author: PICKETT, Judge.

text:
    Vidal SKINNER, et al. v. STATE of Louisiana, et al.
    No. 14-193.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Andrew P. Texada, Stafford, Stewart & Potter, Alexandria, LA, for Defendant-Ap-pellee, Charles F. Wagner, Jr., Sheriff of Rapides Parish.
    James “Buddy” Caldwell, Attorney General, Edward M. Campbell, Special Assistant Attorney General, Natchitoches, LA, for Defendant-Appellant, State of Louisiana, Department of Health & Hospitals.
    Edwin Henry Byrd, III, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Defendant-Appellant, Red River Waterway Commission.
    James A. Peltier, Jr., Dudley Debosier, Baton Rouge, LA, for Plaintiffs-Appellants, Vidal Skinner Yolanda Skinner.
    B. Scott Andrews Due, Price, Guidry, Piedrahita & Andrews, P.A., Baton Rouge, LA, for Plaintiffs-Appellants, Vidal Skinner, Yolanda Skinner.
    S. Christie Smith, IV Smith Bush, L.L.P., Alexandria, LA, for Plaintiffs-Appellants Vidal Skinner, Yolanda Skinner.
    Mark F. Vilar, Aaron L. Green, Vilar & Elliott, LLC, Alexandria, LA, for Defendant-Appellant, Cleco Power, LLC.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

h Cleco Power, LLC, appeals a judgment of the trial court granting summary judgment in favor of Charles F. Wagner, in his capacity as Sheriff of Rapides Parish, and dismissing all claims against Sheriff Wagner under the terms of La.Code Civ.P. art. 966(G). The plaintiffs, Vidal Skinner and his wife Yolanda, also appeal in order to preserve their rights against Sheriff Wagner in the event this court reverses the judgment of the trial court, but in their brief they pray that we affirm the trial court’s judgment.

STATEMENT OF THE CASE

On April 5, 2011, Vidal Skinner, an inmate at the Rapides Parish Detention Center, was assigned to work release duty for the Red River Waterway Commission (RRWC) at the Lake Buhlow Recreation Area in Pineville. While he was carrying a ten-foot-long metal conduit, the pole came in contact with an electrical line, causing Mr. Skinner to sustain severe injuries.

Mr. Skinner and his wife filed suit against the State of Louisiana, the owner of the land, RRWC, which maintained the park and had custody of Mr. Skinner at the time of the accident, Sheriff Charles Wagner of Rapides Parish, and Cleco Power, LLC. The Sheriff filed a motion for summary judgment, alleging that there was no genuine issue of material fact that either he or his employees knew or should have known of any dangerous working conditions at the site where Mr. Skinner was injured. In the alternative, the Sheriff alleged that La.R.S. 15:708(H) provided statutory immunity in this case. Louisiana Revised Statutes 15:708(H) states:

|2A prisoner participating in any of the inmate labor programs authorized by this Section shall have no cause of action for damages against the sheriff or any parish or municipal authority conducting the program or supervising his participation therein, nor against any deputy, employee, or agent of such sheriff or parish or municipal authority, for any injury or loss suffered by him during or arising out of his participation in the program, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the sheriff or the parish or municipal authority or the deputy, employee, or agent of the sheriff or parish or municipal authority. Nor shall liability be imposed on the sheriff or the parish or municipal authority or the deputies, employees, or agents of the sheriff or the parish or municipal authority for any injury caused by a prisoner participating in any of the inmate labor programs authorized by this Section unless the gross negligence or intentional act of the sheriff or any parish or municipal authority or the deputy, employee, or agent of the sheriff or the parish or municipal authority was a substantial factor in causing the injury. No provision hereof shall negate the requirement to provide a prisoner with necessary medical treatment as statutorily required.

The plaintiffs did not object to the dismissal of the Sheriff as a defendant as long as the trial court found he was not negligent, thus triggering, the effects of La.Code Civ.P. art. 966(G), which states:

(1) When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or nonparty is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or nonparty shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or nonparty nor shall the issue be submitted to the jury nor included on the jury verdict form. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with

. Article 1005, except for negligence or fault.

(2) If the provisions of this Paragraph are applicable to the summary judgment, the court shall so specify in the judgment. If the court fails to specify that the provisions of this Paragraph are applicable, then the provisions of this Paragraph shall not apply to the judgment.

The state opposed the Sheriffs motion for summary judgment. It argued that the type of work performed by Mr. Skinner at the time of the accident is not |scovered by the immunity statute, La.R.S. 15:708. It also argued that the Sheriff was negligent in failing to inspect the working conditions and provide proper training to the inmate.

Cleco and RRWC opposed the Sheriffs motion in part. They argued that there is no genuine issue of material fact that the Sheriff is not grossly negligent and thus statutorily immune from this suit. They alleged, however, that there is an issue of material fact about whether the Sheriff was negligent, and therefore the issue of the Sheriffs negligence should be presented to the trier of fact at trial, and the Sheriffs fault should be quantified.

The trial court granted summary judgment, finding there was no evidence in the record that the Sheriff breached any duty to Mr. Skinner. The judgment specifically stated that the judgment is based on a finding of no negligence and the provisions of La.Code Civ.P. art. 966(G) apply. The state, RRWC, and Cleco appealed that judgment. Mr. Skinner and his wife also appealed, arguing the judgment should be affirmed, but reserving their right to proceed against the Sheriff if the judgment is reversed.

ASSIGNMENTS OF ERROR

On appeal, the state, through DHH, asserts two assignments of error:

1. It was error for the trial court to grant the Sheriffs motion for summary judgment with a finding that there were no issues of fact regarding the fault of the Sheriff in the causation of the damages that the parties have a right to have decided by a jury.
2. It was error for the trial court to grant summary judgment when there are material issues of fact as to the Sheriffs duties and breach thereof.

14RRWC asserts two assignments of error:

1. It was error for the District Court to conclude that the Sheriff was not negligent where it was undisputed that there were checks by the Sheriffs Office, including at the building adjacent to where this accident occurred, and where plaintiffs contended that the electric line at issue was a hazard that the other defendants knew or should have known existed.
2. Whether there was evidence of negligence, but not adequate evidence of gross negligence, whether the judgment should have referenced La. Code Civ.P. art. 966(G).

Cleco ásserts three assignments of error:

1. The trial court committed legal error when it granted summary judgment finding that there was an absence of evidence that the Sheriff owed any duty at all to the plaintiff, an inmate trustee participating in a work release program.
2. The trial court committed legal error when it failed to conduct a “duty risk” analysis before summarily finding the Sheriff was not negligent, barring any further consideration of the Sheriffs failures by the jury at trial.
3. The trial court committed legal error when it granted summary judgment holding that there is no evidence that the Sheriff breached any duty owed to the plaintiff when:
i. the Sheriff placed the plaintiff in the custody and control of RRWC employees who received zero training before being commissioned by the Sheriff;
ii. the RRWC employees who were commissioned by the Sheriff and who were responsible for supervising inmate trusties admitted they were not supervising the plaintiff at the time he was injured;
iii. full-time Sheriffs employees made only “sporadic,” “drive-by” visits to check on the untrained, RPSO commissioned RRWC employees and the inmates under their care and control;
iv. full-time Sheriffs employees never visited nor did they know the commissioned employees’ and work release inmates’ primary work area (the place where the plaintiff was injured) existed despite providing inmates to the RRWC for approximately twenty years prior to the accident at issue;
[v. the Sheriff never inspected the ■ plaintiffs primary work area to ensure this inmate was working in a reasonably safe environment; and
vi. the Sheriff did not provide any warnings or conduct any safety training to the plaintiff prior to releasing him to work at the facility where the injury occurred.

The plaintiffs ask that we affirm the judgment of the trial court, but, in the event we reverse the trial court’s judgment, they adopt the arguments of the remaining defendants.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria as the trial court to determine if summary judgment is appropriate. Firmin v. Firmin, 13-401 (La.App. 3 Cir. 10/9/13), 123 So.3d 906. Summary judgment shall be rendered “if the pleadings, depositions, -answers to interrogatories, and admissions, together with the affidavits, if any, admitted, for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that 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. 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.

liiLa.Code Civ.P. art. 966(G)(2). The party opposing summary judgment must produce competent evidence setting forth specific facts that there is a genuine issue for trial; he cannot rely on mere allegations or denials. La.Code Civ.P. art. 967(B).

