source: Caselaw Access Project

author: GENOVESE, J. PETERS, J.,

license: Public Domain

text:
    Wilson J. TRAHAN v. ACADIANA MALL OF DELAWARE, L.L.C., et al.
    16-144
    Court of Appeal of Louisiana, Third Circuit.
    12/07/2016
    Christopher T. Castro, Galloway Jefcoat, L.L.P., P.O. Box 61550, Lafayette, LA 70596-1550, (337) 984-8020, COUNSEL FOR PLAINTIFF/APPELLANT: Wilson J. Trahan
    Robert M. Kallam, Mandy A. Simon, Preis PLC, P.O. Drawer 94-C, Lafayette, LA 70509, (337) 237-6062, COUNSEL FOR DEFENDANTS/APPELLEES: Acadiana Mall of Delaware CMBS, LLC, ERMC III Property Management Company, LLC, and, ERMC II, LP
    Court composed of Jimmie C. Peters, James T. Genovese, and John E, Conery, Judges.
   GENOVESE, J.

| iPlaintiff, Wilson J. Trahan, appeals a trial court judgment dismissing his suit for damages against Defendants, Acadiana Mall CMBS, LLC; ERMC III Property Management Company, LLC; and, ERMC II, LP (hereinafter collectively referred to as “Acadiana Mall”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This litigation arises out of a July 21, 2010 accident at the Acadiana Mall shopping center in Lafayette, Louisiana. At approximately 9:30 a.m. on that day, Mr. Trahan sustained a closed fracture of his right fibula when he slipped and fell on the shopping center premises. Previously, the trial court granted Acadiana Mall a judgment of involuntary dismissal, and, on appeal, this court reversed that judgment and remanded the matter to the trial court for further proceedings. Trahan v. Acadiana Mall of Delaware, 14-232 (La.App. 3 Cir. 10/1/14), 149 So.3d 359. The subsequent proceedings on remand resulted in a second trial court judgment in favor of Acadiana Mall, dismissing Mr. Trahan’s claims, and the matter is again before us as a result of Mr. Trahan timely appealing that judgment.

The evidence adduced on remand did little to change the basic facts set forth in our initial opinion:

Mr. Trahan testified at trial that he arrived at the mall at approximately 9:30 a.m. on July 21,201[0], intending to walk inside the mall premises for exercise. Because the outside temperature was already approaching ninety degrees Fahrenheit, he parked his vehicle in a shady area and proceeded on foot across the parking lot and roadway that ran adjacent to the mall structure. He stepped onto the sidewalk, which lies adjacent to the mall building and extends around the mall perimeter, and began walking toward the mall entrance. To reach the mall entrance from where he stepped onto the sidewalk, Mr. Tra-han was required to cross an entrance to one of the mall’s service | aareas, and, as he approached this crossing, he noticed that a large accumulation of surface water blocked his path.
In order to avoid the accumulation, Mr. Trahan moved to his right and up against the wall forming the sidewalk’s inner boundary. He did so because he observed an eighteen to twenty-four inch surface area on the service road which appeared to be dry. He testified that he placed his right hand on the bollard located at the entrance of the service area and stepped down[,] onto the apparently dry surface. However, when he stepped down he encountered a buildup of algae on the surface[,] and this substance caused him to slip and fall. Mr. Trahan then got to his feet, walked into the mall, and requested a mall employee to contact mall security.
Joseph Thibodeaux, an Acadiana Mall security guard, responded to the call and inspected the scene of the accident with Mr. Trahan. When Mr. Trahan pointed out the place where he slipped, Mr. Thi-bodeaux observed some slip marks in the surface algae. He also noted that Mr. Trahan’s pants were somewhat wet, but did not note any visible injury.
When Mr. Trahan more closely examined the reason for the accumulation of surface water, he noted that the drain through which the water should have flowed was clogged by algae, leaves, and cigarette butts and that neither the water nor the impedimenta were flowing through the drain. He testified that he then gave Mr. Thibodeaux his name and telephone number and took three pictures of the area. He declined Mr. Thi-bodeaux’s offer to call an ambulance and left the mall. According to Mr. Trahan, approximately twenty minutes elapsed between the time the accident occurred and the time he left the mall.
Mr. Thibodeaux testified that as part of his security duties, he performs daily inspections of the mail’s perimeter from a golf cart and that the service entrance where Mr. Trahan fell contains trash compactors and water sprinklers that require daily inspection. That particular service area has two entrances[,] and, although ■ Mr. Thibodeaux could access the area to make his inspection from either entrance, he normally did not use the entrance where Mr. Trahan fell because the other entrance was closer to the trash compactor. Mr. Thibodeaux testified that because he worked a 7:00 a.m. to 3:00 p.m. [ashift, he would have already inspected the area prior to Mr. Trahan’s accident on the morning of July 21, 2010. He acknowledged that the surface water Mr. Trahan attempted to avoid was located within the pedestrian walkway and that the walkway would have been rendered unsafe by the presence of a slippery surface. He described the accumulation as being comprised of water “and everything that you can imagine that wheels and rubber rolls on[.]”
Charlie Pritchett, Acadiana Mall’s Director of Operations for twenty-two years, testified that he oversees interior and exterior maintenance, janitorial services, and security services at the mall, and acknowledged that the location where Mr. Trahan fell was within Acadi-ana Mall’s control and responsibility. He learned of Mr. Trahan’s fall from Mr. Thibodeaux, visited the scene that same morning, took photographs, and prepared an accident report. He did not recall seeing any physical evidence of Mr. Trahan’s fall at the scene, but did circle the area on the photographs as pointed out to him by Mr. Thibodeaux.
Although he testified that he did not inspect the drain causing the surface water accumulation, he did recall that “water was receding to [the] drain” at the time of his inspection. However, when questioned specifically whether the drain was flowing, Mr. Pritchett said he did not know if it was flowing.
According to Mr. Pritchett, Acadiana Mall had no written policy/procedure for inspecting its exterior premises, but crews cleaned the parking lots daily, checking for trash, debris, and safety hazards. He testified that had a cleaning crew member observed algae at the edge of a puddle, the employee would have generated a report and forwarded it to him. As of the time of this accident, Mr. Pritchett had received no such report. On the one hand, Mr. Pritchett testified that Acadiana Mall employees do not perform maintenance on storm drains because they are simply openings through which water flows to an evacuation ditch, and, on the other hand, he acknowledged that in a situation where water is not flowing into the drain, it would be the mall employees’ responsibility to unclog the drain.
With regard to the accident report, Mr. Pritchett testified that he and Mr. Thibodeaux completed it, but he could not recall when it had been completed. He further acknowledged that all the entries concerning the accident itself were based on information provided by Mr. Thibodeaux. Mr. Pritchett agreed that the surface water in the area where Mr. Trahan fell was located within a pedestrian walkway, and he further agreed that the materials forming the edge of surface water can be slippery and that the presence of a slippery substance within a pedestrian walkway can render the walkway unsafe.
14All of the photographs introduced into evidence reflect that the service driveway contained an accumulation of surface water extending around the outer edge of the sidewalk into the roadway that ran parallel to the mall building and back into the service road to a point approximately one and one-half to two feet from the point where the sidewalk and the mall building meet. However, in that one-and-one-half-foot to two-foot area, the photographs reflect no standing water, and, in fact, appears to show that the surface is dry.

Id. at 361-63.

In our first opinion, this court reversed the trial court’s involuntary dismissal of Mr. Trahan’s suit against Acadiana Mall, finding that the trial court committed manifest error when it concluded that Mr. Trahan’s accident was caused by the open and obvious puddle rather than the apparently dry-looking, but algae-accumulated surface next to the puddle. We further stated:

Having concluded that the trial court factually erred in finding that the accumulated surface-water, and not the accumulated algae, was the legal cause of Mr. Trahan’s injuries, we also find that the evidence now before this court supports a finding that Mr. Trahan established all the elements set forth in Riggs [v. Opelousas General Hospital Trust Authority, 08-591 (La.App. 3 Cir. 11/5/08) ], 997 So.2d 814[,] by a preponderance of the evidence. Thus, the trial court erred in granting the motion for involuntary dismissal. However, because the trial ended prior to Acadiana Mall presenting its defense, we must remand for completion of the trial evidence.

Id. at 364.

The evidence on remand consisted of additional testimony from Mr. Thibodeaux and Mr. Pritchett as a part of Acadiana Mall’s defense to Mr. Trahan’s claims. At the close of this evidence, the trial court rendered oral reasons for judgment again finding that Mr. Trahan slipped because he stepped into an open and obvious hazard consisting of the puddle and its surrounding perimeter. In reaching this conclusion, the trial court stated the following:

All right. Well, after hearing all of the testimony[,] I’m comfortable with rendering a verdict again in this case that when the plaintiff here stepped, he stepped — he certainly saw the puddle and he saw the surrounding debris and mud, whatever you want to call it, | fi“crootch”.[] I’d call it mud. But whatever it’s called. He stepped, he put his hands on the bollard to steady himself or whatever you want to call it. Because one explanation for putting your hands on something when you’re normally walking, and that’s to steady yourself because you think you’re getting in a slippery condition. And that’s what he did. And he slipped.
And there’s no doubt. The security guard testified he saw the slip mark in the mud. And that means it was wet. Because a slip mark doesn’t make a muddy slip mark unless it’s mud. And so he slipped in the mud in which he knew • it was mud. And I’m going to call it mud, because that’s what I would call it. He slipped in the mud when he stepped in it and fell. And he knew it was mud. He saw, he put his hand down to steady himself, he stepped in it hoping to not slip in it, but he did.
And so, I find in favor of the defendant, the same as last time.

