author: WILLIAMS, J.

text:
    SUCCESSION OF Ervin BYRD.
    No. 48,996-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 11, 2014.
    Carl H. Franklin, Shreveport, for Appellant, Olivia B. Davis.
    Walter D. White, Shreveport, for Appel-lees, Alice Mae Jones Fulcher, Charles Etta Jones Jack, Norine Williams Wilson, Mary Louise Jones Woods.
    Before WILLIAMS, LOLLEY and PITMAN, JJ.
   WILLIAMS, J.

11 Olivia B. Davis, the administrator of the Succession of Ervin Byrd, appeals a district court’s grant of summary judgment in favor of intervenors, Charles Etta Jones Jack, Alice Mae Jones Fulcher, Mary Louise Jones Woods and Norene Williams Wilson. For the following reasons, we affirm.

FACTS

Ervin Byrd (“Ervin”) died intestate on July 14, 1965. On February 8, 2011, his granddaughter, Olivia B. Davis (“Davis”), filed a petition to be appointed administrator of his succession; she was subsequently appointed as such. Thereafter, Davis executed a sworn affidavit of death and heirship, in which she attested that Ervin had been “married twice, first to Lena Grandway, who is also deceased.” She also attested that her deceased father, Luther Byrd, was the only child “born of the union” between Ervin and Lena. She further attested that Ervin “did not have any other children nor did [he] adopt anyone[.]”

On April 19, 2011, Davis, as administrator of Ervin’s succession, filed a “Petition for Authority to Enter a Mineral Lease” with Chesapeake Louisiana, L.P., with regard to certain property owned by the succession. An advertisement of the application to grant the lease was published in The Times on April 11, 2011, and no opposition was filed thereto. Thus, the district court signed the order granting Davis the authority to enter into the 12lease.

On September 26, 2012, Charles Etta Jones Jack, Alice Mae Jones Fulcher, Mary Louise Jones Woods and Norene Williams Wilson intervened in the Succession of Ervin Byrd by filing a “Petition for Intervention and Rule to Show Cause.” They alleged that their father, Robert C. Byrd (“Robert”), was the son of Ervin Byrd, and they did not learn of the succession proceedings until September 14, 2012. They also alleged that Robert died intestate on November 30, 1987, and the judgment of possession in Robert’s succession, which was signed and recorded on February 11, 2005, placed intervenors in possession of “[a]ll of Robert C. Byrd’s interest in the unopened Succession of Ervin Byrd,” including the property described in the current (Ervin’s) succession. Interve-nors requested “the issuance of an injunction preventing any distribution of any property belonging to the decedent, including mineral proceeds of any kind, until the claims of Petitioners herein, as heirs of the decedent ERVIN BYRD, [are] determined[.]”

Following a hearing, the district court granted the rule and ordered that Davis be enjoined “from making any distribution of any property unto |3any heirs of the decedent, ERVIN BYRD, pending the outcome of these proceedings.” Davis was also ordered to disclose to intervenors “an inventory of all property, and a complete disclosure of all previous proceeds and distributions of property to the heirs, including, but not limited to, bonus and/or royalty payments[.]”

Subsequently, intervenors moved for summary judgment, seeking to be recognized “as the descendants of Ervin Byrd, through their father, Robert C. Byrd.” In support of the motion, intervenors submitted certain documents, including (1) Robert’s death certifícate, which listed Ervin Byrd as his father and Agnes McKinney as his mother; (2) a sworn affidavit executed by Mary Louise Jones Woods, in which she attested that she and her siblings often visited with their grandfather, had attended family gatherings and had always referred to Ervin as their grandfather; (3) an affidavit of possession executed by Robert, stating that he was the grandson of Sam and Emma Byrd (Ervin’s parents); (4) a copy of a legal file showing that Robert had unsuccessfully attempted to open Ervin’s succession; (5) a copy of a legal file showing that intervenor, Mary Woods, had unsuccessfully attempted to open Ervin’s succession.

In response to the motion for summary judgment, Davis argued that “[there] is no direct evidence to support Intervenors’ contentions that Robert C. Byrd is the child of Ervin Byrd.” Additionally, she filed an exception of peremption, arguing that Ervin did not formally acknowledge Robert during his lifetime and that Robert did not establish filiation within one year of 14Ervin’s death.

Following a hearing, the district court granted summary judgment in favor of intervenors, and ordered Davis “to amend the Affidavit of Death and Heirship of the Intestate Succession of Ervin Byrd, to show that Robert C. Byrd was one of the two children of Ervin Byrd, and to show that Intervenors are all of the children of the deceased, Robert C. Byrd, and to administer the succession in accordance with the laws of representation and intestacy.” In its reasons for judgment, the trial court stated:

The Court deems some of the affidavits presented by each side to contain both speculative opinions and, in some respects, hearsay.
Of the above items of summary judgment record, the Court deems the certified Death Certificate to carry significant weight. La. R.S. 40:42 provides that original certificates in the Division of Vital Records of the State Registrar of Vital Statistics shall be admissible as prima facie evidence of their contents. LCE Art. 803(9) deems records of vital statistics as ‘records or data compilations in any birth, filiation, adoption or death.’
Davis appeals.

DISCUSSION

Davis contends the district court erred in granting summary judgment in favor of intervenors. She argues that the evidence submitted, including Robert’s death certificate, was insufficient to establish that in-tervenors are the heirs of Ervin Byrd. She also argues that the court erred in giving “significant weight” to the death certificate.

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

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

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

In the instant case, Robert was born out of wedlock on September 6, 1912; Ervin died intestate in 1965. At the time of Robert’s birth and Ervin’s subsequent death, former LSA-C.C. art. 919 (enacted in 1908 and repealed in 1981) specifically barred “illegitimate” children from inheriting from their alleged natural fathers in the same manner as “legitimate” descendants, ascendants, collateral relatives and surviving spouses. The laws which discriminated against illegitimate children were declared unconstitutional by the United States Supreme Court in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), and by the Louisiana Supreme Court in Succession of Brown, 388 So.2d 1151 (La.1980); however, those rulings are given only limited retroactive effect to January 1,1975, the effective date of the Louisiana Constitution of 1974. See, Succession of Clivens, 426 So.2d 585 (La.1982); Harlaux v. Harlaux, 426 So.2d 602 (La.1983), cert. denied, 464 U.S. 816, 104 S.Ct. 74, 78 L.Ed.2d 86 (1983).

Thereafter, from 1980 until 2005, Louisiana law permitted children born out of wedlock to prove paternal descent by “informal acknowledgment.” For example, former LSA-C.C. art. 209 provided that proof of “paternal descent” could be made “[b]y all kinds of private writings, in which the father may have acknowledged the ‘bastard’ as his child, or may have called him so;” or “[w]hen the father, either in public or in private, |7has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such[.]”

We have conducted a de novo review of this record in its entirety. As stated above, in support of the motion for summary judgment, intervenors submitted the documents from the Succession of Robert Byrd and the death certificate of Robert C. Byrd. The death certificate listed Ervin Byrd as Robert’s father and Agnes McKinney as his mother.

Except for delayed or altered certificates, every original certificate on file in the vital records registry is prima facie evidence of the facts therein stated. LSA-R.S. 40:42(A). Records or data compilations of death, and any record included within the Louisiana Vital Statistics Laws, are not excluded by the hearsay rule. LSA-C.E. art. 803(9).

Thus, pursuant to LSA-R.S. 40:42(A), Robert’s death certificate, on which Ervin was named as his father, was sufficient to establish a prima facie case that Ervin was Robert’s father. Thereafter, it was incumbent upon Davis, as the plaintiff, to rebut the veracity of the certificate. Davis did not do so.

Rather, Davis introduced affidavits executed by five of her siblings and her, in which they attested that their father was Ervin’s only child, and, to their knowledge, Ervin never acknowledged Robert. However, during their deposition testimony, Davis and her siblings admitted that Robert lived on the Byrd family land and that they referred to Robert as “Uncle Booger.” One sibling testified that he had heard Ervin refer to Robert as “son.” Two of the siblings also admitted that Robert and his children attended family [ ^gatherings.

It is undisputed that Robert was given Ervin’s last name, rather than that of his mother. Additionally, the evidence included the above referenced deposition testimony from various family members which indicates that Robert lived on the Byrd family’s acreage, land that previously was owned by his grandparents, Sam and Emma Byrd. The evidence also showed that Davis and her siblings referred to Robert as “uncle.” Moreover, in 1982, Robert executed an affidavit, attesting that he was the grandson of Sam and Emma Byrd. The facts in the affidavit were also attested to by Lula Byrd, the spouse of Ervin’s brother, Moses Byrd. However, more importantly, as stated above, interve-nors introduced into evidence the judgment of possession in the Succession of Robert Byrd, which placed them into possession of Robert’s interest in the “opened Succession of Ervin Byrd.”

Accordingly, under the facts of this case, we find that the district court did not err in granting summary judgment in favor of intervenors. This assignment lacks merit.

Davis also contends the district court erred in failing to address her exception of prescription. She argues that the interve-nors’ claim has prescribed because no action to establish filiation was filed within one year of Ervin’s death.

In the Succession of Robert Byrd, inter-venors obtained a “Judgment of Possession” on February 11, 2005. This judgment placed them in possession of “[a]ll of Robert C. Byrd’s interest in the unopened Succession of Ervin Byrd[.]” There is no evidence in the current record to establish that |9Davis or any of her siblings ever challenged that judgment. Provided she could prove standing, Davis had two years from the date of the finality of the judgment of possession in Robert’s succession to challenge the judgment. This record does not show that she ever attempted to do so. Thus, that seven-year-old final judgment constitutes prim a facie evidence that Robert Byrd had an interest in the succession of his father, Ervin. Interve-nors have now been placed in possession of that interest. The judgment of possession cannot be collaterally attacked in these proceedings. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment, granting summary judgment in favor of intervenors, Charles Etta Jones Jack, Alice Mae Jones Fulcher, Mary Louise Jones Woods and Norene Williams Wilson, is affirmed. Costs of this appeal are assessed to Olivia Davis, as administrator of the Estate of Ervin Byrd.

