cockerham, 08-0762 (La.01/21/09), 5 So.3d 839. The trial court did not err in denying defendant’s motion for JNOV. Likewise, we find that the trial court did not abuse its discretion in denying defendant’s motion for new trial based upon its determination that the jury verdict was supportable by a fair interpretation of the evidence. Campbell v. Tork Inc., 03-1341 (La.02/20/04), 870 So.2d 968.

Jury’s Damage Award and Trial Court’s Attorney Fee Award

In its final assignment of error, Winnebago contends that the jury erred in awarding plaintiffs the return of 100% of their purchase price together with all interest payments without credit for use of the RV. Defendant also urges that the attorney’s fee awarded was excessive and should be reduced.

A manufacturer is conclusively presumed to have knowledge of defects in the object it produces. Since the manufacturer’s knowledge is conclusively presumed, the manufacturer is deemed to be in bad faith in selling a defective product and is liable to the buyer for all damages caused |10by the product and attorney fees. La. C.C. art. 2545; Aucoin v. Southern Quality Homes, LLC, 07-1014 (La.02/26/08), 984 So.2d 685; Morris v. United Services Auto. Ass’n, 32,528 (La.App.2d Cir.02/18/00), 756 So.2d 549; Frentress v. Howard, 31,609 (La.App.2d Cir.02/24/99), 728 So.2d 1019. These damages include the return of the purchase price of the RV with interest from the time it was paid and for reimbursement of reasonable expenses incurred for the preservation of the motor home, such as insurance premiums. Aucoin, supra.

A trial court has great discretion in awarding attorney fees in a redhibition case. Health Education and Welfare Federal Credit Union v. Peoples State Bank, 11-672 (La.App.3d Cir.12/07/11), 83 So.3d 1055; Dailey v. The Home Furnishings Store, 02-1225 (La.App.4th Cir.09/17/03), 857 So.2d 1051. Before an attorney’s fee award will be disturbed the record must reveal that the trial court abused its much discretion in making the award. Smith v. Acadiana Mortg. of Louisiana, Inc., 42,795 (La.App.2d Cir.01/30/08), 975 So.2d 143; Health Education and Welfare Federal Credit Union, supra; Buteau v. Leleux, 591 So.2d 1261 (La.App. 3d Cir.1991).

The law clearly provides for exactly the remedy awarded by the jury in this case: return of the purchase price, together with reimbursement for interest payments made and insurance premiums paid. See, Aucoin, supra. Furthermore, the attorney’s fee awarded by the trial court is reasonable and does not constitute an abuse of the lower court’s discretion; it is supported [nby detailed affidavits setting forth the type of work performed and increments of time spent by plaintiffs’ counsel on this case.

Denial of Nonpecuniary Damages

What type or types of damages does Article 2545 contemplate? Does it include mental anguish damages unassociated with personal injury? In their appeal, plaintiffs urge that the trial court erred in refusing to instruct the jury that they were entitled to nonpecuniary damages, and that the lack of such an award was erroneous.

La. C.C. art. 1998 provides:

Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a non-pecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

The Revision Comments state that article 1998 is new, and it changes the law in part. As interpreted in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), former La. C.C. art. 1934(3) (1870) allowed recovery of damages for nonpecuniary losses only for breach of a contract which has “intellectual enjoyment” as its principal or exclusive purpose. Under La. C.C. art. 1998 such damages are recoverable when a contract has been made for the gratification of a nonpecuniary interest and, because of circumstances surrounding its formation or breach, the obligor knew or 112should have known that his failure to perform would cause nonpecuniary loss.

In Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1132-33 (La.1992) the Supreme Court explained:

During the Revision process, the Council, and subsequently the Legislature, could easily have restricted the recovery of nonpecuniary damages to those contracts formed solely to gratify nonpecu-niary interests. Indeed, the prior, conditionally-accepted draft of that article would have accomplished that objective. They did not choose to do so. Similarly, they could have chosen to expand recovery of these damages to all contract cases (even those whose exclusive object is to gratify pecuniary interests), as advocated by Professor Litvinoff. They did not. Instead, the choice they made was to preserve the substance of source article 1934(3) as interpreted by Mea-dor, thereby permitting recovery of non-pecuniary damages in situations where nonpecuniary interests constitute at least one of the significant interests that the obligee intended to gratify. The latter might be classified as a hybrid, or mixed, situation where obligees who enter the contract to gratify both pecuniary and nonpeeuniary interests are permitted the recovery of nonpeeuniary damages.

