author: SUSAN M. CHEHARDY, Judge. WICKER, J.,

text:
    Stephen L. WILLIS and Corinna J. Willis v. NOBLE DRILLING (US), INC., Century Exploration of New Orleans, Inc., and King Engineering Corporation.
    No. 11-CA-598.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.

      Scott R. Bickford, Lawrence J. Centola, III, Attorneys at Law, New Orleans, LA, for Plaintiffs/Second Appellants and First Appellees, Corinna and Stephen Willis.
    Charles M. Lanier, Jr., M. Beth Meyer, Attorneys at Law, New Orleans, LA, James M. Tompkins, Lynne J. Shannon (Pro Hac Vice), Attorneys at Law, Houston, TX, for Defendant/First Appellant and Second Appellee, Noble Drilling (US), Inc.

      Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|aIn this case, both parties are appealing the lower court judgment. Noble Drilling US, Inc., defendant/first appellant, challenges the jury’s verdict in favor of plaintiff. Stephen and Corinna Willis, plaintiffs/second appellants, challenge the trier-of-fact’s apportionment of fault and the quantum of general damages. For the following reasons, we reverse in part, amend, affirm in part, and render the judgment.

Facts and Procedural History

In January of 2007, plaintiff, Stephen Willis, was assigned by his employer, Fug-ro Chance, to work as a survey party chief aboard the NOBLE LESTER PET-TUS, a submersible drilling rig owned by Noble Drilling, US, Inc. (hereinafter “Noble”). On or about January 12, 2007, while the rig was en route from Pascagoula, Mississippi to its destination, a storm arose so the crew began to submerge the rig to ride out the storm.

As the crew submerged or “ballasted down” the rig, an unknown volume of elemental mercury was expelled through a small opening in the top of a large 13ballast control valve in the control room of the NOBLE LESTER PETTUS (hereinafter “LESTER PETTUS”). Several employees, including Mr. Willis and John Delaney, another Fugro Chance employee, were working in the control room at that time. Mr. Willis stated that mercury “rained” down on his arms, hands, and head, as well as the work surfaces. Mr. Willis also testified that he inhaled mercury and accidentally drank mercury that dropped into his coffee cup. Mr. Willis was unable to locate a Material Safety Data Sheet (“MSDS”) pertaining to mercury on board the LESTER PETTUS.

After about two hours, the rig was submerged and fully ballasted so Mr. Willis contacted his supervisor via satellite telephone to report the incident. His supervisor, Ken Daigle, instructed Willis on cleanup and first aid procedures.

Pursuant to his employer’s instructions, Willis isolated the contaminated navigation equipment and set up a second set of navigation equipment. Mr. Willis also isolated the contaminated clothing. Mr. Willis did not, however, isolate his contaminated shoes, satellite telephone, or briefcase.

The next day, when Mr. Willis returned to the control room, he observed mercury on the second set of equipment. He reported the second release and waited while his company sent a third set of navigation equipment to the rig. Although he was not present in the control room for the second mercury release, he was exposed when he entered the area and contacted the second set of contaminated navigation equipment. The Daily Surveyors Report log for the control room for the following day reads, “It is indicated that [starboard] ballast indicator is still blowing mercury out of the relief valve.”

Four days later, Mr. Willis disembarked the LESTER PETTUS in Louisiana wearing his boots and carrying his briefcase. Two weeks later, Mr. Willis ^experienced continuous “rapid twitching” of his eyes, “enormous headaches,” and tremors and numbness in his hands. The next time that Mr. Willis was back onshore, he sought medical treatment from his family physician who referred him to an epileptol-ogist.

Mr. Willis sued numerous defendants, including the vessel owner, Noble. After a five-day trial, the jury found that Noble’s negligence caused Mr. Willis’s injury and awarded Mr. Willis $600,000.00 for past and future lost wages. Both parties are appealing that judgment.

NOBLE’S APPEAL

On appeal, Noble raises eight assignments of error: first, the trial judge erred in finding that OSHA standards applied to Noble; second, the trial judge erred in finding that OSHA standards applied to the vessel M/V NOBLE LESTER PET-TUS; third, the trial judge erred in finding that OSHA standards created a duty on the vessel owner to provide a MSDS to a non-employee; fourth, the trial court erred in finding that a violation of OSHA standards constitutes negligence; fifth, the trial court erred in enforcing a stipulation that was a mistake of fact; sixth, the trial court erred in allowing Corinna Willis to claim loss of society in a maritime action; seventh, the jury erred in awarding the plaintiff lost wages when it found that he had not suffered any general damages; and, eighth, the trial court erred in awarding costs when a timely motion for new trial on costs had not been filed.

In its fifth assignment of error, Noble argues that the trial court abused its discretion by refusing to allow Noble to withdraw its stipulation as to the location of the rig at the time of the mercury release. Noble avers that the stipulation that the incident occurred in State of Louisiana waters, to which it inadvertently agreed in the pre-trial order, is a mistake of fact. Plaintiffs argue that there is no specific | r,evidence that the stipulation in question is a mistake of fact. Furthermore, plaintiffs argue that, even if the stipulation is a mistake of fact, plaintiff continued to be exposed to mercury through Noble’s failure to adequately address the spill until he disembarked the LESTER PETTUS in Louisiana waters.

First, we cannot say that this issue was properly preserved for review. Our review of the record reveals the following statement from counsel for Noble during a bench conference after the jury was sworn and opening statements were delivered:

Before we read number three, I need to reurge my objection to the evidence. Stipulation No. 3 as[sie] part of an inadvertent error on our part. It’s not an accurate depiction of the facts, and therefore we’re asking the Court to recall that stipulation while the evidence is coming to show where [the] incident actually did occur.

Immediately thereafter, the trial judge allowed the stipulations to be read into evidence, including the statement that this release occurred in the waters of the State of Louisiana.

For an issue to be preserved for review, a party must make a timely objection and state the specific ground for the objection. Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. Furthermore, the reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error.

Even if the objection made during the bench conference was sufficient to preserve the issue for review, we would find no error in the trial judge’s refusal to allow Noble to withdraw a stipulation after trial had commenced.

|(jA stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law, and are the law of the case. Accordingly, the joint trial stipulation entered into by the parties in the present case had the effect of a judicial confession binding both the parties and the court.

By entering into the joint stipulation that the incident occurred in the waters of the State of Louisiana, the parties judicially admitted to the law that applied to this incident. The correctness of a judicial admission cannot later be denied when the party, which the admission benefitted, relied upon it to his or her detriment.

Here, plaintiffs relied on the stipulation that the situs of the rig was not an issue at trial, and, thus, were not required to prove the rig’s location. Having entered into the stipulation in the pre-trial order well in advance of trial, Noble cannot claim that the trial court erred in preserving the joint trial stipulation. We find no error in the trial court’s ruling on this issue.

We return now to Noble’s first assignment of error. In it, Noble argues that OSHA regulations do not apply to this case because OSHA governs only employer-employee conduct. First, we note that the Occupational Health and Safety Act is remedial legislation designed to protect employees from workplace dangers, and therefore must be liberally construed.

29 U.S.C. § 654(a) delineates the duties of employers under OSHA:

(a) Each employer—
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards [ 7that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this chapter.

Importantly, 29 U.S.C. § 654(a)(1) & (2) impose two distinct duties. First, (a)(1) requires employers to protect their own employees from hazards in the workplace. The employer’s duty under (a)(1) flows only to its employees, as indicated by the language specifically limiting the employer’s obligation to maintain a hazard-free workplace to “his employees.”

Second, (a)(2) requires employers to comply with the entire Act’s safety standards. Unlike (a)(1), it does not limit its compliance directive to the employer’s own employees, but requires employers to implement the Act’s safety standards for the benefit of all employees in a given workplace, even employees of another employer. OSHA citations based on the multi-employer doctrine are issued under 29 U.S.C. § 654(a)(2). Thus, we conclude that, although Mr. Willis is not an employee of Noble, in this particular instance, he is among the class of individuals protected by OSHA. This assignment of error lacks merit.

In its second assignment of error, Noble argues that OSHA regulations do not apply to the M/V LESTER PETTUS because the regulations do not govern Coast Guard “inspected” vessels located on the Outer Continental Shelf. We disagree.

First, it is important to note that Mr. Willis does not qualify as a “seaman” under OSHA because he lacks a connection to a vessel or vessels that is substantial in terms of time and nature. See also, Willis v. Fugro Chance, 278 Fed.Appx. 443 (5th Cir.2008) (Mr. Willis was not a Jones Act seaman).

