author: McDonald, j. McCLENDON, J.,

text:
    Danny W. JONES v. TEXAS INDUSTRIES. Danny W. Jones v. Lafarge North America, Inc.
    Nos. 2013 CA 1272, 2013 CA 1273.
    Court of Appeal of Louisiana, First Circuit.
    March 19, 2014.

      Daniel B. Snellings, Bogalusa, Louisiana, Attorney for Plaintiff/Appellee Danny W. Jones.
    Michael E. Parker, Lafayette, Louisiana, Attorney for Defendant/Appellant Texas Industries.
    Joseph M. Guillot, New Orleans, Louisiana, Attorney for Defendant/Appellant La-farge North America, Inc.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

|2Panny W. Jones was working as a supervisor at Texas Industries on August 10, 2006 when he was injured lifting an outboard motor. Starting in September 2006, Mr. Jones was treated by Dr. John Logan, an orthopedic surgeon, for the injury to his lower back. He was treated with medication, steroid injections, and physical therapy. He continued to work with limitations.

The portion of Texas Industries that Mr. Jones worked for was purchased by La-farge North America, Inc. and Mr. Jones continued working at the same job for Lafarge North America. Texas Industries continued to pay for the medical treatment for Mr. Jones’ lower back injury. On April 1, 2009, Mr. Jones saw Dr. Logan, who maintained a conservative treatment plan. Mr. Jones was not interested in surgical options at that time, but he was getting less relief from the conservative measures. Mr. Jones was scheduled to see Dr. Logan for a follow-up visit on April 24, 2009, in part to discuss surgical options.

However, on April 23, 2009, Mr. Jones was working at Lafarge North America when he fell approximately four feet onto a conveyor belt, then into a handrail, losing consciousness. He injured his neck and middle back and aggravated his lower back injury. Lafarge North America paid for the treatment to Mr. Jones’s neck and middle back.

Thereafter, in August 2009, Dr. Logan recommended a two-level lumbar fusion to the lower back. However, Mr. Jones had a heart attack that month and was unable to pursue the surgery for six months. After Mr. Jones had recovered from his heart attack, several requests were made for the lower back surgery but they were denied by the workers’ compensation carriers. Mr. Jones filed separate disputed claims for compensation against Texas Industries and Lafarge North America, asserting that Dr. Logan had recommended surgery and the workers’ compensation carriers had refused to approve it. These disputed claims were ] ^consolidated for trial.

After a trial, the workers’ compensation judge found that the second accident aggravated the lower back injury from the first accident, which necessitated surgery to prevent permanent nerve damage. The workers’ compensation judge ruled that the defendants were liable in solido for the cost of the lower back surgery, plus all reasonable and necessary medical expenses related to that surgery and recovery; that the defendants were each liable for $1,000.00 in penalties and each liable for $2,500.00 in attorney fees; and defendants were assessed, in solido, with the costs of the proceedings.

Both defendants appealed the judgment, maintaining that the workers’ compensation judge erred in the assessment of fault. Texas Industries asserts that the lower back injury was caused entirely by the second accident at Lafarge North America, thus, it should not be held liable for any of the surgery and recovery expenses, which should be borne solely by Lafarge North America. Texas Industries also maintains that it was error for the workers’ compensation judge to order the defendants to pay for future medical expenses before they were incurred, and that the workers’ compensation judge erred in assessing costs to the parties in solido, absent any evidence of such costs. Lafarge North America asserts that the lower back injury was caused entirely by the first accident; thus, it should not be held liable for any of the surgery and recovery expenses, which should be borne solely by Texas Industries.

After a thorough review, we find no manifest error by the workers’ compensation judge in assessing the defendants in solido for the costs of the lower back surgery and recovery. The record shows that Mr. Jones injured his lower back in the first accident at Texas Industries, that the conservative treatment was no longer working as effectively as before, that he had discussed surgical options with his doctor, and that the second accident at Lafarge North America aggravated his |4lower back injury.

In regard to Texas Industries’ contention that the judgment included future medical expenses, we note that the judgment provided for “all reasonable and necessary medical expenses related to that surgery and recovery.” This is not an award of a specific amount for future medical expenses but rather an acknowledgment that Mr. Jones was entitled to future medical treatment related to the surgery and recovery.

An employer is obligated to furnish all necessary medical expenses related to a work injury. La. R.S. 23:1203. A claimant many recover medical expenses that are reasonably necessary for treatment of a medical condition caused by a work-related injury. Under La. R.S. 23:1203, liability for medical expenses arises only as those expenses are incurred. A worker’s compensation plaintiff is not entitled to an award for future medical expenses. However, the right to claim such expenses is always reserved to him. Starnes v. Asplundh Tree Expert, Co., 94-1647, (La.App. 1 Cir. 10/6/95), 670 So.2d 1242, 1247. We find no manifest error in the acknowledgment that Mr. Jones was entitled to the future medical treatment related to the surgery and recovery as provided by La. R.S. 23:1203.

With regard to costs, we note that the judgment assessed the defendants, in soli-do, for “all costs of these proceedings.” Louisiana Code of Civil Procedure article 1920 provides that except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. We find no manifest error or abuse of discretion in the assessment of costs against the defendants in solido by the Workers’ Compensation Judge.

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of the appeal are assessed one-half against Texas Industries and one-half against Lafarge North America, Inc.

AFFIRMED.

McCLENDON, J., concurs in part and dissents in part and assigns reasons.

McCLENDON, J.,

concurs in part, dissents in part, and assigns reasons.

| While I agree with the majority’s conclusion that the defendants are liable in solido for the costs of the lower back surgery and for the costs of the proceedings, I must disagree with the majority wherein they state that the judgment was merely an acknowledgement that Mr. Jones was entitled to medical treatment related to future surgery and recovery. The judgment specifically “assessed the costs of the low back fusion/surgery, plus all reasonable and necessary medical expenses related to that surgery and recovery there from.”

An employer is obligated to furnish all necessary medical expenses related to a work injury. LSA-R.S. 23:1208. However, under LSA-R.S. 23:1203, liability for medical expenses arises only as those expenses are incurred. A claimant is not entitled to an award for future medical expenses, but the right to claim such expenses is always reserved to the claimant. Knotts v. Snelling Temporaries, 27,773 (La.App. 2 Cir. 12/6/95) 665 So.2d 657, 660. See also Wilson v. Ebasco Services, Inc., 393 So.2d 1248,1253 (La.1981).

|2To the extent the judgment as written actually assessed future medical costs, I respectfully dissent in part.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Alicia MOORE v. CITY OF BATON ROUGE, Parish of East Baton Rouge, through Baton Rouge Police Department.
    No. 2013 CA 1026.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      Jill L. Craft, Crystal LaFleur, Philip J. Gallagher, Baton Rouge, Louisiana, for Plaintiff/Appellant Alicia Moore.
    C. John Naquin, Jr., Baton Rouge, Louisiana, for Defendant/Appellee Baton Rouge Police Department.

      Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

|2The plaintiff-appellant, Alicia Moore, seeks reversal of the Nineteenth Judicial District Court’s judgment to affirm the termination of her employment with the Baton Rouge Police Department (BRPD). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Moore was hired by BRPD on December 15, 1997. At the time of her termination, she was employed full-time as a Police Criminal Information Specialist II. Prior to the incident for which Ms. Moore was terminated, she had never been disciplined during her employment with BRPD.

On November 18, 2011, Ms. Moore was suspended from duty pending a pre-termi-nation hearing after BRPD found: 1) she improperly contacted the crime information unit (CIU) on August 21, 2011 to inquire about a traffic stop of Lafanery Reado, a convicted felon; 2) contacted a police officer to inquire about the traffic stop; and 3) went to the scene of the stop and spoke with one of the officers on the scene about the stop. In its pre-termi-nation memorandum, BRPD also alleged to have found an open text message from Ms. Moore to Mr. Reado where she instructed him not to consent to the police officers searching his vehicle during the stop.

BRPD’s memorandum claimed Ms. Moore took an active interest in Mr. Rea-do’s traffic stop because she and Mr. Rea-do were having an intimate relationship, even though she was aware that he was a convicted felon. Ms. Moore denied such a relationship with Mr. Reado, claiming that he was Dsimply her yard worker, and they had become friends after learning they were related to one another. Ms. Moore also claimed she had no knowledge of Mr. Reado’s felony conviction until the week of the traffic stop. She states in her petition that Mr. Reado had received a pardon for his conviction. Following the traffic stop, Ms. Moore claimed she had cut all personal ties with Mr. Reado.

BRPD charged Ms. Moore with conduct unbecoming of an officer, association with known criminals, and lack of truthfulness. In its interdepartmental correspondence with Ms. Moore, BRPD advised her that on August 21, 2011, police officers had stopped Mr. Reado in his vehicle after observing an equipment violation. Mr. Reado then claimed that he had just left Ms. Moore’s residence, and that he had apparently been speaking to Ms. Moore on his cell phone when he was stopped. Mr. Reado was unable to produce proof of insurance or registration for the vehicle, so the vehicle was towed to police headquarters. During an inventory search, a loaded .22 caliber revolver was found, along with a small bag containing suspected crack cocaine. Mr. Reado was charged with possession of CDS Schedule II and possession of a firearm.

|4BRPD claimed that once Ms. Moore learned of the traffic stop, she first contacted CIU to inquire if any information on Mr. Reado had been run, then contacted various police officers to inquire about the traffic stop, then went to the scene of the stop to speak with officers on the scene. While Mr. Reado was being transported to East Baton Rouge Parish Prison, he asked officers to retrieve two numbers from his mobile phone. As one officer complied with Mr. Reado’s request, he noticed an open text message reading “Do not let them search,” the time of the receipt of the message being when Mr. Reado was stopped. Mr. Reado did in fact deny consent to a search of his vehicle at the scene of the traffic stop. The contact name of the sender of the message was “50,” later determined to be Ms. Moore.