A “nonpeeuniary loss” means that which is known in continental doctrine as “dom-mage moral,” that is, damage of a moral nature which does not affect a “material” or tangible part of a person’s patrimony. See Saul Litvinoff, Moral Damages, 38 La.L.Rev. 1 (1977). A contract made for the gratification of a nonpeeuniary interest means one intended to satisfy an interest of a spiritual order, such as a contract to create a work of art, or a contract to conduct scientific research, or a contract involving matters of sentimental value. In such a case, upon the obligor’s failure to perform, the obligee may recover the damages he has sustained of a nonpeeuniary— or “moral” — nature. See Litvinoff, supra. Thus, if a horse is bought for the purpose of showing it at an exhibition, the purchaser is entitled to recover l1sfor his disappointment and inconvenience if the contract is rescinded because of a redhibitory vice. See Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir.1979), writ denied, 380 So.2d 102 (La.1980).

Thus, under La. C.C. art. 1998, which is the controlling article for the type of damages referred to by the redhibition articles (specifically La. C.C. art. 2545), if it can be established that the obligee intended-and if the nature of the contract supports this contention-to gratify a significant nonpeeuniary interest by way of the contract, and that the obligor either knew or should have known that failure to perform would cause nonpeeuniary loss to the obligee, then the requirements for recovery of nonpeeuniary damages are satisfied. Young, supra; Davis v. Sweeney, 44,997 (La.App.2d Cir.03/03/10), 31 So.3d 1184; Stonecipher v. Mitchell, 26,575 (La.App.2d Cir.05/10/95), 655 So.2d 1381. Whether the gratification of some nonpeeuniary interest is a principal object of a contract is a question of fact. Id.

To highlight the difference, the supreme court wrote in Young, 595 So.2d at 1133:

Although the purchase of a new truck or car may be prompted by both the pecuniary interest of securing transportation and the nonpeeuniary interest relating to enjoyment, taste, and personal preference of owning and driving the chosen vehicle, the nature of the contract is primarily pecuniary (unless other factors evidence a different conclusion). Contrast the contract of purchase made in a standard new car sale with a contract for purchase of an antique car that, while it might be driven on the streets, represents the obligee’s desire to own, and perhaps to show, a distinctive, unique automobile. Or contrast the traditional new car purchase contract with a contract for purchase of a specifically-designed, custom-built vehicle. [Footnote omitted.]

In Young, supra, the supreme court found:

luln this case, the nature of the contract does not make it evident, nor do the facts and circumstances surrounding the formation of the contract demonstrate that Young purchased the new pickup truck from Bordelon Motors, Inc. for a significant nonpeeuniary purpose. Although he testified that he wanted a larger cab area so that he could lie down on trips if his back started to bother him, that desire seemed more incidental in nature than that which would constitute a significant nonpeeuniary interest in purchasing the truck. The rest of his testimony concerned the need to use the truck in his service station business to haul tires or to transport customers while their cars were being fixed. Even his plans for recreational use of the vehicle (i.e., fishing trips) constituted the pecuniary interest of requiring suitable transportation to haul his fishing boat.

In the case sub judice, we cannot say that the trial court was manifestly erroneous in its determination that this was not a proper case for an award of nonpecuniary damages and thus in its decision not to instruct the jury on such damages. The court made this finding after hearing all of the evidence presented at trial.

In the instant case, the Winnebago plaintiffs purchased from the dealer was neither custom-built nor specifically designed. While plaintiffs did have a valid nonpecuniary interest, to spend quality time with their children (and family and friends) traveling, camping and enjoying outdoor activities, it can be argued that most if not all purchasers of RVs have the same or similar interests. This does not change the fact that the primary purpose of the purchase of a recreational vehicle is transportation/recreational travel. Although a close call, we cannot find clear error in the trial court’s determination that plaintiffs failed to establish their entitlement to nonpecuniary damages under La. C.C. art. 1998. See, Young, supra; Landry v. Forest River, Inc., 06-1424 (La.App.3d Cir.03/14/07), 953 So.2d 1046.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs of this appeal are to be paid by Winnebago Industries, Inc.