IsNext, § L of OSHA Directive CPL 2-1.20, which was in effect that the time of this incident, provided that, although the U.S. Coast Guard exercises full authority over the safety and health of seamen aboard “inspected” vessels, OSHA may exercise its authority over employers, other than those that only employ seamen, for the working conditions on vessel within OSHA’s geographical jurisdiction. (Emphasis added). “OSHA requirements which remain enforceable on inspected vessels for employees other than seamen are ... long shoring operations, ... marine construction activities, ... general working conditions not otherwise regulated, [and] ... Identified recognized hazardous situations that are causing or are likely to cause death or serious physical harm.” OSHA Directive CPL 02-1.20 § L(2). Thus, Mr. Willis’ status as a non-seaman allows OSHA regulations to apply to the general working conditions while he is on-board an inspected vessel.

Furthermore, OSHA’s geographical jurisdiction applies to oil and gas rigs in State territorial seas. Specifically, § I of OSHA Directive CPL 2-1.20 provided that the OSH Act applied “to employment performed in a State of the United States.” For “coastal states, the State territorial waters extend 3 nautical miles seaward from the coast line” so OSHA has authority over vessels when they are operating within the limits of State territorial waters.

Finally, and, arguably most importantly, Captain Mark Fazioli, an expert in marine operations and safety of the crew and vessel, testified that OSHA regulations apply whenever a vessel carrying non-seamen is in state waters. Noble did not present testimony to refute this statement. Thus, the unrefuted evidence at trial established that OSHA applied in this instance.

|nIn its third assignment of error, Noble argues that OSHA regulations regarding “hazard communication” are inapplicable on their face because Noble is not Mr. Willis’s employer and Noble is not a producer or importer of chemicals. Further, Noble argues that the multi-employer doctrine applied solely to construction workers. Again, we disagree.

29 C.F.R. § 1910.1200(e)(2), entitled “Written hazard communication program,” provides, in pertinent part, for multi-em-ployer workplaces:

Employers who ... use ... hazardous chemicals at a workplace in such a way that the employees of other employer(s) may be exposed ... shall additionally ensure that the hazard communication programs developed and implemented under this paragraph (e) include the following:
(i) The methods the employer will use to provide the other employer(s) on-site access to safety data sheets for each hazardous chemical the other employer(s)’ employees may be exposed to while working;
(ii) The methods the employer will use to inform the other employer(s) of any precautionary measures that need to be taken to protect employees ... in foreseeable emergencies; and,
(iii) The methods the employer will use to inform the other employer(s) of the labeling system used in the workplace.
(4) The employer shall make the written hazard communication program available, upon request, to employees, their designated representatives, the Assistant Secretary and the Director, in accordance with the requirements of 29 CFR 1910.1020(e).
(5) Where employees must travel between workplaces during a workshift, i.e., their work is carried out at more than one geographical location, the written hazard communication program may be kept at the primary workplace facility-

Thus, OSHA does require an employer, in a multi-employer workplace, to provide the other employers on-site access to safety data sheets for each |inhazardous chemical the other employers’ employees may be exposed to while working. This argument lacks merit.

In its fourth assignment of error, Noble argues that the trial court erred as a matter of law in charging the jury that the violation of OSHA standards is negligence per se. At trial, the trial judge charged the jury, inter alia: “Violating OSHA standards constitutes negligence.” Noble’s assertion that the jury was charged that an OSHA violation equates to negligence as a matter of law is an overstatement.

La. C.C.P. art. 1792(B) requires the trial court to instruct jurors on the law applicable to the case submitted to them. It is the judge’s responsibility to require that the jury receives only the correct law.

Determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice.

Because the adequacy of jury instruction must be determined in the light of jury instructions as a whole, when small portions of the instructions are isolated from the context and are erroneous, error is not necessarily prejudicial. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts.

[nThus, on appellate review of a jury trial, the mere discovery of an error in the judge’s instructions does not, in and of itself, justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. “As long as the combined charges accurately cover the point of law at issue, no reversible error exists.”

The pertinent question involved in deciding whether reversible error has occurred is whether the jury was misled to such an extent as to prevent it from doing justice. In the instant case, the jury was given combined charges that accurately cover the law of negligence. We cannot say that the slight error in this case misled the jury to such as extent as to prevent the jury from ensuring justice. This assignment of error lacks merit.

In its sixth assignment of error, Noble argues that the trial court erred in allowing Corinna Willis to claim loss of society in a maritime action. We disagree. In Miles v. Apex Marine Corp., 498 U.S. 19, 31, 111 S.Ct. 317, 325, 112 L.Ed.2d 275 (1990), the United State Supreme Court held that, where a longshoreman is killed or injured in state territorial waters, loss of consortium is still available. See also, Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 123 (5th Cir.1994). Accordingly, it was not error for the trial judge to charge the jury regarding Mrs. Willis’ loss of society claim.

In its seventh assignment of error, Noble argues that the jury erred in awarding the plaintiff lost wages when it found that he had not suffered any general damages. We agree.

|, 2In general, it is legal error for a jury to award special damages for medical expenses while at the same time denying general damages. When, as here, the jury has awarded special damages but has declined to award general damages, the reviewing court must determine whether the jury’s finding “is so inconsistent as to constitute an abuse of discretion.” If so, only then can the reviewing court perform a de novo review of the record. Plaintiffs have raised this issue as well so we will discuss the failure to award general damages when we address plaintiffs’ assignments of error.

In its eighth and final assignment of error, Noble argues that the trial court erred in awarding costs when a timely motion for new trial on costs had not been filed. We disagree.

La. C.C.P. art. 1920 specifically reads that, “Unless the judgment provides otherwise, costs ... may be taxed by a rule to show cause.” In this case, the Judgment submitted by Noble did not address costs. As such, the statute authorizes taxing costs by a rule to show cause. This assignment lacks merit. For the foregoing reasons, we find no merit in Noble’s assignments of error and affirm the challenged rulings and findings.

PLAINTIFFS’ APPEAL

On appeal, plaintiffs raise four assignments of error: first, the district court erred in including King Gauge on the Jury Verdict form and the jury erred in attributing fault to King Gauge because Noble Drilling failed to present any evidence of King Gauge’s fault during trial; second, the jury’s award of past and future lost wages was abusively low; and, finally, in their last two assignments, | ^plaintiffs challenge, as reversible error, the jury’s failure to award general damages to Stephen Willis and loss of consortium damages to Corinna Willis.

In their first assignment of error, plaintiffs contend that the trial court erred in denying their motion for judgment notwithstanding the verdict because Noble failed to demonstrate fault on the part of King Gauge, which precluded the inclusion of King Gauge on the verdict form. Further, plaintiffs contend that the jury’s apportionment of 50% fault to King Gauge was erroneous.

La. C.C.P. art. 1811 provides the procedural guidelines for obtaining a JNOV. In Lawson v. Mitsubishi Motor Sales of America, Inc., 05-0257 (La.9/6/06), 938 So.2d 35, 52, our supreme court reiterated the standard to be used in determining whether a JNOV should be granted or denied:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

A refusal to render a JNOV can only be overturned if it is manifestly erroneous.

Plaintiffs argue that JNOV was warranted in this case because the trial court erred in including jury interrogatories that asked the jury to assess fault to a party whose liability is not supported by the evidence. The record reveals that the plaintiffs timely objected to including King Gauge on the jury interrogatory form because Noble had not presented any evidence of King Gauge’s liability as the manufacturer of the ballast control valve. The trial court noted the plaintiffs’ | uobjection, but did not alter the verdict form in any way. After deliberating, the jury ultimately assessed 50% fault to King Gauge, 25% to Noble, and 25% to Stephen Willis.

Our review of a jury’s answers to its interrogatories is governed by the manifest error standard of review. In determining the adequacy of jury interrogatories, the pertinent law governing the specific type of case at hand should be reviewed. Thus, in the instant case, we turn to the law regarding comparative fault to determine if the jury interrogatories were so misleading or confusing as to constitute reversible error.

In Louisiana, delictual actions are governed by La. C.C. art. 2815, which states that “[e]very act of man that causes damage to another obliges him by whose fault it happened to repair it.” Thus, under La. C.C. art. 2315, a tortfeasor must compensate a tort victim for all of the damages occasioned by his act. La. C.C. art. 2323 provides, in pertinent part, as follows:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

When a defendant urges the fault of a non-party, it is incumbent upon that defendant to provide a preponderance of evidence that fault actually exists on the part of the non-party. Where non-parties are claimed by a defendant to be at fault |! 5in causing damages to the plaintiff, the burden shifts to the defendants to show not only the fault of the non-parties, but the percentage thereof. Therefore, despite the mandate of comparative fault, a defendant is not relieved of the burden of proving that the non-party’s conduct was a causative factor of the damages sustained and was a breach of duty to the plaintiff.

In this case, in responding to plaintiffs’ petition for damages, Noble alleged that plaintiff and numerous other defendants’ negligence or fault contributed to plaintiffs’ damages. However, Noble did not introduce evidence at trial to bear the requisite burden of proof regarding any allocation of fault to the manufacturer of the ballast control gauge, King Gauge. Although Captain Mark Fazioli described the chemical release as a “malfunction” and “equipment failure,” that is not evidence of a manufacturing or design defect sufficient to rise to the level required under products liability law. In short, the record before us does not support the jury’s finding that King Gauge was at fault in causing Mr. Willis’ injuries in this case.

