author: GARRETT, J.

text:
    Steve RICHARDSON, et ux., Plaintiffs-Appellants v. James W. COTTER, III, M.D., et al., Defendants-Appellees
    No. 51,637-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    DOLLAR LAW FIRM, LLC By: Johnny E. Dollar, Monroe, Counsel for Appellants
    COWAN & LEMMON, LLP By: Philip E. Reso, New Orleans, Thomas C. Cowan, Counsel for Appellee, James W. Cotter, III, M.D.
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP By: Lawrence W. Pettiette, Jr., Joseph S. Woodley, Shreveport, Counsel for Appellee, Carl Goodman, M.D.
    Before DREW, MOORE, and GARRETT, JJ.
   GARRETT, J.

In this medical malpractice case, the trial court granted summary judgment in favor of the defendant doctors. The plaintiffs appeal. Following our de novo review, we affirm.

FACTS

The medical records, depositions, and other documents submitted by the parties in connection with the motions for summary judgment and oppositions establish the following facts. In August 2012, Steven Richardson, a resident of Farmerville, Louisiana, and his wife were visiting their daughter, son-in-law, and their family in Shreveport, when he began experiencing severe low back pain. On August 7, 2012, he was taken by ambulance to the emergency room ("ER") at Christus Health Northern Louisiana/ Highland ("Christus Schumpert"), where he was seen by Dr. James W. Cotter, III. He complained of severe back pain over several days. He recounted that he had received a steroid injection two days earlier (which was administered by his son-in-law, Dr. Vekovius, an eye doctor) and had been prescribed Lortab. His vital signs were normal, and he did not have any neurological deficits. In recounting his history, he denied having fever, chills or sweating.

Dr. Cotter, who is board certified in emergency medicine, ordered an MRI without contrast, as well as lab work for chemistries and complete blood count ("CBC"). The chemistries were normal and the CBC showed an elevated white blood cell count. Dr. Cotter attributed the elevated CBC to the recent steroid injection. Dr. Mark Kraemer, a board-certified radiologist, interpreted the results of the initial MRI. He suggested that an MRI with contrast also be done. The subsequent MRI revealed an acute disc herniation at L5-S1, with mild to moderate central canal narrowing. Additionally, according to Dr. Kraemer's report, there was no evidence of discitis. Dr. Cotter gave Richardson IV narcotics and steroids, and prescribed Valium for his muscle spasms. He further advised him to rest, to continue with the Lortab for pain, and to follow up with an orthopedic doctor.

On August 9, 2012, Richardson was seen at the Highland Clinic in Shreveport by Dr. Carl Goodman, a board-certified orthopedic surgeon. He complained of low back pain. After examining Richardson and reviewing the recent MRI from Christus Schumpert, Dr. Goodman felt he had an acute lumbar strain and sprain with no signs of nerve root irritation or compression. The exam indicated back pain, but no neurological deficits. His stretch signs and straight leg raise were negative. According to Richardson, the onset of pain occurred four days before, while visiting his children and sleeping on a couch, and his son-in-law had given him a shot of Kenalog, a steroid. He stated that he felt better since the ER visit. He did not report any chills, fever or night sweats. After administering an injection of Celestone and Lidocaine in Richardson's low back, the doctor advised him to continue his medications and gradually increase his activities.

The Richardsons returned to their home at some point. Richardson was next seen by a nurse practitioner, who referred him to a pain medicine doctor. On August 21, 2012, Richardson was seen by Dr. James Hardy Gordon, a physician board certified in pain medicine and anesthesiology, at Louisiana Pain Care in Monroe. At this time, in addition to severe low back pain, he reported night sweats and fever of up to 102 degrees over the previous week. However, he did not have an elevated fever at the appointment. His exam showed very limited range of motion secondary to pain, tenderness in the lumbar spine, and a positive straight leg test. His blood work results were consistent with infection, and he was admitted to St. Francis Medical Center in Monroe. A subsequent MRI revealed discitis and osteomyelitis at L5-S1, for which he was given IV antibiotics. In February 2013, Richardson underwent aortic valve replacement and bypass surgery at a Texas hospital. He contends that the heart surgery was necessitated by damage to his heart caused by the infection.

Richardson filed a medical malpractice complaint against both Dr. Cotter and Dr. Goodman, and their respective facilities, alleging that they all failed to diagnose his discitis. In February 2016, a medical review panel ("MRP") rendered a unanimous opinion finding that the evidence did not support the conclusion that any provider failed to meet the applicable standards of care. As to Dr. Cotter, it found that he performed a thorough exam, ordered the necessary tests that were indicated, and made arrangements for the patient to see an orthopedist. Based upon the history provided by the patient, the exam findings, and the results of the MRI and lab work, it concluded that further diagnostic testing, labs, or other evaluations were not warranted at that time. As to Dr. Goodman, the panel found that he took the patient's history, examined him, and reviewed the MRI done two days before. The neurological exam was normal, and no night sweats or fever were reported by the patient. The panel determined that the injection Dr. Goodman administered was not contraindicated under the circumstances, and, under these facts, the standard of care did not require him to order another MRI or additional blood work. Finally, the panel found that no evidence suggested that the nursing or other staff of either facility failed to provide appropriate care to Richardson.

Richardson and his wife filed the instant suit against the two doctors and the two facilities. They asserted that the defendants improperly assessed Richardson's condition, deviated from the appropriate standard of care, and failed to provide medical care consistent with the appropriate standards. They contended that the defendants' failures led to Richardson's subsequent medical problems and the heart surgery.

