text:
    Michael LABIT and Christine Labit v. Dr. John E. COBB and Dr. Daniel J. Carroll.
    No. 10-463.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      J. Lomax Jordan, Jr., Lafayette, Louisiana, for Plaintiffs/Appellants: Michael La-bit and Christine Labit.
    Marc W. Judice, H.L. Tuten III, Judice & Adley (A Professional Law Corporation), Lafayette, Louisiana, for Defendants/Appellees: Dr. John E. Cobb and Dr. Daniel J. Carroll.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this medical malpractice case, Plaintiffs, Michael Labit and Christine Labit, appeal the trial court’s grant of summary judgment in favor of Defendants, Dr. John E. Cobb and Dr. Daniel J. Carroll, dismissing Plaintiffs’ claims. For the following reasons, we affirm.

FACTS

Mr. Labit first saw Dr. Cobb for an evaluation of his back pain on May 12, 2004, pursuant to referral from Dr. Roland Miller. Dr. Cobb noted that an April 27, 2004 MRI revealed a degenerative disc at L4-5 with protrusion. Dr. Cobb recommended that Mr. Labit undergo an anteri- or lumbar interbody fusion. On July 9, 2004, Mr. Labit signed a consent form for this procedure at Dr. Cobb’s office. On July 14, 2004, Mr. Labit saw Dr. Carroll for a pre-operative visit. Dr. Carroll was the general surgeon who was to assist Dr. Cobb with the surgery. At this pre-opera-tive visit, Mr. Labit signed a consent form at Dr. Carroll’s office.

Surgery was performed by Drs. Cobb and Carroll on July 15, 2004, at Lafayette Surgical Specialty Hospital in Lafayette, Louisiana. Due to damage to a blood vessel that occurred during the surgery, Mr. Labit incurred significant blood loss, suffered cardiac arrest, and had to be resuscitated. Following the surgery, he was transferred to The Heart Hospital of Lafayette for cardiac monitoring. An ultrasound later revealed that Mr. Labit experienced a post-operative, left lower extremity, deep venous thrombosis (“DVT”).

On July 13, 2007, Mr. Labit filed a complaint with the Louisiana Patient’s Compensation Fund, and a medical review panel (MRP) was convened. In an opinion | ¡.rendered March 5, 2009, the MRP reached the following unanimous opinion:

The evidence does not support the conclusion that either of the defendants, Dr. John E. Cobb or Dr. Daniel J. Carroll, failed to meet the applicable standard of care as charged in the complaint.

This opinion is based upon the following:

Appropriate consent was obtained for this procedure, which consent included the risk of bleeding and damage to blood vessels. Bleeding and injury to the vena cava is a recognized complication of this procedure. The complication was recognized[,] and the patient was treated appropriately. There was no cardiorespiratory arrest and no progressive respiratory arrest, as evidenced by the anesthesia record.

On June 24, 2009, Mr. Labit filed the instant medical malpractice action, alleging negligence on the part of Drs. Cobb and Carroll in performing the surgery and the failure of the doctors to disclose and/or adequately disclose the potential complications associated with the surgical procedure, namely, DVT. On September 8, 2009, Drs. Cobb and Carroll filed a Motion for Summary Judgment on the issues of breach of the applicable standard of care and informed consent. The matter was heard on December 7, 2009, and the trial court signed a judgment on December 22, 2009, granting summary judgment in favor of Drs. Cobb and Carroll, dismissing Mr. Labit’s claims. Mr. Labit appeals.

ISSUE

The overall issue presented by Mr. La-bit for our review is whether Drs. Cobb and Carroll obtained Mr. Labit’s informed consent by providing adequate disclosure of the material risks associated with his surgical procedure.

hLAW AND DISCUSSION

In the instant case, Mr. Labit asserts that DVT is a significant risk associated with an anterior lumbar interbody fusion, that this risk was well known to Drs. Cobb and Carroll, and that it was required to have been disclosed to him. Louisiana Revised Statutes 40:1299.40 governs the consent that must be obtained from a patient before a medical procedure is rendered. That statute provides, in relevant part, as follows:

A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means pursuant to R.S. 40:1299.40.1, to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is evidenced by a signature, marking, or affirmative action through electronic means, by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
E. (1) As used in this Subsection, “secretary” means the secretary of the Department of Health and Hospitals.
(2)(a) In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
|4(b) Consent to medical treatment may be evidenced according to the provisions of Subsections A and C of this Section or, as an alternative, a physician or other health care provider may choose to avail himself of the lists established by the secretary pursuant to the provisions of this Subsection as another method by which to evidence a patient’s consent to medical treatment.

La.R.S. 40:1299.40.

In the instant matter, it is undisputed that Mr. Labit executed a consent form at Dr. Cobb’s office, and a second consent form at Dr. Carroll’s office. What is disputed, however, is whether the consent forms adequately disclosed the risk of DVT.

July 9, 2004 Consent Form — Dr. Cobb

The consent form signed by Mr. Labit on July 9, 2004, at Dr. Cobb’s office, contains the following language:

Risks generally associated with any surgical treatment/procedure, including anesthesia are: death, brain damage, disfiguring scars, quadriplegia (paralysis from neck down), paraplegia (paralysis from waist down), the loss or loss of function of any organ or limb, infection, bleeding, and pain.

An attachment to the above, also signed by Mr. Labit, lists several additional risks associated with spinal operations including, but not limited to:

1. Pain, numbness or paralysis, or clumsiness.
2. Weakness of arms(s), hand(s), leg(s) or foot (feet) including paraplegia (paralysis of both arms or paralysis of both legs) and quadraplegia (paralysis of all four extremities).
7. Injury to major blood vessels.
9. Failure to reheve pain or increase in pain.
|,43. Blood clots in legs which might break off and go to lungs resulting in breathing problems, possibly death.

Additionally, the consent form contains a page entitled “ACKNOWLEDGMENT AUTHORIZATION AND CONSENT” containing, in relevant part, the following language:

(c) Particular Concerns: I have had an opportunity to disclose to and discuss with the physician providing such information, those risks or other potential consequences of the medical treatment or surgical procedure that are of particular concern to me.
(d) Questions: I have had an opportunity to ask, and I have asked, any questions I may have about the information in this document and any other questions I have about the proposed treatment or procedure, and all such questions were answered in a satisfactory manner.

Finally, just above the patient’s signature line containing Mr. Labit’s signature, the following language appears:

I have read and understand all information set forth in this document and all blanks were filled in prior to my signing. This authorization for and consent to medical treatment or surgical procedure is and shall remain valid until revoked.
I acknowledge that I have had the opportunity to ask questions about the contemplated medical procedure or surgical procedure described in item 2 of this consent form, including risks and alternatives, and acknowledge that my questions have been answered to my satisfaction.

July 14, 2004 Consent Form — Dr. Carroll

The consent form signed by Mr. Labit at Dr. Carroll’s office is virtually identical to the consent form that was signed by Mr. Labit at Dr. Cobb’s office with the exception of additional risks that were inserted by hand. The additional risks inserted by hand include “infection, bleeding, hemato-ma formation, hernia in incision, injury to nerves, bowel, ureter.”

Burden of Proof

A plaintiffs burden of proof in a medical malpractice action, based upon a | ^healthcare provider’s alleged failure to disclose or inadequate disclosure of a significant risk associated with a surgical procedure, has been summarized by this court as follows:

As in a case alleging breach of the medical standard of care, the plaintiff in an informed consent case bears the burden of proof. He must show: (1) the existence of a material risk which the physician must disclose; (2) the failure of the physician to inform the patient of a material risk; (3) the realization of the material risk; and (4) a causal connection between the failure to inform the patient of the risk and realization of the risk. Hondroulis v. Schuhmacher, 612 So.2d 859 (La.App. 4 Cir.1992) (citing Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988)); Leger [v. La. Med. Mut. Ins. Co., 98-1098 (La.App. 3 Cir. 3/31/99)], 732 So.2d 654[, writ denied, 99-1253 (La.6/18/99), 745 So.2d 30]; Ardoin v. Murdock, 97-1468 (La.App. 3 Cir. 4/15/98), 711 So.2d 837, writ denied, 98-1362 (La.7/2/98), 724 So.2d 734; Guidry v. Neu, 97-810 (La.App. 3 Cir. 12/10/97), 708 So.2d 740.

Maybrier v. La. Med. Mut. Ins. Co., 08-1508, p. 4 (La.App. 3 Cir. 6/10/09), 12 So.3d 1115, 1119, writ denied, 09-1558 (La.10/9/09), 18 So.3d 1287.

