author: PAUL A. BONIN, Judge.

text:
    Edgar Sierra JIMENEZ v. OMNI ROYAL ORLEANS HOTEL, Omni Hotels Management Corporation, Omni Hotels, and Julie Noto.
    No. 2010-CA-1647.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.
    Rehearing En Banc Denied and Rehearing Denied July 20, 2011.

      David A. Dalia, Thomas L. Smith, New Orleans, LA, for Plaintiff/Appellant.
    Eric R. Nowak, Shirin E. Harrell, Harrell & Nowak, LLC, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

LAs part of his employment duties with the Omni Royal Orleans Hotel, Roland Randall had removed a manhole cover in order- to read a water meter, which was located below a sidewalk next to the hotel. While he was recording the reading, an approaching pedestrian, Edgar Sierra Jimenez, fell into the uncovered manhole. Mr. Jimenez sued the hotel for damages for failing to warn him of the uncovered manhole. The trial judge, finding that the uncovered manhole was “open and obvious” and that Mr. Jimenez was “100% at fault,” dismissed Mr. Jimenez’s suit with prejudice.

Mr. Jimenez appeals the judgment and argues that the trial court was in error in failing to apportion some percentage of liability to those responsible for Mr. Randall’s actions. He argues that holding a plaintiff to be “100% at fault” (in the 12words of the trial court judgment) is in fact a return to the legislatively-abolished doctrine of contributory negligence.

After our review of the trial court’s factual findings under the manifest error standard, we conclude that the trial court was not clearly wrong in finding that the open manhole was open and obvious to all and, under the circumstances, in deciding that the hotel, owing no duty to Mr. Jimenez, was not at fault. We, therefore, affirm the judgment and explain our decision in greater detail in the following parts.

I

In this Part we describe the historical facts.

Water meters are located beneath the public sidewalk adjacent to the hotel. As part of his daily employment duties, Mr. Randall in the daytime would remove the manhole covering on a water meter, lay it next to the opening on the sidewalk, stoop down to read the meter, rise and record the reading, and replace the cover. Mr. Randall would not place cones or barricades around the openings while he was engaged in reading a meter. Until Mr. Jimenez’s fall Mr. Randall’s meter readings had been uneventful.

Mr. Jimenez, an employee of a nearby restaurant, parked his car across the street from the hotel and was walking toward Mr. Randall. His purpose, he said, was to inquire of Mr. Randall whether the parking-control agents were ticketing that day. He thought Mr. Randall, who was uniformed and writing on a pad, might be one of the agents. Mr. Jimenez claims that Mr. Randall was standing next to the | shotel, but Mr. Randall stated he was stooped down as Mr. Jimenez first approached. As he approached, Mr. Jimenez began to speak to Mr. Randall and they made eye contact, but Mr. Randall did not respond to Mr. Jimenez and continued his reading or recording.

Then Mr. Jimenez accidentally stepped into the uncovered manhole. He managed to get himself out and sat on the street curb briefly. He then returned to his car, took out his camera, and began to photograph the scene. The photographs, taken from the perspective of Mr. Jimenez’s approach crossing the street toward the sidewalk, clearly show the manhole cover astride the sidewalk and the open manhole. When compared to later photographs which showed the manhole covered, the earlier photographs reveal that the uncovered manhole was open and obvious to all.

When questioned why he did not warn Mr. Jimenez of the uncovered hole, Mr. Randall explained that the open manhole was visible, that Mr. Jimenez actually saw him looking down into the hole, and that Mr. Jimenez actually saw him reading the meter. But, according to Mr. Jimenez, because there were no yellow cones around the opening and because the opening was “in a curve, and indentation,” he just did not see it; he was looking at Mr. Randall. Mr. Jimenez conceded that the open manhole was clearly visible in his photographs. But he insisted that the open manhole was not obvious to him at the time he fell in it.

II

In this Part we consider the trial judge’s findings, as expressed in her written reasons. We then review those findings under the manifest error standard of review. The trial judge’s explicit factual finding that the uncovered manhole was open and obvious, and her implicit factual findings that the uncovered manhole was open and obvious to all and, on that account, the hotel did not create an unreasonable risk of harm, result in the legally correct conclusion that in this case the hotel owed no duty to warn Mr. Jimenez of the uncovered manhole. The hotel-defendants, therefore, are not at fault for Mr. Jimenez’s injuries and damages.

The trial judge summarized her findings in her Reasons for Judgment:

The manhole that the plaintiff claims to have fallen into was open and obvi-ous_ Mr. Randall never left the open manhole unattended.... the plaintiff could and should have seen the engineer on his knees taking the meter reading as well as the meter cover itself on the sidewalk.... Falling into an open manhole during the day under the above described conditions makes the plaintiff 100% at fault, (emphasis added)

This finding, which characterizes Mr. Jimenez’s fault as 100%, seems to be the source of Mr. Jimenez’s concern and his appeal to us. He argues that the trial court’s ruling is a disguise for the application of the now-abolished doctrine of contributory negligence, which barred an award of damages to a plaintiff who shares fault with a defendant. Professors Ma-raist and Galligan have addressed this perception: “While the ‘open and obvious’ argument suggests a disguised ^application of contributory negligence or assumption of the risk, when the risk is open and obvious to everyone, the probability of injury is low and the risk may be outweighed by the thing’s utility.” Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law § 14-3 (1996). They continue that “[cjonsequently, when the risk is open and obvious, the thing may not be unreasonably dangerous, or, after the amendments [of 1996 to Louisiana tort law], the defendant may not have failed to exercise reasonable care.” These comments help us mark the path in our ensuing discussion (in Part IV, post) to dispel the notion that the trial court’s holding is contributory negligence in disguise.

A

Central to the problem presented in this case is the resolution or disposition of the trial court’s finding of fact that the uncovered manhole was open and obvious. Like all factual findings, we review a finding of “open and obvious” under the manifest error-clearly wrong standard, which standard is well-known. Nolan v. Mabray, 10-0373, p. 10 (La.11/30/10), 51 So.3d 665, 672; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Burns v. CLK Investments V, L.L.C., 10-277, p. 18 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1163. “The issue to be resolved by a reviewing court is whether the fact-finder’s conclusion was reasonable.” Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). And “[i]t is well settled that a trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous.” Syne v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176.

In this case, the trial judge had the opportunity to observe the demeanor and assess the credibility of witnesses, review evidence, and make a factual determination as to the course of actions from which the injury arose. See Rosell, 549 So.2d at 844. The trial judge evaluated the conduct of both actors (Mr. Jimenez and Mr. Randall) under the circumstances, and along with the other evidence, which included photographs of the scene and the manhole, found that the uncovered manhole was open and obvious. “Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 882-83; Burns, 10-0277, p. 20, 45 So.3d at 1164. While Mr. Jimenez insisted that the uncovered manhole was not open and obvious to him, the fact-finder had available the contradictory testimony of Mr. Randall and the photographs taken by Mr. Jimenez. The trial judge as a fact-finder was not clearly wrong in her reasonable finding that the uncovered manhole was open and obvious. Moreover, in rejecting Mr. Jimenez’s claim that the uncovered manhole was not open and obvious to him, the trial judge implicitly concluded, and reasonably so, that the uncovered manhole was open and obvious to all.

B

Mr. Jimenez casts his claim against the hotel for a failure to warn. “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. Civil Code Art. 2315. And, of course, that the hotel as the employer of Mr. Randall is responsible for his failure to warn. See La. Civil Code Art. 2320 (“employers are answerable for the damage occasioned by them servants and overseers in the exercise of the functions in which they are employed”). A claim for damages for negligence, such as the failure to warn, is analyzed under a duty-risk construct. See Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La.11/30/99), 752 So.2d 762, 765. A plaintiff, such as Mr. Jimenez, must prove that (1) that Mr. Randall’s conduct was the “cause-in-fact” of the resulting harm to him, (2) that the hotel or Mr. Randall owed a duty of care to him, (3) that the requisite duty was breached, and (4) the risk of harm was within the scope of the protection afforded by the duty. Id. “[A]ll four inquiries must be affirmatively answered for plaintiff to recover.” Id.

We focus on the second element: the duty of care, in particular whether the hotel or its employee had a duty to Mr. Jimenez, and in this case a duty to warn him. “Whether a duty is owed is a question of law; whether defendant has breached a duty is a question of fact.” Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 14 (La.3/16/10), 35 So.3d 230, 240.

A key to the answer to that question in any negligence (and even the so-called strict liability action) is whether a person, thing, or condition creates or constitutes an unreasonable risk of harm. See Smolinski v. Taulli, 276 So.2d 286, 288 (La.1973); Hunt v. City Stores, Inc., 387 So.2d 585, 588 (La.1980); Oster v. Dep’t of Transp. And Dev., State of Louisiana, 582 So.2d 1285, 1288 (La.1991); and Burns, 10-0277, p. 8, 45 So.3d at 1158. Because that determination is so factjintensive,8 it too is primarily entrusted to the fact-finder. Stobart, 617 So.2d at 882-83. See also Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365 (“The trial court’s finding of whether a defect creates an unreasonable risk of harm is subject to a manifest error standard of review.”)

A factual finding that the uncovered manhole is open and obvious leads the fact-finder to an evaluation of whether an open and obvious uncovered manhole presents an unreasonable risk of harm. See Burns, 10-0277, p. 19, 45 So.3d at 1163-64. And a fact-finder may conclude that an open and obvious condition does not present an unreasonable risk of harm. Id. (Or the fact-finder may conclude that the condition does present an unreasonable risk of harm. See DeStevens v. Harsco Corp., 94-1183 (La.App. 4 Cir. 3/16/95), 652 So.2d 1054; see also discussion, post, at Part III.) But, generally speaking, “[t]he original fact finder, viewing live testimony and evidence, is best positioned to make a determination so heavily laden with factual issues.” Reed, 97-1174, p. 4, 708 So.2d at 364-65. Because the determination of whether a condition presents an unreasonable risk of harm is fact-intensive followed by the application of a less-than-seientific standard, “a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be accorded deference.” Id. See also Burns, 10-0277, pp. 16-18, 45 So.3d at 1162-63.