Mr. Reado’s criminal history showed he was convicted of second degree battery in 1999. BRPD concluded from all the text messages found on Mr. Reado’s mobile phone exchanged between him and Ms. Moore that they were engaged in an intimate relationship where she was aware that he was a convicted felon, but nevertheless associated with him on a continuing social basis.

Ms. Moore’s pre-termination hearing was held November 21, 2011. Ms. Moore claimed she was not allowed to adequately defend herself at the hearing, where she was often referred to by the Police Chief and other officers as a “traitor” and “Judas.” On November 30, 2011, BRPD notified Ms. Moore that her employment had been terminated, effective December 1, 2011. She appealed BRPD’s decision, and a hearing was held on May 17, 2012, before the Municipal Fire & Police Civil Service Board (the Board).

In her recorded statement before the Board, Ms. Moore admitted to speaking to Mr. Reado over the phone when he was stopped by the police. She was off duty at the time. As she was driving to run a personal errand, |sshe happened to approach where Mr. Reado had been stopped by eight police cars, which she believed to be an excessive show of force for a routine traffic stop. She stopped a block away from the stop to observe out of view from the stop, and texted “Do not let them search” to Mr. Reado at that time. Ms. Moore attempted to justify her actions with allegations she had heard around her community of police misconduct.

While Ms. Moore denied having an intimate relationship with Mr. Reado, she did state that at times they were flirtatious with their text messages. She admitted texting “I love you” to Mr. Reado, but asserted that the context of the text was platonic and she had no interest in an intimate relationship with Mr. Reado. She claimed to not being aware that Mr. Reado was a convicted felon at the time she had sent those texts. She maintained that at no time did she intervene or interfere with Mr. Reado’s traffic stop, and that it was routine for off-duty officers to call for information on stops and arrests. She claimed to have no knowledge of Mr. Rea-do’s prior felony conviction until the week of the traffic stop, and she presented a copy of Mr. Reado’s first-offender pardon letter from the Louisiana Department of Probation and Parole at the appeal hearing.

The Board unanimously upheld BRPD’s decision to terminate Ms. Moore’s employment. Ms. Moore then appealed the Board’s decision to the 19th JDC. The district court affirmed the Board’s decision on February 27, 2013, and the judgment was signed April 10, 2013. This appeal followed.

ASSIGNMENTS OF ERROR

Ms. Moore alleges three assignments of error:

1. The district court and the Board erred in failing to exclude certain evidence.
j-,2. The district court and the Board committed manifest error when they held that the appointing authority established by a preponderance of the evidence that the alleged dereliction bore a real and substantial relationship to the efficient operation of the appointing authority, and that Ms. Moore was, therefore terminated for “cause.”
3. The district court erred in affirming the decision of the Board and finding that the appointing authority’s actions were not arbitrary and capricious.

STANDARD OF REVIEW

A civil service commission or board must decide not only if a disciplinary action has been made in good faith for cause, but additionally must make an independent assessment of whether the particular punishment imposed is warranted. This duty of the Board interposes a check on BRPD’s ability to impose discipline. See City of Bossier City v. Vernon, 2012-0078 (La.10/16/12), 100 So.3d 301, 311-312.

The Board’s responsibility to undertake an independent review of the evidence, however, is in stark contrast to a reviewing court’s authority in reviewing the Board’s decision. See City of Bossier City at 311. Judicial review of the Board’s adjudication by the district court is authorized by La. R.S. 49:964. In reviewing the Board’s decision, the district court has a multifaceted review function. See Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 113-14 (La.1984). First, deference will be given to the factual conclusions of the Board. Accordingly, in deciding whether to affirm the Board’s factual findings, the district court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. See Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 7So.2d 641, 647. Second, in evaluating the Board’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Board’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion. See Lange v. Orleans Levee District, 2010-0140 (La.11/30/10), 56 So.3d 925, 934. “Arbitrary or capricious” means the absence of a rational basis for the action taken. Bannister, 666 So.2d at 647.

DISCUSSION

Ms. Moore alleges that it was error on the part of the Board and the district court not to exclude specific evidence from the appeal hearing, i.e. a copy of Mr. Rea-do’s text messages. This evidence was admitted over the objection of Ms. Moore’s counsel. Ms. Moore claims that Mr. Rea-do’s cell phone was illegally seized during the arrest and therefore not admissible. Her argument is very similar to what would be found in a motion to suppress evidence in a criminal trial. We do not have to consider this issue of whether or not Mr. Reado’s text messages were admissible, because proof of the text messages comes from two other legitimate sources. When Mr. Reado requested two numbers from his cell phone, a police saw the open text message “Do not let them search” on the phone as he handed it to Mr. Reado. Since the officer testified to seeing the message, the actual admission of the text message is not necessary.

The officer’s testimony is corroborated by Ms. Moore herself, when she admitted in the hearing that she texted “Do not let them search” to Mr. Reado. She also admitted texting “I love you” to Mr. Rea-do, which is suggestive of an intimate relationship. Therefore, even if the Board erred in allowing the text messages as evidence, it was harmless error. Ms. Moore’s first assignment of error is without merit.

|SA permanent classified civil servant employee cannot be disciplined without cause. La. Const, art. 10, § 8. “Cause” sufficient for the imposition of discipline means “conduct that impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged.” Marsellus v. Department of Public Safety and Corrections, 2004-0860, p. 5 (La.App. 1 Cir. 9/28/05), 923 So.2d 656, 660, citing Wopara v. State Employees Group Benefits Program, 2002-2641, p. 3 (La.App. 1 Cir. 7/2/03), 859 So.2d 67, 69. The employee must first receive due process, as the employee has a property interest in maintaining her employment. Lange, 56 So.3d at 930. While there are no specific requirements as to how due process must be carried out, the method must be essentially fair to the employee by adequately giving notice of the appointing authority’s action and an adequate opportunity for the employee to respond. Id.

The cause for which Ms. Moore was disciplined is clear. BRPD sent to Ms. Moore an interdepartmental correspondence dated November 14, 2011, before the pre-termination hearing, in which the allegations were detailed and the sections of the policies and procedures manual which BRPD claimed she violated were listed. Ms. Moore acknowledged receipt of the correspondence by her signature on November 18, 2011. The pre-termination hearing was held on November 21, 2011. While there is no contemporaneous record of that hearing, another interdepartmental correspondence dated November 30, 2011 was sent to Ms. Moore which described the evidence introduced against her.

The correspondence also indicates Ms. Moore was present at the hearing with her attorney and that she was allowed to present any evidence she had in her defense. While Ms. Moore claims in her brief that she was |9unable to adequately defend herself at the hearing while the Police Chief and other officers called her names, she does not dispute that her attorney was present to defend her, and there is no objection by her or by her attorney in the record as to the fairness of the hearing, outside of the objection to the admissibility of the text messages.

We find BRPD’s disciplinary action against Ms. Moore was made for cause, and that it was factually based. Additionally, the Board’s independent review and agreement with BRPD’s assessment and disciplinary action, and the district court’s affirmation of the Board’s decision, were not manifestly erroneous nor arbitrary or capricious, Ms. Moore’s second and third assignments of error are without merit.

CONCLUSION

We find the Board’s affirmation of BRPD’s termination of Ms. Moore’s employment for cause was not arbitrary or capricious or an abuse of discretion. Likewise, the district court’s affirmation of the Board’s action was not manifestly erroneous.

DECREE

The Nineteenth Judicial District Court’s judicial review of the Municipal Fire & Police Civil Service Board’s order to terminate Alicia Moore’s employment with the Baton Rouge Police Department is affirmed. All costs of this appeal are assessed to the appellant, Alicia Moore.

AFFIRMED.

KUHN, J., concurs in result.

HIGGINBOTHAM, J., concurs in the result.

      . In her recorded statement before the Municipal Fire & Police Civil Service Board, Ms. Moore described this position as supervisory, where she was tasked with supplying police officers over the radio or telephone with information regarding individuals they contacted while on duty. In BRPD’s interdepartmental correspondence dated November 14, 2011, her position is shown as "Criminal Information Specialist I." In the November 30, 2011 correspondence, her position is shown as "Criminal Information Specialist II.” We shall presume that her title on the November 14, 2011 correspondence contains a typographical error.

      . The pertinent disciplinary articles in BRPD’s Policies and Procedures Manual Disciplinary Code, Section XII, are as follows:
      0:0 Violators Subject to Disciplinary Action
      All members of the Baton Rouge Police Department, regardless of rank or assignment, are subject to disciplinary action for any violation of the rules, procedures or department policy contained herein or in other procedural manuals issued by the Department. It is not necessary the violation be intentional, but may be by omission or failure.
      2:10 Conduct Unbecoming an Officer
      Every member of the Department, whether on or off duty, in an official or unofficial capacity, must conduct himself at all times in such a manner as to set a good example for all others with whom he may come into contact. He shall in no way, through actions or neglect, bring dishonor or disgrace upon himself or the Baton Rouge Police Department.
      3:21 Association with Known Criminals

        No member will knowingly associate on a continuing social basis with individuals who have been convicted of any felony without prior written approval of the Chief of Police, or except as part of an authorized investigation.
      3:23 Truthfulness
      Every member of the Department is required to be truthful except while conducting investigations that require surreptitiousness.


author: PARRO, J.

text:
    Kevin MADDOX v. Patricia BAILEY, Diesel Specialists, and 21st Century National Insurance Company.
    No. 2013 CA 0564.
    Court of Appeal of Louisiana, First Circuit.
    May 19, 2014.