Summary Judgment

This court recently discussed the standard of review to be employed by an appellate court when reviewing a motion for summary [judgment] filed in a medical malpractice case:

A motion for summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria as the trial court to determine whether summary judgment is appropriate; whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. A motion for 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 the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that 17is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Wofford v. Dunnick, 09-1309, pp. 3-4 (La.App. 3 Cir. 4/14/10), 36 So.3d 370, 373-74 (quoting Djorghi v. Glass, 09-461, p. 2 (La.App. 3 Cir. 11/4/09), 23 So.3d 996, 998, writ denied, 09-2614 (La.2/5/10), 27 So.3d 306).

Drs. Cobb and Carroll bear the burden of proof of their entitlement to summary judgment. They do not bear the burden of proof at trial on the issue of informed consent. They are not required to negate all essential elements of Mr. Labit’s claims; rather, they must simply show an absence of factual support for one or more elements essential to Mr. Labit’s claim. See La.Code Civ.P. art. 966(C)(2). If they are successful in doing so, the burden then shifts to Mr. Labit to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id.

Having reviewed the entire record of these proceedings, we find an absence of factual support essential to Mr. Labit’s claim of lack of informed consent. Therefore, Drs. Cobb and Carroll are entitled to summary judgment as a matter of law. Specifically, based upon the evidence of these proceedings, we find that Mr. Labit is unable to establish a failure of these healthcare providers to inform him of the risk of DVT associated with the surgical procedure.

| ¿Examining the consent forms executed by Mr. Labit, we find that both of these forms are in compliance with the express provisions of La.R.S. 40:1299.40(A)(1). As required by the statute, the consent forms “set[] forth in general terms the nature and purpose of the procedure.” Id. Additionally, “the known risks” contained within the statute are listed on the forms, along with additional risks that are identified in laymen’s terms. Id. The forms also contain the requisite language that the patient “acknowledges that such disclosure of information has been made and that all questions asked about the procedure ... have been answered in a satisfactory manner[,]” which disclosure “is evidenced by a signature ... by the patient for whom the procedure is to be performed.” Id. Given that the consent forms of Drs. Cobb and Carroll are in compliance with La.R.S. 40:1299.40(A)(1), the legal presumption arises that the consent obtained from Mr. Labit is “valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.” Id.

Our Louisiana Supreme Court expounded on this rebuttable legal presumption in the often cited case of Hondroulis, 553 So.2d 398, 417 (emphasis added) as follows:

In our opinion, under the statute, (1) if it is proved that the patient signed a document purporting to warn him of a risk involved in the proposed surgery or treatment, (2) it is presumed that the patient understood and consented to encounter whatever risk a reasonable person, in what the doctor knew or should have known to be the patient’s position, would have apprehended from the written consent form, and (3) the patient cannot disprove the presumed fact except by showing that his consent was induced by misrepresentation.

In opposition to the Motion for Summary Judgment in the instant matter, although Mr. Labit maintains that he was not told of the risk of DVT, the consent forms do expressly identify the risk of bleeding, blood clots, and injury to a major |9blood vessel as being risks associated with the surgery. Additionally, while Mr. Labit contends that Drs. Cobb and Carroll failed to adequately explain the surgical procedure and the risks thereof, his signature on the consent forms, whereby he acknowledges that all of his questions were answered to his satisfaction, is contrary to this assertion. Moreover, Mr. Labit did not produce any evidence of misrepresentation on the part of the health care providers. Thus, he has failed to rebut the legal presumption that his consent to the surgical procedure is valid and effective. La.R.S. 40:1299.40; Hondroulis, 553 So.2d 398.

In addition to the consent forms themselves, Drs. Cobb and Carroll introduced the opinion of the MRP in support of their Motion for Summary Judgment. As quoted above, the MRP unanimously concluded that the “ [appropriate consent was obtained for this procedure, which consent included the risk of bleeding and damage to blood vessels.”

Based upon the foregoing, we find that Drs. Cobb and Carroll successfully met their burden of showing an absence of factual support on an essential element of Mr. Labit’s claim of lack of informed consent, i.e., the failure of the physicians to inform the patient of a material risk. Therefore, to preclude the grant of summary judgment, the burden then shifted to Mr. Labit “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial[.]” La.Code Civ.P. art. 966(C)(2).

The evidence introduced by Mr. Labit in opposition to the Motion for Summary Judgment includes his own affidavit, excerpts of medical records, excerpts of the depositions of Drs. Cobb and Carroll, an affidavit of Dr. James P. Elmes, and a medical journal article entitled Methods and Complications of Anterior Exposure of |inthe Thoracic Spine. Although Mr. Labit strenuously argues that this evidence supports his contentions that DVT is a known risk associated with the surgery and that he developed DVT as a result of the surgical procedure, this evidence is legally insufficient to establish that he will be able to satisfy his burden of proving the elements of his lack of informed consent case at trial.

The affidavit of Dr. Elmes, a board certified orthopedic surgeon, states in part as follows:

“It is my expert medical opinion that on or about July 15, 2004, Michael C. Labit underwent an Anterior Lumbar Discectomy, and experienced a left lower extremity deep venous thrombosis (DVT) secondary to that procedure. A DVT in a lower extremity can cause circulatory deficits, increased pain, and swelling of the leg. Based upon my education and experience, and upon studies and research of which I am aware, it is my opinion that DVT occurs in one to five (1-5%) percent of the cases where an anterior lumbar discectomy is performed. DVT is a significant and material risk that occurs when this procedure is performed on a patient.”

Although Mr. Labit relies on the expert opinion of Dr. Elmes, we find that a reading of the affidavit reveals no attestation by this expert “that Dr. Cobb and/or Dr. Carroll failed to disclose deep vein thrombosis or that the consent forms used by Dr. Cobb and/or Dr. Carroll were deficient in any way.” In fact, neither this affidavit, nor any evidence introduced by Mr. Labit, establishes “the failure of the physieian[s] to inform the patient of a material risk[.]” Maybrier, 12 So.3d at 1119.

Because we have found that Mr. Labit is unable to meet his evidentiary burden at trial that Drs. Cobb and/or Carroll failed to disclose a material risk associated with the surgical procedure, we pretermit any discussion of the remaining elements of Mr. Labit’s claim. Without sufficient evidence produced by Mr. Labit to establish that he will be able to prove his claim at trial, no genuine issue of material fact remains; thus, the Motion for Summary Judgment on behalf of Drs. Cobb and Carroll was 1 ] properly granted.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Dr. John E. Cobb and Dr. Daniel J. Carroll is affirmed. Costs of this appeal are assessed to Michael Labit and Christine Labit.

AFFIRMED.

      . Mrs. Labit has asserted a claim for loss of consortium. Given the derivative nature of her claim, for purposes of this opinion, we will collectively refer to the Plaintiffs’ claims as those of Mr. Labit.

      . We note that although the Motion for Summary Judgment raised both the issues of breach of the standard of care and informed consent, the only issue presented in this appeal is that of informed consent.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Keisha M. WASHINGTON.
    No. 10-413.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Asa A. Skinner, District Attorney, Lees-ville, LA, for Appellee, State of Louisiana.
    Terry W. Lambright, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Keisha M. Washington.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   AMY, Judge.

_JjThe defendant pled guilty to nine counts of issuing worthless checks and was subsequently sentenced to two years imprisonment at hard labor on one count and seven years imprisonment at hard labor on each of the remaining eight counts. The defendant appeals, challenging her sentences as excessive. The defendant’s appellate counsel has filed an Anders brief seeking withdrawal. For the following reasons, we affirm the defendant’s sentences and grant counsel’s motion to withdraw.

Factual and Procedural Background

The State alleged that the defendant, Keisha M. Washington, issued a total of twenty-two worthless checks to various payees between September 9, 2008 and March 31, 2009. On June 18, 2009, the defendant was charged by bill of information with nine counts of issuing worthless checks. The counts were separated as follows: fourteen of the twenty-two checks were accumulated into one felony count of issuing worthless checks for more than five hundred dollars, a violation of La.R.S. 14:71(C); seven of the twenty-two checks were separated into seven separate counts of issuing worthless checks for more than five hundred dollars, a violation of La.R.S. 14:71(C); and the remaining check was a separate count of issuing worthless checks for an amount over three hundred dollars, but less than five hundred dollars, a violation of La.R.S. 14:71(D). The record reveals that the total amount of these checks, including merchant and District Attorney fees, was $13,546.73. On October 28, 2009, the defendant pled guilty to all nine counts. The defendant was sentenced to serve two Ryears imprisonment at hard labor for the violation of La.R.S. 14:71(D), and seven years imprisonment at hard labor on the remaining eight counts, violations of La.R.S. 14:71(C). The sentences were ordered to run concurrently. Further, she was ordered to pay court costs and restitution to the victims named, and in the amount shown, on each bill of information. The defendant filed a motion to reconsider her sentences imposed. That motion was denied.

