author: PEATROSS, J.

text:
    Robbie ARNOLD, Stacey Guidry, Johnny Arnold, Jr., Christina Arnold Shamburger and Daniel Arnold, Individually and o/b/o The Deceased, John R. Arnold, Plaintiffs-Appellants v. OUACHITA PARISH FIRE DEPARTMENT, Defendant-Appellee.
    No. 44,378-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Guerriero & Guerriero, by Jeffrey D. Guerriero, Kevin D. Alexander, Brei-thaupt, Dunn, Dubos, Shafto & Wolleson, LLC, by Michael L. DuBos, K. Lamar Walters, III, Monroe, for Appellants.
    Hayes, Harkey, Smith & Cascio, by John C. Roa, for Appellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   PEATROSS, J.

[iThe plaintiffs, family members of the deceased John Arnold, brought this survival and wrongful death action against the Ouachita Parish Fire Department after Mr. Arnold perished in a fire at his mobile home. Finding that the plaintiffs failed to carry the burden of proving by a preponderance of the evidence that any negligence on the part of the fire department was a cause-in-fact of Mr. Arnold’s death, the trial court ruled in favor of the fire department, dismissing plaintiffs’ claims with prejudice. The trial court further held that, even if negligence and cause had been shown, the fire department is immune from liability under La. R.S. 9:2798.1. Plaintiffs appeal. For the reasons stated herein, we affirm.

FACTS

The events giving rise to the present action are tragic for the Arnold family. At approximately 12:30 a.m. on December 20, 1998, Mr. Arnold and his son were in Mr. Arnold’s mobile home at the Red Oak Trailer Park in Ouachita Parish watching television. After declining his father’s request |j>that he spend the night, the son fixed his father a plate of food and went to his brother’s home, where he was living at the time.

At 2:03 a.m., a neighbor, who had just moved into the mobile home park that day, called 911 to report that Mr. Arnold’s mobile home was on fire. The caller was connected to the main dispatcher with the Ouachita Parish Fire Department and spoke with Communications Officer Todd Robertson. The caller advised that he had just arrived from Virginia that day and moved into the trailer park; therefore, he was not certain of the specific address. The caller first provided the correct address of 1116 Washington Street, then changed that number to 1611 Washington Street, which does not exist. The caller further advised that the location was the Red Oak Trailer Park, across from the Porch Lounge. The caller related to the dispatcher that he could see smoke and flames through the windows of the mobile home.

Mr. Robertson dispatched three units from different stations. One of the stations was only two blocks from the Red Oak Trailer Park. The dispatcher, however, failed to verify the address with the printout that shows the address from which the call originated; and, therefore, the responding units were sent to the to-correct municipal address. In addition, the dispatcher did not advise the units that the call was from a neighbor, not the occupant (so that the occupant may still be inside) and he failed to advise the units that the caller related to him that he did not see anyone outside the burning trailer, but that there was a car parked outside.

| sAs a result of being provided an incorrect address, the responding units turned the wrong way down Washington Street, towards the nonexistent 1600 block, and continued in the wrong direction until they reached the Cheniere Dam, at which point they knew they were not in the right place. Meanwhile, the caller had apparently seen the fire trucks pass the trailer park and called the fire station a second time to alert the dispatcher that the units had gone past the trailer park and were traveling in the wrong direction. The dispatcher then relayed the correct address to the units. Once at the dam, however, only the smallest of the units, a pickup truck with a 250 gallon water tank usually used for grass fires, could turn around. The larger units had to continue a mile further to find a place large enough to turn around.

The first unit on the scene of the fire was the small truck, which arrived 9 minutes after the call was placed. The testimony is consistent that this was 5-6 minutes longer than it should have taken the units to arrive from the stations. The firemen admitted that they did not know the location of the Red Oak Trailer Park, despite the fact that Washington Street was a main thoroughfare. One of the firemen was aware of the location of the Porch Lounge; however, a tape recording from the units’ radio revealed that it was not until the units had made it to the dam that the fireman informed the others, “Guys, the Porch Lounge is back that way but it’s the 1200 block.... ”

Once on the scene, the small truck began spraying water on the exterior rear side of the mobile home. The testimony indicates that this is |4called an exterior approach and forces gas, toxic fumes and smoke into the interior of the structure. There was no search and rescue at this point. The testimony revealed that there were not enough firemen at the scene initially to enter the burning trailer. After the arrival of the additional units, however, there still was no search and rescue conducted. When the large units arrived, the exterior extinguishment continued until the fire was put out — approximately 37 minutes. It was not until that time that a fireman entered the mobile home to put out remaining hotspots. In so doing, he found Mr. Arnold lying 5-6 feet from the back door, facing his bed. Mr. Arnold’s dog was found under the bed. Both were deceased.

The fireman who discovered Mr. Arnold’s body testified that the body was “stiff’ and that he called on two other firemen to check the body to confirm that the man was deceased. There was smoke and soot on the bed with an indention and clean area where Mr. Arnold had been lying. All parties agree that it seems as though Mr. Arnold awoke and, while trying to rescue his dog, succumbed to smoke and fumes. There was no soot on the body, only burns on the arm and chest consistent with steam or gas burns.

The record reveals that, at approximately the same time the initial call was made to 911, another neighbor approached the mobile home and banged on the door. He could hear a dog barking, but there was no response from Mr. Arnold. The neighbor then left the trailer park to alert Mr. Arnold’s two sons, who lived less than a mile away. When they arrived back at the mobile home, the responding fire units had arrived and all attempts to go inside the trailer to see if their father was inside were[srebuffed by the firemen. According to the sons’ testimony, they were told by a fireman that their father was not inside the trailer, but had been observed leaving the trailer park. At least one of the firemen on the scene was under the impression that Mr. Arnold had been the 911 caller reporting the fire.

After investigating the physical scene immediately after the fire, fire inspectors discovered that improper splicing of wires in an outlet started the fire which smoldered in a mattress that was pushed up next to the outlet on the floor. Fire department investigators determined that the fire smoldered in the mattress for up to two hours before igniting into actual flames. They concluded that there could have been smoke and gas in the mobile home sufficient to kill Mr. Arnold before the fire erupted.

Investigator Tommy Willis from the coroner’s office was notified and arrived on the scene at approximately 3:00 a.m., before the body was removed from the mobile home. Assisting him was the chief investigator, Todd Sylvester. The coroner’s investigation report notes that the body was found face down next to the bed. The report further notes that rigor mortis was not present and lists the time of death as approximately 2:28 a.m., the same time that is listed for the discovery of the body. The death certificate also lists the time of death at 2:28 a.m. Officer Willis testified in deposition regarding his notation of the time of death:

I think at that time what I probably used is probably the time that the fire was first reported. That’s just an estimation, not — not an exact thing. There’s no way to exactly know for sure....

| fiOfficer Willis further agreed in his testimony that, had the fire started an hour earlier, the body would have been in “about the same condition.”

Officer Willis also testified that he indicated on the report that no autopsy was ordered or performed, but that that determination was made solely by the coroner, Dr. Clyde Elliot. Dr. Elliot testified that it was standard practice not to order an autopsy in this type of case, i.e., where there was no trauma to the body or suspicion of criminal activity associated with the death. He further testified that he did not examine the body, but found no reason from reviewing the coroner’s investigation report to dispute the findings listed thereon. By the time Dr. Elliot received the report and signed the death certificate, Mr. Arnold had been buried.

The children and estranged wife of Mr. Arnold filed suit asserting a survival action and seeking damages for wrongful death. They alleged that the actions/inactions of the fire department in responding to and fighting the fire caused Mr. Arnold’s death and lessened his chances of survival. After hearing all of the evidence, some of which is outlined above, the trial court found that, more likely than not, Mr. Arnold perished from smoke/gas inhalation prior to the flames being visible outside the trailer prompting the call to 911. Accordingly, the court found that Plaintiffs had not proven by a preponderance of the evidence that any failure on the part of the fire department caused the death. While not specifically addressing the numerous alleged breaches of duty, the trial court found no evidence that, had the responding fire units arrived on the scene in three, rather than nine, minutes, Mr. Arnold would have been alive and rescued. As such, the court |7ruled in favor of the fire department, dismissing the plaintiffs’ claims with prejudice. As previously stated, the court further found that, in any event, the fire department would be immune from liability under La. R.S. 9:2798.1. This appeal ensued.