Louisiana courts resolve most negligence cases by employing a duty/risk analysis, under which a plaintiff must prove five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard of care; (2) whether the defendant’s conduct failed to conform to the appropriate standard of care; (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) whether the plaintiff was damaged. S.J. v. Lafayette Parish School Board, 2009-2195, p. 8 (La.7/6/10); 41 So.3d 1119,1125; Brewer v. J.B. Hunt Transport, Inc., 2009-1408, p. 14 (La.3/16/10); 35 So.3d 230, 240; Hanks v. Entergy Corp., 2006-477, p. 20-21 (La.12/18/06); 944 So.2d 564, 579. “The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law.” Hanks, 2006-477, p. 21; 944 So.2d 564.

Milbert v. Answering Bureau, Inc., 13-22, p. 15 (La.6/28/13), 120 So.3d 678, 687-88.

A jailer has an obligation to provide a reasonably safe place for inmates to work, but he is not obliged to insure the safety of inmates. Brewington v. La. Dep’t of Corr., 447 So.2d 1184 (La.App. 3 Cir.), writ denied, 449 So.2d 1348 (La. 1984). In this case, the other defendants raise primarily three duties that the Sheriff allegedly owed to Mr. Skinner. The first is a duty to inspect the particular location where Mr. Skinner was located and notice the alleged defectively-installed exposed power line. We have held that a sheriff does not have a duty to insure a safe environment for inmates working off prison grounds. Lee v. State, ex rel. Dep’t of Pub. Safety & Corr., 10-1013 (La.App. 3 Cir. 3/30/11), 60 So.3d 106. We find that the Sheriff did not have a duty to inspect the entirety of the area where Mr. Skinner worked in search of defects. The parties dispute whether any sheriffs deputy who made visits to the site visited the barn where Mr. Skinner sometimes |7worked, or whether they knew of the area behind the barn where the accident occurred, we find this is not a material fact.

The second duty the remaining defendants allege the Sheriff owed to Mr. Skinner is the duty to properly train Mr. Skinner about workplace safety, including the dangers of horseplay. We find the Sheriff did not have such a duty. Neither the Sheriff nor his employees were not on site and did not supervise the daily activities of inmates at the worksite. The Sheriff did not assign the manual labor tasks. Finally, the remaining defendants allege the Sheriff did not properly train the RRWC employees who had a special limited commission from the RPSO for the purpose of supervising the inmates. We find the contract is clear about the duties of the RRWC employees to supervise the inmates under their charge at all times, and any further training would not have prevented this particular accident.

We further note that imposing any of these duties on the Sheriff in this case would have a detrimental effect on the ability of any sheriff to allow inmates to participate in work programs outside the jail for other public entities. The cost of expanded training and inspections of facilities would be prohibitive.

We find the trial court was correct when it found the Sheriff did not have a duty to protect Mr. Skinner from the particular harm he suffered. The trial court properly granted the motion for summary judgment pursuant to the terms of La.Code Civ.P. art. 966(C).

CONCLUSION

The judgment of the trial court is affirmed. The costs of this appeal in the total amount of $3,517.50 are assessed one-third to the state, through DHH, one-third to RRWC, and one-third to Cleco.

AFFIRMED.

      . The plaintiffs originally sued the State through the Department of Recreation and Tourism. Later, they discovered that the Department of Health and Hospitals (DHH) was the record owner of the land and added DHH as a defendant.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Donald Lester NOWELL v. NABORS DRILLING USA, LP.
    No. 14-206.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Rusty Savoie, Covington, LA, for Claimant/Appellant Donald Lester Nowell.
    Kevin A. Marks, Jennifer L. Sinder, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee Nabors Drilling USA, LP.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

| ,In this workers’ compensation case, Claimant/Appellant, Donald Lester No-well, appeals the judgment of the Office of Workers’ Compensation (OWC) in favor of Defendant/Employer, Nabors Drilling USA, LP (Nabors), finding that Mr. No-well failed to meet his burden of proving that he sustained a compensable, work-related injury. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

Mr. Nowell filed a disputed claim for compensation on August 17, 2012, seeking: (1) “a determination of whether he is entitled to treatment for shoulder pain/discomfort[ ]”; (2) “a determination of whether the physical therapy approved by the Employer is consistent with that prescribed by the Employer’s choice of physician! ]”; and, (3) “arbitrary and capricious penalties and attorney! ] fees.”

Mr. Nowell alleges that on May 12, 2012, while working as a derrickman for Nabors at a land-based rig near Shreveport, Louisiana, he injured his lower back and right shoulder in the course and scope of his employment. Due to Mr. Nowell’s complaint of lower-back pain, he was transported to the Occupational Medicine Clinic in Lafayette, Louisiana, where he was evaluated by Dr. Frank Baniewicz.

Mr. Nowell testified at trial that he was in the middle of a fourteen-day hitch when he injured his back. He explained that he injured his back while in the process of tripping pipe, which he described as maneuvering drilling pipe into a hole. According to Mr. Nowell, the pipe “fell in the wrong direction! ]” so he “put a rope around it to pull it back. That process is what hurt my back.” Afterward, |2Mr. Nowell was transported four-and-one-half hours to the Occupational Medicine Clinic in Lafayette. Dr. Baniewicz performed x-rays and recommended over-the-counter pain medication and rest. However, Mr. Nowell was found to have no physical impairment; therefore, Dr. Baniewicz deemed him capable of returning to work. Mr. Nowell then returned to the land-based rig and did work for six of the remaining eight days of his fourteen-day hitch.

Specifically, Dr. Baniewicz’s medical records reveal, in pertinent part:

The patient works a 14 and 14 hitch!,] and he is just about one week into his hitch. We talked about protected [sic] activities for the remainder of his hitch!,] and then he will have 14 days before he is expected to be back to work. We talked about what to expect in terms of symptomatology and actually suspect that he will tighten up and get a little worse before he gets better.

According to Mr. Nowell, two days later, he began feeling pain in his shoulder, so he called for Dr. Baniewicz. Dr. Baniewicz’s medical records do not reflect that Mr. Nowell’s shoulder pain was related to the May 12, 2012 incident. Dr. Baniewicz’s May 14, 2012 Chart Notes state:

This is a note to document that [Mr. Nowell] called in to let me know that he was having a little bit of tightness in his shoulder. He didn’t know if it was related to his back at all[,] but I encouraged him to call me if he had any concerns!,] and so he wanted to let me know.
It sounds like things are going fíne at the facility where he is working. He has been using Aleve and Tylenol without difficulty. It seems to be helping. His sciatic complaints seem to be less than when I talked to him last time.
Basically, it doesn’t sound to be any issue at the present time[,] but [Mr. Nowell] wanted to let me know about his shoulder. He understands that would not be related to his back at this time.

Mr. Nowell testified that he was not told by Dr. Baniewicz that his back and shoulder injuries were unrelated. In fact, at trial, Mr. Nowell disputed the veracity |sof Dr. Baniewicz’s medical records. He denied speaking to Dr. Baniewicz on May 14, 2012, and he denied that he ever told Dr. Baniewicz, or anyone on his staff, that his shoulder pain was not related to his back condition. According to Mr. Nowell, Dr. Baniewicz called him three weeks later and “started discussing with [him] a case that [had] to do with [Mr. Nowell’s] cousin.” This is the first instance of a dispute Mr. Nowell had with a treating physician.

Mr. Nowell claims that he was allowed to rest in the crew trailer for two days and that he returned to work because he felt pressured to do so. He worked until the end of his fourteen-day hitch on May 20, 2012.