The defendant appeals, challenging her sentences as excessive. However, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the defendant’s appellate counsel has filed a brief stating he could find no errors on appeal that would support reversal of the defendant’s conviction or sentence. Thus, counsel seeks to withdraw.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find the sentencing minutes are in need of correction.

The sentencing hearing transcript reflects that the trial court imposed restitution in the amount cited in the bill of information for district court docket number 76646; however, this part of the sentence is not reflected in the court’s sentencing minutes. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Consequently, we order the trial court to correct the minutes of sentencing to include the imposition of restitution in the amount reflected in the bill of information in district court docket number 76646.

Excessiveness of Sentence

The defendant’s appellate counsel raises, in brief, the issue of whether the defendant’s sentences are excessive. However, he reaches the conclusion that any argument regarding the excessiveness of the defendant’s sentence in this case would be frivolous.

After review of the record, we find no merit in the defendant’s assertion that her sentences are excessive. The record reveals that the defendant is a third felony offender. At the time of these offenses, the defendant had already been placed on felony grade probation for the same type of offense, twice, and on misdemeanor grade probation, once. Although a third felony offender, her sentences, totaling fifty-eight years imprisonment, were ordered to run concurrently. Further, she did not receive the maximum ten year sentence on any of the counts. La.R.S. 14:71. Pursuant to La.R.S. 14:71(0 and (D), the defendant could have been ordered to pay up to $26,000.00 in fines; however, the trial court did not impose any fines. Accordingly, we affirm the defendant’s sentences. Anders Analysis

The defendant’s appellate counsel seeks to withdraw from representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting that he found no errors on appeal that would support the reversal of the defendant’s convictions or sentences.

|4In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the récord, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders and Benjamin, we performed a thorough review of the record, including pleadings, minute entries, the charging instrument and the transcripts. The defendant was present and represented by counsel at all crucial stages of the proceedings and entered a free and voluntary guilty plea after properly being advised of her rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Her guilty plea waived any pre-plea non-jurisdictional defects. State v. Crosby, 338 So.2d 584 (La.1976). Additionally, the defendant received a legal sentence.

We find no issues which would support an assignment of error on appeal. Therefore, counsel’s motion to withdraw is granted.

| ^DECREE

For the foregoing reasons, the defendant’s sentences are affirmed. Counsel’s motion to withdraw is granted. We order the trial court to correct the sentencing minutes to include the imposition of restitution in the amount reflected in the bill of information in the district court docket number 76646.

SENTENCES AFFIRMED. MOTION TO WITHDRAW GRANTED. THE TRIAL COURT IS ORDERED TO CORRECT THE MINUTES OF SENTENCING TO INCLUDE THE IMPOSITION OF RESTITUTION IN THE AMOUNT REFLECTED IN THE BILL OF INFORMATION IN DISTRICT COURT DOCKET NUMBER 76646.

JjORDER

After consideration of appellate counsel’s request to withdraw as counsel and the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.

      . Louisiana Revised Statutes 14:71(A)(1)(a) defines issuing worthless checks as follows:
      Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.

      . The record reveals that at the defendant’s first sentencing hearing on October 28, 2009, she was sentenced on only seven of the eight counts of violations of La.R.S. 14:71(C) because of an error in the court minutes which indicated that one of the eight counts had been dismissed. After realizing this error, the trial court sentenced the defendant on February 17, 2010, to serve seven years imprisonment at hard labor on the remaining count.


author: DECUIR, Judge. PAINTER, Judge,

text:
    CITY OF ABBEVILLE v. Terry TOUCHET.
    No. 10-425.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Ronald W. Melebeck, Attorney at Law, Abbeville, LA, for Defendant/Appellant, Terry Touchet.
    Bart J. Bellaire, Edwards & Bellaire, Abbeville, LA, for Plaintiff/Appellee, City of Abbeville.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

11 Terry Touchet appeals a judgment of forfeiture rendered against him following his conviction and sentence for aggravated assault, a misdemeanor. For the following reasons, we affirm.

While preparing for Hurricane Gustave, Terry Touchet and his neighbor, Tim Briggs, engaged in an argument over a trench dug by Briggs on their property line. Both men were standing in their respective yards, and Briggs was accompanied by his brother-in-law, Albert Hoff-pauir. The testimony shows that Touchet had a gun, a Colt 45 Government Special, in his possession. The evidence is in dispute, however, as to whether Touchet was holding the gun or it was simply nearby. The evidence is also unclear as to whether the gun was in a pouch or out in the open. In any event, Touchet did not point the gun at Briggs, nor did he fire any shots. Briggs testified that once he noticed the gun, he turned around, went inside his house, and called the police.

The investigating officer spoke to Tou-chet, then seized the Colt 45. Touchet was charged with aggravated assault, in violation of La.R.S. 14:37, and was convicted. The trial court specifically found that Tou-chet was in possession of a gun and that Briggs had a reasonable apprehension of receiving a battery from the use of the gun. Upon sentencing, the City moved for forfeiture of the gun under La.Code Crim.P. art. 891, which provides in pertinent part:

In addition to ordering the forfeiture of a firearm or dangerous weapon as crime-related contraband as otherwise provided in this Article or by any other provision of law, when a court sentences a defendant, it may order the forfeiture of any weapon used in connection with the offense or found in the possession or under the immediate control of the defendant at the time of the arrest. The court may provide for the destruction, sale, or other disposition of the weapons forfeited.

12La.Code Crim.P. art. 891(E). The trial' court granted the City’s motion, finding that Touchet’s Colt 45 was the gun used in the commission of the aggravated assault. Touchet was sentenced to two days in jail, suspended, and the payment of a $200.00 fine.

Touchet raises two assignments of error for our review. First, he asserts the City failed to prove the Colt 45 was the actual gun used in the assault or that it was in Touchet’s possession or control. He argues the gun was not introduced into evidence by the City and the testimony describing the gun was inconsistent. To the contrary, the City cites from the record Touchet’s admission that he had the gun outside with him at the time of the argument, although he stated it was in a pouch with the clip off to the side, and Touchet’s specific description of the Colt 45 seized by the investigating officer immediately following the argument with Briggs. Accordingly, we find no manifest error in the factual conclusion that the Colt 45 seized and forfeited was the same gun used in the instant offense.

Touchet next questions the applicability of La. Code Crim.P. art. 891. He contends the statute provides for forfeiture of a weapon used in the commission of a felony, not in the commission of a misdemeanor such as aggravated assault. In support of this argument, Touchet cites Paragraph A of the statute which provides for the seizure of a weapon used in the commission of a felony offense. The City relies on the comprehensive language of Paragraph E which gives a sentencing court discretion to order forfeiture of any weapon used in the commission of an offense, or in the possession or control of a defendant, in circumstances additional to those described previously in the statute.

IsThe trial court found merit to the City’s position and ordered forfeiture of the Colt 45. We find no error in the trial court’s decision. Given the inclusive and comprehensive language of Paragraph E, we believe the legislature intended to provide for the trial court’s discretion to be exercised deliberately in individual cases which warrant the seizure and eventual forfeiture of a firearm or dangerous weapon.

For these reasons, the judgment rendered by the trial court is affirmed. Costs of the appeal are assessed to the Defendant, Terry Touchet.

AFFIRMED.

PAINTER, J., dissents and assigns written reasons.

PAINTER, Judge,

dissenting.

hThe majority determines that the trial court was correct in issuing a judgment of forfeiture against Terry Touchet. I respectfully disagree, as I would find that La.Code Crim.P. art. 891 applies to felony convictions and not to misdemeanor convictions.