ImAFFIRMED.

      . Ervin's second wife was Rosie Byrd (deceased). No children were born of that marriage.

      . The affidavit was co-executed by Davis’ husband, Arthur Davis. Subsequently, during her deposition testimony, Olivia admitted that she and Arthur were not married until approximately nine years after Ervin's death. Therefore, he was not acquainted with Ervin and had no personal knowledge of the facts to which he attested.

      . Attached to intervenors’ petition was the Affidavit of Death and Heirship that had been filed in Robert’s succession. The affidavit provided in part:
      ROBERT C. BYRD was the son of ERVIN BYRD and AGNES MCKINNEY.

      ERVIN BYRD was married twice. The first marriage to Lena Grandway, who is deceased. One child was born of that union, namely Luther Byrd, who is deceased. ERVIN BYRD was then married to Rosie Byrd, who is deceased. No children were bom of that marriage. ROBERT C. BYRD was born of the union of ERVIN BYRD and Agnes McKinney. To the knowledge of Affi-ants, ERVIN BYRD had no other children.

      . The record, with regard to the attempts to open the succession, contains multiple letters addressed to the heirs of Luther Byrd. However, the record does not indicate whether Luther Byrd’s heirs responded to the letters.

      . While Brown was pending in the supreme court, the legislature passed Act No. 549 of 1980, amending LSA-C.C. arts. 208 and 209 with regard to proof of filiation of unacknowledged illegitimate children; these articles were again amended in 1981. In effect, the articles gave unacknowledged illegitimate children, who had been prohibited from bringing an action to prove filiation, until September 11, 1982, to file such actions. If such lawsuit had not been filed prior to that date, "filiation may not thereafter be established.”

      . The judgment of possession rendered in a succession proceeding shall be prima facie evidence of the relationship to the deceased of the parties recognized therein, as heir, legatee, surviving spouse in community, or usu-fructuary, as the case may be, and of their right to the possession of the estate of the deceased. LSA-C.C.P. art. 3062.

      . LSA-R.S. 9:5630 provides, in pertinent part:
      A. An action by a person who is a successor of a deceased person, and who has not been recognized as such in the judgment of possession rendered by a court of competent jurisdiction, to assert an interest in an immovable formerly owned by the deceased, against a third person who has acquired an interest in the immovable by onerous title from a person recognized as an heir or legatee of the deceased in the judgment of possession, or his successors, is prescribed in two years from the date of the finality of the judgment of possession.


source: Caselaw Access Project

author: AMY, Judge. PICKETT, J.,

license: Public Domain

text:
    Livingston C. GUIDRY, et ux. v. Kysha Lashane BERNARD, et al.
    No. 14-234.
    Court of Appeal of Louisiana, Third Circuit.
    June 18, 2014.

      Thomas R. Hightower, Jr., A Professional Law Corporation, Lafayette, LA, for Defendant/Appellee, Shelter Mutual Insurance Company Livingston Guidry.
    Glenn John Armentor, J. Christian Lewis, The Glenn Armentor Law Corporation, Lafayette, LA, for Defendant/Appellant, Kysha Lashane Bernard.
    Nicholas Gachassin, Jr., Gary Delahous-saye, Gachassin Law Firm, Lafayette, LA, for Plaintiffs/Appellees, Livingston C. Gui-dry, Phena Guidry.
    Michael J. Breaux, Lafayette, LA, for Defendant/Appellee, Shelter Mutual Insurance Company as Underinsured Motorist Carrier of Phena Guidry.
    Ian A. Macdonald, Jones Walker, Lafayette, LA, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

I,The plaintiffs and defendants-in-recon-vention brought this action, seeking damages for injuries allegedly suffered in an automobile accident. The defendant asserted that the accident was the plaintiff-driver’s fault and brought a reconventional demand, seeking damages for her injuries. The trial court found that the determinative issue was which party possessed the green light and that, based on the evidence offered at trial, she could not discern which party had the green light. Accordingly, the trial court entered judgment denying both the plaintiffs’ claims and the defendant’s claims. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The parties to this matter were involved in an automobile accident at the intersection of Carmel Drive and Louisiana Avenue in Lafayette, Louisiana. The plaintiffs and defendants-in-reconvention, Livingston C. Guidry and Phena Guidry, were, respectively, the driver and passenger in a white Ford truck. The defendant and plaintiff-in-reconvention, Kysha Lashane Bernard, was the driver of a red Toyota sedan. According to their testimony and argument, the Guidrys alleged that Mr. Guidry turned right on to Louisiana Avenue from Carmel Drive on a green light and that the accident occurred past the intersection when Ms. Bernard changed lanes and collided with their vehicle. According to the record, after the Guidrys brought suit against Ms. Bernard and her insurer, Ms. Bernard filed a reconventional demand against the Guidrys and several insurers, asserting that the | ¡.Guidrys were at fault in the accident and that they were hable for her injuries. Ms. Bernard contends that she had the green light and that Mr. Guidry failed to yield and turned in front of her.

After hearing evidence on liability, the trial court found that the accident occurred in the intersection and that the determinative issue was whether Mr. Guidry or Ms. Bernard had the green light. The record indicates that Mr. Guidry and Ms. Bernard both testified that they possessed the green light when they proceeded into the intersection. The trial court noted that, although Mr. Guidry and Ms. Bernard “both seem to be credible people[,]” they had “diametrically opposed stories.” Further, the trial court observed that there was no corroboration of either Mr. Guidry or Ms. Bernard’s testimonies. The trial court ultimately stated:

I find both parties are very credible. And my job is not to flip a coin. And the law says, if the scales stay evenly balanced, there is no recovery. And that’s what the situation is in the case. Neither side can prevail.
And that’s not to say — Somebody definitely had the red light. But, based on the evidence, I cannot discern who that person is. And, therefore, I cannot — I cannot find recovery for either party in this case.

Accordingly, the trial court entered judgment dismissing all of the parties’ claims.

Ms. Bernard appeals, questioning the trial court’s evidentiary findings and seeking an award of damages.

Discussion

Affidavit of Daniel Davis

One of Ms. Bernard’s arguments concerns the trial court’s decision not to admit an affidavit signed by Daniel Davis. More specifically, Ms. Bernard | ¡¡complains that “[t]he trial court clearly erred in not admitting and considering Mr. Davis’s sworn independent testimony in determining liability in Ms. Bernard’s favor.”

The record indicates that Ms. Bernard subpoenaed Mr. Davis to testify at the trial. Although Mr. Davis was personally served with the subpoena, he did not appear at trial. Ms. Bernard attempted to submit Mr. Davis’ previously-executed affidavit into evidence on the basis that, by voluntarily refusing to comply with the subpoena, Mr. Davis was “unavailable.” However, the trial court rejected Ms. Bernard’s argument that Mr. Davis was “unavailable” and offered to issue a writ of attachment and have Mr. Davis “pick[ed] up” by the sheriff. However, Ms. Bernard declined the trial court’s offer and instead proffered Mr. Davis’ affidavit.

The trial court’s determination regarding whether evidence is admissible or inadmissible will not be overturned absent clear error. Folse v. Folse, 98-1976 (La.6/29/99), 738 So.2d 1040. Louisiana Code of Evidence Article 804(A) states, in relevant part, that:

[A] declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A de-clarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

| ¿Further, Article 804 provides several exceptions to the hearsay rule and provides that:

In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates and the proponent of the statement makes known in writing to the adverse party and to the court his intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. If, under the circumstances of a particular case, giving of this notice was not practicable or failure to give notice is found by the court to have been excusable, the court may authorize a delayed notice to be given, and in that event the opposing party is entitled to a recess, continuance, or other appropriate relief sufficient to enable him to prepare to meet the evidence.

La.Code Evid. art. 804(B)(6).

The party asserting the admissibility of the statement bears the burden of proving the unavailability of the declarant. Finch v. ATC/Vancom Mgmt. Servs. Ltd. P’ship, 09-483 (La.App. 5 Cir. 1/26/10), 33 So.3d 215. In Driscoll v. Stucker, 04-589, p. 24 (La.1/19/05), 893 So.2d 32, 50, the supreme court stated that “a witness is not unavailable for purposes of the exception to the confrontation requirement unless the authorities have made a diligent and good faith effort to obtain his presence at trial.” See also Finch, 33 So.3d 215. Additionally, in order for evidence to be admissible under the “catchall” exception in Article 804(B)(6), it must have circumstantial guarantees of trustworthiness and there must be a necessity for its introduction in a particular case. Trascher v. Territo, 11-2093 (La.5/8/12), 89 So.3d 357 (quoting Buckbee v. United Gas Pipe Line Co., 561 So.2d 76 (La.1990)).

| fiOur review of the record indicates that, although Mr. Davis was served, he failed to appear at trial. The trial court offered to issue a writ of attachment and have the sheriff locate Mr. Davis. That offer was refused by Ms. Bernard. Thus, there is sufficient evidence in the record to support a conclusion that, by not availing herself of the trial court’s offer to have Mr. Davis brought to court, Ms. Bernard failed to make a diligent and good faith effort to obtain Mr. Davis’ presence at trial. Accordingly, given the trial court’s discretion in deciding whether to admit evidence, we find no error in the trial court’s decision to exclude Mr. Davis’ affidavit.

Liability

Ms. Bernard also argues that the trial court erred in finding that the evidence was in equipoise. Ms. Bernard argues that the supreme court has expressed disapproval of trial courts’ findings that evidence is in equipoise and offers reasons why liability should be determined in her favor and against the Guidrys.