      . These problems included: an ammonia smell coming from the RV's refrigerator, which was later recalled because it presented a fire hazard; a defective dash air conditioner thermostat which failed within the first three days of purchase (it took over a month to get the air conditioner running because of a delay in getting a part and/or the unit back); the steering wheel's violent pulling to the right (multiple attempts at alignment were required to correct the problem); howling brakes whenever Loren Jones attempted to stop the RV; paint defects (which took several attempts to correct); condensation on a rear passenger window; a defective entry door that shook while driving and was difficult to close; water dripping on the electric generator while the air conditioner was running; a water leak in the motor home’s fresh water tank; an empty generator reservoir caused by a crack in the reservoir; and an off-balance passenger window (which was caused by a bent felt channel which had to be replaced). There were further problems with the left slide-room walking from side to side as it extended, and the slide room also had a torn bottom seal gasket (which is usually torn when something in the slide room is malfunctioning or out of adjustment). Also noted was a passenger side slide gear with a broken tooth. There was a problem with the house batteries not holding a charge; it was discovered that the battery brackets were corroded and had to be replaced within six weeks of plaintiffs' purchase. The toilet was leaking and a nut was replaced. The leak continued, however, until the entire toilet assembly was eventually replaced.

      . Winnebago and Stevens RV Center agreed that Winnebago would not argue to the jury that plaintiffs’ RV problems were caused by negligent repairs by Stevens RV Center and that Stevens RV Center would not pursue its cross-claim against Winnebago for indemnification, attorney fees and expenses.

      . Berney had purchased a used S-10 Blazer. This court found that the documentation filed by the parties established that from the time of the April 1998 purchase until the month before the dispute was tried in May 1999, the Bemeys and, to some extent Rountree, drove the vehicle over 17,000 miles. Although plagued by the CEL (check engine light) and other problems, the Berneys were able to use the vehicle extensively.


author: STEWART, J.

text:
    Bobbie Jean CAVET and Vera Cavet Vanderpool, Plaintiffs-Appellants v. LOUISIANA EXTENDED CARE HOSPITAL, located within Glenwood Regional Hospital in West Monroe, Defendants-Appellees.
    No. 47,141-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.
    Rehearing Denied June 14, 2012.

      Vera Cavet Vanderpool, In Proper Person.
    The Gachassin Law Firm, by Nicholas Gachassin, Jr., Gary J. Delahoussaye, Lafayette, LA, Brandon K. Stelly, for Defendants-Appellees, Louisiana Extended Care Hospital of West Monroe, LHC, Inc. and Keith G. Myers.
    David E. Verlander, III, Monroe, LA, for Defendants-Appellees, GF Health Products, Inc., Beatrice Scherer, and Graham Field Health Products.
    James M. Edwards, Monroe, LA, for Defendants-Appellees, PSS World Medical, Inc., Gulf South Medical Supply and David A. Smith.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

liPro se plaintiff Vera Cavet-Vanderpool (“Vanderpool”) appeals a summary judgment rendered in favor of Louisiana Extended Care Hospital of West Monroe (hereafter referred to as “the hospital”), the remaining defendant of several named by Vanderpool in this litigation. The summary judgment dismisses all Vanderpool’s claims arising from a commode chair incident. We have thoroughly reviewed this 16-volume record of over 3,300 pages and conducted a de novo review of the summary judgment. We find there to be no genuine issue of material fact and that the hospital is entitled to judgment as a matter of law. Accordingly, we affirm.

FACTS

Vanderpool filed a suit for damages against the hospital and other unnamed defendants on July 23, 2007. The suit arose from two incidents at the hospital where Vanderpool’s mother, Bobbie Jean Cavet (“Cavet”), was a patient from June 23, 2006, until July 26, 2006. The first incident, which is not at issue in this appeal, occurred when Cavet slipped off her bed on July 21, 2006. The second incident, which is at issue, is alleged to have occurred on the morning of July 23, 2006, when the drop arm of a bedside 12commode chair gave way under Cavet’s weight causing her to fall forward into Vanderpool. Both women then fell against a door and slid to the floor.