In the previous appeal, this court made the distinction between the “accumulated surface-water” and the “accumulated algae[.]” Id. Thus, for purposes of clarity, following the testimony on remand, and the trial court’s oral ruling, the trial court was specifically asked for clarification relative to the actual puddle of standing water and the area surrounding the puddle of water. Specifically, the trial court, when asked to clarify the area encompassing the open and obvious risk, stated:

Let me explain my little country boy mentality here. It started off as a complete puddle and then as it drained they had the edges that were still wet, and I consider that to be part of the puddle. So, the whole perimeter of the puddle that the security guard testified that extended all the way to the bollard is what I’m calling the puddle. As the day went on that puddle got smaller and smaller as the pictures depicted.

When asked to further clarify in light of this court’s finding that the trial court factually erred in blaming Mr. Trahan’s accident on the “accumulated surface-water” and not the “accumulated algae,” the trial court stated: “I call it mud. I don’t know what anybody else would call it. I’m looking at the pictures. A slip in the mud[.]” Thus, what this court characterized as “accumulated algae,” the trial | r,court “would call it mud. And that’s what he slipped in[,] and that’s what made the mark on the picture.” Therefore, whatever name is given to the substance, the trial court found that it was “[a]bsolutley open and obvious.”

On November 3, 2015, the trial court submitted a written judgment conforming to its ruling. The trial court then responded to Mr. Trahan’s request for written reasons for judgment filed on November 13, 2015, by providing him with a transcript of the oral reasons for judgment. Thereafter, Mr. Trahan perfected the appeal currently before us.

ASSIGNMENTS OF ERROR

Mr. Trahan presents the following assignments of error for our review:

1. Whether the trial court committed manifest error in its factual conclusion that the substance the that [sic] Plaintiff slipped on, and which was the cause of his fall, was open and obvious thereby terminating the Plaintiffs lawsuit; the most reliable evidence demonstrates that the place where the Plaintiff stepped appeared dry.
2. Whether the trial court committed manifest error in its factual conclusion that the Plaintiff put his hand of the bollard to “steady” himself.
3. Whether [t]he evidence upon which the trial court relies in concluding that the perimeter of the puddle extended to the bollard is unreliable and controverted by the photographic evidence.
4. Whether the [t]rial [c]ourt was manifestly erroneous in its application of the “open and obvious” doctrine and dismissing the Plaintiffs lawsuit.

LAW AND DISCUSSION

The law applicable to this matter was set out in our original opinion as follows:

Mr. Trahan seeks damages based on La.Civ.Code art. 2317 which provides in pertinent part that “[w]e are responsible, not only 17for the damage occasioned by our own act, but for that which is caused by .,. the things which we have in our custody.” This includes damage caused by the “ruin, vice, or defect in things” we own or control. La.Civ.Code art. 2317.1. That article reads in full as follows:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La.Civ.Code art. 2317.1.

Accordingly, in order to prevail in a cause of action based on La.Civ.Code art. 2317.1, a plaintiff must prove: (1) that the defendant had custody of the thing; (2) that it had a vice or defect that presented an unreasonable risk of harm; (3) that the defendant knew or should have known of the vice or defect; (4) that the damage could have been prevented by the exercise of reasonable care; and (5) that the defendant failed to exercise this reasonable care. Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591 (La.App. 3 Cir. 11/5/08), 997 So.2d 814.

Id. at 363-64.

The factual findings of the trial court are subject to the manifest error/clearly wrong standard of review.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong,’ and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

Snider v. La. Med. Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

It is undisputed that Acadiana Mall had custody of the area where the accident occurred. It is also undisputed that the walkway contained a vice or |8defect, that Acadiana Mall knew or should have known of the existence of the vice or defect, that the vice or defect could have easily been prevented by the exercise of reasonable care, and that Acadiana Mall failed to exercise reasonable care. The only disputed issue is whether the existing vice or defect presented an unreasonable risk of harm. A vice or defect does not constitute an unreasonable risk of harm if it is open and obvious. Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So.3d 175. “In order for a hazard to be considered open and obvious, [our supreme court] has consistently stated the hazard should be one that is open and obvious to all, ie., everyone who may potentially encounter it.” Id. at 184.

In this case, the additional testimony on remand included that of Mr. Thibodeaux, a security officer at Acadiana Mall. Mr. Thi-bodeaux testified that he was called to the location where the accident happened by Mr. Les Comeaux, a maintenance man. According to Mr. Thibodeaux, he arrived there quickly. Mr. Thibodeaux had a conversation with Mr. Trahan, who showed him where he had slipped and fallen. Mr. Thibodeaux had the opportunity to see the accident scene just after its occurrence and was able to provide the trial court with a description of how the area appeared. Mr. Thibodeaux was also able to refer to photographs of the accident scene and provide the trial court with an explanation of what was depicted in the photographs.

It is clear from the testimony of Mr. Thibodeaux that there was water present at the location of the accident. By his accounting, the presence of the water was greater than that depicted in some of the photographs due to evaporation which occurred from the heat of the day. Mr. Thi-bodeaux explained the presence of water and explained that the fall happened “in a wet area.” He also described the presence of “crootch” in the area. In his words, the “entire area” was covered in |9water and “crootch.” He stated the area “wasn’t dry[;] ... [i]t was full of water.” Notably, Mr. Thibodeaux confirms that the area was wet, that he could see the slip marks from where Mr. Trahan fell, and that Mr. Trahan had “moisture” on his thigh.

The second witness to testify on remand was Mr. Pritchett, the Director of Operations of Acadiana Mall. Mr. Pritchett learned of Mr. Trahan’s accident from Mr. Thibodeaux. The two of them completed the incident report and took pictures of the location where the accident happened. Mr. Pritchett estimated that the photographs taken by him were taken between one-and-a-half to two hours after Mr. Trahan’s fall. He testified that by the time he took the photographs, the water in the area had receded. In his words, “[t]here was like a water mark where the pavement was still damp, or the concrete was still damp and then the area where the water was standing.”

Mr. Trahan’s testimony on the condition of the area of his fall differed from that of Mr. Thibodeaux and Mr. Pritchett. Mr. Trahan testified that he observed standing water and an area eighteen to twenty-four inches wide that “looked like it was dry.” He explained that when he stepped, he stepped into an area that appeared to be dry and that “[i]t kind of had an ashy look from the sun.” Mr. Trahan was clear that he did not step into the water puddle.

In reaching our conclusion herein, we note that both parties, in brief to this court, discuss the trial court’s statement that Mr. Trahan “put his hands on the bollard to steady himself’ insomuch as that action supported the conclusion that Mr. Trahan was aware of the open and obvious condition before he stepped and fell. However, as explained by our supreme court in Broussard, 113 So.3d at 188, the relevant inquiry is not whether Mr. Trahan was aware of the open and obvious condition of the area; rather, “in order to be open and obvious, the risk of harm 110should be apparent to all who encounter the dangerous condition.” We find that the record supports the trial court’s conclusion in this case that it was. Thus, whether Mr. Trahan used the bollard to steady himself because he was aware of the slippery condition is irrelevant in a determination of whether the condition was open and obvious. “The focus on whether an alleged defect is open and obvious is ‘on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim’s actual or potentially ascertainable knowledge.’” Christiano v. S. Scrap Recycling, 13-595, p. 8 (La.App. 5 Cir. 12/27/13), 131 So.3d 1059, 1064 (quoting Broussard, 113 So.3d at 188).

In Chñstiano, the fifth circuit affirmed the trial court’s grant of a motion for involuntary dismissal based upon its finding that the alleged defect was open and obvious. Analogous to the case at bar, Chñstiano involved a slip and fall in an area described as “a little sloppy[,]” but that appeared to by dry. Id. at 1061. The “slop” in that case was “oil and some other kind of substance[,]” which was present next to some “dried mud.” Id. The plaintiff testified: “It was wet underneath the mud. It was like some more slop, but you couldn’t see it just by looking at it. It was like it was dry.” Id. Affirming the trial court, the fifth circuit reasoned:

Mrs. Christiano testified that she was being careful when she walked into the area covered with what appeared to be dried mud because that area was surrounded by “slop,” which she described as “oil and some other kind of substance.” She acknowledged that there was “slop” next to the dried mud, but she did not think or know that there was “slop” underneath the dried mud. She admitted that there were no holes or cracks on the cement where she fell; rather, it was the “slop” and mud that caused her to fall.

Id. at 1064.

In the instant matter, the trial court was presented with conflicting testimony. When considering the evidence, the trial court had the opportunity to observe the In demeanor of the witnesses and to assess their credibility. The trial court considered the evidence, including the photographs, and made a determination that Mr. Trahan’s fall was caused by an open and obvious condition. Additionally, the trial court was specific in elaborating on what it considered to be encompassed by the puddle and concluded that Mr. Trahan slipped in “mud.” We find that this determination is supported by the record. There are certainly two permissible views of the evidence in this case; however, “[wjhere two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993). We are bound not to substitute our judgment for that of the trial court.

DISPOSITION

Based on the foregoing, we affirm the judgment of the trial court in favor of Defendants, Acadiana Mall CMBS, LLC; ERMC III Property Management Company, LLC; and, ERMC II, LP. All costs of this appeal are assessed to Plaintiff, Wilson J. Trahan.

AFFIRMED.

Peters, J., dissents and assigns written reasons.

PETERS, J.,

dissents.

hi agree with the majority that this is a manifest error case. However, unlike the majority, I find that the trial court was clearly wrong in its factual conclusions. Specifically, the trial court erroneously relied on testimony based on supposition in reaching the factual conclusions that the defect causing Mr. Trahan’s injuries was open and obvious. The testimony relied op by the trial court is not supported by the evidence.

There are two testimonial versions of this accident: Mr. Trahan’s version and Mr. Thibodeaux’s version. However, ■ Mr. Thibodeaux' did not- witness the accident.