DISCUSSION

On appeal, the plaintiffs raise the following three assignments of error (verbatim):

1. The trial court erred in failing to address the undisputed evidence that the Ouachita Parish Fire Department’s dispatch, response and approach to the fire failed to comply with the fire department’s own policies and procedures, as well as industry standards.
2. The trial court erred in finding that Plaintiffs failed to carry their burden of proof that the actions and/or inactions of the Ouachita Parish Fire Department were a cause in fact of John Arnold’s death and in failing to address whether the actions and/or inactions of the Ouachita Parish Fire Department resulted in a lost chance of survival for John Arnold.
3. The trial court erred in finding that the discretionary function immunity conferred by La. R.S. 9:2798.1 protects the Ouachita Parish Fire Department for its actions and/or inac-tions in its dispatch, response and approach to fighting the fire.

Since the ruling of the trial court was based on its finding a lack of proof of causation, and because the resolution of this issue is determinative of review on appeal, our discussion will begin with assignment of error number two regarding the plaintiffs’ failure to carry their burden of proof on causation.

In Hebert v. Rapides Parish Police Jury, 06-2001 (La.4/11/07), 974 So.2d 635, the supreme court outlined the determination of liability for a public body:

Most cases alleging negligence on the part of a public body have been analyzed by this Court under the duty-risk analysis. Cormier v. T.H.E. Ins. Co., 98-2208, p. 6 (La.9/8/99),s 745 So.2d 1, 7. In the classic duty-risk analysis, one of the inquiries the court must answer is: What, if any, duties were owed by the respective parties? Cormier, 98-2208 at pp. 6-7, 745 So.2d at 7; Mart v. Hill, 505 So.2d 1120, 1122 (La.1987). The particular facts and circumstances of each individual case determine the extent of the duty and the resulting degree of care necessary to fulfill that duty. Cormier, 98-2208 at p. 7, 745 So.2d at 7. A plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Id.; Berry v. State Through Dept. of Health and Human Resources, 93-2748, p. 4 (La.5/23/94), 637 So.2d 412, 414.
The plaintiff bears the burden of proof and must establish his claim by a preponderance of the evidence. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La.12/1/04), 893 So.2d 1, 4-5. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.1989). It follows from this, that speculation, conjecture, mere possibility, and even unsupported probabilities are not sufficient to prove a plaintiffs claim. See Coon v. Placid Oil Co., 493 So.2d 1236, 1240 (La.App. 3d Cir.), writ denied, 497 So.2d 1002 (La. 1986).

As previously stated, in the case sub judice, the dismissal of the plaintiffs’ case was based on the finding of the trial court that they did not prove causation, i.e., that any alleged action or inaction on the part of the fire department was a cause-in-fact of the death of Mr. Arnold. Causation is a question of fact and is, therefore, subject to the manifest error standard of review. Mart v. Hill, 505 So.2d 1120 (La.1987); Wallace v. State Farm Mutual Automobile Insurance Co., 36,099 (La.App. 2d Cir.6/14/02), 821 So.2d 704.

Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its|9entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Develop ment, 617 So.2d 880 (La.1993). On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216. A reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Id.

In its reasons for judgment, the trial court stated:

All expert testimony presented at trial was to the effect that, in a mobile home fire, due to the nature of the components used in constructing a mobile home, toxic fumes and smoke are released from the inception of the fire even if not smoldering in nature and can very quickly cause any occupants to be overcome and die. The preponderance of the evidence, both direct and circumstantial, was to the effect that this fire smoldered for a significant period of time before erupting into a blaze with this smoldering action having the necessary consequence of filling the trailer with toxic fumes and smoke which, according to all the testimony, would have been fatal to Mr. Arnold within a matter of minutes. The unknown caller | inestablished that the fire was ongoing in the Arnold trailer at 2:03 a.m., the time of his first call, and necessarily conveyed the fact that the smoke and accompanying flames were already in progress in the Arnold trailer at that time.
The circumstances observed by the 911 caller at the time of the first call indicate more likely than not that the interior of the trailer had already been filled with toxic fumes and smoke prior to the fire being discovered and reported and, based upon the expert testimony presented, Mr. Arnold was more likely than not already dead at the point of the first 911 call.

After an exhaustive review of the record, we conclude that the evidence substantiates the finding of the trial court regarding causation. There is no definitive time of death of Mr. Arnold and the testimony is conclusive that, in a mobile home fire, the gases and fumes can overwhelm an individual and cause death before the blaze actually erupts. The uncon-tradicted testimony was that the fire smoldered for a period of time prior to producing flames. In addition, we note that there was no response from Mr. Arnold when the neighbor beat on the door of the mobile home at approximately the same time the call was being placed to 911. Moreover, at the time the first call was placed, flames were visible from the exteri- or of the structure. Finally, the testimony was inconsistent regarding the presence, of vigor mortis in the body. As stated, the firemen noted that the body was stiff, however, the two investigators with the coroner’s office reported that rigor mortis was not present. We also note that Officer Willis explained that the time within which rigor mortis sets in varies depending on the environment and conditions of the body, including the manner of death and temperature. He related that it may take anywhere from two to five hours for the body to become rigid. Accordingly, we find that the trial court was [^within its discretion to find this fact not to be determinative of the issue of causation.

In summary, despite the tragic circumstances of Mr. Arnold’s death, we cannot say that the trial court was clearly wrong in holding that the plaintiffs did not prove by a preponderance of the evidence that any alleged negligence on the part of the fire department contributed to his demise. In light of our conclusion on the issue of causation and the proper dismissal of plaintiffs’ claims, we pretermit discussion of any other issues raised by plaintiffs on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of the defendant, the Ouachita Parish Fire Department, dismissing the claims of the plaintiffs, Robbie Arnold, et al, is affirmed at the plaintiffs’ cost.

AFFIRMED.

      . La. R.S. 9:2798.1, Policymaking or discretionary acts or omissions of public entities or their officers or employees, provides in pertinent part:
      A. As used in this Section, "public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumen-talities, officers, officials, and employees of such political subdivisions.
      B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Christina Ann WAKEFIELD, Individually and as the Natural Tutrix of Lilly Ann Foster and Christopher Lee Foster, Plaintiffs-Appellants, v. Vavondalyn Smith KYLE, TA Operating, LLC, TA Operating Corporation and Jerry Harvey, Defendants-Appellees.
    No. 44,317-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Raymond Lee Cannon, Tallulah, for Appellants.
    Jean Ann Billeaud, Lafayette, for Appel-lees.
    Before GASKINS, CARAWAY and DREW, JJ.
   CARAWAY, J.

| ,In this action, the employee cumulated claims against the employer and co-employees asserting an intentional tort by a co-employee occurring in the workplace. The employee also asserted actions for negligence by the employer and an employee regarding injuries she suffered from the battery by the other employee. Plaintiffs children and parents joined in the action seeking loss of consortium. The employer and one co-employee filed exceptions of no cause of action and no right of action, and the trial court dismissed certain claims. The plaintiffs appeal, and for the following reasons, we affirm.

Facts and Procedural History

As a result of an on-the-job altercation between two employees, Christina Wake-field, individually, and as the natural tutrix of her minor children, Lilly and Christopher Foster, instituted this suit for damages against a coworker, Vavondalyn Smith Kyle, her employers, TA Operating, LLC and TA Operating Corporation (hereinafter collectively “TA Operating”), and her supervisor, Jerry Harvey.

Wakefield’s petition alleged that while she was on the job at TA Travel Center in Tallulah on April 9, 2007, Kyle approached her. A verbal and physical altercation over an earlier work-related issue ensued. Wakefield alleged that she alerted Harvey during the altercation and he eventually separated them.

Wakefield moved into a closed office, but Kyle continued to call her |2names and attempted to open the office door. When Wakefield exited the office, Kyle struck her in the head with a bolt cutter. Wake-field’s injury required 16 stitches. Kyle then physically restrained Wakefield until Harvey and another employee again intervened to separate the two employees. Wakefield was pregnant with her son Christopher at the time of the incident.

