text:
    Thomas FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-588.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      Thomas Fletcher, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Thomas Fletcher (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief as untimely and successive, though it was based on newly discovered evidence. We reverse.

Following a jury trial in January 1995, Defendant was found guilty as charged of first degree murder and armed robbery, alleged to have occurred on July 3, 1994. The victim was Defendant’s alleged drug dealer. The defense was voluntary intoxication, but the only witness the defense presented at trial to support that defense was a substance abuse expert, who testified about cocaine intoxication and theorized as to Defendant’s state of mind and condition at the time of the murder to negate his specific intent to commit first degree murder and armed robbery. Defendant was found guilty as charged and was sentenced to life in prison for the murder and a concurrent term of years for the robbery.

In his timely rule 3.850 motion, Defendant claimed his defense counsel was ineffective for failing to call an individual named Jerry Rigsby, a friend to both Defendant and the victim, as a witness on Defendant’s behalf. Defendant alleged that counsel had his private investigator talk with Rigsby prior to trial, obtaining a statement that would support the defense. Rigsby would corroborate the fact that Defendant had been a long-time substance abuser, he had seen Defendant’s behavior while intoxicated, and he could support Defendant’s having been intoxicated on the date of the murder. Counsel did not advise Defendant why he did not call Rigs-by. Defendant alleged that the result of his trial would have been different if Rigs-by had testified. The trial court summarily denied this ground, explaining in its order that Defendant had made no showing that Rigsby would have been available to offer admissible testimony.

In 2009, Defendant filed another, apparently untimely, motion for postconviction relief, relying on subdivision 3.850(b)(1) (providing an exception to the two-year time limit when movant alleges “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence”).

The newly discovered evidence was presented in the form of an “affidavit” by Rigsby, a copy of which Defendant attached as exhibit A to his motion. Rigsby stated he tried to contact Defendant several times on July 3,1994, to get together for July 4, and when he got no answer, he went to the victim’s home, where he saw Defendant by the pool just hours before the killing; Defendant looked “out of it,” appeared tranquilized, was speaking gibberish, and did not seem to recognize Rigsby. A few days after the incident, the victim’s long-time personal attorney told Rigsby about the homicide; Rigsby did not believe it and visited Defendant in jail. Defendant told Rigsby he was pleading not guilty and would be in touch when he had a court date. Rigsby did not hear from Defendant for a while and then the victim’s attorney told him that Defendant had pleaded no contest to avoid the death penalty, receiving life without parole. In April 1995, Rigsby moved to England and lost contact with Defendant — until October 2008, when he received a message on MySpace from a friend of Defendant’s who told him Defendant was trying to get in touch with him.

Defendant then wrote Rigsby a letter telling him he thought Rigsby had abandoned him when Defendant needed him as a witness during his trial. Defendant’s lawyer sent someone to his apartment to get a statement, but he apparently had moved — but this was before Defendant’s court date, which was in January 1995, and Rigsby stated in his affidavit that no one had ever come by to see him on Defendant’s behalf. Had he known of Defendant’s court date, he would have been there, but no lawyer came or called or left a message or sent anyone.

The “affidavit” was dated January 14, 2009. Below Rigsby’s signature was that of a solicitor who confirmed that Rigsby had signed the statement in the solicitor’s presence, with a stamp indicating the solicitor was “authorised” to administer oaths, but nothing on the page indicated that an oath had been administered to Rigsby.

Based on the contents of Rigsby’s “affidavit,” Defendant concluded that his defense counsel and the victim’s attorney had conspired to deprive him of the sole witness who could testify to his state of intoxication prior to the offense, lying to him and to Rigsby to prevent Rigsby from testifying. Prior to trial, he had given Rigsby’s name and address to his attorney, to substantiate that he was intoxicated before the events that took place at the victim’s condominium. Counsel had told Defendant that his investigator had gotten from Rigsby exactly the kind of statement that was needed for his defense, and that without Rigsby’s independent testimony to corroborate his claim, the defense of voluntary intoxication would not succeed. However, a couple of weeks later, counsel asked Defendant if Rigsby still lived at the same address, and on the next visit, counsel told Defendant that Rigsby no longer lived at that address and could not be located.

Immediately thereafter, Defendant phoned the victim’s attorney to ask him if he knew where Rigsby was. That attorney told Defendant Rigsby wanted no part of him or his trial and had moved to England. He advised Defendant not to expect Rigsby to show up at his trial. These conversations occurred between August and October 1994.

Defendant pointed out that Rigsby’s statement that no one had contacted him on Defendant’s behalf contradicted defense counsel’s representation that his investigator initially did contact Rigsby and got a statement from him. Moreover, counsel’s representation that Rigsby had moved was contradicted by Rigsby’s statement that he did not move to England until April 1995, after Defendant’s trial. Finally, the victim’s attorney’s representation that Rigsby wanted nothing to do with him was contradicted by Rigsby’s statement, including that he was told by the victim’s attorney that Defendant had pleaded no contest in order to get a life sentence. Thus, Defendant concluded that the two attorneys had perpetrated a fraud on the court and a miscarriage of justice.

Defendant argued that the contents of Rigsby’s affidavit constituted newly discovered evidence because there was no way Defendant could have known of the fraud of his attorney and the victim’s attorney in keeping Rigsby from testifying at his trial, and, but for the assistance of his friend, Defendant still would not know what they had done to keep Rigsby from testifying for him. Rigsby’s statement was not known to Defendant or the trial court at the time of the trial, and due to his counsel’s being a party to the fraud, his knowledge could not be counted against Defendant when determining whether the information was newly discovered; Defendant had used the utmost diligence to discover it. Second, Rigsby’s testimony probably would have produced an acquittal of the first degree murder charge so that Defendant probably would have been convicted of a lesser offense and would have received a guidelines sentence, not life in prison.

The state argued below that the motion was untimely because there was no showing why the instant claims could not have been presented in a timely fashion. Because the claim of ineffective assistance of counsel for failing to call Rigsby already had been raised in the prior motion, it also argued that this claim was successive. Finally, in a footnote, the state suggested that if the trial court disagreed, it could dismiss the petition without prejudice because Rigsby’s “affidavit” was not under oath. The trial court did not act on this suggestion, but summarily denied the motion. The state maintains the same position in this court, and also argues that Spera v. State, 971 So.2d 754, 755 (Fla. 2007), does not apply to untimely successive motions.

However, as the state does acknowledge, this court has applied Spera to insufficient claims of newly discovered evidence. E.g., Slade v. State, 10 So.3d 1205 (Fla. 4th DCA 2009).

Had Rigsby’s “affidavit” been properly sworn, then an evidentiary hearing might have been required to determine whether to set aside Defendant’s conviction on the basis of newly discovered evidence, see Jones v. State, 709 So.2d 512, 521 (Fla. 1998), unless Rigsby’s allegations were conclusively refuted by the record, or it could be determined, from the face of the sworn allegations, that they are inherently incredible. McLin v. State, 827 So.2d 948 (Fla.2002).

Because Rigsby’s “affidavit” does not contain a proper oath, on remand the trial court should strike the motion with leave to refile the motion with a properly sworn affidavit, within a reasonable time period, pursuant to Spera. Compare Moss v. State, 943 So.2d 946 (Fla. 4th DCA 2006) and Hall v. State, 11 So.3d 1002 (Fla. 4th DCA 2009)

Reversed and Remanded.

GROSS, C.J., DAMOORGIAN and LEVINE, JJ., concur.

      . Voluntary intoxication was a recognized defense at the time. See § 775.051, Fla. Stat. (2010) (abolishing voluntary intoxication defense effective Oct. 1, 1999); Ch. 99-174, §§ 1-2, at 968, Laws of Fla.

      . In that opinion, the standard was expressed as follows:
      First, in order to be considered newly discovered, the evidence "must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.” Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994).
      Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Jones [v. State], 591 So.2d [911] at 911, 915 [Fla.1991], To reach this conclusion the trial court is required to "consider all newly discovered evidence which would be admissible” at trial and then evaluate the "weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. at 916.


source: Caselaw Access Project

author: GERBER, J. MAY, J.,

license: Public Domain

text:
    Randi BORRACK, Appellant, v. Charles D. REED, M.D., Appellee.
    No. 4D09-4514.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.
    Terry E. Resk of Haile, Shaw & Pfaffen-berger, P.A., North Palm Beach, for appellant.
    Mark D. Tinker of Banker Lopez Gassier, P.A., Saint Petersburg, for appellee.
   GERBER, J.

The plaintiff filed a complaint essentially alleging that the defendant negligently played a prank which caused injuries to her. The circuit court dismissed the case with prejudice, reasoning that the plaintiff failed to allege that the defendant created a “zone of risk.” We reverse. The plaintiff sufficiently alleged that the defendant created a “zone of risk” for which the defendant owed the plaintiff a duty of reasonable care.

