author: STEWART, J.

text:
    Christopher M. BAGWELL, Plaintiff-Appellee v. Brittany O. BAGWELL, Defendant-Appellant.
    No. 48,913-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Weems, Schimpf, Gilsoul, Haines, Landry & Shemwell, by Kenneth P. Haines, Ree J. Casey-Jones, Shreveport, for Appellant.
    Kitchens Law Firm by Paul E. Kitchens, Graydon K. Kitchens, III, Minden, for Appellee.
    Before STEWART, MOORE and PITMAN, JJ.
   STEWART, J.

11AppelIant Brittany Olivier Bag-well (hereafter referred to as “Brittany”), is appealing a judgment modifying custody in favor of Christopher Bagwell (hereafter referred to as “Christopher”). At issue in this child custody dispute is whether Brittany and Christopher are bound by a stipulation in a prior judgment modifying child custody. This stipulation provided that “in the event this matter is called for modification of custody, that the standard of law set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), shall not be applicable.” (Emphasis added.) Since Brittany and Christopher are free to contract for any lawful object, and since no public policy precludes them from agreeing not to apply the Bergeron standard in the event that this matter is called for modification of custody, we find that the parties are bound by the stipulation in their October 29, 2009, modification of custody judgment. The judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

Brittany and Christopher were married in Lexington, South Carolina on March 5, 2004, and established a matrimonial domicile in Haughton, Bossier Parish, Louisiana. Two children were born of the marriage, O.A.B. (DOB 12/7/04) and H.L.B. (DOB 1/26/07). Brittany and Christopher separated on October 1, 2008, and Christopher filed for divorce in accordance with La. C.C. art. 103(2) on October 3, 2008. On October 30, 2008, Brittany filed an answer and reconventional demand. Both Brittany and Christopher requested joint custody, and each requested designation as the domiciliary parent.

On January 20, 2009, a judgment of child custody was rendered ^granting the parties “legal shared custody of the minor children,” further noting that they “share eo-domiciliary status.” On April 14, 2009, Brittany filed a petition to modify custody and to seek permission to relocate with the children pursuant to a military duty reassignment. Specifically, she requested permission to relocate by June 15, 2009, and that the custody plan be modified to name her domiciliary parent. Christopher filed an objection to the relocation, followed by his petition to modify custody such that he be named domiciliary parent with the children residing primarily with him.

The trial court issued an interim order directing Christopher to have physical custody of the children for the month of June 2009, and Brittany have custody for the month of July 2009. Further, it appointed Leigh Ann O’Brien, a licensed clinical social worker in the state of Louisiana, as the court’s expert to conduct an evaluation and determine whether the children should relocate with Brittany. Ms. O’Brien recommended that the children be allowed to relocate with Brittany, and a judgment modifying custody was rendered to that effect on October 29, 2009.

On July 26, 2012, Brittany filed a petition and rule to modify custody plan in order to obtain a provision whereby she would obtain passports for the children and be allowed to vacation abroad with them. In turn, Christopher filed an answer and reconventional demand to modify custody, claiming that Brittany was incapable of providing the children with a stable home. He also claimed that after her deployment, she improperly removed them from school in Mississippi in September 2011, and that she moved in violation of the relocation statute.

| aAgain, Ms. O’Brien was appointed to evaluate the modification of custody claims. She recommended that Chris and Brittany have a joint custody arrangement in which Chris is the designated domiciliary parent. In an interim order, Christopher was awarded physical custody from December 22, 2012, through December 28, 2012, with each party paying one-half of the transportation costs.

After the matter was tried on June 24, 2013, the trial court modified custody naming Christopher domiciliary parent. Also, the children were to reside primarily with Christopher, subject to a plan of physical custody in favor of Brittany. Brittany has filed the instant appeal.

LAW AND DISCUSSION

Legal Standard for Modification of Custody

Brittany’s two assignments of error are both related to the trial court’s decision to modify custody, naming Christopher as the domiciliary parent. In her first assignment, Brittany argues that the trial court erred by failing to apply the proper legal standard for modification of custody. More specifically, she argues that the trial court did not apply the standard expressed in Bergeron. She asserts that had this case been examined in light of the Berger-on rule, the record would not contain evidence that would establish that a change in custody is necessary.

The primary consideration in any child custody determination is the best interest of the child. La. C.C. art. 131; Adams v. Adams, 39,424 (La.App.2d Cir.4/6/05), 899 So.2d 726; Powell v. Powell, 28,911 (La.App. 2d Cir. 12/11/96), 684 So.2d 1084. The trial court is in the best position to ascertain the best interests of the children given each unique set of |4circumstances. Our legislature has provided 12 enumerated factors contained in La. C.C. art. 134 that are used to determine the best interest of the child. Accordingly, a trial court’s determination in the establishment or modification of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101 (La.1988); Knowlton v. Knowlton, 40,931 (La.App.2d Cir.4/12/96), 927 So.2d 640.

Jurisprudence provides different burdens of proof to modify custody in instances where the initial custody decree was either a stipulated (consent) judgment or a considered decree. When parties consent to a custodial arrangement and no evidence of parental fitness is taken, the party seeking modification has the twofold burden of proving (1) that there has been a material change in circumstances since the original custody decree, and (2) that the proposed modification is in the best interest of the child. Adams, supra; Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731. A considered decree is an award of permanent custody made when the trial court has received evidence of parental fitness. Id. The party seeking modification of a considered decree bears the heavy burden of proving that “the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or ... that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron, supra.

In the case sub judice, the parties agreed in the October 29, 2009, judgment modifying custody that the Bergeron standard would not be | ¡¡applicable in the event this matter was called for modification of custody. This judgment in question included the following language:

It is Ordered, Adjudged and Decreed that in the event this matter is called for Modification of Custody, that the standard of law as set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), shall not be applicable.

During the June 24, 2018, trial, the lower court noted:

..., [T]he parties before the Court in October of 2009, both represented by counsel other than the counsel they have here, agreed to a modification of the original judgment wherein, and it appears that some testimony was taken at that second hearing on modification, but they specifically agreed that the Berger-on standard would not apply which means we have an existing consent decree custody order which is now before the Court for modification. So first the Court has to determine if there’s been an appropriate change of circumstances to get into court. Although the Court does not have to find that it meets the heightened burden of the Bergeron rule. (Emphasis added.)

In this stipulated (consent) judgment, which the lower court identified as a consent decree custody order, we can discern that both Brittany and Chris agreed to the stipulation that Bergeron would not apply in a future modification of custody. The attorneys representing Brittany and Chris signed the October 29, 2009, judgment to that effect. Therefore, we find that this judgment is the law between Brittany and Christopher. Further, neither party objected to the language in the judgment.

Our law provides that a stipulated judgment is a bilateral contract between the parties, and as such, constitutes the law between them. Mobley v. Mobley, 37,364 (La.App.2d Cir.8/20/03), 852 So.2d 1136. It is the parties’ voluntary acquiescence, not the court’s adjudication, which gives the contract its binding force. Id. Parties are free to contract for any object that is lawful, possible, and determined or determinable that is not in violation of public policy. La. C.C. Art.1971; Barrera v. Ciolino, 92-2844 (La.5/5/94), 636 So.2d 218.

Here, Brittany and Chris entered into a joint custody agreement which set forth a standard, i.e. declining to apply Bergeron, that is to be followed in the event that this matter is called for modification of custody. Thus, in order for the courts to determine that the previously agreed upon stipulation is unenforceable, they must find that there is a public policy consideration which is undermined by it. After a careful review of the record, we find that there is no public policy consideration that would require us to determine that the October 29, 2009, judgment, which states the inapplicability of the standard of law as set forth in Bergeron to this matter, is unenforceable. Further, we find that the trial court correctly identified the October 29, 2009, judgment as an existing consent decree custody order, and did not err in failing to consider the legal standard for modification of custody set forth in Berger- on, as instructed in the judgment. This assignment of error is without merit.

Change in Circumstances

In Brittany’s second assignment, she asserts that the trial court erred in finding that Christopher proved a material change in circumstances justifying a modification of custody. She believes that since the October 29, 2009, custody decree had determined the issue of relocation, the trial court erroneously determined that her move from Virginia to Connecticut constituted a material change in circumstances.

The parties’ stipulated judgment, like all child custody judgments, is subject to modification by the court upon the appropriate showing and |7according to the best interests of the child. Adams, supra; Street v. May, 35,589 (La.App.2d Cir.12/5/01), 803 So.2d 312. As we stated in the previous assignment, where the original custody decree is a stipulated judgment, the party seeking modification of the decree must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Adams, supra.; Evans, supra.

