author: GREMILLION, Judge.

text:
    Allen BRIDGET, Sr. v. John CRAWFORD, M.D., et al.
    No. 12-1220.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.
    Rehearing Denied May 1, 2013.

      Allen Bridget, Sr., Louisiana State Penitentiary, Angola, LA, In Proper Person.
    Michael W. Landry, Assistant Attorney General, Lake Charles, LA, for Defendants/Appellees, James LeBlane, John Crawford, M.D., Warden Robert Henderson, Delanie Burgess, Julie Borde-lon, Tammie Arrant.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

|,Allen Bridget, Sr., appeals the trial court’s dismissal of his civil rights action under 42 U.S.C. § 1983 on the defendants’/appellees’ exception of prescription. For the reasons that follow, we affirm.

FACTS

Bridget has allegedly suffered from asthma for many years. In September 2008, he was an inmate at Phelps Correctional Center (Phelps) in DeQuincy, Louisiana. He sought special duty status because of his asthma but was denied that change on September 5, 2008, by Dr. John Crawford. Pursuant to the Corrections Administrative Remedies Procedure Act, La.R.S. 15:1171, et seq. (CARP), Bridget sought to have Dr. Crawford’s decision overturned. His appeal was denied at both of the two tiers of review provided in La.R.S. 15:1171 and 1172.

On August 4, 2009, Bridget filed a petition in the 19th Judicial District Court seeking judicial review of this determination and seeking damages. The trial court ruled in favor of Bridget and ordered Dr. Crawford to review Bridget’s medical history and duty status and to personally evaluate Bridget’s current condition. Dr. Crawford was also ordered to generate a written report with a treatment plan and any duty restrictions necessitated by Bridget’s medical condition. All other demands were dismissed by that judgment, which was signed on July 19, 2010.

In a separate incident, Bridget presented to medical personnel on November 30, 2008, complaining of respiratory distress. He asserted that he had missed thirteen of his fifty-eight prescribed doses of medication for his asthma. Bridget was disciplined for malingering because the nurse who administered his medications attested that she had, in fact, administered them to him. Bridget received extra duty and lost some of his credit for “good time.” He again sought 12administrative review and was again rebuffed. The final determination of that review was rendered on May 7, 2009.

On November 23, 2011, Bridget filed the present tort suit against a number of defendants including Dr. Crawford and other medical personnel at Phelps, Warden James Henderson, James LeBlanc, Secretary of the Department of Public Safety and Corrections, and Delanie Burgess, the secretary’s designee who rendered the final determination of Bridget’s administrative procedures review. The defendants responded with an exception of prescription. The trial court maintained the exception and dismissed Bridget’s demands.

Bridget appealed the dismissal. He urges that the judgment was obtained by fraud or ill practices and that his alleged filing of a suit in federal district court precluded the determination that the matter was prescribed.

ANALYSIS

The annulment of a judgment on the grounds of fraud or ill practices is governed by La.Code Civ.P. art. 2004. That article provides that a judgment so obtained may be annulled. Such an action must be filed within one year of when the plaintiff discovers the fraud or ill practices. Article 2006 of the Code of Civil Procedure provides that an action for annulment of a judgment obtained by fraud or ill practices must be filed in the trial court. An appeal is not a substitute for filing an action to annul. Lowe’s Home Const., LLC v. Lips, 10-762 (La.App. 5 Cir. 1/25/11), 61 So.3d 12, writ denied, 11-371 (La.4/25/11), 62 So.3d 89. Accordingly, we cannot address this contention by Bridget.

The record contains no indication that Bridget has filed any action in federal district court. Therefore, we have no evidence in the record to substantiate that such a filing, if it exists, has any bearing on the claims asserted in Bridget’s suit. We must consider his claim on its own merit.

13All actions for monetary, injunctive, declaratory relief, including actions over conditions of confinement, personal injuries, medical malpractice, computation of time, and challenges to rules, regulations, policies, or statutes, brought by adult or juvenile offenders against the state or other authorities who operate prison facilities are subject to CARP. La.R.S. 15:1171(B). An offender must exhaust his administrative remedies before any cause of action may be heard in federal or state court. La.R.S. 15:1176. The filing of a complaint or grievance pursuant to CARP suspends the tolling of liberative prescription for any delictual action for injury or damages arising from the claims asserted in the complaint or grievance. La.R.S. 15:1172(E). That suspension of prescription continues until the agency’s final determination is delivered. Id.

Against this statutory backdrop, Bridget’s petition is facially prescribed. The actions he complains of occurred on November 30, 2008. Bridget sought administrative review on January 25, 2009. The agency’s final determination was delivered on May 7, 2009. Bridget’s petition was filed on November 23, 2011, more than two years after the final determination. Actions under 42 U.S.C. § 1983 are governed by the applicable prescriptive periods or statutes of limitations of the forum state. Ali v. Higgs, 892 F.2d 438 (5th Cir.1990). The applicable prescriptive period for delictual actions is one year from the day injury or damage is sustained. La.Civ.Code art. 3492.

“The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.” La.Civ.Code art. 3472. Thus, the prescriptive period began on November 30, 2008, and was suspended on January 25, 2009. Fifty-five days |4counted toward the accrual of prescription. Suspension of the prescriptive period ended on May 7, 2009. Thus, prescription tolled on March 15, 2010.

The record does not reflect any other action that would have suspended or interrupted prescription on Bridget’s demands. The judgment of the trial court is affirmed. All costs of this appeal are taxed to Appellant, Allen Bridget, Sr.

AFFIRMED.

      . Fifty-five days between November 30, 2008 and January 25, 2009, plus 238 days between May 7, 2009 and December 31, 2009, plus seventy-two days between January 1, 2010 and March 13, 2010. March 13 was a Saturday, so prescription would not toll until Monday, March 15. See La.Code Civ.P. art. 5059.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge. LANDRIEU, J.,

license: Public Domain

text:
    Lenshonda ALEXANDER, Individually and on Behalf of her Minor Son, Damian Alexander and Darlene Myers-Alexander v. TOYOTA MOTOR SALES, U.S.A.; ABC Insurance Company; General Motors Corporation; EFG Insurance Company; New United Motor Manufacturing, Inc.; XYZ Insurance Company; MNO Airbag Manufacturer; QRS Insurance Company; State Farm Fire and Casualty Company, et al.
    No. 2011-CA-1259.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 6, 2013.

      James M. Williams, Alanah 0. Hebert, Gauthier Houghtaling & Williams, L.L.P., Metairie, LA, Stephen Chouest, The Chouest Law Firm, Metairie, LA, for Plaintiff/Appellant.
    Morgan J. Wells, Jr., Lee M. Peacocke, Larzelere, Picou, Wells, Simpson, Lonero, LLC, Metairie, LA, for Defendant/Appel-lee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

fiLenshonda Alexander sued Lakeside Imports, Inc., a car dealership, claiming that she suffered serious injury from a deploying airbag in a vehicle which had been serviced by Lakeside Imports, which was purchased from another automobile dealer. Ms. Alexander asserts that the dealership failed in its duty to adequately warn or properly instruct her with respect to the dangers associated with airbag deployment. Lakeside Imports filed a motion for summary judgment against Ms. Alexander, seeking the dismissal of all claims brought against it, and arguing that it owed no duty to warn Ms. Alexander because she did not purchase the vehicle from Lakeside Imports. The district court granted the motion, and dismissed with prejudice Ms. Alexander’s claims against Lakeside Imports after concluding as a matter of law that the dealership owed Ms. Alexander no duty in the absence of “privity.”