The precept is derived from the notion that “a potentially dangerous condition that should be obvious to all comers is not, in all instances, unreasonably dangerous.” Socorro v. City of New Orleans, 579 So.2d 931, 941 (La.1991).

Recently, the Louisiana Supreme Court again applied this analysis to decide that an open and obvious condition created by a defendant did not constitute an unreasonable risk of harm to an elderly visitor, and thus there being no duty to the visitor, the defendant was not liable for the harm. Pryor v. Iberia Parish School Board, 10C-1683 (La.3/15/11), 60 So.3d 594. The plaintiff, walking with an abnormal gait, using a cane, and recovering from total left hip replacement, chose to sit in the regular spectator bleachers to view a high-school football game in defendant’s stadium. Id. p. 3, 60 So.3d at 596. Rather than sit in a section built to accommodate the handicapped viewers, she ascended the regular steps with a relative’s assistance. Id. p. 1, 60 So.3d at 594. Later, when descending, she fell. Id. Overruling the intermediate court and reinstating the trial court’s judgment, the Supreme Court stated that it has “recognized that defendants generally have no duty to protect against an open and obvious hazard.” Id. p. 2, 60 So.3d at 596. “If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff.” Id. The Pryor Court emphasized that “[i]t is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case.” Id.

This confirmed the Louisiana Supreme Court’s approach in Eisenhardt v. Snook. There, reversing the appellate court’s ruling and reinstating the trial court’s judgment, the Supreme Court found that Mr. Eisenhardt should have seen the water on Ms. Snook’s steps and known that there was a hazard. See Eisenhardt v. Snook, 08-1287, p. 7 (La.3/17/09), 8 So.3d at 541, 545. A trash bag burst while the defendant was carrying out her garbage. Id., 08-1287, p. 1, 8 So.3d at 542. In order to clean the mess, the defendant hosed down her cement front steps. Id. Not long afterward, the plaintiff, exiting the house with one hand holding a soda and the other hand holding his wallet, slipped on the wet steps. Id., 08-1287, p. 2, 8 So.3d at 542. The Supreme Court stated: “[I]t was obvious that the district court made a finding that Ms. Snook was not liable for Mr. Eisenhardt’s injuries because the condition of the steps should have been observed by Mr. Eisenhardt in the exercise of reasonable care.” Id., 08-1287, p. 7, 8 So.3d at 545.

An uncovered manhole is unquestionably potentially dangerous. But when it is open and obvious to all, a fact-finder may determine that it does not present an unreasonable risk of harm. If the fact-finder does so determine that the risk is not unreasonable, we as an intermediate appellate court owe that finding deference. And if it is a reasonable finding and not clearly wrong, then as a matter of law, the defendant owed no duty to the injured plaintiff and is not liable to the plaintiff.

After a review of the entire record evidence, we conclude that the trial judge’s factual findings are reasonable and not clearly wrong. In the manner in which the hotel employee was attending to the water meter at the time Mr. Jimenez (unexplainedly) stepped into the open and obviously uncovered manhole, we cannot find that the hotel or its employee created an unreasonable risk of harm. Because the risk of harm was not unreasonable, the Omni Royal Orleans Hotel and its employee, Mr. Randall, had no duty to warn Mr. Jimenez. Not having violated any duty to Mr. Jimenez, the hotel is without any fault in causing Mr. Jimenez’s injuries.

III

In this Part we simply acknowledge Mr. Jimenez’s argument that there are court decisions which may impose liability on a defendant for “open and obvious” conditions which a fact-finder decides created an unreasonable risk of harm. These decisions, however, do not cast doubt upon the trial court’s findings or upon our decision to affirm the trial court in this matter.

Mr. Jimenez points to some decisions which reached a different result and imposed liability because the condition of the manhole was not visible. See, e.g., Dede v. Tip’s Development, L.L.C., 09-0199, p. 5 (La.App. 4 Cir. 7/1/09), 16 So.3d 526, 530.

Mr. Jimenez also quite correctly contends that several cases have held open manhole covers to be unreasonably dangerous. See, e.g., Charles v. Sewerage and Water Bd. of New Orleans, 331 So.2d 216 (La.App. 4 Cir.1976); State Farm Mut. Auto. Ins. Co. v. South Central Bell Tel. Co., 359 So.2d 1318 (La.App. 4 Cir.1978); Girvan v. New Orleans Public Service Inc., 94-0681 (La.App. 4 Cir. 11/30/94), 646 So.2d 481; Jones v. Sewerage and Water Bd. of New Orleans, 430 So.2d 1063 (La.App. 4 Cir.1983). In each of these cases, for example, the manhole cover had been off for a period of time far longer than the immediacy of the scenario at bar, and in none of the cases was the subsurface meter within the hole in the process of actually being read at the time the plaintiff fell into the manhole.

There are other decisions which suggest that simply because a condition may be open and obvious it does not necessarily result in a consequential finding that the defendant did not create an unreasonable risk of harm. Thus, the Louisiana Supreme Court, while acknowledging the dangerousness of bundled electric cables | ^placed in a pedestrian passageway at the Chalmette Crawfish Festival as well as a pedestrian’s duty to observe conditions as obvious to a visitor as to a landowner, found that case-specific factual issues precluded summary judgment. See Hutchinson v. Knights of Columbus, Council No. 5747, 03-1583, p. 9 (La.2/20/03), 866 So.2d 228, 235. See also Warren v. Kenny, 10-1580 (La.App. 4 Cir. 4/27/11) 64 So.3d 841 (in which we reversed the trial court’s summary judgment dismissing a tenant’s claims against her landlord whose ladder and railings giving access to laundry equipment were held to be open and obvious; we remanded because of genuine issues of material fact, observing that at trial a “substantial” portion of fault might be attributed to the tenant who chose to use that laundry equipment, knowing it was in a precarious situation, i.e., “an open and obvious danger”).

Finally, Mr. Jimenez cites DeStevens, supra; it is not apposite. DeStevens reversed a summary judgment involving an overhead power line. But, even as we noted in Part II-B, ante, we agree that there the openness and obviousness of a specific danger is a question of fact which may or may not lead a fact-finder to a conclusion that the defendant has created an unreasonable risk of harm.

In conclusion, none of these fact-specific decisions detracts from our conclusion, and the conclusion of the trial judge in this case, that the uncovered | ^manhole in this case under these circumstances did not create an unreasonable risk of harm.

IV

In this Part we turn briefly to specially address Mr. Jimenez’s concern that the trial judge’s attribution of “100% fault” to him was a disguise for barring his recovery due to his contributory negligence.

We first observe that there are several cases, like this one, in which the fact-finder expressed in a shorthand manner that the defendant was not at fault by finding the plaintiff “100% at fault.” See Eisenhardt, 08-1287, p. 7, 8 So.3d at 545; McCloud v. Housing Authority of New Orleans, 08-0094, p. 5 (La.App. 4 Cir. 6/11/08), 987 So.2d 360, 363; Sanford v. City of New Orleans, 03-0883, p. 5 (La.App. 4 Cir. 1/21/04), 866 So.2d 882, 886; Seal v. State Farm Fire & Cas. Co., 00-2375, p. 11 (La.App. 4 Cir. 3/20/02), 816 So.2d 868, 875.

Under La. Civil Code art. 2323, however, there is no need to quantify a plaintiffs fault except for the purposes of reducing the amount of his damages. But reduction only occurs when the plaintiff suffers injury “as the result partly of his own negligence and partly as a result of the fault of another person or persons.” La. Civil Code ART. 2323 (emphasis added). Thus, if no defendant is at fault, there does not need to be an assessment of the plaintiffs fault or a quantification of his fault, and ordinarily there will not be. See La. C.C.P. arts. 1812 C and 1917 B. In other words, even though legislatively Louisiana has a pure comparative fault regime, there is no theoretical or practical reason to quantify a plaintiffs fault when there is no fault on the part of any defendant.

There is admittedly criticism of a jurisprudential doctrine which focuses on the duty element (question for the court) as opposed to the breach of duty element | u(question for the fact-finder) in order to deny rather than to reduce recovery to a plaintiff who is at fault “based on a notion that there are plaintiffs who do such foolish things or create such risks that it is not fair for them to recover.” Frank L. Ma-raist, H. Alston Johnson, III, Thomas C. Galligan, Jr., and William R. Corbett, Answering a Fool According to His Folly: Ruminations on Comparative Fault Thirty Years On, 70 La. L.Rev. 1105, 1134 (2010). The charge, similar to Mr. Jimenez’s in this case, is that “the courts are engaged in creating replacements for the old recovery-barring defenses of contributory negligence and assumption of the risk.” Id. But, it cannot be overlooked that by focusing on duty and not on victim-fault, as we discussed in Part III, ante, not every plaintiff who may be partly at fault is denied recovery which was not the law under contributory negligence and assumption of the risk regimes.

Here, quite simply, the hotel had no duty to warn Mr. Jimenez and, consequently, is not liable to him. That is why Article 2323 is not applied in this case. And, more importantly, that is why Mr. Jimenez’s recovery is barred — not because of any contributing fault on his part.

DECREE

We affirm the trial court’s judgment in favor of Omni Hotels Management Corporation d/b/a/ Omni Royal Orleans Hotel and Omni Hotels Corporation, and against Edgar Sierra Jimenez, dismissing his suit with prejudice. Each party is to bear its own cost on appeal. See La. C.C.P. ART. 2164.

AFFIRMED

      . The named defendants are Omni Royal Orleans Hotel, Omni Hotels Management Corporation, Omni Hotels, and Julie Noto.

      . See La. Civil Code art. 2323; see also Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La.2/29/88) ("In 1979, the Louisiana Civil Code article 2323 was rewritten to eliminate the judicially created rule that contributory negligence was a complete bar to the plaintiffs recovery, and to substitute a procedure by which any negligence on the part of the plaintiff would operate as a percentage reduction of his recovery”).