On May 23, 2012, Mr. Nowell saw Dr. Bruce Senter at the Mississippi Spine Clinic. Dr. Senter’s medical records note that he saw Mr. Nowell for complaints of lower-back pain, but there is no notation of shoulder pain. Mr. Nowell claims that he did report shoulder pain to Dr. Senter. In his deposition, Dr. Senter testified that in his initial visit with Mr. Nowell, he observed normal motor strength and a normal straight-leg test. He reviewed Mr. Nowell’s x-rays which were performed by Dr. Baniewicz, and he “thought they were also normal.” Dr. Senter diagnosed Mr. Nowell with “a low back strain or a lumbar strain.” He recommended physical therapy, prescribed pain medication and muscle relaxers, ordered a lumbar MRI, and restricted Mr. Nowell from working until his follow-up appointment in three weeks. When Mr. Nowell next saw Dr. Senter on June 13, 2012, Dr. Senter found the results of the MRI normal and found Mr. Nowell able to return to work without restrictions. Notably, Mr. Nowell had not received any physical therapy as |4Pr. Senter had recommended. When asked at trial why he had not attended physical therapy, Mr. Nowell explained, “I was asked by you, and it was discussed with Bonnie Faulken-berry, the adjuster for FARA, that it would not be wise to do the MRI till — I mean, not to do the physical therapy until after the MRI.” According to Mr. Nowell, Dr. Senter was dismissive of his medical complaints, and he was released from Dr. Senter’s care because this was a workers’ compensation matter. This is the second instance of a dispute Mr. Nowell had with a treating physician.

At Nabors’ request, Mr. Nowell was evaluated on July 10, 2012, by orthopedist, Dr. Michael Duval. According to Dr. Du-val, Mr. Nowell complained of lower-back pain and right leg numbness. Mr. Nowell did not report shoulder pain at this initial evaluation.

In October, 2012, Mr. Nowell filed a request to change treating physicians, alleging that his original choice, Dr. Senter, did not treat workers’ compensation patients. Mr. Nowell’s request was granted on November 2, 2012.

On November 14, 2012, Mr. Nowell saw orthopedic surgeon, Dr. Douglas Brown. Dr. Brown recommended a lumbar epidural steroid injection at L5-S1 and restricted him from returning to work. According to Dr. Brown, Mr. Nowell had a chronic back condition which was aggravated by his work accident.

Mr. Nowell saw Dr. Duval again on December 13, 2012. According to Dr. Duval, Mr. Nowell reported lower-back pain, shoulder pain, urinary and bowel issues, and sexual dysfunction. Dr. Duval ordered a repeat lumbar MRI. [¡According to Dr. Duval, the findings on the MRI were consistent with the normal aging process.

Mr. Nowell was again seen by Dr. Brown on February 13, 2013. Dr. Brown recommended that he receive injections at L2-3 and L3-4.

At trial on April 2, 2013, Nabors did not dispute the occurrence of Mr.' Nowell’s accident; instead, it challenged Mr. No-well’s allegation that the accident caused injury to the degree alleged by him, and, in turn, Nabors contested Mr. Nowell’s entitlement to indemnity and medical ben-

efits. The workers’ compensation judge (WCJ) took the matter under advisement and accepted post-trial memoranda. On August 19, 2013, the WCJ issued oral reasons for judgment, denying all relief sought by Mr. Nowell. In her oral reasons, the WCJ elaborated:

I have to say that I do regret ordering the change of physician. I do feel that I was mislead [sic]. It was a consideration of mine in allowing the change of choice of physician that Dr. Senter did not accept workers’ comp patients. And while I didn’t focus on this exclusively in my ruling on that issue, I did mention how uncomfortable I was dealing with doctors from a different state and not knowing whether or not those doctors would accept [the] Louisiana Fee Schedule.
So, after reading Dr. Senter’s deposition and his unequivocal statement that he did treat workers’ comp patients, I have to say, had I had that information at the time of the hearing, I would not have allowed the change of choice of physician. Since I did order it, any services provided by Dr. Brown do need to be paid for, but I don’t order any further treatment with Dr. Brown or otherwise.
I feel I was mislead [sic], both in the change of physician hearing and in briefing where plaintiffs counsel attempts to argue that Dr. Senter didn’t know what he was talking about or was confused about ordering the MRI. I think the only confusion Dr. Senter experienced was that[,] in his opinion[,] appropriate medical treatment dictated waiting six weeks or so before obtaining the MRI, and so that’s why Dr. Senter originally didn’t think he had ordered the MRI. I think when Mr. Nowell showed up, talking about his attorney, the MRI |6was obtained that day. So, any confusion was simply generated, basically, by the claimant himself.
There were three orthopedist specialists, each having a different opinion. Though, all are of the opinion that there is no serious condition requiring surgery. There were multiple instances of questions regarding the claimant’s trustfulness. For example, his testimony about Dr. [Bruce] Senter not taking comp patients, his bowel and bladder and sexual misfunction [sic] complaints that Dr. [Michael] Duval mentioned. He told Dr. [Douglas] Brown on November 14, 2012, that his bowel movement frequency has recently changed to diarrhea, and this was four months after he told Dr. Duval of his bowel problems. Maybe four months is recent, maybe not. It just seems as though Mr. No-well was game playing and doctor shopping.
So I don’t find Mr. Nowell credible; and[,] for that reason, I don’t believe the evidence preponderates in his favor. He is not entitled to any further benefits.

Concomitant with her oral reasons, the WCJ signed a Judgment on September 6, 2013, which decreed:

Employer, Nabors Drilling USA, LP, reasonably controverted the claim, and that Claimant, Donald Lester Nowell, is entitled to no further indemnity or medical benefits;
... Employer, Nabors Drilling USA, LP, was responsible for Claimant’s two (2) office visits with Dr. Douglas Brown on November 14, 2012[,] and February 13, 2013. Counsel for Nabors Drilling USA, LP, confirmed that payment was issued for these two (2) office visits. Accordingly, Nabors Drilling USA, LP, has satisfied its obligations to pay all compensable medical benefits on behalf of [Mr. Nowell].

Mr. Nowell appeals that judgment.

ASSIGNMENTS OF ERROR

Mr. Nowell assigns the following errors for our review:

1. The decision of the Office of Workers’ Compensation was manifestly erroneous in failing to award Appellant indemnity benefits.
2. The decision of the Office of Workers’ Compensation was manifestly erroneous in failing to award Appellant additional medical treatment.
[73. The decision[ ] of the Office of Workers’ Compensation was manifestly erroneous in failing to award penalties and attorney[ ] fees.

LAW AND DISCUSSION

Each of Mr. Nowell’s three assignments of error address the WCJ’s determination that he failed to prove that the accident produced the alleged injuries. Nabors argues that the evidence refuted the occurrence of a compensable work-related injury.

This court, in Lynch v. A Door Works, Inc., 11-414, p. 3 (La.App. 3 Cir. 10/5/11), 72 So.3d 1033, 1035, writ denied, 11-2457 (La.1/13/12), 77 So.3d 965, set forth the standard of review to which this court must adhere, as follows:

The standard of review applied in workers’ compensation cases to a WCJ’s finding of fact is the “manifest error— clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. The court of appeal may not set aside the findings of the WCJ “unless they are found to be clearly wrong in light of the record reviewed in its entirety.” Id. (quoting Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). “[E]ven where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier, the court of appeal may not reverse if the factfin-der’s findings are reasonable in light of the record reviewed in its entirety.” Winford v. Conerly Corp., 04-1278, pp. 15-16 (La.3/11/05), 897 So.2d 560, 569-70.

We find no merit to Mr. Nowell’s contention that the WCJ erred in finding that he failed to meet his burden of proving that he sustained a compensable work-related injury.

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course and scope of employment. La. R.S. 23:1031(A). Louisiana Revised Statutes 23:1021(1) (emphasis added) states: “ ‘Accident’ means an unexpected or unforeseen actual, | ¡^identifiable, precipitous event happening suddenly or violently, ■with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.In order to receive compensation benefits, Mr. Nowell must prove that his accident produced his lower-back and shoulder injuries. That, he did not do.

Mr. Nowell had the burden of proving that the accident produced the alleged injuries. Gradney v. Louisiana Commercial Laundry, 09-1465 (La.App. 3 Cir. 5/12/10), 38 So.3d 1115. However, the degree of Mr. Nowell’s alleged injury was not substantiated by the medical evidence presented in this case. Therefore, the WCJ had to consider the plausibility of Mr. Nowell’s testimony.