After our de novo review of both the legal issue and the record, we conclude that under the factual circumstances of this case Lakeside Imports stood in a relationship with Ms. Alexander so as to create a legally recognized obligation of conduct on its part for Ms. Alexander’s benefit. Accordingly, we conclude that Lakeside Imports owed a duty to Ms. Alexander to adequately warn or properly instruct her about the dangers associated with airbag deployment. Therefore, we |2reverse the district court’s granting of summary judgment in favor of Lakeside Imports and remand this matter for further proceedings.

For purposes of clarity, we define the duty declared herein accordingly: a seller of a vehicle (and its component parts) who knows, or should know, that the manufacturer’s warning is inadequate has a duty, at the time of sale or delivery, to warn reasonably foreseeable users of the danger inherent in the use of the product or instruct them in the proper use of the product to which the average consumer would not be aware.

We emphasize, however, that our opinion on this matter is limited by those facts available to us at this time. In other words, our opinion is based solely on the undisputed facts in the record as well as those material facts which are genuinely disputed at this point in the litigation. We also emphasize that our decision touches only on the element of duty and does not consider any other essential element of Ms. Alexander’s claim such as causation or breach .of duty. We will now explain our decision in greater detail.

I

Because the existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question, this opinion will first discuss the underlying facts of this matter. See Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1871 (La.1984).

Specifically, on February 1, 2002, Ms. Alexander was involved in an automobile accident wherein she sustained a severe brain stem injury. The accident came about when her 1995 Toyota Corolla was rear-ended and propelled |sinto a fixed restraining barrier along Interstate 10, causing her driver’s side airbag to deploy. Ms. Alexander asserts that her injuries were caused, in part, by the explosive deployment of the airbag.

This specific Toyota was equipped with first generation airbags. Ms. Alexander is a short, or small, statured person. It is undisputed that deployed airbags present a greater danger of harm to small persons, including children, because airbags deploy with a high velocity upon impact. -See U.S. Department of Transportation, National Highway Traffic Safety Administration, An Evaluation of the 1998-1999 Redesign of Frontal Air Bags, NHTSA Technical Report No. DOT HS 810 685, p. 3-5, August 2006. Because short-statured people generally sit closer to the steering wheel when driving, they place their head and chest in close proximity to the explosive force of an inflating airbag. The record indicates that people sitting closer to, or too close to, an airbag may experience the full force of an inflating airbag. Conversely, people sitting further away from a deploying airbag do not experience this force because the airbag inflates fully before it reaches the person. Id. The introduction of first generation airbags by the automobile industry created an added risk to short-statured drivers (as well as to infants and children) since these types of airbags have the potential to injure people sitting close to the airbag when it is deployed. Id. In 1995, the NHTSA began to promote industry-wide efforts to reduce the risk of such injuries. Id. at 2. One aspect of this campaign was to encourage automobile manufacturers to send revised warning labels to owners of cars that were manufactured before February 1997. The revised warning label had not been affixed to Ms. Alexander’s Toyota.

Ms. Alexander purchased the Toyota in 2001 from A-Quality Auto Sales, LLC, a used car dealership. Lakeside Imports, the original vendor of the Toyota, | ¿first obtained the vehicle in 1995. Specifically, the Toyota’s first user was a Mr. John DiCarlo, who initially leased the vehicle through Lakeside Imports, but subsequently purchased it in 1998. The original unrevised airbag warning was in place during the time of Mr. DiCarlo’s use of the vehicle. Lakeside Imports performed ongoing maintenance and service on the vehi-ele throughout the period of Mr. DiCarlo’s use of the vehicle. Later, Lakeside Imports re-acquired the Toyota as a trade-in on Mr. DiCarlo’s purchase of a new vehicle. A-Quality purchased the Toyota from Lakeside Imports, one day before its resale to Ms. Alexander.

Importantly, Lakeside Imports knew that A-Quality was not in the business of buying used cars for its own use but rather for resale to others. Neither at the time of its sale of the car to A-Quality, nor afterwards, did Lakeside Imports provide a revised warning label to A-Quality. Thus, at the time of its purchase from A-Quality, Ms. Alexander’s vehicle contained the original, unrevised warning label attached to the sun visor some years earlier by the manufacturer. No other warning was given to Ms. Alexander from the time of her purchase until her injury. The record, however, discloses a genuine issue of material fact as to whether Lakeside Imports was advised by the manufacturer that a replacement airbag warning label was available to users of 1995 Toyotas during the years of Mr. DiCarlo’s use, and Lakeside Imports servicing, of the vehicle. There is, however, no factual question that a revised replacement warning was available from, and in use by, the manufacturer.

^Nevertheless, while Lakeside Imports denies having received communications from the manufacturer about the availability of replacement warnings, there is considerable evidence of correspondence from the manufacturer to its authorized dealerships, such as Lakeside Imports, about the replacement warning and the use of the

revised warning label. Notably, correspondence from the manufacturer made it clear that it would not take broad steps to inform all future, foreseeable, or prospective Toyota users of the replacement warning. Rather, Toyota indicated that its notification of the replacement warning would be directed to three categories of recipients: 1) then-current initial purchasers or lessees of older model vehicles (such as Mr. DiCarlo); 2) its authorized dealerships (such as Lakeside Imports); and, 3) owners of newer model cars as required by NHTSA. It is undisputed that Ms. Alexander did not know of the replacement warning as Mr. DiCarlo did not attach the replacement decal in the car. Also, there has been no assertion that A-Quality, in its role as “seller,” had knowledge of the replacement warning.

II

As we stated at the outset, we find as a matter of law that under the factual circumstances of this case Lakeside Imports stood in a relationship with Ms. Alexander so as to create a legally recognized obligation of conduct on its part for Ms. Alexander’s benefit. The duty is that of a seller of a vehicle (and its component parts), who knows, or reasonably should know, that the manufacturer’s | ^warning is inadequate, to warn reasonably foreseeable users at the time of sale or delivery of the danger inherent in the use of the product or instruct such users in the proper use of the product to which the average consumer would not be aware.

We note, however, that the term “seller” as expressed herein does not extend to any seller or vendor. Cf. La. Civil Code art. 2439 (“Sale is a contract whereby a person transfers ownership of a thing to another for a price in money.”) Rather, the “seller” with a duty under these circumstances is “a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” La. R.S. 9:2800.53(2) (emphasis added).

The district court concluded that Lakeside Imports owed no duty to Ms. Alexander because it did not sell the car to Ms. Alexander, and, thus, was not in “privity” with her. We find this conclusion to be legally erroneous. Specifically, the law provides that a commercial seller’s duty to warn can extend beyond the scope of an immediate purchaser. “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. Indeed, the Supreme Court has concluded that “Louisiana has aligned itself with the consumer-protection rule, by allowing a consumer without [contractual] privity to recover, whether the suit be strictly in tort or upon implied warranty.” Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 90, 262 So.2d 377, 381 (La.1972). Similarly, this Court has observed that “a contract is not required for recovery in tort or redhibition.” Touro Infirmary v. Sizeler Architects, 04-0634, p. 11 (La.App. 4 Cir. 3/23/05), 900 So.2d 200, 206. Because failure to warn falls under the category of negligence, the | question of liability falls under the duty-risk analysis. Jimenez v. Omni Royal Orleans Hotel, 10-1647, p. 7 (La.App. 4 Cir. 5/18/11), 66 So.3d 528, 532, reh’g denied (7/20/11), writ denied, 11-1800 (La.10/21/11), 73 So.3d 385; see Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La.11/30/99), 752 So.2d 762, 765.

