text:
    Lakhesia LEWIS and Sheldon Hallmon, Individually and as Natural Tutors of the Minor Child, Sheldon Renard Lewis, Plaintiff-Respondent. v. PINE BELT MULTIPURPOSE COMMUNITY ACTION ACQUISITION AGENCY, INC., et al, Defendant-Applicant.
    No. 48,880-CW.
    Court of Appeal of Louisiana, Second Circuit.
    May 7, 2014.

      Steven E. Soileau, Shreveport, for Applicant State Fair of Louisiana.
    Thomas T. Townsend, Natchitoches, for Respondent Lakhesia Lewis and Sheldon Hallmon.
    Brent J. Carbo, Lisa A. McLachlan, New Orleans, for Respondent Pine Belt Multipurpose Community Action Acquisition Agency.
    Thomas R. Hightower, Jr., Thomas R. Hightower, III, Lafayette, Respondent Lowery Carnival Company, Inc.
    Jeffrey A. dayman, Timothy T. Roni-ger, James Ryan, III, New Orleans, Craig R. Webb, for Respondent Moser Rides S.r.l.
    Before WILLIAMS, DREW and PITMAN, JJ.
   WILLIAMS, J.

kin this personal injury case, the district court denied a supplemental motion for summary judgment filed by defendant, State Fair of Louisiana (“State Fair”). We granted supervisory writs to review the correctness of the district court’s ruling. After further review, we recall the writ as improvidently granted. We affirm the district court’s ruling and remand this matter for further proceedings.

FACTS

Defendant, Pine Belt Multipurpose Community Action Acquisition Agency, Inc. (“Pine Belt”), operates a Head Start preschool program in Jonesboro, Louisiana. On November 2, 2011, Pine Belt took children, including plaintiffs’ son, Sheldon Renard Lewis (“Sheldon”), on a field trip to the State Fair of Louisiana in Shreveport. The Twin-Ring Demolition Derby Carnival Ride (“Twin-Ring”) was one of the featured rides in the Kiddie Land area of the carnival. Sheldon (and others in the Pine Belt group) rode the Twin-Ring. When the ride ended, the group was in the process of exiting the Twin-Ring when it went into motion. Sheldon became trapped between a component of the Twin-Ring and a rotating platform on the floor of the ride; he sustained catastrophic injuries.

| «.On November 7, 2011, plaintiffs, Lak-hesia Lewis and Sheldon Hallmon, individually and as natural tutors of Sheldon, filed a lawsuit against defendants, Pine Belt, State Fair, Lowery Carnival Company, Inc. (“Lowery”), Bryan Pellegrin and Moser Rides S.r.l. (“Moser”). As stated above, Pine Belt was the Head Start program where Sheldon attended and whose employees took the children on the field trip; State Fair was the owner, host and promoter of the fair; Lowery was the owner, installer and operator of the carnival rides at the fair; Moser was the manufacturer of the Twin-Ring; Pellegrin, a Lowery employee, was operating the Twin-Ring at the time of the incident.

In the lawsuit, plaintiffs made numerous specific allegations of negligence against Pine Belt, Lowery and Pellegrin. With regard to State Fair, plaintiffs alleged that it was “the owner and/or exercised care, custody and control over certain property ... where the 105th State Fair of Louisiana [was] being held” and had contracted with Lowery “to set up and operate” the Twin-Ring. However, the plaintiffs did not make any specific allegations of negligence against State Fair.

On November 8, 2011, plaintiffs filed a first amended petition, alleging that their “injuries and damages were caused solely, legally and proximately by the negligence and recklessness of defendants, Pine Belt, IsLowery, State Fair, and Bryan Pelleg-rini]” Plaintiffs also asserted the doctrine of res ipsa loquitur. Again, plaintiffs did not make any specific allegations of negligence against State Fair. On November 17, 2011, plaintiffs filed a second amended petition, seeking to enjoin defendants from removing the Twin-Ring from Caddo Parish, and/or altering or disposing of the ride. Again, plaintiffs did not make any allegations of negligence against State Fair.

On December 7, 2011, State Fair moved for summary judgment arguing, inter alia, that it could not be held liable for any alleged fault or negligence of Lowery or its employees because it did not hire or train the ride operators; it did not have the power to dismiss Lowery’s employees or direct their actions; and Lowery and its employees were not agents of State Fair. |40n March 6, 2012, Pine Belt opposed the State Fair’s motion for summary judgment, arguing that the motion was premature as “very little discovery has been conducted in this matter[.]” Pine Belt also argued that the State Fair had control over the entire fair, including the operation of the carnival section.

On March 8, 2012, plaintiffs filed a third amended petition, alleging the following in relation to the movant, State Fair:

“10A.”
A contributing cause of this accident is the fault and negligence of the defendant, State Fair, who at all times had control and guard over the 105th Louisiana State Fair through [its] contractual relationship with Lowery Carnival. State Fair’s negligence is specifically, but not exclusively, described as follows:
A. Failure to exercise reasonable and safe care, custody and control over property where the 105th Louisiana State Fair was being held by allowing the use of the Twin Ring Demolition Derby carnival ride without a safety switch to deenergize the control panel;
B. Hosted, advertised and promoted the 105th Louisiana State Fair and as a result owed a general duty to all patrons to provide safe premises and rides and failed to properly inspect all rides for safety switches and have trained and qualified operators;
C.Negligently performed [its] contractual obligation with Lowery Carnival by failing to ensure that Lowery Carnival had the amount of liability insurance as mandated by State Fair’s Board of Directors;[ ]
IfiD. By negligently performing [its] contract with Lowery by ignoring the fact that Lowery faxed to State Fair insufficient proof of liability insurance[,] contrary to [its] contractual obligation to State Fair and all patrons including [plaintiffs].
E. By failing to exercise reasonable care for the safety of the patrons, particularly [plaintiff] by not insuring that Lowery had an adequate number of trained employees operating the Twin Ring Demolition Derby carnival ride;
F. By failing to exercise reasonable care to protect the patrons of the 105th Louisiana State Fair from the hands of Lowery’s employees [who] were not appropriately trained and [its] equipment which did not have the appropriate safeguards to prevent this accident.

Subsequently, on May 80, 2012, State Fair’s motion for summary judgment was heard. By judgment dated June 27, 2012, the district court found that Lowery was an independent contractor; therefore, State Fair was not vicariously liable for the actions of Lowery and its employees. The court dismissed “the claims of vicarious liability of State Fair for the actions of Lowery Carnival Company!.]” However, the court granted only partial summary judgment, finding that State Fair’s motion did not address the claims of negligence asserted in plaintiffs’ third amended petition (which was filed three months after State Fair’s motion for summary judgment).

On February 25, 2013, State Fair filed a supplemental motion for summary judgment, arguing that fair owners do not conduct independent | (¡inspections of carnival rides or ride operators; the carnival rides were inspected by the State Fire Marshal; an independent inspector verified that the ride operators were qualified to operate the rides. Additionally, State Fair argued that plaintiffs have no cause of action against it for negligence and it is not liable for Lowery’s alleged failure to provide the proper amount of liability insurance.