Louisiana Code of Criminal Procedure Article 891 reads, in pertinent part:

A. For purposes of this Article, a firearm or other dangerous weapon either used in the commission of a felony-offense or the use of which constitutes an element of a felony offense may be declared to be crime-related contraband which may be seized by a law enforcement officer in the course of an arrest or issuance of summons or may be seized by order of court pursuant to other provisions of law. The district attorney of the parish where the arrest or seizure occurred may petition the district court to forfeit to the seizing agency an item or thing seized, or may petition the court for seizure, upon a showing that the item or thing seized or to be seized constitutes crime-related contraband.
E. In addition to ordering the forfeiture of a firearm or dangerous weapon as crime-related contraband as otherwise provided in this Article or by any other provision of law, when a court sentences a defendant, it may order the forfeiture of any weapon used in connection with the offense or found in the possession or under the immediate control of the defendant at the time of the arrest. The court may provide for the destruction, sale, or other disposition of the weapons forfeited.

This version of the article became effective with the 1994 amendment. The article previously read:

When a court sentences a defendant, it may, in addition to the penalties otherwise prescribed by law, order the forfeiture of any weapon used in connection with the offense or found in the possession or under the immediate control of the defendant at the time of his arrest. The court also may provide for the destruction, sale, or other disposition of the weapons ordered forfeited.

Prior to the amendment, there was no distinction between a felony or misdemeanor offense. After the amendment, the wording was made clear that the “crime-related 12contraband” was a firearm or other weapon used in the commission of a felony offense. There is nothing in the article itself or historical notes to indicate that the article is to be applicable to any thing other than felony offenses after the amendment. Based upon this, I find merit in Touchet’s assertion that it stands to reason that since only crime-related contraband under section E can be forfeited, and section A defines crime-related contraband as a firearm used in connection with a felony, then the lower Court was clearly erroneous in ruling that the firearm at issue herein could be forfeited under La. Code Crim.P. art. 891. Accordingly, I would reverse the trial court’s judgment and order the seized property returned to Touchet.

Furthermore, the record is clear that the seized property was never introduced into evidence. Even the majority opinion concedes that the testimony was in dispute as to whether Touchet was actually holding the gun at the time of the offense or whether it was simply nearby and as to whether the gun was in a pouch or out in the open. Based upon these disputes in the testimony, I would find that it was not adequately proven that the weapon seized was actually the weapon used in connection with the offense committed by Tou-chet. Accordingly, for this additional reason, I would find that the trial court’s judgment of forfeiture must be reversed.

For these reasons, I respectfully dissent.


author: DECUIR, Judge.

text:
    Julie Gayle GUILLORY v. Roland Dennis GUILLORY.
    No. 10-393.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Ralph J. Williams, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Roland Dennis Guillory.
    Thomas Gayle, Gayle Law Firm, Lake Charles, LA, for Plaintiff/Appellee, Julie Gayle Guillory.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

|TIn this suit for damages sustained in a physical assault, the defendant appeals the trial court’s general damage award as excessive, and the plaintiff answers alleging that the award is inadequate.

FACTS

In September 2006, Roland Guillory beat his wife, Gayle Guillory, with a pipe. The beating took place in front of his child and his child’s friend and lasted several hours. Gayle was ultimately rendered unconscious and suffered serious head injuries which resulted in post-concussion syndrome, optical impairment, severe migraines, and permanent disability.

Roland admitted that he beat his wife and pled guilty to criminal charges. Gayle filed suit against her now former husband seeking damages. The trial court awarded her:

Past Medical Expenses $ 13,960.75
Lost Wages $ 34,600.00
Future Medical Expenses $ 17,280.00
Pain Suffering and Mental Anguish $ 80,000.00
Loss of Enjoyment of Life $ 80,000.00
Disability $200,000.00

The general damage portion of the award was reduced by twenty percent (20%) which the trial court attributed to a prior automobile accident. Roland filed this appeal and Gayle answered.

EXCESSIVE GENERAL DAMAGES

Roland contends that the trial court’s award of general damages in the amount of $360,000.00 is excessive. Gayle answers that the award is inadequate.

12The Supreme Court has defined the role of the appellate court when faced with a challenge to a general damage award on appeal:

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact.... Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) (citations omitted). In determining whether an abuse of discretion has been shown, the relevant evidence must be viewed in the light which offers the most support to the trial court’s judgment. Id. at 1261.

Applying these standards, we must consider whether the trial court’s award of $360,000.00 for general damages constitutes an abuse of discretion. In this case, Gayle was beaten severely over several hours in the presence of children. She was knocked unconscious and suffers from permanent and debilitating injuries. After careful review of the record and due consideration of the jurisprudence submitted by the parties, we find no abuse of discretion in the trial court’s award. Therefore, the assignments of both parties are merit-less.

DECREE

The judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Roland Guillory.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Andrew RICHARD, et al. v. Robert BRASSEAUX, Jr., et al.
    Nos. 10-409, 10-410, 10-411.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Michael W. Campbell, Caffery, Oubre, Campbell & Garrison, L.L.P., Lafayette, LA, for Defendant/Appellee, Robert Bras-seaux, Jr.
    Peter Forrestt Caviness, Dauzat, Fal-goust, Caviness & Bienvenu, Opelousas, LA, for Defendant/Appellee, Louisiana Farm Bureau Casualty Ins. Co.
    Edward 0. Taulbee IV, Max Michael Menard, Taulbee & Associates, Lafayette, LA, for Defendants/Appellees, Louisiana Farm Bureau Mutual Insurance Co., Louisiana Farm Bureau Casualty Ins. Co.
    Jeffery F. Speer, Julian Louis Gibbens, III, Doucet & Speer, Lafayette, LA, for Plaintiffs/Appellants, Susan Richard, Jenna Richard, Andrew Richard.
    Christopher Shannon Hardy, Penny & Hardy, Lafayette, LA, for Defendants/Ap-pellees Allstate Insurance Company, Andrew Richard.

      Scott A. Stefanski, Edwards, Stefanski & Zaunbrecher, Crowley, LA, for Plaintiffs/Appellants, Ashley Nero.
    J. Bradley Duhe, Ottinger Hebert, L.L.C., Lafayette, LA, for Plaintiffs/Appel-lees, Michelle Matlock, Steven R. Matlock.
    Tracey A. Biagas-Hill, Sean P. Rabalais, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Allstate Insurance Company, Encompass Insurance.
    Court composed of OSWALD A. DECUIR, J., DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|,In these consolidated appeals, Ashley Nero and Andrew Richard, Susan Richard, and Jenna Richard (the Richards) (collectively the plaintiffs) appeal the grant of summary judgment in favor of Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company (collectively Farm Bureau). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the last day of school in May 2005, Jenna Richard was operating a 1999 Pontiac Grand Am. Candice Brasseaux was the front-seat passenger. Ashley Nero and three others, Tiffany Mareeaux, Ryan Mat-lock, and Ryan Leger were seated in the rear. So inspired was she by the song “Swerve” that began to play on the radio, Brasseaux jerked the steering wheel causing Richard to lose control of the vehicle. The vehicle subsequently flipped and landed in a ditch. As a result of this accident, multiple lawsuits were filed.

This appeal involves two insurance policies issued to Candice Brasseaux’s mother, Masel Brasseaux. Louisiana Farm Bureau Casualty Insurance Company issued a standard automobile liability policy, Policy No. A366310, insuring a 2000 F150 Ford pickup truck (the automobile policy). Louisiana Farm Bureau Mutual Insurance Company issued a standard homeowner’s policy, Policy No. DP 102732, to Masel, insuring a premise located in Rayne, Louisiana (the homeowner’s policy).

Farm Bureau first filed a motion for summary judgment on the automobile policy arguing that there was no coverage under the policy since | ¡.Brasseaux did not have expressed or implied permission to grab the steering wheel. Farm Bureau then filed a motion for summary judgment on the homeowner’s policy arguing that there was no coverage under the “Intentional Act” exclusion or the “Ownership Maintenance and Use” exclusion. Following a February 2009 hearing on the motions for summary judgment, the trial court granted summary judgment in Farm Bureau’s favor finding there was no genuine issue of material fact that Brasseaux did not have express or implied permission to swerve the steering wheel. It further found that there was no genuine issue of material fact that Brasseaux’s acts were intentional, excluding any coverage under the homeowner’s policy. The plaintiffs now appeal.

Nero assigns as error:

1. The trial court’s finding that a guest passenger who grabbed the steering wheel in reaction to a song constituted driving within the exclusion against an unauthorized person using the vehicle and that this act was an intentional act.
2. A genuine issue of material fact was presented whether Brasseaux had implied permission to become a permissive operator of said vehicle.
3. Material fact existed as to whether Brasseaux’s actions constituted an intentional action within Farm Bureau’s policy exclusions.