      D. Blayne Honeycutt, Colt J. Fore Fa-yard and Honeycutt, APC, Denham Springs, LA and Timothy E. Pujol, Matthew W. Pryor, Pujol, Pryor & Irwin, Gonzales, LA for Plaintiff-Appellant Kevin Maddox.
    Richard D. Roniger, II, Thomas H. Barnett, Sheryl M. Howard, John W. Nor-wood, IV, Barnett & Roniger, New Orleans, LA, for Defendants-Appellees Patricia Bailey, Diesel Specialists, and 21st Century National Ins. Co.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   PARRO, J.

IsKevin Maddox appeals a judgment rendered in accordance with a jury verdict, awarding him damages for certain injuries he sustained as the result of a rear-end collision. He seeks additional general and special damages. For the following reasons, we amend the judgment and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

On September 20, 2010, Maddox was driving southbound on Airline Highway in Baton Rouge on his way home from work. He stopped behind several other vehicles at a red light near the entrance to Hammond Aire Shopping Center. When the light turned green, he lifted his foot from the brake, but had not yet put his foot on the accelerator when his vehicle was struck from behind by a truck driven by Patricia Bailey. For over a year following the accident, Maddox was treated for neck, lower back, and left shoulder pain.

On February 18, 2011, Maddox filed suit against Bailey; her employer, Diesel Specialists, Inc. (Diesel); and Diesel’s insurer, 21st Century National Insurance Company (21st Century). Maddox claimed that Bailey was within the course and scope of her employment with Diesel when the accident occurred; that Diesel was insured by 21st Century under a general automobile liability policy; and that the accident was caused solely by the fault of Bailey. He sought damages for his mental and physical pain and suffering, as well as lost wages and past and future medical expenses caused by the accident. The defendants answered and moved for a trial by jury. A jury trial was held on July 30 and 31, 2012, after which the jury returned a verdict in favor of Maddox, awarding him the following damages:

Past medical expenses: $28,570.97

Past and future physical pain and suffering 3,000.00

Past and future mental pain and suffering 3,000.00

Loss of enjoyment of life 2,000.00

The amount awarded for past medical expenses completely omitted the cost of treatment for an injury to Maddox’s left shoulder, which required epidural steroid ^injections, arthroscopic surgery, and physical therapy. On October 4, 2012, the trial court signed a judgment in accordance with the jury’s verdict, ordering the defendants to pay Maddox $36,570.97. Maddox filed a motion for a judgment notwithstanding the verdict or, in the alternative, motion for a new trial and/or additur, seeking additional damages for the injury to his left shoulder. The motion was denied by the trial court, and this appeal of the October 4, 2012 judgment followed.

Maddox claims on appeal that the trial court committed legal error by permitting “trial by ambush,” in that, over his objection, the court allowed defendants’ expert, Dr. Lawrence Messina, to testify to a new theory concerning Maddox’s left shoulder condition, which was contrary to what he had stated in his deposition just two weeks prior to trial and which had not been revealed to plaintiffs counsel before trial. Because this legal error interdicted the jury’s findings to his detriment, Maddox asks this court not to consider Dr. Messi-na’s testimony and to award damages based on a de novo review of the record. Finally, even if Dr. Messina’s testimony is considered, Maddox contends the jury award was abusively low and asks this court to correct it.

APPLICABLE LAW

Standard of Review

A court of appeal may not overturn a judgment of a trial court unless there is an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 03-1361 (La.App. 1st Cir.9/17/04), 897 So.2d 616, 617, writ denied, 04-2572 (La.12/17/04), 888 So.2d 872. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only |4if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07-1686 (La.App. 1st Cir.8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La.l1/14/08), 996 So.2d 1092. If the trial court’s factual findings are reasonable in light of the record reviewed in Its entirety, the court of appeal may not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. LeBlanc v. Appurao, 13-0491 (La.App. 1st Cir.2/13/14), 138 So.3d 1, 2. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1st Cir.6/27/03), 865 So.2d 98, 105, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Dubuisson v. Amclyde Engineered Products Co., Inc., 12-0010 (La.App. 1st Cir.12/31/12), 112 So.3d 891, 895.

With regard to questions of law, appellate review is simply a review of whether the trial court was legally correct or legally incorrect Hidalgo v. Wilson Certified Exp., Inc., 94-1322 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. In re Mashburn Marital Trust, 04-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, 246, writ denied, 06-1034 (La.9/22/06), 937 So.2d 384.

Expert Testimony

Admissibility of expert testimony in Louisiana is governed by Louisiana Code of Evidence article 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

A district court is accorded broad discretion in determining whether expert testimony | ¿should be held admissible and who should or should not be permitted to testify as an expert. Cheairs v. State ex rel. Dep’t of Transp. and Dev., 03-0680 (La.12/3/03), 861 So.2d 536, 540-41. The district court’s decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Medine v. Roniger, 03-3436 (La.7/2/04), 879 So.2d 706, 711.

Louisiana Code of Evidence article 103(A) provides that error may not be predicated upon a ruling admitting or excluding evidence unless a substantial right of the party is affected. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. LSA-C.E. art. 403. In reviewing evidentiary decisions of the trial court, the appellate court must consider whether the particular ruling complained of was erroneous and if so, whether the error prejudiced the complainant’s cause, for unless it did, reversal is not warranted. Brumfield v. Guilmino, 93-0366 (La.App. 1st Cir.03/11/94), 633 So.2d 903, 911, writ denied, 94-0806 (La.05/06/94), 637 So.2d 1056. The determination is whether the error, when compared to the record in its totality, had a substantial effect on the outcome of the case. Id. Legal errors are prejudicial when they materially affect the outcome of the trial and deprive a party of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. When a legal error interdicts the fact finding process, the manifest error standard no longer applies. If the record is otherwise complete, the reviewing court should conduct a de novo review. Landry v. Bellanger, 02-1443 (La.5/20/03), 851 So.2d 943, 954.

Duty to Supplement Discovery Response

Louisiana Code of Civil Procedure article 1428(A) states, in pertinent part:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters, and the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
|fi(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which he knows that the response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (emphasis added).

In Abdon Callais Boat Rentals, Inc. v. Louisiana Power and Light Co., 555 So.2d 568, 576 (La.App. 1st Cir.1989), writ denied, 558 So.2d 583 (La.1990), this court noted that a “survey of relevant Louisiana cases revealed a judicial concern for maintaining a fair give-and-take of information between litigants.” The trial judge has great discretion in deciding whether to receive or refuse the testimony objected to on the grounds of failure to abide by the statutory mandate, but any doubt must be resolved in favor of receiving the testimony. When a party has not satisfied the technicality of supplementing discovery responses, the reviewing court can look to the record for a willful or negligent failure to disclose new information in determining whether the trial judge abused his discretion. A party’s failure to cooperate after the discovery is made can color the final decision on admissibility. Id.; see also Lodrigue v. Houma-Terrebonne Airport Comm’n, 450 So.2d 1004,1006-07 (La.App. 1st Cir.1984).

ANALYSIS

At trial, Maddox’s treating physician, Dr. F. Allen Johnston, a board certified orthopedic surgeon, stated that during his 27 years of practice, he had performed “hundreds if not thousands” of shoulder surgeries. He testified that Maddox came to his office for his initial visit on September 30, 2010, just ten days after the accident, complaining of pain in three areas— the neck, lower back, and shoulders. After conducting an examination, Dr. Johnston believed that Maddox possibly had a pinched nerve in his neck that was causing the pain in his left shoulder and arm; he prescribed a conservative course of treatment, including physical therapy, anti-inflammatory medications, pain medications, and muscle relaxers. Because the left shoulder pain did not abate after several months, on December 14, 2010, Dr. Johnston injected the shoulder with cortisone and ordered an MRI. The MRI of the left shoulder suggested a torn rotator cuff, and Dr. Johnston recommended arthroscopic surgery to the shoulder to confirm the tear and fix it. Maddox was hesitant to have the surgery, so Dr. |7Johnston tried to relieve the pain with epidural steroid injections. When this failed, on June 14, 2011, Dr. Johnston performed the surgery. During the surgery, Dr. Johnston discovered that Maddox had a tear of the lab-rum; “the labrum was detached.” He repaired the condition by re-attaching the labrum to the glenoid or bony socket with a screw as an anchor. Dr. Johnston said the surgery was successful, and that he had not seen Maddox since December 2011. He stated that there was no doubt in his mind that the labral tear in Maddox’s left shoulder was caused by the accident.