Thus, by including King Gauge on the special verdict form, the trial court created confusion and misled the jury into returning a verdict that was clearly contrary to the evidence and applicable law. We find that it was reversible error for the trial court to include King Gauge on the jury interrogatories.

Because we have found that the trier-of-fact’s apportionment of fault in this case was clearly wrong, we will adjust the award to that extent that was reasonably l^within the trial court’s discretion; we give some deference to the trial court’s allocation of fault.

In determining apportionment of fault, the court should consider the conduct of each party at fault and the extent of the causal relation between the conduct and the damages. The factors to be considered include (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.

In this case, the jury determined that Mr. Willis was 25% at fault, the vessel owner, Noble, was 25% at fault, and the gauge manufacturer, King Gauge, was 50% at fault. Having already found that the jury erred in allocating fault to King Gauge, we will apply the Watson factors to the other two assessments made by the jury.

With respect to the vessel owner, the evidence at trial revealed that Noble was not aware of any problem with the ballast control gauge before the first release on January 12, 2007. However, there was a Noble employee in the control room when the chemical release occurred so, at that moment, Noble became aware of the incident. The evidence at trial reflected that Noble attempted to decontaminate the control room after the first release.

However, the evidence further revealed that, after the second release, mercury was not immediately removed from the work surfaces or the environment of the control room, which suggest that Noble was not as diligent with decontaminating the control room after the second release. Clearly, Noble was in 117the best position to control the clean-up of the control room as the owner of the rig and employer of most of the personnel onboard the vessel. Further, the testimony at trial revealed that, in this situation, the vessel owner is responsible for the clean-up.

In applying the factors also to Mr. Willis, we note that he had no control over or awareness of the gauges that “spewed” mercury. He did, however, have control over his contact with his personal belongings, including his boots, his satellite phone, and his briefcase, which were exposed to mercury. Against instructions, he kept those contaminated objects, which subjected him to continued exposure even after disembarking the • LESTER PET-TUS. For that reason, we will not adjust the jury’s finding that Mr. Willis was 25% at fault for his injury.

For these reasons, we find that the highest percentage of fault that should have been attributed to Noble was 75% and to Mr. Willis was 25%. Thus, the judgment in this case is amended to reflect these percentages.

In their remaining assignments of error, plaintiffs challenge the quantum of the jury’s award of general and special damages.

In Louisiana, as noted above, del-ictual actions are governed by La. C.C. art. 2315, which states that “[e]very act of man that causes damage to another obliges him by whose fault it happened to repair it.” Thus, under La. C.C. art. 2315, a tortfea-sor must compensate a tort victim for all of the damages occasioned by his act. The term “damages” refers to “pecuniary compensation, recompense, or satisfaction for an injury sustained.”

In the delictual context, La. C.C. art. 2315 authorizes compensatory damages. Compensatory damages encompass those damages “designed to place 11sthe plaintiff in the position in which he would have been if the tort had not been committed.”

Compensatory damages are further divided into the broad categories of special damages and general damages. Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages, while general damages are inherently speculative and cannot be calculated with mathematical certainty.

The Louisiana Supreme Court has defined general damages as “those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style which cannot really be measured definitively in terms of money.” Much discretion is accorded the trier of fact in its assessment of quantum — both special and general damages.

Special Damages

First, plaintiffs challenge the past and future' lost wages awarded by the jury. Plaintiffs specifically contend that the evidence presented at trial showed that Mr. Willis had suffered past lost wages of $345,220.00.

A plaintiff seeking damages for past lost wages bears the burden of proving lost earnings, as well as the duration of time missed from work due to the accident. The trier of fact has broad discretion in assessing awards for lost wages, but there | l9must be a factual basis in the record for the award. Where there is no basis for a precise mathematical calculation of a past lost wage claim, the trier of fact can award a reasonable amount of damages without abusing his discretion.

At the time of the accident on January 12, 2007, Mr. Willis was a Survey Party Chief for Fugro Chance. His Income Tax Return for 2006 reflected his adjusted gross income as $82,776.00. The jury, in awarding Mr. Willis $200,000.00 in past lost wages, apparently determined that he was entitled to almost 3 years of lost compensation. Further, the jury awarded Mr. Willis $400,000.00 in future lost wages. Given the discretion afforded the jury in its evaluation of the credibility of the witnesses, we find no abuse of discretion in the jury’s award of $200,000.00 in past lost wages and $400,000.00 in future lost wages.

General Damages

Plaintiffs next challenge that jury’s failure to award general damages even though the jury awarded $600,000.00 in special damages.

“General damages” involve mental or physical pain and suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. The factors to be considered in assessing quantum of, damages for pain and suffering are severity and duration.

l2nFor purposes of a general tort claim, disability damages are recognized as those general damages constituting any permanent disability or impairment that is secondary to the injuries sustained in the accident. Disability is defined as “the inability to perform some function,” or alternatively, “[a]n objectively measurable condition of impairment, physical or mental.” Impairment is simply defined as “[t]he fact or state of being damaged, weakened or diminished.”

Similarly, loss of enjoyment of life refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. Whether a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury. Accordingly, whether damages for loss of enjoyment of life are recoverable is a question that depends on the particular facts of the case and is to be left to the discretion of the trier of fact, to be determined on a case-by-case basis.

The general rule is that a jury commits legal error in awarding special damages for medical expenses while at the same time denying general damages. Upon review, we must determine whether the jury’s failure to award general damages is so inconsistent with its award of $600,000.00 in special damages that the deficiency constitutes an abuse of discretion by the trier of fact.

Clearly, Mr. Willis’s mental condition and pain and suffering after his exposure is undisputed. The jury’s substantial special damage award for past and future lost wages is inconsistent with the finding that Willis did not suffer any compensable pain and suffering associated with this accident. The jury did abuse |g1its discretion in failing to award general damages and the trial court erred in refusing to grant Mr. Willis’s JNOV.

Because we have found an abuse of discretion, we conduct a de novo review of the record and render an award appropriate to the particular facts and circumstances presented in the record. In making the initial award of damages at the appellate level, this Court is not limited to an award of either the lowest or highest amount that we would affirm; rather we set the award in an amount which is just compensation for the damages revealed by the record.

In addition to the medical evidence presented by Willis evidencing his dementia following the accident, the following testimony was presented regarding the drastic change in Willis’s personality and lifestyle following the accident.

Willis, who was 50 years old at the time of trial, testified that, as he was in good health and had been working for Fugro Chance for 10 years prior to the chemical exposure. He stated that he worked one additional tour immediately after the chemical exposure in question but, within four months, he was fired. He reported that he was fired because he could not perform his job duties at the same level that he had before his exposure.

Mr. Willis described having a “twitching thing going on” with his hands and eyes, coldness and numbness in his extremities, headaches, and confusion. He continues to have significant trouble with confusion and memory loss. He has problems recognizing familiar faces and remembering recent conversations. He no longer drives himself places because he gets lost easily.

Prior to the accident, Willis worked consistently and enjoyed listening to police scanners and repairing radios. Now, he mainly watches television and birds.

12?He stated that his relationship with his wife has deteriorated because of his injury on many levels, including sexually. Because he has been unable to work since the accident, his family’s sole source of income is his monthly disability check from the Social Security Administration. His drastically different financial situation causes significant stress to him.

Based on the testimony and evidence, we believe an award of $400,000.00 for general damages is appropriate in this case. We amend the judgment of the trial court to award general damages accordingly.

Finally, plaintiffs challenge the jury’s failure to award damages for loss of consortium to Corinna Willis. “Loss of consortium” includes such elements such as loss of service, loss of love and affection, loss of society and companionship, loss of sexual relations, loss of support, and loss of felicity or overall contentment and happiness.

In this case, the jury found that Mrs. Corinna Willis was not entitled to a loss of consortium award. Based on our review of the evidence in this case, we do not find the trial court erred in refusing to award Mrs. Willis for loss of consortium. This assignment of error lacks merit.

Conclusion

The judgment of the trial court is reversed in part and affirmed in part as amended. We reverse the jury’s finding assessing 50% fault to non-party, King Gauge, and find that defendant, Noble, bears 75% of the fault. We affirm the jury’s finding that Stephen Willis bears 25% of the fault.

Next, it is ordered, adjudged, and decreed that there be judgment in favor of the plaintiff, Stephen Willis, in the sum of $400,000 in general damages. In all 1 pother respects, the trial court judgment is affirmed. Costs of this appeal are assessed entirely against defendant, Noble Drilling.

REVERSED IN PART; AFFIRMED IN PART, AS AMENDED; AND RENDERED

WICKER, J., dissents with reasons.

WICKER, J.,

dissents with reasons.