The Richards, represented by separate counsel, fail to assign any errors, but present the issue for review as: Whether Farm Bureau is entitled to judgment as a matter of law according to La.Code Civ.P. art. 966, namely, that there is no genuine issue of material fact regarding whether Farm Bureau provided coverage.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed do novo. Magnon v. Collins, 98-2822 (La.7/7/99), 789 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). Judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

The rules concerning the interpretation of insurance contracts were set forth by this court in State Farm Mutual Automobile Insurance Co. v. Cooper, 97-1134, p.3 (La.App. 3 Cir. 2/18/98), 707 So.2d 986, 988, unit denied, 98-0713 (La.5/1/98), 718 So.2d 412, citing Crabtree v. State Farm Insurance Co., 93-0509 (La.2/28/94), 632 So.2d 736, 741 (footnotes omitted):

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, P.5 (La.1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the | ¿parties’ intent and the agreement must be enforced as written. Smith, 611 So.2d at 1379; Central La. Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985(La.l991); Pareti v. Sentry Indem. Co., 536 So.2d 417, 420(La.1988); see La.Civ.Code art. 2046. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Interstate, 93-0911, p. 5. 630 So.2d at 763; Fertitta v. Palmer, 252 La. 336, 211 So.2d 282, 285 (1968). The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. Westinghouse, 579 So.2d at 985; Pareti, 536 So.2d at 420; see La. Civ.Code art. 2050. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Interstate, 93-0911, p.6, 630 So.2d at 764; Smith, 611 So.2d at 1379; Pareti, 536 So.2d at 420; see La.Civ.Code art. 2056.

The insured bears the burden of proving the incident falls within the policy coverage. Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119. “On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy.” Id. at 124.

EXPRESS OR IMPLIED CONSENT (AUTO POLICY)

Farm Bureau’s policy has a specific section pertaining to “Use of Other Automobiles” in which it does provide coverage in some circumstances: “If the named insured is an individual or husband or wife ... such insurance as is afforded by this policy ... applies with respect to the use of any other automobile with permission of the owner ...”

Permission can be express or implied. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398. There is no dispute that Brasseaux did not have express permission to grab the steering wheel. Thus, the question before us is whether there is a genuine issue of material fact that Brasseaux had implied permission to swerve the steering wheel. Implied permission arises when the named insured acquiesces in |fior does not object to the use of the vehicle. Id.

Nero argues that Brasseaux had implied permission to operate the vehicle at the time of the accident, conceding that she did not have express permission. Nero argues that the issue of “implied permission” is “heavily debated” and that a genuine issue of material fact exists in this regard. Nero points to Brasseaux’s statement to Deputy Sheriff Monceaux that “we were playing a game when the song came on the radio we pull the steering wheel, I pulled and she pulled back.” Thus, according to Nero the issue of whether Richard acquiesced in playing the “game” when the song came on is a genuine issue of fact. Nero argues that because Brasseaux was allowed to operate the radio and because Richard never told her not to grab the wheel before Brasseaux did so, consent was implied. We disagree.

Although it is difficult to discern, it appears that the Richards argue that summary judgment was inappropriate because:

The plaintiff in this case has never agreed to any stipulations regarding facts involving the operation/driving of the vehicle and/or the act of grabbing and jerking the steering wheel, nor any conclusions of these facts as a driver or a passenger. The plaintiff has always asserted that the actions of Candice Brasseaux that day and the outcome which resulted, constitutes negligence on her part and nothing more.
Based solely on this distinction, genuine issues of material fact exists, regarding coverage under the auto policy and therefore the granting of summary judgment in this case was in error.

While the Richards may have never agreed to any stipulations, they also never put forth any evidence to suggest that they would be able to prove at trial that Bras-seaux had express or implied permission to operate the vehicle or that Brasseaux was covered under the Farm Bureau automobile policy via some other clause.

The plaintiffs have failed to put forth any evidence that would suggest that Brasseaux had implied consent to swerve the steering wheel. On the contrary, 1 ¿witness testimony and, more importantly, Brasseaux’s own testimony makes it clear that she did not have implied consent.

Richard testified that the song “Swerve” began playing from her CD player and that Brasseaux unexpectedly swerved the steering wheel first to the left. She stated that there had been no past history between the two regarding the song and that Brasseaux had never indicated that she would swerve a car steering wheel upon hearing the song. Richard stated that when Brasseaux pushed the steering wheel to the left, she, in turn, pushed it to the right to overcome the fact that they were veering into the oncoming lane of traffic. Richard stated that Brasseaux then grabbed the wheel again and pulled it to the right despite the fact that she had told Brasseaux, “No, Candice, stop.” Richard testified that she never indicated to Bras-seaux that it would be appropriate for her to swerve the steering wheel to the left or right when the song “Swerve” came on. She testified that none of her friends had discussed swerving a steering wheel upon hearing the song “Swerve.”

Leger, a middle rear-seat passenger, testified that Brasseaux first pulled the steering wheel to the left, that Richard told her to stop, and that Brasseaux then pulled it to the right, after which the accident occurred. He also stated he had never heard anyone discussing swerving a steering wheel in response to this song. He stated that nothing occurred in the car that would have given Brasseaux the impression that it would be okay for her to grab the steering wheel and swerve it.

Brasseaux’s testimony elicited the following:

Q. What happened as that song came on?
A. From what I can remember I pulled the wheel to the left and she pulled it back to the right.
Q. Why did you pull the wheel to the left?
[7A. I’m not sure.
Q. Did it have something to do with the song being on?
A. I guess.
Q. What do you remember doing as the song came on?
A. All I remember is that I pulled the wheel to the left and then she corrected it to the right.
Q. When you reached over intending to . grab the steering wheel and move it to the left did you know that would cause the car to move to the left?
A. Yes, sir.
Q. In the days and weeks and months before this accident had you ever talked with Jenna Richard about this song and about maybe we’ll one day, one of us, grab the wheel and cause the car to swerve left or right when this song comes on?
A. No, sir.
Q. Had you ever heard it talked about amongst your friends that that might be a neat idea to do when this song comes on?
A. No, sir.
Q. So as far as you can remember, although you knew about this song and you knew what the words said, you had never heard anybody talk about let’s do this, let’s make the car move.
A. No, sir.
Q. And you never discussed it in any way with Jenna Richard?
A. No, sir.
|SQ. Did she [Jenna Richard] in any way when this song came on, create an impression in your mind that it would be okay for you to reach over and grab the wheel?
A. I don’t remember.
Q. Is it a fair statement to say that she [Jenna Richard] never did anything to make you think it was okay to reach over and grab the steering wheel and jerk it to the left?
A. Yes, sir.
Q. Is it a fair statement to say that you intended to grab the wheel and jerk the wheel to the left?
A. Yes.
Q. Is it also fair to say that you knew that as a result of jerking the wheel to the left the car would move left?
A. Yes, sir.

Later in her deposition testimony regarding her written statement that “we were playing a game,” Brasseaux testified:

Q. Would a game be something that one person plays?
A. Maybe.
Q. If this was a game you were the only player, right?
A. Yes, sir.
Q. Because nobody else knew about it, that you were going to do any of this, right?
A. Yes, sir.

Questioned by a different counsel, she responded:

Q. Ma'am, I want to talk to you about this statement for just a moment. The phrase on this statement that I want to talk to you about is the phrase that says “we were playing a game when a song came on.” Did Jenna Richard ever tell you verbally in the moments before this accident happened |9and this song came on that she wanted to play a game with you dealing with this Swerve song?
A. No, sir.
Q. Did she ever do anything to make you believe that she knew you were intending to play a game with the Swerve song as it came on before the accident occurred?
A. No, sir.

She further stated that they were not playing a game when the song came on and that she did not know why she said that they were.

Nero testified no one had discussed nor had anyone in the vehicle ever done anything that would indicate that someone might grab the steering wheel when the song “Swerve” was playing. She further testified that Richard did not do anything that would give Brasseaux the impression that it would be okay to grab the steering wheel.

Marceaux testified that she heard Richard tell Brasseaux to “stop it.” She further testified that nothing occurred in the car that would have given Brasseaux the impression that it was okay to swerve the steering wheel.