The following day, the defense began to put on its case, calling as its second witness Dr. Lawrence Messina, who was accepted by the court as an expert in orthopedic surgery. Maddox did not and does not object to the credentials of Dr. Messi-na or his qualifications in the field of orthopedic surgery. However, when Dr. Messina began testifying at trial, Maddox’s counsel learned for the first time that Dr. Messina had developed a totally new theory concerning Maddox’s left shoulder, a theory that was drastically different from deposition testimony he had given just two weeks earlier. In his deposition, Dr. Messina had opined that Maddox’s left shoulder problem was not caused by or related to the rear-end collision, because Dr. Johnston’s notes did not show specific complaints about pain in the left shoulder until several months after the accident, on December 14, 2010. Dr. Messina stated in his deposition that if the accident had caused a rotator cuff tear or torn labrum in the left shoulder, Maddox would have complained of pain and limitation of motion immediately and continuously after the accident. Since Dr. Messina’s review of Maddox’s medical records had not revealed such complaints of left shoulder pain, he concluded that the accident had not caused the problem. Based on this deposition, Maddox’s attorney prepared to show during cross-examination at trial that records from Maddox’s physical therapy, which began within a month after the accident, showed that on virtually every visit, Maddox had complained of unremitting left shoulder pain. This information from Maddox’s physical therapy records would have undercut Dr. Messina’s basis for his opinion.

However, during his trial testimony, Dr. Messina did not rely on this time delay ^between the accident and onset of pain to substantiate his opinion. Rather, he stated that, after reviewing Dr. Johnston’s operative report again, he had concluded that Maddox’s left shoulder did not have any labral abnormality at all. Instead, he opined that Maddox had a congenital condition called a “Buford complex,” which is a “normal anatomic variant that we see in the shoulder. It doesn’t cause pain and it can’t be confused for a labral abnormality.” Dr. Messina referred to several textbooks in which there were drawings of a “Buford complex,” and stated that those showed “just exactly what Dr. Johnston describe[d]” in his operative report. Though defense counsel had not seen the reference books and articles discussed by Dr. Messi-na, he knew that Dr. Messina had altered his opinion concerning the left shoulder, yet had not told Maddox’s counsel of that information and had not revised his discovery response.

Upon hearing this theory from Dr. Messina, Maddox’s counsel sought a bench conference, at which he stated to the court:

We sent discovery to [defense counsel] asking for a copy of all exhibits. When Dr. Messina’s deposition was taken two weeks ago, we asked him what treatises he was going to be consulting, and he gave us one, none of this stuff. I object to this.... This is completely [beyond] the pale, so I’m going to object to this whole line of questioning and ask to strike it and ask [defense counsel] to move off of this.
Dr. Messina’s deposition, this deposition was taken last week, two weeks ago. I mean, this is all last-minute stuff. They’re trying to catch us by surprise. How am I supposed to cross-examine something I’ve never seen before? I’m getting it for the first time sitting over here. I mean, it’s just inherently unfair. ...

Defense counsel agreed not to offer the reference books as exhibits, at which point, Dr. Messina’s testimony was limited by the court to a verbal explanation of the “Buford complex.” Dr. Messina then said that Dr. Johnston had not repaired a torn lab-rum during surgery, but that “he sewed the Buford complex down to the anterior portion of the glenoid. The operative report is pretty clear.” Dr. Messina stated that the operative report did not detail a number of steps that could have been taken to determine whether the problem was actually a torn labrum or a “Buford complex,” explaining:

None of those things were done during Dr. Johnston’s arthroscopic examination. Certainly they weren’t indicated in his operative report. So, I don’t [know] how you could differentiate between what I interpreted looking at [this] as a Buford complex and a superior labral tear.

| ¡Although Maddox’s attorney had the opportunity to cross-examine Dr. Messina, there was no opportunity to re-call Dr. Johnston to the stand to rebut his testimony, and the case went to the jury with Dr. Messina’s opinion as the “last word” in evidence on the subject of Maddox’s left shoulder injury.

This court has examined a number of cases to determine whether there is a pattern that can be followed in analyzing whether certain expert testimony should have been disallowed by the trial court in order to ensure a fair trial. In Williams v. General Motors Corp., 93-0287 (La.App. 4th Cir.6/15/94), 639 So.2d 275, 288 (on rehearing), writ denied, 94-1898 (La.11/11/94), 644 So.2d 388, the Fourth Circuit concluded that the trial court erred by permitting the jury to receive evidence to prove a manufacturing defect in the rack and pinion steering assembly of the vehicle involved in the case, when the entire case had been premised on the existence of a design defect in the torsion bar as the cause of the accident. Williams had alleged in his petition a design defect in the torsion bar, and the case proceeded through discovery and the early stages of trial on the theory that this defect created problems with the steering wheel tension, causing the Buick to veer to the left out of control. At trial, the plaintiffs expert, Neil Mizen, testified that a defective torsion bar caused the accident, but revised his opinion on cross-examination to agree with General Motors’ defense that a design defect in the torsion bar would not have caused the Buick to malfunction in the manner the plaintiff had described. Id. On redirect examination, “almost as an afterthought, Williams’ counsel asked Mizen if there was any other possible defect that would have caused the accident, and it was only then that Mizen raised the possibility of a manufacturing defect in the rack and pinion steering assembly.” Id. at 288-89. In making its ruling, the Fourth Circuit stated:

General Motors spent five years researching its case to defend against allegations of a design defect in the torsion bar. Yet over General Motors’s objection, after a three day continuance, Williams was allowed to adopt a new theory of causation and to introduce evidence of an alleged manufacturing defect to support this new theory.... This type of unfair trial proceeding is prohibited by [LSA-]C.C.P. Article 1425, which declares that “the subject matter on which the expert is expected to testify, and ... the substance of the facts to which the expert is expected to testify” must be disclosed through interrogatories and depositions. Case law has interpreted this provision to “protect a party from prejudicial surprise at |intrial by the introduction of evidence not previously known by him to exist, and against which he could not therefore have prepared a rebuttal.”
[I]n this case the trial court erred by allowing the trial to proceed on a new issue which was brought up after three days of trial and for which there was no discovery and no opportunity for General Motors to prepare a defense. Although a trial judge has broad discretion in deciding whether it should permit expert testimony, the trial court erred by permitting the testimony under the circumstances and in the face of discovery articles designed to promote fair trials and to discourage “ambush”. The trial court should have excluded the evidence.

Id. at 289 (citations omitted).

In a case involving injuries received by a student in a fraternity hazing incident, the plaintiffs argued on appeal that the trial court erred in allowing the State’s vocational rehabilitation expert, Dr. Richard Galloway, to testify on the issue of the injured student’s loss of earning capacity. According to plaintiffs, Dr. Galloway should not have been allowed to change his opinion on the eve of trial to the prejudice of plaintiffs, based on his review of the student’s grade transcript from Louisiana Tech. Dr. Galloway testified that the student’s poor grades showed that he probably lacked the ability to achieve his stated goal of becoming a physical therapist. Morrison v. Kappa Alpha Psi Fraternity, 31,805 (La.App. 2nd Cir.5/7/99), 738 So.2d 1105, 1110-11, writs denied, 99-1668, 1607, and 1622 (La.9/24/99), 747 So.2d 1120, 749 So.2d 634, and 749 So.2d 635. The plaintiffs had strenuously resisted the State’s efforts to provide Dr. Galloway with the student’s grade transcript, although their own vocational rehabilitation expert had reviewed the transcript well in advance of trial. The trial court, on the Friday before trial, ordered production of the student’s college transcript. Id. at 1111. The court then allowed plaintiffs to depose Dr. Galloway just prior to his testimony to determine the effect, if any, his review of the transcript had on his opinion. The court also afforded plaintiffs an opportunity to have their experts testify on rebuttal. Id. On appeal, the Second Circuit concluded that the trial court had properly allowed Dr. Galloway’s testimony, noting that the plaintiffs had resisted the State’s efforts to provide Dr. Galloway with the student’s transcript, even though their vocational rehabilitation expert had a copy of the transcript. Therefore, any delay in the transcript’s production or change in Dr. Galloway’s opinion after his review was 11,caused by the plaintiffs. Moreover, plaintiffs were able to cross-examine Dr. Galloway and call their own experts back on rebuttal. Therefore, the trial court did not err in admitting his testimony. Id. at 1111-12.

In a slip and fall case, Shows v. Shoney’s, Inc., 98-1254 (La.App. 1st Cir.7/29/99), 738 So.2d 724, 730, this court held that the trial court had not abused its discretion in refusing to allow testimony from seven expert witnesses that Shoney’s named in a supplemental response to the plaintiffs discovery and in limiting Sho-ney’s medical defense to only one medical expert. Citing LSA-C.C.P. art. 1428, this court noted that the identities of any expert witnesses, as well as the subject matter and the substance of their testimony, were required to be supplied by way of supplementation of discovery responses, and that the duty to supplement responses could be imposed by order of the court. The trial court’s case management schedule established such an order by setting a discovery cutoff date of December 10, 1997. As early as 1991, the plaintiff had asked for information from Shoney’s regarding the expert witnesses who were expected to testify at trial. Shoney’s knew of the plaintiffs claims and had ample opportunity to develop its medical defense and sufficient time to supplement its responses to the plaintiffs discovery request regarding expert witnesses prior to the December 10, 1997 deadline. Yet it did not supplement its responses until January 9, 1998, one month before trial. Despite this untimely response, the court ordered the plaintiff to submit to a last-minute independent medical exam and allowed one of Shoney’s expert witnesses to testify at trial regarding that exam. Therefore, this court concluded that Shoney’s was not prejudiced by the trial court’s decision to strike the other six expert witnesses. Id.