_jjl respectfully dissent. It is my opinion that the trial court erred in denying Noble’s Motion for New Trial based on the erroneous jury instruction concerning OSHA’s applicability. Assuming that OSHA applies — for purposes of this dissent only — the instruction that a violation of OSHA constitutes negligence was misleading and contributed to the jury’s verdict in this case.

The trial court gave the jury the following instructions regarding the OSHA regulation:

Occupational Safety and Health Administration or OSHA regulations are applicable to the NOBLE LESTER PET-TUS and plaintiff. Therefore, Noble Drilling US, Inc. is required by law to meet the standards and rules set forth by OSHA. OSHA standards require that when a workplace contains hazardous materials, premises owners are required to communicate the hazard of these chemicals to employees of contractors working on its premises.
According to OSHA, mercury is considered a hazardous material. OSHA defines a hazardous material as any chemical which is a physical hazard or health hazard. Violating OSHA standards constitutes negligence.

The trial judge instructed the jury that violating an OSHA regulation “constitutes negligence.” This is an instruction to the jury that a finding of a violation of OSHA is negligence per se. See Picou v. Ferrara, 483 So.2d 915, 918 (La.1986) Land Duzon v. Stallworth, 01-1187 (La.App. 1 Cir. 12/11/02), 866 So.2d 837, 849-850; see also Rabon, 672 F.2d at 1238, n. 13 (implicitly finding that jury was instructed on negligence per se, but pretermitting decision because the defendant failed to object to the instruction at trial nor assign the issue as error on appeal).

Under the doctrine of negligence per se, the general standard of care is replaced by the specific rule of conduct contained in the statute. Dougherty v. Santa Fe Marine, Inc., 698 F.2d 232, 234 (5th Cir.1983) (citing Swoboda v. United States, 662 F.2d 326, 329 (5th Cir.1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982)). If the statute is violated, the defendant is deemed to have breached the standard of care and therefore, acted negligently as a matter of law. Id. at 234-35; see ateo Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231, 1238, n. 13 (5th Cir.1982).

Under the specific facts in this case, Noble’s violation of an OSHA regulation does not constitute negligence per se. Louisiana courts and the United States Fifth Circuit Court of Appeals have held that a non-employer’s violation of an OSHA standard does not constitute negligence per se. See Manchack v. Willamette Industries, Inc., 621 So.2d 649, 652 (La.App. 2 Cir.1993), writ denied, 629 So.2d 1170 (La.1993) (citing W. Keeton, et al., Prosser and Keeton on the Law of Torts § 36, at 231 (5th ed. 1984)) and Dixon v. International Harvester Co., 754 F.2d 573, 581-82 (5th Cir.1985) (OSHA regulations “may only be used to establish negligence per se when the plaintiff is an employee of the defendant”) (citing Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 713 (5th Cir.1981)).

Trial courts are required to “instruct jurors on the law applicable to the cause submitted to them.” La. C.C.P. art. 1792(B). Adequate jury instructions “fairly and reasonably point out the issues and ... provide correct principles of law for the jury to apply to those issues.” Adams v. Rhodia, Inc., 2007-2110, p. 6 (La. [5/21/08),s 983 So.2d 798, 804. “If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.” Id.

When an erroneous jury instruction “probably contributed to the verdict,” the verdict must be set aside. Id. at p. 7, 983 So.2d at 804; see also Wegener v. Lafayette Ins. Co., 2010-0810, p. 8 (La.3/15/11), 60 So.3d 1220, 1227. Although Louisiana courts and the United States Fifth Circuit have held that OSHA regulations may be admissible as evidence of a non-employer's negligence, such violations do not constitute negligence per se. Therefore, the trial court improperly instructed the jury that a finding of a violation of OSHA in this case is equivalent to a finding that Noble was negligent. This flawed instruction interfered with the jury’s fact finding process and likely affected the outcome of the case. The trial court erred in denying a new trial based upon the erroneous jury instruction. Because it is my opinion that a new trial should have been granted, I do not address the parties’ remaining assignments of error.

      . A survey party chief helps to navigate a submersible rig to its drilling location and to confirm its position.

      . Noble employees removed the spilled mercury from the control room work surfaces by "scraping the liquid mercury from the desk surfaces with index cards." Captain Mark Fazioli stated that this was not the proper procedure for clean-up of a mercury spill of that magnitude.

      . Although it is not our usual practice, in this case, we will, to promote clarity, address Noble’s assigned errors in an order different than the order in which they were presented.

      . La. C.E. art. 103 A(l); La. C.C.P. art. 1635.

      . Nunnery v. City of Kenner, 08-1298 (La.App. 5 Cir. 5/12/09), 17 So.3d 411, 415.

      . See Jeansonne v. Bosworth, 601 So.2d 739 (La.App. 1st Cir. 1992), writ not considered, 614 So.2d 75 (La.1993).

      . On the third day of trial, in an attempt to "correct” the mistake, counsel for Noble attempted to introduce evidence of the rig's location at the time of the chemical release. The plaintiffs objected and the trial judge refused to allow introduction of this evidence, which would nullify the stipulation.

      . La. C.C. art. 1853; R.J. D'Hemecourt Petroleum v. McNamara, 444 So.2d 600 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984); Comberrel v. Basford, 550 So.2d 1356 (La.App. 5 Cir.1989), writ denied, 556 So.2d 1284, 1285, 1286 (La.1990).

      . Crawford v. Deshotels, 359 So.2d 118 (La.1978); Dolsen v. City of New Orleans, 559 So.2d 50 (La.App. 4 Cir.1990).

      . Cain v. Aquarius Builders, Inc., 96-66 (La.App. 5 Cir. 7/30/96), 680 So.2d 69, 74-75.

      . Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 13, 100 S.Ct. 883, 63 L.Ed.2d 154 (1980); Clarkson Constr. Co. v. Occupational Safety & Health Review Comm'n, 531 F.2d 451, 458 (10th Cir.1976).

      . OSHA defines "seaman” in § A, paragraph 12 of CPL 2-1.20, issued November 8, 1996, as: "an individual engaged or employed in any capacity on board a vessel, and who has a more or less permanent connection with a vessel, and who contributes to the function of the vessel or to the accomplishment of its mission. [46 USC Section 10101(3)].”

      . "Inspected” vessels are those vessels required by law to be inspected and certified by the U.S. Coast Guard. It was stipulated at trial that the LESTER PETTUS was an “inspected” vessel.

      . "Per se" is defined in Black's Law Dictionary (9th ed.2009) as "1. Of, in, or by itself; standing alone, without reference to additional facts, or 2. As a matter of law.”

      . Melancon v. Sunshine Construction, Inc., 97-1167, p. 6 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011, 1016.

      . See Belle Pass Terminal, Inc. v. Jolin, Inc., 634 So.2d 466 (La.App. 1 Cir. 3/11/94), writ denied, 638 So.2d 1094 (La.6/17/94).

      . Nicholas v. Allstate Insurance Company, 99-2522 (La.8/31/00), 765 So.2d 1017, 1023; Jones v. Liberty Mutual Ins. Co., 568 So.2d 1091, 1094 (La.App. 5 Cir. 1990), writ denied, 572 So.2d 72 (1991) (reversible error occurs when the jury is misled to such an extent as to prevent it from doing justice).

      . Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798, 804-06.

      . Id.

      . Id.; Jones, 568 So.2d at 1094.

      . United States v. L’Hoste, 609 F.2d 796, 805 (5 Cir.1980) (quoting United States v. Blevins, 555 F.2d 1236, 1239 (5th Cir.1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761 (1978)).

      . Cuccia v. Cabrejo, 429 So.2d 232 (La.App. 5th Cir.1983), writ denied, 434 So.2d 1097 (La.1983).

      . See, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), superseded on other grounds as noted in, Miles v. Apex Marine Corp., 498 U.S. 19, 20, 111 S.Ct. 317, 319, 112 L.Ed.2d 275 (1990).

        .Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70. However, "a jury ... can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as the result of defendant’s fault.” Id. at 76. See also, Sallinger v. Robichaux, 00-2269 (La. 1/5/01), 775 So.2d 437.

      . Id. at 76.

      . Id.

      . Lawson, supra (quoting Davis v. Wal-Mart Stores, Inc., 00-0445 (La. 11/28/00), 774 So.2d 84, 89).

        .Delaney v. Whitney National Bank, 96-2144 (La.App. 4 Cir. 11/12/97), 703 So.2d 709, 717, writ denied, 98-0123 (La.3/20/98), 715 So.2d 1211.

        .Diez v. Schwegmann Giant Supermarkets, Inc., 94-1089, p. 5 (La.App. 1 Cir. 6/23/95), 657 So.2d 1066, 1069, writ denied, 95-1883 (La. 11/17/95), 663 So.2d 720.

        .Id.