Dr. Goodman and Highland Clinic filed a motion for summary judgment, in which they asserted that the plaintiffs had no competent expert witness to testify that their treatment of Richardson was below the applicable standard of care or caused any harm to the plaintiffs. In support of the motion, they attached copies of the MRP opinion and Dr. Goodman's statement to the MRP, in which he recounted the details of his treatment of Richardson. Dr. Cotter filed a similar motion for summary judgment. He likewise supported his motion with a copy of the MRP opinion and a list of undisputed material facts.

The plaintiffs filed an opposition to the motions. They submitted a list of what they contended were disputed facts, Richardson's medical records, the depositions of Dr. Gordon, Dr. Cotter, Dr. Goodman, and Dr. Kraemer, and an excerpt from Richardson's deposition. They contended that Dr. Gordon, the pain management doctor who treated Richardson in late August 2012, was competent to establish the relevant standard of care.

Dr. Gordon's deposition is of particular interest. After he described his treatment of Richardson, including ordering the CRP and sed rate tests, he was asked by plaintiffs' counsel if his treatment was "in accordance with your understanding of the standard of care for a patient presenting with those symptoms." He responded:

A For me, you know, I hope that that would qualify as standard of care. I mean, that's what I try to give my patients. You know, I obviously was not there when he went to the ER and, you know, if I had to-
Q And I'm not asking you to pass upon-
A Okay.
Q -the propriety of what someone else did. I'm just asking-
A Oh.
Q -you, in your opinion, was this the standard-
A Yeah. No. I mean, for me, yes. I mean, the standard of care I think for-in the position that I was in was what I did.

During questioning by counsel for Christus Schumpert, Dr. Gordon admitted that he was board certified in the fields of pain medicine and anesthesiology, but not in emergency medicine. This colloquy followed:

Q You don't follow patients in an emergency room setting in terms of seeing every-all the people that walk in off the street with various ailments and so forth. Right?
A No, I don't.
Q And your practice here in Monroe has been limited to pain management?
A Correct.
Q So you're not familiar with the standard of care that would be applicable to an emergency medicine specialist, are you?
A No.
Q And would the same be true of the nursing staff in the emergency room? You're not really familiar with the standard of care applicable to nurses who practice in an emergency department setting?
A No.
Q So that's correct. Right? You're not familiar with that standard of care?
A I mean, only from what I gathered in med school and whatnot. But, I mean, no, I'm not an ER physician and I do not practice in the ER setting and I am not-I mean, I'm familiar with the standard of care in regards to what I do in my pain management practice, but I'm not going to sit here and say that I have-I know all the standard of care in the emergency department.

Additionally, he stated without reservation that it was not his intention to give any opinions adverse to Dr. Goodman. Furthermore, while questioning Dr. Gordon, plaintiffs' counsel specifically stated twice that he was not asking Dr. Gordon to pass or rule upon "the propriety" of someone else's conduct.

It is apparent from the transcript of the hearing on the motions for summary judgment that the trial court had carefully reviewed the deposition of Dr. Gordon relied upon by the plaintiffs to counter the defendants' arguments. The trial court quoted extensively from Dr. Gordon's deposition. Based upon Dr. Gordon's very candid deposition statements, quoted in part, supra , the trial court reasoned that he was not qualified to give expert testimony on the standard of care for an emergency medicine specialist or an orthopedic surgeon. The trial court gave the plaintiffs an additional 60 days to name an expert witness in emergency medicine and orthopedic surgery. No objection to this ruling was lodged by the plaintiffs. The trial court signed an order in which it granted Highland Clinic's motion for summary judgment, dismissing the plaintiffs' claims against it with prejudice at the plaintiffs' cost. The order, which was approved as to form and content by all counsel, then confirmed the 60-day period given to the plaintiffs to identify an expert witness qualified to offer testimony as to the standard of care in emergency room medicine and/or orthopedic medicine. It further stated that, in the event no expert witness was identified, the motions of Dr. Cotter and Dr. Goodman would be granted at the plaintiffs' cost without the necessity of any further court appearance.

In the meantime, Christus Schumpert filed its own motion for summary judgment, which was not opposed by the plaintiffs and was granted. At this juncture, only the two doctors remained as defendants.

Dr. Cotter and Dr. Goodman eventually filed ex parte motions requesting that their motions for summary judgment be granted because the plaintiffs had not identified any new expert witnesses. The plaintiffs filed an opposition, again claiming that Dr. Gordon's deposition testimony, combined with the factual evidence, was sufficient to establish the standard of care so as to preclude summary judgment. A hearing was held at which the plaintiffs' counsel reiterated that argument and also stated that his clients had elected not to incur the expense of obtaining additional experts. The trial court then signed a judgment granting the summary judgments in favor of Dr. Cotter and Dr. Goodman, dismissing the claims against them with prejudice at the plaintiffs' cost.

On appeal, the plaintiffs present the following assignment of error:

The court below erred in failing to accept the testimony of Dr. J. Hardy Gordon as establishing the standard of care to which Mr. Richardson was entitled and accepting that evidence as presenting genuine issues of material fact, precluding summary judgment in this case.

LAW

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate.

Larson v. XYZ Ins. Co. , 2016-0745 (La. 5/3/17), 226 So.3d 412, 2017 WL 1709852 ; Greemon v. City of Bossier City , 2010-2828 (La. 7/1/11), 65 So.3d 1263.

Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Dunn v. City of Kenner , 2015-1175 (La. 1/27/16), 187 So.3d 404 ; Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

When a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Larson v. XYZ Ins. Co. , supra .