In an earlier case involving an automobile accident, Lodrigue, 450 So.2d at 1006, this court concluded that the trial court did not err in refusing to allow the plaintiffs’ expert to testify at trial. The defendants had propounded interrogatories to the plaintiffs on November 3, 1980, seeking information as to the identity of any expert whom plaintiffs intended to call as a witness. Plaintiffs’ initial response was that they were undecided as to whether an expert would be called. Trial was scheduled for | ^September 16, 1982, and the plaintiffs did not provide opposing counsel with their supplemental response, which included the name of an expert witness, until nine days before trial. Additionally, plaintiffs’ counsel was uncooperative in defendants’ request to depose the witness prior to trial. Citing LSA-C.C.P. art. 1428 and noting that the defendants were prejudiced in their discovery efforts by the plaintiffs’ failure to seasonably supplement their answers, the trial court refused to allow the testimony of the witness. Id. at 1006-07. Under these circumstances, this court found no abuse of discretion in the trial court’s ruling. Id. at 1007.

In Krepps v. Hindelang, 97-980 (La.App. 5th Cir.4/15/98), 713 So.2d 519, 527, the Fifth Circuit affirmed the trial court’s conclusion that the plaintiffs could not have their economic expert testify as to the injured party’s claim for lost wages, because the plaintiffs did not disclose the expert in interrogatories propounded by the defendants over two years before trial, did not indicate in their answers that an economic expert would be used at trial, did not supplement or amend their answers to those interrogatories, and disclosed the identity of the expert only in the pretrial order shortly before the trial date. In ruling that the plaintiffs’ economic expert could not testify at trial, the trial court stated:

[T]he listing of the witness in the pretrial order which comes shortly before the actual trial does not meet the requirements of the local rules, nor does it meet the court’s own requirements with respect to trial preparation.

Id. at 527. The appellate court stated it found no error in the trial court’s ruling, in that it was clear that the trial court made its decision based on the fact that the plaintiffs had failed to adequately respond to the interrogatories propounded by the defendants years before the trial and based on the plaintiffs’ failure to amend their answer. Id.

After reviewing the jurisprudence and comparing the above cases and others to the matter before us, we conclude that the trial court abused its discretion in allowing Dr. Messina to testify at trial to a totally different theory concerning Maddox’s left shoulder than he had expressed in his deposition just two weeks earlier. In the cases in which experts were not allowed to testify due to violations of LSA-C.C.P. art. 1428, the appellate courts generally noted that the party seeking to have the testimony | ^allowed had willfully or negligently failed to disclose important new information. Also, that failure to disclose the new information had significantly prejudiced the other party’s case by not allowing an opportunity to adequately defend against the new opinion. In this case, defense counsel knew Dr. Messina had altered his opinion, yet did not inform Maddox’s attorney about this and did not amend or supplement discovery responses to indicate that the substance of Dr. Messina’s testimony had changed. Therefore, Maddox’s attorney was completely blindsided by Dr. Messina’s new theory concerning Maddox’s left shoulder condition, which came out in his testimony on the second day of the jury trial. Although Maddox’s attorney did cross-examine Dr. Messina as well as he could under the circumstances, he had no time to prepare for cross-examination by consulting with his own expert or reviewing the texts on which Dr. Messina’s testimony was based. Also, since Dr. Johnston, Maddox’s treating physician, had testified, on the first day of trial and Dr. Messina testified on the second day of trial, Dr. Johnston did not hear the “Buford complex” theory and was not in court to rebut it. Defense counsel suggests that by failing to seek a continuance, Maddox “waived” his right to object to the admission of Dr. Messina’s testimony. We disagree. In this case, the jury had already heard the basic outlines of the “Buford complex” testimony before Maddox’s counsel even had the chance to recognize this as a new theory and object to it. Also, it is unlikely that the court would have disrupted its schedule and inconvenienced the jury by granting a continuance in the middle of the trial.

Our review of the record as a whole convinces us that Maddox’s case was seriously compromised by Dr. Messina’s testimony. In his opening statement to the jury, defense counsel stated, “We’re here for a shoulder, left shoulder really. That’s what this whole case is about, the left shoulder.” He also said that Dr. Messina would tell the jury that “when somebody suffers a traumatic shoulder injury you know it; it hurts, it hurts right away.” This statement focused the jury’s attention on the left shoulder and reiterated Dr. Messina’s deposition testimony about his opinion. Dr. Messina’s testimony about a “Buford complex” was the only evidence in the record that provided an explanation, other than the accident, for Maddox’s left shoulder condition. 114If the jury had any doubts about the left shoulder, Dr. Messi-na provided the explanation that would allow them to do what defense counsel suggested in closing argument — eliminate all the medical expenses attributable to the left shoulder surgery:

You look at the medicals that were provided. They’re very easy to break out. BRASS Surgery Center, $14,468, all shoulder surgery. Cut him off. The rest of them come off of Advance Therapy. That’s his therapy for his shoulder after. Cut it off. Dr. Johnston’s fee for the surgery and other charges, about $8,600. Total amount related to the shoulder scope, $26,632.

The jury subtracted approximately this amount from the total medical expenses incurred by Maddox as a result of the accident. When compared to the record in its totality, it is clear that Dr. Messina’s testimony had a substantial prejudicial effect on the outcome of the case for Maddox. Therefore, the trial court erred in allowing that testimony to be presented to the jury.

Maddox urges this court to conduct a de novo review of the evidence, ignoring Dr. Messina’s testimony and rendering an opinion on the record before us. When a legal error interdicts the fact finding process, the manifest error standard no longer applies, and if the record is otherwise complete, the reviewing court should conduct a de novo review. Landry, 851 So.2d at 954. Since the trial court’s error in this case did interdict the jury’s fact finding process to the substantial detriment of Maddox, and since the record is otherwise complete after deleting Dr. Messina’s testimony about the “Buford complex,” we have conducted a de novo review of the record. Based on that review, we conclude that, in addition to the bulging discs in his neck and lower back, Maddox proved that he suffered a torn labrum in his left shoulder as a result of the accident. Therefore, the costs of repairing that injury should be awarded to him. See Carpenter v. Johnson, 95-0481 (La.App. 1st Cir.12/15/95), 664 So.2d 1354, 1858 (trier of fact errs when it fails to award the full amount of medical expenses proven by a victim). The medical records show that the total medical expenses incurred by Maddox, including the arthroscopic surgery and follow-up therapy for his left shoulder injury, were $54,891.97. Accordingly, we award that amount for past medical expenses.

In addition, we find that the awards for physical pain and suffering, mental pain and suffering, and loss of enjoyment of life should also reflect the damages attributable 115to Maddox’s left shoulder injury, in addition to the other injuries to his neck and lower back. General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La.App. 1st Cir.), writs denied, 605 So.2d 1373 and 1374 (La.1992). The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration. Jenkins v. State ex rel. Dep’t of Transp. and Dev., 06-1804 (La.App. 1st Cir.8/19/08), 993 So.2d 749, 767, writ denied, 08-2471 (La.12/19/08), 996 So.2d 1133.

Maddox experienced constant pain in his left shoulder for almost ten months, until the arthroscopic surgery repaired the torn labrum in June 2011. During that time, although he continued to work through the pain as a truck driver to support his family, he could not participate in family activities and sports that he had previously enjoyed. Epidural steroid injections eventually resolved the injuries to his neck and lower back, but these procedures were not successful in treating his left shoulder. Maddox tried every conservative measure suggested by his treating physician, seeking to avoid surgery, but finally the pain in his left shoulder became too severe, and he had to undergo the surgical procedure. Following the arthroscopic surgery, he had an additional six weeks of physical therapy to regain full use of his left shoulder and arm. The surgery was successful, and he did not return to the orthopedist after December 2011. Based on the nature and severity of his injuries, the length of time before all of his injuries were resolved, and the number and types of treatments required, we conclude that an award of $40,000 would compensate him for physical pain and suffering; $25,000 would compensate him for mental pain and suffering; and $5,000 would compensate him for loss of enjoyment of life. See Andrus v. State Farm Mut. Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206, 1210 ($75,000 — fractured thoracic vertebra, TMJ, cervical injury, cervical fusion); Gleber v. Mayfield, 11-1209 (La.App. 1st Cir.2/10/12), 2012 WL 602072 (unpublished) ($150,000 — bulging cervical disc, radiculopathy, carpal tunnel syndrome, right shoulder arthroscopy); Ibrahim v. 16Hawkins, 02-0350 (La.App. 1st Cir.2/14/03), 845 So.2d 471, 475 ($60,-000 — arthroscopic shoulder surgery, fractured rib, soft tissue injuries, physical and psychological therapy); Birdsall v. Regional Elec. & Const. Inc., 97-0712 (La.App. 1st Cir.4/8/98), 710 So.2d 1164, 1169 ($150,000 — herniated cervical disc, cervical fusion); Quinn v. Wal-Mart Stores, Inc., 34,280 (La.App. 2nd Cir.12/6/00), 774 So.2d 1093, 1100-01, writ denied, 01-0026 (La.3/9/01), 786 So.2d 735 ($150,000-shoulder labral tear, arthroscopic surgery, major rotator cuff tear, probable future surgery).

CONCLUSION

For these reasons, we amend the October 4, 2012 judgment of the trial court and enter judgment in favor of Kevin Maddox and against Patricia Bailey, Diesel Specialists, Inc., and 21st Century National Insurance Company, in the amount of $124,891.97. In all other respects, the judgment is affirmed. Costs of this appeal are assessed against the defendants.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

      . All medical records had been provided to defense counsel during discovery, and Dr. Messina reviewed these in preparation for his deposition and trial.


author: CRAIN, J. McCLENDON, J., WELCH, J.,

text:
    Lauren E. ROBERTS v. Lauren RUDZIS, Richard Fischer, and Louisiana Farm Bureau Insurance Agency, Inc.
    No. 2013 CA 0538.
    Court of Appeal of Louisiana, First Circuit.
    May 28, 2014.