We accept as true the facts alleged in the second amended complaint. See Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008) (“In reviewing an order granting a motion to dismiss ... [t]he facts alleged in the complaint must be accepted as true and all reasonable inferences are drawn in favor of the pleader.”) (internal citation and quotations omitted). The second amended complaint alleged, in pertinent part:

5. The parties were dating at the time of this incident and had traveled to West Virginia to allow the Plaintiff an opportunity to meet the Defendant’s family....
6. While there, the parties planned a day of water skiing on a lake. Unbeknownst to the Plaintiff, the Defendant planned to play a trick on the Plaintiff to induce her to jump off a very high cliff into the lake.
7. The Defendant knew that the only way to get the Plaintiff to jump from the cliff was to trick her into doing so.
8. While hiking up to the top of the cliff on the lake, the Plaintiff repeatedly advised the Defendant that she was not comfortable with the climb and was afraid to descend alone. He refused to accompany her to the bottom, continuing instead to the top. He encouraged her to continue by telling her that the view from the top is something that he used to share with his deceased brother, and now wanted to share with her.
9. Feeling compelled to continue because of the comments made by the Defendant, and being too afraid to descend on her own, the Plaintiff continued to the top of the cliff. Once there she became too frightened to look over the edge and turned to try to descend.
10. While she was not looking, the Defendant jumped off the cliff into the water below. When the Plaintiff turned to ask him to leave, he was nowhere to be found.
11. The Plaintiff yelled to the bottom where the Defendant’s nephew was in the water to find out what happened to the Defendant.
12. The Defendant’s nephew responded by stating that he did not know where the Defendant was and that she should jump to find him.
13. Due to her concern and love for the Defendant, and in an effort to save the Defendant, the Plaintiff jumped off the cliff into the water below and was severely injured when she landed.
17. The statements and actions of the Defendant created a zone of risk to the Plaintiff. By creating said zone of risk, the Defendant had a legal duty to lessen the risk or see that sufficient precautions [were] taken to protect the Plaintiff from the harm that the risk posed.
18. The Defendant breached that duty owed to the Plaintiff by not only failing to lessen the risk or provide precautions, but by actually inducing her to sustain permanent injury via trickery.

The defendant’s motion to dismiss argued that the plaintiff failed to state a cause of action for negligence. Specifically, the defendant contended that he had no legal duty to prevent or stop the plaintiff from jumping into the lake. He argued that the plaintiffs “zone of risk” theory did not apply because he had no “control, ownership or maintenance responsibilities” over the property. He also argued that the plaintiffs “trickery” allegation was misplaced because “ ‘[t]rickery’ is not negligence.”

At the hearing on the motion, the defendant explained in greater detail why he believed the plaintiffs “zone of risk” theory did not apply:

Here we’re just talking about the side of a lake with a cliff up to the water’s edge. [The defendant] does not own this lake. He does not own the cliff. He didn’t create the zone of risk. He hasn’t put anything into it or changed its characteristics in any sense.

The defendant then explained in greater detail why he believed that the plaintiffs “trickery” allegation was misplaced:

I’ve never seen a tort called trickery. I understand what trickery means but certainly that’s not negligence. Tricking is ... pre-thought-out and that would be something in the intentional tort category....

The plaintiff responded that her negligence action should not be characterized as an intentional tort just because she alleged that the defendant engaged in trickery. According to the plaintiff, to demonstrate how the defendant created a zone of risk, she alleged that he engaged in trickery. The plaintiff stated that, through trickery, the defendant caused her to jump in the water where otherwise she would not have.

The circuit court articulated its understanding of the plaintiffs argument by stating that “[the defendant] put [the plaintiff] in that situation and it was foreseeable that she would act the way she did and it was reasonably foreseeable that she [would] get injured.” However, the court later entered an order granting the defendant’s motion to dismiss with prejudice. The court stated:

[The second amended complaint] fails to state a cause of action for the claim of Negligence based on a creation of a zone of risk. This second amended complaint is the third attempt to plead a cause of action, therefore the motion is granted with prejudice.

This appeal followed. Our review is de novo. See Gomez v. Fradin, 41 So.3d 1068, 1070 (Fla. 4th DCA 2010) (“A trial court’s order granting a motion to dismiss is reviewed de novo.”).

The primary dispute between the parties is whether the plaintiffs second amended complaint alleged a set of facts which establish that the defendant created a foreseeable zone of risk and thereby owed a duty of care to the plaintiff pursuant to McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). In McCain, our supreme court held:

The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others.... [That element] is a minimal threshold legal requirement for opening the courthouse doors....
... Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. As we have stated:
Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.
Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.
The statute books and case law, in other words, are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care. Rather, each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element.... As a corollary, the trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.

Id. at 502-03 (internal citations and footnotes omitted). The supreme court since has recognized that reliance on the McCain foreseeability test is appropriate because the court “intended McCain to function as a restatement of the law of negligence.” United States v. Stevens, 994 So.2d 1062, 1067 (Fla.2008) (internal citations and quotations omitted).

Applying McCain, we find that the plaintiffs second amended complaint alleged a set of facts which establish that the defendant created a foreseeable zone of risk and thereby owed a duty of care to the plaintiff. As the plaintiff alleged, the defendant induced the plaintiff to climb to the top edge of a very high cliff despite the plaintiff repeatedly advising the defendant that she was not comfortable with the climb and was afraid to descend alone. That alleged conduct created a foreseeable zone of risk in the form of a fall due to the terrain, gravity, or a combination of both. See Stevens, 994 So.2d at 1067 (quoting Restatement (Second) of Torts § 302 (1965)) (“A negligent act or omission may be one which involves an unreasonable risk of harm to another through ... a force of nature.”). As a result, the defendant owed the plaintiff a duty either to lessen the risk or see that sufficient precautions were taken to protect her from the harm which the risk posed.

Only a handful of Florida decisions have discussed the legal ramifications of pranks, tricks, or practical jokes. None of those decisions, though, have addressed the issue presented here, that is, whether a prank is capable of giving rise to a negligence action against the prankster. See, e.g., Bryant v. CSX Transp., Inc., 577 So.2d 613, 616 (Fla. 1st DCA 1991) (“[T]he jury was properly instructed that it should find the railroad negligent if the railroad failed to take reasonable steps to prevent reasonably foreseeable danger to its employee from the intentional horseplay or misconduct of another employee.”); State Auto Mut. Ins. Co. v. Scroggins, 529 So.2d 1194,1195 (Fla. 5th DCA 1988) (“[W]e find that the exclusion section in the homeowners policy issued to [the insured]— ‘bodily injury ... intended by the insured’ — is applicable to the intentional act of pulling a chair out from under a victim in order to see him fall. The fact that an unintended serious injury resulted from the intended fall is irrelevant to the issue of coverage.”); Ford Motor Credit Co. v. Sheehan, 373 So.2d 956, 958 (Fla. 1st DCA 1979) (debtor stated cause of action against creditor for intentional infliction of emotional distress based on allegations that creditor, to discover debtor’s whereabouts, falsely reported to debtor’s mother that debtor’s children had been involved in a serious automobile accident).

Other states’ courts, however, have recognized that a prank is capable of giving rise to a negligence action against the prankster. See, e.g., Vetter v. Morgan, 22 Kan.App.2d 1, 913 P.2d 1200, 1204 (1995) (“A negligence claim may be based on intentional rude pranks and horseplay that cause unintended injury.”); Langford v. Shu, 258 N.C. 135, 128 S.E.2d 210, 212 (1962) (“The defendant in the instant case owed to the plaintiff the duty not to subject her to a fright which, in the exercise of due care or reasonable foresight, [the defendant] should have known was likely to result in some injury to her.”); John ston v. Pittard, 62 Ga.App. 550, 8 S.E.2d 717, 718 (1940) (in a negligence action for injuries which the plaintiff allegedly sustained because of the defendants’ conduct in perpetrating a practical joke, “[t]he defendants would be hable for such consequences of their acts as they should have foreseen”). These decisions are consistent with our decision today.

In the answer brief, the defendant raises several arguments. We find it necessary to address only two of those arguments here.

First, the defendant argues that a practical joke is an intentional act and, thus, a practical joke gone awry should be considered an intentional tort. In support, the defendant cites Scroggins and Shee-han. However, those cases, mentioned above, do not address whether a prank is actionable only as an intentional tort as opposed to negligence. More significantly, our supreme court “has defined an intentional tort as one in which the actor exhibits a deliberate intent to injure or engages in conduct which is substantially certain to result in injury or death.” D’Amario v. Ford Motor Co., 806 So.2d 424, 438 (Fla.2002) (citation omitted). The supreme court distinguished negligence from an intentional tort as follows:

Where a reasonable man would believe that a particular result was substantially certain to follow, he will be held in the eyes of the law as though he had intended it.... However, the knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. Thus, the distinction between intent and negligence boils down to a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid (negligence), and become[s] a substantial certainty.

Id. (citations omitted). “This substantial-certainty standard is an objective inquiry, decided as a matter of law.” Petit-Dos v. Sch. Bd. of Broward Cnty., 2 So.3d 1022, 1024 (Fla. 4th DCA 2009).

Applying those concepts here, we conclude that the plaintiffs characterization of the defendant’s alleged conduct in this case does not constitute an intentional tort under the supreme court’s “substantially certain” test. The plaintiff has not alleged or implied that the defendant deliberately intended to injure her or engaged in conduct which was substantially certain to result in injury or death. On the contrary, as the plaintiff alleges, the defendant apparently jumped into the lake first without that conduct resulting in his injury or death. Accordingly, we reject the defendant’s intentional tort argument.

Second, the defendant argues that the law does not impose a duty for anyone to prevent others from “voluntarily” harming themselves. To support that argument, the defendant cites a Texas case, Rocha v. Faltys, 69 S.W.3d 315 (Tex.App.2002). In Rocha, two fraternity brothers consumed some beer and then went to a local swimming hole. They climbed to the top of a cliff which overlooked the swimming hole. The defendant dove into the water and encouraged Rocha to do the same. Rocha, who was unable to swim, jumped from the cliff and drowned. Rocha’s estate sued the defendant for negligence. The defendant moved for summary judgment on the ground that he owed Rocha no duty. The estate argued that the defendant, by taking Rocha to the top of the cliff and encouraging him to jump while he was intoxicated and could not swim, created a dangerous situation, thus giving rise to a duty to prevent Rocha’s death.