Medical Malpractice

In pertinent part, La. R.S. 9:2794 states:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. [Emphasis added.]

In a medical malpractice action, the plaintiff has the burden of proving, by a preponderance of the evidence: (1) that the doctor's treatment fell below the standard of care expected of a physician in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. Fusilier v. Dauterive , 2000-0151 (La. 7/14/00), 764 So.2d 74.

A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession and also to use reasonable care, diligence, and judgment. Hastings v. Baton Rouge General Hosp. , 498 So.2d 713 (La. 1986) ; Fusilier v. Dauterive , supra . A physician is not required to exercise the highest degree of care possible. Rather, his duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. Gordon v. Louisiana State Univ. Bd. of Sup'rs , 27,966 (La. App. 2 Cir. 3/1/96), 669 So.2d 736, writ denied , 96-1038 (La. 5/31/96), 674 So.2d 263.

Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau , supra ; Foster v. Patwardhan , 48,575 (La. App. 2 Cir. 1/22/14), 132 So.3d 495, writ denied , 2014-0614 (La. 4/25/14), 138 So.3d 1233. Because of the complex medical and factual issues involved in medical malpractice cases, a plaintiff will likely fail to sustain his or her burden of proving his or her claim under La. R.S. 9:2794 without medical experts. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002 ; Pfiffner v. Correa , 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228 ; Lewis v. Tulane Univ. Hosp. & Clinic , 2003-0184 (La. App. 4 Cir. 8/27/03), 855 So.2d 383, writ not cons. , 2003-3253 (La. 12/19/03), 861 So.2d 576. Examples of an "obviously careless act" not requiring expert testimony include "fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body." Pfiffner v. Correa , supra .

Opinions of expert witnesses from the relevant medical professions are ordinarily necessary to determine the standard of care and whether the defendant breached the standard of care. See Med. Review Panel for Claim of Murphy v. Bernice Cmty. Rehab. Hosp. , 40,333 (La. App. 2 Cir. 10/26/05), 915 So.2d 354, writ denied , 2005-2399 (La. 3/17/06), 925 So.2d 549. In a medical malpractice action, opinions of expert witnesses who are members of the medical profession and who are qualified to testify on the subject are necessary to determine whether or not physicians possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence. Richardson ex rel. Brown v. Lagniappe Hosp. Corp. , 33,378 (La. App. 2 Cir. 5/15/00), 764 So.2d 1094, on reh'g in part , 33,378 (La. App. 2 Cir. 6/21/00), 801 So.2d 386. Physicians' actions are not to be evaluated on the basis of hindsight or in light of subsequent events. Med. Review Panel for Claim of Murphy v. Bernice Cmty. Rehab. Hosp. , supra .

Where medical disciplines overlap, it is appropriate to allow a specialist in one field to give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines. Battaglia v. Chalmette Med. Ctr., Inc. , 2012-0339 (La. App. 4 Cir. 10/17/12), 126 So.3d 524. A specialist's knowledge of the requisite subject matter, rather than the specialty or subspecialty within which the specialist practices, determines whether a specialist may testify as to the degree of care which should be exercised. A particular specialist's knowledge of the subject matter on which he is to offer expert testimony should be determined on a case by case basis. Harper v. Minor , 46,871 (La. App. 2 Cir. 2/1/12), 86 So.3d 690, writ denied , 2012-0524 (La. 4/27/12), 86 So.3d 629, and writ denied , 2012-0528 (La. 4/27/12), 86 So.3d 632.

DISCUSSION

In seeking summary judgment, Dr. Cotter and Dr. Goodman relied upon the unanimous MRP opinion to establish that they did not breach their applicable standards of care. Once the defendant doctors satisfied their burden of proving a prima facie case, the burden shifted to the plaintiffs to show genuine issues of material fact. It was incumbent upon the plaintiffs to produce an expert witness whose testimony established the standards of care applicable to the defendant doctors, breaches of those standards by the defendant doctors, and causation linking the breaches to the patient's injury. In this case, we agree with the analysis by the trial court that the deposition testimony of Dr. Gordon failed to establish any of these matters.

In an effort to obtain a reversal of the summary judgments, the plaintiffs raise numerous arguments. They contend that expert testimony is not always needed to prove medical malpractice. While this may be true in some rare instances, it is simply not applicable in the case before us. The information in this record outlined above establishes the complexities of diagnosing discitis -which appears to be a rare condition, according to Dr. Goodman's unrefuted testimony. It cannot be said that the alleged negligence in this case is so obvious that a lay person can infer negligence without the guidance of expert testimony. Further, the plaintiffs' reliance on this argument is somewhat belied by the fact that they have relied upon Dr. Gordon both below and on appeal to try to establish the standard of care.

The plaintiffs also contend that Dr. Gordon "clearly articulated the standard of care for diagnosis and treatment of discitis." They assert in their brief that detection of an infectious process is not a medical specialty but is so fundamental that any "first-year medical student should surely know this." However, there is simply no evidence in this record to support these contentions or to establish that there is an "overlap" of the specialties of emergency medicine, orthopedic surgery, and pain medicine as to discitis.