According to Mr. Trahan, the standing water in the service road caused him to have to step down from the sidewalk at its intersection with the service road that was closest to the mall itself. He placed his right hand on the bollard and stepped down onto a surface area eighteen to twenty-four inches wide which appeared to be dry. In doing só, he slipped on a buildup of algae on the apparently dry surface area. Mr. Trahan’s version of the accident is supported by photographs he took within thirty minutes of the accident as well 'as the photographs taken by Charlie Pritch-ard approximately one hour after the' occurrence of the accident. Both sets of |2photographs clearly show an eighteen to twenty-four inch area between the sidewalk and the standing water which appears to be dry.

Mr. Trahan testified that when he fell, his right knee and foot hyperextended and rolled to the inside, and that his right hip struck the curb. As a result of his fall, he sustained a fractured fibula in his right leg as well as bruising injuries to his right shoulder, hip, knee, leg, ankle, and foot. The medical evidence supports Mr. Tra-han’s version of the mechanics of the accident. In fact, Mr. Thibodeaux’s testimony based on his observations and not his conclusions, supports Mr, Trahan’s version of the accident as well. Mr. Thibodeaux testified that when he first arrived at ,thp scene, he observed moisture on Mr, Tra-han’s pants at the thigh level. This observation is totally consistent with. Mr. Tra: han’s testimony that his right hip struck the curb. Had Mr. Trahan fallen, where Mr. Thibodeaux observed the purported skid mark, he would have been soaking wet.

Additionally, Mr. Thibodeaux admitted that Mr. Trahan’s photographs reflected an accurate picture of the scene of the accident sometime after he arrived at the scene, including the fact that there existed a section of roadway adjacent to the sidewalk that was water free. In trying to explain his purported earlier observation of water adjacent to the sidewalk, Mr. Thibodeaux suggested that during the thirty minutes he spoke with Mr. Trahan, the water had evaporated sufficiently to expose the water-free area depicted in the photographs. This explanation is simply not plausible. According to Mr. Pritchard, the photographs taken by him over one hour after the accident depicted the same scene as did Mr, Trahan’s photographs. For Mr. Thibodeaux’s explanation to be accurate, the exceedingly fast evaporation process he described would have to come to a come to a complete stop between the taking 'of Mr. Trahan’s pictures and the taking of Mr. Pritchard’s pictures.

| RIn its reasons for judgment, the trial court accepted Mr. Thibodeaux’s suggestion that Mr. Trahan used the bollard to steady himself because he [Mr. Trahan] recognized that he was “getting in a slippery condition[,]” and in doing so, “he slipped.” The problem with the trial court’s factual conclusions from a manifest error/clearly wrong analysis is that there is no evidence Mr. Trahan used the bollard to steady himself, and the only part of Mr. Thibodeaux’s testimony supported by the other evidence in the record is that Mr. Trahan’s pants were merely damp. Additionally, the trial court concluded, based on Mr. Thibodeaux’s testimony, that Mr. Tra-han slipped in mud at the edge of the sidewalk. There is no evidence of an accumulation of mud where Mr. Trahan suffered his accident. The only evidence is that he slipped on a surface made slippery by an algae buildup, not by an accumulation of mud.

As we stated the first time this matter was before us, “[i]t is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’” Evans v. Lungrin, 97-541, 97-577, p. 6 (La. 2/6/98), 708 So.2d 731, 735. Additionally,

[I]n order to prevail in a cause of action based on La.Civ.Code art. 2317.1, a plaintiff must prove: (1) that the defendant had custody of the thing; (2) that it had a vice or defect that presented an unreasonable risk of harm; (3) that the defendant knew or should have known of the vice or defect; (4) that the damage could have been prevented by the exercise of reasonable care; and (5) that the defendant failed to exercise this reasonable care.

Trahan v. Acadiana Mall of Del., 14-232, p. 6 (La.App. 3 Cir. 10/1/14), 149 So.3d 359, 364.

A vice or defect does not constitute an unreasonable risk of harm if it is open and obvious. Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So.3d 175. Additionally, “[i]n order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition.” Id. at 188. In 14this case, Mr. Thibodeaux acknowledged that the surface adjacent the standing water would be slippery from any algae buildup, even if it appeared to be dry. In other words, the dangerous condition was not open and obvious.

I find that Mr. Trahan established by a preponderance of the evidence that Acadi-ana Mall had custody of the area where the accident occurred; that the area wherein Mr. Trahan suffered his accident contained a vice or defect; that Acadiana Mall knew or should have known of the existence of the vice or defect; that the vice or defect could have easily been prevented by the exercise of reasonable care; and that Acadiana Mall faded to exercise reasonable care. Based on this finding, I would award damages to Mr. Trahan. I reach the conclusion that the walkway contained a vice or defect based on the physical evidence and Mr. Thibodeaux’s testimony that the pedestrian walkway would have been rendered unsafe by the presence of a slippery surface — and a slippery surface is exactly what Mr. Trahan slipped on in sustaining his injury. Mr. Thibodeaux testified that he conducted numerous inspections of the area on a daily basis, yet neither he nor any other representative of Acadiana Mall recognized that the water in this area was not being properly removed by the ten-inch drain. Thus, Acadiana Mall knew or should have known of the vice or defect. Additionally, Mr. Pritchard testified that a buildup of debris in such an environment is to be expected because the debris would not normally be dispatched with the flowing water. The testimony of both Mr. Pritchard and Mr. Thibodeaux establish that the vice or defect could have been prevented simply by maintaining a clear path for the accumulating water to be removed by the ten-inch storm drain provided for that purpose, and by power washing the accumulated debris. The evidence establishes that Acadiana Mall failed to exercise this reasonable care. I also find that the existing vice or defect presented an unreasonable risk of harm.

|J would reverse the judgment of the trial court finding that Mr. Trahan failed to prove the elements of his claim, and would award him damages for the injuries he sustained.

      . Mr. Trahan estimated the width of the sidewalk to be fifteen feet.

      . This service entrance consisted of a driveway running perpendicular to the sidewalk which provided vehicular access to an area adjacent to the mall containing trash disposal equipment as well as other equipment necessary for mall operation.

      .A bollard is a concrete post approximately four [feet] high which prevents a vehicle from running into the wall of the mall.

      . He did acknowledge that his accident report listed a visible injury, but suggested this entry was based on what Mr. Trahan had related to him.

      . The accident report contained notations to the effect that Mr. Trahan had tripped in a rain puddle, Mr. Trahan's clothes were wet, he was wearing "Crocs,” he had a visible injury, and that he refused medical treatment.

      . Mr. Trahan used this term to describe the algae associated with standing water which he described as very slippeiy.

      . The trial court was referring to the pictures introduced into evidence showing a visible mark where Mr. Trahan slipped.


author: SAVOIE, Judge.

text:
    Cynthia BENNETT v. Samantha BROWN, et al.
    CA 16-622
    Court of Appeal of Louisiana, Third Circuit.
    12/21/2016

      Roy S. Halcomb, Jr., 429 Murray Street, Suite 3 (71301), P. O. Box 1311, Alexandria, LA 71309-1311, (318) 487-4589, COUNSEL FOR PLAINTIFF/APPELLANT: Cynthia Bennett
    Matthew J. Ungarino, David I. Borde-lon, Ungarino & Eckert, LLC, 3850 N. Causeway Blvd., Lakeway Two, Suite 1280, Metairie, LA 70002, (504) 836-7531, COUNSEL FOR DEFENDANT/APPEL-LEE: Tower National Insurance Company
    Court composed of John D. Saunders, Billy Howard Ezell, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Lin this insurance coverage dispute, at issue is whether a “garage policy” issued to a car dealership provides uninsured motorist coverage and/or medical payments coverage to the Plaintiff for damages she sustained in an auto accident while she was driving a vehicle she had borrowed from the dealership. For the following reasons, we affirm the trial court’s summary judgment finding that neither type of coverage was available to Plaintiff and its dismissal of Plaintiffs claims against the insurer.

FACTUAL AND PROCEDURAL BACKGROUND

Cynthia Bennett and Samantha Brown were involved in an auto accident on 1-210 in Lake Charles, Louisiana, on August 10, 2013. Ms. Bennett, the Plaintiff herein, alleges that Ms. Brown was at fault and that she suffered injuries as a result of the accident.

At the time of the accident, Ms. Bennett was driving a vehicle that she borrowed from Service Chevrolet Cadillac, hereinafter Service Chevrolet, in Lafayette, Louisiana, while her vehicle was being repaired. Tower National Insurance Company, hereinafter Tower, had issued a “garage policy” to Service Chevrolet, under which the vehicle driven by Ms. Bennett was a “covered auto” as defined by the policy.

Ms. Brown had an auto liability policy issued from USAA. Ms. Bennett had a personal automobile policy with Allstate that provided uninsured motorist (UM) covei’age. After suit was filed, Ms. Bennett settled with both Allstate and USAA, but continued to pursue Tower for the remainder of her damages under the UM and medical payments coverage under provisions of Tower’s “garage policy” issued to Service Chevrolet.

Tower filed a Motion for Summary Judgment on October 5, 2015, arguing that Ms. Bennett was not considered an “insured” under the liability portion of the Tower policy because Ms. Bennett was insured by her own policy with Allstate, and | ^.therefore Ms. Bennett was also not an insured for purposes of UM coverage. The trial court agreed with Tower, and dismissed Ms. Bennett’s claims against it.