The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under La. Civil Code art. 2315. Lemann v. Essen Lane Daquiris, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 632-633. The duty-risk analysis requires proof by the plaintiff of five separate elements: 1) the defendant had a duty to conform his conduct to a specific standard; 2) the defendant’s conduct failed to conform to the appropriate standard; 3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries; 4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and 5) actual damages. Id., p. 7, 923 So.2d at 633. A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Id., p. 8, 923 So.2d at 633. A duty represents a legally enforceable obligation to conform to a particular standard of conduct. Byers v. Edmondson, 97-831 (La.App. 1 Cir. 5/15/98), 712 So.2d 681, 687.

Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. Socorro v. City of New Orleans, 579 So.2d 931, 938 (La.1991). In determining whether a duty exists, we consider various moral, social, and economic factors. Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229, 233; Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La.1988). Included in these considerations are victim fault, the ease of association between the plaintiffs harm and the defendant’s conduct, and the nature of the defendant’s activity. Id.

We easily associate the conduct of Lakeside Imports with Ms. Alexander’s harm. Having said this, we do not mean to preempt the fact-finder’s preeminent role in determining causation. Nevertheless, having studied the evidence in the record before us, we are satisfied that adequate airbag warnings are easily associated with increased safety and decreased injuries. We easily associate the seller’s failure to warn with the harm suffered by a foreseeable user when the seller knew or should have known that the manufacturer did not furnish the user with a warning and at the same time the seller failed to adequately warn his immediate buyer (such as A-Quality) of the danger. We also find that Ms. Alexander was such a foreseeable user. It is not contested that Ms. Alexander was the first person to whom A-Quality re-sold the vehicle. Indeed, the record indicates that A-Quality purchased the vehicle from Lakeside Imports — who had been servicing the vehicle — only one day prior to its sale to Ms. Alexander. She was, therefore neither a remote nor a distant-in-time purchaser. Further, her action in purchasing a passenger vehicle for her personal use was quite ordinary.

Lakeside Imports is not only in the business of selling both new and used cars, but also in servicing cars. Indeed, Ms. Alexander’s Toyota had been at one time regularly serviced by Lakeside Imports. While it is true that Lakeside Imports had no involvement with the actual mechanism of the harm suffered by Ms. | ¡^Alexander, one aspect of the business of servicing vehicles is the promotion of safe transportation. Thus, while Lakeside Import’s duty to warn may not be paramount to others’ duties to warn (such as a manufacturer’s or an immediate seller’s), it nevertheless shares in the responsibility owed to foreseeable ultimate users.

Ill

Turning now to the summary judgment under review, we note that the record before us discloses several genuine issues of material fact. Specifically, we find that there is a genuine issue of material fact as to whether Lakeside Imports actually knew or should have known that the original manufacturer’s warning was inadequate. Moreover, we also find that there is a genuine issue of material fact as to whether Lakeside Imports knew, or should have known, that the manufacturer did not intend to distribute the revised warning label to all foreseeable users, but rather to then-current initial purchasers or lessees of older model vehicles, authorized dealerships, and owners of newer models vehicles. Likewise, we also find that there is a genuine issue of material fact as to whether Lakeside Imports knew, or should have known, that the manufacturer was relying on the current initial purchasers or lessees of older model vehicles to attach the revised warning | inlabel to their respective vehicles for the benefit of foreseeable future users. The record, therefore, indicates that this matter is not ripe for summary judgment.

IV

While it is uncontested that neither the manufacturer nor Lakeside Imports were required by the NHTSA to install the revised warning labels in vehicles that were manufactured prior to February 25, 1997, it is nevertheless true that the regulatory actions of the NHTSA are not per se dispositive of the existence, vel non, of legal duties arising under Article 2315. We, thus, emphasize that there are sufficient material facts in dispute to preclude summarily finding that Lakeside Imports owed no duty to Ms. Alexander. Whether the original warning label in the car was adequate (breach of duty), or whether the original warning label, if subsequently found to be inadequate, was a cause-in-fact of Ms. Alexander’s injuries (causation) are both factual issues reserved to the trier of fact. See Mundy v. Dep’t of Health & Human Res., 620 So.2d 811, 813 (La.1993). Accordingly, our opinion herein must not be construed as any form of commentary on these issues.

Of course, even determining that Lakeside Imports had a duty to warn Ms. Alexander does not imply that it is liable to Ms. Alexander for her injuries. Nevertheless, when a warning has been deemed inadequate, “the plaintiff who actually read the warning but did not understand it can plausibly claim that an adequate warning would have protected her.” Dan B. Dobbs, The Law of Torts, § 367 (2000). An “adequate warning” is defined by Louisiana statute as a “warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such aj^manner as to avoid the damage for which the claim is made.” La. R.S. 9:2800.53(9). Therefore, while the airbag may not be unreasonably dangerous to an average-statured person, a short-statured person provided with an adequate warning may handle the vehicle in a manner that could decrease the risk of injury. There can be no doubt that the NHTSA concluded that the original warning was lacking, and we would not deprive Ms. Alexander of her opportunity to persuade a trier of fact that the warning label affixed to her vehicle at the time of the accident was inadequate as a matter of fact and contributed to the cause of her damages. Nevertheless, this case does not rise and fall upon replacing the label in the car, as there are many ways to discharge a duty to warn. If the fact-finder concludes that the original warning label was inadequate, there is nevertheless a genuine issue of material fact as to whether Lakeside Imports actually knew or should have known of the inadequacy. We, therefore, believe it pertinent to underscore that we are not making any decision in regards to issues of material fact, breach, or causation. We are deciding a single, though important, aspect of the negligence action. The burden still falls on Ms. Alexander to prove the remaining elements of her negligence action in the district court below.

DECREE

Accordingly, we reverse the district court’s granting of Lakeside Import’s motion for summary judgment and the subsequent dismissal with prejudice of Ms. Alexander’s claims against Lakeside Imports. We remand this matter to the district court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED

LOMBARD, J., dissents.

LANDRIEU, J., dissents with reasons.

LOMBARD, J., dissents.

| Rather than determine whether summary judgment is appropriate under the specific circumstances of this case, the majority has created an expansive duty to warn a third-party purchaser of potential danger associated with the airbag. Accordingly, I respectfully dissent.

LANDRIEU, J.,

dissents with reasons.

_JjI would affirm the trial court. The majority’s decision expands Louisiana law by creating a duty on the part of a non-manufacturer seller of a vehicle to warn foreseeable users of the “danger inherent” in the use of a vehicle that contains an “inadequate” manufacturer’s warning label, regardless of whether the presence of that label (or the absence of a different one) renders the vehicle, or any of its component parts, defective for normal use. Without proof of a defect, there can be no duty to warn because, in the absence of a defect, there is nothing to warn about.

Whether a duty is owed is a question of law. Harris v. Pizza Hut of La., Inc., 455 So.2d 1364, 1371 (La.1984). In the instant case, the only issue decided by the trial court on summary judgment was whether a duty exists under the circumstances of this case.

|2To determine the existence of a duty, the relevant inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 8 (La.3/10/06), 923 So.2d 627, 633. As this court has recognized, our summary judgment procedure is well-suited to the resolution of questions of law. Hendrickson v. Guillory, 2008-0930, p. 4 (La.App. 4 Cir. 5/18/09), 15 So.3d 256, 258. Where there are no material facts in dispute that might challenge the existence of a duty, summary judgment is appropriate. See, e.g.: Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La.3/10/06), 923 So.2d 627. As the Supreme Court stated in Lemann, when analyzing whether certain facts are material to the existence of a duty, one must look to the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 8 (La.3/10/06), 923 So.2d 627, 633.