Careful review of Dr. Gordon's deposition reveals that his testimony as to the standard of care lacked clarity and was woefully inadequate to establish the relevant standards of care in the instant case. At best, he testified as to the measures he took on behalf of the patient. He then expressed first his hope that what he did would qualify as the standard of care. He next stated that he thought that what he did would constitute the standard of care for a physician "in the position that I was in." Dr. Gordon further qualified his testimony by candidly admitting that he was not there when Richardson presented in the emergency room, that he did not follow patients in an emergency room setting, and that he was not familiar with the standard of care applicable to an emergency medicine specialist such as Dr. Cotter. With equal candor, Dr. Gordon stated in his deposition that he was not asked to give any opinions adverse to Dr. Goodman and that it was not his intention to do so.

The plaintiffs incorrectly assert that Richardson had the same symptoms when he was seen by all three doctors. The record does not support this contention. Dr. Gordon's deposition testimony clearly established that Richardson presented to him with much different symptoms (notably, a positive straight leg raise and a history of fever and night sweats during the previous week) than those encountered by Dr. Cotter and Dr. Goodman when they saw the patient earlier in the month. Dr. Gordon candidly testified that he too would have interpreted Dr. Kraemer's MRI report as stating that there did not appear to be any evidence of discitis at that particular point in time. As Dr. Gordon readily conceded, he had "the luxury" of seeing Richardson "a couple of weeks" after the other doctors. These differing symptoms were highly relevant factors in Dr. Gordon's treatment of Richardson at that later date.

To the extent that the plaintiffs appear to argue that any doctor in any field should have diagnosed Richardson by running the same battery of tests as Dr. Gordon, this argument is flawed under the facts of this case. As previously noted, Richardson's manifestation of symptoms changed significantly over the time period between when Dr. Cotter and Dr. Goodman saw him and when he presented to Dr. Gordon. The depositions amply demonstrate that the different fields involved here obviously have different standards.

Based upon our de novo review, we find there are no genuine issues of material fact and that the defendant doctors were entitled to summary judgment as a matter of law. The plaintiffs have failed to come forward with the evidence necessary to satisfy their burden of proof under La. R.S. 9:2794. Accordingly, we affirm the trial court ruling granting summary judgment in favor of Dr. Cotter and Dr. Goodman.

CONCLUSION

The trial court ruling granting summary judgment in favor of the defendants, Dr. James W. Cotter, III, and Dr. Carl Goodman, is affirmed.

Costs of this appeal are assessed against the plaintiffs, Steve Richardson and Gwen Richardson.

AFFIRMED.

      Discitis (or diskitis ) is an inflammation or infection that develops between the intervertebral discs of the spine.
      According to Dr. Cotter's deposition testimony, an MRI with contrast is "the gold standard to diagnose discitis in the emergency department." A patient who is diagnosed with discitis is given IV antibiotics and admitted to the hospital. Dr. Carl Goodman testified in his deposition that he had seen only about five cases of discitis in his 46 years of practice, and that discitis presents with pain "so severe that the patient is hysterical." According to his testimony, untreated discitis can result in sepsis. He further stated that all of his discitis diagnoses were made with a positive MRI result.
      Dr. Kraemer's MRI report stated that the precontrast images raised "the possibility of diskitis." As a result, the postcontrast images were also ordered by Dr. Cotter and performed by Dr. Kraemer. After reviewing these images, Dr. Kraemer concluded in his report that "there does not appear to be evidence of diskitis." Dr. Kraemer noted in his report and in his deposition that he discussed his findings with both Dr. Cotter and Dr. Vekovius.

      Two of the tests ordered by Dr. Gordon, C-reactive protein ("CRP") and sed rate, were nonspecific indicators of inflammation and showed significantly elevated results for Richardson. In his deposition, Dr. Cotter stated that these were not standard emergency tests, noting the long period of time it took to obtain their results.

      In support of their argument that Dr. Gordon was competent to establish the standard of care, the plaintiffs quote the following portion of La. R.S. 9:2794(B) : "Any party to an action shall have the right to subpoena any physician ... for a deposition or testimony for trial, or both, to establish the degree of knowledge or skill possessed or degree of care ordinarily exercised as described in Subsection A of this Section." The plaintiffs omitted the remaining relevant portion of this statute which requires that the physician "has or possesses special knowledge or experience in the specific medical procedure or process that forms the basis of the action."


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Joe Litton BAILEY, Appellant
    No. 51,627-KA
    Court of Appeal of Louisiana, Second Circuit.
    September 27, 2017
    LOUISIANA APPELLATE PROJECT By: Douglas L. Harville, Counsel for Appellant
    JOE LITTON BAILEY, Pro Se
    JAMES E. STEWART, SR., District Attorney, Ann Arbor, REBECCA A. EDWARDS, Chicago, J. AARON CRAWFORD, WILLIAM C. GASKINS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, WILLIAMS, and BLEICH (Pro Tempore ), JJ.
   BROWN, C.J.

Defendant, Joe Litton Bailey, was convicted of simple burglary, in violation of La. R.S. 14:64, and was subsequently adjudicated as a third-felony habitual offender, in violation of La. R.S. 15:529.1. Bailey was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. Bailey claims the evidence at trial was insufficient to convict and that the life sentence is grossly disproportionate to the nonviolent offense for which he was convicted. For the following reasons, defendant's conviction and sentence are affirmed.

FACTS

On June 15, 2013, a valet parking attendant observed a man breaking into an Acura SUV parked in a lot across the street from the Scottish Rite Temple in downtown Shreveport. The break-in was reported to Paul Hambleton, owner of Shreveport Valet Parking Services, who observed a man at the back driver's side of the vehicle, walking away from it. Hambleton did not see the actual break-in. Hambleton testified that he also noted that the man's right arm had been cut just below and above the wrist and that the man was bleeding. Hambleton described the perpetrator as a black male, 6'2", and slender in build. Hambleton testified that he called out for the man to stop, then gave chase to get the license plate number of the older model Lexus in which the perpetrator left the scene. Hambleton wrote down the numbers and provided them to the police. Hambleton testified that he observed that the driver's window of the Acura SUV had been broken, and that there was blood on the car seat and ground.