In Gradney, 38 So.3d at 1119, we discussed a claimant’s testimony relative to , whether it is sufficient to meet the requisite burden of proof as follows:

Generally, a workers’ compensation claimant must prove by a preponderance of the evidence that he has suffered a work-related accident and injury. Smith v. Town of Olla, 07-384 (La.App. 3 Cir. 10/3/07), 966 So.2d 1165.
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident and (2) the . worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Id.
Id. at 1169 (quoting Hebert v. C.G. Logan Constr., Inc., 06-612 (La.App. 3 Cir. 11/2/06), 942 So.2d 77, 80).

After thoroughly reviewing the evidence and considering the detailed oral reasons for judgment, we find that the WCJ’s factual conclusion that Mr. Nowell did not suffer a compensable work-related injury is reasonably supported by the |9evidence. There are numerous inconsistencies between the medical evidence and Mr. Nowell’s testimony, thereby calling into question Mr. Nowell’s credibility. The WCJ clearly had serious doubt as to Mr. Nowell’s veracity, particularly after Dr. Senter impugned Mr. Nowell’s honesty relative to his not treating workers’ compensation patients when Mr. Nowell requested to change treating physicians. The WCJ felt misled by Mr. Nowell, stating in her oral reasons that had she had Dr. Senter’s testimony at the time, she would not have granted the request to change treating physicians. We find that it was reasonable for the WCJ to cast serious doubt upon Mr. Nowell’s testimony and credibility in general and find that the medical evidence did not corroborate that the accident produced the alleged injuries; therefore, we find that the WCJ was not clearly wrong in her factual findings.

Under the applicable standard of review, though there are two permissible views of the evidence, we cannot say that the WCJ was manifestly erroneous or clearly wrong. The evidence in the record supports the conclusion that Mr. Nowell did not meet the requisite burden of proof for entitlement to workers’ compensation benefits. Because we have found no error in the WCJ’s ruling that Mr. Nowell failed to prove that he suffered a compensable work-related injury, we need not address the remaining issues of entitlement to indemnity benefits, medical treatment, penalties, and attorney fees. The judgment of the OWC is affirmed.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs are assessed to Claimant/Appellant, Donald Lester Nowell.

AFFIRMED.

      . Mr. Nowell referred to "Scooter,” a Nabors’ safety technician, as the person who transported him to Lafayette.

      . Mr. Nowell lives in Vicksburg, Mississippi.

      . The MRI was performed on June 13, 2012, the same day of Mr. Nowell’s follow-up appointment with Dr. Senter.

      . Nabors contested this request.

      . Notably, Dr. Senter s deposition was not taken in this matter until February 18, 2013.

      . An MRI had been performed on June 13, 2012, at the direction of Dr. Senter.


text:
    STATE of Louisiana v. Stetson GILLIAM.
    No. 14-228.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Brent Hawkins, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Stetson Gilliam.
    Michael Harson, District Attorney — Fifteenth Judicial District, Monique L. Holder, Assistant District Attorney, Abbeville, Louisiana, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

| fin this criminal case, Defendant, Stetson Gilliam, was convicted by a jury of possession of a firearm by a convicted felon and a lesser included offense of simple battery. Defendant only appeals his possession of a firearm by a convicted felon conviction, alleging insufficiency of the evidence and an error patent relative to post-conviction relief. For the following reasons, we affirm Defendant’s conviction.

FACTS

As set forth in the testimony at trial, the victim, Timothy Decuir, was visiting a friend, Christine Williams, at her home in Abbeville, Louisiana, in the late hours of September 23, 2012, and early morning hours of September 24, 2012. During that span of time, while exiting the Williams’ home to move his truck, the victim was approached by three men, one of whom was Defendant. One of the men hit the victim. The victim stated that he noticed that Defendant had a gun, and, when he tried to run to escape the fray, Defendant hit him with the gun, causing him to bleed. The victim also stated that after being struck with the gun, he heard gunshots; however, Defendant and his two companions had left the immediate area.

The gun was not recovered. The victim’s testimony was corroborated by Ms. Williams. Defendant’s mother, Juanita Leblanc, who lived nearby, testified that she saw her son and others in a fight and that “no one had a gun.”

Abbeville police officer Trent Guidry testified that he was patrolling the area and heard shots fired. He then received a call reporting a battery at the Williams’ house. Upon arrival, he saw and interviewed the victim, who advised that an altercation between him and three men had occurred and that he had been hit in the | gface with a gun. Officer Guidry also stated that he went to Defendant’s residence and recovered three nine-millimeter casings from his backyard.

According to the testimony of Kelly Hardy, Defendant’s probation officer, Defendant had previously been convicted of a felony. 'Proof of Defendant’s prior conviction was introduced into evidence.

PROCEDURAL BACKGROUND

On October 4, 2012, the State filed a bill of information charging Defendant with one count of aggravated battery and one count of possession of a firearm by a convicted felon, violations of La.R.S. 14:84 and La.R.S. 14:95.1 respectively. Defendant’s jury trial commenced on June 11, 2018. Defendant was convicted of the lesser included offense of simple battery and possession of a firearm by a convicted felon. Defendant was sentenced to six months in the parish jail for his conviction of simple battery and fifteen years at hard labor for his conviction of possession of a firearm by a convicted felon. The sentences were ordered to run concurrently. Defendant’s motion to reconsider sentence was denied.

ASSIGNMENTS OF ERROR

Defendant only appeals his conviction for possession of a firearm by a convicted felon and assigns the following errors:

ASSIGNMENT!] OF ERROR NO. 1: The evidence presented at trial was insufficient to find the Appellant guilty of the offense of [a] felon in possession of a firearm because the State failed to prove Appellant had a firearm in his possession.
ASSIGNMENT OF ERROR [NO. 2J: The trial court committed error patent by failing to advise Appellant he had two years from the time his sentence became final in which to file an application for post-conviction relief.
ASSIGNMENT OF ERROR NO. 3: The trial court committed error patent by allowing a verdict where the record is absent of evidence of an essential element of the offense.

^ERRORS PATENT and ASSIGNMENT OF ERROR NUMBER TWO

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find an actionable error patent as set forth in Defendant’s second assignment of error.

In assignment of error number two, Defendant alleges that the trial court erred in failing to properly advise him of the time in which to seek post-conviction relief. Defendant requests that he be notified in writing of the appropriate prescriptive period in which to file for post-conviction relief.

At sentencing, the trial court stated, “you have two years, sir, within which to file motions for post-conviction relief.” Louisiana Code of Criminal Procedure Article 930.8(A)(emphasis added) states that the defendant has “two years after the [judgment of conviction and sentence has become final ” to seek post-conviction relief. Since the advisement was insufficient and has been raised as an error, we order the trial court to fully inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written notice to Defendant within thirty days of the rendition of this opinion that he has “two years after the judgment of conviction and sentence has become final” to seek post-conviction relief and to file written proof that Defendant received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

In these assignments of error, Defendant basically argues that the State’s evidence at trial was insufficient to support his conviction. The analysis for such insufficiency claims is well-settled:

|4When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,1371.

The relevant statute, La. R.S.14:95.1(A) (footnote omitted), states, in pertinent part: “It is unlawful for any person who has been convicted of a crime of violence ... to possess a firearm or carry a concealed weapon.” Defendant argues the State failed to prove that the object in his hand was a firearm. However, the victim and Ms. Williams identified the object in Defendant’s hand as a gun.

Defendant argues:

There was absolutely no testimony, or evidence otherwise, presented at trial that the purported gun[ ] that was in Stetson’s hand was in fact a firearm. Appellate counsel concedes there was testimony to support the position that Stetson had, at the very least, something in his hand[,] an object that looked like a gun. However, because no gun was ever recovered from the crime scene, from Stetson’s person or from his home[,] and because no person ever testified they saw Stetson shoot a gun[,] the State had no evidence to present he was ever in possession of a firearm as required by the statute.