Pursuant to the October 29, 2009, stipulated judgment, the trial court correctly concluded that it did not have to “find that it meets the heightened burden of the Bergeron rule.” Reviewing the facts of this custody dispute to determine if there has been a material change of circumstances, the trial court acknowledged that Brittany had previously been granted permission to relocate to Virginia because of her active military status. However, when Brittany was no longer active military, she chose to move from Virginia, where she had authority to relocate, to Connecticut, where she did not have authority to relocate. It classified the move as a change in circumstances, causing “significant problems with what visitation schedules in place.” The trial court considered Ms. O’Brien’s testimony that the children were no longer in the developmental age that requires them to be with their mother. After this analysis, the trial court concluded that “there’s a change in circumstances that would make it proper for the Court to consider the modifications.” We agree with this finding.

Since a material change in circumstances had occurred, the trial court did not err in considering the best interest of the children. When determining the best interest of the child for purposes of making a custody ^determination, a number of factors must be considered by the court and there must be a weighing and balancing of the factors favoring or opposing custody in one party. Masters v. Masters, 35,477 (La.App.2d Cir.10/2/01), 795 So.2d 1271; Duvalle v. Duvalle, 27,271 (La.App.2d Cir.8/23/95), 660 So.2d 152. La. C.C. art. 134 provides a list of factors to be used in weighing and balancing the best interest of the child:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
| n(12) The responsibility of the care and rearing of the child previously exercised by each party.

The trial court is in a better position to evaluate witnesses and, taking into account the proper allocation of trial and appellate functions, great deference is accorded to the decision of the trial court. Warlick v. Warlick, 27,389 (La.App.2d Cir.9/29/95), 661 So.2d 706. The trial court was faced with a difficult decision. After weighing and balancing the factors enumerated in La. C.C. art. 134, the trial court concluded, and we agree, that it would be appropriate Brittany and Christopher to be granted joint custody, with Christopher as the domiciliary parent.

The children have extended family in Louisiana and Mississippi, in very close proximity to Christopher’s house. While in Christopher’s care, the children have had the opportunity to develop a relationship with them. More importantly, Christopher has provided a stable environment for the children to return to on a regular and recurring basis, where they can thrive at home, school, and in the community. The trial- court expressed concern about Brittany’s inability to communicate with Christopher about the children, as well as the difficulty of maintaining a stable environment when moving from location to location. Even though the children have a connection with both parents and have spent a substantial amount of time in both homes, the trial court determined that Christopher clearly provides a more nurturing environment for the children.

The trial court applied the proper burden of proof and based its findings on factors relevant to the best interest of the children pursuant to La. C.C. art. 134. Therefore, we find that the trial court’s judgment linmodifying the prior custody arrangement is not manifestly erroneous, and thus, will not be disturbed on appeal.

CONCLUSION

For the reasons set forth above, we affirm. All costs of this appeal are assessed equally between the appellant and appellee.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    David ELLEDGE and Kathy Elledge, Plaintiffs-Appellants v. Larrie Ann WILLIAMSON, M.D. and Louisiana Medical Mutual Insurance Company, Defendants-Appellees.
    No. 48,644-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Guerriero & Guerriero, By Jeffrey D. Guerriero, Wade L. House, Monroe, for Appellants.
    Lawrence W. Pettiette, Jr., Shreveport, for Appellees.
    Before BROWN, DREW, and PITMAN, JJ.
   BROWN, Chief Judge.

_JjIn this medical malpractice case, the defendants are Dr. Larrie Williamson and her medical malpractice insurer, Louisiana Medical Mutual Insurance Company (“LAMMICO”). Plaintiff, David Elledge, was seriously injured when he attempted suicide while confined in an enhanced unit and under the care of Dr. Williamson, a practicing psychiatrist. As required by law, the complaint was first heard by a Medical Review Panel (“MRP”) which concluded that Dr. Williamson did not violate the appropriate standard of care. Thereafter, David and Kathy Elledge filed this action. Defendants filed a motion for summary judgment (“MSJ”) asserting that plaintiffs had no expert witness to support their claim. In response, plaintiffs filed a motion to vacate medical review panel opinion and an opposition stating that the MSJ was premature. Plaintiffs claim that the MRP was not properly established pursuant to the Louisiana Medical Malpractice Act, which clearly requires advance written notice of a panelist’s employment, financial or other relationship with either party that might give rise to a conflict of interest. Plaintiffs claim that a new panel must be appointed and without a valid MRP opinion, this lawsuit is premature. The trial court denied plaintiffs’ motion to vacate and granted defendants’ motion for summary judgment. Plaintiffs have appealed. We affirm in part, reverse in part, and remand.

_[¡Facts and Procedural Background

In April 2007, plaintiff, David Elledge, who was 59 years old and employed by the U.S. Postmaster in Monroe, Louisiana, began experiencing depression, suicidal thoughts, and paranoia due to a lack of sleep. On July 23, 2007, Elledge was voluntarily admitted as a psychiatric patient into Brentwood Behavioral Hospital (“Brentwood”) in Shreveport, Louisiana. Defendant, Dr. Williamson, the treating physician, placed Elledge in the “Enhanced Unit” and ordered that he be provided with “one-on-one” care. The enhanced unit is a locked-down area on the third floor of Brentwood with an increased staff and only 12 patients. Dr. Williamson prescribed Geodon, a sedative, for sleep. On July 25, Dr. Williamson removed the “one-on-one” order but continued Elledge in the enhanced unit under close observation. The next day, July 26, following an “elopement” attempt, Dr. Williamson added precautions. In his petition, Elledge claimed that he “specifically told Dr. Williamson that he was trying to kill himself.” Later that day, while in the third floor enhanced unit, Elledge jumped out of a window. He suffered serious and permanent injuries.

Plaintiffs filed a timely complaint with the Division of Administration, which was subsequently reviewed by a medical review panel consisting of three physicians and an attorney/chairman. The panel unanimously concluded that Dr. Williamson met the standard of care for safeguarding the patient from the danger of his mental state, including the duty to use reasonable care to prevent self-inflicted harm.

Following the panel’s opinion, plaintiffs filed a medical malpractice suit against Dr. Williamson and LAMMICO. Plaintiffs claimed that | SEHedge’s injuries were caused by Dr. Williamson’s negligence in failing to recognize and treat his suicidal thoughts; failing to administer medication that would sedate him and allow him to sleep; failing to recognize the seriousness of his suicidal tendencies; failing to diagnose and treat his depression timely and appropriately; failing to protect him from himself while in her care, custody, and control; and by recalling the “one-on-one” order despite knowing that plaintiff was still suicidal.

Defendants filed a motion for summary judgment, asserting that plaintiffs had failed to identify an expert witness and therefore would be unable to meet their burden of proof at trial. The hearing on the motion for summary judgment was continued at the request of plaintiffs. Plaintiffs filed an opposition to defendant’s motion for summary judgment, alleging that defendant’s motion was premature. Plaintiffs also filed a motion to vacate the opinion of the MRP. After additional depositions and discovery, plaintiffs filed a supplemental memorandum in support of their motion to vacate.

The trial court denied plaintiffs’ motion to vacate and granted defendants’ motion for summary judgment. The Elledges filed the instant appeal.

Discussion

Motion to Vacate the MRP

Under the Louisiana Medical Malpractice Act, before a civil action can be filed against a qualified healthcare provider or its insurer, the claim must first be submitted to a medical review panel. La. R.S. 40:1299.47. A civil action filed without having obtained an opinion from the medical Preview panel is subject to an exception of prematurity. In the case sub judice, plaintiffs filed an exception of prematurity claiming that the Medical Review Panel (“MRP”) was improperly convened and that its opinion should be vacated.

An MRP is composed of four members: three health care providers and one attorney. The parties may select the attorney member by agreement or, if they cannot agree, by using the strike procedure set forth in the statute. The attorney member’s role is purely advisory; he or she does not vote. The health care providers must be licensed in Louisiana and currently engaged in the practice of their professions. The claimant and the defendant each select one panelist. The first two panelists then select a third panel member. As in the instant case, when the only defendant is a specialist, then the three physician members of the panel must be from the defendant’s specialty, which in this case is psychiatry. La. R.S. 40:1299.47(0).

Each panelist expresses his or her expert opinion regarding whether the information presented supports the determination that the defendant physician breached the appropriate standard of care. La. R.S. 40:1299.47(G). The medical review panel’s opinion is admissible as evidence in a medical malpractice action. Hunter v. Bossier Medical Center, 31-026 (La.App.2d Cir.09/25/98), 718 So.2d 636.