Corporal Kevin Duck of the Shreveport Police Department responded to the crime scene and testified that he observed that the front driver's side window of the subject Acura was broken, and there was broken glass and blood inside of the vehicle. Cpl. Duck collected two samples of the blood from the center console of the Acura which he gave to the North Louisiana Crime Lab for testing. No photographs were taken of the scene. Sergeant Charles Thompson of the Shreveport Police Department testified that he took buccal swabs from a possible suspect, Joe Bailey, to compare to the DNA recovered from the Acura.

Michelle Vrana, the DNA section supervisor of the North Louisiana Crime Lab, testified that she analyzed the reference sample collected from Bailey by Sgt. Thompson, as well as the unknown samples collected from the Acura by Cpl. Duck. Vrana testified that the DNA profile obtained from the unknown sample was consistent with the DNA profile obtained from the reference sample collected from Bailey. The probability of finding the same DNA profile, if it had come from a randomly selected individual other than Bailey, was approximately 1 in 37.6 quadrillion.

Sgt. Thompson also interviewed the owner of the Acura, Bill Sample, who reported that he had attended a function at the Scottish Rite Temple on June 15, 2013. Sample testified that he was notified by security that his vehicle had been broken into. Sample reported to officers that nothing had been stolen from the vehicle. Sgt. Thompson presented Sample with a photograph of Bailey. Sample did not recognize Bailey and stated that there was no reason that Bailey's blood should have been in his vehicle. A jury found Bailey guilty as charged. Following a hearing, a motion for post-verdict judgment of acquittal was denied.

On September 8, 2016, the state filed a third-felony habitual offender bill of information. Bailey's prior convictions included a 1990 armed robbery conviction for which he was sentenced to 15 years' imprisonment and a 2006 simple robbery conviction for which he was sentenced to six years' imprisonment concurrent with a probation revocation. On December 14, 2016, Bailey was adjudicated a third-felony habitual offender. During the habitual offender hearing, the state noted that it had tendered an offer for Bailey to plead guilty as a second-felony habitual offender with an agreed upon sentence of 20 years' imprisonment and a waiver of appeal rights. Bailey rejected the offer, refusing to waive his right to an appeal.

On October 27, 2016, Bailey filed a sentencing statement and Dorthey motion for a downward departure in sentencing. He argued that he was 49 years old and employed with two jobs at the time of his arrest. Bailey admitted to having two prior felony convictions and three prior misdemeanor convictions, including misdemeanor theft in 1984, misdemeanor theft in 1987, and flight from an officer in 2003. Bailey asserted that the instant conviction was not a crime of violence, no one was injured, a dangerous weapon was not used, and he did not steal anything from the vehicle. Arguing that he was not the worst of offenders, Bailey asked that he be sentenced to a number of years rather than the mandatory life sentence. The state responded, informing the trial court that Bailey had an additional conviction in 1990 for simple robbery, which was not included in the habitual offender bill of information. Bailey filed a supplement to his Dorthey motion, asserting that the 1990 armed robbery was committed when he was a younger man addicted to drugs. Bailey further argued that he was a principal to the 2006 simple robbery, but was not the party who physically committed the robbery.

On December 20, 2016, the trial court denied Bailey's Dorthey motion for a downward departure in sentencing. Bailey was sentenced to the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Bailey filed a motion to reconsider sentence, which was denied by the trial court following a hearing. This appeal followed.

DISCUSSION

Sufficiency of Evidence

Bailey argues that the state failed to prove that an actual crime scene existed, a vehicle was broken into, or his DNA was recovered from the vehicle allegedly broken into. He argues that, as such, the state failed to meet its burden of proving each element necessary for the offense of simple burglary.

A claim of insufficient evidence is determined by whether, on the entire record, a rational trier of fact could find defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). On review, the appellate court considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , supra ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921 ; State v. Crossley , 48,149 (La. App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied , 13-1798 (La. 2/14/14), 132 So.3d 410. The appellate court does not assess the credibility of witnesses or reweigh evidence, and gives great deference to the jury's decision to accept or reject the testimony of a witness or the weight the jury gives to direct or circumstantial evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed. 2d 1068 (2010).

La. R.S. 14:62 defines simple burglary as "the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein." In this case, Paul Hambleton testified that he was alerted to the break-in by one of his valet parking attendants, who witnessed the break-in. Hambleton observed the man, who had a cut arm, walking away from the vehicle. The driver's side window of the vehicle had been broken. Blood located inside of the vehicle, on the center console, was determined to be consistent with Bailey's DNA profile. Although nothing was removed from the vehicle, the owner of the vehicle, Bill Sample, testified that he did not know Bailey, and Bailey had no reason to be inside of his vehicle. After viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the state proved beyond a reasonable doubt that Bailey entered the vehicle without authorization with the intent to commit a theft. This assignment is without merit.