Granted the privilege of litigating without payment of costs as provided by La. C.C.P. arts. 5181, et seq., Vanderpool asserted numerous allegations against the hospital through her petition and revised and amended complaints. In summary, she asserted that the hospital:

• knew or should have known there was a problem with the commode chair and failed to do anything about it;
• failed to provide a commode chair suitable for Cavet’s weight;
• failed to properly maintain the commode chair or to provide one that was safe and in good working order;
• failed to provide a demonstration or instructions on use of the commode chair;
• failed to train its employees on proper use and maintenance of the commode chair;
• failed to provide a warning or recall after the incident; and
• failed to conduct routine inspections of the commode chair or to implement a regular procedure for checking the locking mechanism on the chair arm before each use.

Additionally, Vanderpool alleged “possible” violations of safety standards by the hospital’s nursing staff. She also complained that the nursing staff failed to assess her injuries after the incident. She asserted that she had a history of “mini-strokes,” and that she “should have been given TPA within | sthree hours to minimize potential damage from ischemia.” There is no indication in the record of Vanderpool having had a stroke just before, at the time of, or after the alleged incident.

Answering, the hospital denied Vander-pool’s various allegations. On January 7, 2010, the hospital filed a motion for summary judgment. The hospital asserted that there is no genuine issue of material fact in dispute and that Vanderpool cannot prove that the alleged incident occurred, that it owed any duty to her under the particular facts of this case, that it breached any duty to her, or that the commode chair had any vice or defect.

At the hearing on April 9, 2010, the hospital introduced 12 exhibits into evidence to support its motion. These included Vanderpool’s original pleadings, a copy of her proposed evidence and witness list, and discovery responses by the hospital. In responding to discovery, the hospital denied having any affidavit or accident report by its former nursing director, Dee Dee Cook, about the commode chair incident; Vanderpool had claimed that she reported the incident to Cook a day or two after it happened. The hospital introduced two invoices for the purchase of 18 commode chairs and a copy of the instructions and warranty for the type of commode chair, the Lumex 6438, that had been used by Cavet. With the invoices was an affidavit by Darlene Lachney, Director of Nursing, who reviewed equipment order invoices and verified that the hospital has had since 2005 the same 18 commode chairs, nine of model 6438 and nine of model 6433, in service and has not had to dispose of, service, or replace any of the 18 chairs since that time. The hospital also introduced the summary judgment 14rendered in favor of GF Health Products, Inc., the manufacturer of the Lumex 6438, dismissing Vanderpool’s products liability claims.

The hospital introduced affidavits by individuals who were involved in Cavet’s care and attested to having no recollection of the alleged incident. Jennifer Pauley, a physical therapist, recalled Cavet as a patient at the hospital but had no knowledge of and found no information in Cavet’s chart regarding a fall from a commode chair. Nurses Karen Baldwin, Rhonda Dalton, and Fran Johnson also had no recollection of any incident involving Cavet falling from a commode chair and attested that sueh an event would be documented in the patient’s chart.

Finally, the hospital introduced Vander-pool’s deposition taken on September 23, 2008. According to the deposition, a nurse’s aide came into Cavet’s room in the morning to assist her in using the bathroom. Vanderpool assisted the aide in transferring Cavet from her bed to the commode chair. Vanderpool explained that the aide said, “Well, when you get through, call me. I’ll come in, clean her up, if need be, and get her back in bed.” After telling the aide that she would clean her mother, Vanderpool said, “[B]ut I’ll give you a ring to assist to get her back in bed.” Vanderpool then explained the incident:

And then I guess [Cavet] must have told me she was through, and I was standing right there in front of her. And about that time she raised up, and then the right arm just totally gave way, and she fell right into me, and I grabbed her and tried to hold her, but I couldn’t. Her weight, she was heavy, and she slipped down my arms ... next thing I know, we’re into the bathroom door, and my head hit the bathroom door, and we slid down onto the floor.

| ¡jVanderpool stated that she crawled to the bed to ring for help, that six nurses came to the room, and that a Hoyer lift was used to get Cavet back into bed. Sometime later, the commode chair was removed from the room and replaced with a different one. Though Vanderpool claimed to have sustained injuries, she admitted that she did not see a doctor until over a year later after she filed this suit.