      Kirk A. Patrick, III, Heather A. Cross, R. Heath Savant, Blake A. Altazan, Baton Rouge, Louisiana, for Defendants/Appellants, Richard Fischer and Louisiana Farm Bureau Casualty Insurance Company.
    David L. Guerry, J. Wendell Clark, Mark L. Barbre, Sebastian C. Ashton, Baton Rouge, Louisiana, for Plaintiff/Appel-lee, Lauren Roberts.
    Before WHIPPLE, C.J., GUIDRY, McClendon, welch, and crain, jj.
   CRAIN, J.

| ¡.Richard Fischer and Louisiana Farm Bureau Insurance Agency appeal a judgment in favor of Lauren Roberts, challenging the trial court’s determination that Fischer is liable and 100% at fault in causing the motor vehicle accident that he avoided, and the amount of damages awarded. We reverse.

FACTS

This matter arises out of an accident that occurred when the Toyota Solara driven by Roberts was rear-ended by the Kia driven by Lauren Rudzis. The accident occurred on August 26, 2008, at approximately 3:30 p.m., on Lee Drive in Baton Rouge. Roberts had been proceeding southbound on Lee Drive when she slowed and came to a stop behind stopped traffic. The vehicle immediately behind her was a Chevrolet Blazer driven by Fischer. After Roberts stopped her vehicle, Fischer’s Blazer veered off of the two-lane roadway into a parking lot. Rudzis’ vehicle, which had been traveling immediately behind Fischer’s vehicle, collided with the rear of Roberts’ stopped vehicle, which caused Roberts’ vehicle to collide with the rear of the vehicle in front of her. Roberts suffered injuries as a result of the accident.

Roberts instituted this suit for damages, naming as defendants Rudzis, Fischer, and Fischer’s automobile liability insurer, Farm Bureau. After Roberts stipulated that the amount in controversy did not exceed the jurisdictional amount required for a jury trial, the matter proceeded to a |sbench trial against Fischer and Farm Bureau. The matter was taken under advisement. In reasons for judgment, the trial court stated:

Having carefully considered the testimony in this matter together with the evidence submitted with respect to personal injury, physical damages, and los[t] wages, and other specials, the court is firmly of the opinion that the petitioner has established that she was free from all fault in this accident and that one hundred percent of the fault should be imposed upon the defendant, Mr. Fischer. As a result of his reckless driving in leaving the road very unexpectedly creating a hazardous condition, one hundred percent of the fault is supported by the evidence. The parties hereto have stipulated to an award not to exceed $50,000 in accordance with the jurisdictional amount. Therefore, the court is constrained to award damages subject to that stipulation, which damages would otherwise exceed that amount. Therefore, the court awards $50,000.

The trial court signed a judgment on February 11, 2013, in favor of Roberts and against Fischer and Farm Bureau in the amount of $50,000.00. Fischer and Farm Bureau now appeal.

EVIDENTIARY RULING

Rudzis, the rear-ending driver, did not testify or appear at trial. With regard to liability, the trial court was presented with the testimony of Roberts, Fischer, Sergeant Eugene Rafferty, who investigated the accident, and Christy Chachere, the front passenger in Rudzis’ vehicle. Sergeant Rafferty had no independent recollection of the accident and used the police report that he prepared to refresh his memory. Attached to the police report were statements by the drivers involved, including Rudzis. Over objection by Fischer and Farm Bureau, the trial court accepted into evidence the police report and written statements on the basis that it was “part of the res gestae and the ordinary business record.” Fischer contends that the evidence is hearsay and the trial court’s erroneous admission of that evidence interdicted [4the fact-finding process, thus subjecting the trial court’s findings on liability to de novo review.

A trial court is granted broad discretion in its evidentiary rulings. Travis v. Spitale’s Bar, Inc., 12-1366 (La.App. 1 Cir. 8/14/13), 122 So.3d 1118, 1126, writs denied, 13-2409 (La.1/10/14), 130 So.3d 327 and 13-2447 (La.1/10/14), 130 So.3d 329. The standard of review for a trial court’s evidentiary rulings is abuse of discretion; the trial court’s ruling will not be disturbed unless it is clearly erroneous. Gorman v. Miller, 12-0412 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 840, writ denied, 13-2909 (La.3/21/14), 135 So.3d 620; Riverside Recycling, LLC v. BWI Companies Inc. of Texas, 112 So.3d 869, 874 (La.App. 1 Cir.2012). De novo review is not warranted in every case of evidentiary error. Rather, it is limited to consequential errors which interdicted the factual findings, thereby prejudicing or tainting the judgment rendered. See Wingfield v. State, ex rel. Dept. of Transp. and Development, 01-2668 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 786, writs denied, 03-0313, 03-0339, 03-349 (La.5/30/03), 845 So.2d 1059-1060, cert. denied, 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282. See also McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986).

Although the trial transcript reflects that the police report and attached statements were admitted into evidence as “Plaintiffs Exhibit 3,” that exhibit is not included in the appellate record. The record reflects, however, that the trial court abused its discretion and was clearly erroneous in admitting the evidence as “part of the res gestae and the ordinary business record,” over Fischer’s objection to the evidence as hearsay.

| .^Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered into evidence to prove the truth of the matter asserted. La.Code Evid. art. 801C. Louisiana Code of Evidence article 801D(4) provides that the following is not considered hearsay:

Things said or done. The statements are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

Article 801D(4) incorporates what was formerly Louisiana Revised Statutes 15:447 and 448, known as the res gestae exception to the hearsay rule. Res gestae is defined as events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, 765, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Patton, 10-1841 (La.App. 1 Cir. 6/10/11), 68 So.3d 1209,1220.

While the Louisiana Supreme Court has recognized the applicability of the res ges-tae exception in civil cases, it does not apply here. See State v. Lebleu, 137 La. 1007, 1029 (1915), 69 So. 808, 815. Sergeant Rafferty did not witness the accident. He testified that he did not specifically recall if he obtained the statements attached to his report while he was at the scene or afterward, and acknowledged that his report did not specify when the statements were obtained. The report and attached statements do not form part of the res gestae and do not fall within the hearsay exception of Article 801D(4).

|fiThe trial court additionally found the police report and statements to fall within the business records exception to the hearsay rule. Louisiana Code of Evidence article 803(6) provides that certain records of regularly conducted business activities are not excluded by the hearsay rule; however, “[p]ublic records and re-ports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.” Article 808(8)(b) provides:

Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule: (i) Investigative reports by police and other law enforcement personnel.]
(iv) Factual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based or an investigation into a similar occurrence or occurrences.

Thus, the report and statements were not admissible under the business records exception to the hearsay rule.

On appeal, Roberts argues that the evidence, and particularly Rudzis’ statement, was properly admitted under Louisiana Code of Evidence article 803(1). We disagree. The present sense impression exception of Article 803(1) allows the admissibility of a “statement describing the event or condition made while the declar-ant was perceiving the event or condition, or immediately thereafter.” (Emphasis added.) The testimony of Sergeant Raf-ferty clearly indicates that the written statements were not made while the de-clarants were perceiving the events. To fall under the exception as one made “immediately thereafter,” the statement must have been made immediately after perceiving the event, “allowing only for ‘the time needed for translating observation into speech.’ ” Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76, 84 (La.1990). No evidentiary foundation was laid to satisfy the critical requirement of immediacy following the accident.

Roberts additionally argues that the evidence was properly admitted as a statement of an unavailable witness under Louisiana Code of Evidence article 804, which provides, in pertinent part:

B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) Other exceptions. 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.

Chachere testified that at the time of trial, Rudzis was in Cambodia with the United States Peace Corps. We need not determine whether this suffices to establish that Rudzis was unavailable for purposes of the unavailable witness exception because the record does not establish the requisite foundation required by Article 804B nor the necessary findings by the trial court.

The police report and attached statements constitute hearsay and, as they do not fall within an exception to the hearsay rule, the trial court’s admission of that evidence was clearly wrong and constitutes an abuse of discretion. However, this determination alone does not warrant de novo review. See Riverside Recycling, LLC, 112 So.3d at 874. De novo review |sis warranted only if, in addition to determining that an evidentiary error occurred, it is determined that the evidentiary error interdicted the fact finding process. See Riverside Recycling, 112 So.3d at 874. It is only when the erroneously admitted evidence interdicts the factfinder’s answer to an essential question of fact, as opposed to a mere collateral question, that de novo review is warranted. See Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230, 237-38.

Since the erroneously admitted evidence is not included in the appellate record and the record does not reveal what weight, if any, it was afforded, we are unable to determine whether its admission interdicted the determination of an essential issue of fact by the trial court. Specifically, we cannot conclude that the admission of the evidence interdicted the trial court’s finding that Fischer’s actions were a cause-in-fact of the accident, which we find to be the determinative issue in the case. Cf. Brewer, 35 So.3d at 238. Unable to make this determination, we must conclude that de novo review is not warranted in this case.

LIABILITY

Fischer contends that the trial court erred in finding him liable and 100% at fault in causing the rear-end collision that he avoided. Roberts’ theory of causation is that Fischer’s action of leaving the roadway created a sudden emergency, which caused Rudzis’ vehicle to collide with her ^vehicle. In its reasons for judgment, the trial court stated that Fischer was liable because his “reckless driving in leaving the road very unexpectedly [created] a hazardous condition.”