Plaintiffs’ motion to vacate was based upon two separate issues. First, the plaintiff claims that two panel members failed to submit a writing to the panel chairman disclosing each of their relationships with the defendant that potentially served as conflicts of interest. Secondly, the plaintiffs argue that |fione panelist, Dr. Stevens, failed to execute his oath prior to engaging in the duties of a panelist.

La. R.S. 40:1299.47(0(7) requires:
A panelist or the attorney chairman shall disclose in writing to the parties prior to the hearing any employment relationship or financial relationship with the claimant, the health care provider against whom a claim is asserted, or the attorneys representing the claimant or health care provider, or any other relationship that might give rise to a conflict of interest for the panelists. (Emphasis added).

Plaintiffs argue that the trial court abused its discretion by failing to vacate the medical review panel’s opinion because two panelists did not disclose their personal and/or employment relationships with Dr. Williamson. One panelist, Dr. Lee Stevens, taught Dr. Williamson during her residency at LSUS Medical Center. Additionally, Dr. Stevens and Dr. Williamson are both staff physicians at Brentwood Hospital and receive a stipend from the hospital for performing on-call duties. Dr. Stevens testified that the two occasionally consulted one another regarding patient care. During his deposition, Dr. Stevens referred to Dr. Williamson as a “good friend” but not a “close friend.”

Plaintiffs also object to a second panelist, Dr. Beth Valiulis, based upon the panelist’s failure to disclose her acquaintance with Dr. Williamson which began during their residency. Plaintiffs cite Dr. Valiulis’ uncooperative nature during her deposition, and her lack of knowledge regarding the procedures governing the conduct of medical review panels as evidence of bias. In her deposition, Dr. Valiulis testified that she began her presidency two or three years after Dr. Williamson and recalled having minimal contact with Dr. Williamson.

The third panelist was Dr. Gregory Seal, who was not challenged by either party. What is problematic is that the record does not show who selected the members of the panel. The selection by Dr. Williamson of either Dr. Stevens or Dr. Valiul-is could be a factor to weigh and could have some relevance to an evaluation of impartiality. This is heightened by the fact that Dr. Valiulis evaded answering a simple question concerning whether she informed the attorney/chairman or the other members of the panel of a relationship with defendant.

In support of their contention, the plaintiffs cite Houghton v. Our Lady of the Lake Hosp., Inc., 03-0135 (La.App.lst Cir.07/16/03), 859 So.2d 103. In Houghton, supra, the trial court vacated an MRP’s opinion on the basis that a panelist failed to inform the parties of her prior employment with the defendant hospital. The First Circuit court upheld the decision, stating:

The panel was not established pursuant to the provisions of the Act, which clearly requires advance written notice to the parties of any employment relationship, financial relationship, or other relationship with either party that might give rise to a conflict of interest for a panelist. The timely filing of the motion in the ancillary matter brought this omission of notice of a possible conflict of interest to the attention of the court, and the court, in its discretion, reluctantly granted the motion to vacate the opinion of the medical review panel and ordered the parties to reappoint a medical review panel. Therefore, based on the ruling of the court in the ancillary matter, the complaint had not been reviewed by a properly constituted panel and for that reason, the malpractice suit was premature. (Emphasis added). Houghton, 859 So.2d at 109.

The statute requires only those panel members who possess a potential conflict of interest to provide a written disclosure. The court has expounded |7upon what it deems a conflict of interest in the context of an employment relationship. In Derouen v. Kolb, 397 So.2d 791, 794-5 (La.1981), the Louisiana Supreme Court held that there was no potential bias toward a plaintiff even though two physician members of the medical review panel were staff members at defendant hospital.

Furthermore, the Fourth Circuit has addressed employment relationships in the context of medical residency programs in Moore v. Wal-Mart, Inc., 98-1806 (La.App.4th Cir.03/10/99), 729 So.2d 187. The court in Moore, supra, held that no conflict of interest existed between a panelist physician and the defendant physician despite the fact that the panelist supervised the defendant during his residency and were casual acquaintances.

In Whitt v. McBride, 94-896 (La.App.3d Cir.03/01/95), 651 So.2d 427, writ denied, 95-0357 (La.03/30/95), 651 So.2d 851, the appellate court concluded that the trial court in a medical malpractice action was justified in finding that a physician selected by defendant physician did not have a conflict of interest even though that defendant had previously served on a panel that exonerated that physician.

In the instant case, after exploring the issue, the trial court determined that no such disqualifying conflict existed, and we find no abuse of its discretion in arriving at this conclusion. Thus, the failure to disclose what the two panelists ■ believed was not a conflict of interest is not error. Neither is the trial court’s adverse ruling on plaintiffs’ motion to vacate.

|sIn determining whether conflicts of interests exist, the courts have emphasized the fact that a MRP’s opinion is not conclusive. The supreme court in Derouen, supra at 794-95, stated:

Where a judge has the power to decide the facts and law of a case and to render a final adjudication as to the rights of the parties involved, no such power exists for the medical review panel. The panel simply renders an expert opinion, and does not have the power to adjudicate the rights of any party.
In all cases which go to trial the judge or jury remain the final arbiter of factual questions concerning liability and quantum.

Therefore, the existence of an employment, financial or other relationship giving rise to a conflict of interest does not require an automatic disqualification of the panelist’s service. The court has discretionary power in determining whether a panel member should be disqualified. Whitt, supra; Houghton, supra.

In Whitt, supra at 429, the court held: “We note that La. R.S. 40:1299.47(0(7) only mandates that these relationships be disclosed in writing to the parties. It does not specify automatic disqualification from service on the panel. Rather this determination is left to the discretion of the trial court.”

The trial court has vast discretion in finding whether a conflict of interest exists that could be highly biased and prejudicially influence the medical review panel’s opinion. On this record we cannot find a violation of that discretion. The trial court reasoned that based upon the evidence presented, the relationships between the panelists and the defendant failed to show a level of conflict of interest that would violate La. R.S. 40:1299.47(0). Further, as we have stated, the failure to inform the parties of the relationship | ¡¡between Drs. Stevens and Valiulis with Dr. Williamson does not automatically require the MRP to be vacated.

Both of the panel members, Dr. Stevens and Dr. Valiulis, signed an oath stating that they would perform their duties impartially. Plaintiffs contend that Dr. Stevens signed his oath after the review of the complaint. Dr. Stevens was admitted onto the panel in substitution of another physician who had been released. The panel chair mailed the oath to Dr. Stevens to sign after the MRP’s meeting. Although La. R.S. 40:1299.47(0(5) requires that the oath be signed before the meeting, this oversight and technical error does not render the panel opinion inadmissible. Hunter, supra.

Motion for Summary Judgment

The second issue that this court must consider is whether plaintiffs are correct in their claim that the trial court erred by granting defendants’ motion for summary judgment. A motion for summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Schultz v. Guoth, 10-0343 (La.01/19/11), 57 So.3d 1002.

To successfully establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: 1) the standard of care applicable to the defendant; 2) that the defendant breached that standard of care; and 3) that the resulting injury was a proximate cause of the breach. La. R.S. 9:2794; Roberts v. Marx, 47-658 (La.App.2d Cir.01/16/13), 109 So.3d 462, writ denied, 13-0649 (La.04/26/13), 112 So.3d 847.

| inPlaintiff is generally required to produce expert testimony in a medical malpractice action to establish the applicable standard of care and to determine whether that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the counsel of expert testimony. Roberts, supra. There are instances in which expert testimony is not required in order for the plaintiff to sustain his burden under La. R.S. 9:2794. The exception exists in cases where the medical and factual issues are such that a lay person can perceive negligence in the physician’s conduct as well as any expert. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228.

In the case sub judice, upon David Elledge’s admission to the hospital, Dr. Williamson diagnosed him with an Axis I major depressive disorder and suicidal ideation.

The MRP’s opinion states:
Dr. Williamson assessed him initially and placed him on one-to-one and moved him into the enhanced unit, the most secured unit in the hospital. The following day, based on her assessment, he was no longer suicidal and she changed him to continuous observation (he remained in the enhanced unit). The next day, after an elopement attempt, she put him additionally on elopement precautions and ordered at that time also unit restrictions all of which met the standard of care. Elopement occurs when a patient leaves or attempts to leave the facility

without the knowledge of the staff. According to the MRP members, upon learning of the incident, Dr. Williamson kept Elledge in the enhanced unit from which he had already escaped. According to the petition, Elledge told Dr. Williamson that he tried to kill himself that day. From inside the third floor enhanced unit, Elledge jumped out of a window. An enhanced unit |nwith continuous observation would suggest that the room would not be equipped with any instruments or means by which a patient could attempt to commit suicide. The placement of a suicidal person on the third floor in a unit with unsecured and breakable windows would appear to be incongruous. Neither plaintiffs or defendants, however, presented any information concerning the security and preventive measures of the enhanced unit, particularly the windows. The medical review panel did not specifically address this question. Furthermore, Elledge was under continuous and close observation in this unit which only had 12 patients and had additional staff.