Initially, plaintiffs did not respond to State Fair’s supplemental motion for summary judgment. However, on April 5, 2013, Pine Belt opposed State Fair’s motion, arguing that (1) any independent negligence of State Fair is a question of fact that is not appropriate for summary judgment; (2) State Fair only partially addressed the allegations of negligence made against it; (3) the testimony of Chris Gior-dano confirmed there are factual issues pertaining to the potential liability of State Fair that must preclude summary judgment; and (4) the cases cited by State Fair do not support summary judgment in its favor. In support of its opposition, Pine Belt attached the copy of the transcript of the January 27, 2012 deposition of Chris Giordano, the president of State Fair. Specifically, Pine Belt contended:

Mr. Giordano confirmed in his deposition that State Fair is the entity that puts on the Louisiana State Fair, and promotes and advertises the State Fair. This includes promotion and advertising of the carnival operation at the State Fair. State Fair is the promoter of their event and is directly responsible for creating interest in and attendance at the State Fair[.] Mr. Giordano was present on the fairground at the time the incident at issue occurred, he immediately proceeded directly to the scene upon being notified, and he personally called the State Fire Marshal Inspector from his own cell phone to call him to the scene of the incident!.] State Fair undoubtedly controls and oversees the event and the premises where this incident took place, the State Fair of Louisiana, including the carnival operation, and State |7Fair even exercises significant control over Lowery’s activities in providing and operating rides in the carnival attraction. As such, significant questions of fact remain as to whether independent negligence on the part of State Fair may have caused or contributed to the accident and/or injuries complained of.

Thereafter, State Fair filed a response to Pine Belt’s opposition; Pine Belt filed a supplemental response; State Fair filed yet another response. On August 23, 2013, plaintiffs filed a memorandum in opposition to State Fair’s supplemental motion for summary judgment, adopting the “argument and evidence” set forth in the oppositions filed by Pine Belt.

State Fair’s supplemental motion for summary judgment was heard and denied on August 26, 2013. In its oral reasons, the district court stated:

I certainly can appreciate why the State Fair would not want to subject or be subjected to such matters or claims in a major lawsuit of this nature. However, I’m not persuaded that there are some genuine issue of material facts, which I’m not saying can be developed, but I’m just saying — that would be developed, but whether it can or not for purposes of comparative fault, I just don’t know. And because I believe that there are genuine issues of material fact, the Court is guarded at this juncture to grant the supplemental motion. And for that reason, the Court will deny the motion.

Thereafter, the court signed a judgment which provided, in part, “The Court finds that [the] evidence presented demonstrates genuine issues of material fact preventing summary judgment in this matter with respect to the allegations of independent negligence and comparative fault on the part of Defendant, State Fair of Louisiana, Inc.”

State Fair sought supervisory review of the trial court’s judgment by this Court on September 19, 2013. This Court granted a supervisory writ | ^herein to review the correctness of the lower court’s decision.

DISCUSSION

State Fair contends the district court erred in denying its supplemental motion for summary judgment. It argues that there are no genuine issues of material fact in dispute. According to State Fair, pursuant to its contract, Lowery was solely responsible for providing the rides and for the employees who operated the rides. State Fair argues that because it did not have any control over Lowery or its employees, it could not be found negligent.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A genuine issue of material fact is one as to which reasonable persons could disagree. Argonaut Great Cent. Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122.

When a motion for summary judgment is properly made and supported, the adverse party may not rest on the mere allegations or denials of his pleading, but he must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B). This requires the plaintiff to make a positive showing of evidence creating a genuine issue as to an essential element of her claim; mere speculation is not sufficient. Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La.6/30/00), 764 So.2d 37; Cavet v. Louisiana Extended Care Hosp., 47,141 (La.App.2d Cir.5/16/12), 92 So.3d 1122. If the adverse party fails to produce the required factual support 1 flto show that she will be able to meet her evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. LSA-C.C.P. art. 966(C)(2); Cavet, supra; Russell v. Eye Associates of Northeast Louisiana, 46,525 (La.App.2d Cir.9/21/11), 74 So.3d 230.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Cent. Ins. Co., supra. Summary judgments are favored under Louisiana law; however, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and doubt must be resolved in the opponent’s favor. LSA-C.C.P. art. 966(A)(2). Argonaut Great Cent. Ins. Co., supra.

In moving for summary judgment, State Fair relied heavily on cases in which courts have held that the owners of carnival rides have exclusive control over the rides; therefore, hosts and/or sponsors of a fair cannot be held liable for injuries sustained on the rides. See, St. Pierre v. Frye Amusement, 93-0653 (La.App.4th Cir.3/29/94), 635 So.2d 358 and Lambert v. Pepsico, 96-0733 (La.App.1st Cir.8/6/97), 698 So.2d 1031, writ denied, 97-2272 (La.9/19/97), 701 So.2d 178.

In the instant case, as stated above, in granting summary judgment in favor of State Fair on June 27, 2012, the district court found that Lowery was an independent contractor, and, therefore, State Fair was not vicariously liable for the actions of Lowery or the actions of Lowery’s employees. That ruling is final and is not at issue in this appeal.

At issue herein is State Fair’s argument that plaintiffs will be unable to meet their burden of proving that it is independently negligent (independent of Lowery’s alleged negligence) or comparatively at fault. Plaintiffs’ theory of recovery was based on the negligence of State Fair as the owner and promoter of the fair and as the owner of the premises on which the fair was held. According to Pine Belt, as the owner and promoter, State Fair was responsible for all critical decisions with regard to the fair; therefore, it is responsible for everything that occurred therein. Thus, we l^will look to the applicable substantive laws to determine whether there is a genuine issue of material fact.

Negligence claims are subject to the duty-risk analysis. Under the duty-risk analysis, the plaintiff must prove that (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant breached that duty; (3) the defendant’s conduct was a eause-in-fact of the plaintiffs injuries; (4) the defendant’s conduct was the legal cause of the plaintiffs injury; and (5) actual damages. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270; Cavet, supra.

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 or immunity by statute. ■ LSA-C.C. art. 2323(A). The provisions of LSA-C.C. art. 2323(A) shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability. LSA-C.C. art. 2323(B).

Generally, the determination of whether negligence exists in a particular case is a question of fact; therefore, cases involving a question of negligence ordinarily are not appropriate for summary judgment. Pruitt v. Nale, 45,483 (La.App.2d Cir.8/11/10), 46 So.3d 780; Freeman v. Teague, 37,932 (La.App.2d Cir.12/10/03), 862 So.2d 371. This principle extends to a question of comparative fault as well. Pruitt, supra.

| 12As stated above, the district court denied State Fair’s supplemental motion for summary judgment, finding that genuine issues of material fact exist with regard to State Fair’s alleged independent negligence and comparative fault. However, the court did not make any specific determination with regard to the existence of a duty or breach of that duty.

In opposition to State Fair’s motion, Pine Belt introduced excerpts from the deposition of Chris Giordano, the president of State Fair. Giordano testified at length with regard to the contract between State Fair and Lowery, as well as the longstanding relationship between the two entities. He stated that he had “complete trust in Lowery Carnival Company to handle the carnival operation as they deemed fit.” However, he admitted that State Fair had never checked to ensure that Lowery completed the inspections of the rides. Gior-dano also testified that State Fair was responsible for controlling most of the aspects of the fair, including choosing vendors and hours of operation. He further stated that he and other State Fair employees were generally present on the fairgrounds during the fair’s hours of operation; however, State Fair did not have any policy which required any of its employees to be present in the carnival area.