Although the plaintiffs argue that whether Brasseaux had implied consent to swerve the steering wheel is a genuine issue of fact, they have failed to put forth any evidence to suggest that they will be able to meet this burden of proof at trial. On the contrary, the evidence, particularly Brasseaux’s own testimony, overwhelmingly shows that she did not have implied consent to jerk the steering wheel. It is clear that nothing occurred in the vehicle prior to the accident that would have signaled to Brasseaux that Richard acquiesced in Brasseaux jerking the steering wheel. Moreover, several testified that once Brasseaux jerked it to the left the first time, Richard specifically instructed her to stop, yet she continued jerking the steering 110wheel to the right. Accordingly, this assignment of error is without merit.

INTENTIONAL ACT/OWNERSHIP, MAINTENANCE, USE EXCLUSION (HOMEOWNER POLICY)

Intentional Act

Farm Bureau maintains that the homeowner policy provides two exclusions precluding coverage. The first is the intentional act exclusion which states:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
a. resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered.

Nero contends that while Brasseaux intended to grab the steering wheel, she did not intend to cause a collision or expect that one would occur. The Richards argue the intentional act exclusion should not apply because Brasseaux only intended for the car to swerve left and not for the resulting accident to occur.

Again, Brasseaux’s own testimony is the best evidence that she intended for the car to move to the left when she jerked the steering wheel. There is no genuine issue of fact that Brasseaux intentionally jerked the steering wheel to the left and then to the right. Whether she expected an accident to result is of no moment. The exclusionary clause omitting the expected or unexpected results of an intentional act from coverage is a valid exclusion. See Fontenot v. Duplechine, 04-424 (La.App. 3 Cir. 12/8/04), 891 So.2d 41; Perkins v. Shaheen, 03-1254 (La.App. 3 Cir. 3/3/04), 867 So.2d 135; and Canterberry v. Chamblee, 41,940 (La.App. 2 Cir. 2/28/2007), 953 So.2d 900. Nero argues that genuine issues of fact exist as to whether Bras-seaux’s jerking of the steering wheel actually resulted in the accident that followed. Yet, |uNero has put forth no evidence to suggest that she will be able to prove this allegation at trial. Accordingly, there is no genuine issue of material fact and this assignment of error is without merit.

Ownership, Maintenance, or Use Exclusion of a Motor Vehicle

The second exclusion relied upon by Farm Bureau states:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
e. arising out of:
(1) the ownership, maintenance, use, loading or unloading of motor vehicles or any other motorized land conveyances, including trailers or recreational motor vehicles, owned or operated by or rented or loaned to an insured.

Farm Bureau argues that if the use of the vehicle is an essential element of the plaintiffs’ recovery, then this exclusion in the homeowners’s policy applies. This issue is rendered moot by our findings above that the homeowner’s policy excludes coverage under the intentional act provision.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of the defendants-appellants, Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company, is affirmed. All costs of this appeal are to be assessed equally among the plaintiffs.

AFFIRMED.

      . The vehicle was owned by her father, Andrew Richard.


text:
    Steven MATLOCK, et al. v. Andrew RICHARD, et al.
    Nos. 10-410, 10-409, 10-411.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Michael W. Campbell, Caffery, Oubre, Campbell & Garrison, L.L.P., Lafayette, LA, for Defendant/Appellee, Robert Bras-seaux, Jr.
    Peter Forrestt Caviness, Dauzat, Fal-goust, Caviness & Bienvenu, Opelousas, LA, for Defendant/Appellee, Louisiana Farm Bureau Casualty Ins. Co.
    Edward O. Taulbee IV, Max Michael Menard, Taulbee & Associates, Lafayette, LA, for Defendants/Appellees, Louisiana Farm Bureau Mutual Insurance Co., Louisiana Farm Bureau Casualty Ins. Co.
    Jeffery F. Speer, Julian Louis Gibbens, III, Doucet & Speer, Lafayette, LA, for Plaintiffs/Appellants, Susan Richard, Jenna Richard, Andrew Richard.
    Christopher Shannon Hardy, Penny & Hardy, Lafayette, LA, for Defendants/Ap-pellees, Allstate Insurance Company Andrew Richard.
    Scott A. Stefanski, Edwards, Stefanski & Zaunbrecher, Crowley, LA, for Plaintiffs/Appellants, Ashley Nero.
    J. Bradley Duhe, Ottinger Hebert, L.L.C., Lafayette, LA, for Plaintiffs/Appel-lees, Michelle Matlock, Steven R. Matlock.
    Tracey A. Biagas-Hill, Sean P. Rabalais, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Allstate Insurance Company, Encompass Insurance.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

This case is consolidated with 10-409 and 10-411. For the reasons set forth in Richard v. Brasseaux, 10-409 (La.App. 3 Cir.11/3/10), 50 So.3d 282, 2010 WL 4320424, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Ashley NERO, et al. v. Andrew RICHARD, et al.
    Nos. 10-411, 10-409, 10-410.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Michael W. Campbell, Caffery, Oubre, Campbell & Garrison, L.L.P., Lafayette, LA, for Defendant/Appellee, Robert Bras-seaux, Jr.
    Peter Forrestt Caviness, Dauzat, Fal-goust, Caviness & Bienvenu, Opelousas, LA, for Defendant/Appellee, Louisiana Farm Bureau Casualty Ins. Co.
    Edward 0. Taulbee IV, Max Michael Menard, Taulbee & Associates, Lafayette, LA, for Defendants/Appellees, Louisiana Farm Bureau Mutual Insurance Co. and Louisiana Farm Bureau Casualty Ins. Co.
    Jeffery F. Speer, Julian Louis Gibbens, III, Doucet & Speer, Lafayette, LA, for Plaintiffs/Appellants, Susan Richard, Jenna Richard and Andrew Richard.
    Christopher Shannon Hardy, Penny & Hardy, Lafayette, LA, for Defendants/Ap-pellees, Allstate Insurance Company and Andrew Richard.
    Scott A. Stefanski, Edwards, Stefanski & Zaunbrecher, Crowley, LA, for Plain-tifi/Appellant, Ashley Nero.
    J. Bradley Duhe, Ottinger Hebert, L.L.C., Lafayette, LA, for Plaintiffs/Appel-lees, Michelle Matlock and Steven R. Mat-lock.
    Tracey A. Biagas-Hill, Sean P. Rabalais, Attorneys at Law, Lafayette, LA, for Defendants/Appellees, Allstate Insurance Company and Encompass Insurance.
    Court composed of Oswald A. Decuir, J. David Painter, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

This case is consolidated with 10-409 and 10-410. For the reasons set forth in Richard v. Brasseaux, 10-409 (La.App. 3 Cir. 11/3/10), 2010 WL 4320424, 50 So.3d 282, the judgment of the trial court is affirmed.

AFFIRMED.


author: KITCHENS, Justice,

text:
    DOUBLE QUICK, INC. v. Ronnie Lee LYMAS.
    No. 2008-CA-01713-SCT.
    Supreme Court of Mississippi.
    Sept. 23, 2010.
    Rehearing Denied Jan. 13, 2011.

      John C. Henegan, Robert M. Frey, Leann W. Nealey, Willie T. Abston, Ridge-land, John D. Brady, Columbus, attorneys for appellant.
    Joe N. Tatum, Latriee Westbrooks, Jackson, attorneys for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. In this premises liability case, following a full week of trial, the jury returned a verdict in excess of $4,000,000 in favor of the plaintiff, Ronnie Lee Lymas, for compensatory damages. The defendant, Double Quick, successfully moved to reduce the verdict based on the $1,000,000 statutory cap on noneconomic damages. Miss.Code Ann. § 11 — 1—60(b) (Rev.2002). Double Quick appealed the verdict, arguing that the plaintiff failed to prove liability, and Lymas cross-appealed, arguing that the statutory cap on noneconomic damages is unconstitutional. Finding that Lymas failed to prove causation, we reverse and render judgment in favor of Double Quick and dismiss Lymas’s cross-appeal as moot.

Facts

¶ 2. Very few facts in this case are undisputed, but the parties agree that on Friday, January 26, 2007, around 5:00 p.m., Ronnie Lymas was shot several times by Orlando “Redboy” Newell on the Double Quick convenience store’s parking lot in Belzoni, Mississippi. Lymas survived the shooting, but sustained serious permanent injuries, which left him unable to work.

¶3. Lymas testified that on the afternoon of January 26, 2007, he and a friend, Donald Lucas, walked together to the Double Quick convenience store, which is located at the intersection of two main municipal thoroughfares. Lymas said that, as he and Lucas were approaching the store, he recognized a man named Allen Unger, who was engaged in a verbal altercation with another man near the pay phone in the Double Quick parking lot. Lymas testified that, roughly two years prior, Unger had shot a man named Willie Earl Moore. Moore was distantly related to Lymas, but Lymas testified that he and Moore were not close to each other. Lymas said that he did not recognize the man with whom Unger was arguing but learned later that this man’s name was Orlando “Redboy” Newell.