The earlier incident which allegedly prompted Kyle’s confrontation with Wake-field involved Wakefield’s reporting Kyle for leaving work the day before, on April 8. Wakefield admittedly told Harvey that Kyle “had broken shift.”

Regarding TA Operating and Harvey, Wakefield also alleged as follows:

9.

Petitioner alleges that the incident and harm to petitioner, Christina Ann Wakefield, Lilly Ann Foster and Christopher Lee Foster, were the sole result of the joint and concurring intentional conduct and omissions of the defendants, Vavondalyn Smith Kyle, TA Operating Corporation, TA Operating, LLC and Jerry Harvey in the following ways:
1) [I]n that defendant, TA Operating Corporation and TA Operating, LLC, acting through its employees and servants, negligently hired an unreasonably hostile and uncontrollable employee, defendant, Vavondalyn Smith Kyle,
3) [I]n that defendants, TA Operating Corporation, TA Operating, LLC, and Jerry Harvey, failed to protect petitioners, Christina Ann Wakefield and Christopher Lee Foster, from the unreasonably hostile and unreasonably uncontrollable employee, defendant, Va-vondalyn Smith Kyle.

Subsequently, Wakefield amended her petition to add her parents, George and Sharon Wakefield, as party plaintiffs, “re-allegfing] all ^allegations of the original petition herein by reference.”

On May 22, 2008, TA Operating and Harvey filed peremptory exceptions of no cause and/or no right of action on the grounds that Wakefield’s sole remedy for the claims made against them was under the Louisiana Workers’ Compensation Act. The defendants also urged that Wake-field’s parents did not “have standing to assert any cause of action and therefore have no right of action in these proceedings.” Defendants also sought to dismiss the minor children from the action based upon the lack of allegations of facts sufficient to show that they had a cause of action against defendants.

After considering the arguments and briefs submitted by counsel, the trial court gave oral reasons granting part of the relief sought by defendants. The judgment ordered:

[T]hat the Peremptory Exceptions of No Cause of Action and/or No Right of Action filed on behalf of TA Operating, LLC, TA Operating Corp. and Jerry Harvey, be and are hereby sustained insofar as they pertain to plaintiffs’ alleged negligence cause of action....

The ruling rested on the grounds that plaintiffs’ exclusive remedy was under the Louisiana Workers’ Compensation Act. The court also sustained the defendants’ exception of no right of action as to the claims of George and Sharon Wakefield. The court ordered “that in all other respects, the Peremptory Exceptions of No Cause of Action and/or No Right of Action” filed by defendants were denied. The judgment expressly determined that there was no just reason for delay and designated the judgment as a final judgment for purposes of an immediate appeal.

l4Wakefield appeals the rulings relating to the dismissal of the defendants’ claims and her parents from the suit.

Discussion

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, 01-0175 (La.9/19/01), 795 So.2d 302; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial. Cleco Corp., supra; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La. 1993). In reviewing a trial court’s ruling sustaining an exception of no cause of action, the court of appeal and this court should subject the case to de novo review because the exception raises a question of law, and the lower court’s decision is based only on the sufficiency of the petition. Cleco Corp., supra; Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.5/23/83).

The burden of showing that the plaintiff has failed to state a cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidence. Blackett v. City of Monroe, 33,339 (La.App.2d Cir.9/7/00), 766 So.2d 768. The exception is triable on the face of the pleadings, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of |5the nonmoving party in determining whether the law affords any remedy to the plaintiff. La. C.C.P. arts. 927, 931; Blackett, supra. If a petition fails to state a cause of action, but the grounds of the objection can be removed by amendment, the plaintiff should be allowed to amend his demand. La. C.C.P. art. 934.

A proper analysis of a no right of action exception requires a court to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. La. C.C.P. art. 927; Howard v. Administrators of Tulane Educ. Fund, 07-2224 (La.7/1/08), 986 So.2d 47; Reese v. State Dep’t of Public Safety and Corrections, 03-1615 (La.2/20/04), 866 So.2d 244; Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Reese, supra; Industrial Companies, Inc., supra. The court begins with an examination of the pleadings. Howard, supra.

I.

We will first consider whether Wakefield’s parents have a right or cause of action to bring this suit in tort. Wake-field’s parents seek damages against defendants for the tort committed upon their daughter by Kyle. The provisions of La. C.C. art. 2315 grant a cause of action for damages by one who is injured through the fault of another. Family members of the primary | ntort victim also have an action for loss of consortium damages allowing compensation for their diminished relationship with the primary tort victim. McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. Article 2315(B) allows this action to be filed by the surviving spouse and/or children of the injured party. The cause of action of the father and mother arises only if the injured party has no spouse or surviving child. With the claims of Wakefield’s children comprising the consortium claims in this instance, her parents do not possess any cause of action or standing to join in this suit as party plaintiffs. On these grounds, the trial court correctly dismissed the claim of George and Sharon Wakefield against all defendants.

II.

Concerning the trial court’s grant of the peremptory exception in favor of TA Operating and Harvey, the language of the judgment and the trial court’s oral reasons for the ruling clearly indicate that the trial court granted only partial relief, sustaining the exception of no cause of action in part for dismissal of the negligence-related claims which must be adjudicated in the Office of Workers’ Compensation (“OWC”). The claims of Wakefield as an employee against her employer, TA Operating, and her co-employees, Kyle and Harvey, fall into multiple tort categories. First, Kyle’s actions in committing a battery on Wakefield amount to an intentional tort. On the other hand, Harvey is apparently charged with negligence for his handling of the confrontation between the two individuals, and possibly, for his part in hiring Kyle. TA Operating’s actions in hiring Kyle are also alleged as direct employer negligence. 17Finally, TA Operating, as the employer of both Kyle and Harvey, is alleged to have vicarious responsibility for their actions.

Relevant to the exclusivity of the rights and remedies afforded under the Louisiana Workers’ Compensation Law, La. 23:1032(A) and (B) state:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

The underlying tort committed by Kyle was an intentional tort and therefore constitutes a claim falling outside the coverage of the workers’ compensation act. An employer can be vicariously liable for the intentional acts of its employees. Le-Brane v. Lewis, 292 So.2d 216 (La.1974); Garcia v. Furnace and Tube Service, Inc., 40,517 (La.App.2d Cir.1/27/06), 921 So.2d 205. Such claims for employment-related intentional torts are not subject to the defense under La. R.S. 23:1032(A) which TA Operating asserts in this instance. Accordingly, plaintiffs’ tort claim against TA Operating for its alleged vicarious liability for Kyle’s intentional tort was | snot dismissed by the trial court’s partial judgment and remains for trial in district court.

Apart from Kyle’s intentional tort, Wakefield made allegations of negligent hiring against TA Operating. Additionally, Wakefield claims that Harvey failed to “protect” her from the “unreasonably hostile” and “uncontrollable” Kyle. The trial court’s partial judgment dismissed these claims against TA Operating and Harvey upon the determination that these allegations asserted negligence and are the subject of the workers’ compensation act, within the jurisdiction of the OWC.

In Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, the employer was sued after its supervisor directed the plaintiff and another employee to move a heavy sandblasting pot. The plaintiff was injured when the vessel fell on his knee. The supreme court rejected the view that the supervisor’s actions amounted to an intentional act falling within the exception of workers’ compensation coverage. The court said:

Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.

Id. at 212.

In light of the Reeves ruling, plaintiffs’ claim regarding Harvey’s actions during Kyle’s confrontation with Wake-field, and the conclusory claim of TA Operating’s negligent hiring of Kyle, to the extent that they might represent a cause of action, are claims for negligence requiring Inadjudication before the OWC. The trial court therefore correctly determined that those claims were subject to the peremptory exception.