In this case, it is clear that federal law does not impose a duty to warn upon Lakeside because it is undisputed that Ms. Alexander’s vehicle complied with FMVSS 208 the federal standard regarding airbag warnings required in vehicles at the time the 1995 Corolla was manufactured. The duty found by the majority opinion therefore must be based upon the Louisiana Products Liability Act, La. R.S. 9:2800 et seq., [“LPLA”], the jurisprudence interpreting it, and/or the general principles of negligence stated in the Louisiana Civil Code. However, none of those sources impose a duty to warn in the absence of a dangerous or defective product.

Enacted in 1988, the LPLA provides the exclusive theories of liability under which a claimant may recover from a manufacturer for damage caused by the manufacturer’s product. La. R.S. 9:2800.52. Pursuant to the statute, the manufacturer’s duty is to “use reasonable care” to provide an adequate warning of |3a product’s dangerous characteristics that may cause harm to users of the product after it has left the manufacturer’s control. La. R.S. 9:2800.57(C). In the instant case, it is undisputed that Lakeside is not the manufacturer of Ms. Aexander’s vehicle or of its airbags.

Lakeside does qualify as a “seller” under the LPLA. The Act defines a “seller” as “a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” La. R.S. 9:2800.53(2). The LPLA itself does not mention the term “non-manufacturer seller,” nor does it contain any provision establishing any theory of liability or imposing any duty upon a seller as opposed to a manufacturer.

However, the post-LPLA jurisprudence has recognized that so-called “non-manufacturer” or “non-manufacturing” sellers, under certain circumstances, may have a duty to warn of defects in a product under general principles of negligence. See, e.g.: Slaid v. Evergreen Indem. Ltd., 32,363 (La.App. 2 Cir. 10/27/99), 745 So.2d 793; Jackson v. Sears Authorized Retail Dealer Store, 36,166 (La.App. 2 Cir. 6/12/02), 821 So.2d 590; Wilson v. State Farm Fire and Casualty Insurance Co., 94-1341, 94-1342 (La.App. 3 Cir. 4/5/95), 654 So.2d 385; Adams v. Owens-Corning Fiberglas Corp., 2004-1589 (LaApp. 1 Cir. 9/23/05), 923 So.2d 118. The scope of this duty was explained by our colleagues on the First Circuit:

A non-manufacturer/seller in some instances has a duty to warn a purchaser of defects and/or dangerous propensities in the products he sells. In the case of a defective product, i.e., one which is unreasonably dangerous in normal use, the non-manufacturer/seller can be held hable for damages in tort only if he knew or should have known that the product was defective and failed to declare the defect to the purchaser. Hopper v. Crown, 555 So.2d 46, 48 (La.App. 1st Cir.1989), reversed on other grounds, 558 So.2d 1117 (La.1990); Usee also, Thomasson v. A.K. Dumin Chrysler-Plymouth, Inc., 399 So.2d 1205, 1208 (La.App. 1st Cir.1981).

Adams, 2004-1589, p. 6, 923 So.2d at 123; see also, Slaid, 745 So.2d at 797.

As reflected by this jurisprudence, the non-manufacturer seller’s duty to warn the purchaser depends upon two factors: a defective product (one that is unreasonably dangerous for normal use), and whether the seller knew or should have known of the defect. In this case, because Ms. Alexander did not purchase the vehicle from Lakeside, the general law of negligence would add a third required factor: that Ms. Alexander must fall within the ambit of those persons to whom the seller owes such a duty. See, e.g., Gammill v. Invacare Corp., 2008-0833 (La.App. 4 Cir. 12/17/08), 2 So.3d 557, 559 wherein we found there was no “ease of association” between the plaintiffs harm and the defendant’s conduct sufficient to impose a duty.

In support of its motion for summary judgment in the trial court, Lakeside asserted that the plaintiffs, who have the burden of proof at trial, lack factual support for all three required elements. Because all these elements must be present for a duty to exist, Lakeside needed only to show the absence of one of them to prevail on its motion.
On the issue of defectiveness, it is undisputed that Ms. Alexander’s 1995 Corolla contained the original caution label required by the NHTSA at the time it was manufactured, which read, in pertinent part:
CAUTION TO AVOID SERIOUS INJURY:
• FOR MAXIMUM SAFETY PROTECTION IN ALL TYPES OF CRASHES, YOU MUST ALWAYS WEAR YOUR SAFETY BELT.
• DO NOT INSTALL REARWARD FACING CHILD SEAT IN ANY FRONT PASSENGER SEAT POSITION
• DO NOT SIT OR LEAN UNNECESSARILY CLOSE TO THE AIRBAG
• DO NOT PLACE ANY OBJECTS OVER THE AIRBAG OR BETWEEN THE AIRBAG AND YOURSELF
• SEE THE OWNER’S MANUAL FOR FURTHER INFORMATION AND EXPLANATIONS

| ^Subsequently, the NHTSA issued a “Final Rule” specifying that vehicles manufactured after February 25, 1997 must have new air bag warning labels containing the following pertinent language:

! WARNING
DEATH or SERIOUS INJURY can occur
• Children 12 and under can be killed by the air bag
• The BACK SEAT is the SAFEST place for children.
• NEVER put a rear-facing child seat in the front.
• Sit as far back as possible from the air bag.
• ALWAYS use SEAT BELTS and CHILD RESTRAINTS.

It is undisputed that the Final Rule did not apply to Ms. Alexander’s vehicle, which was manufactured in December of 1994.

In support of its motion, Lakeside submitted both the old and new labels to show that the 1997 revised airbag “warning” label applicable to Ms. Alexander (an allegedly short-statured driver) was substantially similar to the airbag “caution” label contained in her 1995 Corolla. Supporting Lakeside’s assertion in this regard is a statement contained in the Final Rule: “NHTSA continues to believe that the word choice for the heading [“warning” as opposed to “caution”] will not change the effectiveness of the label.” Lakeside also pointed out the plaintiffs’ admission in its pleadings that at the time of the accident, the airbag in Ms. Alexander’s vehicle functioned as designed. Lakeside therefore met its Article 966 burden of pointing out the lack of evidence to support the plaintiffs’ contention that the airbag warning label in Ms. Alexander’s vehicle was inadequate or that the lack of a new label rendered the vehicle defective.

lfiTo defeat summary judgment on this issue, the burden then shifted to the plaintiffs to produce factual support sufficient to establish that they would be able to meet their evidentiary burden at trial of proving the existence of a defect. See La. C.C.P. art. 966 C. The plaintiffs clearly failed to meet this burden.

This record is devoid of any evidence, from experts or fact witnesses, by way of affidavits or deposition testimony, suggesting that the lack of the 1997 revised airbag warning labels in Ms. Alexander’s vehicle rendered the vehicle itself or the air bags defective or unreasonably dangerous for normal use. Moreover, the plaintiffs have not cited any statutory or jurisprudential authority establishing that the presence of first generation airbags with the original caution labels constituted a defect that could be cured by providing more stringent warning labels. The mere fact that revised airbag warning labels were developed and were required in newly manufactured vehicles does not render older vehicles with first generation airbags and original caution labels defective.