      . See also Fluence v. Marshall Bros. Lincoln-Mercury, Inc., 10-0482, p. 8 (La.App. 5 Cir. 11/23/10), 54 So.3d 711, 715, and numerous cases cited therein; Trujillo v. Duhe, 06-2030, p. 3 (La.App. 1 Cir. 8/29/07), 2007 WL 2429364 (not reported in So.2d); Ardoin v. Lewisburg Water System, 07-0180, p. 4 (La.App. 3 Cir. 7/18/07), 963 So.2d 1049, 1052; Wiley v. Sanders, 37,077 (La.App. 2 Cir. 6/13/03), 850 So.2d 771, 777 (finding a pond on landowner’s property to be an open and obvious danger so that the landowner breached no duty to decedent Wiley, who "should have observed that he could drown in a pond filled with water").

      . The fifth circuit in Fluence, 10-482, p. 8, 54 So.3d at 715, applied the Hutchinson principles, and affirmed summary judgment dismissing the plaintiff’s suit against the landowner who had
      no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff ... A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner.

        Id., 10-482, p. 7, 54 So.3d at 714.

      . See n. 2, ante.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge. MURRAY, J.,

license: Public Domain

text:
    Brandy M. D’ANGELO v. Mandy GUARINO wife of/and Eugenio Guarino, State Farm Fire and Casualty Company, Terry Tedesco, Inc., and XYZ Insurance Company.
    No. 2010-CA-1555.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.
    Rehearing Denied June 29, 2011.

      Craig C. Knippenberg, Pearl River, LA, for Brandy M. D’Angelo.
    Dominic J. Ovella, Sean P. Mount, Stephen C. Kogos, Jr., Jason M. Baer, Hailey McNamara Hall Larmann & Papale, L.L.P., Metairie, LA, for Terry Tedeseo, Inc.
    Kathryn T. Wiedorn, Alexander R. Saunders, Pelleteri & Wiedorn, L.L.C., New Orleans, LA, for Mandy & Eugenio Guarino.
    Doris T. Bobadilla, Andrea L. Albert, Shannon T. Brown, Galloway Johnson Tompkins Burr & Smith, Mandeville, LA, for North American Specialty Insurance Company.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

_JjThe trial court granted two motions for summary judgment, dismissing all of the defendants and the plaintiff, Brandy D’Angelo, filed this devolutive appeal. The motion to designate contents of record, filed by Ms. D’Angelo, did not include the two motions for summary judgment granted by the trial court or the replies to her oppositions. Terry Tedeseo, Inc., one of the appellees, filed a motion to supplement the contents of the record due to the deficiency. This Court issued an order granting the motion to supplement on February 2, 2011. However, the record was never supplemented. Thus, the record before us does not contain the two motions for summary judgment and the replies of the ap-pellees, which are the crux of this appeal and based upon which the trial court based its judgment.

La. C.C.P. art. 2161 provides that “[a]n appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant.” The failure to include the motions for summary judgment, replies, and corresponding exhibits is imputable to Ms. D’Angelo, who filed the motion to designate the contents of the appellate record and who was clearly aware of the records deficiencies. We find that this irregularity justifies dismissal, in that a full |2review of the record before us cannot be conducted without injury to the appellees. See Newson v. Savell, 90 So.2d 474 (La.App. 2nd Cir.1956); Richardson v. Trustees’ Loan & Guar. Co., 15 La.App. 645, 132 So. 387 (La.App.Orleans 1931); Hill Cotton Lumber Co. v. Meyer, 9 La.App. 116, 118 So. 839 (La.App. Orleans 1928); Morrison v. Lynch, 36 La. Ann. 611, 1884 WL 7871, *3 (La.1884).

Therefore, we dismiss this appeal ex proprio motu, as none of the pleadings the trial court utilized to support the granting of the motions for summary judgment are contained in the record.

APPEAL DISMISSED

MURRAY, J., dissents with reasons.

MURRAY, J.,

dissents with reasons.

On February 2, 2011, this court granted the Appellee’s Motion to Supplement the Contents of the Record. Because I would issue an order directed to the Appellant to supplement the record, I dissent from the majority’s decision to dismiss the appeal.

      . This Court notes that we issued a rule to show cause as to timeliness to Ms. D’Angelo because the notice of filing of judgment was absent from the record as well.


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

text:
    STATE of Louisiana in the Interest of Y.F.
    No. 2011-C-0660.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2011.
    Tenee Felix, New Orleans, LA, for Relator, Y.F.
    Leon A. Cannizzaro, Jr., District Attorney, Orleans Parish, Matthew Lastrapes, Assistant District Attorney, Orleans Parish, New Orleans, LA, for Respondent, State of Louisiana.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

hThe precise issue before us is whether Y.F., a juvenile born 27 July 1994, must be given credit for time served in secured custody while being held in the state of Colorado on a juvenile charge that is unrelated to his adjudication for misdemeanor possession of marijuana in Louisiana for which he received a sentence of six months, the maximum sentence the law allows. La. R.S. 40:966 E. We determine concurrently how one computes the actual number of days a juvenile offender may be held in secured custody when the juvenile receives a sentence of six months of secured custody that is interrupted by gaps of custodial confinement.

Y.F. was arrested on 10 March 2010. He was adjudicated delinquent of the charge on 9 April 2010. He remained in continuous secured custody in Louisiana from 10 March until 5 May 2010, when he was released on probation. On 24 June 2010, Y.F. appeared in juvenile court as a runaway from home and arrested on a new marijuana charge; he was remanded to secured custody that day pending the filing of a motion to revoke his probation. When the state dismissed the new | ¡¡charge on 22 July 2010, Y.F. was released from custody that same day. On or about 1 December 2010, the trial court was informed that Y.F. was a runaway and issued a detainer for him. On that same day, Y.F. was arrested in Colorado and remained in secured custody in Colorado until 11 April 2011; however, but for the detainer from Louisiana, Y.F. would have been released from Colorado secured confinement on 24 March 2011. From 11 April 2011 until the present, Y.F. has remained in secured custody in Louisiana.

We find that to calculate the actual number of days within a six-month period to satisfy the requirements of an actual sentence, one calculates the number of days from when the date of adjudication until six months has elapsed. Ergo, for Y.F., one calculates the number of days from 9 April 2010 until 9 October 2010 as a total of 184 days. Cf., La. C.C. art. 3455.

Accordingly, we calculate the number of days that Y.F. has been in custody as follows:

• 10 March through and including 5 May 2010 in Louisiana: 57 days;
• 24 June through and including 22 July 2010 in Louisiana: 29 days;
• 24 March through and including 11 April 2011 in Colorado on the Louisiana detainer: 19 days; and
|s* 12 April 2011 through and including 19 May 2011 in Louisiana: 38 days.

Thus, we find that Y.F. has remained in custody 143 days of the 184 days to which he was sentenced.

We do not find that Y.F. is entitled to a credit for time served in Colorado custodial confinement from 1 December 2010 through 24 March 2011 because it relates to a different crime in a different jurisdiction.

We conclude that he is not presently being held in Louisiana related custody for the full six months to which he was originally sentenced.

We therefore deny the relator’s writ application for supervisory relief.

WRIT DENIED.

LOVE, J., Concurs in the Result.

LOMBARD, J., Concurs in the Result.

LOVE, J., Concurs in the Result.

|TI respectfully concur in the result.

      . La. C.C. art. 3455, relative to prescription in a civil matter, states:
      If the prescriptive period consists of one or more months, prescription accrues upon the expiration of the day of the last month of the period that corresponds with the date of the commencement of prescription, and if there is no corresponding day, prescription accrues upon the expiration of the last day of the period.

      . The date of this decision.

      . We respectfully disagree with the calculation of days made in the concurring opinion in this same case. State in the Interest of Y.F., 11-0546, unpub. (La.App. 4 Cir. 4/29/11) (Bonin, J., concurring). We do not read La. Ch.C. arts. 900 A and 915 A as mandating inclusion of confinement in a sister state on a charge unrelated to the charge in Louisiana, although reasonable minds could differ on the matter. See La.C.Cr. P. arts. 883 and 883.1. By implication, the trial court's ruling continuing the confinement of Y.F. does not give him credit for time served in Colorado, which is not an abuse of the trial court’s discretion.


author: PETERS, J.

text:
    Carl JONES, et al. v. CENTERPOINT ENERGY ENTEX, et al. Steven Joseph, et al. v. Centerpoint Energy Entex, et al.
    No. 11-0002.
    Court of Appeal of Louisiana, Third Circuit.
    May 25, 2011.
    Rehearing Denied Aug. 10, 2011.

      Randolph A. Piedrahita, Kirk A. Guidry, B. Scott Andrews, Dué, Price, Guidry, Piedrahita & Andrews, P.A., Baton Rouge, LA, Patrick C. Morrow, Morrow, Morrow, Ryan & Bassett, Opelousas, LA, Victor J. Versaggi, Jamie P. Parker, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiffs/Appellees, Carl Jones, Sr., Brenda Jones, Steven Joseph, Constance Joseph.
    Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, Randy G. Donato, Robbie A. Moehlmann, Do-nato, Minx & Brown, Houston, TX, H. Alston Johnson, III, Daina Bray, Phelps Dunbar L.L.P., Baton Rouge, LA, for Defendants/Appellants, Centerpoint Energy Entex, Centerpoint Energy Resources Corporation, Centerpoint Energy Marketing, Inc., Entex Gas Resources Corporation, Centerpoint Energy Gas Services, Inc., Centerpoint Energy Gas Transmission Company, Reliant Energy Resources Corporation.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   PETERS, J.