Conclusion

The judgment of the trial court in favor of TA Operating is affirmed. For clarification, the judgment sustained the exception of no cause of action in part dismissing the claims of negligence against TA Operating by Christina Ann Wakefield, Lilly Ann Foster and Christopher Lee Foster. Those plaintiffs’ claims against TA Operating for the intentional tort of Kyle remain in this action for adjudication. The claims presented against Harvey individually are for his negligence, and his exception of no cause of action was sustained, resulting in a judgment of his complete dismissal from this action. This judgment is affirmed. Finally, the judgment dismissing the entirety of the claim of plaintiffs, George and Sharon Wakefield, in favor of the defendants is affirmed. Costs of this appeal are assessed to appellants.

AFFIRMED.

      . It is unclear from the petition why Wake-field claims dual employment from what are apparently related business entities. We will refer to these parties collectively as the employer.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Laterrance T. HILL, Appellant.
    No. 44,217-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      James Edward Beal, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, J. Michael Ruddick, Josephine P. Heller, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   GASKINS, J.

_JjThe defendant, Laterrance T. Hill, was indicted for aggravated rape but was allowed to plead guilty to attempted aggravated rape. The trial court sentenced him to 50 years at hard labor without benefit of parole, probation or suspension of sentence. We affirm the defendant’s conviction and sentence.

FACTS

On April 20, 2006, the defendant entered a residence in Monroe, Louisiana, through the window of the bedroom where the 12-year-old victim was sleeping with her sister and brothers. The defendant removed the clothing of the victim, who was his cousin, and forcibly engaged in sexual intercourse with her. When the victim tried to resist the defendant, he choked her. The victim’s 10-year-old sister was awakened and saw the defendant on top of the victim. Upon seeing the victim trying to resist the defendant and then being choked, the sister attempted to help her but was pushed away by the defendant. The victim’s sister then left the bedroom to summon their mother. The victim’s mother confronted the defendant and told him she was going to call the police; the defendant unsuccessfully tried to dissuade her from doing so. He then fled the home.

Once police arrived, the victim was questioned and then transported to a local hospital where a rape kit was completed; bruising and abrasions were observed on the victim’s vaginal area. Sperm consistent with the defendant’s DNA profile was found on the victim’s vaginal swab. The probability of finding the same DNA profile, if the DNA had come from a randomly selected individual other than the defendant, was approximately 12one in 10.1 quadrillion. The victim told the police that this incident was not the first time the defendant had sexually assaulted her.

The defendant was indicted for aggravated rape. Pursuant to a plea agreement, he pled guilty to attempted aggravated rape without an agreement as to his sentence. The trial court ordered a pre-sentence investigation (PSI) report. The defendant was subsequently sentenced to 50 years at hard labor without benefit of parole, probation or suspension of sentence, the maximum sentence for the offense to which he pled guilty. A timely motion to reconsider sentence was denied, and this appeal ensued.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, units denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, |8marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

On the second prong of the ex-cessiveness test, the court must determine whether a sentence violates La. Const. art. 1, § 20. A sentence will violate La. Const. art. 1, § 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. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; 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, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in |4potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, unit denied, 2007-1394 (La.4/4/08), 978 So.2d 321. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. Smith, 43,757 (La.App.2d Cir.12/3/08), 999 So.2d 171.

DISCUSSION

The defendant contends that his sentence is excessive in that the trial court refused to consider his youth as a mitigating factor because of his drug history as a teenager. Additionally, the defendant argues that the trial court erred in considering the age of the victim in determining his sentence as the legislature had already taken cognizance of her age in fashioning a harsher sentence when the victim is under the age of 13. Thus, according to the defendant, the victim’s age should not have been an aggravating factor in determining the sentence.

The state argues that the trial court considered the appropriate factors in determining the defendant’s sentence. The state notes that the defendant has shown no remorse for his actions which were committed while he was on parole for a prior drug conviction. The state reasons that the sentence was appropriately tailored for this particular defendant. Based upon the record before us, we agree.

|5The record reveals that the trial judge was cognizant of and considered the appropriate factors in determining the defendant’s sentence. The trial judge issued a sentencing memorandum that throughly chronicled the defendant’s family, work, and criminal histories. The trial judge found that the defendant, a high school dropout and father of one, had a sporadic work history and the defendant admitted to selling drugs on occasion, since his teen years, to provide a source of income.

In a statement to the probation and parole officer who compiled the PSI report, the victim’s mother reported that her family had to move and leave friends due to harassment by the defendant’s family and friends. During a sentencing hearing, the victim and her sister testified that they had to move away from many friends as a result of the incident. Each testified about having trouble sleeping at times and being fearful as a result of the defendant’s actions.

The trial court found five significant aggravating factors present in this case. First, the offense resulted in significant permanent injury to the victim and her family. Second, the defendant has shown no remorse for the offense. Third, the defendant substantially benefitted from a plea bargain that limited his maximum sentencing exposure. Fourth, the defendant resorted to violence in order to facilitate the commission of the crime, by choking the victim to overcome her attempts to resist the attack. Finally, the defendant’s prior criminal history was considered as an aggravating factor.

The trial court noted that it did not find any mitigating factors. Despite the fact that the defendant was a relatively youthful offender, he had |fibeen involved in criminal activities for some time. The defendant was found to be a third felony offender, with prior felony convictions for possession of cocaine and attempted possession of phencyclidine. The defendant had previously received opportunities to rehabilitate himself while on probation or parole, but he had performed poorly while under supervised release. In fact, the defendant was on parole at the time of his arrest for the instant offense.

We find that the trial court considered the appropriate factors in determining the defendant’s sentence. The trial court was not required to give any particular weight to any factors considered while fashioning this sentence.

Additionally, we find no error in the sentence imposed upon this third felony offender. The defendant has previously failed to perform well while on supervised release. The defendant has generally not been able to conform or adhere to the rules and regulations imposed by his release on probation and/or parole which led to his supervised release being revoked. It is apparent that the defendant is greatly in need of correctional treatment in a custodial environment. Further, we find that the defendant failed to accept responsibility for his activities and instead chose to blame the victim and her family for his arrest. His various explanations included the victim consenting to intercourse and lying to him about her age (despite the fact that she was a younger relative whom he had presumably known her entire life) and the victim’s mother falsely accusing him of rape due to a family dispute.

|7The defendant committed an aggravated rape, an offense which carries a mandatory penalty of life imprisonment. He greatly benefitted from the plea agreement which allowed him to plead guilty to attempted aggravated rape, an offense that did not adequately describe his conduct, and thereby significantly reduced his sentencing exposure to a maximum of 50 years. The sentence imposed by the trial court is neither grossly out of proportion to the seriousness of the offense nor is it nothing more than a purposeless and needless infliction of pain and suffering. The sense of justice is not shocked by the imposition of this 50-year sentence upon this defendant.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Delores BROWN, Appellant.
    No. 44,222-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Lavalle B. Salomon, Monroe, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny W. Douciere, Kenneth D. Wheeler, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

liThe defendant, Delores Brown, was charged by bill of information with attempted second degree murder, a violation of LSA-R.S. 14:27 and 14:30. Pursuant to a plea agreement, the state amended the bill of information and defendant pled guilty to the charges of second degree battery, LSA-R.S. 14:34.1, and illegal use of a weapon, LSA-R.S. 14:94. The defendant was sentenced to serve a term of imprisonment of three years at hard labor on the second degree battery conviction and one year at hard labor on the illegal use of a weapon conviction, with the sentences to run concurrently. The district court denied defendant’s motion to reconsider sentence and the defendant appeals. For the following reasons, we affirm.

FACTS

On March 7, 2006, the defendant called the Rayville Police Department to report that she had just shot her boyfriend, Terry Bishop. When the police arrived at the residence, defendant answered the door, but the victim, Bishop, was not present. Shortly thereafter, the police located the victim walking back toward the residence with three gunshot wounds in his left leg and a bullet wound in his left arm. In her statement to police, the defendant alleged that shortly before the incident she and Bishop were arguing in the kitchen when he choked her, threw her on the floor and then slapped her on the left side of her face. Defendant stated that she then went to the utility room, retrieved a gun and when she returned to the kitchen, Bishop approached her and so she shot him multiple times. The defendant then placed the gun to Bishop’s head and told him she would kill him if he did not get out of the house. The victim later told police that he had pushed |2defendant to the floor, but denied that he choked or slapped her.