The trial court’s factual findings are subject to the manifest error standard of review, and, in order for an appellate court to reverse the trial court’s factual finding, the appellate court must review the record in its entirety and make a determination that there is no reasonable factual basis for the finding and the record establishes that the fact finder is clearly wrong or manifestly erroneous. Dotie v. Safeway Ins. Co. of La., 46,840 (La.App. 2 Cir. 8/14/12), 87 So.3d 942 (citing Stobart v. State, through DOTD, 617 So.2d 880 (La.1993)). Further, the appellate court should not reweigh the evidence or substitute its own factual findings for those of the trial court just because it would have decided the case differently. Id.

Un Miller v. Leonard, 588 So.2d 79, 81 (La.1991) (citations omitted), the supreme court discussed the burden of proof in negligence cases, including those cases where the defendant brings a reconven-tional demand, stating:

In civil suits the plaintiff bears the burden of proving negligence of the defendant by a preponderance of the evidence. Moreover, a plaintiff-in-recon-vention bears the burden of establishing his claim in the same manner as the plaintiff in the main demand. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the entirety of the evidence establishes the fact or causation sought to be proved is more probable than not. If the party bearing the burden of proof fails to satisfy his burden of proof by a preponderance of the evidence, his case fails to outweigh his adversary’s case and he necessarily loses.

In Miller, the supreme court addressed those situations where the trial court determines that the evidence offered at trial is balanced. Although the supreme court found that the trial court was manifestly erroneous in its factual determination, and thus entered judgment in favor of the plaintiff, it addressed the equipoise issue. Id. The supreme court discussed its previous opinion in Fridge v. Talbert, 180 La. 937, 158 So. 209, 212 (1934), which stated, in relevant part:

Where witnesses differ, the courts should reconcile, if possible, the apparent contradictions their testimony presents. If this cannot be done, then the probabilities or improbabilities of their respective statements must be considered in the light of their capacity, opportunity or incentive for observation, the amount of corroboration, if any, and the degree of proof required.

The supreme court observed in Miller that Fridge “merely reiterates the unremarkable proposition [that] the plaintiff bears the burden of proof in making out his case[,]” and cautioned that the language in Fridge “should not be interpreted to mean the trial court must decide for either one or the other of the opposing plaintiffs in spite of evidence which is in equipoise.” Miller, 588 So.2d at 88. Accordingly, the supreme court concluded that where neither opposing plaintiff satisfies his burden of proof, and the evidence is truly balanced, it is | ./inappropriate for the trial court to “render a decision based on the fortuitous flip of a coin.” Id. at 84. However, this court has stated that the trial court’s function is to resolve disputes, and it should do so even where the dispute is difficult. Chargois v. Guillory, 97-439, 97-440 (La.App. 3 Cir. 10/29/97), 702 So.2d 1068.

Here, the Guidrys and Ms. Bernard offered conflicting versions of the accident. Mr. Guidry and Mrs. Guidry both testified that the accident occurred some distance away from the intersection. According to Mrs. Guidry, Mr. Guidry had completed his turn from Carmel Drive and was in the right hand lane on Louisiana Avenue when Ms. Bernard struck their vehicle. Mr. Guidry’s testimony was similar in this respect. He testified that he had completed his turn and travelled between three and five car lengths before Ms. Bernard’s vehicle struck his vehicle from the left side. Mr. Guidry testified that he did not hear any brakes squealing or horn honking before the impact. However, in his written statement, Mr. Guidry stated that “[w]hile turning right on green light, my vehicle was struck on the left front tire area.” Mr. Guidry attributed this inconsistency to it being “hectic” while he wrote the statement and to his worries over his wife’s injuries. Additionally, the investigating police officer, Detective Marion James Bo-rel, testified that he initially thought that the accident occurred in the intersection, but that he had subsequently changed his opinion and thought the accident occurred after the intersection. Detective Borel testified that his initial impression was that Ms. Bernard had been in the right turn only lane on Louisiana Avenue, but that he changed his mind after attending a city court hearing.

Ms. Bernard testified that she was in the right hand traffic lane on Louisiana Avenue immediately before the accident, not the right turn only lane. She saw Mr. Guidry stopped on Carmel Drive for the light and that, while she was in the middle |8of the intersection, he proceeded to make a right turn in front of her. According to Ms. Bernard, she pressed her brakes and blew her horn. However, she could not avoid the accident because there was a truck in the lane next to her. Ms. Bernard testified that the accident occurred near the marked lines for the crosswalk at the intersection. The parties also submitted into evidence several photographs depicting the location of the vehicles and some debris immediately after the accident.

After considering this evidence, the trial court found that the accident occurred in the intersection. Our review of the record reveals sufficient evidence to support this conclusion, and we find no manifest error in the trial court’s conclusion in this regard.

Based on this finding, the trial court determined that the dispositive issue with regard to liability was whether Mr. Guidry or Ms. Bernard possessed the green light. See La.R.S. 32:232; Bernard v. City of Lafayette, 98-1815 (La.App. 3 Cir. 5/5/99), 735 So.2d 804. On this issue, Mr. Guidry testified that, when he approached the intersection, the light was red and he “rolled up to the stop and stopped.” According to Mr. Guidry, after he made a complete stop, he noticed that the light had turned green, so he turned right. Further, in his written statement to the police, Mr. Guidry asserted that his light was green when he entered the intersection. Mr. Guidry denied seeing Ms. Bernard’s vehicle in the intersection. Mrs. Guidry’s testimony on this issue was not helpful, as she testified that she did not notice what color the light was when Mr. Guidry began to turn.

Ms. Bernard testified that she saw Mr. Guidry stopped on Carmel Drive for the light. According to Ms. Bernard, the traffic signal was still green in her favor when Mr. Guidry made a right turn onto Louisiana Avenue in front of her. Ms. | ^Bernard testified that the cars turning left from Carmel Drive onto Louisiana Avenue were stopped the entire time she was in the intersection and that she would have stopped if they had a green light. Ms. Bernard denied being on her cell phone at that time, and her attorney showed her cell phone records in support of her assertion.

The trial court entertained argument on this issue, noting that Mr. Guidry and Ms. Bernard said “diametrically opposing things about who had the light” and that the physical evidence was not helpful in that determination. The trial court also observed that there was no corroboration for most of the testimony. After considering the evidence and argument, the trial court found that both parties were “very credible” and that, based on the evidence provided, she could not determine which party had the red light. On that basis, and noting that “[her] job is not to flip a coin[,]” the trial court determined that she could not find in favor of either party.

Our review of the record reveals no error in the trial court’s finding in this regard. We find that the facts of this case are distinguishable from those in Miller, 588 So.2d 79, because, although there was also physical evidence in Miller, the physical evidence “strongly corroborate^!]” the plaintiffs version of the accident. Id. at 82. Here, the physical evidence does not do so. Further, the facts of this case are distinguishable from Chargois, 702 So.2d 1068, where this court found that the trial court erred in finding that neither party had proven their case. In Chargois, there was testimony from the plaintiff-driver and his passengers concerning how the accident occurred, as well as corroboration in the form of a statement made by the defendant-driver to the responding officer on the night of the accident. This court found that the trial court erred in discounting the passengers’ uncontradicted testimony and that, although the defendant-driver changed his original statement |inand attempted to establish that the layout of the intersection would have prevented the plaintiff-driver from seeing what he claimed to have seen, that evidence was not sufficient to rebut the plaintiffs prima facie case. Id.

In the record before this court, the parties offered no physical evidence which would indicate what color the traffic signal was when either Mr. Guidry or Ms. Bernard entered the intersection. Neither side offered any corroborating witness testimony or other evidence concerning the color of the light. Although Ms. Bernard had an independent witness, Mr. Davis, who presumably would have testified that the light was green in Ms. Bernard’s favor at the time of the accident, she declined the trial court’s offer to have Mr. Davis brought to court to testify, and we have found no error in the trial court’s decision to exclude Mr. Davis’ affidavit. Although Ms. Bernard points to several inconsistencies in Mr. Guidry’s testimony, those inconsistencies primarily concerned where the accident occurred, not whether Mr. Guidry possessed the right-of-way to enter the intersection. Further, we note that the trial court’s determination that Mr. Guidry was very credible in light of the Guidrys’ misperception as to where the accident occurred is not necessarily irreconcilable, as “[a] witness is often honestly mistaken when testifying to the existence or nonexistence of a fact, and the courts must use their own reason and common sense in determining the probability or improbability of his statements.” Fridge, 158 So. at 212.

It was the trial court’s prerogative to make credibility findings and reasonable inferences of fact, and in the absence of manifest error, this court should not disturb those findings. Stobart, 617 So.2d 880. Noting that each opposing plaintiff bears the burden of proof in his or her case, and based on the evidence contained in the record before us, we cannot say that the trial court erred | nin determining that the evidence was insufficient to determine which party had the red light and that, therefore, neither party was entitled to recovery. See Miller, 588 So.2d 79; Lewis v. Barnes, 31,342 (La.App. 2 Cir. 12/9/98), 722 So.2d 341.

Ms. Bernard’s arguments in this regard are without merit. Further, having resolved her arguments concerning liability, we do not address her arguments concerning damages.

DECREE

For the foregoing reasons, the judgment of the trial court signed on December 30, 2013, is affirmed. Costs of this appeal are assessed to the appellant, Kysha Lashane Bernard.

AFFIRMED.

PICKETT, J., dissents and assigns reasons.

PICKETT, J.,

dissenting.

hi respectfully disagree with the majority’s determinations that the trial court did not commit manifest error in finding the evidence is in equipoise and that neither party carried his burden of proof. The trial court found both drivers to be credible but determined that neither proved the signal light governing the intersection was green in his or her favor when the accident occurred. After reviewing the record, I conclude the trial court committed manifest error in reaching these conclusions.