The litigation that gave rise to these consolidated cases has as its origin an early morning explosion and fire at the Opelousas, Louisiana, home of the Carl Jones, Sr. family, on June 15, 2003. Seven family members occupying the house at the time of the incident sustained serious physical injuries. The suits filed by and on behalf of the injured family members named a number of interrelated legal entities as being responsible for the injuries sustained (Centerpoint Energy En-tex; Centerpoint Energy Resources Corporation; Centerpoint Energy Marketing, Inc.; Entex Gas Resources Corporation; Centerpoint Energy Gas Services, Inc.; Centerpoint Energy Gas Transmission Company; and Reliant Energy Resources Corporation), which we will refer to collectively as Centerpoint Energy. A jury returned a verdict awarding monetary damages to those injured in the explosion and fire, as well as consortium damages to the parents of one of the injured children; assessing Centerpoint Energy with fifty percent of the fault in causing those injuries; and assessing the remaining fifty percent of the fault to Mr. Jones. After the trial court executed a judgment conforming to the jury’s verdict, Centerpoint Energy perfected this appeal, asserting four assignments of error. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The bare essentials of the events leading up to this tragic incident are not in dispute, although certain key factual issues are disputed. On May 7, 2003, Larry M. West, a senior service technician who works for Centerpoint Energy, disconnected the natural gas service at the house occupied by the Jones family because of a delinquent account balance for gas service already provided. Thirty-eight days later, on the evening of June 14, 2003, Mr. Jones reconnected the natural gas service, and li>at approximately 4:00 a.m. the next morning the explosion occurred. Mr. and Mrs. Jones; their four children, Marquetta, Bianca, Carl, Jr., and Dashawana; and their granddaughter, Dai’Jhnea Joseph, all sustained severe personal injuries.

Mr. and Mrs. Jones filed suit against Centerpoint Energy on May 26, 2004, seeking to recover for their individual injuries as well as for those sustained by their four minor children. On June 7, 2004, Dai’Jhnea’s parents, Steven and Constance Joseph, filed suit against Centerpoint Energy seeking to recover for their daughter’s injuries as well as their own consortium damages. On May 5, 2008, the trial court consolidated the separate suits. On July 14, 2010, Mr. Jones voluntarily dismissed his personal claim against Center-point Energy but maintained the claims he had brought on behalf of his children.

The trial on the merits lasted five days, beginning July 19, 2010. After apportioning fault equally between Centerpoint Energy and Mr. Jones, the jury then awarded Dashawana $4,970,931.47; Marquetta $1,597,405.73; Bianca $151,441.49; Carl, Jr. $68,363.17; Mrs. Jones $918,947.29; Dai’Jhnea $7,607,354.09; Mr. Joseph $100,000.00; and Mrs. Joseph $100,000.00. In its appeal, Centerpoint Energy asserts four assignments of error:

1. The trial judge erred in denying the defendants’ mid-trial motion for a directed verdict and in thereafter permitting the case to go to the jury, because the ambit of protection spread by the duty of the defendant gas supplier to act reasonably in turning off service for non-payment does not extend to the protection of the plaintiffs against injury by explosion and fire caused in part by the conduct of the gas supplier and in part by the subsequent negligent, intentional, criminal and then grossly negligent conduct of a third person.
2. The jury erred in assigning only 50% negligence to a third person engaged in negligent, intentional, criminal and then grossly negligent conduct subsequent to the act of the defendant gas supplier in turning off gas service for non-payment.
3. The jury erred in its award of damages to certain of the plaintiffs.
4. The trial judge erred in permitting the admission of a report on “Gas Usage on Locked Meters” wholly comprised of entries after the incident at issue in this litigation, and in refusing to permit the admission of an amended report and testimony to explain the two reports.

OPINION

Assignment of Error Number One

This assignment of error does not address the jury’s verdict. Instead, Center-point Energy argues that the trial court erred in ever allowing the matter to reach the jury for decision. It bases this argument on the trial court’s rejection of its motion for a directed verdict filed pursuant to La.Code Civ.P. art. 1810 at the close of the plaintiffs’ case on liability. Center-point Energy asserts on appeal that the trial court erred in not granting its motion.

In considering this assignment of error, we first note that “a motion for directed verdict should be granted only if the facts and inferences are so overwhelmingly in favor of the moving party that the court finds that reasonable men could not arrive at a contrary verdict.” Guste v. Nicholls Coll. Found., 564 So.2d 682, 688-89 (La.1990). In considering the motion, the trial court is to weigh all evidentiary inferences in a light most favorable to the nonmovant — in this case the plaintiffs. Courville v. City of Lake Charles, 98-73 (La.App. 3 Cir. 10/28/98), 720 So.2d 789. This court reviews de novo a trial court’s ruling on a motion for directed verdict which challenges the legal sufficiency of the evidence, and in doing so, we consider the evidence in light of the substantive law applicable to the nonmoving party’s claim. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90; Frazier v. Zapata Protein USA, Inc., 02-605 (La.App. 3 Cir. 12/11/02), 832 So.2d 1141, urrits denied, 03-145, 03-126 (La.3/21/03), 840 So.2d 537, 539.

To prevail in their personal injury suit, the plaintiffs bore the burden of establishing that Centerpoint Energy was at fault in causing the accident, using a duty-risk analysis. This is a five-step process which requires a party asserting fault of another in causing him damages, to establish: (1) that the party whose fault is at issue had a duty to conform his conduct to a specific standard, (2) that the party’s conduct failed to conform to the appropriate standard, (3) that the party’s conduct was a cause-in-fact of the injuries at issue, (4) that the party’s substandard conduct was a legal cause of the injuries at issue, and (5) that there were actual damages. Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791. The plaintiffs failure to prove any of the elements of the duty-risk analysis results in a determination of no liability. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627.

At trial, and to accommodate the schedule of the plaintiffs’ principal physician witness, the parties agreed to address the damage issue out of order. That being the case, when Centerpoint Energy moved for its directed verdict, the plaintiffs had completed their evidence presentation with regard to the liability issue only. Thus, the damage element of the duty-risk analysis is not at issue in this assignment of error. Instead, Centerpoint Energy argues on appeal that the trial court should have granted its directed verdict motion because the plaintiffs failed to establish three factors: that Centerpoint Energy’s conduct failed to conform to the appropriate standard; that Centerpoint Energy’s conduct was a cause-in-fact of the plaintiffs’ [ fjinjuries; and that Centerpoint Energy’s substandard conduct was a legal cause of the plaintiffs’ injuries.

Duty Issue

As pointed out by this court in Giordano v. Rheem Manufacturing Co., 93-1614, p. 8 (La.App. 3 Cir. 10/5/94), 643 So.2d 492, 496:

It is a well settled tenet of our jurisprudence, and common knowledge as well, that natural gas, being highly flammable and explosive in nature, is an inherently dangerous instrumentality. Those who handle and distribute it are charged with that degree of care commensurate with its dangerous character for the protection of the public from any foreseeable injury.

It was not disputed at trial that Center-point Energy’s applicable standard of care in disconnecting service to a customer is governed by 49 C.F.R. 192.727, which provides three methods of acceptable compliance:

Whenever service to a customer is discontinued, one of the following must be complied with:
(1)The valve that is closed to prevent the flow of gas to the customer must be provided with a locking device or other means designed to prevent the opening of the valve by persons other than those authorized by the operator.
(2) A mechanical device or fitting that will prevent the flow of gas must be installed in the service line or in the meter assembly.
(3) The customer’s piping must be physically disconnected from the gas supply and the open pipe ends sealed.

49 C.F.R. 192.727(d).

John Edward Eades, Centerpoint Energy’s Operations Supervisor, explained that company policy requires a technician disconnecting a customer’s gas service to close the valve at the meter, disconnect the meter from the delivery line on the outlet or house side of the meter, and insert a plate into the interior of the line. Once this plate is secured in place by two gaskets, the technician must then reconnect the outlet |filine to the meter and secure the valve on the meter with a plastic locking device. Attached to the plastic locking device is a red tag which contains a warning that a penalty will be imposed on anyone who removes the device.

The plate inserted into the line is referred to as a “blind plate” for obvious reasons — its presence is not apparent to any unauthorized individual attempting to turn the gas on at the meter. The effect of the blind plate is to prevent gas from flowing into a structure even if the plastic locking device is removed and the valve is turned on. Mr. Eades testified that although disconnecting the outlet pipe from the meter and inserting the blind plate is not a complicated task, it does require the use of adequate tools for the job. He suggested that the technician would need at least a fourteen-inch crescent wrench to exert enough torque to break loose the connections.

With regard to compliance with 49 C.F.R. 192.727(d), Mr. Eades acknowledged that the plastic locking device alone does not meet the requirements of the regulation because an unauthorized individual could easily break and remove the plastic device with any small household tool and open the valve to reconnect gas service. Additionally, he testified that because most disconnects for nonpayment are reconciled with the customer almost immediately and the service reinstated, Centerpoint Energy seldom invokes the option available under 49 C.F.R. 192.727(d)(3), to totally disconnect the line and remove the meter. He did testify, however, that the blind plate by itself met the requirements of 49 C.F.R. 192.727(d)(2).

Centerpoint Energy’s former Operations Manager for Louisiana, Daniel Hebert, analyzed the use of the blind plate and plastic locking device slightly differently from Mr. Eades. According to Mr. Hebert, who had been retired slightly over four years 17when he testified at trial, the blind plate is simply a backup to the plastic locking device, and that both were needed to comply with the company’s standard of care.

Douglas Buchan, an expert in the field of natural gas operations from St. Peters-burg, Florida, who testified for the plaintiffs, disagreed with Mr. Hebert that the plastic locking device was primary and the blind plate secondary. In his opinion, any device such as the plastic locking device that can be opened with ordinary household tools could not be considered a locking device sufficient to satisfy the regulation. Mr. Buchan testified that throughout much of the natural gas service industry, a metal locking device which he referred to as a “barrel lock” is used in place of the plastic locking device, and that the use of such a device would satisfy the requirements of 49 C.F.R. 192.727(d)(1). The principal difference between his testimony and that of Mr. Eades as it relates to the breach of duty element of proof, is that he testified that the technician’s insertion of a blind plate as described by Mr. Eades would take five to ten minutes to complete the process. Mr. Eades suggested the same task would require only a “couple of minutes.”

When questioned about the use of the metal locking device suggested by Mr. Bu-chan, Mr. Hebert testified that he was a member of a Centerpoint Energy committee which had considered using such a device but rejected it because of the cost, rust accumulation, and weight.