With regard to the accident at issue, Giordano testified as follows: he was present at a different location on the fairgrounds at the time Sheldon was injured; one of his employees called him to the site of the injury; when he arrived, the Shreveport Fire Department and one of Lowery’s employees were working to extricate Sheldon from the ride; during the rescue attempts, he placed a call to the state fire marshal’s office to report the incident; a 113deputy fire marshal arrived on the scene.

Pursuant to the contract between State Fair and Lowery, State Fair agreed to:

1. Furnish sufficient locations upon its fairgrounds in Shreveport, Louisiana for [Lowery] to erect its entire show consisting of riding devices, concessions, games and equipment.
2. Order all ride coupons and armbands and distribute to [Lowery] as needed but bill [Lowery] for costs of coupons and armbands.
3. Advertise and promote [Lowery’s] show as [the] official carnival operation of the State Fair of Louisiana.

In turn, Lowery agreed to:

1. Present its entire combination of shows, riding devices, concessions and games.
2. Submit an equipment list with contract, including a Giant Ferris Wheel.
23. Give to [State Fair] full censorship over all shows, rides, concessions and games; and should any of these be found unsatisfactory to local laws or to [State Fair], the offending show, ride, concession or game shall be closed by [Lowery] upon request of [State Fair].
[Lowery] agrees that each day and subsequent to any repair or maintenance shut down, before commencing operations of any amusement ride or attraction, [Lowery] shall cause each ride owner to conduct an inspection of, and submit to [State Fair] a complete manufacturer’s operator/inspector manual check list for such ride. If no such list is available, then [Lowery] shall require each ride owner to submit to [State Fair] a completed “Ride Inspection Form” in lieu of the manufacturer’s operator/inspection manual check list. Said inspection shall be conducted by and each ride owner or said ride owner’s agent, servants or employees shall complete said | Mform. [Lowery] agrees that it will require each ride owner to comply with the provisions of this paragraph and that such compliance is the sole responsibility of [Lowery] in its capacity as an independent contractor. Should any clam be brought directly or indirectly against [State Fair] for [Lowery’s] conduct relating directly or indirectly to any of the provisions of this paragraph, then [Lowery] shall defend, indemnify and hold harmless [State Fair], its officers, directors and employees for such claim and pay any expenses, including attorney’s fee[s], incurred by [State Fair] in defending such claims.

It is undisputed that Sheldon was a visitor to the State Fair. Although this is a close case, we cannot say the district court erred in denying the supplemental motion for summary judgment. As stated above, State Fair cited multiple cases with regard to the liability of carnival owners and/or ride owners; however, those cases do not apply herein. It is undisputed that the Twin-Ring carnival ride was not owned, maintained, assembled or operated by State Fair. However, the fair itself was owned, controlled, and in a large part, operated by State Fair. Under the facts of this negligence case, we cannot say that the owner of the ride was solely liable for any and all injuries, while State Fair, the owner, host and overseer of this fair, does not bear any liability for the damages suffered by plaintiffs. We note that State Fair also held itself out to the public as the owner, promoter and host of a safe fair. Additionally, pursuant to the contract, State Fair | ^agreed to “advertise and promote [Lowery’s] show as [the] official carnival operation of the State Fan- of Louisiana.” Furthermore, State Fair contractually mandated that Lowery perform, or cause to be performed, daily inspections of all rides, while taking no responsibility for ensuring that Lowery did so. As the owner/host/promoter of the fair, from the public’s perspective, State Fair had a duty to at least ensure that the rides had safety measures in place to prevent another child or customer from gaining access to the control panel and rides. To say that State Fair had no responsibility for the operation of the rides does not alleviate its responsibility to ensure that all of the rides were safe from unauthorized tampering when the rides were in the “off’ position. Accordingly, we conclude that genuine issues of material fact exist in this negligence case as to whether there is a causal connection between State Fair’s duty to provide a safe premises and safe rides, and the injuries suffered by plaintiffs and their son. Consequently, the district court did not err in denying State Fair’s supplemental motion for summary judgment. We shall recall the writ as improvidently granted and remand this matter for further proceedings.

CONCLUSION

For the foregoing reasons, we recall this writ as improvidently granted; this matter is remanded for further proceedings. Costs are assessed to defendant, State Fair of Louisiana.

WRIT RECALLED; REMANDED FOR FURTHER PROCEEDINGS.

      . At the time of the incident, Sheldon was four years old.

      . Kiddie Land was located in the carnival section of the state fair; it was designated for patrons with small children.

      . Plaintiffs alleged that the ride operator left the ride’s control panel unattended; one of the other children from the Pine Belt group gained access to it and activated the ride.

      .Initial attempts to rescue Sheldon, including the use of the Jaws of Life, were unsuccessful. He stopped breathing for a prolonged period of time, and, as a result, suffered severe brain damage.

      . Moser was added as a defendant in plaintiffs’ fourth amended petition. The instant writ application pertains to the supplemental motion for summary judgment filed by defendant, State Fair. During the oral argument before this Court, counsel for Lowery argued in favor of State Fair; however, plaintiffs’ allegations against Lowery and the other defendants are not at issue in this writ application and are not addressed in this opinion.

      . In another decision under the same docket number rendered by this Court, a panel of this Court found that the district court did not have personal jurisdiction over the defendant manufacturer, Moser. Consequently, this Court reversed the trial court and dismissed the defendant, Moser, from the lawsuit.

      . In the original petition, plaintiffs stated:
      20.
      "[D]efendants, State Fair, and/or Lowery, presently ha[ve] possession of the Twin-Ring Demolition Derby carnival ride involved in and responsible for this incident and it is imperative that this physical evidence be maintained and controlled without any alteration so as to preserve evidence necessary for the prosecution in handling of this matter. Petitioners request that the Honorable Court order the defendants herein to show cause why the State Fair or an independent party should not be appointed the keeper of the carnival ride, including all equipment and parts until all necessary inspections and documentation can be completed, and that all parties be enjoined from altering, disposing of, and removing any parts from the Twin-Ring Demolition Derby and all of its equipment until further orders of this Court.

      .State Fair also filed an uncontested statement of facts and a memorandum in support thereof. Additionally, State Fair attached a copy of the April 26, 2012 deposition of Tony Lowery (president of Lowery), in which he attested that State Fair did not have any involvement with the installation or operation of the ride or with the hiring and training of Lowery’s employees; an affidavit from Christopher Giordano (president of State Fair), in which he attested that State Fair did not have anything to do with the installation or operation of the ride involved in the accident and that State Fair did not have anything to do with the hiring or training of Lowery’s operator of the ride in question; and a copy of the contract between State Fair and Lowery.

      . Pursuant to the contract, Lowery agreed to: Furnish an acceptable certificate of Insurance supplying evidence of insurance protecting the First Party (State Fair) from any cause or action from damages caused by reason of Second Party's (Lowery) operations. Said insurance is to cover carnival liability at an amount less than 10 million dollars and comprehensive liability on automobiles and worker’s compensation, with basic limits of $100,000; $300,000 bodily injury liability and $100,000 property damage with limits of $5,000,000 in excess of underlying. Named as additional insured will be State Fair of Louisiana, officers and directors, and the City of Shreveport and its agents.