The trial court granted the defendant’s motion for summary judgment, which the appellate court affirmed. The appellate court reasoned:

It is a basic principle of legal responsibility that individuals should be responsible for their own actions and should not be liable for others’ independent misconduct. However, if a party negligently creates a situation, then it becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of them lawful rights may be injured thereby.
[The defendant’s] act of taking [Rocha] to the top of the cliffs, in and of itself, does not give rise to a legal duty. Simply taking [Rocha], an adult man, to the location where [Rocha] could choose to engage in an allegedly dangerous activity does not constitute negligent creation of a dangerous situation....
... Nevertheless, we must look at the particular facts of a case to determine whether a duty exists. ... In holding that [the defendant’s] actions did not create a duty, we do not decide whether encouragement could ever give rise to a duty but only that on these facts a duty did not arise.
The “encouragement” alleged to create a duty in the instant ease was implicit encouragement at most.... [T]here is no evidence that [the defendant] actively encouraged, urged, pressured, forced, or coerced [Rocha] into jumping from the cliff. Rather, [the defendant] told [Rocha] that he did not have to jump if he did not want to; [Rocha] decided to jump from the cliff. Under these facts we decline to impose a legal duty on [the defendant] for negligently creating a dangerous situation.

69 S.W.3d at 321-22 (internal quotations, citations, and footnote omitted).

We find Rocha to be distinguishable from the instant case. Here, contrary to the defendant’s argument, the plaintiffs second amended complaint never suggests that she “voluntarily” jumped off the cliff. Further, according to the second amended complaint, the defendant allegedly did more than simply taking the plaintiff to the top of the cliff. The defendant allegedly ignored the plaintiffs repeated statements that she was not comfortable with the climb, and he allegedly refused to accompany her to the bottom. The defendant then allegedly tricked the plaintiff into believing that he had fallen into the water and that she should jump in an effort to save him. Such allegations, if true, would constitute evidence that the defendant actively “forced” the plaintiff to climb to the top of the cliff and then “pressured” or “coerced” the plaintiff into jumping off the cliff to save a loved one. Thus, on these allegations, we recognize a legal duty on the defendant for negligently creating a dangerous situation.

In reaching this holding, we note that the second amended complaint alleged an alternative theory that the defendant owed the plaintiff a duty of care because he was an emergency room physician and allegedly did not treat the plaintiff or obtain treatment for her. The circuit court’s order did not address that alternative theory. We reject that theory without further comment.

The plaintiffs initial brief also alleged other alternative theories which she did not present to the trial court. We have not considered those theories in this appeal. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (citation omitted); Gomez, 41 So.3d at 1070 (“In reviewing an order granting a motion to dismiss, this court’s ‘gaze is limited to the four corners of the complaint.’ ”) (citation omitted). Therefore, in remanding the case, we limit the plaintiffs theory of liability to the allegations stated in this opinion.

Reversed and remanded.

DAMOORGIAN, J., concurs.

MAY, J., concurs specially with an opinion.

MAY, J.,

concurring specially.

I concur in the majority opinion, but write to call attention to the legal paradox created by the allegations in the second amended complaint.

I agree that the plaintiff alleged the requisite elements to state a negligence claim: the defendant created a zone of risk, had a legal duty that he breached, resulting in permanent injury to the plaintiff. McCain v. Fla. Power Cory)., 593 So.2d 500 (Fla.1992). Nevertheless, the factual allegations are inherently inconsistent with the legal allegations. The plaintiff specifically alleged “trickery” — an intentional act — but wrapped it in a cloak of negligence allegations. As the trial court articulated, “[tjricking is ... pre-thought-out and that would be something in the intentional tort category....”

The query then becomes whether a party can allege that a defendant was negligent in committing an intentional act? It appears that the answer is “yes.”

The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the ease once the courthouse doors are open.

Id. at 502 (citation and footnote omitted). “[T]he proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” Id. at 504. Once the zone of risk is foreseeable, the legal duty is established and it then becomes a question of fact whether causation is foreseeable. Here, the plaintiff sufficiently alleged the defendant created a foreseeable zone of risk.

On the other hand, our supreme court “has defined an intentional tort as one in which the actor exhibits a deliberate intent to injure or engages in conduct which is substantially certain to result in injury or death.” D’Amario v. Ford Motor Co., 806 So.2d 424, 438 (Fla.2001). Here, the plaintiff alleged “trickery,” conduct substantially certain to cause the plaintiff to jump. That allegation sounds suspiciously like an intentional act, even though the defendant may not have intended for the plaintiff to be injured.

In reviewing cases from across the country, I found Rocha v. Faltys, 69 S.W.3d 315 (Tex.App.2002), to be most factually on point. There, two fraternity brothers went to the top of a cliff after consuming some beer. The defendant dove into the water first and encouraged the decedent to do the same. The decedent jumped into the swimming hole and drowned. The Texas Court of Appeals upheld a summary judgment for the defendant. The Texas court placed legal responsibility on the decedent for voluntarily participating in the dangerous activity, even though encouraged to do so by the defendant. The court found the encouragement was not substantial enough to create a duty on the part of the defendant.

While the majority opinion here finds Rocha factually distinguishable, I do not find the facts significantly different. What is different is each state’s legal approach to the issue. Texas places responsibility on the party undertaking the dangerous act, absent some substantial act by the defendant, while Florida appears to allow responsibility to be placed on a defendant, who encourages someone to take part in a dangerous act, as long as the defendant creates a foreseeable zone of risk.

The Connecticut Supreme Court reached a similar conclusion in American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 607 A.2d 418 (1992). There, the court discussed the fine line between intentional and negligent conduct.

[Ijntentional tortious conduct will ordinarily also involve one aspect of negligent conduct, namely, that it falls below the objective standard established by law for the protection of others against unreasonable risk of harm. That does not mean, however, ... that the same conduct can reasonably be determined to have been both intentionally and negligently tortious. The distinguishing factor between the two is what the negligent actor does not have in mind: either the desire to bring about the consequences that follow or the substantial certainty that they will occur. If he acted without either that desire or that certainty, he was negligent; if he acted with either that desire or that certainty, he acted intentionally.

Id. at 423 (citations omitted). In our case, the defendant is alleged to have acted with the requisite desire in trying to get the plaintiff to jump from the cliff, rendering the act intentional under Connecticut law.

If either Texas or Connecticut law were to be applied to our facts, I suggest the outcome would be different. Here, the defendant engaged in conduct, which was substantially certain to cause the plaintiff to jump, and succeeded in achieving that outcome. This seems to me, as it did to the trial judge, to be intentional. But this is not the law in Florida, which has drawn the boundaries of negligence more loosely. For that reason, I concur with the majority.

      . We are not blind to the reason for turning an intentional act into a negligence claim. Most insurance policies exclude coverage for the intentional acts of an insured. See, e.g., State Fami Fire & Cas. Co. v. Tippett, 864 So.2d 31 (Fla. 4th DCA 2003) (finding an attempt to plead negligent sexual assault cannot avoid the intentional act exclusion for conduct that is clearly intentional).

      . But see State Auto Mut. Ins. Co. v. Scroggins, 529 So.2d 1194, 1195 (Fla. 5th DCA 1988) (finding the victim's injury fell within exclusion for intentional act when defendant pulled chair out from underneath plaintiff; "The fact that an unintended serious injury resulted from the intended fall is irrelevant to the issue of coverage.”).


author: PER CURIAM.

text:
    Jeff DORIA, Appellant, v. James D. GARRISON, Ryan Shipman, and Wachovia Bank, Appellees.
    No. 4D10-213.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      Adam R. Schloss of Feingold & Kam, LLC, Palm Beach Gardens, for appellant.
    Michael J. Ingino and Charles A. More-head, III, of Moody, Jones, Ingino & Morehead, P.A., Plantation, for appellees, James Garrison and Ryan Shipman.
   PER CURIAM.

Affirmed. See Zivitz v. Zivitz, 16 So.3d 841 (Fla. 2d DCA 2009).

MAY, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Curtis L. HUBBARD, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Atlantic Coast Environmental, Appellees.
    No. 4D10-1614.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.
    Curtis L. Hubbard, Lauderhill, pro se.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee, State of Florida, Unemployment Appeals Commission.
   PER CURIAM.

We affirm the final order of the Unemployment Appeals Commission which upheld the referee’s findings that the claimant was discharged for misconduct connected with his employment. Although some of the facts were in dispute, the hearing officer is required to weigh and evaluate conflicting evidence and make findings that are entitled to deference from a reviewing court. “If the record shows that there was substantial competent evidence to support the factual findings of the appeals referee,” then this court may not make contrary findings of fact that support a different result. See Bagwell Lumber Co. v. Florida Dep’t of Commerce, 353 So.2d 1261 (Fla. 2d DCA 1978).

Here the record supports the legal conclusion that the claimant’s conduct rose to the level of misconduct connected with work under section 448.036(29), Florida Statutes (2009). The claimant was a driver for his employer. He showed up for a 7:00 a.m. shift drunk and incapable of driving the employer’s truck. Another employee blocked the claimant from driving the truck away from the job site. The office manager was called and when she arrived she noted the claimant’s glassy eyes and smell of alcohol about him. Also, the claimant was staggering. The office manager took the claimant’s car keys away from him so that he could not drive himself home. She talked with him for an hour. The hearing officer found that the “claimant told the office manager that he was very depressed, and had drunk extensively the night before, late into the morning.... The claimant himself admitted that he was drunk and thanked the office manager for not allowing [him] to drive himself.” As the hearing officer observed, the claimant “was a danger to himself and the public and subjected the employer to potential liability.” Especially because the claimant’s job was as a truck driver, his actions amounted to “[cjonduct demonstrating willful or wanton disregard of an employer’s interests” and “was a deliberate violation or disregard of standards of behavior which the employer has a right to expect of his or her employee.” § 443.036(29)(a), Fla. Stat. (2009).