¶ 4. Lymas said that he went into the Double Quick, purchased a soft drink, then followed his friend Lucas out of the store. When they exited, Unger and Newell were still arguing. Lymas said that when he saw Newell “reach for something,” Lymas turned around and walked the other way in an attempt to avoid any crossfire. Ly-mas said that, as he was walking away, he was shot in the back. Lymas testified that, even after he had fallen to the ground, Newell kept shooting. According to Lymas, Newell kicked and spat on Ly-mas before running away, and as Lymas lay on the ground, wounded, four or five people surrounded him and started kicking and stomping him. A short time later, an ambulance arrived and transported Lymas to the Humphreys County Hospital.

¶ 5. Lymas did not present other eyewitnesses to the shooting, but five Double Quick employees who had been present at the store that day did testify at trial. Although many of the employees knew Un-ger, Newell, and Lymas, only one employee, Shavon Ellis, remembered seeing any of the men at the store before Lymas was shot. Ellis was finishing her shift around 5:00 p.m., and like Lymas, she also witnessed an argument in the parking lot. However, according to Ellis, it was Lymas who was arguing with Unger, not Newell. Ellis testified that she did not notify her supervisors about the argument because she thought it was “a normal, everyday argument,” and she “didn’t think it escalated.” Ellis heard the gunshots as she was driving away.

¶ 6. Other than Lymas, the only other witness to the shooting who testified at trial was Unger, who was called as a witness for Double Quick. Unger claimed that he was inside the store on the day in question when he saw Lymas outside drinking a beer. According to Unger, he believed that Willie Earl Moore had hired someone to kill him, so he confronted Ly-mas about the “hit” because he knew Moore and Lymas were friends. Unger said that he knocked the beer out of Ly-mas’s hand, and when he did, Lymas pulled out a gun. Unger said that he ran and then heard gunshots, thinking that Lymas was shooting.

¶ 7. Double Quick also entered into evidence without objection a statement from Orlando Newell taken a few days after the shooting. Newell’s statement substantially corroborated Unger’s versipn of events that Lymas was the aggressor. According to Newell, Lymas displayed a gun and told Newell and Unger that he was going to kill both of them. Newell stated that Unger ran away, but, scared for his life, Newell shot Lymas in self-defense.

¶ 8. Lymas attempted to establish that Newell and Unger had violent tendencies by adducing evidence that both Newell and Unger had been indicted for aggravated assaults with firearms. Unger pled guilty to shooting Willie Earl Moore and was incarcerated, but the record does not reveal how much time he served. It is also unclear from the record whether Newell was ever convicted, but the case file from the Belzoni Police Department regarding the charge against Newell was admitted into evidence over objection from Double Quick.

¶ 9. Lymas also attempted to establish that Double Quick had knowledge of New-ell and Unger’s alleged violent tendencies. Double Quick employee Shanetta Thurman testified that she had a part-time job at the Humphreys County courthouse, and it was at this second job that she leaimed both Unger and Newell were facing criminal charges for aggravated assaults with firearms. All but one other employee denied knowledge of these charges, but Tru-ron Grayson, an officer with the Belzoni Police Department, testified that it was well known in the community that Newell had shot another man.

¶ 10. The plaintiff also called to the stand two Double Quick employees who were not present on the day of the shooting. Scott Shafer, the vice-president of operations and marketing at the Double Quick headquarters in Indianola, Mississippi, testified about the general training of employees. According to Shafer, the employees were not required to take action to remove persons with violent histories from the premises unless such persons were causing a disturbance. If an altercation did occur, the employees were to call the authorities.

¶ 11. Dale Taylor, the area manager for Double Quick, testified that employees were trained at “Double Quick University” where they were instructed on armed robbery prevention. He testified that managers are taught to ask unruly customers to leave the store and then call the police. According to Taylor, if Unger and Newell were not causing a disturbance, the employees would have had no reason to remove them from the premises.

¶ 12. Lymas also attempted to establish liability by claiming that an atmosphere of violence existed in and around the store, but that Double Quick did not take reasonable steps to protect its customers. The testimony regarding the safety of the area was conflicting. One of the Double Quick employees responded affirmatively when asked whether people were “arguing and fighting at the Double Quick everyday.” Another said that she had worked at the Double Quick for eight months and had witnessed only a single verbal altercation on the premises.

¶ 13. Sheila Taylor, a waitress at the Varsity restaurant located directly across the street from the Double Quick, testified that she saw a lot of “open containers” in the Double Quick parking lot, and she suspected the occurrence of illegal drug activity. She said that she had seen “five or six” fistfights, but never had reported these fights to the police. Taylor said there was a lot of “arguing, fighting going on. I see cops over there throughout the night, sometimes the day, off and on.” Taylor denied feeling unsafe in the area, but said she had stopped walking to work alone after someone had made an obscene gesture in her direction.

¶ 14. Dorothy Elder, the records custodian .at the Belzoni Police Department, testified regarding the department’s “incident lists” and “incident reports.” The incident lists essentially were call logs, and a dispatcher assigned a numerical code to every call to the police department reporting suspected criminal activity. These codes indicated the type of crime the call was reporting, but the codes were not necessarily indicative of what actually had occurred. Elder testified that the time and date on the incident list was the time of the call and not the time that the reported activity had occurred. She also testified that the locations noted on the incident lists were the addresses from which the calls were made, not the locations of the reported activities. Once an officer was dispatched, that officer would decide whether an investigation should ensue and whether an incident report would be made. These incident reports consisted of brief synopses of the alleged criminal activities

¶ 15. Over the objection of Double Quick, Lymas introduced into evidence the department’s incident lists from September 27, 2006, through January 26, 2007, the day of the shooting. The trial court overruled Double Quick’s objection and admitted these documents. The plaintiff also introduced, and the trial court received into evidence, an incident list containing only calls that originated from the Double Quick. That list included calls from as far back as January 29, 2002, five years before Lymas was shot. Finally, the plaintiff introduced, and the court admitted, three incident reports involving alleged crimes committed on the Double Quick property.

¶ 16. The first incident report, dated May 2, 2004, was titled “fighting/resisting arrest,” and described an altercation between one individual with a small knife and another with a stick. The reporting officer wrote that he witnessed one man chasing another while the officer was parked at the Double Quick, but Elder acknowledged that nothing in the report indicated that any crime occurred on Double Quick property. The report also indicated that a security guard was present at the Double Quick when that incident occurred.

¶ 17. The second incident report was dated December 11, 2004, and was titled “armed robbery.” The report stated that at 2:35 a.m., a suspect attempted to rob someone who was sitting in a car on the Double Quick parking lot. At the time, three law enforcement officers were directly across the street at the Varsity restaurant.

¶ 18. The third incident report was dated September 27, 2006, and titled “robbery.” However, on the incident list, the entry code is for an “armed robbery.” Elder testified that nothing in the report indicated that the code for “armed robbery” was valid.

¶ 19. Lymas’s experts relied on these incident lists and incident reports to opine that an atmosphere of violence existed at the Double Quick store. Dr. Michael Clay Smith was the first expert to testify in Lymas’s case-in-chief. He testified that he had performed a study on the reliability of incident lists, such as the call logs in the instant case, and had found them to be ninety-six percent reliable. Dr. Smith looked at the incident list specific to Double Quick’s address and noted that in the five years prior to the shooting, the police had responded to “14 fights, 38 thefts, 2 motor vehicle thefts, 39 either complaint or trouble calls ... and one public drunk.” Dr. Smith testified that reporting levels were low for convenience stores in high-crime areas and that “probably 20 to 30 percent are reported.” He also looked at the incident list for the entire city and opined that, within a one-mile radius of the Double Quick, there had been “17 fights, five armed robberies, five drug cases, and one rape or attempted rape,” in the four months leading up to the shooting.

¶20. Dr. Smith ultimately concluded that the attack on the plaintiff wás foreseeable and that Double Quick did not provide “reasonably adequate security” to guard against such an attack. He noted that the employees received no training on what to do “if a person known to be violent came onto the property.” He testified that because two employees knew Unger and Newell had been involved in aggravated assaults, Double Quick should have banned them from the premises. Dr. Smith also testified that Double Quick should have had cameras on the parking lot because “fully half of the retail store crime — serious crime problems happen in a parking lot.” Dr. Smith opined that the employees should have been trained to be observant of the parking lot and aware of any loiterers. He also found that Double Quick should have conducted a security study or reviewed crime statistics from the police department. However, regarding that particular store, Dr. Smith testified that “the most effective crime deterrent would be the presence of a very obvious security guard.”