Without a defective condition, the other elements required to impose a duty — that is — whether Lakeside had knowledge, and whether Ms. Alexander was within the ambit of those persons to whom Lakeside’s duty to warn would extend, are irrelevant. Thus, the trial court assumed, for the purposes of deciding the summary judgment motion, that Lakeside possessed the requisite knowledge, yet still found that Lakeside had no duty to warn Ms. Alexander because Lakeside had proved the absence of at least one of the other required elements.

In creating the duty that the majority finds applicable here, this court has departed from Louisiana law and jurisprudence by ignoring the complete absence from this record of any evidence showing that the presence of the airbag warning label authorized by the federal government for Ms. Alexander’s vehicle, rather |7than the newer label designed for subsequently-manufactured vehicles, rendered her vehicle defective. I know of no provision of Louisiana law that would impose upon a seller a duty to warn of any condition short of a product defect. I also note that the plaintiffs have failed to cite any jurisprudence, from Louisiana or any other state, holding a non-manufacturer seller of a car liable for failing to warn about first-generation airbags.

For these reasons, I would affirm the judgment of the trial court. Accordingly, I respectfully dissent.

      . For our purposes we adopt the following definition of a "seller”: "a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” La. R.S. 9:2800.53(2) (emphasis added).

      . The record indicates that Mr. DiCarlo wanted a higher amount for his trade-in of the Toyota than Lakeside was willing to give, so Lakeside contacted A-Quality to see if A-Quality was interested in purchasing the Corolla at Mr. DiCarlo's requested price. A-Quality agreed to the amount, so Lakeside purchased the car from Mr. DiCarlo and then immediately sold it to A-Quality.

      . By noting this fact, we do not imply that Mr. DiCarlo had any duty to do so. See n. 1, ante.

      . The Supreme Court has explained that the duty-risk approach is helpful in cases where the only issue under review is whether the defendant stands in any relationship to the plaintiff so as to create any legally recognized obligation of conduct for the plaintiff’s benefit. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1155 (La.1988).

      . Conversely, whether a defendant breached a duty and whether that breach was a cause in fact of the plaintiff’s injuries are faction questions to be determined by the fact-finder. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 6 (La. 12/1/04), 893 So.2d 1, 5.

      . Cf. Hunt v. Ford Motor Co., 341 So.2d 614, 619 (La.App. 2d Cir.1977) (holding that when "a manufacturing defect causes an accident and the dealer had prior notice of difficulties apparently relating to the defect with an opportunity to discover and correct the defect, in order to avoid liability for damages occasioned by the defect the dealer has the burden of showing he made reasonable and adequate efforts to discover the source of the difficulties and that the defect could not be discovered in spite of such efforts.”)

      . It is axiomatic that appellate courts review the granting of a summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. See Hare v. Paleo Data, Inc., 11-1034, p. 9 (La.App. 4 Cir. 4/4/12), 89 So.3d 380, 387. "A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of summary judgment does not dispose of the entire case.” La. C.C.P. art. 966 E. "[A] motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966 C(l). "The burden of proof remains with the movant.” La. C.C.P. art. 966 C(2). "However, if the mov-ant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. "Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

      . Federal Motor Vehicle Safety Standard 208

      . National Highway Traffic and Safety Administration

      . See 61 FR 60206. The Final Rule was promulgated pursuant to FMVSS 208. According to this regulation, a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is covered by a certification issued under section 30115 of this title. 49 U.S.C. sec. 30112(a)(1). See footnote 5, supra.

      .The label also contained an illustration of an infant strapped into a front-facing child safety; the picture was inside a circle with a diagonal slash across it, a universal symbol for something that is banned.

      . Analogously, subsequent remedial measures are not admissible to prove negligence or culpability in a civil case. See La. C.E. art. 407.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Vonzo MAGEE.
    No. 2012-KA-0151.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 6, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|TOn October 19, 2010, the defendant, Vonzo Magee, was charged by bill of information with possession of heroin, a violation of La. R.S. JOSeeCCXl). The defendant pled not guilty at his arraignment on October 28, 2010. After a suppression and preliminary hearing on January 14, 2011, the trial court denied the defendant’s motion to suppress evidence and found probable cause. The defendant was found guilty of attempted possession of heroin after a jury trial on September 12-13, 2011. On September 30, 2011, the trial court sentenced the defendant to serve four years at hard labor with credit for time served. On the same date, the defendant pled guilty to a multiple bill, alleging him to be a second felony offender. The trial court vacated the original sentence and resentenced the defendant as a second felony offender to serve four years at hard labor, without | ^benefit of probation, parole or suspension of sentence. The defendant was also ordered to pay $35.00 to the Indigent Defense Fund. Thereafter, the defendant filed oral motions for new trial and for reconsideration of sentence. The trial court denied both motions. This appeal followed.

In September 2010, Detective Raymond Veit, with the New Orleans Police Department Narcotics Unit, was part of a multi-jurisdictional narcotics task force. As part of the task force, he was involved in the investigation of possible narcotics trafficking. The investigation involved the surveillance of 4026 Baudin Street. The specific target was Jonathan Lawrence, who resided at 4026 Baudin Street. Det. Veit obtained a search warrant for the premises on September 15, 2010, and executed the warrant on September 17, 2010. A surveillance of the residence was conducted before the warrant was executed. During the surveillance on September 17, 2010, the detective observed Lawrence and the defendant leave the residence and get into a white Cadillac SUV. Lawrence was in the driver’s seat, and the defendant was in the front passenger seat. The officers decided to' stop the vehicle before executing the search warrant. Once the vehicle was secured, Det. Veit, Detective Ashton Gibbs and Detective Vincent executed the search warrant. The officers knocked on the door and announced themselves. Upon entering the residence, they found a woman, later identified as Sonya Williams, in the front bedroom. Shortly thereafter, the other officers arrived at the residence with | ^Lawrence and the defendant. All three were advised of their Miranda rights. The officer asked Lawrence if he had any contraband or weapons in the house. Lawrence acknowledged that there was crack cocaine in the rear bedroom. The officers also found a fully loaded .45 caliber handgun and currency in the amount of fourteen hundred dollars underneath the mattress in the front bedroom. A black digital scale and a couple of boxes of sandwich baggies were also found in the residence. Lawrence was placed under arrest, and in a search incident to arrest, a key to the Baudin Street residence was found in his pants pocket. Williams was charged with possession of crack cocaine because individually wrapped pieces of cocaine were found in a coin purse in her possession.

Detective Ashton Gibbs, a member of the Gretna Police Department, was also a member of the narcotics task force. He was involved in the investigation and execution of the search warrant. Det. Gibbs testified that he observed Lawrence and the defendant leave the Baudin residence and enter a white Cadillac SUV. Lawrence and the defendant left the area. A short time later, the officer learned that Lawrence and the defendant had been detained pursuant to a stop. At that time, he, Det. Veit and Det. Vincent executed the search warrant. Upon entering the residence, the officers encountered a woman sitting in the front bedroom. The woman, Sonya Williams, was detained and later arrested for possession of cocaine. The other officers arrived with Lawrence and the defendant. Det. Veit asked Lawrence if he had any drugs in the residence. Lawrence showed them that there was cocaine in the rear bedroom. Det. Gibbs field tested the substances, which tested positive for cocaine. A handgun and 14fourteen hundred dollars were found in the front bedroom. A digital scale and sandwich baggies were also found in the residence.