The trial court concluded the physical damage to the parties’ vehicles supported Ms. Bernard’s testimony that the accident happened in the intersection while Mr. Guidry was in the process of turning from Carmel Drive onto Louisiana Avenue. To reach this conclusion, the trial court had to reject Mr. Guidry’s testimony that the accident occurred north of the intersection after he completed his turn. Additionally, the trial court rejected Mr. Guidry’s testimony that he looked to his left before he began his turn but did not see Ms. Bernard approaching the intersection, observing that was not possible. Moreover, the day of the accident, in a written statement provided to the investigating police officer, Mr. Guidry stated that he was turning when he got hit. Yet, he testified at trial that he had completed his turn and was traveling on Louisiana Avenue when he was hit.

|2In my opinion, the trial court’s conclusion that Mr. Guidry’s testimony was credible is inconsistent with its findings of fact and the evidence. Furthermore, no evidence disputes Ms. Bernard’s version of the accident. For these reasons, I conclude that the evidence is not in equipoise and that Ms. Bernard carried her burden of proof.

      . We note that Ms. Bernard designated that the record contain only "(a) the transcript of the trial and the proffered testimony ...; (b) the exhibits and proffered exhibits; [and] (c) [the] Trial Court’s Judgment dated December 30, 2013.” Thus, although the record contains the Guidrys’ petition and amended petition it does not contain Ms. Bernard’s answer or recoventional demand, the Guidrys' answer to Ms. Bernard’s reconventional demand, or any other motions filed prior to the entry of judgment. However, our review reveals no objection concerning these documents or their lack thereof in either the record or in the parties' appellate briefs.

      . According to the trial transcript, there was a motion in limine filed, apparently concerning Mr. Davis’ testimony. However, the motion in limine is not contained in the record.


author: EDWIN A. LOMBARD, Judge. TOBIAS, J., LANDRIEU, J.,

text:
    Reuben WILLIAMS v. The THREE GIRLS, L.L.C., Humphrey Manlift Company, Inc., and R & R Rig Service, Inc.
    No. 2013-CA-1589.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 2014.
    Patrick G. Kehoe, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Denia S. Aiyegbusi, David K. Groome, Jr., Deutsch, Kerrigan & Stiles, LLP, Lance S. Ostendorf, John G. Alsobrook, Ostendorf, Tate, Barnett, LLP, Mark P. Glago, Joseph F. Lahatte, III, Glago Law Firm, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   EDWIN A. LOMBARD, Judge.

h The Appellant, Plaintiff Reuben Williams, seeks review of the August 13, 2013 judgment of the district court in favor of Appellees, Defendants Hyman-Moses Properties, L.L.C. and Kornfeld Properties, L.L.C., which denied in part his Motion for New Trial. Pursuant to our de novo review, we reverse the judgment of the district court in favor of Hyman-Moses Properties, L.L.C. and Kornfeld Properties, L.L.C., and remand for further proceedings.

Reuben Williams (“Mr. Williams”) was employed as a parking lot attendant by Premium Parking, L.L.C. (“Premium”) and worked at a parking garage located at 911 Iberville Street (“the Garage”) in New Orleans. Premium began leasing the Garage from building owners, Hyman-Moses Properties, L.L.C. and Kornfeld Properties, L.L.C. (collectively referred to herein as “the Owners”), pursuant to a lease agreement (“the Lease”) dated October 15, 2009. Later, on August 13, 2010, Mr. Williams sustained severe physical injuries when he slipped off of a wet manlift located inside of and attached to the Garage. It rained on the date of the accident, and Mr. Williams alleges that rainwater fell onto the manlift through the | corrugated steel-paneled cover located above the man-lift (“manlift cover”). The manlift cover is attached to the roof of the Garage.

Mr. Williams subsequently filed suit against: The Three Girls, L.L.C., R & R Rig Service, Inc. (“R & R”), which is the maintenance company Premium hired to maintain the manlift, and Humphrey Man-lift Company (“Humphrey”), which is the manufacturer of the manlift. He later moved to dismiss The Three Girls, L.L.C., from the lawsuit and filed a supplemental and amending petition naming the Owners as defendants.

In February 2012, the Owners filed a Motion for Partial Summary Judgment asserting that they were not liable for Mr. Williams’ injuries because they had transferred responsibility and liability for any injuries or damages due to any defects in the Garage to Premium in the Lease. The hearing on the motion was held on April 18, 2012, but the district court withheld ruling on the motion to allow Mr. Williams time to conduct further discovery.

Thereafter, the Owners re-urged their Motion for Partial Summary Judgment, which the district court granted on January 2, 2013. Mr. Williams timely filed a Motion for New Trial arguing that the district court erred in granting the Motion for Partial Summary Judgment and further asserting, in the alternative, that the district court should amend the January 2, 2013 judgment to apply La.Code Civ. Proc. art. 966(F). On August 19, 2013, the district court partially 1.-¡granted Mr. Williams’ motion and amended the January 2, 2013 judgment to apply La.Code Civ. Proc. art. 966(F), but denied the motion in all other respects. Mr. Williams timely filed the instant appeal. Additionally, defendants R & R and Humphrey appealed the district court’s partial grant of the Motion for New Trial as it related to the amending of the January 2, 2013 judgment.

The Appellant raises three (3) issues on appeal:

1. Whether the district court committed a legal error by granting summary judgment based upon the terms of a contract executed between Premium and the Owners, under La. Civ.Code arts. 2696 and 2697.
2. Whether the district court committed a legal error by granting the Owners summary judgment under La.Rev.Stat. 9:3221 when the evidence clearly shows the defect in the premises existed prior to the execution of the Lease between Mr. Williams’ employer and the Owners.
3. Alternatively, whether the district court was correct in partially granting Mr. Williams’ Motion for New Trial, pursuant to La.Code Civ. Proc. art. 966(F).

|4In his first two assignments of error, Mr. Williams contests the district court’s grant of summary judgment in favor of the Owners under La. Civ.Code arts. 2696 and 2697 as well as under La.Rev.Stat. 9:3221.

Regarding La. Civ.Code arts. 2696 and 2697, he argues that the Lease executed between the Owners and Premium is irrelevant because under the aforementioned articles, the Owners warranted that the condition of the property was free of defects. The articles state:

La. Civ.Code. art. 2696

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. Civ.Code art. 2697

The warranty provided in the preceding Article also encompasses vices or defects that are not known to the lessor. However, if the lessee knows of such vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly.

Mr. Williams alleges that the holes and openings in the manlift cover are structural in nature and the Owners could have remedied its condition had they performed a cursory inspection to view the defects and repaired the manlift cover. Premium, he argues, did not cause the holes and openings that led to the water intrusion, according to the testimony of Premium representative Sterling Chauvin. However, Mr. Williams argues that Ted Moses, who is the minority owner of Hyman-Moses, L.L.C. and co-manager of the Garage, testified that he was on the roof of the Garage “numerous times” over a 15-20 year period. Thus, Mr. Williams | ¡¡contends that Mr. Moses should have discovered the defective condition of the man-lift cover.

Furthermore, relying upon the affidavit of his engineering expert, Leonard C. Quick, P.E., Mr. Williams argues that the defects at issue pre-dated the Lease and the Owners ignored these defects. He avers that the allegedly rusty and hole-filled condition of the manlift cover created a defective and dangerous condition, which the Owners warranted that they would prevent. Mr. Quick’s attestation to the poor condition of the manlift cover is unre-butted by the Owners. Thus, he avers that it is uncontroverted that the longstanding dilapidated condition of the man-lift cover allowed for water intrusion into the manlift, which caused a hazardous condition. The Owners neither repaired nor inspected the condition of the manlift cover; thus, he argues, they violated the warranty against vices or defects, under La. Civ.Code art. 2696. He further maintains that the warranty extends to vices or defects that arise after the delivery of the thing, but are not attributable to the fault of the lessee.

He further avers that prior to the delivery of the premises to Premium, the Owners warranted that the manlift cover was free from defects and vices. Moreover, the warranty extends to those vices and defects unknown to the lessor. La. Civ. Code art. 2697. Considering that the man-lift cover was riddled with holes and openings that existed prior to the execution of the Lease, Mr. Williams maintains that the Owners violated the warranty against vices or defects because the leased premises were not free of vices and defects prior to delivery of the premises.

Moreover, even if the Lease is relevant, Mr. Williams argues that it placed the obligation to effectuate structural repairs on the Owners:

| ^Lessee shall at the time during the term of this Lease and at its own expense take good care of the leased premises and the fixtures (inclusive of light fixtures), appliances and appurtenances belonging thereto, and keep the same in good order, condition and regain and make all necessary interior repairs thereto, except repairs which are structural in character, or necessitated by fire or other casualty.

Appellate courts review motions for summary judgment de novo on appeal “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Services & Specialty Co., Inc., v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. Pursuant to La.Code Civ. Proc. art. 966(B)(2), a summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490.

Where the party seeking summary judgment will not bear the burden of proof upon a particular element of a claim or cause of action, that party need not disprove that element in order to obtain summary judgment. Simon v. Hillensbeck, 12-0087, p. 6 (La.App. 4 Cir. 09/19/12), 100 So.3d 946, 949 [citations omitted]. Instead, the movant’s entitlement to summary judgment is established on its pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Id.

|7The initial burden of proof remains with the mover to show that no genuine issue of material fact exists; however, if the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006. Nevertheless, the plaintiff opposing the motion “may not rely upon the allegations made in his pleadings, simple speculation as to facts or evidence, or ‘posit the hypothetical existence of a genuine issue of material fact’ in order to attempt to defeat a well-pled motion for summary judgment.” Simon, 12-0087, p. 6, 100 So.3d. at 950 [citations omitted].