Ms. Bennett appeals. She argues that the policy’s exclusion of insured customers of Service Chevrolet from liability coverage violates La.R.S. 32:900(B)(2), which requires liability coverage for permissive drivers. Therefore, according to Ms. Bennett, because she should be considered as an “insured” for liability purposes, the policy also affords her with UM coverage in accordance with La.R.S. 22:1295(1)(a)(1). Alternatively, Ms. Bennett argues that the policy is ambiguous as to who is an “insured” for purposes of UM coverage, and therefore summary judgment was inappropriate. In addition, she argues that medical payments coverage was available to her under the policy.

STANDARD OF REVIEW:

Louisiana Code of Civil Procedure Article 9662 (A)(2) explains that the “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination” of actions. Further, “[t]he procedure is favored and shall be construed to accomplish these ends.” Id. A summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).
Although the moving party bears the burden of proof on the motion for summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim, action or defense if he or she will not bear the burden of proof at trial on the matter at issue. La.Code Civ.P. art. 966(C)(2). Rather, the movant is required “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. In turn, if the adverse party does not produce sufficient factual support to establish that he or she will be able to satisfy his or her evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. On review, an appellate court considers a summary judgment de novo, “using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Reynolds v. Bordelon, 14-2371, p. 3 (La. 6/30/15), 172 So.3d 607, 610.

Blanks v. Entergy Gulf States La., LLC, 15-1094, pp. 3-4 (La.App. 3 Cir. 4/6/16), 189 So.3d 599, 601 (footnote omitted).

UM COVERAGE

In reviewing the Tower insurance policy provisions, we keep in mind the following:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. The judiciary’s role in interpreting contracts is to ascertain the common intent of the parties to the contract.
Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent.
Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. That strict construction principle applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations ....
If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. The determination of whether a contract is clear or ambiguous is a question of law.

Cadwallader v. Allstate Ins. Co., 02-1637, pp. 3-4 (La. 6/27/03), 848 So.2d 577, 580(ci-tations omitted; emphasis in original).

I ¿The “Garage Coverage Form Declarations” page of the Tower policy states: “This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those ‘autos’[] shown as covered ‘autos.’ ” A charge for a premium is reflected on the declarations page in the columns for liability coverage, UM coverage, and med pay coverage. Liability and med pay coverage apply to “Any ‘auto,’ ” and UM coverage applies to “[o]nly those autos you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage.”

Section II of the “Garage Coverage Form,” entitled “Liability Coverage,” states as follows:

A. Coverage

2. “Garage Operations” — Covered “Autos”
We will pay all sums an “insured”[] legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from “garage operations” involving the ownership, maintenance or use of covered “autos”.
3. Who is An Insured
a. The following are “insureds” for covered “autos”
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except
(d) Your customers. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an “insured” but only up to the compulsory or financial responsibility law limits where the covered “auto” is principally garaged.
Uqi) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered “auto” is principally garaged, they are an “insured” only for the amount by which the compulsory or financial responsibility law limits exceed the limit of insurance.

There is no coverage form, or other policy provisions, specifically defining the UM coverage available under the policy, other than the reflection on the declarations page that UM coverage in the amount of $50,000.00 is provided by the Tower policy.

The parties do not dispute that the vehicle driven by Ms. Bennett was a “covered auto” under the policy, but rather only whether Ms. Bennett is an “insured” for purposes of UM coverage. Ms. Bennett argues that, because the policy does not specifically define who is an “insured” for UM coverage, the policy is ambiguous, and summary judgment in favor of Tower was inappropriate. However, the Louisiana Supreme Court has held that “a person who is not insured for liability purposes cannot be considered an insured for UM purposes[,]” noting that “UM insurance follows the person rather than the vehicle[.]” Filipski v. Imperial Fire & Cas. Ins. Co., 09-1013, pp. 4-5 (La. 12/1/09), 25 So.3d 742, 745. Therefore, if Ms. Bennett is not an insured for liability coverage, she is not an insured for UM coverage.

It is undisputed that Ms. Bennett had other insurance available to her in the amounts required by Louisiana law. Therefore, Ms. Bennett is not an “insured” for either liability coverage, or for UM coverage, under the policy language. However, Ms. Bennett argues that the policy’s exclusion of permissive drivers such as herself from liability coverage violates La.R.S. 32:900(B)(2), which provides that a “Motor Vehicle Liability Policy”

| fjShall insure the person named therein and any other person, as insured, using any such motor vehicle ... with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle ... subject to limits exclusive of interest and costs with respect to each such motor vehicle as follows[.]

This same issue was addressed in Alexander v. Cornett, 42,147 (La.App. 2 Cir. 7/11/07), 961 So.2d 622, writ denied, 07-1681 (La. 11/2/07), 966 So.2d 603. In holding that policy language excluding customers with insurance in the statutorily required minimum amount from the definition of insured under a “garage policy” did not violate public policy or La.RS. 32:900(B)(2), the court stated:

The correct rule is that a statutory omnibus clause such as [LaJR.S. 32:900(B)(2) supercedes only conflicting insurance policy provisions.
[In Marshall v. Seago, 41,138 (La.App. 2 Cir. 6/28/06), 935 So.2d 752,] [w]e noted that insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. The provision in question does not conflict with La. R.S. 32:900(B)(2) because it provides liability coverage when the customer’s insurance is inadequate to satisfy the minimum requirements of the statute. Accordingly, we affirmed the judgment dismissing [the insurer] from the suit because Seago was not an insured under the policy.
This same policy definition was also upheld in Savana v. Certain Interested Underwriters at Lloyd’s London, 2001-2450 (La.App. 1 Cir. 7/2/02), 825 So.2d 1242; Baker v. Kenn[e]y, 99-2950 (La.App. 4 Cir. 5/3/00), 767 So.2d 711, writ denied, 2000-2153 (La. 10/13/00), 771 So.2d 650; and, Gambino v. Lamulle, 97-2798 (La.App. 4 Cir. 6/10/98), 715 So.2d 574.
Unlike Green [v. Bailey, 29,759 (La.App. 2 Cir. 8/20/97), 698 So.2d 715], in which this court held that a statutorily authorized “named driver exclusion” was not in conflict with Louisiana’s compulsory insurance law, Goodwin [v. Western Heritage Ins. Co., 38,836 (La.App. 2 Cir. 8/18/04), 880 So.2d 985], Marshall, [935 So.2d 752], Savana, [825 So.2d 1242] and the other cases cited above hold that the same omnibus clause that is in the State National policy in this case does not conflict with, but instead complies with, the minimum requirements of La. R.S. 32:900(B)(2). Therefore, since the State National omnibus clause offers no less than what is required by the statutory omnibus clause, it is neither an exception nor an exclusion to the statutory omnibus clause.
| -/Accordingly, we find no reason to conclude that the statutory omnibus clause somehow overrides the policy’s omnibus clause in this case that meets the statutory requirements^]

Id. at 629-630.

We agree with the Alexander court, and find that the Tower policy’s exclusion of certain insured customers from the definition of “insured” does not violate La.R.S. 32:900(B)(2) or public policy. We therefore affirm the trial court’s finding that Ms. Bennett is not entitled to UM coverage under the Tower policy.

MED PAY COVERAGE

Ms. Bennett also argues on appeal that the Tower policy provides her with medical payments coverage. The “Medical Payments Coverage” endorsement of the Tower policy states:

A. Coverage
We will pay reasonable medical ... expenses to or for each person who sustains “bodily injury” to which this coverage applies, caused by an “accident” and resulting from:
(2) All operations necessary or incidental to a garage business.
B. Exclusions
This insurance does not apply to:
(1) “Bodily Injury” resulting from the maintenance or use of any auto.
(4) “Bodily Injury” to any “insured”

Ms. Bennett asserts that because she is seeking viedical expenses for the treatment of bodily injury, and not seeking bodily injmy, that the exclusion does not apply. The argument has no merit, as the policy clearly does not provide coverage for the payment of medical expenses to persons sustaining “bodily injury” resulting from the use of an auto. There is no question that Ms. Bennett sustained her alleged bodily injuries while using an auto, and therefore the med pay coverage is inapplicable. We [ ^likewise find no merit in Ms. Bennett’s argument that the exclusion for bodily injury resulting from the use of an auto is inconsistent with the coverage afforded.

CONCLUSION

For the reasons stated above, the trial court’s dismissal of Ms. Bennett’s claims against Tower is affirmed. Costs of this appeal are assessed to Appellant, Cynthia Bennett.

AFFIRMED.

      . As in Blanks, Id., we note that:
      While Article 966 was amended by 2015 La. Acts No. 422, § 1, and its provisions became effective on January 1, 2016, we consider this matter under the provisions of the Louisiana Code of Civil Procedure as they existed at the time of the trial court's consideration. See 2015 La.Acts. No. 422, § 2 (providing that: “The provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act.”).

      . "Auto” is defined as “a land motor vehicle, ‘trailer’ or semitrailer”

      . "Insured” is defined by the policy as “any person or organization qualifying as an insured in the Who Is an Insured provision of the applicable coverage.”