      . In St. Pierre, supra, the plaintiff's son was injured on a "superslide” at a church fair. Pursuant to the contract between the amusement company and the church, the amusement company agreed to provide and operate the carnival rides; the church agreed to furnish a suitable location, water and police protection. The district court granted summary judgment in favor of the church; the court of appeal affirmed, stating:
      [Fjrey Amusement, not the church, had exclusive control over the superslide and there is no rebuttal by [the plaintiff]. In view of the fact that the church had no control at all over the superslide, we believe that the church cannot be found liable for [the plaintiff's] injury.

        Id., at 360.

      . In Lambert, supra, multiple patrons at the 1993 Super Fair suffered burns when a carnival ride caught fire while in motion and failed to stop due to mechanical problems. The plaintiffs filed suit against all entities associated with the fair, including the owners, operators, sponsors, promoters, inspectors and insurers. The defendants, Delta Beverage Group, Inc. and Pepsi/Seven-Up Beverage Group of Louisiana, were named in their capacity as sponsors or promoters of the fair. The evidence established that Murphy Enterprises, the entity that provided the carnival rides, was responsible for erecting, operating and dismantling the rides. The beverage companies moved for summary judgment; the district court denied the motion; the court of appeal denied the defendants' application for supervisory writs; the Supreme Court granted the defendants' writ application and remanded the matter to the court of appeal. On remand, the court concluded that the beverage companies could not be held liable for the patrons' injuries because they did not have custody or control over the rides. The court stated:
      [T]he plaintiffs have failed to establish any ‘facts’ which would defeat the conclusion that under St. Pierre, a fair ‘sponsor’ cannot be held liable for rides and events over which he has no control. We find nothing to convince us that the defendants were anything other than a 'sponsor.'

        Id., at 1032.

      . The owner of a premises owes a duty to visitors to exercise reasonable care for their safety commensurate with the particular circumstances involved. This duty has typically been applied to slip-and-fall cases. See, Holden v. Louisiana State University Medical Center in Shreveport, 29,268 (La.App.2d Cir.2/28/97), 690 So.2d 958, writ denied, 97-0797 (La.5/1/97), 693 So.2d 730; Reynolds v. St. Francis Medical Center, 597 So.2d 1121 (La.App. 2d Cir.1992). Further, the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition; however, he is not the insurer of the safety of his patrons and is not liable every time an incident occurs. See, Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir.8/14/02), 823 So.2d 1124; Turner v. Brookshire Grocery Co., 34,562 (La.App.2d Cir.4/4/01), 785 So.2d 161.


source: Caselaw Access Project

author: DREW, J. CARAWAY, J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jeremy Jermaine BROOKS, Appellant.
    No. 49,033-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 7, 2014.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, II, District Attorney, Dale G. Cox, Sarah S. Midboe Hood, Suzanne Morelock Owen, George Winston, III, Assistant District Attorneys, for Ap-pellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

|! Jeremy Jermaine Brooks was indicted for the first degree murder of 15-year-old Terrell Savore. An amended bill later charged him with second degree murder. At the time of the homicide at issue, the defendant was less than four months shy of his 18th birthday. He was convicted as charged by a jury and sentenced to the mandatory term of life imprisonment without benefit of probation, parole or suspension of sentence.

We have dealt with this case before. We previously affirmed the defendant’s conviction but vacated his sentence, remanding for resentencing in light of the Supreme Court’s decision in Miller v. Alabama, —U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held unconstitutional, as cruel and unusual punishment:

• the imposition of mandatory life sentences for those individuals under the age of 18 at the time of the commission of murder; and
• the sentencing of juveniles without first considering the offender’s age at the time of the crime, and attendant circumstances of his youth.

See, State v. Brooks, 47,394 (La.App.2d Cir.12/12/12), 108 So.3d 161, writ denied, 13-0080 (La.5/31/13), 118 So.2d 393.

On remand, the trial court ordered a presentence investigation report (“PSI”) and held, a sentencing hearing at which the defendant, his parents, and an older brother testified.

Brief Synopsis of the Facts

Two juvenile gangs in Shreveport had long been having a turf battle over who had rights to the Canaan Village Apartment Complex. The dispute became heated. This defendant flashed a pistol earlier in the afternoon of |2the shooting. About a half hour later, the rival group of young men started down a hill toward the defendant, his younger brother, and a friend named “P.J.” Their purpose was to engage in a fistfight.

The defendant’s younger brother grabbed an assault rifle, brandished it toward the oncoming group, and fired it into the ground. The defendant grabbed the “chopper” and shot a dozen times at the rival group, all of whom began fleeing up the hill. After the defendant started firing, P.J. also began shooting at those who were fleeing. P. J. used a pistol.

Five witnesses testified that the shooting began with the defendant. An innocent victim, Terrell Savore, was killed during this barrage.

Four days before trial, the state filed a supplemental discovery response indicating that Dr. Long Jin, the prosector, had rendered an oral opinion that Terrell had probably died as a result of a gunshot from a handgun, not an assault rifle. Thus, it could be argued that the defendant, while a principal to the killing that supports his conviction, was not the shooter who actually fired the fatal bullet.

The PSI describes the defendant’s family history.

|sAt the sentencing hearing, the defendant’s mother testified that:

• she had problems raising her children due to her drug usage;
• she was often jailed on drug-related matters;
• during her incarceration, her mother cared for the children;
• the family moved frequently;
• the defendant was rebellious and had trouble in school;
• he was held back on several occasions; and
• he had a few incidents of fighting as a child.
Henry Blake, Jr., the defendant’s father, testified that:
• he was uninvolved in his son’s life, having left him when he was five;
• he recalled one instance of attending a sports-related activity; and
• he was using ánd selling drugs during the defendant’s childhood.
Henry Blake, III, the defendant’s older brother, testified that:
• he was 14 years older than the defendant;
• the defendant’s childhood • lacked a strong family unit at home; and
• he would be willing to assist the defendant in reentering society if he were to be released at some point in the future.
The defendant testified at the sentencing hearing that:
• he quit school when he was about 14 years old;
• his mother was on drugs and in and out of jail during his childhood;
• his grandmother died when he was 10 or 11 years old;
• after her death, his family consisted of his brothers;
• the murder grew out of “an altercation that went on”;
• the crime began from “little arguments”;
• the dispute got out of hand quickly and he regretted the killing;
]£ he committed a crime and that what he did was wrong;
• after his arrest, he had been involved in some fights at Caddo Correctional Center, but not since he has been housed at Angola; and
• he denied any knowledge of threats toward the victim’s family.

The Defendant’s Position

The Louisiana statutory implementation of Miller, supra, is found in newly enacted La. C. Cr. P. art. 878.1, effective August 1, 2013. The defendant’s attorney agreed at resentencing that his client’s actions were “absolutely criminal.” Nonetheless he argued that this | .^defendant, 17 at the time of the crime, should be eligible for parole, since he is far from the worst of offenders and this is far from the worst case.

The State’s Position

The state emphasizes the seriousness of the offense, the level of violence involved, and the fact that the victim was an innocent 15-year-old bystander. The state argues that the defendant’s lack of remorse and lack of understanding as to the senseless nature of this crime make parole eligibility in 35 years inappropriate for such a violent offender.