In opposition to summary judgment, Vanderpool introduced her original filings and the warranty for the Lumex 6438, all of which had been introduced by the hospital. She also introduced a discovery document concerning questions she wished to pose to Keith Myers, C.E.O. of the hospital’s parent company, who had by this time been dismissed from the suit on a summary judgment and who had no involvement in the incident at issue. Finally, she offered another discovery-related document concerning interrogatories for the hospital on a variety of issues, most of which appear wholly unrelated to the commode chair incident.

The trial court indicated that it would accept Vanderpool’s version of what occurred as true for purposes of determining whether summary judgment should be granted. The trial court’s primary focus was whether the hospital owed Vanderpool any duty under the facts as she stated them.

On June 30, 2010, the trial court granted summary judgment in favor of the hospital. In a footnote, the trial court explained that its ruling pertained to Vanderpool’s claim that her injuries were caused by a defective commode chair in the hospital’s custody or control. Vanderpool did not believe the summary judgment dismissed her negligence claims and sought |sto file more pleadings against the hospital concerning the commode chair incident. The trial court conducted another hearing on January 28, 2011, to address whether Van-derpool should be permitted to file the additional pleadings and whether to reconsider the summary judgment. Vanderpool introduced a second deposition given by her and photographs taken around the time of the incident. These purport to show the commode chair involved in the incident and other allegedly broken commode chairs at the hospital.

The trial court rendered an amended and supplemental judgment on May 9, 2011, denying Vanderpool leave to file the additional pleadings and confirming the previously granted summary judgment in favor of the hospital. In a footnote, the trial court explained that it had “inadvertently failed to address the request for summary judgment on behalf of [the hospital] with respect to the claims of negligence ... and does so at this time by means of this amended and supplemental judgment.”

Vanderpool objected to the ruling and filed an appeal motion. On July 27, 2011, the trial court issued written reasons designating the original and supplemental summary judgments appealable pursuant to La. C.C.P. art. 1915 and explaining that the summary judgment disposes of all the substantive liability claims advanced by Vanderpool against the hospital. Only her ancillary claims regarding Cavet’s settlement with the hospital remain unresolved.

DISCUSSION

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.CjP.7 art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Medical Center, 43,254 (La.App.2d Cir.6/4/08), 986 So.2d 247, writ not considered, 2008-1507 (La.10/10/08), 993 So.2d 1273.

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Amos v. Crouch, 46,456 (La.App.2d Cir.6/29/11), 71 So.3d 1053.

The moving party bears the burden of proof. However, when the moving party will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim but need only point out that there is an absence of factual support for one or more essential elements of the adverse party’s claim. La. C.C.P. art. 966(C)(2). When a motion for summary judgment is properly made and supported, the adverse party may not rest on the mere allegations or denials of his pleading, but he must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). This requires the plaintiff to make a positive showing of evidence creating a genuine issue as to an essential element of her claim; |smere speculation is not sufficient. Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37; Klein v. Cisco-Eagle, Inc., 37,398 (La.App.2d Cir.9/24/03), 855 So.2d 844. If the adverse party fails to produce the required factual support to show that she will be able to meet her evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2); Russell v. Eye Associates of Northeast Louisiana, 46,525 (La.App.2d Cir.9/21/11), 74 So.3d 230.

In moving for summary judgment, the hospital asserted that Vanderpool would be unable to meet the burden of proving that it owed any duty to her under the facts alleged, that it breached any duty owed to her, that the commode chair was defective, that it had any actual or constructive knowledge of the any defect, or that the alleged event even occurred. Vanderpool’s theory of recovery was based on the negligence of the hospital through its nursing staff and the liability of the hospital as owner and custodian of the commode chair. We will look to the applicable substantive laws to determine whether there is a genuine issue of material fact under either theory of recovery.