Affirmed.

GROSS, C.J., WARNER and MAY, JJ., concur.


author: KNOLL, Justice.

text:
    STATE of Louisiana v. Sullivan D. HARPER and Bernard J. Harper.
    No. 2010-KK-356.
    Supreme Court of Louisiana.
    Nov. 30, 2010.

      James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Atty., Alyson R. Graugnard, Asst. Dist. Atty., for Applicant.
    Martin E. Regan & Associates PLC, Martin Edward Regan, Jr., New Orleans, Pierce & Bizal, Gary William Bizal, New Orleans, for Respondent.
   KNOLL, Justice.

1 tThis criminal case, which is in a pretrial posture, concerns the production of the witnesses for an in camera interview. Specifically, the issue is whether the District Court erred in ordering the State produce the witnesses for an in camera interview to advise the witnesses of their right to speak with defense counsel and ensure they do not possess exculpatory information, which has not yet been disclosed by the State. Defendants, Sullivan and Bernard Harper, were each charged by bill of information with violating two counts of La.Rev.Stat. § 14:27 and La.Rev. Stat. § 14:30, relative to the attempted first-degree murder of Ferd Edgar and Chavis Williams. Through discovery, defense counsel sought the correct addresses and phone numbers of two allegedly exculpatory witnesses for the purpose of locating and interviewing the witnesses. In the alternative, the defense requested the District Court conduct an in camera examination. The District Court granted defendant’s request in the alternative, ordering the State produce the witnesses for an in camera interview with the court. In its writ denial, the Court of Appeal found no abuse of the District Court’s discretion. We granted this writ to address the correctness vel non 12of the lower courts’ rulings. State v. Harper, 10-356 (La.6/18/10), 38 So.3d 312. For the following reasons, we reverse the judgment of the Court of Appeal, finding the District Court abused its discretion in ordering a pre-trial in camera interview with the witnesses under the circumstances herein.

FACTS AND PROCEDURAL HISTORY

On May 25, 2009, around 1:58 a.m., Edgar, Williams, and Jerome Suggs, along with several female friends, were standing at the intersection of Conti Street and Bourbon Street in front of the Famous Door Lounge in the French Quarter when defendants, along with their brother, Raymond, and another black male, walked through their group, “bumping into everyone.” A verbal altercation then ensued, which became physical when Bernard was struck by a member of the victims’ group. Stating “we’ll be back, we got something for ya’ll,” the defendants fled on Bourbon Street towards Canal Street, making gun-like gestures with their hands as they departed.

Concerned defendants would return, the victims hailed a taxi from a nearby taxi stand for their female companions. While helping the women into the vehicle, Edgar observed Bernard emerge from the Bourbon Street crowd, pulling a silver and black handgun from the waistband of his pants. As Bernard approached the driver’s side of the taxi, the driver fled the intersection, leaving Edgar exposed. Bernard then began firing on Edgar, who was struck a total of seven times in the area of his left leg and hip. Although Edgar tried, he was unable to draw his weapon. At some point |a during the shootout, both Sullivan and Williams joined the affray. According to his statement, Suggs retrieved Edgar’s gun and began shooting at defendants as well. Defendants then fled the scene, running down Conti Street towards Rampart Street.

Officers Joseph Jefferson and Larry Adams were on patrol in the area of Dau-phine Street and Conti Street when they heard the first round of gunshots coming from Conti Street and Bourbon Street. Running towards the sound up Conti Street, the officers observed Bernard “crouched down with his arm extended toward the intersection of Bourbon and Conti,” dropping something and “kind of making a turning movement like a simultaneous turning to run movement.” Raymond was ahead of him running towards the approaching officers. As Officer Jefferson identified himself, a second round of gunshots sounded, and Bernard fell to the ground, screaming he was hit. Bernard sustained a gunshot wound to his left arm. According to Officer Jefferson, both Bernard and Raymond were wearing black T-shirts when they were apprehended.

As Officer Adams continued towards Bourbon Street, Sullivan approached and advised the officer he had observed “a heavy build, black male, wearing a blue shirt,” later identified as Williams, as one of the shooters. Once detained, Williams alerted Officer Adams that Sullivan was the shooter, at which time Sullivan was apprehended.

|4New Orleans Emergency Medical Services were then summoned to the location, and both Bernard and Edgar were transported to University Hospital. En route to the hospital, Edgar advised Officer K. Perkins the individual next to him, Bernard, was the individual, who shot him. Witnesses on the scene positively identified Bernard and Sullivan as the two individuals who shot Edgar. Bernard and Sullivan were subsequently arrested on the charges of attempted first-degree murder.

Pertinent to the issue in this case, Officer Jefferson took the written statements of two witnesses, Timothy Perry and Susan Glatt. Perry’s unedited statement provided:

I was in the upstairs office in the Famous Door when I heard gun fire errupt[erupt] outside. I ran to the window that over-looks Conti St. and I saw 2 black males who looked to be around the age of between 18 + 25 taking their final shots in the direction of Bourbon St. They then fled on foot down Conti St. toward Rampart.
They were wearing long white T-shirts and dark colored jeans. There was height difference between the two shooters: 1 appeared to be around 6'1", slender and the other around 5'9" or 5'10" and slender as well.
The sound of the weapons being fired sounded different; one sounded like a 9 mm and the other, deeper, probably a 45.
There was a black female near the shooters running towards Bourbon St. trying to escape the incident.

Susan Glatt’s unedited statement stated:

Two black male. One had a white T-shirt on shooting towards Conti Street both running towards Rampart both had short hair one might of had a dark shirt on with dark jeans. I did not see too much after that. It happen so fast really can’t be much of that help.
Both of them where shooting towards rampart one might of shot towards Bourbon but running towards rampart.

ROn August 3, 2009, defendants appeared for arraignment and entered dual pleas of not guilty. Defendants subsequently filed motions to suppress evidence, identification, and confessions/statements, motion for production of the police/sheriff incident report of the investigation, motion for discovery and inspection, and motion for disclosure of impeaching information. On August 19, 2009, the State filed its answers to defendants’ motions. In its discovery materials turned over to the defense, the State included the New Orleans Police Department Incident Report, which contained the written statements of Perry and Glatt, as well as the witnesses’ RAP sheets.

On August 24, 2009, defendants filed a Motion for Issuance of Subpoenas to have the victims and lay witnesses subpoenaed to appear in court for an interview with the defense. In response, on September 15, 2009, the State filed a Motion to Prohibit Victims and Witnesses from Being Compelled to Testify at any Pre-trial Hearings and subsequently a Motion to Quash Subpoenas. On November 12, 2009, the District Court granted the State’s motion to quash.

On December 4, 2009, the defendants filed a Motion for Disclosure of all Brady Material, seeking “[a]ny and all statements of Timothy Perry and Susan Glatt that are exculpatory in nature as to the defendant, Bernard Harper” and their addresses and phone numbers. The defense explained:

The police report clearly reflects that Timothy Perry’s testimony will be exculpatory to the defendant, Bernard Harper. Timothy Perry described the shooters in this case as wearing white T-shirts. The defendant, Bernard Harper, was wearing a black T-shirt. In addition, the witness, Susan Glatt, also identified one of the shooters as wearing a white T-shirt and the other possibly wearing a dark T-shirt. The address and phone number of both witnesses has been excised in the police report to exclude from the defendant’s view the address, telephone number and | ^contact information for these two witnesses. These are not victims. They are exculpatory witnesses to the defendant, Bernard Harper. The State is intentionally withholding their addresses and phone numbers from the defendant. Undersigned counsel has requested these addresses previously and has been advised by the court that the State will make these witnesses available for trial. That is insufficient. The defendant has a right to investigate the case and interview these witnesses prior to trial. The court’s failure to order the State to provide the defendant with the addresses and phone numbers of these witnesses prevents the defendant from properly preparing for trial. It would be ineffective assistance of counsel for undersigned counsel not to interview these witnesses prior to calling them as witnesses in a trial. The State’s refusal to provide the defendant with the full address and phone number of these witnesses effectively prevents undersigned counsel from interviewing said witnesses prior to trial creates unnecessary uncertainty concerning their testimony.

Defendants again requested the addresses and phone numbers of Perry and Glatt in their Supplemental Memorandum in Support of Motion for Disclosure of all Brady Material filed on January 12, 2010, explaining:

The State does not have the right to deny the defendant an opportunity to speak to these exculpatory witnesses. If these witnesses do not want to speak to the defense then the defendant should hear that from the witnesses. The defendant should have the opportunity to speak to these witnesses without interference by the State. Previously the State indicated these witnesses do not wish to speak to the defense. The defense does not rely upon the State’s assertions. The defense would ask for the opportunity to speak to these witnesses well before trial or in the alternative would ask that the court conduct an in camera examination of these two exculpatory witnesses to determine whether or not they have an objection to speaking to the defense. (Emphasis added).

During the motion hearing held on January 28, 2010, the defense orally argued:

[TJhere are two witnesses who identified the individuals who were involved in the shooting were wearing different colored T-shirts than [Defendants] were wearing. And their names are in the Record. The State has — they are clearly exculpatory to the defense. I had asked for their contact information so that we could discuss it with them.... I believe that the address and phone numbers are Brady material.

The State, in turn, argued this information was not exculpatory because one of the witnesses fired back in self-defense and there were more than two shooters. The State further explained this information was not necessarily exculpatory evidence and 17the defense was mischaracter-izing the evidence.