Upon our review of the Lease of the Garage, we note that it contains a clause limiting the responsibility of the Owners to only those damages the Owners failed to commence repairing after being notified by Premium of the damage. The Lease states in relevant part:

10. RESPONSIBILITY FOR DAMAGES
Lessors shall not be responsible for damage to property or injury to person or other losses or damages caused by or resulting from vices or defects, latent or otherwise, including leaks in the roof of the leased premises, unless Lessors failed to take steps toward repairing same within a reasonable period of time after being notified thereof by Lessee.
Lessee shall hold Lessors free of any liability to anybody and everybody for personal injuries or other damages sustained in any manner whatsoever from, on or through or about the leased premises. Leased premises does not include the sidewalk area in front of the retail leased space.

|sWe recognize that the warranty against vices and defects contained in articles 2696 and 2697, may be waived. Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La.1981). The warranty provided in La. Civ.Code art. 2696 may be waived by clear and unambiguous language that is brought to the attention of the lessee, under La. Civ.Code art. 2699. Graubarth v. French Mkt. Corp., 07-0416, p. 9 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 666. Article 2699 of the Louisiana Civil Code states in pertinent part:

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;

This article, however, should be read in conjunction with La.Rev.Stat. 9:3221, which provides an exception to the application of La. Civ.Code art. 2699:

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.

In the matter sub judice, the waiver of the warranty against vices or defects was included in Section 10 of the Lease, quoted above. The Lessors absolved themselves of responsibility for vices or defects, even latent ones, in lucid terms | flfor the subject property. Moreover, the clause further states that the Owners are not liable for injuries to the Lessee or to third parties on the premises. We find this to be a clear and unambiguous waiver of the warranty against vices or defects, under La. Civ.Code arts. 2696 and 2697. We further note that there has been no argument made by Mr. Williams that this clause was not brought to Premium’s attention at the time the Lease was executed. Additionally, Premium undertook the responsibility of taking care of the leased premises, fixtures, appliances and appurtenances, under the terms of the Lease.

Nevertheless, La.Rev.Stat. 9:3221 provides that a waiver of the warranty for defects is not applicable under two (2) circumstances: 1) when the owner knew or should have known of the defect or 2) when the owner had received notice of the defect and failed to remedy it within a reasonable time. Mr. Williams argues that the former circumstance applies in the instant matter.

He contends that the district court committed a legal error in granting the Owners’ summary judgment under La. Rev.Stat. 9:3221 because the evidence shows that the alleged defect in the premises existed prior to the execution of the Lease between Premium and the Owners, who knew or should have known of the defective condition of the manlift cover for the following reasons:

1) Mr. Moses walked the roof “numerous times” before the contract between Premium and the Owners was executed;
2) there were holes in the manlift cover caused by corrosion, a process taking years to eat through the enclosure;
3) the condition of the manlift cover existed for years;
4) the manlift cover is placed directly above the manlift; and
|105) the defect is structural in nature allowing water onto the manlift. The extent of knowledge possessed by the Owners and whether they acted reasonably must be placed before the trier of fact to determine their liability.

Mr. Williams argues that in consideration of Mr. Moses’ dual role as the manager of the property and a minority owner, Mr. Moses’ actions or omissions are imputed to his employers, the Owners under La. Civ.Code art. 2320. Despite having been on the roof of the subject building numerous times over 15-20 years, Mr. Moses failed to inspect the manlift cover, discover it was defective, and repair its holes and openings, which Mr. Williams claims contributed to his injury.

Lastly, he maintains that summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice. Williams v. Asbestos Defendants, 11-0716, p. 5 (La.App. 4 Cir. 5/16/12), 95 So.3d 497, 501. He further relies upon the First Circuit’s holding that issues requiring the determination of reasonableness of acts and conduct of the parties under all facts and circumstances of the case cannot In ordinarily be disposed of by summary judgment. Granda v. State Farm Mut. Ins. Co., 04-1722 (La.App. 1 Cir. 2/10/06), 935 So.2d 703.

In response, the Owners maintain that they had no knowledge of the alleged defect. Mr. Moses testified that he was the co-manager of the 911 Iberville Street building with his uncle, Dr. Harris Hyman. Mr. Moses did not recall the condition of the manlift cover prior to the Lease at issue going into effect, although he testified that he walked on the top of the roof, where the manlift cover is located, numerous times over 15 to 20 years. He testified that it had been attached to the roof of the building for twenty years, which is as long as he had been managing the property. He further explained that the Owners did not have an inspection process, but Lessees would notify them of issues that needed to be addressed.

If we were to impute Mr. Moses’ knowledge of the premises to the Owners as a whole, we might conclude that the Owners did not know of the alleged defective condition of the manlift cover. However, it is more unclear whether the Owners should have known of the alleged defective condition of the manlift cover.

The affidavit of Mr. Quick indicates that the condition of the shed had deteriorated over a period of years. Indeed, paragraphs 11 and 12 of Mr. Quick’s affidavit state:

11. The forensic physical evidence revealed that the manlift enclosure located at the top of the parking garage structure contains numerous openings, holes and unsealed penetrations caused by long-term neglect and lack of proper maintenance resulting in the gross degradation of the enclosure for it [sic] design intent and purpose, that is, to protect against rainwater infiltration directly at, around and onto the manlift treads and other mechanical components through the corroded holes in the panels and/or un flashed openings. The holes in the enclosure allow wind-driven rain to infiltrate into the interior of the structure. Proper design and maintenance of the enclosure would \ V¿have eliminated these holes and the typical wind-driven rain that otherwise has infiltrated through these defective conditions for years prior to the accident of Mr. Williams. Reference attached photographs for examples of the defective conditions.
12. The manlift enclosure consists of corrugated, galvanized steel panels. Long-term deterioration of the galvanized steel panels at the enclosure was immediately evident with multiple panels displaying a complete absence of the protective zinc coating in exposed locations. With the long-term loss of the zinc coating, corrosion (rust) of the unprotected steel panels occurred throughout the exterior of the enclosure resulting in holes through which water readily infiltrated. This type of corrosive deterioration takes years to occur and develop to the degree of actual holes resulting in the panel. Furthermore, long-term neglect and lack of any supplemental coatings resulted in advanced forms of corrosion, such as scaling, pitting and perforation (complete rust-through) of the steel panels. The forensic physical evidence and aerial imagery sources revealed that the rusted condition of the enclosure has existed for numerous years, and had existed for several years prior to transfer of the parking garage to Premium Parking, L.L.C. on or about November 1, 2009. [Emphasis added].

The length of time between the October 2009 execution of the Lease and Mr. Williams August 2010 accident was less than a year. Consequently, if the condition of the manlift cover had been deteriorating over years, based upon Mr. Quick’s affidavit, the deterioration had to have begun prior to execution of the Lease and Premium’s tenancy. Thus, we find that there is a genuine issue of material fact as to whether the Owners knew or should have known about the alleged deterioration of the manlift cover prior to the execution of the Lease, under La.Rev.Stat. 9:3221. See Harvey v. Francis, 00-1268, p. 4 (La.App. 4 Cir. 3/21/01), 785 So.2d 893, 896-97.

1 ^Consequently, we pretermit further discussion of Mr. Williams’ remaining assignment of error as well as those assignments raised by Appellees, Humphrey Manlift and R & R, in their respective answers to the appeal, as they are now moot.

DECREE

For the foregoing reasons, the August 19, 2013 judgment of the district court is reversed and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

TOBIAS and LANDRIEU, JJ., concurs.

TOBIAS, J.,

concurs.

Li respectfully concur. Genuine issues of material fact demonstrated by the record on appeal presently preclude the granting of the motion for summary judgment.

LANDRIEU, J.,

concurs.

hi respectfully concur for the reasons assigned by Judge Tobias.

      . According to the testimony of Ted Moses, who is a minority owner and co-manager of the Garage, "Standard Parking” leased the Garage prior to November 1, 2009. Thus, this was Premium's initial lease of the building.

      . Mr. Williams initially believed The Three Girls, L.L.C. to be the owner of the Garage.

      . The wording of former La.Code Civ. Proc. art. 966(F) is now codified in section (G) of art. 966:
      G. (1) When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or nonparty is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or nonparty shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or nonparty nor shall the issue be submitted to the jury nor included on the jury verdict form. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005, except for negligence or fault.
      (2) If the provisions of this Paragraph are applicable to the summary judgment, the court shall so specify in the judgment. If the court fails to specify that the provisions of this Paragraph are applicable, then the provisions of this Paragraph shall not apply to the judgment.

      .The August 19, 2013 judgment provides in pertinent part:
      IT IS ORDERED, ADJUDGED, AND DECREED that the Motion for New Trial is granted in part amending the original judgment to provide that judgment is granted pursuant to C.C.P. Art. 966(F)(1) & (2).
      Additionally, the district court designated this judgment as final under La.Code Civ. Proc. art. 1915(B)(1).

      . See Wells v. Norris, 46,458, p. 6 (La.App. 2 Cir. 8/10/11), 71 So.3d 1165, 1169, writ denied, 11-1949 (La.11/18/11), 75 So.3d 465.

      . Pursuant to this statute, a lessor transferring responsibility for the leased premises to the lessee is not required to utilize "clear and unambiguous language that is brought to the attention of the lessee,” as required by La. Civ.Code art. 2699.

      . La. Civ.Code art. 2320, provides:
      Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.
      The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.


author: GENOVESE, Judge. THIBODEAUX, Chief Judge,

text:
    Dempsey Ray WILEY v. BAYOU GAMING, INC. and Fred Taylor.
    No. 13-1449.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 2014.