Negligence claims are subject to the duty-risk analysis. Under the duty-risk analysis, the plaintiff must prove that (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant breached that duty; (3) the defendant’s conduct was cause-in-fact of the plaintiffs injuries; (4) the defendant’s conduct was the legal cause of the plaintiffs injury; and (5) actual damages. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270; Ebarb v. Matlock, 46,243 (La.App.2d Cir.5/18/11), 69 So.3d 516, writ denied, 2011-1272 (La.9/23/11), 69 So.3d 1164.

The trial court viewed the existence of a duty as the pertinent inquiry in determining whether the hospital was entitled to summary judgment. So, we will begin with determining the duty, if any, owed by the hospital to Vanderpool under the circumstances of this case and whether there is any issue of material fact as to whether the hospital breached such duty.

The existence of a duty presents a question of law. Ebarb, supra. We ask whether there is any law — whether statutory, jurisprudential, or arising from general principles of fault — to support the plaintiffs claim. Id. Deciding whether to impose a duty requires the court to make a policy decision in light of the unique facts and circumstances of each case. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991); Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App.4th Cir.5/22/02), 819 So.2d 1129. The ease of association between the duty owed and the risk encountered by the plaintiff is the focus of inquiry in finding whether a duty exists in a particular case. Socorro, supra. A finding that the defendant owes no duty to the plaintiff in a given case is grounds which support a summary judgment in favor of the defendant. Klein, supra.

Vanderpool was a visitor to the hospital. A hospital owes a duty to visitors to exercise reasonable care for their safety commensurate with the particular circumstances involved. Reynolds v. St. Francis Medical Center, 597 So.2d 1121 (La.App. 2d Cir.1992). This duty has been typically |10appiied in slip-and-fall cases. See Holden v. Louisiana State University Medical Center in Shreveport, 29,268 (La.App.2d Cir.2/28/97), 690 So.2d 958, writ denied, 97-0797 (La.5/1/97), 693 So.2d 730; Reynolds, supra; Terrence v. Baton Rouge General Medical Center, 2010-0011 (La.App.lst Cir.6/11/10), 39 So.3d 842, writ denied, 2010-1624 (La.10/8/10), 46 So.3d 1271; Mosley v. Methodist Health System Foundation, Inc., 1999-3116 (La.App.4th Cir.11/15/00), 776 So.2d 21, writ denied, 2001-0597 (La.4/27/01), 791 So.2d 633; Blount v. East Jefferson General Hosp., 04-407 (La.App.5th Cir.10/12/04), 887 So.2d 535. In Viosca v. Touro Infirmary, 170 So.2d 222 (La.App. 4th Cir.1964), app. denied, 247 La. 416, 171 So.2d 668 (La.1965), the court found that the defendant breached this duty when a nurse’s aid moved an over-bed table directly in front of and almost touching the plaintiff, a visitor who was sleeping in a chair. The plaintiff somehow tripped over the table when she awoke and sustained significant injuries.

The issue here is whether there is an ease of association between the duty the hospital owed Vanderpool, a visitor, and the particular risk she encountered. It is clear that the hospital would have owed a duty to Cavet, its patient, to protect her from any risk of harm in transferring on and off the commode chair. In fact, the various “counts” asserted by the plaintiff against the hospital pertain to actions the hospital could have taken to protect Cavet. A hospital would be expected to maintain a commode chair |nin safe working order, provide one suitable for the patient’s weight, instruct on usage, conduct routine inspections, and comply with safety standards all for the protection of and the fulfillment of its duty toward its patient. But a hospital would not be expected to do these things for the safety of visitors, who would not be the intended users of commode chairs provided by hospitals for patient care. The hospital’s duty to exercise reasonable care for the safety of visitors would not encompass the unlikely risk that a visitor would sustain an injury in connection with a patient using a commode chair. This is not a situation as in Viosca, supra, where a hospital employee moved something directly into the plaintiffs path and caused her injury.

In Pratt v. Lifemark Corp., 531 So.2d 488 (La.App. 4th Cir.1988), writ denied, 536 So.2d 1214 (La.1989), the court found that the defendant did not owe a surgeon, who injured his back while moving a heavy patient, any duty to provide sufficient personnel to assist in the transfer. The court found that the surgeon was not obligated to move the patient; he volunteered to do so. Moreover, the duty to have sufficient personnel on hand was for the patient’s safety, not for protecting against the remote possibility that the surgeon would injure his back.