      . We note that Ms. Bennett cites to Castille v. Blum, 15-742 (La.App. 3 Cir. 3/16/16), 188 So.3d 362, writ denied, 16-706 (La. 6/17/16), 192 So.3d 768, wherein this court held that the liability portion of a policy limiting coverage to tractors that were “bobtailing” did not limit UM/UIM coverage to drivers of tractors that were “bobtailing.” However, that case is distinguishable as it did not involve a question as to whether the driver was an insured under the policy.


author: THIBODEAUX, Chief Judge.

text:
    STATE OF Louisiana IN the INTEREST OF B.R.C.
    16-273
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/21/2016

      Lloyd Dangerfield, 703 E. University Avenue, Lafayette, LA 70503, Telephone: (337) 232-7041, COUNSEL FOR: Defendant/Appellant — J.W. (Father)
    Keith A. States, Lafayette Parish District Attorney, Tracey Davenport-McGraw, Lafayette Parish Assistant District Attorney, P. O. Box 3306, Lafayette, LA 70502-3306, Telephone: (337) 232-5170, COUNSEL FOR: Plaintiff/Appellee— State of Louisiana
    Leah Antoinette Beard, 825 Kaliste Sa-loom Road, Brandywine Building 3, Room 150, Lafayette, LA 70508, Telephone: (337) 262-1555, COUNSEL FOR: Other Appel-lee — Department of Social Services
    Diane Elaine Cote, 825 Kaliste Saloom Road, Brandywine III, Room 150, Lafayette, LA 70508, Telephone: (337) 262-5913, COUNSEL FOR: Other Appellee — State of Louisiana, through the Department of Children & Family Services
    Franchesca L. Hamilton-Acker, Kimberly Latigue Arvie, Acadiana Legal Services, P. O. Box 4823, Lafayette, LA 70502-4823, Telephone: (337) 237-4320, COUNSEL FOR: Other Appellee — B.R.C.
    Laura Melancon, 516 SE Court Circle, Crowley, LA 70526, Telephone: (337) 889-5669, COUNSEL FOR: Other Appellee— B.C.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Conery, Judges.
   THIBODEAUX, Chief Judge.

| ¶J.W., the biological father of B.R.C., appeals the trial court’s judgment terminating his parental rights. At the trial level, the State of Louisiana, through the Department of Children and Family Services (“DCFS”), contended that J.W. had not completed any component of his court-approved case plan, with the exception of attending parenting classes and scheduling a substance abuse evaluation as trial approached. J.W. claimed that his efforts were sufficient to maintain his parental relationship. The trial court determined that there was no reasonable expectation that J.W.’s conduct would significantly improve. Further, that it was in B.R.C.’s best interest to terminate J.W.’s parental rights. For the reasons that follow, we affirm.

I.

ISSUES

We shall consider:

1. whether the trial court manifestly erred in terminating J.W.’s parental rights; and
2. whether the trial court erred by refusing to hear testimony and consider evidence regarding B.R.C.’s paternal grandmother’s interest in adopting him, if J.W.’s parental rights were terminated.

FACTS AND PROCEDURAL HISTORY

B.R.C. and his siblings came into the custody of DCFS because of their mother’s substance abuse and lack of supervision. At the time, B.R.C.’s biological father, J.W., could not be located. B.R.C. and his siblings were adjudicated as children in need of care ten days later. He was placed in a foster home and currently resides in that home with his sister. A case plan was created for J.W. with an aim toward reunification with a concurrent goal of adoption. After noncompliance with his case plan, DCFS sought to terminate J.W.’s parental rights pursuant to La.Ch.Code. arts. 1015(4) and 1015(5) so that B.R.C. can be freed for adoption.

A termination proceeding was held. Thereafter, the trial court cited La.Ch. Code. art. 1015(5) and determined that DCFS proved, by clear and convincing evidence, there was no reasonable expectation that J.W.’s conduct would improve significantly. Further, that termination of J.W.’s parental rights was in the best interest of B.R.C. J.W. now appeals that ruling.

III.

STANDARD OF REVIEW

A trial court’s findings on whether or not parental rights should be terminated are subject to the manifest error standard of review. State ex rel. K.G., 02-2886 (La. 3/18/03), 841 So.2d 759. Pursuant to this standard, we may not set aside any factual findings of the trial court unless the findings are manifestly erroneous or, | sin other words, are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

IV.

LAW AND DISCUSSION

A. Whether the trial court manifestly erred in terminating J.W.’s parental rights.

J.W. contends that DCFS failed to prove by clear and convincing evidence that there was no reasonable expectation for significant improvement in his condition or conduct. J.W. admits that he did not complete his case plan prior to the termination hearing. However, he states that he put forth effort to complete the plan. He notes that he and his mother (the child’s grandmother) established a relationship with the child prior to entering DCFS’s custody. He states that visiting the child was difficult because he lived more than 100 miles away. Before the original November 16, 2015, trial date, he maintains that he: (1) visited B.R.C. in Baton Rouge; (2) had his home inspected; (3) participated in a Family Team Conference; and (4) appeared at numerous court hearings which required him to travel from St. Charles Parish to Lafayette Parish for each appearance. Further, after the trial was continued to December 14, 2015, he began parenting classes and scheduled a substance abuse evaluation. Given the above efforts, J.W. argues that the trial court erred in finding that the DCFS proved, by clear and convincing evidence, that there is no reasonable expectation of significant improvement in his condition or conduct.

DCFS argues that the trial court did not err in terminating J.W.’s parental rights. It avers that except for J.W.’s last-ditch effort to attend parenting classes, J.W. failed to comply substantially with his case plan. It contends that it is Lin B.R.C.’s best interest to terminate J.W.’s parental rights because: (1) there is no reasonable expectation that J.W.’s conduct or condition will improve; (2) it has an obligation to ensure that B.R.C. has safe and stable parental care; and (3) since July 2015, B.R.C. has been with foster parents, who have provided him a “stable, loving and secure home and proper parental care” and are willing to adopt him.

The Louisiana Supreme Court has held that in an involuntary termination proceeding, two private interests must be balanced — those of the parent and those of the child. State in the Interest of J.A., 99-2905 (La. 1/12/00), 752 So.2d 806. “[P]ar-ents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children[.]” Id. at 810 (citing Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)).

Further, “the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care.” Id. at 810-11 (citing Lehman v. Lycoming County Children’s Serv.’s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982)).

In balancing these interests, the interest of the child is paramount. It must be considered over that of the parent. Id. at 806. The primary concern of a termination of parental rights proceeding is to secure the best interest of the child. La. Ch.Code art. 1001. “Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens.” State in the Interest of J.A., 752 So.2d at 811.

Louisiana Children’s Code Article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights of a parent. Only Rone ground needs to be established, but the court must also find that termination is in the best interest of the child. State in the Interest of ML, 95-45 (La. 9/5/95), 660 So.2d 830. The trial court found that DCFS proved by clear and convincing evidence that termination of J.W.’s parental rights was warranted under La.Ch.Code art. 1015(5) amended by 2016 La. Acts No. 608, § 1. This article states that:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Id. (emphasis added). Louisiana Children’s Code Article 1036(C) sets forth the evidence that may be used to prove a lack of parental compliance with a case plan. It states:

Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of. the child’s foster care, if ordered to|Bdo so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

La.Ch.Code art. 1036(C).

Further, La.Ch.Code art. 1036(D) sets forth the evidence that may be used to prove a lack of reasonable expectation of significant improvement in the parent’s conduct or condition. It states, in pertinent parts:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

La.Ch.Code art 1036(D).

Here, it is undisputed that J.W. did not comply substantially with his case plan. J.W. concedes this fact. Instead, J.W. focuses his argument on whether the trial court determined properly that there was no reasonable expectation for significant improvement in his condition or conduct. On this issue, J.W. submits |7that there is a lack of evidence because he: (1) made recent efforts to comply with his case plan; (2) made an effort to attend court hearings and be attentive of the status of the case; and (3) attempted to contact his first attorney but was unsuccessful which delayed his ability to comply with his case plan.

J.W. cites one case, State ex rel. B.O.G., 08-1103 (La.App. 3 Cir. 3/4/09), 5 So.3d 1018, to support his argument. He uses this case for the proposition that not completing all components of a case plan does not warrant a termination of parental rights. In B.O.G., this court reversed the judgment of the trial court which terminated the parental rights of K.J.G. Id. KJ.G.’s case plan mandated that he provide child support payments of $50.00 per month, per child; maintain stable and safe housing; visit the children in accordance with the visitation plan; participate in a psychological evaluation; and complete domestic violence, anger management, and parenting skills classes. Id.

On appeal, this court noted that K.J.G. made significant strides towards completion of his case plan. Id. Despite living in Texas, he would travel to Lafayette, Louisiana to visit his children. Id. He also maintained contact with his children in accordance with the visitation plan, secured housing, participated in a mental health evaluation, completed anger management classes, and qualified his children to receive financial assistance in the form of Social Security benefits after he became disabled. Id. However, KJ.G. did not complete domestic abuse counseling and his psychological evaluation revealed that he suffered from “dependent personality disorder.” Id. at 1025. Further, there was no evidence that K.J.G. completed a parenting class. Id. at 1018.

We concluded that the State had not proven, by clear and convincing evidence, that it was in the best interest of the child to terminate KJ.G.’s parental | «rights. Id. We reasoned that “[w]hile he was not totally successful, his efforts are indicative of his intent to maintain a parental relationship with his children.” Id. at 1027. Moreover, his progress illustrated that “there had been an improvement in his condition and that there was a reasonable expectation for further improvement.” Id. at 1026.

Conversely, here, J.W. has not completed any element of his case plan. The case plan mandated that he: (1) maintain safe and stable housing for six months; (2) provide the State with proof of employment; (3) complete parenting classes; (4) attend a substance abuse assessment; (5) pay $25.00 in monthly parental contributions to DCFS; (6) participate in regular visitations with B.R.C.; and (7) submit to random drug screens.

J.W. did not maintain a stable housing environment. At the time of trial, he was living with his mother in a home that did not have an adequate sleeping space for a child. When questioned by a case worker during a home inspection, J.W. stated that the home has a spare room and that they are “in the process of cleaning up and getting rid of things.” The case worker attempted to inspect the room; however, J.W. and his mother refused to allow the worker to see the room.

He has not provided DCFS with proof of employment, despite his declarations that he was employed as a part time employee at Wal-Mart in Boutte, Louisiana, and later at MySpace. Further, there is no evidence in the record that J.W. paid monthly parental contributions for any month and he has only visited B.R.C. once since he entered DCFS’s custody. J.W. also failed to submit to a random drug test on December 4, 2015, citing a work conflict. He was later tested on December 8, 2015. The results of the test were not available the day of trial.