Breach of Duty Issue

The overwhelming substance of the testimony is that almost everyone agrees, that while the plastic locking device by itself does not meet the standard of care applicable to Centerpoint Energy, use of either the blind plate or the metal locking device does. Given the testimony on this issue, the pivotal factual issue with regard |8to the breach of duty element of the duty-risk analysis is whether Centerpoint Energy’s technician followed company policy and properly inserted the blind plate when disconnecting the Jones’ natural gas service. The eyewitness factual evidence on that issue of what occurred when Mr. West disconnected the gas service on May 7, 2008, was presented primarily by Dashawana and Mrs. Jones.

Dashawana, who was seventeen years old at the time of the fire and explosion and twenty-four years old at the time of trial, testified that she and her mother were sitting on the front porch of the house when the technician came to disconnect the gas service. According to Dasha-wana, the technician appeared in the yard with a red tag in his hand and asked her mother if she was going to pay the delinquent bill. She heard her mother tell the man that he could shut the gas off because they had decided to use only electricity in the future. Dashawana testified that the technician then went to the side of the house where the meter was located, returned in less than three minutes, and left the premises. Mrs. Jones testified to the same factual scenario as her daughter and added that when Mr. West appeared at their home, he had nothing but the red tag in his hand. Additionally, she observed that he had no tool belt or anything else that he could have used to disconnect the line and install the blind plate.

Reviewing de novo the evidence that was available to the trial court at the time it ruled on Centerpoint Energy’s motion for directed verdict, and weighing the evi-dentiary inferences in a light most favorable to the plaintiffs, we conclude that reasonable men could find that installing the plastic locking device was not sufficient to comply with the standard of care, that Centerpoint Energy’s technician did not | nproperly install a blind plate on the meter, and, therefore, Centerpoint Energy did not comply with the applicable standard of care.

Cause-In-Fact

The cause-in-fact element of the duty-risk analysis generally involves a “but for” inquiry, which questions whether or not the injury would have occurred “but for” the defendant’s substandard conduct. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “Where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident.” Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440, p. 8 (La.3/23/01), 782 So.2d 606, 611 (footnote omitted).

Again weighing the evidentiary inferences in a light most favorable to the plaintiffs, we conclude that reasonable men could find that Centerpoint Energy’s failure to properly terminate the Jones’ natural gas service was a substantial factor in causing the explosion and fire.

Legal Cause

Finally, Centerpoint Energy asserts that its actions were not the legal cause of the plaintiffs’ injuries. In making this argument, Centerpoint Energy argues that Mr. Jones’ reconnection of the gas service constituted intervening conduct that was not only grossly negligent, intentional, and criminal, but also not foreseeable. In considering this argument at the trial level, the evidence before the trial court consisted primarily of the testimony of the various family members describing the events between the May 7, 2003 cut off of service and the June 15, 2003 explosion.

True to Mrs. Jones’ statement to Mr. West, sometime after the May 7 disconnect, Mr. Jones and Carl, Jr. removed the gas stove from the kitchen and stored it in a shed behind the house. However, in doing so, they failed to cap the then-open service line in the house. This open service line later proved to be the source of the gas that entered the house on the evening of June 14 and the early morning hours of June 15, 2003.

Although the Jones family replaced the gas stove with an electric one, they did not replace the gas hot water heater. Without an independent source of hot water, all hot water needs for washing, bathing, and any other task had to be fulfilled by heating water on the electric stove. According to Mr. Jones, this lack of hot water in the home and his attempt to keep from being embarrassed by these circumstances led to his ill-advised attempt to reconnect the gas service on the evening of June 14, 2003.

June 15, 2003 was Father’s Day, and the Jones family had invited their Pastor ánd some church members to share a meal at their house on that day. Mr. Jones testified that he basically felt a need to be “the man of the house” and remedy the embarrassing lack of hot water for his family. He testified that at approximately 8:30 on the evening of June 14, 2003, he used a crescent wrench to “pop the little tag off the meter” and open the valve. Not only did he not disconnect the line to remove the blind plate, he did not know what a blind plate was until long into the litigation proceedings. After he unsuccessfully attempted to light the gas hot water heater that previously provided the family with hot water, he returned to the meter intending to shut off the valve. According to Mr. Jones, when he did return to the meter and attempted to turn the valve off, he was frightened away by lights from an approaching |T vehicle and “didn’t know if [he] turned it off or what.” However, because the hot water heater would not ignite, he simply assumed that he had no gas service at all. Mr. Jones acknowledged that he knew what he was doing was not only wrong, but that it was criminal. Furthermore, he stated that he simply forgot he had not capped the line previously connecting the gas system to the gas stove. Mrs. Jones tried to explain her husband’s lack of memory by referring to two strokes he suffered in 2001. According to Mrs. Jones, not only is her husband disabled from working, but he has suffered from memory loss since the strokes. None of the family even knew that he had attempted to reinstate the gas flow on the evening of June 14, 2003, until long after the litigation began.

Bedtime, according to the occupants of the house, was strictly enforced and fell between 8:30 and 9:00 p.m. on the evening of June 14, 2003. Thus, most of the occupants were either in bed or getting ready for bed when Mr. Jones attempted to reconnect the gas service to the house. While all the family members who were asked acknowledged smelling natural gas either inside or outside the house in the past, none testified at trial that the smell was present in the house before the explosion on June 15. Mr. Buchan credited this failure to detect the leaking gas to the fact that gas is lighter than air and that initially it filled up the attic and ceiling. Thereafter, according to Mr. Buchan, the occupants gradually became used to the smell without recognizing the change in their environment.

Mrs. Jones testified that at approximately 4:00 a.m., she awoke and began preparing to go to work. She took a sponge bath, woke Dashawana and told her to change Dai’Jhnea’s diaper, and plugged in the coffee pot in the kitchen. As she returned to the bedroom, she heard an explosion and observed a large ball of fire |12which appeared to originate from the children’s bedroom traveling across the ceiling. Dashawana testified that as she changed the baby in her parents’ bedroom, she also heard an explosion and saw a ball of fire enter the bedroom. The resulting fire throughout the house severely burned all of the occupants.

An intervening cause will relieve the original tortfeasor of liability if it “superceded the original negligence and alone produced the injury.” Adams v. Rhodia, Inc., 07-2110, p. 14 (La.5/21/08), 983 So.2d 798, 808. However, if the intervening cause is a foreseeable one, it is within the scope of the original tortfeasor’s negligence.

“Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty.” Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). “The scope of protection inquiry asks “whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner.’ ” Faucheaux v. Terrebonne Consol. Gov’t., 615 So.2d 289, 293 (La.1993). Although we have unequivocally stated “the determination of legal cause involves a purely legal question,” Todd v. State, Dept. of Social Services, 96-3090 (La.9/9/97), 699 So.2d 35, 39, this legal determination depends on factual determinations of foreseeability and ease of association. See Perkins v. Entergy Corp., 98-2081 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 410, affirmed, 00-1372 (La.3/23/01), 782 So.2d 606.

Rando v. Anco Insulations, Inc., 08-1163, 08-1169, pp. 30-31 (La.5/22/09), 16 So.3d 1065, 1088.

Centerpoint Energy’s argument on this issue is defeated by the testimony of its own administrative personnel. Mr. Eades suggested that the locking mechanisms used were necessary because it was simply common sense that people will try to steal natural gas after their supply has been cut off. Mr. Hebert was even more blunt. He answered in the affirmative when asked if the locking requirements were mandated “basically to protect people from their own ignorance” because people do not always ^understand the dangers associated with natural gas. Mr. Buchan echoed these observations and suggested that Center-point Energy should have no illusions about people stealing natural gas.

We find that Mr. Jones’ actions in leaving an uncapped gas line open in the house, breaking the plastic locking device and stealing natural gas, and negligently leaving the natural gas running into the house all night, are exactly the unsafe acts that Centerpoint Energy’s duty to properly terminate service is designed to prevent. Weighing the evidentiary inferences in a light most favorable to the plaintiffs, we conclude that reasonable men could find that Mr. Jones’ conduct was foreseeable. Therefore, Centerpoint Energy’s argument that it should be relieved of liability based on Mr. Jones’ intervening, superceding negligence is without merit.

We find no merit in this assignment of error.

Assignment of Error Number Two

It is obvious from its verdict that the jury factually concluded that Mr. West either failed to install the blind plate or improperly installed it such that it allowed natural gas to leak into the house — and Centerpoint Energy does not dispute this factual finding in this assignment of error. Instead, Centerpoint Energy asserts that the jury erred in assigning only fifty percent of the fault to Mr. Jones. Center-point Energy argues that Mr. Jones should have been assessed at least ninety percent of the fault in causing the explosion and fire.

The jury is required to determine the fault of all persons causing or contributing to the plaintiffs’ injury, death, or loss, regardless of whether the person is a party to the action or a nonparty. La.Civ.Code art. 2323(A). Our supreme court has held that the following five factors may influence the allocation of fault:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.

Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

An appellate court must give the jury’s apportionment of fault great deference on review and must affirm that apportionment of fault unless it is manifestly erroneous or clearly wrong. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002. Thus, we review the facts of the case only to determine if the jury’s conclusion that Mr. Jones was fifty percent at fault was manifestly erroneous. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Stobart v. State, Dept. of Transp. and Dev’t, 617 So.2d 880 (La.1993). Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989).

All of Centerpoint Energy’s representatives testified that the company clearly recognizes the inherently dangerous nature of its product and has developed numerous measures designed to prevent explosions and fires, such as occurred in this litigation. In fact, Mr. Hebert testified that the procedures for connecting and disconnecting gas service are based on the inherently dangerous nature of the product. Additionally, those same Centerpoint Energy representatives acknowledged that often the general public is not aware of the inherent dangers, even when subjected to an | ^advertising campaign alerting them to the dangers. Mr. Hebert made this point in his testimony, as did Mr. Andrepont who testified that quite often Centerpoint Energy’s customers would simply forget about open pipes in their home that occur after the gas service has been disconnected. These assertions were echoed by both Mr. Buchan and Salvadore William Russo, Jr., Center-point Energy’s fire and gas explosion investigation and pipeline safety expert. In fact, Mr. Jones’ testimony was a prime example of Mr. Andrepont’s point. According to Mr. Jones, he simply forgot that he had failed to cap the delivery line when he disconnected the gas stove.