      . Terro v. Casualty Reciprocal Exchange, 93-593 (La.2/2/94), 631 So.2d 651, writ denied, 94-0522 (La.4/22/94), 637 So.2d 157; Woodbury v. Louisiana Dept. of Transp. & Dev., 03-13 (La.App. 5 Cir. 5/28/03), 848 So.2d 104, 112-13, writ denied, 03-1830 (La. 10/31/03), 857 So.2d 477 and writ denied, 03-1832 (La. 10/31/03), 857 So.2d 478.

      . Haney v. Francewar, 588 So.2d 1172, 1178 (La.App. 1 Cir. 1991).

      . See also, Devereux v. Allstate Insurance Company, 557 So.2d 1091, 1095-96 (La.App. 2 Cir.1990).

      . The Louisiana Products Liability Act ("LPLA”) establishes the exclusive theories of liability for manufacturers for damage caused by their products in La. R.S. 9:2800.54. Moore v. Safeway, Inc., 95-1552 (La.App. 1 Cir. 11/22/96), 700 So.2d 831, 848, writ denied, 97-2921 (La.2/6/98), 709 So.2d 735 and writ denied, 97-3000 La. 2/6/98, 709 So.2d 744.

      . The Louisiana Products Liability Act (LPLA), La. R.S. 9:2800.51, et seq., provides the exclusive remedy for persons claiming injury due to product defects. Scott v. Am. Tobacco Co., Inc., 04-2095 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, 1273 writ denied, 07-662 (La. 1/7/08), 973 So.2d 740 and writ denied, 07-654 (La. 1/7/08), 973 So.2d 740.

      . Cuccia v. Cabrejo, 429 So.2d 232 (La.App. 5th Cir.1983), writ denied, 434 So.2d 1097 (La.1983).

      . Clement v. Frey, 95-1119 (La.1/16/96); 666 So.2d 607, 609-610.

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

      . Fogle v. Feazel, 201 La. 899, 909, 10 So.2d 695, 698 (1942).

      . McGee v. A C And S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770, 773-74.

      . Id. (quoting Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7-1 (Michie 1996)).

      . Id.

      . Id. (quoting Maraist & Galligan, LOUISIANA TORT LAW § 7-2).

      . Duncan v. Kansas City S. R.R., 00-0066 (La. 10/30/00), 773 So.2d 670, 682; Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506, 507 (La.1978); Anderson v. Welding Testing Lab., Inc., 304 So.2d 351, 352 (La.1974).

      . La. C.C. art. 2324.1; Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10); 31 So.3d 996, 1006-1007.

      . Cotton v. State Farm Mutual Automobile Insurance Company, 10-1609 (La.App. 1 Cir. 5/6/11), 65 So.3d 213, 220, writ denied, 11-1084 (La.9/2/11), 68 So.3d 522.

      . Id. at 224.

      . McGee, supra at 774.

      . Id. at 775.

      . Jenkins v. State, DOTD, 06-1804, p. 26 (La.App. 1 Cir. 8/19/08), 993 So.2d 749, 767, writ denied, 08-2471 (La. 12/19/08), 996 So.2d 1133.

      . Matos v. Clarendon National Ins. Co., 00-2814 (La.App. 1 Cir. 2/15/02), 808 So.2d 841, 848-49.

      . Bryan A. Garner, Black’s Law Dictionary (9th ed.2009).

      . Id.

      . McGee, supra at 773.

      . Id. at 775.

      . Id. at 774-775.

      . Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70.

      . Id.

      . Wainwright, supra.

      . Lyons v. Fleet Operators, Inc., 96-0148 (La.App. 4 Cir. 6/5/96), 676 So.2d 182, 188, writ denied, 96-2142 (La. 11/8/96), 683 So.2d 278.

      . Finley v. Bass, 478 So.2d 608 (La.App. 2 Cir. 1985).

      . Cf. Tracy v. Jefferson Parish Through Dept. of Pub. Works, 523 So.2d 266, 277 (La.App. 5th Cir.) writ denied, 530 So.2d 569 (La.1988).

      . Noble objected to the court's OSHA-related jury instructions and raised the issue as an assignment of error on appeal.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Renea FANGUY v. LEXINGTON INSURANCE COMPANY and Michael Graham, M.D.
    Nos. 12-CA-136, 11-C-1102.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.
    Rehearing Denied Dec. 13, 2012.

      Nelson W. Wagar, III, Sarah Ney, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    Jacqueline H. Blankenship, Attorney at Law, Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

12Plaintiff/Appellant, Renea Fanguy, appeals the sustaining of a peremptory exception of prescription in favor of Defendants/Appellees, Michael E. Graham, M.D. and Lexington Insurance Company, from the 24th Judicial District Court, Division “L”, pertaining to one of her medical malpractice claims. Additionally, Ms. Fanguy seeks supervisory review of the denials of her Motions in Limine to exclude the opinion of the medical review panel (“hereinafter referred to as “the Panel”) and the testimony of any of the Panel members who participated in the opinion. For the reasons that follow, we reverse the trial court’s ruling sustaining the peremptory exception of prescription, reverse the trial court’s denials of the Motions in Limine, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, Ms. Fanguy had been a patient of Dr. Graham for obstetrics and gynecology occasionally since 1989. In her visit with Dr, |sGraham on September 17, 1996, Ms. Fanguy first complained of left-sided pelvic pain. Dr. Graham performed a laparoscopy on October 4, 1996, and multiple pelvic adhesions were lysed in an attempt to alleviate Ms. Fanguy’s left-sided pelvic pain.

On June 8, 2008, Ms. Fanguy went to the emergency room at Tulane Hospital complaining of abdominal pain in her lower left quadrant for the previous three days. The examination showed she was positive for lower left quadrant and super-pubic tenderness. An ultrasound performed showed a normal uterus and a right ovary that was slightly larger than the left.

In her follow-up visit with Dr. Graham on June 6, 2008, Ms. Fanguy complained of dyspareunia, dysmenorrhagia and hemor-rhagia. The examination was normal except for left adnexal tenderness and an enlarged uterus. On June 17, 2008, Dr. Graham performed another laparoscopy on Ms. Fanguy. This procedure yielded an adhesion from the proximal segment of the tube on the left hand side to the lateral pelvic sidewall and multiple ovarian cysts that appeared to be benign. In addition, there was a false pocket located consistent with endometriosis on the right uterosacral ligament, which was lasered.

Ms. Fanguy returned to Dr. Graham on December 1, 2008, complaining again of worsening left-sided pelvic pain described as a “constant ache” and increasing dyspa-reunia that was not relieved by the previous surgery. She also complained of heavy bleeding. Ms. Fanguy was scheduled for a hysterectomy to take place on December 26, 2008. Ms. Fanguy indicated that she wanted, at least, one ovary left in place, as she did not want to go into premature menopause. During the procedure, Ms. Fanguy’s uterus was found to be dysmorphic on the left side, which was pressing on the left side. The right ovary was noted to be totally encapsulated and stuck to the posterior aspect of the uterus. Ms. Fanguy’s right ovary was removed during the surgery.

|4On October 6, 2009, Ms. Fanguy had her first consultation with Dr. Susan Je-anfreau for a second medical opinion regarding her continued pelvic pain. Dr. Jeanfreau prescribed Ms. Fanguy Lupron Depot, a medication used for treatment of endometriosis, for treatment of her pelvic pain.

Ms. Fanguy filed a “Request for Review of Malpractice Claim by Medical Review Panel” against Dr. Graham with the Division of Administration on December 23, 2009. In her request, Ms. Fanguy alleged Dr. Graham’s care and treatment fell below the standard of care applicable to an obstetrician and gynecologist in treating her for chronic pelvic pain through: 1) failing to offer medical management, such as Lupron Depot therapy, of pelvic pain rather than the three ineffective surgeries which failed to adequately treat her condition; 2) failing to adequately discuss with her the appropriate medical options between medical management and removal of one or both ovaries to treat the pelvic pain; B) failing to obtain adequate consent for the surgery of December 26, 2008, as well as the two previous surgeries; 4) removing the right ovary at surgery, instead of the left or both ovaries; and 5) other acts or omissions constituting a breach of the standard of care applicable. The Panel found in its opinion rendered on March 9, 2011, that the evidence presented did not support the conclusion that Dr. Graham failed to meet the applicable standard of care as charged in the complaint. In the “Reasons” section of the opinion, the Panel found, among other things, that the consent forms signed by Ms. Fanguy for the surgeries were adequate, and Dr. Graham’s judgment to leave the healthy ovary (the left ovary) was a reasonable decision, considering the fact Ms. Fanguy requested to retain one ovary.