Actions of the Trial Court at the Sentencing Hearing

We have before us for review the sentencing decision of a second judge, issued in conformity with the first judge, disallowing parole eligibility for this defendant. Before resentencing the defendant to life imprisonment without the benefit of parole, the trial court expressly adopted the reasons and considerations of the original sentencing judge and provided further reasons in support of the denial of parole:

• the complete lack of explanation for this senseless murder;
k* the defendant’s lack of remorse, noting that the only regret he seemed to exhibit was that he had been caught;
• the defendant’s apparent failure to comprehend that he needlessly escalated the situation by taking the assault rifle from his brother and firing it at the others, missing a chance to defuse the situation;
• the defendant endangered many lives;
• in comparing these facts with Miller, supra, Brooks was close to his 18th birthday at the time of the offense; and
• the circumstances of this offense and this offender, and considering the effect of this crime on the 15-year-old victim’s family, the trial judge found a life sentence without all benefits to be appropriate.

The defendant urges that under these facts, life imprisonment without benefit of parole is excessive and therefore violates the Eighth Amendment of the U.S. Constitution and Art. I, § 20 of the Louisiana Constitution.

DISCUSSION

In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Supreme Court prohibited life without parole in non-homicide cases, for those under the age of 18 at the time of the crime.

In Miller, supra, the Supreme Court held that mandatory life without parole violates the Eighth Amendment’s prohibition against cruel and unusual punishment, if the murderer was under 18 years old at the time of the crime. Miller, supra, does not categorically prohibit life without benefit of parole for juveniles, but a sentencing court must first consider an 17offender’s youth and attendant characteristics as mitigating circumstances before determining whether to impose the harshest possible penalty for a juvenile offender. See State ex rel. Landry v. State, 2011-0796 (La.1/18/13), 106 So.3d 106.

La. C. Cr. P. art. 878.1 became effective August 1, 2013. The statute implements the Supreme Court’s holding in Miller, supra.

An article 878.1 hearing requires that a trial court consider any aggravating and mitigating evidence relevant to the offense or the character of the youthful defendant which would indicate whether or not the sentence should be subject to parole eligibility pursuant to the provisions of La. R.S. 15:574.4(E). See State v. Jones, 13-2039 (La.2/28/14), 134 So.3d 1164. This the trial court has done.

Our previous jurisprudence pertaining to the review of sentences provides only limited assistance under these new considerations.

1 «ANALYSIS

In the instant case, the trial court dutifully did exactly what we requested in our opinion that disposed of the defendant’s first appeal. The trial court did precisely what our Supreme Court ordered in another case less than two months ago, ie., that the trial court hold “a hearing in compliance with La. C. Cr. P. art. 878.1, implementing the Miller decision in Louisiana, before resentencing defendant to a term of life imprisonment at hard labor that, in the court’s discretion, after considering any aggravating and mitigating evidence relevant to the offense or the character of defendant, may, or may not, be subject to parole eligibility pursuant to the provisions of La. R.S. 15:574.4(E).” See State v. Jones, supra.

The trial court held the required sentencing hearing, thoroughly reviewed the PSI, heard all submitted testimony, and closely observed the defendant’s demean- or. The court then concluded that the facts of this case should preclude parole eligibility for this remorseless killer. We agree.

Finally, we cannot say that the sentence imposed is constitutionally excessive as it is not grossly out of proportion to the seriousness of the offense, and it is certainly not a purposeless and needless infliction of pain and suffering. See State v. Dorthey, 623 So.2d 1276 (La.1993). This sentence does not shock the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

CONCLUSION

For the foregoing reasons, defendant’s sentence is AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

_JjThe hearing for the sentencing of defendant came before the trial court only days after the effective date of Act 239 of 2013. Act 239 added Article 878.1 to the Code of Criminal Procedure and established the new parole eligibility provisions under La. R.S. 15:574.4. From the three recent decisions of the United States Supreme Court, Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), three central factors for consideration for the sentencing of juvenile offenders are: (1) lack of maturity and an underdeveloped sense of responsibility result in impetuous and ill-considered actions and decisions; (2) vulnerability to negative influence and peer pressure; and (3) character of a juvenile is not as well formed as an adult.

From my review of the sentencing hearing, it is not clear that the trial court acknowledged the new 35-year provision for parole that the legislature had only recently established. Additionally, a review of the above factors was not sufficiently made by the trial court. Finally, the trial court did not express its conclusion as charged by the new legislation that this life sentence must be imposed without benefit of parole because the crime was the worst of eases by the worst of juvenile offenders. Following the action of the Louisiana Supreme Court in a recent opinion, I would remand the matter to the trial court to confirm clear compliance with our new law. State v. Jones, 13-2039 (La.2/28/14), 134 So.3d 1164.

      . The facts are reviewed in much more detail in Brooks I.

      . One witness testified that the first shot was fired from up the hill toward the defendant and his two companions. This ear witness admitted not seeing any of the shooting and further admitted that he was smoking marijuana at the time of the shooting.

      . See Judge Caraway's concurrence in State v. Brooks, supra.

      . The defendant is the fourth of five sons born to Valerie Brooks. He was reared primarily by his mother, with minimal contact with his father. The defendant dropped out of school in the seventh or eighth grade, as his mother was unable to keep him in school. The defendant did not pursue a GED and has never been employed. He had a juvenile record, but it was not presented to, or reviewed by, the trial court. The victim’s family opposes parole eligibility for the defendant. The defendant was 17 years and eight months old at the time of the shooting. While he does have a criminal history, this was his first crime against a person, as an adult.

      . The trial court particularly noted at the sentencing hearing that the defendant appeared to lack remorse, as reflected by the following colloquy:
      Q: Are you sad that it happened and that somebody died?
      A: I knew the victim. It wasn’t like we were friends before it happened. It wasn't something that just happened. It was basically a misunderstanding, a mistake that happened.
      Q: And the firing shots back and forth, that was something that just got out of hand?
      A: Yeah.

      Q: Do you feel like you were just reacting because somebody was doing something wrong to you?
      A: I was acting off of their [the other group’s] reactions.

      . La. C. Cr. P. Art. 878.1. Sentencing hearing for juvenile offenders
      A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
      B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.
      (Our emphasis.) We infer that this last sentence of La. C. Cr. P. art 878.l.B mandates a comparison with murders committed by others who were not yet 18 at the time of the homicide.

      .On appeal, defendant urges that in reimposing a life sentence widrout the benefit of parole, the trial judge failed to adequately consider his personal history, lack of family support, lack of education or any potential defendant has for rehabilitation in the future. Defendant argues that there was no planning or premeditation, as the shooting was just an escalation of an altercation between two groups of boys.

      . His words at the sentencing hearing reveal a defendant who fails to understand that this simmering verbal argument did not justify the level of violence he employed.

      . We agree with the state that the trial court fully complied with the requirements of article 878.1. The court thoroughly reviewed the PSI report. The court heard the testimony of the witnesses at the resentencing hearing. In particular, the trial court observed the unre-morseful testimony of the defendant himself, as well as taking into account all possible mitigating factors applicable to the young man.

      . The judge who presided at trial and at the initial sentencing was Hon. Michael A. Pit-man. The judge pro tern who presided over the sentencing hearing and resentencing was Hon. E. Joseph Bleich, as Judge Pitman had by then rotated onto the civil bench.

      . This case could have been a mass murder of several totally innocent people, but for the fact that the defendant was apparently a poor shot.