      Paul A. Lemke III, Harrisonburg, LA, for Defendants/Appellants, Fred and Nicole Taylor.
    V. Russell Purvis, Smith, Taliaferro & Purvis, Jonesville, LA, for Plaintiff/App el-lee, Dempsey Ray Wiley.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, J. DAVID PAINTER, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

111n this personal injury action, Defendants, Fred and Nicole Taylor, appeal the trial court’s judgment finding them liable and awarding damages for the injuries sustained by Plaintiff, Dempsey Ray Wiley, as a result of a barroom scuffle. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The record indicates that on October 14, 2007, Dempsey Wiley (Wiley) was present at the Stockyard Saloon, a bar located in Vidalia, Louisiana. According to his petition filed on May IB, 2008, Wiley alleged he “was physically attacked and beaten by Fred Taylor and other employees of the Stockyard Saloon.” The petition further described the alleged attack as follows:

After [Wiley] had been knocked to the ground!,] he was repeatedly stomped and kicked by Defendant, Fred Taylor[,] and the other unknown employees of Defendant Bayou Gaming, Inc.
[]
[Wiley] suffered grievous injuries caused by the beating which was caused by the intentional acts of Defendant, Fred Taylor[,] and negligent acts of Defendant, Bayou Gaming, Inc. Further, Bayou Gaming, Inc., is vicariously liable for all acts of Fred Taylor.
[]
[Wiley] suffered numerous injuries as a result of the beating necessitating numerous surgeries!,] and on April 4, 2007, [Wiley’s] foot was amputated as a result of the beating suffered by [him].

In September 2008, Wiley filed an amended petition naming Fred Taylor’s wife, Nicole Taylor, as a defendant in her capacity as “[l]essee of Bayou Gaming, Inc., and Stockyard Saloon.”

li>A bench trial was held on February 16 and 17, and November 16, 2012. Following the presentation of Wiley’s case, the trial court granted a motion for involuntary dismissal in favor of Bayou Gaming and denied a motion for involuntary dismissal sought by Nicole Taylor. At the conclusion of the trial, the matter was taken under advisement, and the filing of post-trial memoranda was allowed.

On April 1, 2013, the trial court issued written Reasons for Judgment and signed a Judgment in favor of Wiley. In its written Reasons for Judgment, the trial court stated the following relative to the issue of Fred Taylor’s liability:

While the testimony is contradictory with regard to this issue, the uncontested fact is that [Wiley] had sustained significant injuries by the time Concor-dia Parish Deputies Webber and Merrill arrived at the Stockyard which Dempsey did not have when he arrived. Further it is obvious to this Court that these injuries could not have been sustained by [Wiley] merely as a result of a fall or from his kicking a truck as Fred testified. This Court gives much weight to the testimony of Dr. J.H. Fairbanks, [Wiley’s] treating orthopedic surgeon, who testified in his deposition that the injuries received by [Wiley] simply could not have been sustained from a fall or from kicking a truck[,] but the trauma suffered by [Wiley] had to be occasioned by the infliction of an outside force[.]
This Court is of the opinion that the “outside force” was the direct result of the excessive use of force by Fred in removing [Wiley] from the premises. Even if [Wiley] was intoxicated, belligerent, and using abusive language, use of excessive physical force by Fred in removing [Wiley] from the premises is not permitted[.]

IsThe trial court found that Fred Taylor had committed the intentional tort of battery on Wiley and that Nicole Taylor, d/b/a the Stockyard Saloon, was vicariously liable for Fred’s tortious actions. The trial court awarded damages to Wiley as follows:

General damage award for broken ankle, facial contusions, lacerations and damage to his shoulder: $80,000.00
(To be reduced by 30% due to comparative fault of [Wiley]) $56,000.00
General damage award for loss of leg: $300,000.00
(To be reduced by 70% due to comparative fault of [Wiley]) $90,000.00
Past lost wages: $75,433.00
(Calculated from date of injury, Oct. 14, 2007, until date of report of Dr. Rice, February 18, 2009)
(To be reduced by 30% due to comparative fault of [Wiley]) $52,803.10
Future lost earnings: $567,663.00
(Based on report of Dr. Rice, dated February 18, 2009)
(To be reduced by 70% due to comparative fault of [Wiley]) $170,298.90
Special damages for hospital expenses for initial injury: $20,257.41
(To be reduced by 30% due to comparative fault of [Wiley]) $14,180.18
Special damages for hospital expenses for amputation of leg: $97,272.90
(To be reduced by 70% due to comparative fault of [Wiley]) $29,181.87

TOTAL AWARD: $412,464.05

Fred and Nicole Taylor have filed a sus-pensive appeal.

ASSIGNMENTS OF ERROR

Fred and Nicole Taylor appeal the trial court’s April 1, 2013 Judgment, specifying the following assignments of error:

|4[1.] The trial court erred in finding that Fred Taylor was liable for an intentional tort of battery on Dempsey Wiley.
[2.] The trial court erred in finding that Nichole [sic] Taylor was vicariously liable for the actions of Fred Taylor and that she was negligent in protecting the patrons in her drinking establishment.
[3.] The trial court abused its discretion in awarding Mr. Wiley a personal injury judgment of $412,464.05 dollars as this award was unsupported by the record and testimony.

LAW AND DISCUSSION

Whether the trial court erred in finding that Fred Taylor was liable for committing the intentional tort of battery on Wiley is a factual determination by the trial court requiring that we apply the manifest error standard of review. In Ashley v. Strong, 09-336, pp. 2-3 (La.App. 3 Cir. 10/07/09), 19 So.3d 1260, 1261-62 (quoting Poole v. Poole, 08-1325, pp. 4-5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806, 810), this court set forth the applicable standard of review as follows:

[A] factual determination of the trial court ... is subject to the manifest error/clearly wrong standard of review. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).
In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (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. Id. Where there is conflict in the testimony presented at trial, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial court’s credibility determinations are subject to the strictest deference, and the manifest error or clearly wrong standard demands great deference for the trial court’s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart, 617 So.2d at 882. Thus, if the trial court’s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently. Rosell, 549 So.2d 840.

|fiFred and Nicole Taylor assert that the trial court erred in finding that Fred Taylor was liable for committing the intentional tort of battery on Wiley. Fred Taylor denies battering Wiley and alleges that Wiley caused his own injuries. Fred and Nicole Taylor contend that the evidence at trial established that Wiley “was very intoxicated, ... was belligerent and aggressive with other patrons in the bar and the lady working the bar and was asked to leave[,]” and that he “became aggressive and hostile with everyone in the bar[.]” Finally, Fred and Nicole Taylor assert in brief that the trial court erred in relying upon Wiley’s testimony to determine that he had proven by a preponderance of the evidence that Fred Taylor had battered him, particularly when Wiley “admitted he had blackouts and his memory was vague about before and during the incident he alleges he was battered.” For the reasons that follow, we find the trial court’s determination relative to Fred Taylor’s liability to be manifestly erroneous and reverse the Judgment of the trial court accordingly.

Whether Fred Taylor battered Wiley was hotly contested. The testimony of Wiley and Fred Taylor was correctly characterized by the trial court as “contradictory[.]” Wiley told one version of the incident, while Fred Taylor told another. After thoroughly reviewing the record, we find that there is no reasonable factual basis for the trial court’s finding that it was proven by a preponderance of the evidence that Fred Taylor committed an intentional battery on Wiley. We, therefore, find that the record establishes that the trial court was clearly wrong.

First to testify at trial was Deputy Phillip Webber, an Investigator with the Con-cordia Parish Sheriffs Department. On October 14, 2007, he was a patrol deputy, and he responded to the complaint call made from the Stockyard Saloon. He recalled speaking to Fred Taylor upon arriving, who stated that he “put [Wiley] |fiout of the bar.” Deputy Webber testified that Wiley “seemed to be very intoxicated. He was belligerent, you know, yelling, screaming. And he was telling me that Fred and whoever else there had jumped on him[,] and he was kind of hard to control at that time.” According to Deputy Webber, the Sheriff Office’s dispatch record indicated that: (1) the complaint call was received from the Stockyard Saloon at 8:42 p.m.; (2) the complaint call was made by Fred Taylor; (8) he arrived on scene at 8:45 p.m.; and, (3) he requested a rescue unit for Wiley at 8:51 p.m. Though he did not know whom, Deputy Webber recalled “somebody had Wiley held, like in a bear hug, sitting down on the concrete to the right of the door.” Deputy Webber recalled putting Wiley in handcuffs, and it was while Wiley was sitting on the ground, handcuffed, that he complained of being injured, which prompted Deputy Webber to request a rescue unit. Upon being shown photographs of Wiley’s face taken in the hospital, and being questioned as to whether he remembered observing injuries to Wiley’s face, Deputy Webber testified “I remember his leg. The face, I don’t remember it like that. But, I’m not saying it wasn’t.”

Fred Taylor was asked if, at any point, he ever touched Wiley, and he replied that he “tried to help Mr. Wiley up when he fell against the pool table. [Wiley] got very angry. Started hollering, I took his kids. And I got away from him.” Fred Taylor claimed that Tracy Allen Walden, a customer, “got [Wiley] up. Walked out the door with him.” When asked how Wiley injured his face, Fred Taylor claimed that, once outside, “he fell face first in [sic] the concrete.” Wiley was crying and “hollering he wanted to die[,]” and “[t]hat’s when [he] realized, well, ain’t nothing you gonna be able to do with him. I called 911.” According to Fred Taylor, “long as I stayed to the backside of Mr. Wiley, he was fine. He wasn’t struggling. |7Mr. [Walden] had him laid [out] on the ground [and was] petting [Wiley’s] head. He was crying like a baby about his kids dying.” Fred Taylor explained that when Deputy Webber arrived, “[Mr. Walden] was laying there rubbing [Wiley’s] head, babying him. [Deputy Webber] pulled up and started talking with Dempsey Wiley or whatever. And he started struggling a little bit. He handcuffed him.” Upon further questioning by the trial judge, Fred Taylor explained that Wiley walked towards the exit but fell near a pool table. He tried to help Wiley stand up, but “that’s when he started trying to fight me, telling me I took his kids. And then I backed off. Tracy [Walden] got, you know, got him up on his feet and walked him out the door.” Fred Taylor described what he saw when he walked outside:

[Wiley] was leaning with his head on the truck crying and everything!,] and he done kicked the tire on the truck a couple of times[,] and he was cussing and turned around and looked at me and told me it was my fault; I did it; I took his kids. And he went to come toward me. Well, I moved backwards. When I did, he fell, cussing, I did it. I did it. Well, I got away from him[,] and [Mr. Walden] took over and I went in the bar and got the phone and called 911 and asked for somebody to come up there and give me a hand.