Liability under the particular facts of a case is determined by the duty-risk analysis, which requires the plaintiff to prove (1) the defendant had a duty to conform his conduct to a specific standard of care, (2) the defendant failed to conform his conduct to the appropriate standard of care, (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries, (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries, and (5) actual damages. Brewer, 35 So.3d at 240. Roberts had the burden of proving that Fischer owed a duty, that he breached that duty, that his substandard conduct was a cause-in-fact of her injuries, that his substandard conduct was a legal cause of the accident, and that she suffered damages. See Id. If Roberts failed to establish any one of these elements, her claims against Fischer and Farm Bureau must fail, and she cannot recover against them. See Bellanger v. Webre, 10-0720 (La.App. 1 Cir. 5/6/11), 65 So.3d 201, 207, writ denied, 11-1171 (La.9/16/11), 69 So.3d 1149. Fischer avoided colliding with Roberts’ vehicle; however, there is no statutory or jurisprudential requisite of a physical impact between | invehicles for the imposition of liability in a personal injury case arising out of a motor vehicle accident. See Tyson v. King, 09-963 (La.App. 3 Cir. 2/3/10), 29 So.3d 719, 722.

Generally, cause-in-fact is the initial inquiry under the duty-risk analysis. Granger v. Christus Health Central Louisiana, 12-1892 (La.6/28/13), 144 So.3d 736, 766. The determination to be made is whether the harm would have occurred but for the defendant’s alleged substandard conduct or, when concurrent causes are involved, whether defendant’s conduct was a substantial factor in bringing about the harm. Granger, 144 So.3d at 766. Our supreme court has explained:

This court has made several different inquiries when applying the substantial factor test. For example, the court has stated that when there are multiple causes, clearly eause-in-fact exists when the plaintiffs harm would not have occurred absent the specific defendant’s conduct. Graves v. Page, 96-2201, p. 9 (La.11/7/97), 703 So.2d 566, 570. The court has also applied the substantial factor test by asking whether each of the multiple causes played so important a role in producing the result that responsibility should be imposed upon each item of conduct, even if it cannot be said definitively that the harm would not have occurred “but for” each individual cause. See id. (citing Trahan v. State, Department of Transportation & Development, 536 So.2d 1269, 1272 (La.App. 3 Cir.1988)). See also Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law, § 4-3 at 86-88 (1996) (noting that the substantial factor test operates well in cases where there are multiple possible causes-in-fact, but the trial judge or jury may not be able to conclude that the accident most likely would not have happened but for any one of the causes). Additionally, in LeJeune v. Allstate Ins. Co., 365 So.2d 471, 475 (La.1978), the court, in describing the substantial factor test, stated that “one must consider whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm.”

Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, 612.

A trial court’s determination that a defendant’s conduct was a cause-in-fact of the plaintiffs injuries is a factual determination subject to the manifest error standard of review. Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791, 799-800. A reviewing court must not reverse a trial court’s factual determination unless, after reviewing the entire record, it finds (1) that a reasonable factual basis does not exist for the finding, and (2) that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Toston, 874 So.2d at 799-800.

Roberts testified that she came to a stop on Lee Drive behind several stopped vehicles. The road was wet as it had just rained. She had been aware of vehicles traveling behind her but did not have the feeling that they were traveling too closely. Once stopped, she looked into her rearview mirror and saw the vehicle behind her (driven by Fischer) veer off of the roadway into a parking lot. She then looked back to ensure that the next vehicle stopped, and that vehicle (driven by Rud-zis) “slammed into the back of [her].” Roberts clarified that she saw Fischer swerve, immediately looked back, and her vehicle was impacted, guessing that the impact occurred approximately two seconds after she realized Fischer’s vehicle was off of the roadway. The impact of the collision pushed Roberts’ vehicle into the vehicle in front of it, essentially causing a chain collision.

Fischer was driving his Chevrolet Blazer immediately behind Roberts’ vehicle. He testified that he was approximately thirty yards behind Roberts’ vehicle when he observed that she was stopped. Fischer applied his brake, but when he was approximately fifteen yards behind Roberts’ vehicle determined that he could not stop behind Roberts. After discerning that it was safe for him to leave the roadway, Fischer drove through a grassy area next to a tree, skimmed the pavement, and came to rest in the corner of a semi-circle driveway in front of a daycare, whieh was past Roberts’ vehicle. Fischer testified that he was ten to fifteen yards from Roberts’ vehicle when he left the roadway and that he avoided making contact with any other | ^vehicles. Once stopped, he realized that an accident had occurred, checked on the drivers involved, and called 9-1-1.

Rudzis did not testify at trial and no admissible evidence was presented to establish Rudzis’ account of the events preceding her vehicle rear-ending Roberts’ vehicle. Rudzis’ passenger, Chachere, testified that Rudzis was proceeding on Lee Drive behind Fischer’s Blazer, whieh blocked the view of Roberts’ vehicle, which was in front of Fischer’s Blazer. Chach-ere did not remember the distance behind Fischer’s Blazer that Rudzis was traveling, but estimated that it was at- least a car length, and testified that prior to the Blazer leaving the roadway she had no concerns that Rudzis was following the Blazer too closely. Chachere explained that the Blazer quickly swerved off the roadway without warning, which was a surprise to her, after which she saw Roberts’ vehicle for the first time. Chachere testified that Rudzis “slammed on her brakes as soon as you could when she saw that there was stopped traffic in front of her.” Chachere did not think Rudzis’ reaction was delayed, but was not certain. Despite braking, Rudzis’ vehicle collided with Roberts’ vehicle.

The duty-risk analysis is employed on a case-by-case basis. Granger, 144 So.3d at 765. In this case, it is undisputed that Fischer’s vehicle was ahead of Rudzis’ vehicle on the two-lane road and suddenly left the roadway. Fischer’s uncontradict-ed testimony was that he was approximately ten to fifteen yards behind Roberts’ vehicle when he did so. The only admissible evidence as to Rudzis’ actions and perceptions was the testimony of Chachere, Rudzis’ front seat passenger. However, Chachere did not, and could not, testify as to what Rudzis actually observed and perceived before colliding with Roberts’ vehicle. Chachere’s uncontradicted testimony was that Rudzis’ vehicle was at least one car length behind Fischer’s. 113Chachere’s testimony establishes that Fischer’s vehicle blocked Chachere’s view of Roberts’ vehicle, which Chachere saw for the first time after Fischer left the roadway. The evidence does not reflect when Rudzis first saw the Roberts vehicle.

When a preceding vehicle is obstructing a motorist’s view ahead, the motorist has a duty to leave sufficient space between himself and the preceding vehicle to stop in case of an unexpected hazard in the road ahead. Ly, 633 So.2d at 201. Considering the rainy roadway and, from Chachere’s testimony, the possibility that Rudzis’ visibility was obscured by Fischer’s vehicle, Rudzis had a duty to reduce her speed and maintain an appropriate distance that would have allowed her to safely stop her vehicle. Compare Ly, 633 So.2d at 201; Fontenot, 512 So.2d at 1194-95; Urcia v. Department of Transp. and Development for State, 94-78 (La.App. 5 Cir. 5/31/94), 638 So.2d 416, 418.

Without any testimony by Rudzis regarding her own observations, Chach-ere’s testimony, which was at times equivocal, does not establish by a preponderance of the evidence that Fischer’s actions were a substantial factor in bringing about the harm to Roberts. It is not enough for Roberts to demonstrate that Fischer’s actions might have been a contributing factor to Rudzis rear-ending her. See Perkins, 782 So.2d at 618. Roberts was required to prove that it is more likely than not that Fischer’s actions were a substantial factor in bringing about the injuries she suffered when Rudzis rear-ended her. See Id. After reviewing the admissible evidence, we find that a reasonable factual basis does not exist for the trial court’s determination that Fischer’s conduct was a cause-in-fact of Roberts’ alleged |14inj uries. The trial court was clearly wrong in concluding that Roberts satisfied her burden of proof by a preponderance of the evidence.

Based on the admissible evidence, the trial court’s finding that Fischer is liable for the accident is manifestly erroneous. Accordingly, the judgment rendered against Fischer and his insurer, Farm Bureau, must be reversed.

CONCLUSION

For the foregoing reasons, the February 11, 2013 judgment of the trial court is reversed, and Roberts’ claims against Richard Fischer and Louisiana Farm Bureau Insurance Agency, Inc. are dismissed with prejudice. Costs of this appeal are assessed to Lauren E. Roberts.

REVERSED AND RENDERED.

WELCH J. dissents and assigns reasons.

McCLENDON, J., dissents and assigns reasons.

McCLENDON, J.,

dissents and assigns reasons.

_JjThe allocation of fault is a factual matter within the sound discretion of the trier of fact and will not be disturbed on appeal in the absence of manifest error. Great West Cas. Co. v. State ex rel. Dept. of Transp. and Dev., 06-1776 (La.App. 1 Cir. 3/28/07), 960 So.2d 973, 978, writ denied, 07-1227 (La.9/14/07), 963 So.2d 1005. Although Ms. Rudzis was presumed to be at fault for rear-ending Ms. Roberts’ vehicle, I cannot conclude that the trial court was manifestly erroneous in assigning fault to Mr. Fischer. Mr. Fischer abruptly left the roadway with a sudden maneuver in order to prevent him from striking Ms. Roberts’ vehicle. Clearly, Mr. Fischer was following Ms. Roberts’ vehicle too closely and in a careless manner insofar as he failed to maintain control of his vehicle within its lane of travel. See LSA-R.S. 32:81(A) and 32:58. Also, Ms. Chachere testified that prior to Mr. Fischer leaving the roadway, she could not see Ms. Roberts’ vehicle because the view was blocked by Mr. Fischer’s vehicle, which was larger than Ms. Rudzis’ vehicle. Given the facts presented to the trial court, I do not agree with the majority’s conclusion that Mr. Fischer’s actions were not “a substantial factor in bringing about the harm to Roberts.” Accordingly, while I agree that the trial court committed manifest error in failing to assign any fault to Ms. Rudzis, I dissent to the extent that the majority fails to |2apportion a percentage of fault to Mr. Fischer. Based on the evidence presented, I would have assessed a percentage of fault to both Mr. Fischer and Ms. Rudzis.