Clearly, Dr. Williamson was aware of Elledge’s propensity for self-damaging acts; he had a history of such conduct; he had attempted suicide that same morning when he temporarily escaped from the enhanced unit. As a psychiatrist, Dr. Williamson understood the precarious position her patient was in and had a professional responsibility to treat Elledge for the manifestations or symptoms of the disorder, namely, suicide or other self-harmful acts. This duty included heightened preventative measures to keep him from self-injury.

The factual question at issue in the instant case is what restraint or seclusion was appropriate and whether the care provided or ordered by Dr. Williamson met the appropriate standard. Any doubt as to these facts must be resolved in favor of a trial on the merits.

We find that the record raises a factual dispute at least with respect to the alleged negligence in housing Elledge in a third floor psychiatric ward |12with a window from which he could (and did) jump out of and incur debilitating injuries.

We reject defendants’ contention that the absence of expert testimony was fatal to the establishment of a prima facie case. A factfinder could find negligence under these circumstances without the assistance of expert testimony.

In the current posture of this case, the trier of fact could conclude that secured, unbreakable windows were the correct protocol and standard of care. The fact that Elledge jumped through an unsecured window on the third floor of the “secured area,” without any evidence from defendants that the windows were secured, is an issue of genuine material fact.

Conclusion

We AFFIRM the denial of the motion to vacate, REVERSE the grant of the motion for summary judgment, and REMAND. Costs are assessed to defendants.

      . Plaintiffs divorced during the pendency of this lawsuit. Kathy filed a claim for loss of consortium.


author: PITMAN, J.

text:
    INTERDICTION OF Majid (a/k/a “Sam”) LALEHPARVARAN.
    No. 48,655-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      N. Dawn Harper, for Appellant, Parvin Hosseini.
    Krebs, Farley & Pelleteri, P.L.L.C., New Orleans, by Maura Zivalich Pelleteri, Amy S. Malish, for Appellee, New York Life Ins. & Annuity Corp.
    L. Scott Patton, for Azim Jalaldin <& Bal K. Dahal.
    Law Office of G. Scott Moore, by G. Scott Moore, for Anabel Lalehparvaran.
    Before WILLIAMS, CARAWAY & PITMAN, JJ.
   PITMAN, J.

|! Appellant, Parvin Hosseini, appeals the trial court’s granting of an exception of no right of action filed by Appellee, New York Life Insurance and Annuity Corporation (“New York Life”). For the following reasons, we affirm.

FACTS

Majid Lalehparvaran obtained a $500,000 life insurance policy as part of a business venture. Mr. Lalehparvaran was the owner of the policy and a limited liability company in which he owned an interest paid the premiums.

In 2003, Mr. Lalehparvaran was interdicted, and his wife, Anabel S. Lalehpar-varan, was named curatrix.

In 2008, the limited liability company made plans to liquidate and would no longer pay the premiums on the life insurance policy. The Lalehparvarans allegedly could not afford to pay the premiums. Instead of allowing the policy to lapse and be terminated, Azim Jalaldin and Bal K. Da-hal agreed to acquire ownership of the policy and pay the premiums. As the then-curatrix of Mr. Lalehparvaran, Mrs. Lalehparvaran filed a petition for authority to convert the existing life insurance policy into a new policy with the following beneficiaries: Mrs. Lalehparvaran 34%, Mr. Jalaldin 33% and Mr. Dahal 33%. The trial court granted the petition and authorized Mrs. Lalehparvaran on behalf of Mr. Lalehparvaran to execute any documents to convert the life insurance policy as requested. The life insurance policy was converted from a term life policy to a whole life policy Rwith Mr. Jalaldin and Mr. Dahal as owners and Mrs. Lalehpar-varan, Mr. Jalaldin and Mr. Dahal as beneficiaries.

In July 2011, Mrs. Lalehparvaran was removed as curatrix and replaced by Mrs. Hosseini, the sister of Mr. Lalehparvaran.

On September 7, 2012, Mrs. Hosseini filed a petition to cancel the insurance policy. Mrs. Hosseini alleged that Mrs. Lalehparvaran neglected Mr. Lalehparvar-an and tried to starve him to death so that she could collect on the life insurance policy. Mrs. Hosseini also argued that Mr. Jalaldin and Mr. Dahal have no insurable interest in the life of Mr. Lalehparvaran and that the insurance policy is, therefore, unlawful and unenforceable.

On October 26, 2012, New York Life filed a peremptory exception of no right of action. New York Life argued that Mrs. Hosseini is not a party to the life insurance policy and, thus, does not have the authority to cancel the policy. On November 2, 2012, Mr. Jalaldin and Mr. Dahal filed an exception of no cause of action.

On January 29, 2013, a hearing was held on the exceptions of no right of action filed by New York Life and of no cause of action filed by Mr. Jalaldin and Mr. Dahal. At this hearing, New York Life argued that, as curatrix, Mrs. Hosseini does not have the right to request cancellation of the life insurance policy because she is not the owner of the policy. New York Life stated that Mrs. Hosseini’s allegations that Mrs. Lalehparvaran neglected and starved Mr. Lalehparvaran do not provide a basis for cancelling the policy. Mr. Jalaldin and Mr. Dahal argued that they do have an insurable interest in the policy because they paid the policy premiums for over four years. Mrs. Hosseini argued that she is able to request the ^cancellation of the insurance policy because, as curatrix, she stands in the shoes of Mr. Lalehparvaran. Mrs. Hosseini also asserted that Mr. Jalal-din and Mr. Dahal’s exception of no cause of action should also be dismissed because they misrepresented facts to New York Life and should not be able to benefit from Mr. Lalehparvaran’s death. Mrs. Hosseini requested that the trial court cancel the policy or change the beneficiaries of the policy because the trial court erred in allowing Mrs. Lalehparvaran to convert the policy in 2008. Stating that only the owners of the policy have the authority to make changes to the policy, the trial court found that Mrs. Hosseini was not an owner of the policy and, therefore, had no right of action to request cancellation of the policy. The trial court granted the exceptions of no right of action and no cause of action.

On February 8, 2013, the trial court signed a judgment maintaining both the peremptory exceptions of no right of action and no cause of action. The trial court also dismissed, with prejudice, Mrs. Hos-seini’s claims against New York Life, Mrs. Lalehparvaran, Mr. Jalaldin and Mr. Da-hal.

Mrs. Hosseini appeals the trial court’s granting of New York Life’s peremptory exception of no right of action.

DISCUSSION

Mrs. Hosseini argues that the trial court erred in granting New York Life’s peremptory exception of no right of action, contending that she does |4have the right of action to request the cancellation of the life insurance policy because she is the curatrix of the interdict whose life is covered by the insurance policy. Mrs. Hos-seini also argues that Mrs. Lalehparvaran, Mr. Jalaldin and Mr. Dahal do not have insurable interests in the life of Mr. Laleh-parvaran; and, therefore, the ruling of the trial court violates public policy because it favors three persons who will benefit from the death of Mr. Lalehparvaran, but do not benefit from his life.

New York Life argues that the trial court properly maintained the peremptory exception of no right of action. It contends that only the parties to the insurance contract, i.e., the policy owners and the insurance company, have the authority to cancel the policy or change the beneficiaries. New York Life explains that the policy is clear that the policy owners are Mr. Jalaldin and Mr. Dahal and that they possess all the rights of ownership, including the authority to cancel the policy or to change the beneficiaries. It also asserts that Mr. Lalehparvaran’s status as the insured does not provide him with the right of action to cancel the policy or to change the beneficiaries.

New York Life further argues that Mrs. Hosseini, as curatrix, is not entitled to demand that the insurer cancel the life insurance policy based on the ground that the beneficiaries lack insurable interests. It states that a beneficiary of a life insurance policy must have an insurable interest at the time when the life insurance policy contract is made. New York Life explains that, when a contract is made in violation of this requirement, the remedy is an action against the recipient of any benefits paid under the contract. It contends that, although Mr. Lalehparvaran’s representatives may [shave a future action against a recipient of the policy’s death benefits, La. R.S. 22:901 does not grant Mrs. Hosseini a right of action against New York Life to seek cancellation of the life insurance policy-

The function of a peremptory exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Chisley v. Smith, 43,312 (La.App.2d Cir.6/4/08), 986 So.2d 222, citing Richland Parish Police Jury v. Debnam, 42,421 (La.App.2d Cir.10/17/07), 968 So.2d 294, writ denied, 08-0016 (La.3/24/08), 977 So.2d 953. The determination of whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Id.