Lt. Eric Covell, also a member of the Gretna Police Department and the task force, was the supervisor for the investigation. En route to the Baudin Street address, the officer was informed that Lawrence and the defendant had left the residence in a white Cadillac Escalade. A decision was made to stop the vehicle pri- or to executing the search warrant. Lt. Coveil assisted the stop of the vehicle near the intersection of North Carrollton Avenue and Iberville Street. When the officer approached the vehicle, he observed both Lawrence and the defendant lean forward. He did not know if they were going for a weapon or attempting to hide something. Lt. Coveil went to the passenger side door and told the defendant to get out of the vehicle. After the defendant got out of the vehicle, Lt. Co-vell patted the defendant down for safety purposes. As the officer patted the defendant?s pants, a small plastic bag fell out of the defendant’s right pants leg and onto the ground. Lt. Covell stated that the substance appeared to be either cocaine or heroin. After a field test, the substance tested positive for heroin. The defendant was arrested and handcuffed. Both Lawrence and the defendant were transported to the Baudin Street residence.

Sonya Williams testified that in September 2010, she lived at the Baudin Street residence with her son. She stated that she had known Lawrence for only about one month and that he did not live with her. However, she admitted that Lawrence had keys to the house. Williams testified that on September 17, 2010, |5she was lying in bed, watching television, when the police entered her home. They told her they were looking for Lawrence. The police took her coin purse and found the cocaine in her purse. She acknowledged that she was in possession of cocaine. Williams admitted that she pled guilty to the possession charge and had been sentenced to five years. Williams denied that she or Lawrence made any statements to the police. She also denied that the defendant was with Lawrence at the Baudin Street residence when Lawrence left the house.

A review of the record for patent errors reveals that the trial court sentenced the defendant prior to ruling on the motion for new trial. The sentencing transcript reveals that the defendant filed an oral motion for new trial after the defendant was adjudicated a multiple offender and resen-tenced under the multiple bill.

La.C.Cr.P. art. 873 requires that the trial court wait twenty-four hours after overruling a motion for a new trial to sentence a defendant. Specifically, La. C.Cr.P. art. 873 provides: “[i]f a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled.”

Despite the fact that the court failed to abide by the twenty-four hour waiting period prescribed by La.C.Cr.P. art. 873, the defendant did not challenge his sentence on appeal. This Court has held that when a defendant does not challenge his sentence on appeal, any failure to abide by sentencing delays pursuant to La.C.Cr.P. art. 873 is harmless error. State v. Collins, 584 So.2d 356, 359 (La.App. 4 Cir.1991); State v. Boyd, 2008-0659, pp. 7-8 (La.App. 4 Cir. 11/12/08), 999 So.2d 40, 44; see also, State v. White, 404 So.2d 1202, 1204 (La.1981).

The trial court also committed another patent error when it stated that the defendant’s sentence was to be served without benefit of parole. La. R.S. 15:529.1 1 (-provides that a sentence under the multiple offender statute is to be served without benefit of probation or suspension of sentence, but it does not preclude parole. Also, La. R.S. 40:966(C)(1), the underlying statute, does not prohibit parole. Thus, the defendant’s sentence should be amended to delete the prohibition of parole.

In his sole assignment of error, the defendant argues that the trial court erroneously denied his motion to suppress evidence. The defendant contends that the police officer had no reasonable basis to conduct a pat-down.

It is well-settled that an appellate court should review a trial court’s ruling under a deferential standard with regard to factual determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 2009-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751; State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. Moreover, a trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 2008-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580. In reviewing a denial of a motion to suppress, an appellate court is not limited to the evidence adduced at a suppression hearing, but may consider all pertinent evidence adduced at trial. State v. Adams, 99-2123, p. 4 (La.App. 4 Cir. 1/24/01), 779 So.2d 113, 117.

In Louisiana, a police officer “may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.C.Cr.P. article 215.1(A); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Once a person is stopped pursuant to pursuant to Article 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.C.Cr.P. art. 215.1(B); see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881.

In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts look at the totality of the circumstances, allowing officers to make inferences from and deductions about the cumulative information available to them based on their own experience and specialized training. U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002). An officer’s past experience, training and common sense may be considered in determining if the inferences drawn from the facts were reasonable. State v. Sylvester, 2001-0607, p. 5 (La.9/20/02), 826 So.2d 1106, 1109; State v. Parker, 97-1994, p. 6 (La.App. 4 Cir. 12/9/98), 723 So.2d 1066, 1068.

In the present case, the officers had reasonable cause to stop Lawrence’s vehicle. The officers had a reasonable belief that Lawrence was trafficking heroin and knew that he used his vehicle during the sales. The defendant does not contest that the officers had reasonable cause to stop the vehicle. He contends that because he was not the target of the investigation, the officer had no reasonable basis to conduct a pat down search.

However, Lt. Covell testified that when the officers stopped the vehicle, both Lawrence and the defendant leaned forward in their seats, suggesting the possibility that they were reaching for a weapon or trying to hide something. The officer stated that he asked the defendant to exit the vehicle and then conducted a pat down for safety. The officer noted that many times, those involved in narcotics trafficking also have weapons. As the defendant was seen exiting the Baudin | ^Street residence with Lawrence, the officers were reasonable in their belief that the defendant may have also been involved in narcotics trafficking. Upon conducting the pat down search, the packet of heroin fell out of the defendant’s pant leg and onto the ground.

The courts have consistently upheld an officer’s decision to conduct a safety pat down. In State v. Cure, 2011-2238, pp. 4-7 (La.7/2/12), 93 So.3d 1268, 1270-72, the Supreme Court discussed a police officer’s ability to conduct such pat downs.

We further agree that as part of the stop, Detectives Bagneris and Rocca-forte had the authority to order both the driver and the passenger to step out of the car, even assuming that they lacked any particularized and articulable basis for believing that the occupants posed a risk to their safety. See [Pennsylvania v.] Mimms, 434 U.S. [106,] at 110-11, 98 S.Ct. [330] at 333[, 54 L.Ed.2d 331 (1977) ] (“[W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.... Against this important interest, we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis.”)-, Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997) (‘While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out [during a routine traffic stop], the additional intrusion on the passenger [by extending the rule of Mimms to passengers as well as drivers] is minimal.”); see also 4 Warren R. LaFave, Search and Seizure, § 9.2(d) (4th ed. 2004) (“[0]rdering a suspect out of a car, which the Supreme Court has approved even with respect to a routine traffic stop, is a generally permissible tactic in connection with Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] stops of vehicles.”) (citing Mimms; footnotes omitted). Mimms and Wilson are avowedly bright-line rules, see Wilson, 519 U.S. at 413, n. 1, 117 S.Ct. at 885 (“[T]hat we typically avoid per se rules concerning searches and seizures does not mean that we have always done so; Mimms itself drew a bright line, and we believe the principles that underlay that decision apply to passengers as well.”), and they reflect the premise that “ ‘[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.’ ” Wilson, 519 U.S. at 414, 117 S.Ct. at 886 (quoting Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981)) (footnote omitted).
* * * * * *
|flMoreover, given the “inordinate risk confronting an officer as he approaches a person seated in an automobile,” Mimms, 434 U.S. at 110, 98 S.Ct. at 333, and given also that “ ‘[c]ertainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties’ ” Id. (quoting Terry, 392 U.S. at 23, 88 S.Ct. at 1881), we agree with the trial judge that apart from any search-incident rationale, it was objectively reasonable for Detective Roccaforte to order defendant’s hand unclenched to protect not only himself during the investigation of a nar-cotíes offense but also Detective Bagner-is, who was preoccupied with the driver of the Camry. The relevant question with respect to self-protective searches conducted by the police “is not whether the police officer subjectively believes he is in danger, or whether he articulates that subjective belief in his testimony at a suppression hearing,” but whether “a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of other [persons] was in danger.” State v. Boyer, 2007-0476, p. 20 (La.10/16/07), 967 So.2d 458, 471 (citations omitted); cf. Sylvester, 2001-0607 at 6, 826 So.2d at 1109 (“[T]he officer’s concern for his own protection and that of his partner justified ordering defendant to open his fist.”) (citing United States v. Moore, 235 F.3d 700, 704 (1st Cir.2000) (“Weapons such as knives and razors can ... be concealed inside a closed fist.”)).