The defendant was initially charged with one count of attempted second' degree murder. As a result of the plea agreement, the defendant pled guilty to reduced charges of one count of second degree battery and one count of illegal use of a weapon. The trial court ordered a presen-tence investigation report. Subsequently, the trial court sentenced the defendant to serve three years at hard labor on the second degree battery conviction and one year at hard labor on the illegal use of a weapon, with the sentences to run concurrently. The defendant’s motion to reconsider sentence was denied and this appeal followed.

DISCUSSION

In three assignments of error, the defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the district court failed to articulate adequate reasons justifying the sentence and that a less harsh sentence is appropriate considering defendant’s background and the circumstances of the case.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of lathe factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). 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, 2001-0467 (La.1/15/02), 805 So.2d 166.

The penalty for second degree battery is imprisonment, with or without hard labor, for not more than five years and/or a fine of not more than $2,000.00. LSA-R.S. 14:34.1. The penalty for illegal use of a weapon is a fíne of not more than $1,000.00, or imprisonment with or without hard |4Iabor for not more than two years, or both. LSA-R.S. 14:94.

Prior to imposing sentence, the district court ordered a presentence investigation (PSI) and held a sentencing hearing. At the hearing, the court heard testimony regarding the events of the morning in question from Tamario Turner, the investigating police officer, and the victim. Officer Turner testified that there were no marks, cuts or bruises visible on the defendant indicative of a physical struggle with the victim. In support of his testimony, the state introduced four photographs of the defendant’s neck and face taken on the morning of the shooting that did not appear to show any signs of trauma. The defendant presented the testimony of Eltie Hunter, an acquaintance of both the defendant and the victim. Hunter testified that he saw the defendant when she was released after her arrest and that there was a bruise on the right side of her face. Hunter stated that following the shooting he had spoken with the victim, who said he was sorry he had “jumped on” the defendant.

Primarily, defendant contends the trial court did not give sufficient weight to her “unblemished” criminal record and the circumstances surrounding the crime as she alleges it to have occurred. The PSI report indicates that the defendant is a 57-year-old first felony offender. While defendant has no prior felony convictions, her criminal record shows that she has been arrested a number of times for various offenses, including the discharge of a firearm, carrying a concealed weapon and disturbing the peace. Thus, the PSI report does not support the defendant’s description of her criminal record as unblemished. Further, 'the PSI report discusses ^defendant's educational background, her employment history and family situation, including the fact that the defendant’s 37-year-old son lived with her. Consequently, although the district court did not articulate specific information about defendant’s background at the time of sentencing, the PSI report informed the court about the important elements of defendant’s personal history to be considered in imposing sentence.

Regarding the circumstances of the crime, defendant contends that the district court erred in failing to consider her mental state at the time of the offense. Presumably, defendant is referring to her contention that she was acting in self-defense. We note that the record does not support defendant’s version of events. Not only was there a lack of evidence to corroborate defendant’s story that the victim attacked her, the victim testified during the sentencing hearing that the first shot struck him on the side of his left leg. This uncon-tradicted testimony belies the defendant’s assertion that the victim was charging at her when she began shooting.

In addition, the district court found that if the defendant had felt truly threatened she could have exited the house through the door in the utility room. The court noted that instead, the defendant opted to arm herself with a handgun, thereby introducing a dangerous weapon into an already volatile situation, and intentionally shot the victim. In light of the foregoing circumstances, the court was not persuaded by defendant’s claim that she acted out of fear in shooting the victim.

Where a defendant has pled guilty to an offense which does not adequately describe her conduct, or has received a significant reduction in [ ^potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,-239 (La.App.2d Cir.4/30/08), 981 So.2d 792. Here, the defendant shot and wounded the victim four times with a dangerous weapon. Such conduct could more appropriately be categorized as either an aggravated battery (punishable by up to 10 years at hard labor) or an aggravated second degree battery (punishable by up to 15 years at hard labor). LSA-R.S. 14:34; LSA-14:34.7. Thus, the plea bargain significantly reduced defendant’s potential exposure to confinement.

The record demonstrates that the district court provided adequate reasons for imposition of these concurrent sentences, which are approximately one-half of the maximum sentences possible for the offenses of conviction. The sentences imposed are neither grossly disproportionate to the seriousness of the offenses committed nor shocking to the sense of justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say the sentences imposed are constitutionally excessive. The assignments of error lack merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Tamario TAYLOR, Appellant.
    No. 44,205-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.
    James Edward Beal, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sherburne Sentell, III, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   LOLLEY, J.

_J_iThe defendant, Tamario Taylor, was charged with three counts of Distribution of Cocaine, a violation of La. R.S. 40:967(A). Pursuant to a plea bargain, he pled guilty to two charges of Distribution of Cocaine, with a sentence cap of 20 years, the sentences to run concurrently. He subsequently received concurrent 15-year sentences. After a motion for reconsideration of sentence was denied, Taylor filed the instant appeal; his single assignment of error alleges excessiveness of sentence. Because a sentence imposed within an agreed range cannot be appealed as excessive, Taylor’s conviction and sentence are affirmed.

Facts

On October 4, 2007, Taylor was charged by bill of information with three counts of knowingly and intentionally distributing cocaine, a violation of La. R.S. 40:967(A). On February 20, 2008, he entered a guilty plea pursuant to a plea bargain. At the beginning of the guilty plea hearing, the state announced the terms of the plea bargain that included Taylor’s pleading guilty to only two counts of distribution of cocaine, with a presentence investigation, and a sentencing cap of 20 years for each court with the sentences to run concurrently. Taylor then was asked if he intended to plead guilty as stated under the agreement, and he responded in the affirmative.

After Taylor was sworn and indicated his satisfaction with his legal representation, the court informed him that distribution of cocaine carries a term of imprisonment at hard labor for not less than 2, nor more than 30 years, with the first 2 years of the sentence being without benefit of parole, |gprobation, or suspension of sentence, and that a fine also could be imposed of not more than $50,000.00. Taylor acknowledged the possible sentence as well as the fact that by pleading guilty he would be subject to enhanced sentences for future felonies under the habitual offender laws.

The trial court then informed Taylor of his right to a jury trial, his right to confrontation, his right to remain silent, and his right to appeal if found guilty; the trial court further informed Taylor that by pleading guilty, Taylor would be giving up all these rights, and Taylor acknowledged his understanding. After hearing a recitation of the factual basis for each count of distribution of cocaine, Taylor acknowledged the correctness of the recitation. When he then was asked how he pled on the two counts, he responded, “Guilty.” The court accepted the guilty pleas and ordered a presentence investigation.

On June 2, 2008, Taylor appeared at his sentencing hearing. After hearing a statement from Taylor, the trial court reviewed his criminal history, including 1999 convictions for second degree battery and purse snatching, and a 2001 plea to illegal use of a weapon. The court also noted Taylor’s family and educational history and the seriousness of the offense, and found not only that there were no grounds to excuse the criminal activity, but also that Taylor’s criminal conduct was the result of circumstances likely to recur. The court then sentenced Taylor on each count to 15 years at hard labor, 2 years of which was to be served without benefit of probation, parole, or suspension of sentence; the court ordered the sentences to run concurrently with credit for time served. Taylor’s | ¡¡subsequent motion for reconsideration of sentence was denied, and he then appealed, assigning as error only excessiveness of sentence.

Discussion

While Taylor and the state have made their respective arguments on appeal concerning whether or not the sentence is excessive, the threshold question should be whether a sentence imposed within an agreed range can properly be appealed as excessive.

Article I, Section 19, of the Louisiana Constitution provides for the right of judicial review and specifically states that this right may be intelligently waived. If a defendant can completely waive the right to judicial review, then it follows that a defendant can intelligently waive the right to review of his sentence for excessiveness. Furthermore, La. C. Cr. P. art. 881.2(A)(2) provides, “The 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.”

These statutory provisions essentially amount to a waiver of a portion of the right to judicial review, and that waiver is both constitutional under Article I, Section 19, and logical for the following reasons. When a defendant pleads guilty in conformity with a plea agreement that either provides a specific term of imprisonment, or sets a specific sentencing cap, the defendant is acknowledging his agreement to the specific term of imprisonment or to the specific cap, and his agreement must be considered informed and intelligent in this respect.