Ms. Fanguy filed a “Petition for Damages” against Defendants on April 1, 2011, asserting similar allegations as the request for review, to which Defendants filed an answer. On September 15, 2011, Ms. Fan-guy filed a “Motion in Limine to |sExclude the Medical Review Panel Opinion and Any Testimony of Defense Experts.” In the motion, Ms. Fanguy alleged that panel member, Dr. Vernon Carriere, is a business partner of Dr. Graham and should have been ineligible to serve on the Panel. As such, Ms. Fanguy alleged that Dr. Car-riere’s participation in the Panel tainted the entire opinion. Moreover, Ms. Fanguy alleged the Panel’s opinion does not conform to LSA-C.C.P. art. 1425, in that it does not contain sufficient information such that it will assist the trier of fact or that it can be deemed reliable, and it does not conform to the Daubert/Foret requirements set forth in Cheairs v. State ex rel. Department of Transp. and Development, 03-0680 (La.12/3/03); 861 So.2d 536. Additionally, Ms. Fanguy alleged Defendants failed to submit a witness list, identifying which members of the Panel they intended to call as expert witnesses.

Subsequently, on September 22, 2011, Defendants filed a peremptory exception of prescription, alleging that any of Ms. Fanguy’s claims arising before December 21, 2008 were prescribed pursuant to LSA-R.S. 9:5628.

The exception of prescription and the motions were heard by the trial court on October 18, 2011. In a judgment signed on October 26, 2011, the trial court sustained the exception of prescription in favor of Defendants; granted the motion to exclude Dr. Carriere as a witness; denied the motion to exclude the Panel’s opinion and allowed it pursuant to LSA-R.S. 40:1299.47; and denied the motion to exclude the testimony of the defense experts (the two remaining members of the Panel). The motion for appeal was signed on November 8, 2011, and the instant appeal followed.

On November 28, 2011, Ms. Fanguy filed a supervisory writ seeking review of the trial court’s denials of the motions in limine to exclude the Panel’s opinion | fiand the defense experts. On the same date, Ms. Fanguy filed an “Unopposed Motion to Consolidate Application for Supervisory Writs and Suspensive Appeal,” which was granted. As such, the issues raised in the writ application will also be addressed in this opinion.

ASSIGNMENTS OF ERROR

In the briefs submitted to this Court, Ms. Fanguy raises the following assignments of error: 1) the trial court erred in failing to apply the doctrine of contra non valentem to her claim and finding her Request for Review had prescribed because her medical malpractice claims for surgery and treatment were performed more than one year prior to her filing of the request; 2) the trial court erred in denying the Motion in Limine to exclude the Panel’s opinion as tainted; and 3) the trial court erred in denying the Motion in Limine to exclude any panel member from rendering expert testimony at trial, either because the opinion is legally defective pursuant to LSA-C.C.P. art. 1425 or because the opinion is legally defective due to its corrupt, tainted status.

LAW AND ANALYSIS

Exception of Prescription

Ms. Fanguy alleges the trial court erred in sustaining the peremptory exception of prescription pertaining to the claims arising prior to December 21, 2008. Ms. Fan-guy contends that prescription of her June 17, 2008, claim was suspended under the doctrine of contra non valentem pursuant to Carter v. Haygood, 04-0646 (La.1/19/05); 892 So.2d 1261, because the petition alleged a continuing tort claim. She avers that her petition alleged that she could not have known that Dr. Graham, her trusted physician of sixteen years, committed medical malpractice pri- or to December 26, 2008 due to Dr. Graham’s continued treatment of her and his failure to advise her of less invasive, pharmaceutical options |7throughout her treatment. She also avers the allegations in the petition more than sufficiently state a claim under the discovery exception provision of the Medical Malpractice Act. Because of her continuing tort allegation, Ms. Fanguy further contends that prescription is not evident on the face of the pleadings; therefore, the trial court erred in shifting the burden of proving the claim had not prescribed to her.

Defendants argue the trial court was correct in its determination because contra non valentem does not apply to Ms. Fan-guy’s June 17, 2008, claim. Defendants assert there was absolutely no evidence before the trial court to remotely suggest that Dr. Graham was aware of any of Ms. Fanguy’s alleged debilitating pain, let alone that he reassured her, attempted to remedy her alleged injury, or attempted to ameliorate her knowledge of the alleged malpractice. Defendants aver that, subsequent to Ms. Fanguy’s June 26, 2008, postoperative visit where she was noted to be healing normally, there is no notation of any further complaints of pain until December 1, 2008. And even at the December visit, Defendants further aver Ms. Fanguy voiced her desire for relief from multiple problems that were not limited to pelvic pain. In addition, Defendants assert Ms. Fanguy did not establish that she had more than a perfunctory relationship with Dr. Graham, and there was a complete absence of evidence that would even suggest Dr. Graham engaged in conduct that would prevent Ms. Fanguy from availing herself of a cause of action. Defendants further argue that contra non valentem does not apply pursuant to the discovery exception because Ms. Fanguy had constructive knowledge that the June 17, 2008, surgery did not relieve her symptoms.

The standard controlling review of a peremptory exception of prescription requires that the appellate court strictly construe the statutes against prescription |Rand in favor of the claim that is said to be extinguished. Noble v. Estate of Melius, 10-549 (La.App. 5 Cir. 3/9/11); 62 So.3d 222, 226, citing Babin v. Babin, 08-776 (La.App. 5 Cir. 3/10/09); 10 So.3d 784, 785. On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931; Jensen v. City of New Orleans ex rel. New Orleans Aviation Bd., 10-917 (La.App. 5 Cir. 3/29/11); 64 So.3d 298, 301. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Id., citing Waguespack v. Judge, 04-0137 (La.App. 5 Cir. 6/29/04); 877 So.2d 1090, 1092. However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Id. Ordinarily, the movant bears the burden of proof at the trial of an exception of prescription. In re Manus, 10-82 (La.App. 5 Cir. 5/25/10); 40 So.3d 1128, 1129, writ denied, 10-1460 (La.10/1/10); 45 So.3d 1099, citing Bertoniere v. Jefferson Parish Hosp. Service Dist. No. 2, 07-301 (La.App. 5 Cir. 10/30/07); 972 So.2d 328, 332. However, where a petition reveals on its face that prescription has run, the burden shifts to the plaintiff to show that his action has not prescribed. Id.

In the instant matter, Ms. Fanguy’s request for review was filed on December 23, 2009, alleging acts of Dr. Graham’s medical malpractice occurring in June 2008 and December 2008. On the face of the petition, the June 2008 claim was prescribed. As such, Ms. Fanguy bore the burden of showing that claim was not prescribed. The record is void of any evidence introduced at the trial on the |9merits. Therefore, we must determine whether Ms. Fan-guy’s June 2008 claim is prescribed based upon the facts alleged in the petition.

LSA-R.S. 9:5628 controls the prescriptive period for medical malpractice actions and states that an action for damages against a health care provided must be brought within one year from the date of the alleged act or one year from the date of discovery of the alleged act with a three year limitation from the date of the alleged negligent act. In In re Manus, supra, this Court set forth the following regarding prescription, contra non valentem, and medical malpractice claims:

The Louisiana Supreme Court has held that both the one-year and three-year periods set forth in La. R.S. 9:5628 are prescriptive periods, as opposed to preemptive periods. Being prescriptive periods, the time periods are subject to interruption or suspension and are susceptible to the doctrine of contra non valentem. Contra non valentem, which means that prescription does not run against a person who could not bring his suit, is a jurisprudential doctrine under which prescription may be suspended.
Contra non valentem applies in four general situations to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.
Both the third and fourth categories of contra non valentem have been applied to medical malpractice actions. The fourth category of contra non valen-tem, commonly known as the “discovery rule,” has been codified in La. R.S. 9:5628. However, as explained by the supreme court, the codified discovery exception of contra non valentem under La. R.S. 9:5628 is qualified in that it is made inapplicable after three years from the act, omission or neglect.
| ipThe third category applies when the defendant engages in conduct which prevents the plaintiff from availing himself of his judicial remedies. When applied to medical malpractice claims, the supreme court has explained that “a doctor’s continuing professional relationship with his patient might give rise to the suspension or interruption of prescription.” The supreme court stated that the continuation of the special relationship between a doctor and patient offers the possibility of correction of the injury and, thus, may postpone the running of prescription. The supreme court reasoned that as long as the patient remains in the doctor’s care, he could reasonably expect a correction of the diagnosis or tortious treatment. (Citations omitted).

40 So.3d at 1129-1130.

In her petition, Ms. Fanguy alleges she first began experiencing pain in the left side of her pelvis on or about September 17, 1996. The petition further alleges the surgery performed by Dr. Graham on June 17, 2008 failed to resolve her left-sided pelvic pain, and she returned again on December 1, 2008 with a continued complaint of left-sided pelvic pain and dys-pareunia. The petition also alleges Dr. Graham’s treatment of Ms. Fanguy’s left-sided pelvic pain fell below the standard of care for gynecologists under the same or similar conditions and in particular that Dr. Graham:

(2) failed to obtain informed consent for the surgery on June 17, 2008, because he failed to:
(a) disclose reasonable therapeutic alternatives to the surgery with the patient;
(b) provide an adequate opportunity to the patient to ask any questions about the alternatives;
(c) adequately set forth the nature and purpose of the procedure to be performed on June 17, 2008.
(3) by drilling benign, functional, follicular cysts on June 17, 2008, which procedure has no known benefit in the treatment of pelvic pain.
(4) failed to offer or recommend appropriate medical management of en-dometriosis ...