¶ 21. As for causation, Dr. Smith merely answered in the affirmative when asked “whether the breaches you’ve just described ... whether they proximately caused the shooting of Ronnie Lymas.”

¶ 22. Commander Tyrone Lewis of the Jackson Police Department also testified as a plaintiffs security expert in the case. Like Dr. Smith, he testified that, based on the crime statistics, an atmosphere of violence existed, although, unlike Dr. Smith, Lewis spoke only in general terms. When probed on cross-examination about the validity of the incident lists, and in particularly the “armed robbery” report from September 27, 2006, Lewis testified, “[i]n my opinion, one crime is too many. That robbery led to the violent attack and shooting of Mr. Lymas.”

¶ 23. Lewis also agreed with Dr. Smith that Double Quick breached its duty to provide reasonably safe premises by not properly training its employees, not having cameras on the parking lot, not hiring a security guard, not reviewing the crime statistics, and not banishing Unger and Newell from the property.

¶24. Warren Woodfork was called to testify as an expert for the defense. Woodfork testified that the shooting was not foreseeable because Double Quick had neither actual nor constructive knowledge that Newell had a violent nature. As for the atmosphere of violence, Woodfork found that, based on the testimony of Captain Elder, the police department was misusing the computer-aided dispatch system such that the incident reports were unreliable. Woodfork testified that the incident lists were unreliable because they did not reflect what crimes, if any, actually had occurred.

¶ 25. Woodfork also opined that Double Quick had taken adequate safety measures because the store was well kept and clean, and there were security cameras on the inside. He testified that an outdoor camera would not have deterred Newell, because he obviously shot Lymas in front of witnesses. Likewise, he testified that the National Association of Convenience Stores did not recommend armed security guards, because they could create more of a problem in causing innocent bystanders to be shot. As for training, Woodfork opined that it was prudent to tell employees not to confront a person who was known to be violent. Specifically, he “wouldn’t advise ladies who work in a store to confront somebody like Orlando New-ell.”

¶26. By a vote of 9-3, the jury returned a general verdict in favor of Lymas and awarded compensatory damages in the amount of $4,173,350.49. No punitive damages were awarded in this case. Double Quick filed a motion to amend the judgment to reduce the noneconomic portion of the compensatory damages award to the statutory cap of $1,000,000. Miss. Code Ann. § ll-l-60(2)(b) (Rev.2002). The trial court granted Double Quick’s motion and reduced the final award to $1,679,717, finding that the plaintiffs economic damages were $679,717.

¶ 27. Lymas responded with a motion to declare the statutory cap on noneconomic damages unconstitutional. Double Quick then filed a motion for a judgment notwithstanding the verdict or, alternatively, a motion for a new trial. The Office of the Attorney General was granted leave to intervene as a nonaligned party on behalf of the State of Mississippi to defend the constitutionality of Section 11 — 1—60(b)(2). The trial court held a hearing and summarily denied both parties’ motions. Double Quick appealed and Lymas cross-appealed.

Issues

¶28. The appellant, Double Quick, argues on appeal that: (1) Lymas failed to prove that any alleged negligence on behalf of Double Quick was the proximate cause of his injuries; (2) the trial court erred in failing to exclude the plaintiffs expert testimony as purely speculative; (3) Lymas failed to prove that the injury was foreseeable because he failed to establish (a) that Newell had a “violent nature” or (b) that the store was located in an atmosphere of violence; and (4) the jury was improperly instructed. We find the first two issues are interrelated and are disposi-tive.

Standard of Review

¶ 29. Double Quick’s arguments attack the sufficiency of the evidence; averring that the trial judge should have granted its motion for a judgment notwithstanding the verdict (JNOV). Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 22 (Miss.2007) (citing White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510 (Miss.2004)). This Court applies a de novo review to the denial of a motion for JNOV, considering all of the evidence in the light most favorable to the' verdict. United States Fid. and Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (Miss.2008) (citations omitted). We will affirm the denial where there is “substantial evidence to support the verdict,” but we will reverse if “the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Id. (quoting White v. Stewman, 932 So.2d 27, 32 (Miss.2006)).

Discussion

¶ 30. To prevail, Lymas must demonstrate: “(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) damages; and (4) a causal connection between the breach and the damages, such that the breach is the proximate cause of the damages.” Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988) (citations omitted). “Although not an insurer of an invitee’s safety, a premises owner owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another.” Simpson v. Boyd, 880 So.2d 1047, 1051 (Miss.2004) (citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002)). Generally, “criminal acts can be intervening causes which break the causal connection with the defendant’s negligent act, if the criminal act is not within the realm of reasonable foreseeability.” O’Cain v. Harvey Freeman & Sons, Inc., 603 So.2d 824, 830 (Miss.1991) (citing Touche Ross v. Commercial Union Ins., 514 So.2d 315, 324 (Miss.1987); Robinson v. Howard Bros. of Jackson, Inc., 372 So.2d 1074, 1076 (Miss.1979)). In premises liability cases, foreseeability may be established by proving that the defendant had “(1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.” Corley v. Evans, 835 So.2d 30, 38-39 (Miss.2003) (quoting Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991)).

¶ 31. According to Jury Instruction Number 8, tendered by Lymas and granted by the trial court, Double Quick could have breached its duty to provide a reasonably safe environment:

1. By failing to have a visible security guard on duty patrolling the parking lot of the premises at the time of the assault upon Lymas; or
2. By failing to train its employees to identify and take action to remove violent persons, if any, from the Double Quick store premises; or
3. By relying unreasonably on employees calling the Belzoni Police department after an altercation had already begun; or
4. By failing to monitor the parking lot areas with a security camera; or
5. By failing to conduct a security risk study or survey to assess the true level of crime occurring on and around the subject premises; or
6. By failing to meet the industry standard as set forth by the National Association of Convenience Stores, that require employees to be aware and observant of persons on the premises (both inside and outside the store) and in proximity to the store.

¶ 32. Double Quick argues that, even if these allegations constituted a breach of the standard of care, Lymas did not prove that any such breach proximately caused the shooting. Indeed, the only evidence tending to establish proximate cause was the testimony of the plaintiffs two expert witnesses. Double Quick argues that neither Smith’s nor Lewis’s testimony was admissible because it was not “based upon sufficient facts or data” and was not “the product of reliable principles and methods” as required by the Mississippi Rule of Evidence 702.

¶ 33. Yet, as with all evidence, expert testimony must be relevant. M.R.E. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. “The threshold for admissibility is not great, keeping in mind the fact that Rule 401 favors the admission of evidence when it has probative value.” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 457 (Miss.2010) (citing Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 417 (Miss.2009)). Furthermore, the expert must demonstrate that his opinion “is based upon scientific methods and procedures, not unsupported speculation.” Id. (citing Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 947 (Miss.2008)).

¶ 34. Although Lymas’s expert witnesses testified at length about the various steps Double Quick should have taken to prevent the injury, neither expert testified with any particularity that Double Quick’s failure to take these steps was the proximate cause of Lymas’s injuries. Dr. Smith simply answered in the affirmative when asked, in a leading question, whether Double Quick’s -omissions caused the shooting. Commander Lewis did the same, but he also offered the illogical opinion that the September 27, 2006, robbery had “led to the violent attack and shooting of Mr. Ly-mas.”

¶ 35. The speculative testimony of the expert witnesses called by the plaintiff was insufficient as a matter of law to establish proximate cause. The general nature of these experts’ testimony resulted in the jury’s having been left to speculate and guess about causation. While we view the evidence in the light most favorable to the verdict, speculation and conjecture alone will not support a verdict. Because Lymas failed to provide sufficient evidence of proximate cause, the trial judge should have granted Double Quick’s motion for a judgment notwithstanding the verdict.

Conclusion

¶ 36. Lymas failed to present sufficient proof that any alleged negligent omission was the proximate cause of the shooting. Accordingly, we reverse and render judgment in favor of Double Quick. Lymas’s cross-appeal is hereby dismissed as moot.

¶ 37. ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: DISMISSED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, CHANDLER, AND PIERCE JJ., CONCUR.

      . If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
      M.R.E. 702.