An insurance policy is a contract between the parties and should be interpreted by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 630 So.2d 759 (La.1994); Smith v. Matthews, 611 So.2d 1377 (La.1993). Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. La. C.C. art. 1988. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045.

A life insurance policy is a contract between the owners of the policy and the insurance company. The life insurance policy at issue states, in pertinent part, that:

WE & YOU In this policy, the words “we”, “our” or “us” refer to New York Life Insurance and Annuity Corporation, and the words “you” or “your” refer to the Owner of this policy.
2.1 Owner The owner of this policy is shown on the Policy Data page. In this policy, the words “you” and “your” refer to the owner.
2.5 Change Of A Beneficiary While the Insured is living, you can change a beneficiary by notifying us in writing. The notice must clearly state the beneficiary designation, be signed by you, and include the policy number and the name of the Insured.
8.1 Entire Contract The entire contract consists of this policy, any attached riders or endorsements, and the attached copy of the application. Also, any application used to apply for increases in the policy Face Amount will be attached to and made a part of this policy. Only our Chairman, President, Secretary, or one of our Vice Presidents is authorized to change the contract, and then, only in writing. No change will be made to this contract without your consent. No agent is authorized to change this contract.

Among the rights of ownership set forth in the policy are the rights to surrender or cancel the policy and to change the beneficiary.

When the life insurance policy was converted in 2008, Mr. Jalaldin and Mr. Dahal became the owners of the policy and are listed on the policy as the owners. As owners of the policy, Mr. Jalaldin and Mr. Dahal have the authority to cancel the policy and change the beneficiaries of the policy. When the policy was converted in 2008, Mr. Lalehparvaran was removed as the owner of the policy and does not maintain the rights of ownership under the new policy.

The status as the insured does not make the insured a party to the contract and does not give the insured the rights of ownership. Neither Mr. Lalehparvaran as the insured, nor Mrs. Hosseini as his cura-trix, has the authority to cancel the life insurance policy or change its beneficiaries. Therefore, Mrs. Hosseini does not have a right of action to challenge the life insurance policy, and we find that the trial court did not err in granting New |7York Life’s peremptory exception of no right of action.

As to the requirement that beneficiaries have an insurable interest, La. R.S. 22:901 states, in pertinent part, that:

A. Any individual of competent legal capacity may procure or effect an insurance contract upon his own life or body for the benefit of any person; however, no person shall procure or cause to be procured any insurance contract upon the life or body of another individual unless the benefits under such contract are payable to the individual insured or his personal representatives, or to a person having, at the time when such contract was made, an insurable interest in the individual insured.
B. If the beneficiary, assignee, or other payee under any contract made in violation of this Section receives from the insurer any benefits under the contract accruing upon the death, disablement, or injury of the individual insured, the individual insured or his executor or administrator, as the case may be, may maintain an action to recover such benefits from the person receiving them.

Pursuant to La. R.S. 22:901, the proper time for the insured or his executor or administrator to raise the argument that a beneficiary did not have an insurable interest is when the beneficiary has received benefits from the policy. To this court’s knowledge, the beneficiaries have not received any benefits from the life insurance policy. Therefore, no one, including Mrs. Hosseini, has the right of action at this time to challenge the policy on the grounds that the beneficiaries lack an insurable interest.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the exception of no right of action in favor of Appellee, New York Life Insurance and Annuity Corporation, and against Appellant, Parvin Hosseini, is affirmed. Costs of this appeal are assessed to Appellant, Parvin Hosseini.

1 «AFFIRMED.

      . It is unclear from the record if Mr. and Mrs. Lalehparvaran are still married. Mrs. Hos-seini states that they are divorced.

      . Mr. Jalaldin is a former business associate of Mr. Lalehparvaran. Mr. Dahal is the husband of Mrs. Lalehparvaran’s sister.

      . Mrs. Hosseini does not appeal the trial court's granting of Mr. Jalaldin and Mr. Da-hal's peremptory exception of no cause of action.


text:
    Katherine FELTS and Edward Ashby, Plaintiffs v. Lawrence CASEY and Hartford Insurance Company, Defendants.
    No. 48,665-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Dudley Debosier Injury Lawyers By Stephen T. Collins, Shreveport, Kristen B. Bernard, for Appellant, Katherine Felts.
    Thomas A. Bordelon, Shreveport, for Appellee, State Farm Mutual Ins.
    John B. Smitherman, for Appellee, Geico Indemnity Co.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

|! Plaintiff-Appellant, Katherine Felts, was injured in a motorcycle accident. Felts was riding as a passenger on the motorcycle. The other vehicle involved in the accident was insured by Hartford Insurance Company. Hartford paid its policy limits of $10,000. Following a bench trial against the uninsured/underinsured carriers, Felts was awarded $17,321.26. On appeal, a different panel of this court remanded the case “so that the trial court could amend and clarify its calculation of the damages award to include a $10,000 credit for the Hartford payment, and reassess the damages to GEICO and State Farm.” On remand, the trial court credited the Hartford payment and reduced the damage award to reflect the $10,000 payment. Felts has appealed. For the reasons stated herein, we affirm.

Facts and Procedural Background

On October 2, 2009, Katherine Felts and Edward Ashby were involved in a motorcycle accident. Felts was a passenger on the motorcycle, which was driven by Ash-by, when it entered the intersection at Barksdale Boulevard and Traffic Street in Bossier City, Louisiana. As Felts and Ashby reached the intersection, Lawrence Casey, who was operating his 2007 Mazda MXS, suddenly made a left turn in front of the motorcycle. In an attempt to avoid colliding with Casey’s car, Ashby laid the motorcycle down. As a result, Felts incurred injuries.

On September 9, 2010, Felts and Ashby filed suit seeking damages for the injuries they sustained from the accident against Casey and his automobile insurer, Hartford Insurance Company; Ashby’s uninsured motorist insurer, GEICO; and Felts’ uninsured motorist insurer, State Farm. Prior to trial, Felts and Ashby each settled with Hartford for its $10,000 | pliability limits. All of Ashby’s claims were dismissed. Felts reserved her rights against GEICO and State Farm.

A bench trial commenced on February 28, 2012. The trial court found in favor of Felts and awarded her $17,321.26 for general and special damages. The trial court specifically awarded general damages in the sum of $5,400 and special damages in the amount of $11,921.26. Geico was assessed its uninsured limits of $10,000 and State Farm was assessed $7,321.26. Defendants, Geico and State Farm, appealed.

On March 6, 2013, this court rendered an opinion stating: “Although the trial court noted that the claims against Hartford were resolved, and that it considered the stipulations presented, it did not ‘condition’ State Farm and Geico’s liability by deducting the $10,000 Hartford payment from the $17,321.26 damage award, or clarify how it applied to the general and special damages it awarded.” As such, the case was remanded so that the trial court could amend and clarify its calculation of the damages award “to include a $10,000.00 credit for the Hartford payment.”

On remand, the trial court issued written reasons for judgment. The trial court clarified that it had contemplated the Hartford payment and intended its damages to be in addition to the $10,000 paid by Hartford, which would mean a $15,400 general damage award. In its conclusion, however, the trial court reduced its original award by $10,000. The trial court assessed $7,321.26 against GEICO and dismissed all claims against State Farm. On April 17, 2013, the trial court rendered its final written and signed judgment in which it decreed that Geico would be liable for damages |3in the amount of $7,321.26, and all claims against State Farm were dismissed.

Discussion

Appellant’s primary assignment of error is that “[t]he trial court erred when it misapplied the instructions rendered to it by the Court of Appeal, Second Circuit and deducted $10,000 from its previously rendered damage award despite its written amended opinion indicating its intent to render damages in addition to [the Hartford payment].”