Inin addition, Ms. Fanguy alleged she continued to suffer post-operative, left-sided pelvic pain for which she had to seek additional treatment elsewhere. Also, the petition alleges that “[a]t no time, either before or after the second laparoscopy on June 17, 2008, which confirmed endome-triosis, did Dr. Graham recommend gona-dotropin-releasing hormone (GnRH) agon-ists. His failure to do so is contrary to the guidelines set forth by the American College of Gynecologists (ACOG).”

After review, we find the trial court was erroneous in finding that Ms. Fan-guy’s June 17, 2008, claim was prescribed. In her petition, Ms. Fanguy established that prescription had been suspended through the fourth category of contra non valentón. The petition alleges the “discovery rule” exception, in that it stated the June 17, 2008, surgery failed to resolve her left-sided pelvic pain. Although Ms. Fan-guy did not return to Dr. Graham until December 1, 2008, she had insufficient knowledge there was a remaining medical problem for the months between June 2008 and December 2008.

Therefore, we find the trial court erred in sustaining Defendants’ peremptory exception of prescription against Ms. Fanguy for any treatment or surgery performed more than one year prior to the filing of the request for review but within three years of the date of the treatment.

Motion in Limine to exclude the Panel’s opinion and expert testimony of the remaining panel members

Ms. Fanguy alleges the trial court abused its discretion by failing to exclude the Panel’s opinion because Defendants’ and Dr. Carriere’s misconduct tainted the entire proceedings. Ms. Fanguy contends that Dr. Graham’s and Dr. Carriere’s failure to disclose their financial relationship violated LSA-R.S. 40:1299.47 of the Medical Malpractice Act. As such, Ms. Fanguy argues the violation of LSA-R.S. 11⅞40:1299.47 disqualified Dr. Carriere as an impartial panel member, and allowing the Panel’s opinion to be entered as evidence would be highly prejudicial to her case due to Dr. Carriere’s taint. Additionally, Ms. Fanguy argues the Panel’s opinion is legally insufficient under LSA-C.C.P. art. 1425 because it does not comply with the minimum legal standards for an expert report, and it does not contain sufficient information that will assist the trier of fact or can be deemed reliable. Because Ms. Fanguy argues the Panel’s opinion is tainted, she also argues the admission of the testimony of the remaining two panel members is improper.

Defendants argue there was no conflict presented to the trial court that would mandate exclusion of the panel members or the opinion. Defendants contend there is absolutely no evidence before the court to suggest that any of the panelists were biased or tainted. Defendants assert Dr. Carriere signed an oath, thus establishing that he could perform his duties as a panelist faithfully and without partiality, and no evidence was presented to establish that Dr. Carriere violated his oath. Moreover, Defendants argue LSA-C.C.P. art. 1425 does not apply to the Panel’s opinion because it does not mandate an exchange of expert reports, and LSA-R.S. 40:1299.47(H) is the more specific law that should apply, which allows the admissibility of the Panel’s opinion.

In this matter, the trial court granted Ms. Fanguy’s “Motion in Limine” to exclude Dr. Carriere as a witness; yet, the trial court denied the exclusions of the Panel’s opinion and the testimony of the two remaining members of the Panel. Ms. Fanguy’s motion alleged Dr. Carriere was ineligible to serve on the Panel because of his financial relationship with Dr. Graham. If the trial judge agreed with Ms. Fan-guy’s position that Dr. Carriere was ineligible to serve on the Panel, then it is illogical to allow the Panel’s opinion, in which Dr. Carriere participated, [1sto be entered into evidence at trial because the entire medical review process was tainted by Dr. Carriere’s participation.

Therefore, we find the trial court erred in denying the motion to exclude the Panel’s opinion because it was tainted by Dr. Carriere’s participation. Additionally, we find the trial court erred in denying the motion to exclude the testimony of the two remaining members of the Panel due to Dr. Carriere’s taint of the entire medical review. Accordingly, the writ application is granted.

DECREE

For the foregoing reasons, we reverse the sustaining of the peremptory exception of prescription by the trial court in favor of Lexington Insurance Company and Michael Graham, M.D., and against Renea Fanguy. Additionally, we find merit to the issues raised by Ms. Fanguy in her supervisory writ application and, accordingly, grant the writ. Lexington Insurance Company and Michael Graham, M.D. are to bear the costs of this appeal.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS; SUPERVISORY WRITS GRANTED

      . See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret, 628 So.2d 1116 (La.1993).

      . We note there was an "Unopposed Motion and Order to Correct Record” filed by Ms. Fanguy on November 4, 2011. The motion asserted the record was incomplete because it lacked Ms. Fanguy's deposition and sought to have it corrected pursuant to LSA-C.C.P. arts. 2088 and 2132. The trial court signed the order allowing Ms. Fanguy’s deposition to be entered into the record on November 8, 2011. Although Ms. Fanguy's deposition has been supplemented into the record, we cannot consider it as evidence because there is no evidence it was properly filed into evidence at the trial court level. The record does not show that Ms. Fanguy established the proper foundation to allow a determination of whether the deposition was taken to perpetuate testimony and whether said deposition was admissible under the Louisiana Code of Civil Procedure. See, Gulf American Industries v. Airco Indus. Gases, 573 So.2d 481, 494, citing Boneno v. Lasseigne, 514 So.2d 276 (La.App. 5th Cir.1987). (See also, Hover v. Farber, 05-613 (La.App. 5 Cir. 1/31/06); 922 So.2d 637, 638, where this Court held, "[e]ven after the record has been transmitted to the appellate court, the record can be supplement by stipulation of the parties, by the trial court, or by order of the appellate court, only if the evidence was properly filed into the record in the trial court.”) (Emphasis added).

      . Assignments of error two and three are being jointly discussed.

      . It is noted that Defendants did not file a writ application seeking review of the trial court’s granting of Ms. Fanguy's motion to exclude Dr. Carriere's testimony.


text:
    Melissa Murphy CARTER, on Behalf of Her Minor Daughter Javia CARTER v. EAST ST. JOHN ELEMENTARY SCHOOL, St. John the Baptist School Board, and Jane Doe.
    No. 12-CA-174.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.

      James L. Harmon, Attorney at Law, New Orleans, LA, for Plaintiff/App ellee.
    Kevin P. Klibert, Attorney at Law, Reserve, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

IsBoth parties appeal the judgment of the trial court finding defendant, St. John the Baptist Parish School Board (“School Board”), liable for the damages suffered by Javia Carter (“Javia”) when she broke her arm during recess at East St. John Elementary School. The School Board appeals the trial court’s determination of liability based on negligent supervision, and plaintiff, Melissa Carter on behalf of her minor child, Javia, appeals the trial court’s award of damages and seeks an increase in the amount. For the reasons that follow, we reverse the judgment against the School Board.

On May 16, 2007, Javia, a first-grader at St. John Elementary School, broke her-arm during recess after being flipped by a classmate over a bar on a play fire-truck located on the playground. She was initially seen by the school nurse, and | ¡¡then picked up by her grandfather, who took her to the nearby River Parishes Hospital emergency room where an x-ray revealed Javia suffered a left midshaft humerus fracture. She was placed in a long-arm posterior splint and referred to Children’s Hospital in New Orleans for further evaluation. Javia was seen at Children’s Hospital the next day and, three weeks later, she underwent surgery for the insertion of an intramedullary rod to fix the fracture. She was discharged from treatment on August 23, 2007, with no restrictions and no residual injury.

On May 15, 2008, Melissa Carter on behalf of her minor child, Javia, filed suit against East St. John Elementary School, the School Board, and Jane Doe (the unidentified school nurse), seeking damages for personal injuries suffered by Javia as a result of the accident. Plaintiff alleged East St. John Elementary School and the School Board were liable for failing to properly supervise its students, and the school nurse was liable for failing to properly perform her duties. East St. John Elementary School was dismissed from the lawsuit by joint motion prior to trial, and there is no indication Jane Doe was ever named or served. Thus, the matter proceeded to trial solely against the School Board on December 9, 2011. After a bench trial, the trial judge rendered judgment against the School Board for negligent supervision and awarded plaintiff damages in the amount of $32,666.18.

In its judgment, the trial court found that the level of supervision exercised by the School Board was not reasonable given the age of the students and the attendant circumstances. In reaching its conclusion, the trial court relied on the School Board’s own guidelines that require a ratio of one teacher to 26 students for a first grade classroom. The trial court noted that if anything, recess required greater supervision than the classroom because recess allows the children to run, jump and play, whereas class time requires the children to be quiet, calm, and busy with work in a confined room. The trial court concluded that the School Board 14breached its duty to provide reasonable supervision when only one teacher was left to watch over two first grade classes during recess. It reasoned that at the very least, the classroom ratio of one to 26 should have been followed during recess. It further determined that had two teachers been on the playground at the time of the accident, one of the teachers could have seen the argument between Javia and her classmate, foreseen an injury would follow the argument, and intervened to stop the dispute and separate the two students. The trial court concluded that but for the inadequate supervision, Javia’s injury would not have occurred. It further found that the accident was foreseeable and that two teachers, as opposed to one, could better oversee the students while they played.