According to Vanderpool’s deposition, the nurse’s aide assisted Cavet in transferring onto the commode chair and instructed that she call her for assistance when done. Instead, Vanderpool volunteered that she would clean her mother then ring for the aide to get Cavet to bed. Vander-pool has not asserted that she was required by the hospital to assist with Cavet; instead, her efforts were voluntary and done out of love for her mother. Her 1 ^desire to help her mother is commendable. However, there is no ease of association between the duty owed by a hospital to visitors and the risk that Vanderpool would sustain some injury when she was unable to support Cavet, who weighed in the area of 250 pounds, after the drop arm of the commode chair “gave way” when Cavet suddenly raised up. We do not find that the hospital owed a duty to Vander-pool to protect her from any risk of injury under the facts alleged. Nor do we find any breach by the hospital of its duty to exercise reasonable care for the safety of its visitors commensurate with the particular circumstances alleged. On these grounds, summary judgment is appropriate as to all Vanderpool’s negligence claims against the hospital.

We now turn to Vanderpool’s claims against the hospital as the owner and custodian of the commode chair. La. C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

A defect under La. C.C. art. 2317.1 is a condition or imperfection that poses an unreasonable risk of injury to persons exercising ordinary care and prudence. Nicholson v. Horseshoe Entertainment, 46,-081 (La.App.2d Cir.3/2/11), 58 So.3d 565, writ denied, 2011-0679 (La.5/20/11), 63 So.3d 980. Vice and defect are synonymous terms. The terms vice, defect, and ruin describe a thing’s unreasonably dangerous character. Myers v. Dronet, 2001-5 (La.App.3d Cir.6/22/01), 801 So.2d 1097, citing Frank L. Maraist & Thomas C. Galligan, Burying Caesar: Civil Justice Reform and the Changing Face of Louisiana Tort Law, 71 Tul. L.Rev. 339 (1996).

The warranty information and instructions for the Lumex 6438 commode chair were introduced into evidence by both parties. According to these exhibits, the commode chair was designed for a maximum user weight of 400 pounds; thus, it was suitable for Cavet’s size. The commode chair also has drop arms. The instructions state, “To drop arm, push release lever in or pull button out to release arm.” The hospital introduced sales invoices for the purchase of 18 commode chairs, nine in 2004 and nine in 2005. Darlene Lachney, its Director of Nursing, attested that the hospital has had the 18 commode chairs in use and has never had to dispose of, repair, or replace these chairs or purchase new ones.

By the exhibits introduced at the summary judgment hearing, the hospital showed that Vanderpool would be unable to prove that there was some ruin, vice, or defect in the commode chair. In response to the hospital’s properly made and supported motion for summary judgment, Vanderpool did not produce any evidence to show that she would be able to prove that there was some defect in the commode chair. Photographs introduced by her show commode chairs with arms down. Because the commode chair was designed with drop arms, these photographs do not tend to prove a ruin, vice, or defect. Moreover, the exact commode chair involved in the incident could not be identified.

Vanderpool argues that the doctrine of res ipsa loquitur should apply in this matter “to shift the evidential burden” to the hospital. The doctrine 114of res ipsa loquitur permits a plaintiff to meet the burden of proof by using circumstantial evidence when the injury is the kind which ordinarily does not occur in the absence of negligence, when the evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or a third person, and when the defendant’s negligence falls within the scope of his duty to the plaintiff. Cangelo-si v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La.1989) (on rehearing). However, res ipsa loquitur does not apply where direct evidence, such as eyewitness testimony of how the accident happened, is available. Linnear v. CenterPoint Energy Entex/Reliant Energy, 2006-3030 (La.9/5/07), 966 So.2d 36.

Here, direct evidence is available through Vanderpool’s account of the incident. When deposed, she stated that the right arm failed to support Cavet’s weight and “gave way” when she stood up. Van-derpool stated that neither she nor her two sisters, who came to the hospital that morning after the incident, touched or inspected the commode chair to determine whether it was broken. At most, Vander-pool’s version of events indicates that the drop arm dropped down when Cavet put her weight on it to stand. This is not the type of incident that could have only occurred through some defect in the commode chair or negligence on the part of the hospital. Rather, it is | iaplausible that Cavet herself may have inadvertently released the arm causing it to drop down when she put her weight on it. For these reasons, res ipsa loquitur is not applicable, and summary judgment in favor of the hospital is proper as to Vanderpool’s claims under La. C.C. art. 2317.1.