On February 1, 2010, the State filed a Motion to Prohibit Witnesses from Being Compelled to Appear, and on February 3, 2010, the District Court rendered its written ruling:

The State has objected to the court’s order that they produce the victim and witness for an in camera interview by the court on February 19, 2010. The Court’s purpose in this interview is two fold: first, to verify that they have been advised of their right to speak to defense counsel, and second, that they do not have exculpatory information which has not yet been disclosed to defense counsel. At no time will the victim’s [sic] and witnesses be required to testify at a hearing, nor will they be confronted by defense counsel. This court will take every precaution to protect the witnesses in question. expressed concern over a description discrepancy inherent in the police reports and witness statements. It is these discrepancies that the defense would like to explore. The State argues that there is an explanation which may or may not be true, but is not readily apparent from the record as it stands right now. In order to protect everyone’s interest, this court feels the in camera interview is appropriate. This type of interview has been sanctioned by the Louisiana Supreme Court. State v. Golden, 95-0288 (La.2/17/95), 650 So.2d 237. Therefore, the State’s motion to prohibit the witnesses to appear is DENIED.

The State argues that the defense has not met any burden to justify this action by the court. However, the defense has

In an Amended Ruling, the District Court restricted “the in camera interviews to the witnesses only” and further explained the interviews were necessary “[b]ecause of conflicting claims by both sides, claims made at bench conferences and credibility issues from both sides.”

The Court of Appeal, Fourth Circuit, denied the State’s application for emergency supervisory writ and its request for a stay, reasoning:

We do not find the trial court abused its discretion in ordering a pre-trial in camera hearing with the witnesses and victim in this jury trial case set for 8 March 2010. As the Supreme Court recently stated:
The right of confrontation contained in the United States and the Louisiana Constitutions is not implicated in this pre-trial matter. See State v. Harris, 08-2117, p. 1 (La.12/19/08), 998 So.2d 55, 56. Moreover, the Louisiana Constitution protects the rights of victims of crime to refuse to be interviewed by the accused. La. IsConst. art. I, § 25. Accordingly, La. Rev.Stat. § 46:1844(0(3) provides that a defendant must show “good cause” at a contradictory hearing with the district attorney why a crime victim should be subpoenaed to testify at any pre-trial hearing.
State v. Taylor, 09-2341 (La.2/5/10), 26 So.3d 776.
In this case, unlike Taylor, it is the trial court, not the defendants or their counsel, that will be participating in the hearing. La. R.S. 46:1844 is not impacted because of the absence of the defendants or their counsel.

State v. Harper, 10-231, p. 1 (La.App. 4 Cir. 2/17/10).

LAW AND DISCUSSION

As the pleadings demonstrate, the core issue underlying this matter is whether the State is required by law to provide the defendants with the witnesses’ contact information during the discovery phase of the proceedings to aid defendants in locating and, in turn, interviewing allegedly exculpatory witnesses before trial. It logically follows, therefore, in resolving this issue, this Court must examine the constitutional duties of both the State and the defense, which arise under our adversarial system of criminal justice, namely the duty to disclose exculpatory evidence and the equally important duty to investigate, in order to determine whether the District Court superseded its authority as an impartial arbiter in ordering the production of the witnesses for an in camera interview.

In accordance with the due process clause of the Fourteenth Amendment to the United States Constitution, the State must disclose evidence which is favorable to the defense when “the evidence is material either to guilt or to punishment” or impeaches the testimony of a witness where “the ‘reliability [or credibility] of a given witness may well be determinative of guilt or innocence.’ ” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). “[E]vi-dence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); see also, State v. Rosiere, 488 So.2d 965, 970 (La.1986). “A ‘reasonable probability1 is a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; see also Rosiere, 488 So.2d at 970-71. Contrarily, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agwrs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). “Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” Bagley, 473 U.S. at 675, 105 S.Ct. at 3380. Significantly, because the prosecution “alone can know what is undisclosed,” it is “assigned the consequent responsibility to gauge the likely net effect of all such [favorable] evidence [unknown to the defense] and make disclosure when the point of ‘reasonable probability1 is reached.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995).

Except as expressly provided by statute, Louisiana law does not authorize the disclosure of reports, memorandums, or other internal state documents, which are made by the district attorney or agents of the State, nor is the defendant entitled to witnesses’ statements made to the district attorney or agents of the State. La.Code Crim. Proc. art. 723; State v. Cobb, 419 So.2d 1237, 1241 (La.1982); State v. Ates, 418 So.2d 1326, 1328 (La. 1982). A defendant is, however, entitled to inspect and copy tangible items, including documents, books, and papers, which are within the State’s control and which are favorable to the defendant or are intended for use by the State as evidence at trial. La.Code Crim. Proc. art. 718; Cobb, 419 So.2d at 1241. 1 Accordingly, “[t]he defendant may not be denied exculpatory statements made by a witness other than the defendant provided the statement is material and relevant to the issue of guilt or punishment.” Ates, 418 So.2d at 1328.

A defendant’s request for such material must be specific and relevant. State v. Davenport, 399 So.2d 201, 202-03 (La.1981). Where a specific request is made and “the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge.” Agurs, 427 U.S. at 106, 96 S.Ct. at 2399; Ates, 418 So.2d at 1328. To determine the nature of the requested material, the trial court may conduct an in camera inspection. La.Code Crim. Proc. art. 718; Cobb, 419 So.2d at 1241; Ates, 418 So.2d at 1328-29. A defendant will nevertheless be denied such an inspection where the State has denied possession of the specific information requested and the defendant has made no contrary showing. Cobb, 419 So.2d at 1241; Davenport, 399 So.2d at 203.

Louisiana jurisprudence has also consistently held a defendant is generally not entitled of right to the names, addresses, and telephone numbers of witnesses in the absence of extraordinary circumstances. State v. Weathersby, 09-2407, p. 2 (La.3/12/10), 29 So.3d 499, 501; State v. Jackson, 608 So.2d 949, 957 (La.1992); State v. Loyd, 425 So.2d 710, 718-19 (La. 1982); State v. Walters, 408 So.2d 1337, 1339 (La.1982). Disclosure may be warranted, however, with a “determination that there exist peculiar and distinctive reasons why fundamental fairness dictates discovery.” Weathersby, 09-2407 at pp. 2-3, 29 So.3d at 501; State v. Washington, 411 So.2d 451, 451 (La.1982). Still, even in extraordinary circumstances, witnesses should only be “made available” to the defense if the trial court after conducting an in camera interview finds they possess exculpatory information. State v. Golden, 95-0288, 1 (La.2/17/95), 650 So.2d 237, 238.

Nevertheless, the State’s constitutional obligation to disclose exculpatory evidence does not relieve the defense of its obligation to conduct its own investigation and prepare a defense for trial as the State is not obligated under Brady or its progeny to furnish defendant with information he already has or can obtain with reasonable diligence. State v. Kenner, 05-1052, p. 2 (La.12/16/05), 917 So.2d 1081, 1081 (citing United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988)); see also, Michigan v. Harvey, 494 U.S. 344, 348, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990) (“The essence of [defendant’s] right [to assistance of counsel for his defense] ... is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.”). It follows, therefore, “ ‘[t]here is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.’ ” State v. Hobley, 98-2460, p. 25 n. 10 (La.12/15/99), 752 So.2d 771, 786 (quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)), cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000). As the United States Fifth Circuit Court of Appeal has noted:

Regardless of whether the request was specific or general, and regardless of whether the evidence was material or even exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.
The constitutional requirement of due process mandates that the defendant have a right to a fair trial. The prosecutor’s duty not to suppress material information favorable to defendant flows from his office as representative of the Government’s interest in and due process obligation to justice. Truth, justice, and the American way do not, however, require the Government to discover and develop the defendant’s entire defense .... In no way can information known and available to the defendant be said to have been suppressed by the | ^Government.

United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980) (citations omitted). Moreover, the State has, “of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor,” and there is no corresponding “constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Agurs, 421 U.S. at 106-09, 96 S.Ct. at 2399-2400; see also Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972).

Significantly, we note the purpose of Brady “is not to displace the adversary system as the primary means by which truth is uncovered.” Bagley, 473 U.S. at 675, 105 S.Ct. at 3879-80. We further recognize the State and the defense in their adversarial roles are charged with equally encompassing duties, and it is the diligent performance of the State’s duty to disclose and the defense’s duty to investigate that successfully advances this “quest for truth.” State v. Hammier, 312 So.2d 306, 310 (La.1975). Moreover, only when the principles of fundamental fairness so dictate will a trial court be called upon to intervene in the performance of these duties “to ensure that a miscarriage of justice does not occur.” Bagley, 473 U.S. at 675, 105 S.Ct. at 3380; see also Golden, 95-0288 at p. 1, 650 So.2d at 238.

In the present case, both the State and the defense allege the other side has failed in the performance of its constitutional duties. On the one hand, the defendants argue they are entitled of right to Perry’s and Glatt’s contact information because once the defense specifically requests contact information, which is already in the police report, of clearly exculpatory witnesses, then that information has to be turned over to the defense by the State. The State, on the other hand, argues it has more than fulfilled its duty under Brady and the defense has simply failed to exercise due [^diligence in the performance of its “ordinary” duty to investigate. The District Court in an effort clearly meant to appease both sides and protect the witnesses’ privacy interjected itself into the adversarial system, seeking to discover outside the presence of the defense whether the witnesses possess any exculpatory evidence. We find, however, this interjection was improper under the circumstances of this case.