Danny Merrill, a retired Lieutenant with the Concordia Parish Sheriffs Department, testified that on October 14, 2007, he was a supervisor on patrol and also responded to the complaint call made from the Stockyard Saloon, arriving shortly after Deputy Webber and before the ambulance. According to Lieutenant Merrill, when he arrived, Wiley was lying on the ground. Lieutenant Merrill asked Wiley what had happened, to which he responded, “[W]hat do you think happened?” Lieutenant Merrill asked, “[W]ho did this to you?” Wiley’s answer was, “[W]ho do you think did this to me?” Lieutenant Merrill recalled that Wiley complained about his leg, but he did not recall seeing injuries on his face. When Lieutenant Merrill questioned Fred Taylor, he denied touching Wiley.

|RMr. Walden, the only disinterested witness to the incident at issue, testified that he overheard Wiley say something offensive to the female bartender and heard Fred Taylor warn Wiley to calm down, or he would be made to leave. According to Mr. Walden, “A little while later [Wiley] said something towards Fred. I didn’t really pick up what he said. But, I took it as if it was said to me, I would take it as a threat. And then Fred told him he had to go.” Mr. Walden described what happened next as follows:

Well, Fred told him to leave. [Wiley] got up; started walking towards the door. The pool table closest to the door, when he got there, he just — like he fell or tripped, like he fell.
And Fred went over to help him. And then things kind of went downhill after that.
Well, when Fred went over, you know, to help him up — because like I said, he fell — [Wiley] got really — real quickly, got — well mad. Like he got mad at Fred. He went off on Fred. He started trying to — Fred bent over to help him up. He kind of reached for Fred like he was fixing to — like he choked him. It looked like he was choking him.

Mr. Walden testified that he helped Wiley out of the door because Fred Taylor’s efforts to help Wiley stand up to leave only made matters worse. Mr. Walden explained that once outside, Wiley kicked a vehicle’s bumper, and “he fell down on the ground. He tried to get up. He fell down again and hit is [sic] face on — well not hit. Kind of like, like fell down trying to get back up.” According to Mr. Walden, Wiley “started acting like his leg was hurting.” He admitted that he held Wiley down until a sheriffs deputy arrived, stating “I was sitting on the ground and [Wiley]’s head and torso was [sic] in my lap. I was trying to restrain him from getting up. Because, he said he was hurt.” He asked for someone to get 19a washrag because Wiley was bleeding from falling and hitting his head on the ground, and because he thought a cool rag would calm him. Mr. Walden denied battering Wiley and disputed the allegation that Wiley was battered by anyone at the Stockyard Saloon. Mr. Walden’s testimony was clear that Wiley’s injuries were not inflicted by Fred Taylor.

Joyce Marie Tanner went to the Stockyard Saloon with Wiley, her brother. According to Ms. Tanner, Wiley was not hurt and did not have any trouble walking when they arrived at the bar. She stayed for about an hour, but left before the incident at issue occurred. When she returned, Wiley was being loaded into an ambulance.

Under direct examination, Wiley described what occurred to him as:

Fred come jerked me off the bar stool. And when he went on the floor, I was on top. Somebody kicked me off. That’s when the stomping starts. And then the next thing I remember, I’m by the pool table being stomped. And then when we get outside he’s knocking me over this iron pipe that goes down the front of the bar. And then the next thing I remember, they loading me up in the ambulance.

When asked specifically by the trial judge, “What did you say happened about the iron bar outside?” Wiley replied, “The problem is, see, I just remember bits and pieces of it. But, what I do remember is Fred knocking me over that pole — that pole outside.” When asked what happened next, Wiley answered, “Well, I don’t remember. All I know the next thing it was the ambulance and the cops were there.”

Under cross-examination, Wiley was asked if he said anything to Fred Taylor while he was in the bar, and he replied, “It’s possible I could have.... I don’t remember. But, I’m sure he come jerked me off of there for some reason.” Wiley testified that he drank three beers with his coworkers before leaving work |1(laround four o’clock and, while at the Stockyard Saloon, he remembered drinking beers and a shot of Jagermeister. When asked by the court how many beers he drank at the Stockyard Saloon, Wiley admitted that he did not know. He said, “It was two or three — three or four.” Wiley admitted that he did “not even remember getting out the door[,]” but he was certain that he “never kicked a truck.” When asked whether it was his testimony that two people attacked him, he replied, “I am not sure. But, I know that Fred — when Fred was kicking me, me trying to cover up from him, somebody was kicking me in the head. So, I guess that adds up to be two.” When the trial judge inquired, “And you testified that — sometimes you blacked out. You don’t remember some of the facts that night.” Wiley acknowledged, ‘Yes, ma’am.”

Lindsey Nicole Meyers was the bartender at the Stockyard Saloon the night the incident at issue occurred. Ms. Meyers testified that Wiley became upset because Fred Taylor “wouldn’t let him charge, have a charge account.” She witnessed Fred Taylor ask Wiley to leave “two or three times” before he escorted him out the door. Ms. Meyers did not go outside. She testified that she did not see anyone stomp, push, or hit Wiley. In her opinion, Wiley was drunk and “upset because his son just got killed.”

Dr. J.H. Fairbanks, an orthopedic surgeon, treated Wiley in the hospital for his injured right leg. Dr. Fairbanks did not testify at trial; instead, he testified via deposition. Photographs taken of Wiley in the hospital were attached to his deposition. Noteworthy is the fact that Dr. Fairbanks did not recall the injuries to Wiley’s face until he was shown photographs, as revealed in the following exchange:

J^PLAINTIFF’S COUNSEL:
Was [sic] there any other injuries that you noticed at the time or diagnosed at the time of the fracture to [Wiley’s] ankle?
DR. FAIRBANKS:
Not that I recall.
PLAINTIFF’S COUNSEL:
I’ve got some photographs I want to show you and I want you to see if that refreshes your memory. These are pictures taken of Mr. Wiley at the time of this.
Would these pictures be reflective of the condition of Mr. Wiley at the time you examined him in the emergency room?
DR. FAIRBANKS:
I don’t recall that but I would assume they would.

Despite the fact that Dr. Fairbanks did not witness how Wiley was injured and had to “assume” the depiction in the photographs, the trial court clearly and erroneously relied heavily upon his opinion to conclude that Wiley had suffered his injuries as a result of a battery. The exact statements by Dr. Fairbanks upon which the trial court relied and specifically quoted in its Reasons for Judgment are evinced in the following exchange:

PLAINTIFF’S COUNSEL:
There’s been some allegations that Mr. Wiley tripped and injured himself, would the injuries that you see in these photographs, would that be indicative of somebody that had tripped and fall [sic]?
DR. FAIRBANKS:
Not likely.
PLAINTIFF’S COUNSEL:
Would these be more indicative of somebody that had been beaten?
DR. FAIRBANKS:
Somebody that’s been in a fight.

Dr. Fairbanks did not opine that Whey’s injuries were the result of Fred Taylor’s actions or those of anyone else. He simply stated that Wiley’s injuries were indicative of somebody who had been in a fight. There was no proof of a fight much less any injuries incurred by Wiley and inflicted by Fred Taylor as a result of a fight.

After reviewing the record in its entirety, we find that a reasonable factual basis does not exist for the trial court’s findings and that the trial court’s determination of Fred Taylor’s liability is manifest error. The trial court ignored and disregarded the testimony of the only independent witness, Mr. Walden. Not only was Mr. Walden disinterested in the cause, he witnessed the entire event and fully corroborated Fred Taylor’s testimony that he did not batter Wiley. The trial court, which acknowledged that “the testimony is contradictory[,]” based its finding that Fred Taylor committed battery due, in part, to the fact that Wiley “had sustained significant injuries by the time Concordia Parish Deputies Webber and Merrill arrived at the Stockyard which [Wiley] did not have when he arrived.” This circumstance, combined with the judgment of Dr. Fairbanks that Wiley had “been in a fight” led to the trial court’s “opinion that the ‘outside force’ was the direct result of the excessive use of force by Fred [Taylor] in removing [Wiley] from the premises.” However, there was no proof by a preponderance of the |iaevidence of such an occurrence; thus, there is a failure by Wiley to establish causation between his injuries and Fred Taylor’s actions.

In light of the guidance outlined above as applied to the facts of this case set forth in the record, we find manifest error in the trial court’s finding that it was proven by a preponderance of the evidence that Fred Taylor committed an intentional battery on Wiley. Considering the evidence in the record, we conclude that the evidence did not establish by a preponderance of the evidence that Wiley was intentionally injured by anyone, much less that Fred Taylor was legally responsible for Wiley’s injuries. The trial court was manifestly erroneous and clearly wrong in ruling otherwise. Accordingly, we reverse the judgment of the trial court. Having reversed the trial court on the issue of liability, we need not address the remaining issues of vicarious liability and damages.

DECREE

For the reasons stated herein, the judgment of the trial court is reversed. Costs of this appeal are assessed against Plaintiff/Appellee, Dempsey Ray Wiley.