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), two police officers stopped the defendant’s vehicle to issue a traffic summons for driving with an expired license plate. One of the officers asked the defendant (the driver and only occupant) to step out of the automobile. As the defendant stepped out of the vehicle, the police officer noticed a bulge under the defendant’s jacket. Suspecting that the bulge might be a weapon, the officer frisked the defendant and discovered that the bulge was a loaded revolver. Reversing the state court’s decision that the officer’s ordering the defendant out of the car was an impermissible seizure of the person, the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” Id. at 111 n. 6, 98 S.Ct. at 333 n. 6. The Court recognized that the inquiry in any Fourth Amendment analysis is whether the search or seizure was reasonable under all of the circumstances, noting 11flthat the determination of reasonableness requires a balancing of the public interest and the individual’s right to be free from arbitrary governmental interference.

In regards to the public interest factor, the Court determined that the police officer’s ordering the defendant out of his car in order to establish a face-to-face observation diminished the substantial possibility that the defendant might have made unobserved movements and reduced the likelihood of an attack on the officer. Then turning to the defendant’s privacy interest, the Court stated that because the defendant had been lawfully detained, the officer’s ordering the defendant out of the car was an incremental intrusion into the defendant’s personal liberty which “can only be described as ‘de minimis.’ Id. at 111, 98 S.Ct. at 333. The Court concluded that this de minimis intrusion could not prevail over the justified concern for the officer’s safety under the circumstances.

In State v. Cure, supra, the defendant, the passenger in the vehicle, was asked to step out of the vehicle. When the defendant got out of the vehicle, the police officer noticed that the defendant’s hand was clenched. The officer requested the defendant to open his hand, and when he did, the officer found two packets of heroin in the defendant’s hand. The Court noted that the officer’s request was reasonable in light of safety concerns during a narcotics investigation.

Similarly, in the present case, the defendant was asked to step out of the vehicle. Lt. Covell testified that he conducted a safety pat down because he had seen the defendant leaning forward in the vehicle when the officers stopped the car. The officer knew that the driver was suspected of narcotics trafficking and that weapons are commonly found with narcotics. Thus, the officer had a reasonable basis for believing that the defendant could be armed and was leaning forward in an attempt to reach for a weapon. The officer was justified in |n conducting the pat down for safety. The trial court did not err when it denied the motion to suppress.

This assignment is without merit.

For the reasons stated above, we affirm the defendant’s conviction. We amend the defendant’s sentence to delete the prohibition of parole and, as amended, affirm the sentence.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . Co-defendants Jonathan Lawrence and Sonya Williams were also charged in the bill of information. Lawrence was charged with possession with the intent to distribute cocaine and possession of a handgun by a convicted felon. Lawrence was tried with the defendant, Vonzo Magee. The jury found Lawrence guilty of possession of cocaine and attempted possession of a handgun by a convicted felon. He was sentenced to five years at hard labor on the cocaine possession charge and seven and one half years at hard labor on the handgun charge. Lawrence was multiple billed on the cocaine charge, to which he pled guilty. His original sentence was vacated, and he was resentenced to five years at hard labor. Williams was charged with possession with the intent to distribute cocaine and possession of a handgun by a convicted felon. The cocaine charge was amended to possession of cocaine, to which she pled guilty. She was sentenced to five years at hard labor. The handgun charge was dismissed. Williams was multiple billed on the cocaine charge, to which she pled guilty. Her original sentence was vacated, and she was resentenced to five, years at hard labor.

      . Det. Veit was the only officer who testified at the suppression hearing. He testified that he obtained a search warrant for the Baudin address after being informed by a confidential informant that Jonathan Lawrence was selling heroin from that residence. A controlled purchase of heroin from Lawrence was conducted. Surveillance of the residence was set up prior to the controlled purchase. Another police officer. Detective Ashton Gibbs, followed Lawrence from the Baudin Street residence to the site of the controlled purchase. Det. Gibbs continued the surveillance and followed Lawrence back the Baudin Street residence after the controlled purchase. Det. Veit testified that the substance purchased during the controlled buy tested positive for heroin. The rest of the officer’s testimony at the suppression hearing is the same as his trial testimony.

      . It was stipulated at trial that if William Gilbin, of the New Orleans Police Department Crime Lab, was called to testify, he would state that the substance found on the defendant tested positive for heroin.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Gary GIRARD.
    No. 2012-KA-0790.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 6, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellee.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

bThe defendant, Gary Girard, appeals his conviction and sentence for possession of heroin. For the following reasons, we affirm.

PROCEDURAL HISTORY OF CASE

The defendant was charged by bill of information with possession of heroin. At arraignment, the defendant entered a plea of not guilty. The trial court denied pretrial motions. After a jury trial, the defendant was found guilty as charged. After pleading guilty to an amended multiple offender bill charging him as a second felony offender, the defendant was sentenced to serve eighteen years at hard labor to run concurrently with any other sentence.

This timely appeal follows.

STATEMENT OF THE FACTS

Detectives Wayne Jacque and Kareem Jefferson of the New Orleans Police Department were the only witnesses to testify at trial. Both testified that the defendant was arrested after he was observed making a drug purchase from Janero McBride, who was the subject of a police investigation involving narcotics distribution near the intersection of Pauger and North Villere Streets.

|20n July 22, 2010, following the receipt of information from a confidential informant, Detective Jacque established surveillance near the intersection. At that time, he observed a male, later identified as Mr. McBride, make several hand-to-hand narcotics transactions. During the transactions, a buyer would approach McBride and hand him currency. Mr. McBride then entered a nearby abandoned house, remained inside briefly, came back out, returned to the buyer, and handed over a small object. On the first day of the surveillance, no attempts were made to stop any of the suspected buyers or Mr. McBride.

On July 23, 2010, Detective Jacque resumed surveillance and observed Mr. McBride sitting on the front steps of 2104 Pauger Street. A white male, later identified as the defendant, approached on foot. As with the earlier suspected narcotics transactions, the defendant handed Mr. McBride currency; Mr. McBride entered the abandoned house at 2108 Pauger, then returned to the defendant within five minutes and handed him a small object. With binoculars, Detective Jacque was able to see that the object was wrapped in foil. The detective, an eighteen-year veteran, testified that the foil was consistent with packaging for heroin. After the defendant walked away from Mr. McBride, Detective Jacque broadcast his description to the take-down unit and requested that he be stopped.