^Additionally, his agreement on the sentence, as part of a voluntary plea bargain that mutually benefits the defendant and the state, should be binding; a defendant who has intelligently agreed to specific sentencing terms should not be allowed to attack those terms later on appeal. Accordingly, a plea agreement, set forth in the record at the time of the plea, that imposes either a specific sentence or a sentencing cap, logically constitutes an implicit waiver of the right to seek review of a sentence imposed in conformity with the plea agreement.

In State v. Young, 1996-0195, 680 So.2d 1171 (La.10/15/96), the Louisiana Supreme Court resolved a conflict among the circuits concerning whether the prohibition on appealing a sentence that was the result of a plea bargain applied both to plea agreements involving sentencing caps and to specific sentences. The court held that the legislature clearly intended La. C. Cr. P. art. 881.2(A)(2) to apply to plea agreements involving both specific sentences and sentencing caps. The Young court noted that the defendant had voluntarily and with the assistance of counsel decided to enter into a plea agreement so that he would not be subjected to a term of imprisonment longer than a total of 30 years for all of the charges against him. The defendant was sentenced to a term of imprisonment which was less than the sentencing cap he pled guilty under; therefore, the court found that La. C. Cr. P. art. 881.2(A)(2) precluded the defendant from appealing his sentence imposed in conformity with a plea agreement that was set forth in the record at the time of his plea.

| ¡¿This court has repeatedly stated that 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 if that right has not been specifically reserved; however, we also have stated that when the right to appeal has been mentioned by the trial court during the plea colloquy, even though there is an agreed sentence or sentencing cap, the defendant’s sentence may be reviewed. State v. Fizer, 43,271 (La.App.2d Cir.06/04/08), 986 So.2d 243; State v. Martin, 43,243 (La.App.2d Cir.06/04/08), 985 So.2d 1253.

In the instant case, Taylor did not reserve the right to review the sentence during the plea colloquy, and the trial court, rather than telling the defendant he could appeal, told him that by pleading guilty he would give up certain rights, including the right to appeal. Thus, under these circumstances, we hold that La. C. Cr. P. art. 881.2(A)(2) precludes Taylor from appealing his sentence imposed in conformity with a plea agreement that was set forth in the record at the time of his plea.

Finally, in the past this court, in an abundance of caution, often has reviewed excessiveness claims even after stating that a sentence imposed within an agreed range cannot be appealed as excessive. However, we conclude that this practice is not in the interest of sound judicial administration, because it encourages meritless appeals, like this one, that challenge only the alleged excessiveness of a sentence imposed pursuant to and in conformity with a sentencing cap voluntarily and intelligently agreed |eto by the defendant. Such appeals waste judicial resources. Counsel representing defendants who have no other issues are hereby cautioned against filing such appeals.

Conclusion

For the foregoing reasons, Tamario Taylor’s conviction and sentence are affirmed.

AFFIRMED.


text:
    Kevin PARKER, Plaintiff-Appellee, v. Stacy PARKER, Defendant-Appellant.
    No. 44,246-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Katherine Clark Dorroh, for Appellant.
    Ross E. Shacklette, Bossier City, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| iStacy Parker Card appeals a judgment by the 26th Judicial District Court, Parish of Bossier, State of Louisiana, in favor of her former husband, Kevin Parker, which denied her request to relocate the couple’s two minor children to McCool, Mississippi. For the following reasons, we affirm the trial court’s judgment.

Facts

Kevin Parker and Stacy Parker Card were formerly married and obtained a judgment of divorce from the 10th Judicial District Court, Parish of Natchitoches, Louisiana on December 4, 2003. Two children were born of the marriage: “J” Parker, born on August 1, 1995 and “K” Parker, born on July 18,1996.

A judgment on July 30, 2003, granted the parties joint custody of the two children, with Stacy being designated as the domiciliary parent subject to Kevin’s visitation every other weekend, two weeks during the summer, and half of the major holidays. Additionally, the judgment ordered Kevin to pay child support in the amount of $952.00 per month and 50% of the uncovered medical expenses of the children.

Recently, Stacy was married to James Card, who resides in McCool, Mississippi. In compliance with the relocation statute, Stacy sent written notice to Kevin of her intent to relocate the children to Mississippi to live with her and her new husband. On June 9, 2008, Kevin filed a Rule for Reduction in Child Support and Objection to Relocation of Children. A trial was held, and the trial court ruled in Kevin’s favor, ultimately | ¡.determining that relocation was not in the children’s best interest. This appeal by Stacy ensued.

Discussion

Louisiana’s relocation statutes retain the “best interest of the child” standard as the fundamental principle governing decisions made pursuant to its provisions. A trial court’s determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Curole v. Curole, 2002-1891 (La.10/15/02), 828 So.2d 1094. Pursuant to La. R.S. 9:355.13, the relocating parent has the burden of proving that the proposed relocation is: (1) made in good faith; and (2) in the best interest of the child. Louisiana R.S. 9:355.12 sets forth eleven factors the court must consider in determining whether the proposed relocation is in the best interest of the child. The factors set forth in the statute are as follows:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
13(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

Although R.S. 9:355.12 mandates that all the listed factors be considered, it does not require the court to give preferential consideration to any certain factor or factors. Curóle, supra.

The trial court is vested with great discretion in matters of child custody and visitation; its determination is entitled to great weight and will not be disturbed absent a clear showing of abuse of that discretion. Id.; Payne v. Payne, 41,049 (La.App.2d Cir.05/19/06), 930 So.2d 1181, writ denied, 2006-1871 (La.08/09/06), 935 So.2d 130.

1¿Here, the trial court carefully considered the factors required by La. R.S. 9:355.12. In making its determination, the trial court noted that this case was “close, but the burden of proof is on [Stacy].” We agree with the trial court that this is a close case, and although the same conclusion might not have been reached by this court, we cannot say that the trial court’s ultimate determination was an abuse of discretion.

Most of Stacy’s assignments of error address the factors set out in La. R.S. 9:355.12, and the trial court’s determination regarding those factors. She raises the following issues which relate to the statutory relocation factors:

1) Whether the trial court erred in failing to consider that Stacy Parker Card had always been the primary caretaker for the children;
2) Whether the trial court erred by placing little to no emphasis on the preference of the children, despite their ages and levels of maturity;
3) Whether the trial court committed manifest error by ignoring and/or failing to consider Kevin Parker’s lack of contact with the children;
4) Whether the trial court committed manifest error by ignoring and/or failing to consider Kevin’s failure to fulfill his financial obligations to Stacy;
5) Whether the trial court committed manifest error by ignoring and/or failing to consider Kevin’s history of substance abuse; and,
6) Whether the trial court committed manifest error in its ruling not to allow the relocation when the facts and evidence showed that the relocation was in their best interest.

In the instant case, the trial court performed a very thorough analysis of the evidence in accordance with the factors set forth in La. R.S. 9:355.12 before |,finding that the relocation would not be in the children’s best interest. The trial court noted that Stacy had a significant impact on the children, probably more than Kevin; however, Kevin had not been an absent father and Stacy admitted he had helped with a lot of things. Although Stacy argues that the trial court erred in failing to note Kevin’s lack of contact with the children, the record does not bear this out. Kevin may not have been the most hands-on parent, but the record shows that he certainly maintained contact and presence in the children’s lives.

Pertaining to Stacy’s claim regarding Kevin’s history of substance abuse, Kevin stated that it had been over five years since he had used drugs. The trial court noted Kevin’s previous drug use, but did not weigh it too heavily against Kevin, noting that many people have had a history of drug use. While we do not take lightly Kevin’s past drug usage, it is apparent that he has gone several years without using again — Stacy offered no evidence that he was currently using drugs, and Kevin testified he had not used drugs in five years. Furthermore, that particular factor under the relocation statute calls for consideration of rehabilitation, and it appears that Kevin is successfully fighting his addiction. Notably, that same factor in La. R.S. 9:355.12 requires notice of “violence by either parent.” In December 2003, Stacy pled guilty to simple battery on Kevin.