      . Defendant Miller was 14 years old at the time of his gruesome crime, had been serially abused as a child, and had attempted suicide on several occasions. Miller killed the victim using a baseball bat and by arson. At the time of the murder, he was high on drugs and alcohol. In the consolidated companion case, defendant Jackson was also 14 years old at the time of the homicide. He never touched any dangerous weapon and did not pull the trigger that killed the victim of the robbery-homicide. In contrast, Brooks was aged 17 years, eight months, when he randomly shot into the crowd.

      . A sentence violates La. Const. Art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379.
      The trial court is given wide discretion in the imposition of sentences within the statutory limits. The sentence imposed will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Diaz, 46,750 (La.App.2d Cir. 12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir. 1/25/12), 86 So.3d 29.


author: COOKS, Judge. CONERY, J.,

text:
    Deborah MONK and Rickie E. Monk, Individually and on Behalf of their Minor Children, Jasmine Monk and Jared Monk v. UNITED FIRE & CASUALTY INSURANCE COMPANY, LifeShare Blood Centers and Jeffrey G. Herrera.
    No. 13-1120.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Russell L. Potter, Andrew P. Texada, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, United Fire & Casualty Ins. Co., LifeShare Blood Centers, and Jeffrey G. Herrera.
    William S. Neblett, Matthew J. Crotty, Neblett, Beard & Arsenault, Alexandria, LA, Attorney for Plaintiffs/Appellees, Deborah Monk and Rickie Monk, Individually and on Behalf of their Minor Children, Jasmine Monk and Jared Monk.
    Bonita Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defendants/Ap-pellees, State Farm Fire & Casualty Company and Joni Harville.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN E. CONERY, Judges.
   COOKS, Judge.

|,In this vehicular accident case, Defendants appeal the trial court’s grant of summary judgment on the issue of liability, which found Joni Harville free from fault in causing the accident in question. For the following reasons, we affirm the grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

On April 8, 2011, Joni Harville was driving her Nissan truck on Louisiana Highway 28 West, just outside of Alexandria, Louisiana. Traveling with her, in the front passenger seat, was Deborah Monk. The two women were planning on stopping at a flea market garage sale. They were not sure of the exact location of the garage sale, just that they were looking for a private driveway located on Highway 28. Ms. Harville’s vehicle had just passed a curve in the highway, when Ms. Monk saw the driveway in question, and alerted Ms. Harville. According to both Ms. Harville and Ms. Monk, the left turn signal was immediately activated and she began to slow the vehicle.

Traveling behind the Harville vehicle was a 2006 Bluebird bus owned and operated by LifeShare Blood Center, and driven by Jeffrey Herrera. According to Mr. Herrera’s testimony, he had been following the Harville vehicle for quite some time, and was maintaining about three to three and one-half car lengths between the vehicles. Mr. Herrera stated he was traveling at approximately 50 to 55 miles per hour when he noted the Harville vehicle was slowing. Mr. Herrera testified he saw the brake lights and left turn signal on the Harville vehicle, and realized at that point the bus he was driving was only two to two and one-half car lengths behind the Har-ville vehicle.

As the Harville vehicle began slowing, Mr. Herrera testified he believed he did not have sufficient room between the vehicles to stop without rear-ending the Har-ville vehicle. He also believed he could not safely go to the right of the |2Harville vehicle, because there was not enough room. Mr. Herrera then made the decision to attempt to pass the Harville vehicle on the left by entering the other lane of travel (at this point Highway 28 has only one lane of travel in each direction). Although Mr. Herrera noted there was an oncoming vehicle in that lane of travel, he believed he had sufficient time to successfully complete the maneuver.

At the time Mr. Herrera veered the Bluebird bus into the other lane of travel, Ms. Harville began her turn into the driveway. The vehicles collided, with the Har-ville vehicle approximately halfway into the other lane of travel upon impact.

Deborah Monk filed suit against Joni Harville, her liability insurer, State Farm Fire and Casualty Company, Jeffrey Herrera, LifeShare Blood Center, and LifeS-hare’s liability insurer, United Fire & Casualty Company. Joni Harville later filed a separate lawsuit against Herrera, LifeS-hare and United Fire. The suits were consolidated for trial purposes.

Harville and State Farm filed a motion for summary judgment in the lawsuit filed by Deborah Monk, contending Harville was free from fault in causing the accident. This motion was opposed by Herrera, LifeShare and United Fire. A hearing was held on the motion, after which the trial court orally granted Harville and State Farm’s motion. A judgment to this effect was signed, to which Herrera, LifeShare and United Fire appealed.

After the State Farm/Harville motion for summary judgment was granted in the Deborah Monk suit, Harville filed a motion for summary judgment in her suit seeking to have the trial court rule she was free from fault in causing the accident. After hearing arguments from the parties, the trial court again orally granted Harville’s motion for summary judgment. Herrera, LifeShare and United Fire also appealed this judgment. Both appeals were consolidated.

I,o After both appeals were lodged, but prior to oral argument, the lawsuit filed by Harville against Herrera, LifeShare and United Fire was settled. The appeal involving the suit filed by Deborah Monk remains before this court.

ANALYSIS

In reviewing a motion for summary judgment, an appellate court “applies a de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). As a general principle, our law in Louisiana favors the summary judgment procedure as a vehicle by which the “just, speedy, and inexpensive” determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Louisiana has enacted laws that set forth the duties imposed on a left-turning driver as well as a passing driver. Louisiana Revised Statutes 32:104, entitled “Turning movements and required signals,” provides in pertinent part:

A. No person shall ... turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement, can be made with reasonable safety-
B.' Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.

I/Fhe law with regard to a vehicle passing on the left is found in La.R.S. 32:75, entitled “Limitations on passing on the left,” which provides in pertinent part:

No vehicle shall be driven to the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.

La.R.S. 32:73 provides in pertinent part:

The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:
(1) Except when overtaking and passing on the right is permitted, the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.

Defendants argue on appeal that Ms. Harville was at fault for failing to look in her rear-view mirror to ascertain if there were any passing vehicles prior to making her left turn. They cite Lavalais v. Brister, 08-1390 (La.App. 3 Cir. 4/1/09), 7 So.3d 126, 130, for its statement of law that “[i]f the left-turning motorist fails to look in the rear view mirror to ascertain if there were any passing vehicles, then that driver is considered to be at fault in causing the accident even if a turn signal is given.”

Defendants also cite Thibodeaux v. Ace American Ins. Co., 13-577 (La.App. 3 Cir. 11/27/13), 127 So.3d 132, wherein this court assessed one hundred percent fault to a left-turning motorist. However, in that case this court emphasized that the passing motorist had “control of the passing lane” and the left-turning motorist did not activate its brake lights or turn signal prior to beginning the turn. These | Bfacts are clearly distinguishable from the instant case in several respects. Mr. Herrera only attempted to pass the Harville vehicle when he realized he would be unable to stop the bus in time to avoid running into the back of the Harville vehicle. Mr. Herrera acknowledged this dire situation came about because he failed to keep a safe distance between the vehicles. Thus, Mr. Herrera was forced to attempt an evasive maneuver and enter into the other lane of travel. Contrary to the facts in Thibodeaux, Mr. Herrera had not gained “control of the passing lane.” Moreover, the facts are undisputed that Ms. Harville applied her brakes and left-turn signal well in excess of the 100 feet required by statute.