In response to defendants’ requests for discovery, the State, in our view, was generous in disclosing information to the defense and exceeded its obligation arising under Brady and its progeny. The State provided substantial responses to defendants’ request, which significant to this issue included the police reports from this incident, the unre-dacted statements of Perry and Glatt, and their RAP sheets. With this identifying information, the defendants through the exercise of reasonable diligence should be able to locate these individuals prior to trial. The defense has not, however, successfully demonstrated how during the discovery phase of the proceedings its failure to locate the witnesses constitutes an exceptional circumstance or a peculiarly distinctive reason why fundamental fairness dictates discovery of the witnesses’ contact information or their production, particularly in light of the State’s disclosure of their identities and their allegedly exculpatory statements. We find simply stating defendants have a right to conduct interviews with these witnesses regarding a potential discrepancy in T-shirt colors does not satisfy this burden. Accordingly, we find, during the discovery phase and absent exceptional circumstances, the District Court abused its discretion in ordering the production of these witnesses. The State has thus far satisfied its obligations under Brady, and the defense has failed to present any exceptional circumstances or peculiar distinctive |14reasons why fundamental fairness dictates the witnesses’ production, much less the discovery of their contact information, during the discovery phase of the proceedings.

Moreover, we find nothing of record which would either support or require the production of the witnesses merely to advise them of their right to speak with defense counsel. During a pre-trial hearing, the State confirmed it had spoken with the witnesses, who conveyed their desire not to speak with defense counsel. Not wishing to rely on the State’s assertion in this matter, the defense sought to hear directly from the witnesses. However, nothing indicates and no one has argued the State has directed these witnesses not speak with defense counsel. Accordingly, in the absence of any allegations of such explicit prosecutorial misconduct, no remedial measures, such as an in camera interview, are necessary at this point. See contra, State v. Hammler, 312 So.2d 306, 309 (La.l975)(finding prosecutor’s conduct in explicitly directing the witnesses not to speak to defense attorneys significantly interfered with the defendants’ constitutionally guaranteed right to effective counsel by denying their counsel the opportunity to adequately prepare a defense and the trial court erred in denying a motion to compel the witnesses to speak with defense counsel as a means of correcting the State’s misconduct).

Finally, we find the District Court’s reliance on State v. Golden, 95-0288 (La.2/17/95), 650 So.2d 237, in ordering the production of the witnesses for an in camera interview is misplaced. In Golden, the defense sought the identification of an undisclosed individual, who assisted the police in unlocking a lawfully seized safe 115containing the narcotics, which the defendants were charged with possessing. The State stringently contested the revelation of the individual’s identity, given the individual’s fear of retaliation. In response to the State’s refusal, the trial court ordered the State produce the witness and provide defense counsel with the opportunity of interviewing him before trial. This Court vacated that ruling and ordered the trial court conduct an in camera interview of the prospective witness to determine whether the witness possessed or had access to any evidence, which may have been exculpatory. Only upon such a finding would the State then be ordered to “make the[] individual ] available to the defendants.” Golden, 95-0288 at p. 1, 650 So.2d at 238.

Contrarily, in the instant case, the State has provided defendants with the identity of the witnesses and all the information related to the allegation that their statements could be exculpatory by turning over discovery materials to the defendants, namely the police report, the witnesses’ statements, and their RAP sheets. Therefore, Golden, in which the defense lacked the identity and statement of a potentially exculpatory witness, is clearly distinguishable from the instant case, wherein the defense possesses both the identity and statements of the allegedly exculpatory witnesses. Consequently, we find the in camera procedure sanctioned by the Golden court and adopted by the District Court is not applicable herein.

|1fiIn conclusion, we find, during the discovery phase and in the absence of a showing of exceptional circumstances or peculiarly distinctive reasons why fundamental fairness dictates the production of the witnesses for an in camera interview, the District Court abused its discretion in ordering their production. Moreover, we find the District Court further abused its discretion in ordering their production when the record contains no evidence the State explicitly or otherwise directed the witnesses not speak with defense counsel. Finally, we find the District Court abused its discretion in adopting the in camera procedure set forth in Golden given the State’s disclosure of the witnesses’ identity and allegedly exculpatory statements. Therefore, we reverse the appellate court’s affirmation of the District Court’s ruling, ordering the production of the witnesses, Perry and Glatt, for an in camera interview, and remand for further proceeding.

DECREE

For the reasons herein, we reverse the judgment of the court of appeal and remand this matter for further proceedings. The stay of proceedings issued by this Court is hereby lifted.

REVERSED; REMANDED TO DISTRICT COURT; STAY LIFTED.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Cath-erme D. Kimball.

      . On February 18, 2010, this Court granted the State’s request to stay all proceedings in this matter pending further orders of this Court.

      . We note at the outset this matter is before us in a pre-trial posture. Therefore, the facts are still sketchy and any information provided herein is gleaned from the pre-trial hearings, the police reports, and various statements of the victims, witnesses, and defendants.

      . Edgar was shot twice in the hip and once in the scrotum, ankle, thigh, buttocks, and lower abdomen.

      . According to Raymond's statement, the gun battle only began when Williams pulled out his weapon and started shooting. Williams carried a special officer’s permit, which allowed him to have a concealed firearm on his person. Officers on the scene confiscated "a Glock model 23 .40 caliber black in color” handgun from Williams.

      . Interestingly, although Suggs stated he placed Edgar’s "gun back in [Edgar's] pocket” after the shootout, the gun was not located on the scene. Rather, Edgar’s mother brought the gun, "a Taurus model PT140 .40 caliber silver in color,” to the police station two days later.

      . Officer Jefferson testified during the November 6, 2009 motions hearing he did not "see Sullivan Harper.”

      . Officers located "a Raven Arms Model MP25, .25 caliber handgun black in color with a brown handle” in the street near the curb located directly in front of the location of 811 Conti Street where Officer Adams apprehended Sullivan. A second handgun, "a Smith and Wesson model SW40VE .40 caliber with a black frame and silver slide” was located in the trash can directly in front of the location of 833 Conti Street, where Bernard was apprehended by Officer Jefferson. A total of nineteen spent casings were located on the scene. Twelve spent casing were of .40 caliber and seven were of .25 caliber. A black T-shirt was also located in the driveway of 833 Conti Street.

      . Sullivan is 5'09" and 130 lbs., and Bernard is 5'09" and 142 lbs. Defendants were eighteen and nineteen years of age, respectively.

      . Although only Bernard filed this motion and all subsequent motions, Sullivan orally joined in each motion.

        .Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . According to counsel’s argument to this Court, the defense thus far has unsuccessfully attempted to subpoena the witnesses, has visited the Famous Door where they "may have been employees” at the time of the shooting, and has now hired a private investigator.

        . In the January 28, 2010 hearing, defense counsel argued:
      And I don't think that we have to rely on the State's assertion that these people don't want to talk to us. Because I don't know what the State told these people before she said do you want to talk to the defense. I think we should have an opportunity to talk to them and hear from them personally or from an investigator if they want to talk to us or if they don't want to talk to us.

      . Moreover, defense counsel was able to cross-examine Officer Jefferson during the November 6, 2009 motions hearing about his discussion with Perry regarding the “white T-shirts” statement, and Officer Jefferson stated on the record Perry was adamant in his recollection of the T-shirts’ color, as evident in the following dialogue between defense counsel and the officer:
      Q. Did you question him about that since Mr. Bernard Harper was wearing a black T-shirt?
      A. Yes. I asked him was he sure, I didn’t mention Bernard or anybody else. I asked him was he sure, he said yeah, he saw two guys with white T-shirts running.
      Q. And he stated to you that those two males wearing white T-shirts took their final shot before they ran in the direction of Bourbon, correct?
      A. Yes.


text:
    FOUNDATION MATERIALS, INC. v. CARROLLTON MID-CITY INVESTORS, L.L.C., et al.
    No. 10-OC-2408.
    Supreme Court of Louisiana.
    Jan. 14, 2011.
   PER CURIAM.

11 Granted. The court of appeal erred in dismissing the appeal based on deficiencies in the record. See La.Code Civ. P. art. 2161. Accordingly, the judgment of the court of appeal is vacated, and the case is remanded to the court of appeal for further proceedings.

       Chief Justice Kimball not participating in this opinion.

      . We acknowledge plaintiff has filed a motion to dismiss the appeal on the ground the judgment at issue was not designated as a final judgment pursuant to La.Code Civ. P. art. 1915(B). Because the court of appeal did not reach the merits of this motion, we express no opinion on it. The court of appeal may consider the motion on remand.


author: ROLAND L. BELSOME, Judge.

text:
    Marcus STEINFELDS v. David VILLARUBIA And Degas House.
    No. 2010-CA-0975.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 15, 2010.

      James F. Willeford, Reagan L. Toleda-no, Willeford Law Firm, New Orleans, LA, for PlaintiffAppellant.
    W. Patrick Klotz, Klotz & Early, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

liPIaintiff, Marcus Steinfelds, appeals the judgment of the Office of Workers’ Compensation (“OWC”), granting a motion for summary judgment in favor of defendants, David Villarrubia and Degas House, L.L.C., and denying plaintiffs cross-motion for summary judgment, thereby dismissing plaintiffs workers’ compensation claim with prejudice. For the reasons that follow, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Plaintiff filed a Disputed Claim for Compensation against defendants asserting that on January 21, 2008, he severely injured his ankle when he fell from scaffolding while performing carpentry work at the Degas House. The Degas House, a historic museum/guest house, is operated by Degas House, L.L.C. Mr. Villarrubia is the sole member of Degas House, L.L.C. and he is the sole owner of the property.