WELCH, J.,

dissents.

IH respectfully disagree with the majority opinion. The majority found, after reviewing the evidence, that a reasonable factual basis did not exist for the trial court’s determination that Mr. Fischer’s conduct was a cause-in-fact of Ms. Roberts’ alleged injuries because Ms. Rudzis either brought the “emergency” on herself or did not use the required due care to avoid it. Thus, the majority concluded that the trial court was clearly wrong in determining that Ms. Roberts satisfied her burden of proof by a preponderance of the evidence, that the trial court’s finding that Fischer was liable for the accident was manifestly erroneous, and that all claims against Mr. Fischer must be dismissed. . In my opinion, the trial court legally erred in finding Mr. Fisher 100% at fault for the accident and this legal error interdicted the fact finding process insofar as it was required to allocate fault between the parties. However, I believe that the cold record precludes us from making a proper allocation of fault, and therefore, the judgment on appeal should be vacated and this matter remanded to the trial court for an allocation of fault.

Notably, the trial court’s reasons for judgment and its judgment are silent with respect to the fault of Ms. Rudzis and both provide that Mr. Fischer was 100% at fault in causing the accident. Thus, the trial court obviously found that Ms. Rudzis was free from fault in causing the accident. However, the record establishes that both Ms. Rudzis and Mr. Fischer were following motorists, and |2pursuant to La. R.S. 32:81(A), they both had a duty not to follow another vehicle more closely than was reasonably prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. Furthermore, a following motorist in a rear-end collision is presumed to have breached the duty set out in La. R.S. 32:81 and, hence, is presumed negligent. Mart v. Hill, 505 So.2d 1120, 1123 (La.1987); Ly v. State, through the Dept, of Public Safety and Corrections, 633 So.2d 197, 201, writ denied, 634 So.2d 835 (La.1994). Thus, in this case, Ms. Rudzis, the following motorist that rear-ended Ms. Roberts, was presumed negligent and had the burden of exculpating herself from any fault for the accident.

To rebut the presumption of fault and avoid liability for the accident, the following motorist must prove that he had his vehicle under control, that he closely observed the lead vehicle, and that he followed it at a safe distance under the circumstances. Alternatively, the following motorist must show that the lead driver negligently created a hazard that could not reasonably be avoided. King v. State Farm Insurance Co., 47,368 (La.App. 2nd Cir.8/8/12), 104 So.3d 33, 38; see also Ly, 633 So.2d at 201; Fontenot v. Boehm, 512 So.2d 1192, 1194 (La.App. 1st Cir.1987). This alternative exception to the presumption is known as the sudden emergency doctrine. Ly, 633 So.2d at 201; Fontenot v. Boehm, 512 So.2d at 1194. Under the sudden emergency doctrine, a person “who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all of the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.” Hickman v. Southern Pac. Transport Co., 262 La. 102, 112-113, 262 So.2d, 385, 389 (La.1972); see also King, 104 So.3d at 38.

|sHowever, the rule of sudden emergency cannot be invoked by one who has brought the emergency upon himself by his own wrong or who has not used due care to avoid it. The sudden emergency doctrine is applicable to the standard of conduct of a motorist after an emergency has arisen, it does not apply to lower the standard of care required of motorists before the emergency occurs. Fontenot, 512 So.2d at 1195 (quoting 2 Blashfield, automobile Law and Practice § 102.28 (3rd ed.1965)); King, 104 So.3d at 38. Although the sudden emergency doctrine was developed when contributory negligence was a complete bar to recovery, our courts continue to apply the doctrine. Duzon v. Stallworth, 2001-1187 (La.App. 1st Cir.12/11/02), 866 So.2d 837, 858, writs denied, 2003-0589, 2003-0605 (La.5/2/03), 842 So.2d 1101, 1110. Although the sudden emergency doctrine has not been subsumed by comparative fault, see Jefferson v. Soileau, 2003-0541 (La.App. 1st Cir.12/31/03), 864 So.2d 250, 253, writ denied, 2004-0594 (La.4/23/04), 870 So.2d 306, the defense of sudden emergency may be treated as one of the factual considerations used in assessing the degree of fault to be attributed to a party. See King, 104 So.3d at 38; Manuel v. St. John the Baptist Parish School Board, 98-1265 (La.App. 5th Cir.3/30/99), 734 So.2d 766, 769, writ denied, 99-1193 (La.6/4/99), 744 So.2d 632.

The trial court is required to compare the relative fault of the parties in assessing liability. In allocating fault, the trial court must consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to |4proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La.1985).

After reviewing the record in its entirety, I agree with the trial court that the plaintiff, Ms. Roberts, was free from fault and that defendant, Mr. Fischer, was liable for the accident; however, I find the trial court’s determination that Ms. Rudzis was free from fault and that Mr. Fischer was 100% at fault in causing the accident amounted to legal error. The trial court applied the sudden emergency doctrine and exculpated Ms. Rudzis from negligence based solely on the fact that Mr. Fischer swerved off of the road and that Ms. Rudzis collided with Ms. Roberts’ ve-hide, without any evidence in the record that there was unanticipated hazard that could not be reasonably avoided by Ms. Rudzis. In effect, the trial court ignored the fact that Ms. Rudzis was presumed negligent for colliding with Ms. Roberts and that Ms. Rudzis (or the plaintiff on her behalf) had the burden of proving that Ms. Rudzis’ conduct was reasonable and not negligent prior to the time that Mr. Fischer swerved in order for her to be exculpated from fault in causing the accident. Neither Ms. Rudzis nor the plaintiff on her behalf sustained that burden, therefore, the sudden emergency doctrine was not applicable, and the trial court legally erred in applying it herein to absolve Ms. Rudzis from fault.

When a trial court incorrectly applies a principle of law, which causes a substantial deprivation of a party’s rights or materially affects the disposition, it commits a legal error. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Id. However, there are cases where the weight of the evidence is so nearly | ¿equal that a first-hand view of the witnesses is essential to a fair resolution of the issues. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980). Where such a need arises, the case should be remanded for a new trial. Id. It is the duty of the appellate court to determine when the court can fairly find a preponderance of the evidence from the cold record or whether the case should be remanded. Id.

In this case, I believe that the trial court legally erred in applying the sudden emergency doctrine to exonerate Ms. Rudzis from fault, and that this legal error interdicted the fact finding process by causing it to pretermit an allocation of fault for this accident between Ms. Rudzis and Mr. Fischer based on the factors set forth in Watson, 469 So.2d at 974. However, after reviewing the record herein, the proper allocation of fault between Mr. Fischer and Ms. Rudzis must be based solely on the credibility of the witnesses, and the fact-finder’s firsthand view of their testimony is essential for a fair determination of their credibility. With the need for credibility determinations, a preponderance of the evidence cannot be fairly determined from this cold record. Therefore, the interest of justice would be best served by remanding this case for a new trial. See La. C.C.P. art. 2164.

Thus, I respectfully dissent.

      . The parties explain in their briefs that Rud-zis was served via Louisiana’s Long Arm Statute. However, Rudzis did not answer the petition, file any pleading, or otherwise make any appearance. The matter was set for trial on Roberts’ motion without objection by Fischer and Farm Bureau.

      . As the appellants, Fischer and Farm Bureau are charged with the responsibility of completeness of the record for appellate review, and the inadequacy of the record is imputable to them. See Niemann v. Crosby Development Co., L.L.C., 11-1337 (La.App. 1 Cir.5/3/12), 92 So.3d 1039, 1044.

      . Since we have determined that the police report and attached statements should not have been admitted, its omission from the appellate record has no effect on our analysis of the remaining assignments of error under the manifest error standard.

      . As the following motorist in the rear-end collision, Rudzis is presumed to be negligent for having breached the duty imposed by Louisiana Revised Statute 32:81 that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. See Mart v. Hill, 505 So.2d 1120, 1123 (La.1987); Eubanks v. Brasseal, 310 So.2d 550, 553 (La.1975); Ly v. State Through Dept, of Public Safety and Corrections, 633 So.2d 197, 201 (La.App. 1 Cir.1993), writ denied, 93-3134 (La.2/25/94), 634 So.2d 835. Roberts argues that the sudden emergency doctrine applies in this case. Under the sudden emergency doctrine, a following motorist may escape liability for a rear-end collision by establishing that the preceding motorist created a sudden emergency that the following motorist could not have reasonably anticipated. See Brewer, 35 So.3d at 241. However, our focus herein is whether Fischer's actions were a cause-in-fact of the rear-end collision between Roberts and Rud-zis. Because we determine that they were not, and do not reach the issue of comparative fault of the parties involved, we do not address the application of the sudden emergency doctrine.

      . If Rudzis’ visibility was not obscured by Fischer’s vehicle, then Rudzis should have seen Roberts’ stopped vehicle and stopped safely behind her.

      . As this determination resolves the issues presented in this appeal, we do not address the trial court’s determination that Rudzis was not at fault or Roberts' claims against Rudzis.