19At the time of trial, B.R.C. had been in DCFS’s custody for twenty months. J.W. did not complete any element of his case plan for nineteen months. Nineteen months after B.R.C. had been in DCFS’s custody and a month before trial, J.W. began attending parenting class and scheduled a substance abuse evaluation. He testified that he completed four of the nine required parenting classes as of the December 16, 2015, trial date. These last-ditch efforts are the only progress that J.W. made towards his case plan in the twenty months that preceded the termination trial. This is not sufficient to show a reasonable expectation that his conduct or condition will improve in the future.

Additionally, it is in B.R.C.’s best interest to terminate J.W.’s parental rights. Based on the testimony of Keisha Benoit, who is the child welfare specialist for this matter, B.R.C. is currently in a stable foster home with foster parents who are willing to adopt him should J.W.’s parental rights be terminated. He is also placed with his sister. Ms. Benoit noted that B.R.C. is thriving in his foster placement. Given that B.R.C. is in a stable home and doing well in his current placement, it is in his best interest to terminate J.W.’s parental rights so he can be freed for adoption.

Therefore, we find no manifest error in the trial court’s judgment that DCFS proved by clear and convincing evidence that there is no reasonable expectation of significant improvement in J.W.’s condition or conduct. It is also in B.R.C.’s best interest to terminate J.W.’s parental rights.

ImB. Whether the trial court erred by refusing to hear testimony and consider evidence regarding B.R.C.’s parental grandmother’s interest in adopting him, if JW.’s parental rights were terminated.

J.W. next argues that the trial court erred when it did not allow J.W.’s mother (B.R.C.’s paternal grandmother) to testify regarding her willingness to adopt B.R.C. He cites State ex rel. Department of Social Services v. Howard, 03-2865 (La.App. 1 Cir. 12/30/04), 898 So.2d 443 to argue that remand is necessary when “a trial court does not permit the presentation of evidence at the hearing as to whether a ground exists for the continued custody.”

DCFS maintains that the issue at trial was whether J.W.’s parental rights should be terminated. The issue was not whether the grandmother would be a suitable adoptive placement. It argues that the placement of the child is more appropriate for a “review hearing or permanency hearing at the child in need of care proceeding.”

Louisiana Children’s Code Article 1037(D) (emphasis added) states:

A judgment terminating the parental rights of the parent shall grant custody of the child to the department, a relative who is of the age of majority and who is willing to adopt the child without an adoption subsidy, or other suitable person, in accordance with the best interest of the child.

Louisiana Children’s Code Article 1037(D) does not impose an evidentiary requirement for a trial court to consider testimony at a termination hearing from persons who seek to adopt the child. Based on the trial transcript, when counsel for J.W. attempted to elicit testimony regarding the grandmother’s willingness to adopt the child, counsel for DCFS objected. The trial court sustained the objection. The court noted that it was a termination proceeding and not a placement hearing. It determined that testimony regarding the grandmother’s ^willingness to adopt B.R.C. was irrelevant. In its judgment, the trial court terminated J.W.’s parental rights, ordered that B.R.C. shall remain in DCFS’s custody, and authorized DCFS to place B.R.C. for adoption.

The trial court’s ruling on the objection is bolstered by the fact that B.R.C. is currently in a stable and safe home with foster parents who are willing to adopt him. It is also noteworthy that at the time of trial, J.W. was living with his mother. If B.R.C. were placed with his paternal grandmother, it would be contrary to the court’s ruling to terminate J.W.’s parental rights. It would place B.R.C. in a home setting that the court is wary of for the reasons stated above.

Further, the case cited by J.W. in his brief has no bearing on this issue. In State ex rel. Department of Social Services, 898 So.2d at 443, the issue was whether the State can require an alleged biological father to take a paternity test when the mother of the child was married to another man at the time of the child’s birth. Id. The trial court denied the request for paternity testing. Id. The appellate court vacated the trial court’s judgment and reasoned, in part, that the concept of dual paternity allowed the State to establish paternity despite the presumption that the husband of the mother of the child, who was born during the marriage, was the father of the child. Id.

J.W.’s citation to this case is puzzling, as that matter did not involve La.Ch.Code art. 1037(D), a termination of parental rights hearing, or a person’s willingness to adopt. For the reasons stated, we find no error in the trial court’s ruling to prohibit testimony from the paternal grandmother regarding her willingness to adopt B.R.C.

_bV.

CONCLUSION

Based on the foregoing, the decision of the trial court to terminate the parental rights of J.W. is affirmed. Costs of this appeal are assessed to J.W.

AFFIRMED.

      . Pursuant to Uniform Rules — Court of Appeal, Rule 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.

      . The original case plan was created on April 14, 2014. It was updated on December 29, 2014, and June 24, 2015, to note J.W.’s progress, or lack thereof, with each element of the case plan.

      . The biological mother stipulated to her parental rights being terminated on November 16, 2015.


author: HIGGINBOTHAM, J.

text:
    Lester PINN v. Bruce Andrew PENNISON, Louisiana Farm Bureau Casualty Insurance Company, Catherine Long Celestine, and State Farm Mutual Automobile Insurance Company Catherine Celestine v. Bruce Andrew Pennison and Louisiana Farm Bureau Casualty Insurance Company
    NO. 2016 CA 0614
    NO. 2016 CA 0615
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 22, 2016

      Matthew W. Pryor, Gonzales, LÁ, Attorney for Defendants-Appellants, Catherine Celestine and State Farm Mutual Automobile Insurance, Company
    Chadwick Boykin, Baton Rouge, LA, Attorney for Plaintiff-Appellee, Catherine Celestine
    Paul T. Landry,- Morgan City, LA, Attorney for Plaintiff-Appellee, Lester Pinn
    William C. Rowe, Jr., Joseph S. Manning, Baton Rouge, LA, Attorneys for Defendants-Appellees, Louisiana Farm Bureau Casualty, Insurance and Bruce A. Pennison
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

IsThis consolidated matter concerns personal injuries and damages that followed an intersectional collision between a ear and a piekup truck. The driver of the car was found to have been 100% at fault for the accident and her guest passenger was awarded damages. That driver and her liability insurer appeal. The guest passenger answered the appeal. We consider whether the trial court erred in assessing fault and whether the damage award to the guest passenger was abusively high.

FACTS

The accident occurred at approximately 7:00 p.m. on June 26, 2012, in Morgan City, Louisiana. It is undisputed that, due to a nearby power plant explosion, the electrical power was not operating throughout the city. As a result, the four-way traffic signal was not functioning at the intersection of Louisiana Highway 182 (Hwy 182) and Martin Luther King Boulevard (MLK). Hwy 182 is a four-lane highway that runs east and west and intex-sects with MLK, which runs north and south. Both roadways have left-turn lanes for traffic traveling east and west on Hwy 182 and southbound on MLK.

Catherine L. Celestine was driving her car westbound on Hwy 182 at the same time that Bruce Andrew Pennison was driving his parent’s pickup truck southbound on MLK. Ms. Celestine planned to continue west on Hwy 182 and Mr. Penni-son intended to turn left onto Hwy 182. As they approached the intersection, both drivers noticed that the traffic signal was not functioning, but neither driver saw the other until just before the collision midway through the intersection.

Ms. Celestine and her guest passenger/cousin, Lester B. Pinn, claimed that they were conversing with each other when Ms. Celestine stopped at the intersection and, after observing no other cars, she proceeded into the intersection. Mr. Pinn yelled for her to “watch it!” just before Ms. Celestine collided with Mr. Pennison’s Lpickup truck midway through the intersection. Ms. Celestine denied that there were any other vehicles stopped with her at the intersection. She was confused as to which lane she was in, but Mr. Pinn and several witnesses testified that Ms. Celestine’s car was in either the left-turn or left lane and there were other cars in the right lane on Hwy 182. An independent witness, Aubrey Dean Boudreaux, who was standing outside of his corner business watching traffic at the intersection when the collision occurred, observed Ms. Celes-tine’s car stop at the intersection and when her car took off, Ms. Celestine “hit the back end of the truck” as it came across the intersection. Mr. Boudreaux did not see Mr. Pennison’s pickup truck until the time of the impact, so he could not say whether Mr. Pennison had or had not stopped at the intersection.

Mr. Pennison and his two guest passengers, his cousin, Jacob Paul Pennison, and his friend, Brigg Norris, maintained that Mr. Pennison stopped at the intersection and waited for several cars to pass through the intersection, which he was treating as a four-way stop. As Mr. Penni-son drove through the intersection near the middle of Hwy 182, he and his passengers saw Ms. Celestine’s car coming toward his truck. Mr. Pennison increased his speed in an attempt to avoid a collision, but Ms. Celestine’s car hit the rear driver’s side panel of his pickup tnxck, causing his truck to spin around and end up in a parking lot on the south side of Hwy 182.

As a result of the collision, two separate lawsuits were filed. Mr. Pinn brought suit in St. Mary Parish against Mr. Pennison and his insurer, Louisiana Farm Bureau Insurance Company (Farm Bureau), and Ms. Celestine and her insurer, State Farm Mutual Automobile Insurance Company (State Farm), for injuries he received in the accident. Ms. Celestine filed suit in East Baton Rouge Parish against Mr. Pen-nison and Farm Bureau for injuries she received in the accident. Farm Bureau reconvened against Ms. Celestine and State Farm, for payments it made as a result of the accident. Ms. Celestine’s suit was eventually transferred to St. Mary Parish and then consolidated with Mr. Pinn’s lawsuit since both cases arose out of the same accident.