. The trial court also considered other factors, not noted as error by Stacy, in determining that relocation would not be in the best interest of the children. It considered the impact the relocation would have on the children’s educational needs, particularly “J,” who the record reflects has | fiSome minor learning disabilities. As the trial court noted, if “J” remains with Kevin, he will be in a known educational environment. Notably, Stacy’s evidence regarding the educational opportunities for the children in McCool was scant — mostly consisting of her opinion of the schools with no actual evidence. With the burden of proof on her, she certainly failed to show that relocation to this small, Mississippi community would better serve the children’s, specifically “J’s”, educational needs.

Regarding the emotional needs of the children, the trial court noted Kevin has been married for two years and in a stable relationship with his current wife for five years. On the other hand, Stacy and her new husband are each other’s fourth spouse, and at the time of the trial (which occurred shortly after their marriage), they had only known each other for six months. In fact, Stacy had become engaged after only two meetings with James. Also weighing toward the emotional needs of the children is that all of their relatives live in their current locale, whereas they would have no family support in Mississippi. Further, we also view as significant the trial court’s emphasis on the feasibility of preserving a good relationship between the nonrelocating parent and the children. As the trial court noted, that relationship would certainly be strained, because Kevin would be much farther away from his children — through no choice of his.

Additionally, we recognize the significance of the preference stated by the two children and can appreciate Stacy’s argument that the trial court failed to put enough emphasis on their preference. “J” stated he wanted to live with his mother. “K” also wanted to live with her mother; however, she |7did not want to leave her community. Both children stated a reluctance to leave their families in Louisiana. Neither child noted any aversion to living with their father and his wife nor expressed any ill feelings towards toward either of them. These children are 18 and 12 years old — ages that are old enough to make a mature decision such as the one at hand. However, the trial court is under no duty to weigh any one factor heavier than another, and in this case, in light of all the other considerations, particularly the stability of the parents, we do not believe the trial court erred in denying the relocation, even in light of the children’s preference.

We conclude that the trial court did not err in any of its conclusions that Stacy argues were error. In fact, all of those factors pointed to as error by Stacy were discretionary, and we see no abuse by the trial court relating to any of those factors. As noted by the trial court, the determination in this case was a close one; however, the burden of proof was on Stacy to show that relocation was in the best interest of the children. The trial court did not err in concluding that Stacy failed to meet her burden. We must also consider that Stacy’s primary reason for relocating to McCool, Mississippi was that her new husband lived there, whereas Kevin’s reason for opposing relocation was that he wanted to maintain regular contact with his children.

Finally, Stacy argues that the trial court erred in not allowing her to testify regarding a protective order Kevin had sought four years prior to the current matter, which protective order proceeding was ultimately dismissed. Stacy maintains that Kevin’s filing shows his unwillingness to co-parent with her, as well as demonstrates bad decision-making where the children |8are concerned. At the trial of this matter, it was argued that the testimony on the subject showed Kevin’s inability to foster a close and loving relationship between Stacy and the children. The trial court did not allow Stacy to testify about the protective order, noting that it was “just too far back.” The record does not reflect that counsel for Stacy objected to the trial court’s ruling. Failure to object deprives the trial court of the opportunity to correct a contested ruling and constitutes waiver of the issue on appeal. La. C.C.P. art. 1635; Martin v. Martin, 44,020 (La.App.2d Cir.12/03/08), 3 So.3d 512. Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. McWilliams v. Courtney, 41,725 (La.App.2d Cir.12/13/06), 945 So.2d 242. So considering, we will not address this issue on appeal.

Conclusion

For the foregoing reasons, the judgment of the trial court against Stacy Parker Card and in favor of Kevin Parker is affirmed, with all costs of this appeal assessed to Stacy Parker Card.

AFFIRMED.


text:
    Calvin GREELY, Plaintiff-Appellant, v. OAG PROPERTIES, LLC, et al., Defendants-Appellees.
    No. 44,240-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Street & Street, by C. Daniel Street, Monroe, for Plaintiff-Appellant.
    Hudson, Potts & Bernstein, LLP, by Charles W. Herold, III, Monroe, Donald H. Zeigler, III, for Defendants-Appellees OAG Properties, LLC and State Farm Fire & Casualty Insurance Company.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

| Rn this personal injury case arising from a trip and fall on the premises of the defendant/landlord, the plaintiff/lessee appeals from a summary judgment dismissing his suit with prejudice. We affirm.

FACTS

The plaintiff, Calvin Greely, and his mother, JoAnn Greely, leased a residence on Georgia Street in Monroe from the defendant, OAG Properties, LLC [“OAG”]. The lease agreement they signed, which was for a period of one year from August 2005 to July 2006, included a provision requiring the lessee to maintain the premises. The lease agreement also contained an indemnification clause releasing the landlord from liability for any damage or injury to the lessee or lessee’s family and requiring the lessee to hold the landlord harmless from any and all claims. In relevant part, the lease stated:

11. MAINTENANCE AND REPAIR; RULES. Lessee will, at its sole expense, keep and maintain the Premises and appurtenances in good and sanitary condition and repair during the term of this Agreement and any renewal thereof....
18. INDEMNIFICATION. Lessor shall not be liable for any damage or injury of or to the Lessee, Lessee’s family, guests, invitees, agents or employees or to any person entering the Premises or the building of which the Premises are a part or to goods or equipment, or in the structure or equipment of the structure of which the Premises are a part, and Lessee hereby agrees to indemnify, defend and hold Lessor harmless from any and all claims or assertions of every kind and nature.

12The plaintiff and his mother signed the unit inspection report on September 15, 2005, after inspecting the premises; it included notations that all portions of the yard were acceptable.

On February 27, 2006, the plaintiff and his brother Robert were cleaning up the backyard when the plaintiff tripped on the stump of a sapling. He fell face down on a concrete slab and hit his head. The concrete slab was located behind the house; the yard debris he had been picking up was on the far side of the slab away from the house. The plaintiff was taken to the hospital by ambulance where he received more than 30 stitches for a cut over his left eye. Years before this accident, the plaintiff had a brain aneurysm which was removed; following that surgery, he began suffering seizures. At the time of the accident, he was still taking daily doses of medication for these seizures. He and his mother stated that he had been free of seizures for four years before his February 2006 fall; however, they testified in their depositions that after this head injury, he began having seizures again.

On February 21, 2007, the plaintiff filed suit against OAG, alleging that it had “apparently cut saplings which had grown in the yard but had cut them so as to leave a stump high enough to cause a trip hazard to any person walking in the yard.” The plaintiff accused OAG of “maintaining an unreasonably dangerous condition in the form of a sapling stump presenting a trip hazard in the yard of its residence intended for lease.” Additionally, the plaintiff asserted that OAG failed to warn him about the presence of the stump or to inspect its premise so as to discover dangerous conditions | .¡before leasing it, and that it left the concrete slab in the yard, which also posed a hazard. The plaintiff asserted that his injuries included a concussion, headaches and disfigurement. In his first supplemental and amending petition, the plaintiff added OAG’s insurer, State Farm Fire and Casualty Company, as a defendant.

In their answer, the defendants asserted that the accident was the sole fault of the plaintiff. They denied that there was any defect or hazard on the premises. They also stated that the sapling stumps were open and obvious to everyone, including the plaintiff who had lived there for six months prior to the incident and knew or should have known of their presence. Finally, they pled comparative fault as an affirmative defense and requested a jury trial.

In May 2008, the defendants filed a motion for summary judgment. Attached as exhibits in support of the motion were copies of the lease and the unit inspection report; photos of the area taken about a week after the plaintiff was injured; and the affidavit of Hamid R. “Tony” Sanaie, a managing member of OAG who served as the landlord. He stated that in August 2005, he cleaned the yard by cutting sapling tops and removing all tops, cuttings, debris and leaves as required by Section 8 Monroe Housing Authority. He further stated that the sapling stumps that remained were readily visible as the ground cover was cleared away and that he sprayed the area with Round-Up®. At the time of the unit inspection on September 15, 2005, he stated that the sapling stumps were clearly visible. Mr. Sanaie attested that he never received any complaints from the plaintiff or his |4mother about the area where the plaintiff fell. Also submitted were the depositions of the plaintiff, his mother, and his brother Robert.