REVERSED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

|,The proper standard of review is manifest error which the majority acknowledges. The majority further observes that the issue of an intentional battery was “hotly contested.” The plaintiff testified that he was beaten violently and stomped on. One of the defendants indicated the plaintiff was intoxicated and suffered an unprovoked fall. The trial judge heard and weighed this testimony. After doing so, she concluded that “[t]he testimony of the witnesses varied substantially as to what actually transpired and often is directly contradictory.” She then went on to summarize the testimony and concluded that “it is obvious to this Court that these injuries could not have been sustained by Dempsey merely as a result of a fall or from kicking a truck as Fred testified. This Court gives much weight to a testimony of Dr. J.H. Fairbanks, Dempsey’s treating orthopedic surgeon.... ” Dr. Fairbanks clearly indicated that the plaintiffs injuries would not be indicative of “somebody that had tripped and [fallen].” Rather, they would be indicative of “somebody that’s been in a fight.” Clearly, the trial court believed the testimony of Dr. Fairbanks and did not believe the testimony of the witnesses who said that the plaintiff happened to have kicked a truck in the parking lot and suffered an unprovoked fall. Dr. Fairbanks’s testimony was particularly persuasive given the fact that the plaintiffs injury required a plate and some screws and an incision about five inches in length. He suffered a bimalleolar ankle fracture.

|2I would affirm the judgment of the trial court but would reverse on the damages awarded for the leg amputation. Dr. Fairbanks clearly testified in his deposition that the plaintiff failed or refused to follow post-operative care.

      . Through discovery, it was learned that the Stockyard Saloon was owned by Nicole Taylor, Fred Taylor’s wife. The building which housed the Stockyard Saloon was owned by Bayou Gaming, Inc. (Bayou Gaming). Nicole Taylor leased the building which housed the Stockyard Saloon from Bayou Gaming.

      . We note that at trial, these requests were incorrectly referred to as motions for directed verdicts; however, the correct designation for this procedural vehicle ”[i]n an action tried by the court without a jury” is a motion for involuntary dismissal. La.Code Civ.P. art. 1672(B).

      . The trial court granted Bayou Gaming's motion for involuntary dismissal, stating that Wiley had “not met [his] burden of showing that [Bayou Gaming was] liable in any way other than they were the lessor to [Nicole] Taylor.”

      . The trial court denied Nicole Taylor's motion for involuntary dismissal, stating ”[t]here is sufficient evidence to show that she was the lessor of the establishment and the owner of the bar.”


author: COOKS, Judge.

text:
    Hattie Denise McCOY v. USAGENCIES CASUALTY INSURANCE CO.
    No. 14-49.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 2014.

      Somer Brown, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Appellant, Hattie Denise McCoy.
    Anthony Butler, Baton Rouge, LA, for Defendant/Appellee, USAgencies Casualty Insurance Co.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   COOKS, Judge.

|2FACTS AND PROCEDURAL HISTORY

On July 9, 2012, Plaintiff, Hattie Denise McCoy, was on her way to work at L’Au-berge Du Lac Casino and Resort in Lake Charles. According to Plaintiff, she was run off the road by an unknown vehicle, which then fled the scene without stopping. Her vehicle came to rest over the curb on the side of the road. Plaintiff asserted she suffered bodily injury as a result of the incident.

Corporal Robert Janice, of the Lake Charles Police Department, arrived at the scene of the incident approximately thirty minutes after it occurred. Corporal Janice spoke with Plaintiff who informed him she had been run off the road by another vehicle. There were no witnesses to the incident. Corporal Janice noted that Plaintiffs vehicle did not come into contact with any other vehicle. Plaintiff maintained she suffered injuries as a result of the incident.

At the time of the incident, Plaintiff had a policy of insurance with USAgencies. Through her uninsured/underinsured motorist coverage, Plaintiff brought a claim against her policy alleging the driver of another vehicle caused the accident that resulted in the injuries she sustained.

USAgencies opposed the claim, contending Plaintiff was unable to meet her statutory requirement of proving the accident was the result of the actions of the driver of the unknown vehicle. USAgencies filed a Motion for Summary Judgment asserting Plaintiff was unable to meet that burden. The matter was briefed and argued before the trial court, which determined that Plaintiff was unable to satisfy her burden of proving the unwitnessed accident was caused by another driver. Thus, finding no genuine issue of material fact existed that the policy of insurance issued by USAgencies did not provide coverage for the damages alleged by Plaintiff, the trial court granted summary judgment and Plaintiffs suit was dismissed with prejudice. This appeal followed.

| .ANALYSIS

When an appellate court reviews a district court’s judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. Summary judgment is a favored procedure and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966.

It is well settled that liability insurers in Louisiana are required to offer uninsured/underinsured motorist (UM) coverage in connection with the issuance of liability coverage. If UM coverage is purchased, it serves to protect the insured from other drivers who are not covered by liability insurance and also from other drivers who do not carry sufficient limits of liability insurance to cover the damages caused. See La.R.S. 22:1295. Additionally, in 1991, the legislature required uninsured motorist policies to include “miss and run” coverage under certain circumstances. This coverage provides protection against other drivers who cause an accident and then flee the scene, even in the situation where the other vehicle does not physically collide with the insured vehicle.

Louisiana Revised Statutes 22:1295(l)(f) sets forth the burden of proof for establishing a “miss and run” claim:

Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or un-derinsured.

| ¿The language of the USAgencies policy regarding uninsured/underinsured motorist coverage follows closely the language of La.R.S. 22:1295(l)(f):

PART C — UNINSURED/UNDERIN-SURED MOTORIST COVERAGE
Exclusions for part C, all Sections
2. We do not provide coverage under any Section of Part C:
a. For bodily injury or property damage which arises out of the ownership, maintenance or use of a motor vehicle, when the identity of the owner and operator of such motor vehicle remain unknown and such motor vehicle did not come into physical contact with a covered person or a motor vehicle occupied by a covered person, unless the covered person can prove by an independent and disinterested witness that the actions of the unknown driver were the cause of the bodily injury or property damage.

Thus, under both La.R.S. 22:1295(l)(f) and the policy in question, the two elements Plaintiff must prove in this case are: (1) the witness must be independent and disinterested, and (2) the witness must prove that the injury was caused by the driver of another vehicle.

The law is clear that the injured party bears the burden of proving that the “miss and run” accident occurred. Snowden v. Voyager Indem. Ins. Co., 01-0359 (La.App. 1 Cir. 5/24/02), 825 So.2d 1223, writ denied, 02-1710 (La.10/4/02), 826 So.2d 1127; Eudy v. State Farm Mut. Auto. Ins. Co., 620 So.2d 405 (La.App. 1 Cir.), writ denied, 625 So.2d 1041 (La.1993).

Both parties acknowledge the facts in this case are largely undisputed. The issue on appeal is whether the testimony of Corporal Janice satisfies the burden of proof required under La.R.S. 22:1295(1)(f) to prove the accident was caused by the driver of another vehicle.

In brief, Plaintiff characterized the sole issue presented for review as “whether a responding officer, when he is proven to be independent and disinterested, satisfies the requirement of Louisiana Revised Statute 22:1295(1)(f) |5of proof ‘by an independent and disinterested witness’ necessary to invoke uninsured/underinsured motorist coverage.” We cannot determine from the record if the trial court made any determination as to whether Officer Janice is an “independent and disinterested witness.” The trial court took the matter under advisement after the summary judgment hearing, and the judgment rendered states only that “the law and evidence [is] in favor of the Defendant” and “there exists no genuine issue of material fact that the policy of insurance issued ... does not provide coverage for the damages alleged by Plaintiff herein.” A determination that Officer Janice is “independent and disinterested” is only relevant if his testimony furthers Plaintiffs burden of proving another driver caused the accident.

Plaintiff argues the case of Wheat v. Wheat, 03-173 (La.App. 1 Cir. 11/7/03), 868 So.2d 83, supports her argument that the corroborating testimony of a state trooper is sufficient to meet her burden of proof under the statute. In Wheat, the plaintiff argued he struck an object in the roadway, which caused him to lose control of his vehicle, leave the roadway and sustain injury. The witness supplied by the plaintiff was an investigating police officer who unequivocally stated “his investigation revealed that the cause of the accident was a transmission left in the roadway by another vehicle.” Id. at 86. It was noted by the court in Wheat that the statute does not require that the independent and disinterested witness actually see the accident occur, but that “the claimant prove, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle.” Id. at 87.

In the instant case Corporal Janice acknowledged “there was nothing anywhere else around” to help substantiate Plaintiffs claim that she was run off the road by another vehicle. Although Corporal Janice stated in his deposition and report that he believed Plaintiffs account that she was run off the road by another vehicle, he noted he had no personal knowledge, simply what Plaintiff had relayed |Bto him. The investigating officer in Wheat made an independent analysis of the accident scene to determine that the cause of the accident was the vehicle hitting a transmission that was left in the roadway. Clearly, there was no indication in the instant case of any physical proof to support Plaintiffs version of events, in contrast to the trooper’s discovery of the transmission in Wheat.

Plaintiff argues there is nothing in Wheat which states that tangible, physical evidence must exist to corroborate the injured driver’s story. While that may be true, it is clear the appellate court in Wheat relied on the tangible, physical evidence discovered to reach its ruling that the trooper’s testimony corroborated Plaintiffs allegation of a “miss and run” accident. There is no such corroboration in the instant case.

We find no error in the trial court’s conclusion that Corporal Janice’s testimony did not create any genuine issue of material fact that Plaintiff failed to carry her burden of proving the injuries she suffered were caused by the actions of another driver. Thus, we affirm the trial court judgment granting summary judgment in favor of USAgencies. Costs of this appeal are assessed to Plaintiff-Appellant, Hattie Denise McCoy.

AFFIRMED.