Excessive Sentence

In his counseled assignment of error, Bailey argues that the state did not consider him to be an unredeemable threat to society, as evidenced by the state's plea offer. Bailey argues that a sentence of life imprisonment is grossly disproportionate to the nonviolent offense for which he was convicted and exemplifies the use of the habitual offender law in a way that violates constitutional prerogatives. Bailey asserts that, by imposing a life sentence, the trial court made no measurable contribution to acceptable goals of punishment. In his pro se assignment of error, Bailey adopts his appellate counsel's arguments, and further argues that the state used his prior offenses and other information that had not been proven at trial against him at sentencing.

The state argues that Bailey has not shown that he is the rare or exceptional defendant for whom this mandatory sentence could be found to be constitutionally excessive, and the plea offer does not establish that Bailey was considered to be such an exception.

In State v. Dorthey , 623 So.2d 1276 (La. 1993), and State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, the Louisiana Supreme Court addressed the issue of mandatory sentences in the context of the habitual offender law. In State v. Dorthey , supra , the supreme court held that a trial court must reduce a defendant's sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the habitual offender law "makes no measurable contribution to acceptable goals of punishment," or is nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime." Id. at 1280-81.

Because the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Dorthey , supra ; State v. Johnson , supra ; State v. Burks , 47,587 (La. App. 2 Cir. 1/16/13), 108 So.3d 820, writ denied , 13-0424 (La. 7/31/13), 118 So.3d 1116. As such, a sentencing judge must always start with the presumption that a mandatory minimum sentence under the habitual offender law is constitutional.

State v. Dorthey , supra ; State v. Johnson , supra . To rebut the presumption that the mandatory minimum sentence is constitutional, defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances, this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Dorthey , supra ; State v. Johnson , supra ; State v. Thomas , 50,898 (La. App. 2 Cir. 11/16/16), 209 So.3d 234.

Departures from mandatory minimum sentences by their nature must be exceedingly rare. State v. Little , 50,776 (La. App. 2 Cir. 8/10/16), 200 So.3d 400, writ denied , 16-1664 (La. 6/16/17), 219 So.3d 341. A trial judge may not rely solely upon the non-violent nature of the instant or past crimes as evidence that justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason for declaring such a sentence excessive. State v. Johnson , supra ; State v. Burks , supra ; State v. Fisher , 50,301 (La. App. 2 Cir. 12/30/15), 185 So.3d 842, writ denied , 16-0228 (La. 2/3/17), 215 So.3d 687.

In this case, La. R.S. 15:529.1(A)(3)(b) mandates a life sentence without benefits for Bailey because he is a third-felony offender whose current offense of simple burglary is punishable by imprisonment, with or without hard labor, for a term not to exceed 12 years. La. R.S. 14:62. Bailey has two prior convictions for armed robbery and simple robbery. Both are crimes of violence. La. R.S. 14:2(B). In 1990, Bailey pled guilty to armed robbery stemming from a series of gas station robberies in which he was under the influence of cocaine, armed himself with broken bottles, and stole money to purchase drugs. During one robbery, Bailey slammed a bottle onto a clerk's hand; no permanent injuries were sustained by the clerk. As to Bailey's 2006 conviction for simple robbery, he pled guilty to being a principal in the robbery of Amber Baker, but maintained that he was not the party who physically committed the robbery, where no property was taken from the victim. Bailey also admitted to two prior misdemeanor theft convictions in 1987 and 2003. Bailey's instant conviction of simple burglary, while not a crime of violence, is a felony. La. R.S. 14:2(B). The evidence shows that Bailey broke the driver's side window of the vehicle and reached into the car far enough to leave blood on the center console. There was nothing taken from the vehicle and the car itself was not stolen.

The record in this matter, as outlined above, shows that the evidence presented at trial was sufficient to sustain the conviction for simple burglary. Additionally, after a review of the record in its entirety, we find that Bailey has failed to prove that his mandatory life sentence is unconstitutionally excessive. Specifically, Bailey failed to meet his burden of proving by clear and convincing evidence that he is an exceptional case deserving of a sentence deviation. The imposed sentence is appropriate under the facts and circumstances of this case.

CONCLUSION

For the aforementioned reasons, defendant's conviction and sentence are affirmed.

AFFIRMED.


author: WILLIAMS, J.

text:
    Ellen FRAZIER, Plaintiff-Appellant v. The CITY OF SHREVEPORT, State Farm Fire and Casualty Company and Art R. Patterson, Defendants-Appellees
    No. 51,622-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered October 18, 2017
    MORRIS, DEWETT & SAVOIE, LLC By: G. Adam Savoie Counsel, for Appellant
    CASTEN & PEARCE, APLC By: Theodore J. Casten Stuart J. Crichton Counsel, for Appellees
    Before BROWN, WILLIAMS, and BLEICH (Pro Tempore ), JJ.
   WILLIAMS, J.

The plaintiff, Ellen Frazier, appeals a judgment in favor of the defendants, City of Shreveport and Art Patterson. The trial court found that the plaintiff's exclusive remedy for her personal injury was a workers' compensation claim. For the following reasons, we affirm.

FACTS

Ellen Frazier and Art Patterson were employed by the City of Shreveport in the Airfield Maintenance Division, which is located at the Shreveport Regional Airport. Frazier and Patterson worked the hours of 8 a.m. to 5 p.m., Monday through Friday. On January 22, 2013, shortly before 5 p.m., a low-impact collision occurred in the employee parking lot when Patterson backed a city-owned truck into the rear bumper of Frazier's personal vehicle. The airfield maintenance building and adjacent parking lot were enclosed with a barbed-wire fence and marked with a sign reading "Air Operations Area: Restricted." At the time of the accident, Frazier was in her vehicle, which was stationary behind the truck. An airport security officer investigated the accident and prepared a written report. Later that evening, Frazier visited Willis Knighton Hospital for an examination.