When Centerpoint Energy breached the applicable standard of care by failing to properly install the required blind plate, the risk created by that misconduct was that of potential catastrophic consequences. Mr. Jones’ action in reconnecting the natural gas supply created no less a risk. Had either of them not breached the applicable duties imposed on them, this accident would not have occurred. However, when comparing the significance of what was sought by the conduct of each, Centerpoint Energy’s fault far exceeds that of Mr. Jones. Not only did it fail to complete what all of those who testified to the issue suggested was a rather simple task — properly installing a blind plate— but violated a regulatory duty designed to prevent exactly the result which occurred in this unfortunate incident. Furthermore, clearly Centerpoint Energy fits in the capacity as the superior actor in this incident. As Mr. Hebert pointed out, Cen-terpoint Energy has an obligation to take every reasonable step to prevent its customers from tampering with its natural gas supply system. Furthermore, the Joneses’ expert, Mr. Buchan, testified that the gas industry | 16is well aware that customers will attempt to steal gas, and he stated that it is this knowledge around which its develops its lock out procedures.

Applying the Watson factors, and giving the jury’s apportionment of fault the great deference it is entitled to on appellate review, we do not find that the jury was manifestly erroneous or clearly wrong in apportioning fault equally between Center-point Energy and Mr. Jones. Therefore, we find no merit in this assignment of eiTor.

Assignment of Error Number Three

In this assignment of error the defendants argue that the general damages awards to Dai’Jhnea, Dashawana, and Marquetta are excessive and that the loss of consortium awards to Mr. and Mrs. Joseph should be eliminated.

General Damages

“General damages are those which may not be fixed with pecuniary exactitude; instead, they ‘involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.’ ” Duncan v. Kansas City S. Ry. Co., 00-66, p. 13 (La.10/30/00), 773 So.2d 670, 682, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001) (quoting Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993)). In considering whether the award of general damages is excessive, we are guided by the decision in Youn v. Mantime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein the supreme court noted that “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Under Youn, “[t]he 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.” Id. at 1260. Only after the initial inquiry is answered in the affirmative should the appellate court increase or reduce the award. Id.

The medical aspects of the children’s injuries were testified to by Dr. Darrell Henderson, a Lafayette, Louisiana, plastic and reconstructive surgeon and an expert in long-term treatment of burn injuries. According to Dr. Henderson, all of the children had extensive burns which he described as “the most painful thing that humans have to go through.” Dr. Henderson testified that not only did each child have to endure the pain and suffering associated with the burns themselves, as well as the initial treatment required to treat those injuries, but that the effect of these injuries will require a lifetime of continued treatment. He suggested that not only would the already-completed skin grafts have to be replaced every fifteen to twenty years, but the children’s inability to perspire places them at high risk for heat stroke, and they will remain at an increased chance of skin cancer and infections for the remainder of their lives.

Dai’Jhnea’s Injuries

Dai’Jhnea was thirteen months old at the time of the explosion and fire, and she sustained second and third degree burns over almost half of her body. These injuries caused burns and scarring on her face, lips, chin, ears, chest, abdomen, legs, feet, arms, and hands, and she has already endured numerous surgical procedures to treat those injuries. According to Dr. Henderson, her future skin grafts will be performed by transplanting harvested skin from areas of her body which were not injured, 1 ^thereby causing even more scarring. Additionally, future skin grafts will become more difficult because the supply of undamaged skin available for the needed procedures will decrease with each new procedure. Dr. Henderson testified that because Dai’Jhnea was so young when she sustained her injuries, she will have more problems with skin contracture as she ages. This problem alone will require at least twenty more contracture release surgeries, with physical therapy following each surgery. Dai’Jhnea’s head was so severely burned that she will never be able to grow hair in the scarred area of her scalp. Dai’Jhnea has an American Medical Association disability rating of sixty-five percent.

Dai’Jhnea’s mother testified that her daughter still cannot move or use her right hand. Additionally, Dai’Jhnea cannot play outside, run, or even watch an outside event because of her condition. Her appearance has caused her difficulties in social development and she has had to change schools two times because of teasing by other children.

The jury awarded Dai’Jhnea general damages totaling $6,500,000.00. This total included $1,500,000.00 for scarring and disfigurement; $2,000,000.00 for disability; and $8,000,000.00 for past and future pain and suffering, mental anguish and emotional distress, and loss of enjoyment of life. Considering the pain Dai’Jhnea has suffered, both mentally and physically, and the devastating impact that her injuries will have on her for the remainder of her life, we find no abuse of discretion in the jury’s award.

Dashawana’s Injuries

Dashawana, who was seventeen at the time of the explosion and fire, sustained second and third degree burns over fifty percent of her body. She sustained extensive | ^damage to her face, arms, hands, thighs, knees, and calves, and her right ear was partially destroyed. Skin was harvested from her back for grafts, causing additional scarring. Some of her joints are contracted due to extensive scarring and do not function properly. She, too, underwent multiple surgeries and, according to Dr. Henderson, will need at least eight additional surgical skin grafts over the next eight years. Furthermore, when she reaches her mid-forties, she will need surgery for wound degeneration and breakdowns approximately every three years for the rest of her life. Dashawana is a Certified Nursing Assistant, but due to her injuries she cannot lift or transfer her patients. Dr. Henderson testified that she has an American Medical Association disability rating of forty-eight percent.

The jury awarded Dashawana general damages totaling $4,000,000.00. This total included $1,000,000.00 for scarring and disfigurement; $1,000,000.00 for disability; and $2,000,000.00 for past and future pain and suffering, mental anguish and emotional distress, and loss of enjoyment of life. Considering Dashawana’s extensive injuries and the impact they have had and will have on her life, we find the jury did not abuse its discretion in making this award.

Marquetta’s Injuries

Marquetta was fifteen at the time of the explosion and fire. Dr. Henderson testified that she suffered second-degree burns to twenty percent of her body and third-degree burns to over five percent of her body. The injuries were to her face, neck, arms, both legs, and her left foot. The necklace and clothing she was wearing at the time of the explosion and fire, as well as the blanket wrapped around her, were burned into her body. The skin harvested from the tops of her legs for her two initial skin grafts caused permanent scarring on her legs. She also will need multiple | gpcontracture release surgeries, skin grafts, and physical therapy. As is the case with the other burn victims, Marquetta is unable to be in the sun for any period of time. She also feels a social stigma from her injuries and testified that she is ashamed of her scars. According to Dr. Henderson, Marquetta has a twenty-one percent permanent partial impairment of her body.

The jury awarded Marquetta general damages totaling $1,250,000.00. This total included $500,000.00 for scarring and disfigurement; $250,000.00 for disability; and $500,000.00 for past and future pain and suffering, mental anguish and emotional distress, and loss of enjoyment of life. Considering the injuries Marquetta has suffered and will continue to suffer, we find no abuse of discretion in the jury’s award.

Consortium Claim

As stated in Morrison v. Kappa Alpha Psi Fraternity, 31,805, p. 23 (La.App. 2 Cir. 5/7/99), 738 So.2d 1105, 1122, writs denied, 99-1607, 99-1622 (La.9/24/99), 749 So.2d 634, 635, 99-1668 (La.9/24/99), 747 So.2d 1120:

Civil Code art. 2315 gives parents a cause of action for loss of consortium when their child is injured by the fault of another. Parents must prove, by a preponderance of the evidence, any one or more of the following: (1) loss of love and affection, (2) loss of society and companionship, (3) loss of performance of material services, (4) loss of financial support, (5) loss of aid and assistance, and/or (6) loss of fidelity. Bell v. USAA Casualty Ins. Co., 30,172 (La.App. 2d Cir. 01/21/98), 707 So.2d 102, units denied, 98-0712, 98-0768 [98-0766] (La.05/08/98), 718 So.2d 433, 434; Spears v. Jefferson Parish School Board, 94-352 (La.App. 5th Cir. 11/16/94), 646 So.2d 1104.
A child may sustain physical injury without necessarily causing his parents a loss of consortium. Bell, supra. Mental anguish suffered by the parents because of an injury to their child is not compen-sable in a loss of consortium claim. Spears, supra; Simpson v. State, Department of Transportation and Development, 636 So.2d 608 (La.App. 1st Cir.1993), writs denied, 94-0042, 94-1005 (La.05/06/94), 637 So.2d 471, 472.

|aiThus, we must be careful to differentiate between that which is recoverable as an element of the consortium claim and that which is not recoverable absent the existence of a cause of action for individual mental distress under La.Civ.Code art. 2315.6 and the holding in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

In the matter before us, it is abundantly clear that Mr. and Mrs. Joseph have suffered severe mental anguish because of the devastating and permanent damages to their daughter. However, their recovery must be based on the factors recited in Morrison. Dai’Jhnea was only thirteen months old when she sustained her injuries and, of the six factors recited in Morrison, only two apply to this litigation. Still, the effect of the loss of these particular relationship factors supports the jury award of $100,000.00 each to Mr. and Mrs. Joseph.

Not only did Dai’Jhnea’s parents have to suffer the temporary physical loss of their child during the initial treatment for her injuries, and in doing so lost that ability to hold and comfort her during that period, but the societal and companionship relationship that would normally exist between a parent and child has been permanently destroyed. Dai’Jhnea cannot run, play outside, or even watch an outside event because of her damaged skin. That being the case, Mr. and Mrs. Jones will never experience the enjoyment of watching their daughter participate in the most basic activities such as an Easter egg hunt, cheerleading, or bike riding to name a few. In fact, they cannot even sit together outside and watch others participate in those activities. Furthermore, the parents now have the added burden of working tirelessly with Dai’Jhnea to assist her in overcoming her social development limitations, and continuously counseling her on how to address the thoughtless teasing of children her |22age. With regard to the other applicable factor, the loss of performance of material services, almost all children help around the home in some small way. Whether it is to help wash dishes, sweep and dust, or take care of one’s room, a child can contribute. In the case of Dai’Jhnea, it is clear that she will be severely limited in her abilities to contribute even the smallest assistance to her parents. These limitations are not something that will improve in the future — in fact the overall relationship will forever be constrained by her ongoing medical needs.