The text of the trial court’s amended reasons for judgment states:

The March 6, 2013, Judgment rendered by the Court of Appeal, Second Circuit, remanded this matter to this Trial Court to calculate the damages award to include a $10,000.00 credit for the Hartford payment, and reassess the damages to Defendants, GEICO and STATE FARM. This Amended Opinion now complies with the mandate of the Court of Appeal, Second Circuit.
Notwithstanding, this Trial Court feels obligated to express regrets to the Court of Appeal, Second Circuit, and the parties for not making its Original Opinion specifically clear that this Court’s determinations contemplated and intended its damages to be in addition to the $10,000.00 paid by Hartford. Obviously, this Court failed to adequately acknowledge the Hartford payment and articulate the calculation of the $10,000.00 credit in its assessments to Defendants, GEICO and STATE FARM. Perhaps had this Court adequately indicated said credit in its original conclusion, the Court of Appeal, Second Circuit, may have rendered a different judgment.
Based upon the above amended calculation, this Court makes the following conclusions regarding damages:
General and Special Damages: This Court concludes that the total damages in the amount of SEVEN THOUSAND THREE HUNDRED TWENTY-ONE AND 26/100 DOLLARS ($7,321.26) to be appropriately assessed to Defendant, GEICO.

Defendant, STATE FARM, is saved from any assessment of damages.

While we recognize the apparent contradictory language in the amended reasons, that the trial court intended its award to be in addition to |4the $10,000 paid by Hartford, and its ultimate conclusion that reduced the award to reflect the Hartford payment, there is no such contradictory language in the final written and signed judgment. The actual judgment of the trial court states, in pertinent part:

In compliance with [the Court of Appeal, Second Circuit’s] ruling: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Judgment is rendered in favor of the Plaintiff, Katherine Felts, and against Defendant, GEICO in the amount of SEVEN THOUSAND THREE HUNDRED TWENTY-ONE AND 26/100 DOLLARS ($7,321.26)-and all claims against State Farm Mutual Automobile Insurance Company are hereby dismissed. (Footnote ours).

Written reasons for judgment do not form part of the judgment and do not constitute a final judgment from which an appeal can be taken. Thibodeaux v. Winn-Dixie of Louisiana, Inc., 608 So.2d 673 (La.App. 3d Cir.1992). A final judgment can be inconsistent with the. written reasons for judgment. Written reasons for judgment are considered interlocutory rulings and do not carry the finality of a judgment. Ryan v. State Farm Mutual Automobile Insurance Company, 10-0961 (La.App. 1st Cir. 12/22/10), 68 So.3d 563, writ denied, 11-0172 (La.04/01/11), 60 So.3d 1250. If disparity exists between the judgment and the written reasons for judgment, the final judgment is definitive. Thurman v. Thurman, 521 So.2d 579 (La.App. 1st Cir.1988).

In its judgment prior to remand, the trial court expressly awarded general damages in the amount of $5,400. Plaintiff is essentially arguing that the trial court intended to award general damages in the amount of $15,400. The original judgment of the trial court, however, clearly awarded $5,400 as general damages and this did not change in its amended judgment on remand. In the original appeal this court said:

In calculating the general damage award of $5,400.00, the trial court included an amount to compensate Felts for the approximate five month period she was examined, observed, and treated for her physical pain and suffering. This amount was assessed to GEICO ... We find that the damage award issued by the trial court, totaling $17,321.26, is reasonable.

Considering the definitiveness of the final judgment, regardless of any disparity that may exist with the trial court’s reasons for judgment, we find plaintiffs appeal to be without merit.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff, Katherine Felts.

      . Ashby v. Casey, 47,761 (La.App. 2d Cir. 03/06/13), 111 So.3d 1113.

      . La. R.S. 22:1295(l)(c): If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subparagraph (l)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under such policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; however, with respect to other insurance available, the policy of insurance or endorsement shall provide the following with respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, and the following priorities of recovery under uninsured motorist coverage shall apply:
      (i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary.
      (ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than'one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.


text:
    STATE of Louisiana, Appellee. v. Tiray EDWARDS, Appellant.
    No. 48,673-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Joseph R. Keene, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Geya D. Prudhomme, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

LOn June 13, 2008, defendant, Tiray Edwards, who was 15 years old, and his 21-year-old cousin, Tarsa Cooley, committed a string of robberies that culminated in the murder of a store clerk. Jurisdiction of the juvenile court was divested following defendant’s indictment for first degree murder. La. Ch. C. art. 305. Pursuant to an agreement, defendant pled guilty to armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3. Second degree murder and attempted armed robbery counts were dismissed. The plea agreement required that defendant testify against Cooley and that defendant would be sentenced to 20 years at hard labor. He did testify and was sentenced to the agreed 20 years at hard labor. A motion to reconsider sentence was denied. Defendant now appeals his sentence. We affirm.

Facts

On June 13, 2008, defendant and his cousin, Tarsa Cooley, both armed with handguns, went to a Family Dollar Store in Shreveport, Louisiana. Defendant remained outside while Cooley entered the store and robbed a woman of her purse. The female’s purse contained only four dollars. Cooley fired a round into the store as he fled. The two then targeted a Texaco station; however, the clerk locked the door before the robbers could gain entry. When Cooley discovered that the station was locked, he accosted a man at a gas pump and stole his car. As their last stop of the day, the pair went to Max’s Pawn Shop. While defendant waited in the car, Cooley went inside to rob the store clerk. Although the clerk made no threatening movements, Cooley shot and killed him. Cooley then fled the store without taking any money. To cover their getaway, defendant fired shots into the store’s windows.

|2On July 10, 2008, a grand jury indicted defendant for first degree murder. However, on September 28, 2010, defendant was charged by an amended indictment with one count of second degree murder, one count of armed robbery with a firearm (the Family Dollar Store incident) and one count of attempted armed robbery with a firearm (the Texaco station incident).

On . February 28, 2011, defendant pled guilty to the armed robbery with a firearm charge (the Family Dollar Store incident). In exchange for both defendant’s plea and his testimony against Cooley, the state agreed to dismiss the two remaining charges in the amended bill of indictment.

Additionally, the state and defendant agreed to a 20-year hard labor sentence. The trial court accepted defendant’s plea and deferred sentencing until after defendant testified at Cooley’s trial.

On August 8, 2011, and in accordance with the plea agreement, the trial court sentenced defendant to 20 years at hard labor. On August 24, 2011, defendant filed a motion to reconsider sentence, wherein he alleged various reasons as to why his sentence was cruel, unusual and excessive. First, defendant claimed that his youthful age, his lack of development, maturity, and education, and the fact that he was acting under the undue influence of convicted felons and drug abusers warranted leniency. He asserted that the sentence was disproportionate to the gravity of the offense and his amount of participation. He claimed to be remorseful and contrite for his actions. In support of his motion, defendant attached a litany of |sletters written on his behalf by his family members and other members of the community.

The trial court conducted a hearing on the motion on March 27, 2018. Noting the severity of the crimes committed, the trial court concluded that defendant benefited greatly from the 20-year sentence provided in the plea agreement. Moreover, his sentence was a low range sentence for armed robbery, which provided for a hard labor term of not less than 10 years nor more than 99 years. The trial court denied the motion to reconsider sentence. Defendant timely appealed.

Discussion

In Miller v. Alabama, _ U.S. _, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the U.S. Supreme Court declared unconstitutional mandatory life sentences without parole for all juvenile offenders. At the time of the plea negotiations, guilty plea, and sentence in the instant case, Miller, supra, had not yet been decided by the Supreme Court. Thus, at that time, defendant was facing a mandatory life sentence without parole under the second degree murder statute, making the 20-year hard labor sentence in the plea offer seem reasonable. Defendant claims that the Supreme Court’s subsequent holding in Miller, supra, caused the plea bargaining process in the instant matter to be unreasonable and/or subject to scrutiny such that defendant may now challenge the ex-cessiveness of his sentence.

Miller held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for offenders under 18 years of age at the time of their crime. “By making youth (and all 14that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller, 132 S.Ct. at 2469. The Miller court further stated, “[Bjecause that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles ... Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id.

The Miller court clearly declined to categorically prohibit life-without-parole sentences for juveniles or alternatively to address whether Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), requires an absolute rule prohibiting such a sentence for those who did not kill or intend to kill. What Miller invalidated was mandatory life without parole statutes for offenders under 18 years of age.

Defendant’s argument that the United States Supreme Court’s holding in Miller, supra, rendered his plea bargaining process unreasonable is without merit. The Miller case does not categorically prohibit sentences of life imprisonment without the benefit of parole for juvenile offenders. Instead, it requires a sentencing court first to consider an offender’s youth and attendant characteristics before imposing life imprisonment without the possibility of parole. Thus, had defendant rejected the plea offer and been convicted at trial, he could have been sentenced to life imprisonment without Rparole, plus two additional 99-year without the benefit of parole sentences. As such, the plea bargaining process was not unreasonable. Furthermore, defendant pled guilty to armed robbery with a firearm, not to an offense that had a mandatory penalty of life without parole.