Finally, summary judgment is appropriate because the hospital has demonstrated that Vanderpool would be unable to meet the burden of proving that the incident even occurred. Vanderpool is the only eyewitness to the alleged incident. Though she alleges that she sustained serious long-term injuries, she did not seek medical treatment until after filing this suit almost a year after the incident. The incident is not documented in Cavet’s medical records, whereas the initial incident where she fell from her bed is documented. The hospital introduced affidavits from nursing staff and a physical therapist who were involved in Cavet’s care and who have no knowledge of Cavet falling from a commode chair. Nurses Baldwin, Dalton, and Johnson all attest that such an event would be documented in the patient’s chart. The only evidence that the incident occurred is Vanderpool’s allegations and self-serving deposition testimony. The plaintiff may not satisfy her burden on summary judgment by relying on her allegations and uncorroborated, self-serving testimony in response to the defendant’s properly made and supported motion for summary judgment. See Posey v. NOMAC Drilling Corp., 44,428 (La.App.2d Cir.8/12/09), 16 So.3d 1211; Laizer v. Kosarek, 2009-0277 (La.App.4th Cir.6/24/09), 16 So.3d 442; Sims-Gale v. Cox Communications of New Orleans, 2004-0952 (La.App.4th Cir.4/20/05), 905 So.2d 311.

|1fiHaving closely reviewed this 16-vol-ume record, we find that there is no genuine issue as to material fact for trial and that the hospital is entitled to summary judgment as a matter of law dismissing all Vanderpool’s claims against it concerning its liability to her for the commode chair incident.

CONCLUSION

For the reasons explained in this opinion, we affirm the judgment of the trial court. Costs are assessed against Vander-pool in accordance with La. C.C.P. arts. 5186 and 5188.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, DREW, MOORE and SEXTON, JJ.

Rehearing denied.

      . Vanderpool later named as defendants the hospital’s parent company, LHC, Inc., and LHC’s C.E.O., Keith Myers; alleged manufacturers of the commode chair GF Health Products, Inc., Graham-Field Health Products, L.L.C., and Beatrice Scherer; and alleged suppliers of the chair PSS World Medical, Inc., Gulf South Medical Supply, and David Smith. All claims against these defendants have been dismissed and are not at issue in this appeal.

      . Though Vanderpool initially filed suit on behalf of herself and her mother, Cavet was subsequently removed as a plaintiff. The minutes of October 7, 2008, indicate that Van-derpool informed the trial court that Cavet did not want to pursue the matter. The record suggests that Cavet may have pursued some other action against the hospital. Prior to her death in December 2008, Cavet con-fected a settlement and release with the hospital, which is the subject of additional claims asserted by Vanderpool in this litigation but not at issue on appeal.

      .A comprehensive listing of Vanderpool’s claims against the hospital is found in "Amended Complaint V” filed on June 18, 2009, which sets forth 20 "counts” against the hospital. The trial court’s order granting leave for her to file Amended Complaint V indicates that she agreed that she would not seek to further amend her complaint. This agreement was reached in response of a rule to show cause filed by the hospital seeking to "freeze” the pleadings. The hospital's complaint was that Vanderpool was adding new allegations on a "seemingly regular basis.”

      . A hospital must exercise the requisite degree of care toward a patient as his or her condition requires. Its duty is to protect a patient from danger that may result from his or her physical and mental incapacities and from external circumstances peculiarly within the hospital’s control. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974).

      . In reviewing this record, we noted that Van-derpool's sister, Carolyn Jean Nolan, stated in her deposition that she examined the chair and determined that the arm was not snapping into place when raised up. However, her affidavit does not mention that she physically examined the commode chair. Vander-pool's other sister, Sandra Lee Cavet-Waldo, stated in her deposition that an aide checked the chair and said it was broken. Vanderpool stated in her deposition that no one touched the commode chair after the incident. In any event, neither party introduced Nolan’s deposition or affidavit at the hearing on summary judgment.