The defendants argued that the lease signed by the plaintiff before he moved into the premises in September 2005 contained an indemnification clause and a provision by which the lessee undertook to maintain the premises. They noted that the unit inspection report was signed by the plaintiff and his mother on September 15, 2005, after inspecting the premises with Mr. Sanaie. The defendants contended that the tree stump did not present an unreasonable risk of harm and that the plaintiff had a duty to be aware of his surroundings. .

The plaintiff filed an opposition to the motion for summary judgment. Attached to the opposition were his affidavit and four photos. He asserted that the stump was about five inches high and one and three quarter inches wide. He stated that the landlord told him he was going to clean up that area and that he did not know the stump was there because it was covered with leaves.

The motion for summary judgment was argued before the trial court and taken under advisement in August 2008. Subsequently, the trial court granted the motion without reasons; judgment in conformity with this ruling was signed on October 3, 2008.

The plaintiff appeals.

_kLAW

Summary judgment

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for 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. C.C.P. art. 966(B).

The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2). 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).

Trip and fall

Under Louisiana law, the owner/lessor is generally hable for the condition of the leased premises. Allstate Insurance Company v. Veninata, |fi2006-1641 (La.App. 4th Cir.11/7/07), 971 So.2d 420, writ denied, 2008-0067 (La.3/7/08), 977 So.2d 918; McCloud v. Housing Authority of New Orleans, 2008-0094 (La. App. 4th Cir.6/11/08), 987 So.2d 360. However, a lessor may shift responsibilities to a lessee, including liability for injury resulting from defects in the property, because contracting parties can waive warranties and obligations in the codal articles and statutes, so long as such waivers do not affect the rights of others and do not harm the public good. Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La. 1981); Veninata, supra.

Liability for a thing under one’s ownership or custody, such as a tree, is governed by La. C.C. art. 2317.1. An essential element for this liability is that a ruin, vice or defect existed that created an unreasonable risk of harm. Frazier v. Bryant, 41,978 (La.App.2d Cir.4/4/07), 954 So.2d 349. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Reed v. Walr-Mart Stores, Inc., 1997-1174 (La.3/4/98), 708 So.2d 362; Johnson v. City of Monroe, 38,388 (La.App.2d Cir.4/7/04), 870 So.2d 1105, writ denied, 2004-1130 (La.6/25/04), 876 So.2d 843.

A landowner is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of | Reasonable care or was as obvious to a visitor as it was to the landowner. McCloud, supra.

La. C.C. art. 2696 states:

The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose.
This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee.

La. C.C. art. 2699 states:

The warranty provided in the preceding Articles may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee. Nevertheless, a waiver of warranty is ineffective:
(1) To the extent it pertains to vices or defects of which the lessee did not know and the lessor knew or should have known;
(2) To the extent it is contrary to the provisions of Article 2004; or
(3)In a residential or consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety.

La. R.S. 9:3221 provides:

Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

Where the language of the provision is clear and unambiguous, the law does not require that a transfer of liability provision, pursuant to La. R.S. 9:3221, be brought to the plaintiffs attention or that it be explained to him. Ford v. Bienvenu, 2000-2376 (LaApp. 4th Cir.8/29/01), 804 So.2d 64, writ denied, 2001-2688 (La.12/14/01), 804 So.2d 639.

Signatures on an agreement are not mere ornaments. A person who signs a written agreement is presumed to know its contents and cannot avoid its obligations by claiming that he did not read it, that he did not understand it, or that it was not explained. Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873 (La. App.2d Cir.4/19/06), 927 So.2d 677, writ denied, 2006-1170 (La.9/15/06), 936 So.2d 1271.

DISCUSSION

The plaintiff contends that the landlord created an unreasonably dangerous condition by cutting the saplings next to an unused concrete slab. Because the stump was allegedly covered with leaves, the plaintiff asserts that the danger was not obvious. As to the indemnification provision of the lease, the plaintiff argues that since that provision was not initialed by the lessees, there is no evidence that the provision was brought to their attention, as required by La. C.C. art. 2699. He also claims that the indemnification provision, which is authorized under La. R.S. 9:3221, has no application here because the landlord created the dangerous condition and knew of it prior to the lease.

On appeal, the defendants observe that the plaintiff did not claim that the indemnification clause was ineffective before the trial court and that, Reven now, he does not cite authority to support his contention that the clause had to be initialed to be effective. The defendants argue that a person is presumed to know the contents of what he signs and that the indemnification clause is enforceable under La. R.S. 9:3221.

The defendants also maintain that the trial court correctly concluded that the plaintiff would not be able to meet his burden of proof under La. R.S. 9:3221, thus mandating the granting of summary judgment. They assert that the plaintiff and his mother assumed the responsibility of maintaining the yard during the lease term. Thus, if the alleged defect was less visible at the time of the accident, the blame for that fell upon them, not the defendants. According to the defendants, the tree stump did not present an unreasonable risk of harm because it was an open and obvious condition that the plaintiff knew existed. Also, the defendants contend that they did not create any condition of leaves covering the stumps or have notice of the same.

In Wood v. Cambridge Mutual Fire Insurance Company, 486 So.2d 1129 (La. App. 2d Cir.1986), this court observed:

The yard of a residence is not intended or expected to have a completely “tabletop” smooth surface. Yards usually present minor hazards or conditions which could cause an unobservant and inattentive person to trip and fall. Yards can and usually do have irregularities and minor obstacles such as depressions, drains, faucets, trees, shrubs, and tree roots and are not intended or designed for use as a walkway without observation and care as are sidewalks and designated walkways. Such conditions do not amount to defects that present an unreasonable risk of injury to tenants.

We agree with the defendants’ position. The stump, in and of itself, was not a defective condition. It was located on the far side of a concrete |1ftslab, behind and away from the house. When the landlord gave the premises over to the tenants to be used and maintained by them, the sapling was newly trimmed and the area around it had been cleared. The stump was open and visible to a reasonably observant tenant. The depositions of the plaintiff and his mother showed that they knew that the landlord had cut down the shrubbery and vegetation in the yard in the area where the plaintiff fell. They entered into the lease and inspected the yard in September; if leaves came to conceal the stump by the time of the accident in February, thereby making it potentially hazardous or unreasonably dangerous, the fault for that condition lies solely with the tenants for neglecting their responsibly to maintain the yard. As the landlord neither created the alleged hazard nor had any notice of its existence, the lease provision authorized by La. R.S. 9:3221 is effective.

Like the trial court, we find that summary judgment was appropriate under the facts of this case. Accordingly, we affirm the trial court judgment dismissing the plaintiffs suit.

CONCLUSION

The trial court ruling which granted summary judgment in favor of the defendants and dismissed the plaintiffs suit with prejudice is affirmed. Costs of this appeal are assessed to the appellant, Calvin Greely.

AFFIRMED.

      . While the lease named Ms. Greely as the "Lessee," it also specified that the premises were to be occupied by “Lessee and Lessee’s immediate family" which was to consist of her and Calvin exclusively; Calvin signed both the lease and the related unit inspection report.

      . Comment (h) to La. C.C. art. 2699 provides, in pertinent part:
      Civil Code Article 2699 (Rev.2004) deals with the contractual obligations between the parties rather than with the delictual or quasi-delictual obligations that one party may incur vis a vis the other party, or vis a vis third parties. Consequently, Civil Code Article 2699 (Rev.2004) does not supersede the provisions of R.S. 9:3221 which provides for delictual or quasi-delictual obligations incurred as a result of injury occurring in the leased premises. Section 3 of this Act amends and reenacts R.S. 9:3221 to provide that the amendment and reenactment of Civil Code Article 2699 does not change the law of R.S. 9:3221.

      . The deposition testimony of the tenants indicated their awareness of their obligation to maintain the yard. Obviously the lease began at a time when leaves generally are not yet falling, therefore, making the stump visible; however, by February, this seasonal change had occurred.