Subsequently, the plaintiff, Ellen Frazier, filed a petition for damages against the defendants, the City of Shreveport ("the City"), Art Patterson and her UM insurer, State Farm Fire & Casualty Company. The motions for summary judgment filed by the City and plaintiff were denied by the district court. Plaintiff later agreed to dismiss her claims against State Farm. After a trial, the district court concluded that the plaintiff's injury was covered by workers' compensation, finding that the accident occurred on the employer's premises before 5 p.m., when plaintiff was still on duty, and that she faced a risk of an accident when parking greater than that of the general public, because her employment required using that small lot in a restricted area. The trial court rendered judgment in favor of the defendants, dismissing plaintiff's claim for damages. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in finding that her recovery was limited to workers' compensation benefits. Plaintiff argues that workers' compensation is not applicable because she was not performing work duties at the time of the accident and the location did not present any special hazards to the employees.

An employee has the right to recover workers' compensation benefits when injured by an "accident arising out of and in the course of" his employment. La. R.S. 23:1031(A). An accident occurs in the course of employment when the employee sustains an injury while engaged in performing his duties during work hours, either on the employer's premises or where job activities take place. The principal criteria for determining course of employment are time, place and employment activity. Lafitte-Nesom v. Christus Schumpert Highland , 50,496 (La. App. 2 Cir. 2/24/16), 188 So.3d 1100. An accident arises out of employment if the risk from which the injury resulted is greater for the employee than for a person not engaged in the employment. The "arising out of" requirement depends on the character of the risk that caused the injury and on the relationship of that risk to the employment. Lafitte-Nesom, supra .

The dual requirements, "arising out of" and "in the course of" employment, have been treated by the courts as mutually interdependent concepts such that a strong showing of one can overcome a weaker showing of the other. Lafitte-Nesom, supra . Our jurisprudence has been inclined toward coverage of injuries on the employer's premises within a reasonable time after completion of an employee's work day. Even if an employee has finished his day's work and is in the act of leaving, he is entitled to a reasonable period while still on the employer's premises that is regarded as within the course of employment. Mitchell v. Brookshire Grocery Co. , 26,755 (La. App. 2 Cir. 4/5/95), 653 So.2d 202, writ denied , 95-1115 (La. 6/16/95), 655 So.2d 339. An accident has been held to arise out of employment if the conditions or obligations of the employment caused the employee in the course of employment to be at the place of the accident at the time the accident occurred. Mitchell, supra . Factual findings by a trier of fact will not be disturbed absent manifest error based upon a review of the record as a whole. Rosell v. Esco , 549 So.2d 840 (La. 1989).

In the present case, Art Patterson testified that he is employed by the City as an airfield lighting technician, that he drives his personal car to work and uses a city-owned truck to perform his job duties. Patterson stated that he and plaintiff worked from 8 a.m. to 5 p.m. each weekday and that the accident occurred in the airfield maintenance parking lot, which is the designated parking area for maintenance employees. Patterson testified that on the date of the accident he had driven the work truck to the employee lot to move some personal items from the truck to his private car. He stated that airfield maintenance employees often waited in the parking lot for 10-15 minutes before the work day ended, but were not allowed to leave until 5 p.m. Patterson testified that as he was getting back into the truck, he saw plaintiff get in her car and leave the parking space. He stated that he did not know that plaintiff had stopped behind the truck because material in the bed of the truck blocked his view. Patterson testified that he slowly backed the truck a short distance and hit the rear bumper of plaintiff's stationary car. Patterson stated that after the accident, he asked plaintiff why she had stopped behind the truck and she said because it was not yet time to leave. Patterson testified that he knew the accident happened at ten minutes before 5 p.m. because he had looked at his watch and saw the time. He stated that once the gate leading to the airfield maintenance building was open at 8 a.m., a person did not need a badge or key code to enter the lot. Patterson explained that the general public did not use that parking lot, however, because the area was restricted, as indicated by the fence surrounding the maintenance building and the sign stating: "Air Operations Area. Restricted."

Ellen Frazier testified that in 2013, she was employed by the City as a heavy equipment operator from 8 a.m. to 5 p.m. and also worked part time cleaning business offices. Frazier stated that the accident occurred in the airfield maintenance parking lot designated for use by the employees. She testified that airfield maintenance workers sometimes gathered in the parking lot to wait for 5 p.m. and that she had done that previously, but on the day of the accident the time was 5 p.m. when she went out to her car. Frazier stated that she saw the city truck in the lot near her car, but there was enough room for her to pull out of the parking space. Frazier testified that she did not leave immediately because a vehicle, which she first described as a dump truck and later as an "18 wheeler," was turning into the airfield and she yielded to that truck. Frazier stated that while she was waiting, she saw in her rear view mirror the city truck backing toward her and she pressed the horn, but the truck hit her car's rear bumper. Frazier testified that Patterson said that he had not seen her car, but denied telling him that she had stopped behind the truck because it was not yet time to leave. Frazier stated that at the time of the accident, her work duties were done and she was not going on an errand for her employer. Frazier acknowledged that the medical records indicated that she had stated she was sitting in her car waiting to go home when the accident occurred without any mention of yielding to a truck.