We again note that, as argued by defendant, the crime, plea and sentence in this case were all before the decision by the U.S. Supreme Court in Miller. As to a chance at resentencing for many individuals who were under 18 years of age and previously sentenced under the mandatory statutes, our supreme court has found that Miller's proscriptions are not retroactive. See State v. Tate, 12-2763 (La.11/05/13), 130 So.3d 829, 2013 WL 5912118.

In further challenging the sentence for excessiveness, the defense claims that the trial court did not consider the factors related to defendant’s age or fashion a developmentally appropriate sentence. At the time of the offenses, defendant was a teenager attending a Linwood Junior High School summer program in hopes to qualify for fall admission into Fair Park High School. Defendant’s mother had arranged for him to stay with cousins during the summer school week and return home on the weekends. Although he accompanied Cooley in the string of armed robberies and murder, defendant claims his role was minor.

Where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. State v. Turks, 43,578 (La.App.2d Cir.11/05/08), 997 So.2d 748; State v. Bailey, 40,098 (La.App.2d Cir.10/26/05), 914 So.2d 116, writ denied, 06-0462 (La.09/22/06), 937 So.2d 377.

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2). In the case sub judiee, the court told defendant that he could not appeal his sentence.

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than 10 years and for not more than 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64. An additional five years without benefits shall be imposed when a firearm is used in the armed robbery. La. R.S. 14:64.3.

Even if we considered the proportionality of the sentence, our review does not show that defendant’s 20-year sentence is excessive. By pleading guilty to armed robbery with a firearm, defendant avoided the possibility of what could have been for all practical purposes a lifetime in prison. Furthermore, defendant’s participation was not minor. In the armed robbery murder case defendant waited in the getaway vehicle they had just stolen from the gas station and then fired rounds into the windows of Max’s Pawn Shop to allow them time to escape. Defendant’s 20-year sentence was on the lower end of the penalty range for the crime of armed robbery. This assignment of error is merit-less.

We note that neither the trial court nor the state specifically mentioned the five-year sentence enhancement for use of a firearm provided by La. R.S. 14:64.3 at defendant’s guilty plea or sentencing hearing. Defendant clearly had notice of the penalty enhancement as he was charged under both La. R.S. 14:64 and 14:64.3. At the guilty plea hearing, it was stated that defendant was pleading guilty to armed robbery with a firearm. Although the enhancement was not specifically mentioned, defendant’s 20-year sentence would seemingly have included the five-year enhancement. See, State v. Jones, 45,034 (La.App.2d Cir.01/27/10), 30 So.3d 1066; State v. White, 42,725 (La.App.2d Cir.10/24/07), 968 So.2d 901 (Brown, J., concurring).

Finally, the trial court failed to order that defendant’s sentence was to be served without the benefit of parole, probation or suspension of sentence as required by La. R.S. 14:64 and 14:64.3. In instances where these statutory restrictions are not recited at sentencing, La. R.S. 15:301.1(A) deems that the required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Turner, 46,683 (La.App.2d Cir.12/14/11), 82 So.3d 449, writ denied, 12-0165 (La.06/22/12), 91 So.3d 965. La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. State v. Williams, supra.

Conclusion

Defendant’s conviction and sentence are affirmed.

      . Cooley was convicted of second degree murder and sentenced to life without parole. State v. Cooley, 47,087 (La.App.2d Cir.05/16/12), 92 So.3d 1095, writ denied, 12-1395 (La.01/11/13), 106 So.3d 546.


text:
    Tammy TODD & Teer Michael Todd, Plaintiffs-Appellants v. Robert ANGEL, et al, Defendants-Appellees.
    No. 48,687-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.
    Rehearing Denied Feb. 19, 2014.

      Gilley & Gilley, Shreveport, By Patricia A. Gilley, for Appellants.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P., Shreveport, By Donald Armand, Jr., for Appellees, Robert Angel, Robert Angel Builders, Inc. & General Fidelity Ins. Co.
    Cook, Yancey, King & Galloway, Shreveport, By Erik S. Vigen, Brian A. Homza, for Appellees, Homebuilders Assn, of Northwest LA and The Ohio Casualty Ins. Co.
    Before BROWN, DREW & PITMAN, JJ.
   PITMAN, J.

| plaintiffs, Tammy Todd and Teer Michael Todd, appeal a judgment granting a motion for summary judgment in favor of Defendants, Robert Angel, Robert Angel Builders, Inc., and General Fidelity Insurance Company. For the reasons stated herein, we affirm the judgment of the trial court.

FACTS

In June 2008, the Todds were driving in Bossier City when they saw a “Parade of Homes” sign directing them to a new neighborhood called Oak Alley. The Parade of Homes was sponsored by the Homebuilders Association of Northwest Louisiana (“the HBA”). The Todds joined a group of people touring a home located at 205 Oak Alley Boulevard, which was built by Defendants Robert Angel/Robert Angel Builders, Inc. (collectively, “Angel”).

Since the house was very crowded, the Todds left the tour group and exited into the garage, which was also open for viewing. The floor of the garage was finished with an epoxy paint, which gave it a pebbled or marbled appearance. Through an open door in the garage, the Todds saw a stairwell leading to a bonus room above the garage. Mr. Todd preceded his wife up the stairs and found the area was unfinished, without drywall or floor covering. After Mrs. Todd also viewed the bonus room, she headed back down the stairs. At the landing, her ankle turned on the threshold located between the stairs and the garage floor and she fell, seriously injuring both of her feet and ankles. She was taken by ambulance to a nearby hospital where she underwent surgery for her injuries.

The Todds filed suit against Angel and his insurer, General Fidelity ^Insurance Company, and the HBA and its insurer, Ohio Casualty Insurance Company. The three allegations of causation in the petition included that (1) as Mrs. Todd stepped off the last stair, her foot “either caught on the threshold or she stepped partially on the threshold and partially on the unfinished floor thus causing her to lose her balance and fall to the floor;” (2) “The short area between the first step and the door threshold was unfinished. There was no flooring installed which resulted in a significant distance between the unfinished floor and the top of the threshold;” and (8) There was no warning of the missing flooring or the unfinished nature of the floor which would have alerted Mrs. Todd to the unsafe condition of the premises.

The HBA filed a motion for summary judgment, which was granted by the trial court. The Todds appealed the judgment, and this court reversed and remanded finding the HBA’s admissions regarding terms and conditions of the agreement with Angel, whose homes were featured in the tour, was a judicial confession as to the same, that the HBA owed a duty to exercise reasonable care for the safety of its patrons whom the HBA invited to view the homes and that a factual issue remained as to whether the HBA breached its duty. See, Todd v. Angel, 47,911 (La.App.2nd Cir.4/24/13), 114 So.3d 512.

Angel and his insurer also filed a motion for summary judgment supported by the deposition testimony of the Todds and Angel, as well as by the affidavits of Mr. Todd and Angel. Numerous photographs of the stairwell and threshold were introduced into evidence. The photographs were taken by Mr. Todd the day after the accident and several months later |sby an accident investigator hired by one of Angel’s insurers.

In her deposition, Mrs. Todd describes how the accident occurred as follows:

When I stepped down on-with my left foot, it-my ankle turned on something, and I went down my right foot-I-went down on my right foot, and my right leg, from my ankle up-... my foot came up and touched the side of my leg.

Mrs. Todd was also asked what the sensation was under her left foot when she felt like she was losing her balance or becoming unstable, and she responded, “I felt my ankle go out from under me.” She was asked, “When you say it went out from under you, do you mean it turned?” and she replied, “It turned.” Mrs. Todd denied that any surface under her foot moved. When asked if her ankle turning caused her to lose her balance and fall, she replied, ‘Tes, sir.” Mrs. Todd responded “No, sir” when she was asked if there were “any substances on the floor, liquids or anything slippery, like oil or anything like that?”

In his affidavit, Mr. Todd averred that he returned to the home the day after the accident and took photographs of the stairs and threshold. He claimed that the photos show “the concrete slab at the bottom of the stairway was unfinished” and that “there should have been a slab on top of the concrete, but there wasn’t.” Mr. Todd also stated, “There was about a 3/4 inch to a one inch gap between the concrete at the foot of the stairs and the strip separating it from the floor of the garage.” He claimed that the threshold area was “unfinished leaving what proved to be a dangerous gap at the juncture of the two floors.” Mr. Todd claimed this gap was evident from the photographs he took, particularly in Exhibit No. 12, which was | introduced in Angel’s deposition.