This argument differs from Defendant’s argument at trial which suggested that he possessed no gun at all. When presenting his ease, Defendant put his mother on|fithe witness stand, and she testified that “no one had a gun.” Our brethren in the fourth circuit in a case involving La.R.S. 14:95.1 held:

[I]n-evaluating a defendant’s challenge to the sufficiency of evidence, we are restricted to those theories of defense actually put forward to the trier of fact. See State v. Juluke, 98-0341, pp. 4-5 (La.1/8/99), 725 So.2d 1291, 1293-1294 (per curiam). In other words, a defendant may not develop a new theory on appeal and demonstrate that the circumstantial evidence was insufficient to negate the new theory. Id.

State v. Hamdan, 13-113, p. 10 (La.App. 4 Cir. 12/11/13), 131 So.3d 197, 203, unit denied, 14-51 (La.6/13/14), 140 So.3d 1188.

This court has also followed Juluke:

We note that at trial, Defendant’s attorney stated in pertinent part: “We are willing to stipulate that [R.G.] was assaulted. I will do that right now. We’re just talking about who did it.” However, on appeal, Defendant challenges whether or not the offenses occurred.

In State v. Duvall, 97-2173 (La.App. 1 Cir. 12/28/99), 747 So.2d 793, writ denied, 00-1362 (La.2/16/01), 785 So.2d 838, the court was faced with a similar issue wherein the defendant attempted to present a defense both alternative to and inconsistent with the defense he presented in the trial court. The court held in pertinent part:

Upon review, the supreme court [in State v. Juluke, 98-0341, pp. 4-5 (La.1/8/99), 725 So.2d 1291], reversed the Fourth Circuit, noting:
The Jackson standard also does not provide a defendant with a means of splitting alternative and inconsistent defenses in different forums, raising one defense before the jury and when that fails, a second defense [presupposing] a different set of facts in an appellate court conducting sufficiency review under Jackson and [La.Code Crim.P.] art. 821(E).
[State v. Juluke, 98-341, pp. 4-5 (La.1/8/99), 725 So.2d 1291,1293].
|fiTo permit him to argue the defense on appeal would violate the above holding of Juluke and allow him the unfair advantage of urging a defense that the State had no reason to challenge.
Defendant’s defense on appeal is inconsistent with the defense that he presented at trial because a defense that a shooting was committed in sudden passion or heat of blood is inconsistent with a defense that a shooting was accidental. In the former instance, an intent to fire the weapon exists, while in the latter instance, no such intent is present.
For the foregoing reasons, the argument that the offense was manslaughter, rather than second degree murder, is not properly before this court and will not be considered.
Id. at 799-800.
In the instant case, at trial, Defendant’s counsel stipulated to the rape and challenged the identification of Defendant as the offender. On appeal, Defendant’s appellate counsel challenges whether or not aggravated burglary and forcible rape occurred. Thus, in accordance with Duvall, 747 So.2d 793, we find that this issue is not properly before this court and will not be considered.

State v. Anderson, 11-106, pp. 6-7 (La.App. 3 Cir. 6/1/11), 66 So.3d 568, 573-74, writ denied, 11-1493 (La.9/23/11), 69 So.3d 1167. In light of the foregoing jurisprudence, Defendant’s new argument will not be considered.

Defendant has also alleged that “the record is absent of evidence of an essential element of the offense.” He argues that the State offered no evidence that the object he possessed met the statutory definition of a firearm as set forth in La.R.S. 14:95.1(D) which states, in pertinent part, that a “ ‘firearm’ means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder 17weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.” He asserts that no gun was recovered and that the State failed to prove the object in his hand was a firearm for purposes of the statute.

The record reveals that the victim and his girlfriend both testified that Defendant had a gun in his hand. The victim specifically stated that Defendant hit him in the face with the gun, that the gun was silver in color, and that after the incident was over, he heard three gunshots. Also, Officer Guidry testified that he was patrolling the area at the time, that he heard gunshots, and that he found three nine-millimeter casings in Defendant’s backyard. The lone fact that the State was unable to retrieve and produce the gun does not render the evidence at trial insufficient to find Defendant guilty of the offense of possession of a firearm by a convicted felon.

Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that Defendant possessed a firearm (gun) after having been previously convicted of a felony. Further, “[i]t is well-settled that a jury is free to believe some, none, or all of any witness’s testimony.” State v. Perkins, 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817. We find that the State submitted sufficient evidence to prove that Defendant possessed a “firearm” for purposes of La.R.S. 14.95.1(D).

DISPOSITION

Defendant’s conviction of possession of a firearm by a convicted felon is affirmed. However, we remand this matter to the trial court with instructions to fully inform Defendant of the provisions of La.Code Crim.P. art. 930.8, as set forth |sherein, by sending written notice to Defendant within thirty days of the rendition of this opinion and to file written proof of same in the record.

AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: PETERS, J. CONERY, J.,

text:
    Wilson J. TRAHAN v. ACADIANA MALL OF DELAWARE, et al.
    No. 14-232.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Christopher T. Castro, Galloway Jefcoat, L.L.P., Lafayette, LA, for Plaintiff/Appellant, Wilson J. Trahan.
    Jean Ann Billeaud, Elizabeth A. Hunt, Preis & Roy, PLC, Lafayette, LA, for Defendant/Appellee, Acadiana Mall of Delaware CMBS, LLC, ERMC III Property Management Company, LLC and ERMC II, LP.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   PETERS, J.

hThe plaintiff, Wilson J. Trahan, appeals a trial court judgment granting an involuntary dismissal of his suit for damages against the defendants, Acadiana • Mall CMBS, LLC; ERMC III Property Management Company, LLC; and ERMC II, LP. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

This litigation arises from a July 21, 2010 accident which occurred at the Acadi-ana Mall shopping center in Lafayette, Louisiana. While attempting to enter the mall, Mr. Trahan fell and sustained a closed fracture of his right fíbula. He brought suit against the named defendants as the owners and/or operators of the mall facility (hereinafter collectively referred to as “Acadiana Mall”) seeking to recover damages for his injuries. The matter proceeded to a trial on the merits, and, after Mr. Trahan rested his case, Acadiana Mall moved for an involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B). The trial court granted the motion and, after a written judgment was signed dismissing Mr. Trahan’s claims, he perfected this appeal.

Mr. Trahan testified at trial that he arrived at the mall at approximately 9:30 a.m. on July 21, 2018, intending to walk inside the mall premises for exercise. Because the outside temperature was already approaching ninety degrees Fahrenheit, he parked his vehicle in a shady area and proceeded on foot across the parking lot and roadway that ran adjacent to the mall structure. He stepped onto the sidewalk, which lies adjacent to the mall building and extends around the mall perimeter, and began walking toward the mall entrance. To reach the mall entrance from where he stepped onto the sidewalk, Mr. Trahan was required to 12cross an entrance to one of the mall’s service areas, and, as he approached this crossing, he noticed that a large accumulation of surface water blocked his path.

In order to avoid the accumulation, Mr. Trahan moved to his right and up against the wall forming the sidewalk’s inner boundary. He did so because he observed an eighteen to twenty-four inch surface area on the service road which appeared to be dry. He testified that he placed his right hand on the bollard located at the entrance of the service area and stepped down onto the apparently dry surface. However, when he stepped down he encountered a buildup of algae on the surface and this substance caused him to slip and fall. Mr. Trahan then got to his feet, walked into the mall, and requested a mall employee to contact mall security.

Joseph Thibodeaux, an Acadiana Mall security guard, responded to the call and inspected the scene of the accident with Mr. Trahan. When Mr. Trahan pointed out the place where he slipped, Mr. Thibo-deaux observed some slip marks in the surface algae. He also noted that Mr. Trahan’s pants were somewhat wet, but did not note any visible injury.

When Mr. Trahan more closely examined the reason for the accumulation of surface water, he noted that the drain through which the water should have flowed was clogged by algae, leaves, and cigarette butts and that neither the water nor the impedimenta were flowing through the drain. He testified that he then gave Mr. Thibodeaux his name and telephone number and took three pictures of the area. |aHe declined Mr. Thibodeaux’s offer to call an ambulance and left the mall. According to Mr. Trahan, approximately twenty minutes elapsed between the time the accident occurred and the time he left the mall.