Detective Jefferson was one of the members of the take-down unit. Based upon the information relayed by Detective Jac-que, the defendant was detained a few blocks away. The defendant was advised of his rights and of the purpose for the stop. During his interaction with the defendant, Detective Jefferson observed a foil-wrapped object in the defendant’s mouth. He directed the defendant to spit the object out and seized the object. He opened the foil, and found a substance inside, which field-tested positive for heroin. The defendant’s arrest followed.

| sShortly thereafter, McBride was arrested for distribution of heroin. Officers searched 2108 Pauger Street and found numerous tin foil-wrapped packets of heroin, consistent with the packets found on the defendant, and a substantial amount of crack cocaine. Cocaine was also seized from McBride’s person.

ERRORS PATENT

A review for errors patent reveals that the bill of information is missing from the record. In State v. Hart, 2010-1614, p. 3 (La.App. 4 Cir. 11/2/11), 80 So.3d 25, 28 (citing State v. Mitchell, 553 So.2d 915 (La.App. 4 Cir.1989)), this Court found that a record lacking a bill of information was harmless error, where the defendant made no complaint that he was unable to properly defend himself; the docket master indicated that the bill of information had been filed; and the record reflected that the bill of information was read to the jury at the beginning of the trial.

Here, the record shows that a bill of information was filed. The trial transcript reflects that the bill of information was read to the jury at the commencement of trial without objection by the defendant. No motion to quash the bill of information was filed by the defendant, nor has he alleged any prejudice due to the lack of a bill of information in the appellate record. Accordingly, the absence of the bill of information is harmless.

DISCUSSION

On appeal, the defendant argues that the trial court abused its discretion in allowing the State to admit the crime lab report even though a copy was not provided to the defense pursuant to his written discovery request.

The State was in possession of the crime lab report at issue. This report included positive drug-test results on all of the evidence recovered from the | incident: heroin from the defendant, cocaine from McBride, and cocaine and heroin from the abandoned house. Just before trial, when the criminalist was present to testify, the prosecutor approached defense counsel and requested that she stipulate to the crime lab report. After agreeing to make the stipulation, defense counsel realized that she did not have a copy of the report in her file.

During trial, defense counsel stipulated to the contents of the report, reserving her objections to the relevancy of the evidence concerning McBride and the abandoned house, as well as the untimely disclosure of the report. At the conclusion of trial, defense counsel made a record of her previous timeliness objection, and moved for a mistrial on this basis. At that time, the prosecutor stated that he was not aware that the document was not provided to the defense and noted that the defendant had agreed to stipulate to the report before trial.

La.C.Cr.P. art. 729.5 authorizes the trial court to sanction a party who has failed to comply with the discovery rules set forth in the Louisiana Code of Criminal Procedure. Under La.C.Cr.P. art. 729.5, the court “may,” among other things, prohibit the party from introducing into evidence the subject matter not disclosed.

Louisiana’s criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to respond to the State’s case, and to allow a proper assessment of the strength of the State’s case. La.C.Cr.P. arts. 716-729; State v. Brazley, 97-2987, (La.9/25/98), 721 So.2d 841, 842 (per curiam). When á defendant is lulled into a misapprehension of the strength of the State’s case through the State’s failure to fully disclose, basic unfairness may result. Id. Mistrial is only one of several | ¿remedies provided by La.C.Cr.P. art. 729.5 for discovery violations; a trial court may also grant a continuance or prohibit introduction of the evidence not disclosed in a timely manner. State v. Lee, 00-2429, p. 19 (La.App. 4 Cir. 1/4/01), 778 So.2d 656, 666. It is within a trial court’s discretion to exclude evidence or enter any appropriate order to remedy a party’s violation of a discovery right. Id. (citing State v. Bourque, 96-842 (La.7/1/97), 699 So.2d 1, cert. denied, 523 U.S. 1078, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998)).

The record demonstrates that the State failed to timely provide the defense with a copy of the crime lab report before trial; however, there is nothing to indicate that the defense was prejudiced by the late production of the contents of the report. The testimony at the motion hearing reflected that the substance seized from the defendant had field-tested positive for heroin. Defense counsel was willing before trial, and without allegedly having seen the report, to stipulate to it. Further, defense counsel did in fact stipulate to the contents of the report at trial; while reserving her relevancy objection to the admission of the drugs associated with McBride and the abandoned house.

Since the defendant has failed to show that he suffered any prejudice, we cannot find that the trial court abused its discretion in admitting the lab report or in refusing to grant a mistrial.

Besides, the record before us indicates that the defendant primarily took issue with the admission of the drugs recovered from Mr. McBride and the abandoned house, not the timely nature of the lab report. Thus, the defendant’s additional assignment of error on appeal involves the relevancy of this particular evidence. He argues that the evidence associated with Mr. McBride and the house was irrelevant, had no probative value, and was highly prejudicial.

IfiAt trial, the State admitted all of the drugs seized into evidence, as well as the results of the tests on all of the drugs. Defense counsel stipulated that, if called to testify, the criminalist would testify that the substance seized from the defendant tested positive for heroin. However, she objected to the admission of any drug evidence not pertaining to her client. The State argues that the evidence of the other drugs was relevant, probative, and constituted res gestae. We agree.

A trial court’s ruling as to relevancy will not be disturbed absent a clear abuse of discretion. State v. Sanders, 12-409 (La.App. 4 Cir. 11/14/12), 104 So.3d 619, 629-30 (citations omitted). A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. Id. (citation omitted). Relevant evidence is 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. C.E. art. 401.

Using the doctrine of “res ges-tae ” ‘the State complete^] the story of the crime on trial by proving its immediate context of happenings near in time and place.’ State v. Taylor, 01-1638, p. 10 (La.1/14/03), 838 So.2d 729, 741 (quoting State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076, quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). Res gestae includes testimony of witnesses regarding what they heard or observed before, during, or after the commission of the crime, if a continuous chain of events is evident under the circumstances. State v. Grant, 41,745, p. 15 (La.App. 2 Cir. 4/4/07), 954 So.2d 823, 835, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629.

|7In Grant, supra, the defendant, along with several others, was arrested during the execution of a search warrant of an apartment. The defendant was observed dropping a plastic bag, which contained separately packaged bags of cocaine, inside of a hole in the bathroom. Id., 41,745 at 2, 954 So.2d at 828. A search of the bedroom yielded more cocaine, as well as ecstasy tablets. Id. The appellate court found that the drugs from the bedroom were properly admissible because it was part of “res gestae ” and, though not construed as belonging to the defendant, the drugs provided the jury information from which they could infer that the apartment was a place used for drug distribution. Id., 41,745 at 15-16, 954 So.2d at 828.

As in Grant, the admission of the narcotics recovered from the abandoned house and Mr. McBride’s person constitutes “res gestae.” Though not belonging to the defendant, the evidence relative to the recovery of the other drugs allowed the State to present a complete chain of events. The introduction of the actual narcotics allowed the jury an opportunity to observe whether the narcotics possessed by the defendant were packaged the same way as the narcotics connected to Mr. McBride. This would support or controvert Detective Jac-que’s testimony that the defendant had just purchased the drugs from Mr. McBride. In the context of this case, we cannot say that the trial court abused its discretion in determining that probative value outweighed any unfair prejudice and admitting the evidence.

For the reasons discussed, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . McBride's first name is spelled "Genaro” (phonetically) throughout the transcripts. However, the police report reflects that his first name is spelled "Janero.”

      . The record reflects that the timeliness objection occurred during a side bar conference.

      . Although trial counsel did not specifically state that the evidence was not relevant, the record reflects that this was the basis for the objection.