Defendants attempt to characterize this case as dueling requirements between a passing motorist and a left-turning motorist. However, the facts (particularly as admitted by Mr. Herrera) reveal he was a following motorist, which significantly changes the duties involved herein. He had not gained control of the passing lane before Ms. Harville began her turning maneuver.

Mr. Herrera’s failure to follow at a safe distance triggers the application of La.R.S. 32:81, which provides, “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” Louisiana courts have uniformly held that a following motorist in a rear-end collision is presumed to have breached the standard of conduct prescribed in La.R.S. 32:81 and thus is presumed negligent. Mart v. Hill, 505 So.2d 1120, 1123 (La.1987). While the accident in the present case was not in all respects a direct rear-end collision, the testimony of Mr. Herrera, Ms. Harville and Ms. Monk establishes the accident occurred solely because Mr. Herrera’s failed to keep a safe distance between his vehicle and the Harville vehicle.

The following motorist may escape liability for the accident by establishing the unpredictable driving of the preceding motorist created a sudden emergency |6that the following motorist could not have reasonably anticipated. Cheairs v. State ex rel. DOTD, 03-680 (La.12/3/03), 861 So.2d 536. The jurisprudence has held that to exculpate himself from fault, the following motorist must demonstrate he had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid. Menard v. Federated Mut. Ins. Co., 05-85 (La.App. 3 Cir. 6/22/05), 906 So.2d 746, writ denied, 05-1925 (La.3/10/06), 925 So.2d 506; McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir. 5/9/01), 786 So.2d 269. The following motorist bears the burden of proving he was not negligent. Menard, 906 So.2d 746.

Clearly the testimony of all the involved parties discounts any creation of a sudden emergency by the actions of Ms. Harville. Moreover, they do not reveal any breach of the affirmative duties placed on her as left-turning motorist. Ms. Harville, Ms. Monk and Mr. Herrera all testified in their depositions that Ms. Harville gradually slowed her vehicle and activated her left-turn signal before attempting the left turn into the private driveway. Ms. Monk specifically stated Ms. Harville activated her left-turn signal approximately 300 to 500 feet prior to the turn, well in excess of the 100 feet required by La.R.S. 32:104 and legally sufficient to give warning to any following motorist of her intention to turn left. Mr. Herrera stated he observed Ms. Harville’s brake lights and left-turn signal prior to her execution of the left turn. Thus, it is clear Ms. Harville’s actions did not create a sudden emergency that Mr. Herrera could not have reasonably anticipated.

Moreover, Mr. Herrera specifically testified he attempted to pass the Harville vehicle because he determined that he did not have enough space to stop the bus behind the Harville vehicle and he did not have sufficient space on the right 17to pass safely. Thus, it is clear that Mr. Herrera’s “passing” maneuver was more correctly classified as a sudden, evasive maneuver dictated solely by exigent circumstances resulting from Mr. Herrera’s failure to keep a safe distance between the vehicles. Thus, under La.R.S. 32:81 Mr. Herrera is presumed negligent, and is at fault for the accident in question.

Based on the pleadings, discovery and testimony in the record, we find the trial court did not err in granting summary judgment in this case. Therefore, we affirm the lower court judgment and assess all costs of this appeal to Defendants-Appellants.

AFFIRMED.

CONERY, J., dissents and assigns reasons.

CONERY, J.,

dissenting.

_JjThis lawsuit is the result of an automobile accident between the driver of a bus and the occupants of a left-turning vehicle that the bus was following. Ms. Harville, as the proceeding motorist, initiated a left turn. The bus driver, Mr. Herrera, claimed that he did not have enough time to stop without rear-ending the left-turning véhicle. He veered into the opposite lane of traffic and began passing Ms. Har-ville’s vehicle to avoid a collision. He was unable to do so, resulting in a collision between the bus and the left-turning vehicle.

Ms. Harville sued and filed a motion for summary judgment claiming that she was not at fault in any way. Ms. Harville settled her lawsuit and dismissed her case. However, Ms. Monk, the guest passenger in Ms. Harville’s vehicle, also filed suit against both Ms. Harville and the bus company. She adopted Ms. Harville’s position on the motion for summary judgment and claims on appeal that the summary judgment finding no fault on the part of Ms. Harville should be |2upheld, as it was granted while the cases were consolidated and before Ms. Harville settled her consolidated suit. The trial court granted the summary judgment, finding, no fault on the part of Ms. Harville, the left turning motorist. The majority affirmed. I disagree.

Issues of material fact preclude summary judgment in this case. Ms. Harville, the left turning driver, admitted in her deposition that she did not even know the bus was behind her when she began her left turn. A question of fact, therefore, arises as to whether she even looked in her rear and side view mirrors before initiating her left turn. Photos of the damage to the vehicles show that the front corner of the passenger’s side of the bus struck Ms. Harville’s vehicle on the front corner of the driver’s side, which arguably demonstrates that Ms. Harville was not even 50% of the way through her turn when she was either hit by or turned into the passing bus.

The duty on the left turning motorist is great. Had Ms. Harville checked her rear view and side view mirrors before she began slowing for a turn, it would have been virtually impossible to miss seeing a large bus following her. The testimony of the bus driver was that he had been following Ms. Harville’s vehicle for quite some time.

Ms. Harville further testified in her deposition that she was looking for a garage sale location just prior to initiating her left turn. How close was Ms. Harville to the garage sale sign when she saw the sign and activated her turn signal? Additional factual questions involve how rapidly she slowed down to |3make the left turn after she spotted the sign. Was the maneuver “sudden” as the bus driver suggested?

Summary Judgment is not proper when so many factual questions and inferences from disputed facts are present. Credibility determinations as to the bus driver’s version of the collision as opposed to Ms. Harville’s version are for the fact finder. This court has stated, “If reasonable persons could reach only one conclusion as to a particular factual issue, then such issue is not genuine and may be disposed of summarily. However, if reasonable persons could disagree as to a factual issue’s resolution, then such an issue is genuine, and trial on the merits is warranted.” Lovejoy v. Bergeaux, 03-862, p. 5 (La.App. 3 Cir. 12/10/03), 862 So.2d 490, 493, writ denied, 04-13 (La.3/19/04), 869 So.2d 851, cert, denied, 543 U.S. 819,125 S.Ct. 58,160 L.Ed.2d 28 (2004) (citing Sumner v. Sumner, 95-677 (La.App. 3 Cir. 11/8/95), 664 So.2d 718, writ denied, 95-2919 (La.2/9/96), 667 So.2d 531).

There are myriad factual questions in this case and credibility determinations are essential for a proper resolution. I would reverse the summary judgment and remand the case to the trial court for a trial on the merits.

      . Joni L. Harville, individually and on behalf of her minor children, Landon Harville and Tristan Harville v. United Fire & Casualty Insurance Company, Lifeshare Blood Centers

        and Jeffery G. Herrera, 13-1417 (La.App. 3 Cir.-/-/-),-So.3d-.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Christifor AUSTIN.
    No. 13-1322.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      John F. DeRosier, District Attorney, Fourteenth Judicial District Court, Carla S.Sigler, Assistant District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant Christifor Austin.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

|, The record contains the following recital to the trial court regarding the factual background of this criminal matter:

Your Honor, the factual basis is that relative to the sexual battery that in Calcasieu Parish, Louisiana, in between the dates of 29 July '09 through 29 August '09 that the defendant did commit a sexual battery upon H.M., a white female, date of birth 27 December 2003 in that the defendant caused serious injury to the vaginal and perineal area of this victim either from sexual activity or from kicking the victim in that part of the victim’s body resulting in a significant tear to the vaginal and perineal area, requiring stitches at the hospital which caused bleeding which was a significant injury.
The second charge of second degree cruelty to juvenile occurred in Calcasieu Parish during the same time frame, 29 July, '09 through 29 August '09 on victim S.B., white female, date of birth 11 October 2006; and was the result of physical abuse in which the victim suffered a broken pelvis. The victim, as you saw, Your Honor, was two years old at the time.