Simultaneous with the filing of the workers’ compensation claim, plaintiff filed a tort suit in the Civil District Court against Mr. Villarrubia and his insurer, alleging that plaintiff was an invitee to defendants’ property and that his injury was |2caused by the defective and ruined condition of the premises. The action makes no mention of an employment relationship. That suit is still pending.

Defendants filed a motion for summary judgment on the basis that plaintiff could not satisfy his evidentiary burden of proof at trial because he offered no evidence to show that he was an employee of defendants. In support of the motion for summary judgment, defendants relied on the judicial confession made by plaintiff in the tort suit.(wherein he claimed only to be an invitee) and on statements of fact made by Mr. Villarrubia in his deposition.

Plaintiff filed a cross motion for summary judgment asserting that he was entitled to workers’ compensation either as an employee of defendants or as an independent contractor performing manual labor in the ordinary course of defendants’ businesses. In support of his cross motion for summary judgment, plaintiff also relied on Mr. Villarrubia’s deposition testimony.

Mr. Villarrubia explained in his deposition that the Degas House property consists of two adjoining buildings, 2300 and 2306 Esplanade Avenue in New Orleans. The building located at 2306 houses the Degas House museum/guest house. The building located at 2300 contains Mr. Vil-larrubia’s office, from which he runs the Degas House and manages his commercial real estate holdings. The building at 2300 also contains commercial spaces, which Mr. Villarrubia rents out. Mr. Villarubia also lives on the property. Plaintiff was injured while performing repairs to 2300.

Mr. Villarrubia testified that he personally hired plaintiff, on the recommendation of one of his painters, to replace some rotten boards on the ceiling of the rear porch at 2300. He stated that he hired plaintiff as an independent contractor to perform the work for a set price of $500.00, to be paid upon | scompletion of the job. Mr. Villarrubia explained that he provided the replacement boards, but plaintiff was responsible for all of his own materials, tools, and equipment. Mr. Vil-larrubia stated that he did not give plaintiff a deadline (plaintiff indicated the project would take five to six days) and he did not tell plaintiff when to come to work or how to perform the work. He further explained that plaintiff requested an additional $50.00 to cover the cost of renting scaffolding. Mr. Villarrubia agreed, even though he considered the cost of any equipment to be included in the price of the job. Plaintiffs fall from the scaffolding, which occurred on the second day of the job, is not in dispute.

Mr. Villarrubia testified that he had two regular employees, one that worked in the office and one that worked in the Degas House. Other office personnel had been employed off and on. He stated that he had a general maintenance man who worked on call, mainly to handle air conditioning and electrical issues. Mr. Villarru-bia further stated that he hired his own subcontractors, rather than use a general contractor, to make repairs to the buildings when needed. Mr. Villarrubia occasionally performed some of the work himself.

On March 8, 2010, after hearing argument of counsel and considering the record, the OWC granted summary judgment in favor of defendants and denied plaintiffs cross motion for summary judgment, finding that plaintiff was not entitled to workers’ compensation because he was “not an employee.” Plaintiffs timely appeal followed.

STANDARD OF REVIEW

Ordinarily, in workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Construction, 2003 1051, p. 7 (La.7/6/04), 879 So.2d 112, 117; See also MacFarlane v. Schneider Nat. Bulk Carriers, Inc., 2007-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188. However, because the issues before us have been raised in a summary judgment proceeding, we must review the ruling de novo, using the same criteria applied by the OWC. Caoral v. Winn-Dixie Louisiana, Inc., 2005-1482, p. 4 (La.App. 1 Cir. 6/9/06), 938 So.2d 799, 801; Guidry v. Stabil Drill Specialist, 2005-1562, p. 3 (La.App. 3 Cir. 5/3/06), 929 So.2d 814, 816.

In Lingoni v. Hibernia Nat. Bank, 2009-0737, pp. 4-5 (La.App. 4 Cir. 3/3/10), 33 So.3d 372, 375, this Court reiterated the standard of review on a motion for summary judgment as follows:

Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends. An appellate court reviews a district court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment. Under this standard, summary judgment shall be granted 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.

Id. (citations omitted).

LAW AND ANALYSIS

In reviewing workers’ compensation cases a court should construe the Louisiana Workers’ Compensation Act with an end to including a worker within its ambit of protection. Rush v. Employers Nat. Ins. Co., 598 So.2d 603, 605. (La.App. 4 Cir.1992).

In the instant appeal, plaintiff argues that the OWC erred in failing to find that plaintiff was entitled to workers’ compensation either as an employee or as an independent contractor performing manual labor that is part of the principal’s trade |sor business pursuant to La. R.S. 23:1021(7). For the reasons set forth below, we find merit in plaintiffs argument.

The OWC judge determined that plaintiff was not entitled to workers’ compensation because he was not an employee of defendants. However, it is evident from the record that the OWC judge failed to address whether plaintiff was entitled to workers’ compensation pursuant to the “manual labor exception” for independent contractors set forth in La. R.S. 23:1021(7). Our de novo review of the record will address whether plaintiff is entitled to workers’ compensation as either an employee or as an independent contractor under the manual labor exception.

Judicial Admission:

At the outset, we note from the transcript of the proceedings that the OWC judge rejected defendants’ argument that plaintiff should be bound by the judicial admission (that plaintiff was an invitee rather than an employee) made in connection with his tort action. We find no error in that determination.

A judicial confession is a declaration made by a party in a judicial proceeding. It constitutes full proof against the party who made it, is indivisible, and may be revoked only on the ground of error of fact. La. C.C. art. 1853. However, in Alexis v. Metropolitan Life Ins. Co., 604 So.2d 581 (La.1992), the Louisiana Supreme Court considered whether plaintiffs allegation in his workers’ compensation suit that he was disabled as a result of a work-related accident constituted a judicial admission against him in a subsequent suit wherein he sought benefits under an insurance policy. The Court determined the allegation in the | ^earlier workers’ compensation suit was not a judicial admission with conclusive effect in the later proceeding. The Court stated:

The Louisiana jurisprudence is clear that such an “extra-judicial” confession does not bind the claimant in subsequent litigation. The party who has made such an admission in a previous suit is not barred from denying the facts contained in that admission in a subsequent suit, unless the adverse party has been prejudiced by his reliance upon that admission. Rather, the admission is to be given the probative value it deserves as an admission of the party who made it.

Id., at 582 (citations omitted). See also Bellard v. Castille, 99-1161, p. 4 (La.App. 3 Cir. 12/8/99), 759 So.2d 789, 792.

Employment Status:

Ordinarily, an employee’s exclusive remedy against his employer for an on-the-job injury is workers’ compensation. La. R.S. 23:1032. La. R.S. 23:1044 provides that “[a] person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter,” thereby creating a statutory presumption of employment status. Hillman v. Comm-Care, Inc., 2001-1140, p. 6, (La.1/15/02), 805 So.2d 1157, 1161.

The presumption contained in La. R.S. 23:1044 is based upon the employer/employee relationship, “the essence of [which] is the right to control.” Hillman, 2001-1140, p. 8, 805 So.2d at 1162. The four primary factors evidencing the right to control are: 1) selection and engagement; 2) payment of wages; 3) power of dismissal; and 4) power of control. Id. None of these factors alone is determinative of an employer/employee relationship. Rather, the totality of circumstances must be considered. Tate v. Progressive Sec. Ins. Co., 2008-0950, p. 8 (La.App. 4 Cir. 1/28/09), 4 So.3d 915, 920.

The alleged employer bears the burden of proof in overcoming the presumption set forth in La. R.S. 23:1044 and showing that a worker was not his ^employee for workers’ compensation purposes. Campora v. Falstaff, L.L.C., 2001-2014, p. 3 (La.App. 4 Cir. 6/12/02), 823 So.2d 389, 391. “An alleged employer can rebut this presumption by either (i) establishing that the services were ‘not pursuant to any trade, business, or occupation (e.g., construction of one’s private residence)’; or (ii) establishing that ‘the individual was performing services but was doing so as an independent contractor.’ ” Whitlow v. The Shreveport Times, 2002-1215, p. 2 (La.App. 3 Cir. 4/23/03), 843 So.2d 665, 667, citing 1 Denis Paul Judge, Louisiana Workers’ Compensation, § 7:6.

The distinction between employee and independent contractor status is a factual determination, made on a case-by-case basis, taking into consideration the total economic relationship between the parties and the various factors weighing either in favor of or against an employer-employee relationship. Course v. Fox Wolff Const., 2008-0058, p. 4 (La.App. 5 Cir. 5/27/08), 987 So.2d 277, 280. In determining whether the relationship is one of principal and contractor, the courts consider the following factors: 1.) There is a valid contract between the parties; 2.) The work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; 3.) The contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered; 4.) There is a specific price for the overall undertaking; and 5.) Specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach. Id., citing Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972).

Un the present case, it is undisputed that plaintiff was hired to perform a single project for an agreed upon duration and specific price. Moreover, Mr. Villarrubia’s statements that: 1) he provided no tools, equipment, or materials (other than the replacement boards) to plaintiff; 2) he exercised no control over how or when plaintiff performed the work; and 3) he did not direct or supervise plaintiffs work, are uncontroverted. Applying the factors set forth in the jurisprudence to determine employment status, we find the evidence clearly demonstrates that plaintiff was acting as an independent contractor. Accordingly, we find no error in the OWC’s determination that plaintiff was not defendants’ employee. However, the analysis does not end there. We must now address whether plaintiff came within the manual labor exception of La. R.S. 23:1021(7), which would allow plaintiff to qualify for workers’ compensation.