Considering the permanent and devastating effect of Dai’Jhnea’s injuries on the parent/child relationship both initially and for the remainder of the parents’ lives, we find no abuse of discretion in the jury’s award to Mr. and Mrs. Joseph for their loss of consortium. Youn, 623 So.2d 1257.

Assignment of Error Number Four

On June 18, 2008, in response to the plaintiffs’ discovery requests, Centerpoint Energy provided the plaintiffs with a report in spreadsheet form addressing instances of natural gas usage at locked meters. On June 3, 2010, Centerpoint Energy provided the plaintiffs with a supplemental report. In its final assignment of error, Centerpoint Energy asserts that the trial court erred in allowing the plaintiffs to introduce the 2008 report into evidence and in refusing to allow it to introduce the 2010 report into evidence.

2008 Report

The specific discovery request addressed by the 2008 report asked Center-point Energy to state “[t]he number of occasions and the circumstances of the occasions in which natural gas provided by Centerpoint was turned on without authority after a blind plate was installed.” The report provided is entitled “Gas Usage from Locked | ^Meters,” and the spreadsheet lists over 18,000 abnormal meter readings and potential instances of fraud in Centerpoint Energy’s South Louisiana area from July 2, 2004, forward.

On July 1, 2010, Centerpoint Energy filed a motion in limine seeking to exclude this 2008 report from evidence at trial. In its motion, Centerpoint Energy questioned the relevance of the report because it contained only events subsequent to the explosion and fire at issue in this litigation, and because the plaintiffs had failed to show that there existed a substantial similarity between the subsequent events and their accident. Centerpoint Energy further asserted that the report contained many factual inaccuracies. The trial court rejected Centerpoint Energy’s motion in limine before the trial on the merits began and overruled its objection to the introduction of the report when the plaintiffs offered it at trial.

A trial court’s decision to admit or exclude evidence is governed by the Louisiana Code of Evidence, and generally “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.” La.Code Evid. art. 402. “ ‘Relevant evidence’ means evidence having 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.” La.Code Evid. art. 401. Whether evidence is relevant is within the discretion of the trial court, and its ruling will not be ^disturbed on appeal in the absence of a clear abuse of that discretion. Quibodeaux v. Med. Ctr. of Sw. La., 97-204 (La.App. 3 Cir. 3/6/98), 707 So.2d 1380, writ denied, 98-926 (La.5/15/98), 719 So.2d 465.

Centerpoint Energy asserts on appeal that because the incidents portrayed by the 2008 report occurred after the accident at issue in this litigation, it does not establish Centerpoint Energy’s duty at the time of the plaintiffs’ injuries. Specifically, Centerpoint Energy asserts that evidence of conditions after the accident at issue would be admissible only if there were evidence presented identifying the entries on the report and explaining their similarity to the accident at issue in this case.

In making this argument, Centerpoint Energy relies on Lee v. K-Mart Corp., 483 So.2d 609 (La.App. 1 Cir.1985), writ denied, 484 So.2d 661 (La.1986), wherein the first circuit concluded that evidence of foreign substances and objects on a store’s floor after an accident occurred was admissible to show that the store’s maintenance and inspection procedures were ineffective so long as there was evidence that the store’s floor maintenance and inspection procedures were the same at the time of the accident and the time of the subsequent investigations; Johnson v. Insurance Co. of North America, 360 So.2d 818 (La.1978), wherein the supreme court concluded that photographs of protruding cans on a grocery store shelf taken a year after the accident at issue did not establish by a preponderance of the evidence that the cans were improperly stacked before the accident; and Stewart v. Great Atlantic & Pacific Tea Co., 94-1592 (La.App. 4 Cir. 3/16/95), 657 So.2d 1327, wherein the fourth circuit concluded that the trial court did not err in excluding videotape and testimony that l^would have established the store’s conditions and display configurations at various times after the relevant accident.

The matter before is distinguishable from the authority cited by Centerpoint Energy because, although the data in the 2008 report covered a span of time beginning after the explosion and accident at issue in this litigation, Mr. Eades testified that Centerpoint Energy had followed the same procedures when locking off gas meters since 2001. Given that the plaintiffs established through Mr. Eades’ testimony that the efforts to lock meters were subject to the same company procedures before July 2, 2004, as after that date, we find that the trial court did not abuse its discretion in allowing the plaintiffs to introduce the 2008 report into evidence.

2010 Revised Report

On April 23, 2010, Centerpoint Energy produced a revised version of the 2008 report and attempted to add two new witnesses, Nancee Chester, a Centerpoint Energy systems analyst, and Michael Maxwell, a Louisiana Centerpoint Energy employee. On May 3, 2010, the plaintiffs filed a motion seeking to exclude the 2010 report and the new witnesses. At a June 3, 2010 meeting scheduled to review the new report, Centerpoint Energy withdrew the April 2010 report because it contained errors and submitted another revised report. On July 12, 2010, the trial court entered an order granting the plaintiffs’ motion in limine and excluding Centerpoint Energy’s April 23, 2010 and June 3, 2010 reports as being “untimely and unreliable” and ordering that Ms. Chester would be “excluded from offering testimony relative to compilation and significance of these reports at trial.”

Centerpoint Energy argues that the trial court erred in excluding its June 3, 2010 revised report and testimony related to the report. However, Centerpoint ^Energy failed to proffer the 2010 report or the excluded testimony of Ms. Chester. “[I]f a party fails to proffer excluded evidence, an appellate court cannot analyze it and its admissibility, and that party is precluded from complaining of the excluded testimony.” Whitehead v. Kan. City S. Ry. Co., 99-896, p. 11 (La.App. 3 Cir. 12/22/99), 758 So.2d 211, 218-19, writ denied, 00-209 (La.4/7/00), 759 So.2d 767. As the defendants failed to proffer the excluded evidence, we will not address this issue on appeal.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We assess all costs of this appeal to the defendants, Centerpoint Energy Entex; Center-point Energy Resources Corporation; Centerpoint Energy Marketing, Inc.; En-tex Gas Resources Corporation; Center-point Energy Gas Services, Inc.; Center-point Energy Gas Transmission Company; and Reliant Energy Resources Corporation.

AFFIRMED.

      . The jury incorrectly calculated Dashawana's total award as $4,790,931.47, but the trial court corrected this error in its judgment.

      . Mr. West, the technician who actually performed the disconnect procedure on the Jones house, testified after the trial court had rejected Centerpoint Energy’s motion for directed verdict. Therefore, his testimony in not pertinent to the disposition of this assignment of error.

      . No blind plate was recovered from the scene after the explosion and fire.

      . Mr. Jones acknowledged that Carl, Jr. helped him move the gas stove, but stated that he, not Carl, Jr., disconnected the stove from the supply line and failed to cap the open line.

      . Mr. Hebert testified that all of the procedures developed for connecting and disconnecting a customer are based on knowledge of the dangers associated with the product, and Mr. Eades testified that company response to a reported leak is five minutes, given the dangers the product poses. Brent Andrepont, a service technician for Center-point Energy, testified that every natural gas leak is treated as a potentially dangerous situation.

      . Although his testimony was not before the trial court when the trial court rejected the motion for directed verdict, Mr. Russo agreed that the plastic locking device alone did not meet the standard of care applicable to Cen-terpoint Energy's obligations in disconnecting gas service to a customer, and agreed that proper installation of the blind plate did meet the standard’s requirements.

      . Centerpoint Energy does not appeal the quantum awarded to Mrs. Jones, Carl, Jr., or Bianca.

      . When Centerpoint Energy first objected during trial, the trial court initially rejected its argument that the flawed nature of the report precluded its introduction but sustained its objection based on the lack of a predicate to demonstrate that the reported incidents were similar to the issue at trial. However, after John Edward Eades, the operations supervisor at Centerpoint Energy, testified as to the origin and interpretation of the report, the trial court reversed its position and allowed the report to be introduced.

      . We address the damage awards to Dai’Jhnea Joseph, Steven Joseph, and Constance Joseph in the matter consolidated herewith, Joseph v. Centerpoint Energy Entex, 11-3 (La.App. 3 Cir. 5/25/11), 66 So.3d 557.


text:
    Steven JOSEPH, et al. v. CENTERPOINT ENERGY ENTEX, et al. Carl Jones, et al. v. Centerpoint Energy Entex, et al.
    No. 11-0003.
    Court of Appeal of Louisiana, Third Circuit.
    May 25, 2011.
    Rehearing Denied Aug. 10, 2011.

      Randolph A. Piedrahita, Kirk A. Guidry, B. Scott Andrews, Dué, Price, Guidry, Piedrahita & Andrews, P.A., Baton Rouge, LA, Patrick C. Morrow, Morrow, Morrow, Ryan & Bassett, Opelousas, LA, Victor J. Versaggi, Jamie P. Parker, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiffs/Appellees, Carl Jones, Sr., Brenda Jones, Steven Joseph, Constance Joseph.
    Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, Randy G. Donato, Robbie A. Moehlmann, Do-nato, Minx & Brown, Houston, TX, H. Alston Johnson, III, Daina Bray, Phelps Dunbar L.L.P., Baton Rouge, LA, for Defendants/Appellants, Centerpoint Energy Entex, Centerpoint Energy Resources Corporation, Centerpoint Energy Marketing, Inc., Entex Gas Resources Corporation, Centerpoint Energy Gas Services, Inc., Centerpoint Energy Gas Transmission Company, Reliant Energy Resources Corporation.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   PETERS, J.