Defendant, Christifor Austin, was charged by a bill of indictment with thirteen counts of cruelty to a juvenile, violations of La.R.S. 14:93; one count of second degree cruelty to a juvenile, a violation of La.R.S. 14:93.2.3; and one count of sexual battery, a violation of La.R.S. 14:43.1. Defendant pled not guilty. Thereafter, as part of a plea negotiation, the State amended the bill of indictment to reflect that Defendant was charged with one count of second degree cruelty to a juvenile and one count of sexual battery. The remaining thirteen counts of cruelty to a juvenile were dismissed.

Defendant then entered a plea of guilty to each of the two remaining charges. Part of the plea negotiation between the State and Defendant was that the State would not pursue a possible charge against Defendant in Jefferson Davis Parish and that Defendant would testify against Sarah Marshall, his girlfriend and the biological mother of the victims.

|2The trial court accepted the plea recommendation and sentenced Defendant to thirty-five years for each count, to run concurrently, and “at least the 25 years is without benefit, but the balance is at least 85% without being eligible for probation, parole, or suspension.” Defense counsel did not file a motion to reconsider the sentences.

Defendant filed a motion for an out-of-time appeal, for which the trial court ordered a hearing. The trial court granted the motion following an October 10, 2012 hearing. Defendant initially filed a pro se appeal, which this court remanded to the trial court to determine if Defendant was entitled to court-appointed counsel, and to inform Defendant of the dangers and disadvantages of self-representation. State v. Austin, 13-461 (La.App. 3 Cir. 10/15/13) (unpublished opinion). After that hearing, the Louisiana Appellate Project was assigned to represent Defendant.

Defendant is now before this court asserting that his sentences are constitutionally excessive.

CLARIFICATION OF SENTENCE

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent, but we do find that the trial court’s minute entry regarding sentencing requires clarification.

At sentencing, the trial court stated in pertinent part:

I’m going to accept the recommendation and make the recommendation the order of the Court; and, sir, order that you serve 35 years on each one of these offenses and that these sentences run concurrent.
At least the 25 years is without benefit, but the balance is at least 85% ^without being eligible for probation, parole or suspension.

It is clear to us that the trial court intended to impose the first twenty-five years of the sexual battery sentence without benefit of probation, parole, or suspension of sentence. There is, however, ambiguity reflected in the court minutes, which read in pertinent part:

As to each charge, to run concurrently, the court sentences defendant to serve thirty-five (35) years in the custody of the Louisiana department of corrections, with the first twenty-five years (25) to be served without benefit of probation, parole or suspension of sentence, with credit being given for time served.

^Louisiana Revised Statutes 14:43.1(C) provides in pertinent part:

(2) Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

Louisiana Revised Statutes 14:93.2.3 provides in pertinent part:

C. Whoever commits the crime of second degree cruelty to juveniles shall be imprisoned at hard labor for not more than forty years.

Louisiana Code of Criminal Procedure Article 879 provides: “If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.”

The minute entry failed to specify which sentence the trial court was referring to when it ordered the sentence to be served with at least twenty-five years without benefit of probation, parole, or suspension of sentence. Considering the trial court’s comments at sentencing, and the fact that only the penalty for sexual battery provides for the benefits restrictions, we have no difficulty in determining the intent of the trial court. Thus, we do not find that the sentence is indeterminate. Rather, we order the trial court to amend and clarify its sentencing minute entry.

EXCESSIVE SENTENCE

Defendant contends that the trial court imposed sentences that were constitutionally excessive. Defendant neither objected to the sentences imposed at sentencing, nor filed a motion to reconsider the sentences. He has, therefore, waived his right to appeal to this court on the basis of an excessive sentence. See State v. Green, 96-208 (La.App. 8 Cir. 11/6/96), 683 So.2d 1292, writ denied, 96-8925 (La.6/13/97), 695 So.2d 963. We also note that the trial court merely accepted the parties’ own recommendations for sentencing. “[Wjhere the court sentences the defendant in accordance with the parties’ recommendation for a specific sentence or a sentencing range, it is clear that review of the imposed sentence is precluded.” State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. We will, however, review the sentence for bare excessiveness. See State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127.

A conviction on the charge of sexual battery of a juvenile carries a sentencing range of twenty-five to ninety years of imprisonment at hard labor with at least twenty-five years without benefit of probation, parole, or suspension of sentence. La.R.S. 14:43.1(0(2). A conviction on the charge of second degree cruelty to a juvenile subjects a defendant to up to forty years of imprisonment at hard labor. La. R.S. 14:93.2.3(C). The trial court sentenced Defendant to thirty-five years for sexual battery and thirty-five years for cruelty to a juvenile with both sentences to run concurrently.

Given his guilty pleas, Defendant could have been sentenced to a maximum of 130 years. His sentences were less than a third of that length. Furthermore, but for the substantial benefit he received from his plea bargain with the State to dismiss over a dozen charges, he would have been subjected to several lifetimes in prison.

This assignment lacks merit.

DECREE

Defendant’s convictions and sentences are affirmed. We remand to the trial court and order that, within thirty days, the sentencing minute entry be amended to clarify that the first twenty-five years of Defendant’s sentence for conviction for 1 fisexual battery is to be served without benefit of probation, parole, or suspension of sentence in accordance with La.R.S. 14:43.1(0(2).

REMANDED FOR CLARIFICATION OF SENTENCE; CONVICTIONS AND SENTENCES AFFIRMED.

      . When the trial court was advising Defendant of applicable penalties, it stated in pertinent part:
      Sexual battery, Mr. DeRosier, you informed me that it is 25 to 99 years.

      ... Also, the penalty range on cruelty to a juvenile, Mr. DeRosier, did you inform me up to 40?

      And on the sexual battery the first 25 years is without benefit of probation, parole or suspension of sentence; is that correct?

      ... Also, Mr. Austin, we haven’t talked about the number of the sentencing yet, but the time that you will be sentenced to, I understand I know what the agreement is and we’ll get to that in a second, but these are all mandatory sentences that carry— that require that the defendant serve at least 85% of the sentence before being eligible for parole. Is that correct?

      But that doesn't apply to the first 25 years of the sexual battery sentence, sir. That has to be served unless there is some internal good time computation by the Louisiana Department of Public Safety & Corrections. Otherwise, it is going to be day for day, the first 25 years, without benefit of probation, parole or suspension of sentence. You may be eligible, I’m not saying that you are, I don’t know and you may not be entitled to what we call good time or diminution of sentence. That may not apply in your case, so I need you to understand that now.
      Although it appears that the trial court intended to impose the first twenty-five years of the sexual battery sentence without benefit of probation, parole, or suspension of sentence, it did not clearly do so when it imposed the sentence. This ambiguity is reflected in the court minutes.