The School Board appeals the trial court’s finding it liable for negligent supervision. It contends the trial court improperly applied the law and essentially imposed strict liability on the basis the one to 26 ratio was not followed. The School Board maintains the law does not provide that the teacher/student ratio is dispositive on the issue of negligent supervision. It also argues the trial court erred in relying on the one to 26 ratio set forth for classroom time as opposed to the one to 40 ratio required for physical education classes. The School Board asserts it is more reasonable to be guided by the ratio for physical education than the ratio required for instructional classroom time. The School Board further argues the trial court erred in finding Javia’s injury was foreseeable. It points out that the two girls were friends, there were no reported problems with the offending classmate, and there was no evidence of prior injuries on the playground with the same supervision. It maintains there was no evidence that additional teachers would have prevented the accident.

Plaintiff answered the appeal and requested modification of the award for general damages. The record shows the parties stipulated to medical expenses in | sthe amount of $24,166.18. Plaintiff contends the trial court’s award of $82,666.18 was abusively low because it only awarded $8,500 for general damages despite Javia undergoing three months of treatment for a broken arm that required surgery and left minor scarring. Plaintiff argues the lowest acceptable amount for general damages is $40,000, and seeks an increase in the trial court’s award for general damages to that amount.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. Wallmuth v. Rapides Parish School Board, 01-1779 (La.4/3/02), 813 So.2d 341, 346; Robinson v. Jefferson Parish School Board, 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1046, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. However, this duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is neither possible nor required for educators to discharge their duty to provide adequate supervision. Wallmuth, supra.

To establish a claim against a school board for failure to adequately supervise the safety of its students, a plaintiff must prove: (1) negligence on the part of the school board, its agents, or teachers in providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Robinson, 9 So.3d at 1047.

Negligence is based on the existence of a duty and the breach thereof that causes damages. Stirgus v. St. John the Baptist Parish School Board, 11-47 (La.App. 5 Cir. 6/14/11), 71 So.3d 976, 979. Whether a defendant has breached a duty | fis a factual question to be determined by the factfinder. LeBlanc v. State, ex rel. Depart. of Transp. and Development, 07-139 (La.App. 5 Cir. 12/11/07), 974 So.2d 703, 709, writ denied, 07-2478 (La.2/22/08), 976 So.2d 1286. The appellate court reviews questions of fact under the manifest error standard. Id.

The record shows that each of the two first grade classes at East St. John Elementary School had approximately 20-22 students. These two classes were combined for recess to allow one teacher a free lunch period. At the time of Javia’s accident, Ms. Salena LeBlanc, was the first grade teacher supervising recess, while Ja-via’s teacher, Ms. Chester, was at lunch. Ms. LeBlanc, who at the time of the accident had been at East St. John Elementary School for four years, testified that it was the usual procedure to have one teacher supervising two classes at recess. The principal, Mr. Jerry Galloway, confirmed this policy.

At trial, Mr. Galloway, testified that Bulletin 741 of the Louisiana Board of Elementary and Secondary Schools (BESE) sets a maximum ratio of one teacher to 26 students for kindergarten through third grade for classroom instruction. He further testified that the maximum ratio for physical education classes for kindergarten through eighth grade is one teacher to 40 students. He stated BESE does not set forth a maximum teacher to student ratio for recess.

The trial court relied on the School Board’s failure to comply with the 1:26 ratio during recess to find the School Board breached its duty to provide reasonable supervision, which we find was manifestly erroneous. There is nothing in the record setting forth a required teacher to student ratio for recess. Further, it is more reasonable to rely on the 1:40 ratio required for physical education classes to guide the amount of supervision needed for recess.

In Brooks v. Orleans Parish School Board, 560 So.2d 683 (La.App. 4th Cir. 1990), the Fourth Circuit reversed the trial court’s determination that the School |7Board was liable for negligent supervision when a five-year-old student was pushed from a slide, fell, and broke her arm. At the time of the accident, the plaintiff was one of 80-35 students (ranging in age from kindergarten to third grade) playing at recess with only one teacher on duty. It was noted that the teacher was alone for only a few minutes before she was joined by another teacher; however, the accident occurred while only one teacher was present. The Fourth Circuit noted that the School Board is not an insurer of the safety of its students, and that there is no requirement that the supervisor of a group of children have each child under constant scrutiny. The court concluded that the evidence failed to show negligence in supervision, but rather it only showed plaintiff was pushed off the slide by another student. The court found the trial court’s finding of inadequate supervision to be manifestly erroneous.

Also, in Collins v. Bossier Parish School Bd., 480 So.2d 846 (La.App. 2nd Cir.1985), writ denied, 481 So.2d 1350 (La.1986), the Second Circuit affirmed the trial court’s finding that the School Board was not negligent in its supervision of the children during recess. In Collins, the plaintiff, a kindergarten student, broke his leg in a fall from the horizontal (“monkey”) bars when another student wrapped his legs around the plaintiff, while he was playing on the horizontal bars, causing them both to fall. At the time of the accident, only one teacher was on duty to supervise recess involving approximately 100 kindergarten students. The teacher did not see the plaintiffs accident because she was preventing several other children from throwing dirt at one another. The Second Circuit noted that constant supervision of all students is not required and is virtually impossible “absent a ball and chain.”

Further, there are several other cases that have found ratios ranging from one teacher to 85 or more students and two teachers to 100-175 students constitute Inadequate supervision. Nicolosi v. Livingston Parish School Bd., 441 So.2d 1261, 1265 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1243 (La.1984), and cases cited therein.

Although these case were decided prior to the Supreme Court’s ruling in Wall-muth, Wallmuth did not change the law. The question is whether the supervision provided was reasonable considering the age of the children and the attendant circumstances, and whether the accident/incident could have been prevented. The Supreme Court has made it clear that constant supervision is not required for educators to discharge their duty to provide adequate supervision. It has also made it clear that a School Board is not liable for spontaneous actions by children that would not have been preventable absent constant supervision. Wallmuth, supra.

In the present case, the playground where the children were playing was in a confined area where all children were visible at all times by the teacher. Although the trial court noted that “at the very least, the teacher should have been able to have all the children in her line of sight,” thereby suggesting Ms. LeBlanc could not see all the children, testimony regarding the playground’s boundaries and photographs in the record show that the entire playground was visible from where Ms. LeBlanc was standing.

Additionally, Ms. LeBlanc had no notice that additional supervision of Javia or the offending student was required. This accident occurred in May, which is at the end of the school year, and the two girls had played with each other throughout the year without incident. There was no evidence the offending student was a discipline problem who required additional supervision.

Furthermore, there is no indication that additional supervision would have prevented the accident. The girls were playing on a piece of playground 19equipment that was no more than one foot off the ground and was surrounded by bars. There was no evidence of any similar incident involving the play fire truck. It was unforeseeable that one child would grab the ankles of another child and flip her over the bars. Ms. LeBlanc was only 10-15 feet away from the girls at the time the incident occurred. Although Javia testified that she told the offending student, “No, you better not do it,” Ms. LeBlanc did not hear it. Nonetheless, this statement does not put a teacher on notice, even if Ms. Le-Blanc had heard the statement, that the offending student, with no prior disciplinary history, is about to flip her classmate over a bar by grabbing her ankles.

Moreover, we find several factual inaccuracies in the trial court’s judgment. The judgment, with incorporated reasons, states that Ms. LeBlanc did not hear Javia cry and that she only learned of the accident when another student informed her that Javia had been hurt. To the contrary, Ms. LeBlanc testified that her first notice of the accident was when she heard Javia crying. The trial court also noted that but for the inadequate supervision, the offending student “would not have been allowed to push Javia following an argument.” There is no evidence in the record that Javia was pushed. Rather, the record shows the offending student reached down and grabbed Javia by her ankles and flipped her over the bar.

Based on the foregoing, we find the trial court was manifestly erroneous in finding the School Board liable for negligent supervision. The evidence only shows that the offending student, who had no prior disciplinary history, grabbed Javia’s ankles and flipped her over the bar of a piece of playground equipment. Such an incident was neither foreseeable nor preventable absent constant supervision, which is not required by the law in order for the School Board to fulfill its duty to provide adequate supervision.

| inFor these reasons, we reverse the judgment of the trial court casting St. John the Baptist Parish School Board in judgment for the injuries sustained by Ja-via. Our reversal of the trial court’s judgment renders plaintiffs appeal moot. Each party is to bear his own costs of this appeal.

REVERSED