Mr. Thibodeaux testified that as part of his security duties, he performs daily inspections of the mail’s perimeter from a golf cart and that the service entrance where Mr. Trahan fell contains trash compactors and water sprinklers that require daily inspection. That particular service area has two entrances and, although Mr. Thibodeaux could access the area to make his inspection from either entrance, he' normally did not use the entrance where Mr. Trahan fell because the other entrance was closer to the trash compactor. Mr. Thibodeaux testified that because he worked a 7:00 a.m. to 3:00 p.m. shift, he would have already inspected the area pri- or to Mr. Trahan’s accident on the morning of July 21, 2010. He acknowledged that the surface water Mr. Trahan attempted to avoid was located within the pedestrian walkway and that the walkway would have been rendered unsafe by the presence of a slippery surface. He described the accumulation as being comprised of water “and everything that you can imagine that wheels and rubber rolls on[J”

Charlie Pritchett, Acadiana Mall’s Director of Operations for twenty-two years, testified that he oversees interior and exterior maintenance, janitorial services, and security services at the mall, and acknowledged that the location where Mr. Trahan fell was within Acadiana Mali’s control and responsibility. He learned of Mr. Tra-han’s fall from Mr. Thibodeaux, visited the scene that same morning, took photographs, and prepared an accident report. He did not recall seeing any physical evidence of Mr. Trahan’s fall at the scene, but did circle the area on the photographs as pointed out to him by Mr. Thibodeaux.

^Although he testified that he did not inspect the drain causing the surface water accumulation, he did recall that “water was receding to [the] drain” at the time of his inspection. However, when questioned specifically whether the drain was flowing, Mr. Pritchett said he did not know if it was flowing.

According to Mr. Pritchett, Acadiana Mall had no written policy/procedure for inspecting its exterior premises, but crews cleaned the parking lots daily, checking for trash, debris, and safety hazards. He testified that had a cleaning crew member observed algae at the edge of a puddle, the employee would have generated a report and forwarded it to him. As of the time of this accident, Mr. Pritchett had received no such report. On the one hand, Mr. Pritchett testified that Acadiana Mall employees do not perform maintenance on storm drains because they are simply openings through which water flows to an evacuation ditch, and, on the other hand, he acknowledged that in a situation where water is not flowing into the drain, it would be the mall employees’ responsibility to unclog the drain.

With regard to the accident report, Mr. Pritchett testified that he and Mr. Thibo-deaux completed it, but he could not recall when it had been completed. He further acknowledged that all the entries concerning the accident itself were based on information provided by Mr. Thibodeaux. Mr. Pritchett agreed that the surface water in the area where Mr. Trahan fell was located within a pedestrian walkway, and he further agreed that the materials forming the edge of surface water can be slippery and that the presence of a slippery substance within a pedestrian walkway can render the walkway unsafe.

All of the photographs introduced into evidence reflect that the service driveway contained an accumulation of surface water extending around the outer |sedge of the sidewalk into the roadway that ran parallel to the mall building and back into the service road to a point approximately one and one-half to two feet from the point where the sidewalk and the mall building meet. However, in that one-and-one-half-foot to two-foot area, the photographs reflect no standing water, and, in fact, appears to show that the surface is dry.

The trial court’s basis for granting the motion for involuntary dismissal was its factual finding that there existed “an open and obvious puddle and that it was obvious to Mr. Trahan and it was obvious to the general public.” The trial court based this conclusion on its examination of the photographs introduced into evidence, finding that there was a “puddle after a rain storm.” In appealing the trial court’s judgment, Mr. Trahan asserts two issues for review by this court:

1. Whether the trial court committed manifest error in its factual conclusion that the puddle was the defect which was the cause of the plaintiffs fall, although the plaintiff never stepped in the water.
2. Whether the trial court committed manifest error in its credibility determination based on the witnesses’ testimony.

OPINION

An involuntary dismissal may be granted by the trial court pursuant to La. Code Civ.P. art. 1672(B), which provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Although the trial court is accorded much discretion in granting a motion for involuntary dismissal, its decision to grant the motion is. reviewed pursuant to the manifest error standard of review. Touchet v. Hampton, 06-1120 (La.App. 3 Cir. 2/7/07), 950 So.3d 895. “When evaluating a motion for involuntary dismissal, the trial court must consider all the evidence, without any special inferences in favor of the opponent of the motion, and grant the dismissal if the plaintiff has not established proof by a preponderance of the evidence.” Smith v. Schumpert, 48,126, p. 3 (La.App. 2 Cir. 6/26/13), 117 So.3d 315, 318.

Mr. Trahan seeks damages based on La.Civ.Code art. 2317 which provides in pertinent part that “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... the things which we have in our custody.” This includes damage caused by the “ruin, vice, or defect in things” we own or control. La.Civ.Code art. 2317.1. That article reads in full as follows:

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

La.Civ.Code art. 2317.1.

Accordingly, in order to prevail in a cause of action based on La.Civ.Code art. 2317.1, a plaintiff must prove: (1) that the defendant had custody of the thing; (2) that it had a vice or defect that presented an unreasonable risk of harm; (3) that the defendant knew or should have known of the vice or defect; (4) that the damage could have been prevented by the exercise of reasonable care; and (5) that the defendant failed to exercise this reasonable care. Riggs v. Opelousas Gen. Hosp. Trust Auth, 08-591 (La.App. 3 Cir. 11/5/08), 997 So.2d 814.

Mr. Trahan clearly factually established through the testimony of Mr. Pritchett, that Acadiana Mall had custody of the premises; and, through his testimony as well as that of Mr. Pritchett and Mr. Thi-bodeaux, that the area where |7he fell contained a vice or defect in the form of an algae buildup on the surface of the service road. However, in its reasons for judgment, the trial court only considered the second element set forth in Riggs and concluded that the surface-water accumulation shown in all of the photographs did not constitute an unreasonable risk of harm because it was “open and obvious” both to Mr. Trahan and the general public.

Whether a defect constitutes an unreasonable risk of harm is an issue of both fact and law, and the factfinder’s conclusions are subject to a manifest error analysis. Broussard v. State, through the Office of State Bldgs., 12-1238 (La.4/15/13), 113 So.3d 175. Additionally, “in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition.” Id. at 188.

After reviewing the record in its entirety, we find that the trial court committed manifest error in its factual findings. In reaching this conclusion, we agree with the trial court that the surface-water accumulation depicted in the photographs is an open and obvious hazard and that Acadiana Mall has no duty to protect Mr. Trahan from that hazard. However, the evidence before us establishes that the surface-water accumulation was not the legal cause of Mr. Trahan’s accident. Instead, he sustained his injury when he attempted to avoid the surface water and slipped on an accumulation of algae on a surface which appeared to be dry. Additionally, there is no evidence in the record that the surface-water accumulated because of a recent rainstorm. The only testimony elicited on the weather was that it was bright and sunny when Mr. Trahan arrived at the mall. Additionally, the photographs support the “bright and sunny” nature of the weather | sat the time of the accident and reveal no other accumulations of surface-water in the area.

Having concluded that the trial court factually erred in finding that the accumulated surface-water, and not the accumulated algae, was the legal cause of Mr. Trahan’s injuries, we also find that the evidence now before this court supports a finding that Mr. Trahan established all the elements set forth in Riggs, 997 So.2d 814 by a preponderance of the evidence. Thus, the trial court erred in granting the motion for involuntary dismissal. However, because the trial ended prior to Acadia-na Mall presenting its defense, we must remand for completion of the trial evidence.

DISPOSITION

We reverse the judgment of the trial court granting an involuntary dismissal in favor of Acadiana Mall CMBS, LLC, ERMC III Property Management Company, LLC, and ERMC II, LP, and remand the matter to the trial court for completion of the trial on the merits. We assess all costs of this appeal to Acadiana Mall CMBS, LLC, ERMC III Property Management Company, LLC, and ERMC II, LP.

REVERSED AND REMANDED.

CONERY, J., concurs in the result for the reasons assigned.