For the reasons assigned in Jones v. Centerpoint Energy Entex, 11-2 (La.App. 3 Cir. 5/25/11), 66 So.3d 539, we affirm the trial court judgment in favor of Dai’Jhnea Joseph, Steven Joseph, and Constance Joseph in all respects. We assess all costs of this appeal to the defendants, Centerpoint Energy Entex; Centerpoint Energy Resources Corporation; Centerpoint Energy Marketing, Inc.; Entex Gas Resources Corporation; Centerpoint Energy Gas Services, Inc.; Centerpoint Energy Gas Transmission Company; and Reliant Energy Resources Corporation.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of L.V.
    No. 2010-CA-1789.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, L.V.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

|2The juvenile defendant, L.V., appeals his adjudication as a delinquent. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the juvenile court.

Relevant Facts and Procedural History

On September 4, 2010, Eugene Hanson reported his Ford F350 stolen. Later that evening, Officers Tony Burrell and Gernell Taylor of the New Orleans Police Department (NOPD) observed the stolen vehicle in a Rite Aid parking lot at the intersection of Elysian Fields Avenue and Milton Street. The officers, along with three other police units, set up surveillance of the parking lot and, after watching L.V. and two other individuals get into the vehicle and exit the parking lot, followed it down Elysian Fields Avenue. Officers Burrell and Taylor activated the light of their patrol unit as a signal to stop and the stolen truck accelerated. Officer Burrell saw the front seat passenger jump out of the moving vehicle. The driver of the truck then attempted an illegal right turn onto St. Denis Street, but hit a tree. The driver and the rear seat passenger jumped out of the vehicle and began running. Officer Burrell chased the driver down St. Denis Street. When he failed to stop after repeated orders to do so, Officer Burrell electrically stunned the driver |3with a ta-ser gun as he was attempting to climb a fence. The driver, subsequently identified as L.V., was transported to a hospital for treatment of a laceration on his head before being taken to the police station.

Several days later, on September 9, 2010, L.V. was charged by delinquency petition with violations of La.Rev.Stat. 14:68.4, unauthorized use of a motor vehicle, and La.Rev. Stat. 14:108.1(0, aggravated flight from an officer. The adjudication hearing was held on November 29, 2010. Mr. Hanson and Officer Burrell testified on behalf of the State and the juvenile’s fifteen year old sister testified for the defense.

Officer Burrell testified to the events of September 4, 2010, identifying L.V. as the driver of the vehicle he chased and arrested. He conceded on cross-examination that L.V. received a laceration on his head requiring stitches but asserted that the laceration was the result of falling from the fence, not from being beaten with a baton. Officer Burrell stated that the police unit camera was inoperable on the evening of the incident because it had not been properly downloaded by personnel at the police station. He conceded that, although the taser gun automatically shoots high resolution video when engaged, he had not personally insured that the assistant district attorney in this matter received a copy of the taser video in this case. Finally, Officer Burrell admitted that there was an inconsistency in the police report as to the color and type of pants L.V. was wearing on the day of his arrest, but he insisted L.V. was the driver of the stolen vehicle.

Mr. Hanson testified that his truck was stolen from his residence between 4 and 4:30 p.m. on September 4, 2010. He stated that he did not know L.V. and had|4not given him authority to drive his truck. He further stated that examination of the truck after it was recovered indicated that it had been started without a key.

Defense counsel moved for a judgment of acquittal at the close of the State’s case, arguing that the State failed to prove the charges beyond a reasonable doubt because Officer Burrell testified that L.V. was wearing blue shorts and the police report indicated L.V. was wearing tan shorts on the night of the incident. The motion was denied. The sole witness presented by the defense was the juvenile’s sister who testified that the night her brother was arrested, she attended the same party and, shortly after he left the party, someone called and told her he was being chased down the street by the police. She walked outside and saw her brother being “tazed” and beaten by police. She conceded she did not know who was giving the party or how her twelve-year old brother got to the party or planned to get home.

The juvenile court adjudicated L.V. a delinquent as charged on the offense of unauthorized use of a motor vehicle in violation of La.Rev.Stat. 14:68.4 and on the lesser charge of flight from an officer in violation of La.Rev.Stat. 14:108.1. L.V. was placed on active probation for periods of, respectively, one year and six months. This appeal follows.

Assignment of Error 1

The defense first argues that the juvenile was denied due process in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) because the State did not turn over film from the police unit or taser videos. Brady did not, however, establish a general rule of criminal discovery and, accordingly, “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.” Kyles v. Whitley, 514 U.S. 419, 436-437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citation omitted); State v. Anderson, 2011-0189 (La.3/4/2011), 56 So.3d 236. Rather, for constitutional purposes, the issue is materiality which requires a “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. Although, as noted in Anderson, supra, a prudent prosecutor will resolve doubtful questions in favor of disclosure, in the absence of a showing of materiality, there is no sanction for the failure to turn over evidence. In this case, there has been no showing that the taser video or police unit videos will undermine confidence in the verdict. The taser video, taken after the stolen truck was abandoned and at the end of the flight from an officer, clearly could not produce exculpatory evidence related to the charge of flight from an officer. With respect to the unauthorized use offense, to the extent defense counsel suggests that the police unit videos might show someone other than L.V. driving the stolen truck, this is clearly immaterial. He was apprehended jumping out of the stolen truck and does not deny he was in truck and, thus, using it for transportation, so whether his use of the vehicle was as a driver or merely as a passenger does not appear in these circumstances to be material to the issue of whether it was unauthorized. Accordingly, the juvenile’s due process rights were not denied in violation of Brady, supra, and this assignment of error is without merit.

Assignment of Error 2

Next, the defense challenges the sufficiency of the evidence, arguing that the State failed to establish that the truck was owned by Mr. Hanson or that the juvenile had the requisite intent. Pursuant to state and federal jurisprudence, we must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the | f,elements of the crime had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 2003-0897, p. 22 (La.4/12/2005), 907 So.2d 1, 18. La.Rev. Stat. 14:68.4 provides in pertinent part that the unauthorized use of a motor vehicle is “the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.” La.Rev.Stat. 14:68.4 This a crime against property, not against a person and, as such, the State need not prove that the property belonged to any particular person, only that it belonged to a person or legal entity other than the accused. State v. Dunbar, 2007-0219, p. 6 (La.2/26/2008), 978 So.2d 899, 903.

Viewing the evidence presented at trial, including the officers’ knowledge the truck was stolen, the juvenile’s flight from the police, and that the juvenile was a twelve-year old, unlicensed driver operating a motorized vehicle on a public street, we find the evidence was sufficient to convince a rational trier of fact that the elements of the offense were proved beyond a reasonable doubt. This assignment of error is without merit.

Assignment of Error 3

The defense argues that L.V. was denied his Sixth Amendment right to confront his accusers when the judge allowed Mr. Hanson to testify as to hearsay evidence from a mechanic that his truck had been started without the use of a key. The defense contends that the adjudication must be set aside because this “uncorroborated hearsay” was admitted into evidence over the objections of defense counsel. Even accepting arguendo that the testimony that the truck was started without a key constitutes inadmissible hearsay evidence, this was trial |7before a juvenile court judge who, by virtue of her training and knowledge of the law is fully capable of disregarding any impropriety. See Jenkins v. Baldwin, 2000-0802, p. 8 (La.App. 4 Cir. 8/29/2001), 801 So.2d 485, 492 (citations omitted). The issue here is not whether the juvenile stole the truck, but whether his use of the truck was unauthorized. A twelve-year old, unlicensed driver operating a motorized vehicle on a public road is presumptively unauthorized and, thus, how the vehicle was started is immaterial. This assignment of error is without merit.

Assignment of Error 4

The defense argues that the adjudication must be set aside because the trial judge refused to instruct herself on the applicable law governing the case, specifically that “although the statute did not specifically set out that it was the state’s burden of proof to establish beyond a reasonable doubt that a defendant be aware that the use of the vehicle was unauthorized, the jurisprudence required intent to be established.” The juvenile court refused the proffer of the proposed instruction, thus hampering our ability to review this assignment of error. On appeal, however, the defense asserts that pursuant to State in the Interest of H.N., 97-0982 (La.App. 4 Cir. 7/8/98), 717 So.2d 666, the statute at issue in this case, La.Rev.Stat. 14:68.4 (unauthorized use of a motorized vehicle) requires knowledge that the motor vehicle is stolen. This is incorrect. That case pertains to La.Rev.Stat. 14:68, unauthorized use of a moveable, as applied to a juvenile in possession of a bicycle that he did not own. Under those circumstances, this court held that a showing of “misappropriation or taking by the culprit” is required. State in the Interest of H.N., 97-0982 at p. 2, 717 So.2d at 667 (citing State in the Interest of Batiste, 367 So.2d 784 (La.1979)) (mere possession of a bicycle was insufficient to prove beyond a reasonable doubt a violation of La.Rev.Stat. 14:68). Clearly, the intent requirement for the statute pertaining to unauthorized use of a bicycle is not automatically applicable to a statute pertaining to unauthorized use of a motorized vehicle and, as such, it does not appear that the instruction offered by the defense was a correct statement of the law. Although the juvenile court erred in not allowing the defense to proffer its proposed instruction, the evidence is sufficient to support the juvenile’s adjudication and, thus, the error appears to be harmless. Accordingly, this assignment of error is without merit.

Assignment of Error 5

Finally, the defense argues that L.V. was denied effective assistance of counsel because trial counsel failed to seek any remedy when the State failed to provide her with a copy of the taser video or videos from other police units on the scene. Trial counsel was charged with being an advocate for the juvenile in the adjudication proceedings, not in a civil rights hearing on whether excessive force was used in his arrest. As discussed, supra, there has been no showing that the videos were material to the offenses charged and, thus, there was no remedy to be sought when the State failed to provide copies of the videos to defense counsel. Accordingly, counsel cannot be held ineffective for failing to seek a non-existent remedy. This assignment of error is without merit.

Conclusion

After review of the record in light of the applicable law and arguments of the parties, the judgment of the juvenile court is affirmed.

AFFIRMED.