A bench trial on the merits was held on June 22, 2015. The trial court issued extensive written reasons following the trial, outlining the details of each witness’s testimony and specifically noting that the case was “almost entirely one based on the credibility of the witnesses.” The trial court concluded that Ms. Celes-tine was 100% at fault in causing the accident for failing to yield to the traffic approaching from her right at the intersection that had reverted to an all-way stop due to the non-functioning traffic signal. In a judgment signed on July 15, 2015, the trial court awarded Mr. Pinn special damages in the amount of $6,814.52 and general damages in the amount of $15,000.00. No damage award was made to Ms. Celestine. Ms. Celestine and State Farm appealed, urging that the trial court’s apportionment of 100% fault to Ms. Celestine was manifestly erroneous, and that the damages awarded to Mr. Pinn were excessively high. Mr. Pinn answered the appeal, maintaining that the trial court should have found Mr. Penni-son at least 95% at fault and seeking an increase in the amount of general damages awarded to him. Ms. Celestine did not individually file her own appeal, nor did she answer the appeal, concerning the lack of a damage award to her.

ALLOCATION OF FAULT

Both Mr. Pinn and Ms. Celestine, along with State Farm, suggest that the trial court manifestly erred in allocating Ms. Celestine 100% of the fault for causing the accident. They assert that the trial court ignored evidence that Ms. Celestine had | ^stopped before entering the intersection and that Mr. Pennison had not stopped. They also assert that the trial court incorrectly found that Mr. Pennison had the right-of-way at the intersection and that he had entered the intersection before Ms. Celestine.

It is well settled that the allocation of fault is a factual matter within the sound discretion of the fact finder, and appellate courts review apportionment of fault under the manifest error-clearly wrong standard of review. Schexnayder v. Bridges, 2015-0786 (La.App. 1 Cir. 2/26/16), 190 So.3d 764, 773. The manifest error standard demands great deference to the fact finder’s conclusions; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous. Id.; Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

The trial court made credibility determinations and expressly found in written reasons:

Clearly, [Ms. Celestine] was in either the left (inside) lane of [Hwy 182] or the left turn lane of [Hwy 182] where her view of traffic to her right may have been obscured. The Court finds that, as she testified, she was talking with a passenger, stopped for traffic, then proceeded without observing traffic which had already entered the intersection from her right. Whatever her speed, upon impact was sufficient to disable [Mr. Pennison’s] truck, cause significant damage, and causing it to spin into an area parking lot. The impact was therefore not light and was not a “fender bender.” [Ms. Celestine] either failed to stop at the intersection or, after stopping, failed to observe traffic which had already preempted the intersection, causing the accident.

Our only inquiry at this stage is whether the trial court’s factual findings were reasonable, regardless as to how we may have weighed the evidence sitting as the trier of fact. Schexnayder, 190 So.3d at 774.

Our review reveals conflicting evidence as to whether both drivers stopped. Both claim that they stopped and both claim that the other driver did not stop before proceeding into the intersection. Because the traffic signal lights were not | functioning, the intersection was governed as if it were an all-way stop. See La. R.S. 32:232.1(A) (“when a traffic control signal is not functioning at an intersection, and the signal lights are completely dark, the intersection shall revert to an all-way stop and traffic shall proceed in accordance with the provisions of [La.] R.S. 32:121(A).”) Louisiana Revised Statute 32:121(A) provides that “[w]hen two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.” Further, even though Mr. Pennison, as a left-turning motorist, had a general duty to yield the right of way at an intersection under La. R.S. 32:122, that duty is not as great as the duty that all motorists must exercise extreme caution upon approaching or entering an intersection where the traffic control signal is not functioning, and only proceeding after ascertaining that it is safe to do so. See Thompson v. Chevron U.S.A., Inc., 94-1107 (La.App. 1 Cir. 4/7/95), 653 So.2d 1351, 1355, writ denied, 95-1173 (La. 6/23/95), 656 So.2d 1019 (following the rationale of Soprano v. State Farm Mutual Automobile Insurance Company, 246 La. 524, 165 So.2d 308, 312 (1964)).

The evidence clearly reveals that Ms. Celestine was the vehicle on the left side of this all-way stop intersection. Additionally, the evidence shows that Ms. Cel-estine did not see Mr. Pennison’s vehicle until the moment just before impact. All witnesses, including Mr. Pinn, consistently indicated that Mr. Pennison’s pickup truck was midway through the intersection when it was hit in the back side panel by Ms. Celestine’s car. Even the independent witness, Mr. Boudreaux, testified that he saw Ms. Celestine’s car take off from a stop and hit Mr. Pennison’s pickup truck that was already coming across the intersection. Thus, the trial court’s conclusion that Mr. Pennison’s “vehicle occupied the intersection before the collision” occurred is reasonably supported by the evidence. Furthermore, Mr. Pennison and his passengers testified that Mr. Pennison stopped and waited for several vehicles to | ^proceed through the all-way stop intersection, and then accelerated in an attempt to avoid the collision when he saw Ms. Celestine’s car just prior to the impact. Conversely, Ms. Celestine did not see any other vehicles at the intersection, including Mr. Pennison’s pickup truck. Under the law, Ms. Celestine is presumed to have seen what she should have seen. Gaudet v. Louisiana Department of Highways, 432 So.2d 867, 869 (La. App. 1st Cir. 1982). Therefore, Ms. Celestine breached the duty of extreme caution owed by her to other motorists entering the intersection when it apparently could not be safely traversed due to Mr. Pennison’s pickup truck passing through at that time.

Having thoroughly reviewed the conflicting testimony concerning the accident, and mindful of the great deference we must afford the trial court as fact finder, we cannot say that the trial court’s allocation of 100% fault to Ms. Celestine was manifestly erroneous or clearly wrong. Accordingly, we find no merit to the assignments of error concerning the assessment of fault in this case.

DAMAGES

Both Mr. Pinn and Ms. Celestine, along with State Farm, complain that the trial court abused its discretion in awarding damages to Mr. Pinn. Mr. Pinn maintains that the general damage award of $15,000.00 is abusively low for an aggravation of a pre-existing knee condition that was treated for approximately sixteen months. Conversely, Ms. Celestine and State Farm argue that $15,000.00 in general damages was abusively high and $6,810.52 in special damages was manifestly erroneous for what essentially amounted to a one-day treatment for a pre-existing knee condition. Mr. Pinn requests that this court increase his general damage award to $30,000.00, while Ms. Celestine and State Farm suggest that a more reasonable general damage award is $1,500.00 and that special damages for medical expenses on the day of the accident was only $1,817.96.

| nSpecial damages have a “ready market value,” that supposedly can be determined with relative certainty. See Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74. Medical expenses are easily measured. Smith v. Escalon, 48,129 (La.App. 2 Cir. 6/26/13), 117 So.3d 576, 583. A plaintiff is required to prove special damages by a preponderance of the. evidence. See Mack v. Wiley, 2007-2344 (La.App. 1 Cir. 5/2/08), 991 So.2d 479, 489, writ denied, 2008-1181 (La. 9/19/08), 992 So.2d 932. The standard of review applicable to an award of special damages is the manifest error standard. Kaiser v. Hardin, 2006-2092 (La. 4/11/07), 953 So.2d 802, 810.

General damages are defined as “those which may not be fixed with pecuniary exactitude;” instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Duncan v. Kansas City Southern Railway Co., 2000-0066 (La. 10/30/00), 773 So.2d 670, 682. For that reason, general damage awards are reviewed under the “much discretion” standard. See La. C.C. art. 2324.1 (providing that “[i]n the assessment of damages in cases of offenses ... much discretion must be left to the judge or jury.”) See also Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb a damage award on review. Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So.3d 1104, 1116.

At the trial, Mr. Pinn’s injury claim was established by his testimony, along with the testimony of his sister and mother and a friend. Additionally, Mr. Pinn’s medical records were introduced into evidence. The testimony and evidence show that Mr. Pinn suffered an aggravation of a preexisting condition to his left knee in the accident. On the day of the accident, he was taken by ambulance from the |inaccident scene to Teche Regional Medical Center in Morgan City. Mr. Pinn testified at trial about bruises and scratches on his thighs and pain in both of his knees, and how his knee pain was different after the accident, as well as how his activities were altered due to his pain level. Mr. Pinn sporadically sought follow up treatment with his treating physician, Dr. Jeffery Fitter, for sixteen months after the accident. While some of the visits to Dr. Fitter were not specifically for knee pain, the medical records reflect that Mr. Pinn was treated for discomfort and an aggravation to a pre-existing arthritic knee condition until November 2013.

We find the evidence in the record regarding Mr. Pinn’s injuries and the pain he has suffered as a result of the accident sufficient to support the general and special damage awards. We further note that while we find the award of $15,000.00 to be generous and on the high end for the amount of damages that a reasonable trier of fact could award under these circumstances, we do not find it constitutes an obvious abuse of discretion. Consequently, we find no merit to the assignments of error regarding the amount of damages awarded to Mr. Pinn.

CONCLUSION

For the assigned reasons, the judgment of the trial court is affirmed in all respects. All costs of these consolidated appeals are equally assessed to Mr. Pinn and to Ms. Celestine and State Farm.

AFFIRMED.

Theriot, J. concurs.