CONERY, J.,

concurs in the result for the following reasons.

hln this un-witnessed alleged trip and fall accident near the entrance to the Aca-diana Mall, the trial judge granted an involuntary dismissal of plaintiffs case, stating in rather cryptic oral reasons, “I am going to grant the Motion for Directed Verdict, finding that it’s an open and obvious puddle and that it was obvious to Mr. Trahan and it was obvious to the general public. It’s certainly obvious from the photos that it was [a] puddle after a rain storm.” (emphasis added). His written reasons further stated, “After considering the evidence presented and the credibility of the witnesses’ testimony, the court found the water puddle to be an open and obvious hazard to all.” (Emphasis added.) He made no further comments and did not state how “witness credibility” affected his findings or exactly what he meant by the term “water puddle” or “puddle.”

I think it is clear that there is sufficient evidence in the record to support a finding by the trial judge that the area where Mr. Trahan allegedly slipped and fell, and not just the accumulated water, was an open and obvious condition such that it did not constitute an unreasonable risk of harm to the public. If so, Acadiana Mall would have no duty to warn and could not be liable under La.Civ.Code art. 2317.1, as recently interpreted by our supreme court in Broussard v. State, through the Office of State Bldgs., 12-1238 (La.4/15/13), 113 So.3d 175.

Unfortunately, the trial judge’s actual wording was not that specific. The record supports a finding that the “water puddle” accumulated from a recent rainstorm as noted in the Mall’s incident report. However, the majority concludes that Mr. Tra-han slipped in algae immediately adjacent to the water puddle, and that the “water puddle” was not the legal cause of the accident. I do not agree. I believe the trial judge, in using the word “puddle” in his oral reasons and “water puddle” in his written reasons meant that term to include the algae, mud, and debris immediately adjacent to the actual water puddle (referred to as “crud” or “eroosh” by the parties), and it was that entire condition that was open and obvious. The pictures introduced into evidence clearly support such a finding.

The plaintiff, Mr. Trahan, was extremely familiar with the mall area and parking lot, as he had a habit of regularly walking at the mall for exercise. He clearly was familiar with the multitude of open parking spots and the many ways with which to access the mall entrances. With an entire mall parking lot to park his car and multiple locations from which to enter the mall, Mr. Trahan chose the one location to walk through that had an obvious accumulation of water, with mud, algae and “eroosh” equally obvious on the edges of the water puddle, all as clearly shown by the pictures introduced in evidence. Thus, the “condition” giving rise to his fall was open and obvious.

Unfortunately, the trial judge did not specify what he meant by “puddle” or “water puddle.” He simply found the “water puddle to be an open and obvious hazard to all.” The majority pointed out that it found based on a review of the pictures in the record that the exact location of the fall was allegedly inches from the actual “water,” and pointed out that the “slip” occurred in the mud and |s“croosh” immediately adjacent to the water based on a picture showing what appeared to be a skid mark in the mud. The trial judge makes no specific finding that the alleged “skid mark” in the mud was the exact location of the fall. Since this case was decided on the basis of an involuntary dismissal pursuant to La.Civ.Code art. 1672(B), and not as a result of a full trial on the merits, I reluctantly concur in the result to remand to the trial court for completion of a full trial on the merits. A remand will allow the defendant to put on all its evidence and allow the trial judge to make more specific findings and specific credibility determinations.

      . Mr. Trahan estimated the width of the sidewalk to be fifteen feet.

      . This service entrance consisted of a driveway running perpendicular to the sidewalk which provided vehicular access to an area adjacent to the mall containing trash disposal equipment as well as other equipment necessary for mall operation.

      . A bollard is a concrete post approximately four foot high which prevents a vehicle from running into the wall of the mall.

      . He did acknowledge that his accident report listed a visible injury, but suggested this entry was based on what Mr. Trahan had related to him.

      . The accident report contained notations to the effect that Mr. Trahan had tripped in a rain puddle, Mr. Trahan’s clothes were wet, he was wearing "Crocs,” he had a visible injury, and that he refused medical treatment.

      . Mr. Trahan specifically testified that he did not step into the accumulated surface water, and the record contains no evidence to the contrary.


author: COOKS, Judge.

text:
    Kenneth John LECOMPTE, et ux. v. AFC ENTERPRISES, INC.
    No. 14-242.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Stan Gauthier, II, Michael G. Johnston, II, Lafayette, LA, for Plaintiffs/Appellants-Kenneth John LeCompte and Joanne Ma-thas LeCompte.
    Edmond L. Guidry, III, Guidry & Gui-dry, St. Martinville, LA, Attorney for Defendant/Appellee AFC Enterprises, Inc.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and JOHN E. CONERY, Judges.
   COOKS, Judge.

| .FACTS AND PROCEDURAL HISTORY

Kenneth John LeCompte, was the principal, sole shareholder and director of At-chafalaya Enterprises, Ltd., a Louisiana business corporation that owned and operated two Popeyes Restaurants located in Henderson and St. Martinville, Louisiana. This litigation stems from a failed attempt to acquire additional Popeyes Restaurants in the surrounding area. LeCompte, his wife Joanne, and Atchafalaya were named plaintiffs in the suit.

Plaintiffs stated on December 7, 2004, correspondence was received from AFC which set forth that AFC was hoping to accelerate the development and growth of the Popeyes brand throughout the country, including the region in which Plaintiffs operated the St. Martinville and Henderson locations. The correspondence in question was not personalized to Plaintiffs, but was addressed to all “Popeyes Franchise Operator[s]”. Plaintiffs sought to acquire additional Popeyes’ franchises in Scott, Maurice, and Duson, Louisiana.

Plaintiffs maintain on a January 26, 2006 phone conference with James Lyons, AFC’s Chief Development Officer, Le-Compte was told by Lyons that AFC had denied the request to enter into a development agreement for new Popeyes Restaurants. LeCompte was told AFC “did not want to grow with LeCompte with a new store.” LeCompte specifically asked why AFC denied his request, but he was only told AFC was not interested in growing with him. In correspondence dated November 14, 2006, AFC similarly stated “we are not interested in considering the Le-Comptes for growth in the POPEYES system....”

Shortly after the receipt of the November 14, 2006 letter, LeCompte received a business proposition from Stanley Ware, another Popeyes’ franchisee. Ware offered to sell and transfer to Plaintiffs his two Popeyes’ franchises in 1 ¡¡Broussard, Louisiana and Breaux Bridge, Louisiana. Concerned about AFC’s stated position regarding his acquisition of new franchises, LeCompte requested his attorney aseer-tain AFC’s position regarding Plaintiffs’ desire to acquire existing franchises. Le-Compte received a letter from Lyons stating it was not interested in considering Plaintiffs for “growth in the POPEYES system at this time, whether through acquisition of existing franchises currently operated by other franchisees of the PO-PEYES system or new development.”

Plaintiffs believed the refusals by AFC were the result of prior litigation instituted by them against AFC. That litigation was resolved in Plaintiffs’ favor after a mediation conference. According to Plaintiffs, this occurred despite being assured at the conclusion of the mediation by John E. Fajfar, AFC’s Vice President of New Business Development, that the litigation would not adversely affect their ability to acquire additional restaurants.

The LeComptes filed a lawsuit against AFC, James Lyons and Stanley Ware, claiming those defendants had improperly denied Plaintiffs the opportunity to acquire additional or existing franchises. Specifically, it was asserted that AFC’s refusal to “grow with” Plaintiffs by granting additional franchises or approving the sale of existing restaurants, amounted to a violation of Louisiana’s Unfair Trade Practices Act (LUTPA) and was a violation of the abuse of rights doctrine. AFC filed exceptions of no right of action, no cause of action and a motion for summary judgment. The district court granted AFC’s exception of no right of action and gave Plaintiffs time to amend the pleadings to add Atchafalaya Enterprises, Ltd. as a plaintiff and took the other matters under advisement. The |4parties were allowed time to attempt to reach a settlement. In the interim, the LeComptes filed an amending and supplemental petition adding Atchafalaya as a plaintiff. After informing the court they were unable to reach a settlement, the district court issued reasons for judgment granting AFC’s motion for summary judgment and exception of no cause of action dismissing Plaintiffs’ claims. Plaintiffs filed a devolutive appeal which was rejected by this court because Atchafalaya was added as a party after the motion for summary judgment and exception were filed. Upon remand, AFC again filed a motion for summary judgment and exception of no cause of action against both the LeComptes and Atchafalaya. By judgment dated September 17, 2012, the district court again granted AFC’s motion for summary judgment and exception of no cause of action dismissing Plaintiffs’ claims. This appeal followed, wherein Plaintiffs contend the trial court erred in granting both the exception of no cause of action and motion for summary judgment.