In his affidavit and deposition submitted in support of the motion for summary judgment, Angel stated that there was no gap between the floors and the threshold and that the home was finished in every respect, with the exception of the bonus room above the garage that did not have drywall or floor covering. He stated that the reason for leaving the room in that condition was so that future owners could use it for any purpose they chose; however, the room was deemed to be completed, had passed inspection and the house was subsequently sold with the room in the same condition it was in on the day of the accident. Angel stated that the threshold was securely attached to the floor and that the only difference in elevation between the floors on each side of the door and the threshold, which provided a vapor lock between the garage and the stairs, was the depth of the epoxy paint on the garage floor of approximately 1/16 to 3/32 inch. Angel stated that the home had passed all applicable inspections months before the Parade of Homes tour. He also stated that he was present when the home was being shown and that approximately 600 to 800 persons had visited the home and crossed the threshold without incident.

After a hearing, the trial court granted Angel’s motion for summary judgment finding there was no question that an accident occurred, but that, based on the evidence, the threshold posed no unreasonably dangerous condition. The trial court stated that the area in question was open and obvious and could have been observed by any individual exercising reasonable care. The trial court also stated that it had taken into consideration Angel’s testimony that the home had passed final inspection 15and that a large number of people had walked over the area to look at the bonus room and there was no evidence that anyone else had tripped and fallen. Finding no evidence of an unreasonably dangerous condition and, thus, no genuine issues of fact which would warrant the case going forward to trial, the trial court granted summary judgment.

The Todds filed this appeal seeking review of the granting of Angel’s motion for summary judgment.

ARGUMENT

The Todds contend that there was a defect in the landing of the stairwell Mrs. Todd was descending just before her fall. They claim the finishing work on the threshold had not been completed, and both Angel and the HBA bear responsibility for their negligence in permitting that portion of the million-dollar home to be included in the tour of the otherwise move-in-ready show home. They argue that this case is a “straight forward tort action” based on La. C.C. art. 2315 and a duty/risk analysis. They point out that it was never framed as a slip-and-fall case, nor did it ever rely on premises liability based on either statutory or jurisprudential law, despite Angel’s insistence that they must do so.

The Todds argue that the questions are whether Angel, as the owner and builder, owed a duty to them to assure a safe and sound environment as they toured the home and whether Angel failed in that duty. They claim that this |6is a jury question, and there is adequate evidence to create a question for the jury to decide.

The Todds further argue that there is a difference between fault found in La. C.C. art. 2317.1, liability founded on damage caused by ruin, vice or defect in things, from that found in La. C.C. art. 2315, liability founded on acts causing damage. They contend that, to recover damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect.

The Todds also argue that, under the duty/risk analysis, they had to prove that Angel had a duty to protect them, that he breached his duty by failing to conform his conduct to the appropriate standard of care, that this breach was a cause-in-fact of the injuries, that the injury was within the scope of protection of the duty and that there were actual damages.

The Todds assert that Angel had a duty to assure the invitees to the home that it was free of defects due to design or construction. They claim the evidence showed that there was “a gap” on the stairway side of the door’s threshold where it appears space was left for a piece of tile or carpet to be installed as a future buyer might choose. The finishing work on the threshold had not been completed; therefore, they claim, there was a defect in the landing of the stairwell where Mrs. Todd fell.

The Todds also contend that the trial court incorrectly found that a city inspection relieved Angel of any duty owed to them. They assert that |7there is no evidence in the record, other than Angel’s statement, which reflects any type of inspection, much less one which focused on the stairway to the bonus room above the garage. They further contend that the fact that no other person complained about the safety of the stairway to the bonus room is irrelevant and should not be a factor in determining whether Angel breached his duty to them. They conclude that genuine issues of material fact remain which should be presented to a jury.

Angel argues that the evidence presented shows that the area where Mrs. Todd fell was completely safe. He claims that the enclosed garage and stairwell were completely finished, properly and completely constructed, and had passed all applicable building code inspections. The area was well lit, open and obvious, and there were no foreign objects or substances present. The threshold was secured to the floor and did not move when Mrs. Todd stepped on it. Angel argues that the Todds admitted that Mrs. Todd’s fall occurred when her ankle “went out from under her” as she stepped onto the threshold in the doorway area. Angel claims he cannot be liable under La. C.C. art. 2317.1, or under any theory of negligence or fault, because the area where Mrs. Todd fell was completely safe for normal use.

Angel claims he never disputed that, as owner of the premises in question, he owed all duties of a premises owner under the applicable law. He argues that the undisputed evidence proves that the threshold did not present an unreasonable risk of harm to the Todds; thus, there was no breach of the duty owed to them and the trial court correctly granted his motion for summary judgment.

DISCUSSION

| sSummary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). The burden of proof remains with the mov-ant. 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. La. C.C.P. art. 966(C)(2); Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Scherer v. PNK (Bossier City), Inc., 47,901 (La.App.2d Cir.3/20/13), 112 So.3d 931.

We review the grant of a motion for summary judgment de novo. Schroeder, supra; Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791. A fact is material it if potentially insures or precludes recovery, affects a litigant’s ultimate success or determines the laoutcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; Scherer, supra.

To recover for damages caused by a defective thing, a plaintiff must prove that the thing was in defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused damage and that defendant knew or should have known of the defect. La. C.C. art. 2317.1. A “defect” in a thing, for which one having custody of the thing may be liable for damages caused, is a condition or imperfection that poses an unreasonable risk of injury to persons exercising ordinary care and prudence. The determination of whether a defect presents an unreasonable risk of harm is a matter wed to the facts and must be determined in light of facts and surrounding circumstances of each particular case. Wynn v. Luck, 47,314 (La.App.2d Cir.9/26/12), 106 So.3d 111.

That an accident occurred as a result of a defect does not elevate the condition of the thing to an unreasonably dangerous defect. The degree to which a danger may be observed by a potential victim is a factor considered in the determination of whether a condition is unreasonably dangerous. In determining whether a defect or unreasonable risk of harm is present, the court must find the defect to be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent |1ftperson using ordinary care under the circumstances. The duty that a landowner owes to persons entering his property is governed by a standard of reasonableness, and a potentially dangerous condition that should be obvious to all is not unreasonably dangerous. If the facts of a particular premises liability case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Durmon v. Billings, 38,514 (La.App.2d Cir.5/12/04), 873 So.2d 872, writ denied, 04-1805 (La.10/29/04), 885 So.2d 588.

In the case sub judice, the Todds alleged that the accident occurred as Mrs. Todd stepped off the last stair and her foot either caught on the threshold or she stepped partially on the threshold and partially on the unfinished floor causing her to lose her balance and fall to the floor. They alleged that the fall was caused by the unfinished condition between the first step and the threshold because there was no flooring installed on the landing, resulting in a gap between the floor and the threshold. They further alleged that there was no warning of the missing flooring or the unfinished nature of the floor which would have alerted Mrs. Todd to the unsafe condition of the premises.

The evidence presented supports Angel’s motion for summary judgment and belies the Todds’ arguments. It cannot be inferred from the fact that the accident occurred at the threshold that the threshold was defective. In fact, the evidence presented by Angel was to the effect that the threshold was stable and firmly attached to the floor. There were no slippery substances on the floor which would have caused Mrs. Todd to slip, and she 1 uspecifically testified that, while stepping in the area of the threshold, her ankle turned, causing her to lose her balance and fall. Even if the alleged gap had existed, Mrs. Todd did not testify that her foot was caught in a gap, causing her to trip, lose her balance and fall. Further, although the Todds make much of the fact that the floor of the landing was “unfinished,” Angel testified that there was no difference in elevation of the two sides of the threshold other than the extremely minimal difference caused by the coat of epoxy paint on the garage floor and that the entire house had passed city inspections.

As the trial court noted, the area where the accident occurred was open and obvious to all persons who stopped to view the home. We agree that the area did not pose an unreasonable risk of harm; therefore, Angel did not breach the duty he owed to invitees to the home. Further, because we find the stair landing did not pose an unreasonable risk of harm to a prudent person using reasonable care under the circumstances, we find Angel had no duty to warn the Todds of the stairwell’s condition.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of summary judgment in favor of Defendants, Robert Angel, Robert Angel Builders, Inc. and General Fidelity Insurance Company, and against Plaintiffs, Tammy Todd and Teer Michael Todd. Costs of appeal are assessed to Plaintiffs, Tammy Todd and Teer Michael Todd.

AFFIRMED.

      . Despite this argument, the Todds proceed to argue that the construction of the threshold posed an unreasonable risk of harm which caused the accident, as surely they must since, otherwise, there would be no basis of liability. Angel would have no duty to warn if there was no unreasonably dangerous condition.