La. R.S. 23:1021(7) allows workers’ compensation coverage for a certain type of independent contractor engaged in manual labor for a substantial part of the work time (and La. R.S. 23:1032 allows tort immunity to that type of independent contractor’s “employer”). Moss v. Tommasi Const, Inc., 2009-1419, p. 8 (La.App. 3 Cir. 5/5/10), 37 So.3d 492, 498; Flenilcen v. Entergy Corp., 2000-1824 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175. La. R.S. 23:1021(7) provides, in pertinent part:

“Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

|aIn 13 H. Alston Johnson III, Louisiana Civil Law Treatise: Workers’ Compensation Law And Practice [Malone & Johnson] § 71 at 126 (3d ed.1994), it is noted that the determination of the status of independent contractor has been a difficult one. Employers may label certain employees as independent contractors in order to avoid paying compensation. Id. The author opines that the 1948 amendment to La. R.S. 23:1021(6) [now La. R.S. 23:1021(7)] was designed to address this problem by allowing certain independent contractors to receive compensation “who spent a substantial portion of the work time carrying out the contract in manual labor.” Id. at 126 n. 3. “Thus, it is the substance of the relationship and not the label used which determines whether an independent contractor recovers workers’ compensation benefits.” Fleniken, 2000-1824, p. 21, 780 So.2d at 1190.

In Lushute v. Diesi, 354 So.2d 179, 182 (La.1977), the Louisiana Supreme Court held that in order for an independent contractor to be covered under the “manual labor exception”, he must show that a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is part of the principal’s trade business or occupation. (Emphasis added). See also Miller v. Higginbottom, 33,594, p. 6 (La.App. 2 Cir. 6/21/00), 768 So.2d 127, 131; Guidry v. Gueydan Co-op. Dryer, Inc., 97-874, p. 4 (La.App. 3 Cir. 12/10/97), 706 So.2d 146, 150 (on rehearing). Moreover, the jurisprudence has uniformly defined “manual labor” as work where the “physical” element predominates over the “mental” element. Riles v. Truitt Jones Construction, 94-1224 (La.1/17/95), 648 So.2d 1296, 1300.

In this case, plaintiffs work as a carpenter (replacing and painting rotten boards) was entirely physical in nature. Thus, there is no question that the work | ^plaintiff was engaged in was a type in which the physical element predominated over the mental as set forth in Riles. The only remaining question is whether the work performed by plaintiff at the time of his accident was part of defendants’ trade, business or occupation.

The only statutory definition for what work is to be considered a part of the “principal’s trade, business, or occupation” is found in La. R.S. 23:1061 (dealing with statutory employment status and providing guidance as to when a contractor’s employee, rather than the contractor himself, may recover under the principal’s workers’ compensation liability). See Miller, 33,-594, p. 7, 768 So.2d at 132; Guidry, 97-874, p. 4, 706 So.2d at 150. La. R.S. 23:1061(A)(1), as amended in 1997, now provides that “work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” It is generally recognized that the definition provided in the 1997 amendment to La. R.S. 23:1061 mandated a more liberal interpretation of the statutory employer relationship. Prejean v. Maintenance Enterprises, Inc., 2008-0364, p. 6 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, 780; Everett v. Rubicon, 2004-1988, p. 11 (La.App. 1 Cir. 6/14/06), 938 So.2d 1032, 1041; Loflin v. International Paper Co., 34,976, p. 2 (La.App. 2 Cir. 8/22/01), 793 So.2d 533, 535.

The determination of whether a particular activity constitutes a part of the trade, business, or occupation of a principal must be decided on the facts of each case. Tolstonog v. Muller Restaurant Supply, 430 So.2d 243 (La.App. 4 Cir. 1983).

In Fonseca v. Marlin Marine Corp., 410 So.2d 674, 677 (La.1981), the Louisiana Supreme Court stated:

We recognize that an individual may have several different businesses, and we look to the facts of each particular case to determine whether or not construction, renovation or repair work is connected with the trade, business or occupation of the employer. Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972). Generally, we have held that where the building being repaired or constructed houses the business or business equipment of the employer, or is leased by an employer engaged in the business of leasing or renting, the employee injured while working thereon is entitled to workmen’s compensation benefits. On the other hand, where the employee is injured while working on property of the employer which has no connection with the employer’s business, he is not covered by the workmen’s compensation law. (Footnotes omitted.)

In Ross v. Oak Manor Farms, 96-1070, (La.App. 5 Cir. 9/17/97), 700 So.2d 906, Dennis Ross filed a claim for workers’ compensation alleging that he was employed by defendant, Kenny Lobell, d/b/a Oak Manor Farms, as a carpenter who engaged in renovation and repair work at Oak Manor Farms. Lobell, owner of Oak Manor Farms, argued that Oak Manor Farms was his personal residence and that Ross was a subcontractor who was engaged in the renovation of Lobell’s personal home, and thus was not covered under the Louisiana Workers’ Compensation Law.

Ross testified that he was a carpenter and had worked for Lobell on several repair and renovation projects, including a saloon and apartments that Lobell owned in New Orleans. Lobell purchased Oak Manor Farms, which was a twenty-six acre farm with a main house, two small houses, and two large barns. Ross performed carpentry work on all of the structures. He testified that Lobell was renovating the house to live in and was renovating the barn to board his girlfriend’s horses and other horses. About four or five months before Ross’s accident, the |12main house burned. Lobell did not live in the house before or after the fire. After the fire, the main house was not rebuilt. On the day of his injury, Ross testified he had finished hanging shutters on the barn and was hanging matching shutters on the adjacent small house when he fell.

Lobell testified that his principal occupation was running the saloon in New Orleans and Ross’s activities in renovating the farmhouse were unrelated to that business. Lobell testified that his girlfriend and her friend had around eight horses in the barn at any given time, with occasional additional paying horses that belonged to their friends. He testified that the horse business did not become significant until after Ross left.

The OWC denied Ross’s claim for compensation. The appellate court reversed, ruling that the OWC was clearly wrong in finding that Ross’s work in hanging shutters on the small house and barn was not a part of Lobell’s trade, occupation or business so as to entitle him to workers’ compensation benefits. The court determined that despite his statement that his business was the saloon, Lobell clearly had the additional business of the horse boarding at Oak Manor Farms and the general preparation of the property as a commercial enterprise.

In Ross, the court noted:

For the purposes of workers’ compensation liability, if a person not in the construction business undertakes to act as his own general contractor, it does not necessarily follow as a matter of law that such a person is, or is not, in the construction business and thus liable to injured workers under the workers’ compensation law; that is a question of fact to be determined under the circumstances of each case. LSA-R.S. 23:1035; Chamberlin v. Desoto, 463 So.2d 58 (La.App. 3 Cir.1985), writ den. 466 So.2d 470 (La.1985). The test is whether the person’s services were a substantial, essential and recurring part of the defendant’s regular business. Id.

Ross,' 96-1070, p. 6, 700 So.2d at 908-909.

In Rush v. Employers Nat. Ins. Co., 598 So.2d 603 (La.App. 4 Cir.1992), plaintiff, Kermit Rush, was hired by Joseph Barreca, d/b/a Imperial Tile Company, Inc., to perform some work on a duplex owned by Barreca. Rush was paid on an hourly basis to paint the interior walls of the duplex and sweep the floors. On the second day of the job, Rush fell from a bench while painting and was seriously injured.

The trial court dismissed Rush’s tort action finding that Rush’s claim fell within the Louisiana Workers’ Compensation Act. This Court affirmed, finding Rush to be an employee of Barreca. However, pertinent to our analysis in the present case, we further held in Rush that:

Our finding that plaintiff was an employee of Barreca precludes the need for discussion of the independent contractor issue. However, we note that even if plaintiff could be considered an independent contractor, his remedy against Bar-reca would still be limited to worker’s compensation benefits because a “substantial part of his work time,” in fact, all of it, “was spent in manual labor” carrying out the terms of his contract with his principal, and this manual labor “was a part of the principal’s trade, business or occupation.” See La.R.S. 23:1021(6); Lushute v. Diesi, supra.

Rush, 598 So.2d at 607.

In the present case, defendants conducted multiple businesses from the Esplanade Avenue property. Mr. Villarrubia, as the sole member of Degas House, L.L.C., was engaged in the business of managing the Degas House, which included the operation of a bed and breakfast, as well as renting the house for weddings and other functions. It is undisputed that Mr. Villarru-bia also managed his commercial real estate holdings from the building where plaintiff was working at the time of his accident. Additionally, the building contained commercial rental units, which defendants managed. Finally, the record reflects that Mr. Villarrubia often acted as 114his own general contractor in hiring subcontractors to perform repairs and renovations as needed on the property.

It is evident from the record that defendants used the property in furtherance of the multiple businesses conducted there. It is also evident that the repair and renovation of the buildings was essential to the operation of the various businesses and was a part of defendants’ day-to-day routine.

CONCLUSION

Based on our de novo review of the record, we find that plaintiffs accident is covered under the manual labor exception to the independent contractor statute as currently interpreted by the jurisprudence. The evidence supports the conclusion that at the time of his accident, plaintiff was an independent contractor who spent a substantial amount of his time in manual labor and further, that the work performed by plaintiff was an integral part of defendants’ trade, business or occupation.

Accordingly, we find that the OWC erred in dismissing plaintiffs workers’ compensation claim. The judgment of the OWC is reversed, and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . Defendants do not have workers' compensation insurance.

      . Plaintiff's claim itemizes $168,712.78 of medical expenses incurred in connection with his ankle injury.

      . La. R.S. 23:1021(7) was previously designated as section (6) prior to the 2004 amendments to the statute.

      . The Louisiana Supreme Court in Lushute, adopted the trade, business or occupation test from La. R.S. 23:1061.