      . Ms. Celestine filed a separate appellee brief assigning error concerning her individual damages claim, but the record does not contain an individual appeal or answer to appeal on her behalf. Accordingly, we will not consider any alleged error concerning the lack of a damage award for Ms. Celestine's claimed injuries. See La. Code Civ. P. art. 2133(A) (an appellee who seeks to modify, revise or reverse a judgment in part, must file an answer to the appeal). See also Etcher v. Neumann, 2000-2282 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, 841, n.3, writ denied, 2002-0905 (La. 5/31/02), 817 So.2d 105 (an appellate court is precluded from considering whether damages awarded are abusively low and should be increased where plaintiffs did not file an answer to the appeal or a cross-appeal); Hospital Corp. of America v. Robinson, 499 So.2d 246, 249 (La. App. 1st Cir. 1986) (“[fjailure to appeal or answer an appeal precludes this court’s consideration of any issues subsequently asserted in brief’); TTV, L.L.C. v. Simmons, 2010-1163 (La.App. 3 Cir. 3/9/11), 58 So.3d 684, 692, n.6, writ denied, 2011-1048 (La. 6/24/11), 64 So.3d 222 (filing a brief does not satisfy the statutory requirements for filing an answer to an appeal).


author: CRAIN, J.

text:
    CEDARHOLLEY INVESTMENT, LLC, Lucky Deuces Casino, LLC, and Sthanki Properties, LLC v. Alonzo T. PITRE, A.T. Pitre Trucking, LLC, and Quality Carriers, Inc.
    NO. 2016 CA 0641
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 22, 2016

      Stephen M. Irving, Baton Rouge, Louisiana, Attorney for Appellants, Cedarholley Investment LLC, Lucky Deuces Casino LLC, Sthanki Properties LLC, and Shri-ma LLC
    John E. Galloway, Jennifer L. Sinder, New Orleans, Louisiana, Attorneys for Ap-pellees, Alonzo T. Pitre, A.T. Pitre Trucking LLC, and Quality Carriers Inc.
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

I ¡/This is an appeal of a summary judgment dismissing the plaintiffs’ claims for economic losses. We reverse.

FACTS

The plaintiffs in this suit (CedarHolley Investment LLC, Lucky Deuces Casino LLC, Sthanki Properties LLC, and Shri-ma LLC) operate businesses that they allege were economically impacted when a tractor-trailer crashed into a nearby ditch and spilled some or all of its cargo of acrylic acid. The plaintiffs did not sustain any property damages, but contend that due to the health and safety risks posed by the spill, it was unsafe for customers to use the services of their businesses (a convenience store, a truck stop and casino, an RV park, and a motel), and their employees were forced to evacuate the premises. The plaintiffs filed suit against the truck driver, Alonzo T. Pitre, and his employers, A.T. Pitre Trucking LLC and Quality Carriers Inc., seeking to recover the economic losses they suffered as a result of the accident.

The defendants filed a motion for summary judgment, seeking dismissal of the plaintiffs’ claims based upon application of “the economic-loss rule,” arguing that there is no genuine issue of material fact as to the absence of any physical damage to the plaintiffs’ properties, and therefore the plaintiffs are barred from recovering purely economic damages. The plaintiffs opposed the motion, arguing that their recovery is subject to a duty/risk analysis, and since their businesses are a clearly definable group within the evacuation zone, their claims are compensable. The trial court determined that the plaintiffs could not recover on their claims for purely economic damages, and granted summary judgment dismissing the plaintiffs’ claims. This appeal followed.

^DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s determination. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607, 610. Thus, the summary judgment shall be affirmed if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgments show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966B(2).

On a motion for summary judgment, the burden of proof is on the mover. See La. Code Civ. Pro. art. 966C(2). However; if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. art. 966C(2); Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76.

The defendants argue that' the plaintiffs’ claims are barred by the economic-loss rule. In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 308, 48 S.Ct. 134, 135, 72 L.Ed. 290 (1927), the Supreme Court held that under general |4maritime law a tortfeasor’s liability arising from property damage extended only to the owner of the damaged property, and therefore the tortfeasor was not liable to a party with whom the owner of the damaged property had contracted. The prohibitory rule of Robins Dry Dock has been characterized as “a pragmatic limitation imposed by the. Court upon the tort doctrine of foreseeability.” See State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1023 (5th Cir. 1985), cert. denied, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986). Based on the principles recognized in 'Robins Dry Dock, the economic-loss rule has been extended beyond maritime law to bar recovery in tort for economic losses that are unaccompanied by harm to the party’s own person or property. See Wiltz v. Bayer CropScience, Ltd. Partnership, 645 F.3d 690, 695-96 (5th Cir. 2011), cert. denied, 565 U.S. 1179, 132 S.Ct. 1145, 181 L.Ed.2d 1019 (2012).

Following Robins Dry Dock, the Louisiana Supreme Court recognized that “[i]t is a basic principle of the law that a tort-feasor is responsible only for the direct and proximate result of his acts and that, where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action ex delicto, in the absence of subrogation.” Forcum-James Co. v. Duke Transp. Co., 231 La. 953, 93 So.2d 228, 230 (1957). Louisiana generally adopted a prohibitory rule based on Robins Dry Dock and Forcum-James Co., and denied recovery for indirect economic loss to a party who had a contractual relationship with the owner of property negligently damaged by a tortfeasor. Maw Enterprises, L.L.C. v. City of Marksville, 14-0090 (La. 9/3/14), 149 So.3d 210, 216.

In PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058, 1061 (La. 1984), however, the Louisiana Supreme Court abandoned a mechanical application of the economic-loss rule in favor of a case-by-case application of the traditional duty/risk analysis. Accordingly, the prohibitory economic-loss rule advanced by Rthe defendants is not the law of this state. Louisiana law requires that the viability of the plaintiffs’ claims be determined after conducting a duty/risk analysis. See Maw Enterprises, L.L.C., 149 So.3d at 216; PPG Industries, 447 So.2d at 1059-60; Phillips v. G & H Seed Co., 10-1405 (La.App. 3 Cir. 3/7/12), 86 So.3d 773, 780-82, writ granted, 12-0775 (La. 6/22/12), 90 So.3d 447; see also 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La. 1989); Wiltz, 645 F.3d at 697-99. A tortfeasor is not legally responsible to all persons for all damages flowing in a “but for”' sequence from the tortfeasor’s negligent conduct. PPG Industries, 447 So.2d at 1061. Thus, it must be determined whether the duty allegedly breached by the defendants encompassed the particular risk of injury sustained by the plaintiffs. See PPG Industries, 447 So.2d at 1062; Phillips, 86 So.3d at 782.

Louisiana Code of Civil Procedure article 966F(1) provides that “summary judgment may be rendered or affirmed only as to those issues' set forth in the motion under consideration by the court at that time.” The defendants moved for summary judgment solely on the basis that the economic-loss rule operates to bar the plaintiffs from recovering, economic damages because they sustained no physical or property damages. As set forth herein, the defendants are not entitled to summary judgment dismissing the plaintiffs’ claims on that basis. Instead, the plaintiffs’ claims must be examined under the duty/risk analysis. Since the |fldefendants have not raised issues related to the duty/risk analysis in .their motion for summary judgment, this matter must be remanded to the trial court for further proceedings. Accord Phillips, 86 So.3d at 782.

CONCLUSION

The trial court’s judgment granting summary judgment and dismissing the plaintiffs’ claims is reversed, and this matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Alonzo T. Pitre, A.T. Pitre Trucking, LLC, and Quality Carriers, Inc.

REVERSED AND REMANDED.

      . Shrima LLC, the operator of the motel, intervened in the suit, and is included in the reference herein to "the plaintiffs.”

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, .§ 1, with an effective date of January 1, 2016, The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . The defendants argue to the contrary based on the federal district court’s analysis in TS & C Investments, L.L.C. v. Beusa Energy, Inc., 637 F.Supp.2d 370 (W.D. La. 2009). The federal district court’s ".Ene-guess” is not binding authority regarding Louisiana law. Cf FIA Card Services, N.A. v. Weaver, 10-1372 (La. 3/15/11), 62 So.3d 709, 714. However, we note that in conducting its analysis, the federal district court repeatedly indicated that the recoverability of purely economic damages required a policy determination, even if couched in terms of the duty/risk analysis, which led to the same conclusion as considering the question as a "damages rule.” TS & C Investments, L.L.C., 637 F.Supp.2d at 380.

      . Because the plaintiffs’ recovery must be decided under a duty/risk analysis, we do not consider or decide whether the economic-loss rule would bar the damages sought by the plaintiffs. But see, e.g., In re StarLink Corn Products Liability Litigation, 212 F.Supp.2d 828, 839-40 (N.D.Ill 2002) (recognizing that "access” cases in which plaintiffs seek compensation for lost profits because an alleged tort prevented customers from reaching the businesses nominally fall under the same economic-loss rule).

      . We note that in oral reasons for dismissing the plaintiffs’ claims, the trial court made reference to the duty/risk analysis, as did the federal district court’s opinion in TS & C Investments, L.L.C., on which the defendants rely. However, since the defendants did not raise issues regarding the scope of duty or the legal cause of the plaintiffs’ damages in their motion for summary judgment, as part of our de novo review We do not consider whether the duty/risk analysis will yield the same result as application of the economic-loss rule. See e.g., PPG Industries, Inc., 447 So.2d at 1061 (acknowledging that policy considerations similar to those underpinning the economic-loss rule led the court to find, under a duty/risk analysis, that the duty not to negligently damage property did not encompass the particular risk of economic losses sustained by a party who contracted with property owner); Dundee Cement Co. v. Chemical Laboratories, Inc., 712 F.2d 1166 (7th Cir. 1983) (finding that the plaintiff could not recover under Illinois law for economic losses to its business allegedly sustained when the defendant’s truck spilled hazardous materials and resulting road closures prohibited customers from reaching the business, because Illinois law precluded recovery of purely economic damages and because the plaintiff was legally too remote a party); but see Pharr v. Morgan’s L. & T.R. & S. S. Co., 115 La. 138, 38 So. 943 (La. 1905) (where the defendant was held liable for some of the plaintiff's economic losses incurred after the defendant’s negligence obstructed navigation of the Atchafalaya River).