ANALYSIS

I. Exception of No Cause of Action.

A peremptory exception of no cause of action presents a question of law which an appellate court will review de novo. Hawkins v. Evangeline Bank & Trust Co., 01-1292 (La.App. 3 Cir. 2/06/02), 817 So.2d 141, writ denied, 02-658 (La.5/24/02), 816 So.2d 308. No evidence is introduced to support or controvert the exception. Rather, the exception is tried on the face of the petition, with supporting documentation. For the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. La.Code Civ.P. art. 931; City of New Orleans v. Bd. of Comm’rs, 93-690 (La.7/5/94), 640 So.2d 237; Hawkins, 817 So.2d 141. This exception is designed to test the legal sufficiency of the petition to determine whether the plaintiff is ^afforded a remedy in law based on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru South Inc., 616 So.2d 1234 (La.1993); Hawkins, 817 So.2d 141.

AFC’s exception of no cause of action addressed the allegation made by Plaintiffs that AFC breached its contract with Ware by unreasonably denying the sale and transfer of Ware’s two franchises to them, and that Plaintiffs were third party beneficiaries under a stipulation pour autri contained in the contract. A review of the district court’s reasons for judgment issued on August 22, 2012, in response to AFC’s Motion for Reconsideration reveal the district court sustained the exception of no cause of action on the basis there was no evidence to show that Plaintiffs were a party to the Ware/AFC contract, and thus no stipulation pour autri existed. The district court noted “the contract specifically provides that the provisions of the contract are personal to the franchisee — in this instance, Stan Ware, not plaintiffs.” We agree with the district court’s reasoning.

Plaintiffs were was not parties to Ware’s franchise agreements with AFC; thus, they have no standing to assert a claim that AFC was unreasonable in refusing to approve the sale of the franchises from Ware to Plaintiffs. There is a provision in the AFC contract with Ware stating that AFC cannot unreasonably withhold its consent to the transfer of Ware’s franchises to another party. As AFC noted below, that provision is specific to the transferor franchisee, not the transferee buyer as there is no privity of contract with the proposed transferee. Such a claim must be asserted by Ware, and there is nothing in the record to indicate he has made such a claim. The district court did not err in granting the exception of no cause of action.

| ,JI. Motion for Summary Judgment.

Summary judgments are reviewed de novo on appeal and the reviewing court is governed by the same criteria as the trial court in determining whether the mover is entitled to judgment as a matter of law. Schroeder v. Board of Sup’rs, 591 So.2d 842 (La.1991). Summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966. Summary judgments are now favored in Louisiana, and shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. La.Code Civ.P. art. 966.

The mover bears the burden of proof. Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Luther v. IOM Company, LLC, 13-353 (La.10/15/13), 130 So.3d 817. If the adverse party fails to do so, there is no genuine issue of material fact and summary judgment will be granted. Id.

A cause of action for unfair trade practices is governed by the provisions of the Louisiana Unfair Trade Practices Act (LUTPA), La.R.S. 51:1401 et seq. In particular, La.R.S. 51:1404(A) provides that “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” This legislation is “broadly and subjectively stated and does not specify particular violations.”

Levine v. First Nat’l Bank of Commerce, 06-394, p. 20 (La.12/15/06), 948 So.2d 1051, 1065. “What constitutes an unfair trade practice is determined by the courts on a case-by-case basis.” Id.

its motion for summary judg-judgAFC noted there was never a Devel-DevelAgreement entered into between itself and Plaintiffs. Without such an agreement, AFC contended it was not obli-oblito allow Plaintiffs to acquire 17additional franchises. Plaintiffs do not dispute the lack of a Development Agree-Agreein this case. In its petition, Plaintiffs base the claim of unfair trade practices on alleged intentional retribution by AFC against Plaintiffs for the prior litigation between the parties. However, as AFC notes, Plaintiffs have provided no facts in the petition to support the claim of inten-intenretribution.

Plaintiffs argued AFC acknowledged below that it intentionally retaliated against Plaintiffs for the prior litigation between the parties. As the trial court noted, this is incorrect. AFC only asserted “it would not matter if the decision was in part motivated by a desire to punish the Le-Comptes for their prior litigation so long as there was also a sound business reason for the decision.” No admission was made by AFC that its decision was motivated by a desire to punish Plaintiffs.

The district court in granting the motion for summary judgment, noted the granting of a franchise is a privilege, not a right, and it is generally understood that “the franchisor reserves to itself the sole power to grant new franchises or to open new outlets as company stores.” The courts have accepted the proposition that a franchisor has the right to unilaterally select those with whom they choose to engage in business. See Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705 (11th Cir.1984). Further, the courts have consistently refused to find a LUTPA violation when the alleged conduct was simply a “normal business relationship.” Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316,1332 (5th Cir.1994); Monroe Medical Clinic, Inc. v. Hospital Corp. of America, 522 So.2d 1362, 1365 (La.App. 2 Cir.1988) (no LUTPA violation when conduct simply “the appropriate exercise of good business judgment and the proper workings of free enterprise.”)

“[A] practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious.” IsLevine, 948 So.2d at 1065. To prevail on a LUFTA claim a plaintiff must “prove some element of fraud, misrepresentation, deception or other unethical conduct.” Cheramie Serv. Inc. v. Shell Deepwater Prod., 09-1633 (La.4/23/10), 35 So.3d 1053, 1059. The district court found Plaintiffs failed to prove any specific actions AFC committed which are violative of LUTPA. We agree.

In this case, Plaintiffs are entitled to the franchise locations they have, and AFC is bound by the franchise agreements that were signed to address operations at those locations. There have been no assertions that AFC has done anything to impede Plaintiffs’ operations of those restaurants. As all parties acknowledge, there was no Development Agreement entered into for any other franchises between Plaintiffs and AFC. Without such an agreement there is no legal obligation for AFC to grant Plaintiffs additional franchise locations. Furthermore, as the franchisor AFC has the right to grant new franchises to whom it sees fit. The record is simply devoid of any proof that AFC’s refusal to grant Plaintiffs’ additional franchises violates any LUTPA provisions.

Similarly, Plaintiffs’ abuse of rights claim is lacking. This court in Wagner v. Fairway Villas Condominium Associates, Inc., 01-734, p. 6 (La.App. 3 Cir. 3/13/02), 813 So.2d 512, 518 discussed the abuse of rights doctrine, noting it “has been invoked sparingly in Louisiana,” and “applies only when one of the following conditions are met:

(1) the predominant motive for exercise of the right is to cause harm;
(2) there is no serious or legitimate motive for exercise of the right;
(3) the exercise of the right violates moral rules, good faith, or elementary fairness; or
(4) the exercise of the right is for a purpose other than that for which it was granted.”

| nPlaintiffs presented no evidence that AFC’s refusal to “grow with” them was motivated by a cause to harm, had no legitimate motive or was in bad faith. Without a Development Agreement, AFC simply has no legal obligation to do additional business with Plaintiffs. AFC does have an agreement with Plaintiffs involving the two franchises granted and operated by Plaintiffs; and there is no allegation that AFC has impeded Plaintiffs’ operation of their two restaurants in any way. After reviewing the evidence, we do not find that any of the conditions necessary to find an abuse of right has been met.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed. All costs of this appeal are assessed to plaintiffs-appellants.

      . Lyons was dismissed from the suit on an Exception of Lack of Jurisdiction and the claims against Ware were separated upon the grant of an Exception of Improper Cumulation of Actions. Writs taken on the judgments granting the exceptions were denied by this court.

      . Atchafalaya Enterprises, which as set forth above is wholly owned by LeCompte, is the actual, named franchisee of the St. Martin-ville Popeyes Restaurant.