James Lowe testified that on the date of the accident, he was employed by the City as the supervisor of airfield maintenance employees, including Frazier and Patterson, who worked during the hours of 8 a.m. to 5 p.m. Lowe stated that a gate on the road leading to the airfield maintenance area was opened each day shortly before 8 a.m. and locked after 5 p.m. by the last person leaving. Lowe testified that during those hours a member of the public could enter the lot without a special badge or access code, but that such activity rarely happened because of the fencing and the sign stating that the area is restricted. Lowe explained that usually workers finished their duties by 4:50 p.m. and then waited in the designated employee parking lot until 5 p.m. to leave. Lowe testified that he did not see the accident, but went outside after someone told him about the incident. Lowe stated that he believed the accident occurred before 5 p.m. because the employees were still waiting in the parking lot when he went outside, Patterson told him the accident happened at 4:50 p.m., and Frazier had said that at the time of the accident she was sitting in her car waiting until it was time to leave. Lowe testified that Frazier was "still on the clock" and responsible to perform any job duty needed until 5 p.m.

In her brief, the plaintiff contends the situation of this case is similar to that of Lafitte-Nesom, supra , in which the court found that workers' compensation did not apply to the injuries of a worker who slipped and fell in an employee parking lot when leaving work for the day because she was not engaged in employment duties and the risk of injury from walking in the icy parking lot was no greater for Nesom than for members of the public. However, the factual situation of this case can be distinguished from that of Lafitte-Nesom . After hearing the evidence, the trial court found that in this case the accident occurred on the employer's premises before the plaintiff's work day ended at 5 p.m. These factual findings are supported by the testimony. Thus, the trial court could reasonably find that the accident occurred in the course of plaintiff's employment because she was serving the interests of her employer by remaining on the work premises until 5 p.m.

Plaintiff asserts that her risk of injury from using the parking lot was no greater than the risk for members of the public. However, as noted by the trial court, the deputy director of the Airport Authority testified that public access to the air operations area was limited under federal law to maintain the security of the nearby aircraft hangars. Additionally, a number of witnesses testified that airfield maintenance employees were required to use that parking lot. Thus, contrary to plaintiff's assertion, as an airfield employee she encountered the risk of a traffic accident in that employee parking lot more frequently than the general public and her heightened exposure was due to a condition of her employment. Consequently, the record supports a finding that this accident arises out of plaintiff's employment because a requirement of that job caused plaintiff in the course of employment to be at the location of the accident at the time the accident occurred.

The plaintiff also argues that under the "going-and-coming" rule she was not in the course and scope of her employment because she was leaving work in her personal vehicle. Contrary to plaintiff's argument, the going and coming rule is not applicable in this case because she was still on duty and physically present on the employer's premises when the accident happened. See Posey v. NOMAC Drilling Corp. , 44,428 (La. App. 2 Cir. 8/12/09), 16 So.3d 1211. In addition, the going and coming rule generally applies in cases involving vicarious liability and not in cases such as this concerning the availability of workers' compensation.

Based on the evidence presented, the trial court could reasonably determine that in this case plaintiff was involved in an accident arising out of and in the course of her employment. Thus, we cannot say the trial court erred in concluding that the plaintiff's recovery is limited to a claim for workers' compensation benefits. Accordingly, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court's judgment is affirmed. Costs of this appeal are assessed to the appellant, Ellen Frazier.

AFFIRMED.


text:
    Sadeq ELMUFLIHI, Plaintiff-Appellant v. CENTRAL OIL & SUPPLY CORP. & Northside Stores, LLC, Defendants-Appellees
    No. 51,673-WCA
    Court of Appeal of Louisiana, Second Circuit.
    November 1, 2017
    STREET & STREET, By: Curtis D. Street, Counsel for Appellant
    STAINES & EPPLING, By: Thomas J. Eppling, Lance E. Harwell, Counsel for Appellee, Central Oil & Supply Corporation
    NEAL G. JOHNSON, LLC, By: Neal G. Johnson, Counsel for Appellee, Northshore Stores, LLC
    Before WILLIAMS, GARRETT, and STONE, JJ.
   WILLIAMS, J.

In this workers' compensation case, the claimant, Sadeq Elmuflihi, appeals a summary judgment in favor of the defendant, Central Oil & Supply Corporation, and the denial of his motion for partial summary judgment. The claimant also appeals the award of weekly workers' compensation benefits in the amount of $208.33. The defendant, Northside Stores, LLC, has answered the appeal, contesting the finding that the claimant was injured in the course and scope of his employment. For the following reasons, we affirm.

FACTS

The claimant, Sadeq Elmuflihi, was employed as a cashier at a convenience store in Monroe, Louisiana. The defendant, Northside Shores, LLC ("Northside"), owned the store; the defendant, Central Oil & Supply Corporation ("Central Oil"), owned the premises and leased them to Northside. Central Oil, which is in the business of distributing and supplying fuel throughout the United States, also supplied oil and gasoline to Northside's convenience store pursuant to a consignment agreement.

On July 16, 2014, the claimant and another employee, Larry Briggs, closed the convenience store at 11:00 p.m. The claimant provided Briggs with a ride home, as was their usual routine. The claimant locked the door to the store from the outside and he and Briggs entered his vehicle, which was parked in front of the store. As the claimant attempted to drive away from the store, an unknown assailant approached the vehicle and began to fire a gun at the vehicle. The claimant suffered a gunshot wound to the neck and was rendered unconscious; the vehicle came to a stop after it struck a nearby residence. The claimant was severely injured and his medical records indicate that he continues to exhibit marked weakness in his arms and legs. Northside was uninsured at the time of the incident.

On October 15, 2014, the claimant filed a disputed claim for workers' compensation, naming "Central Oil & Supply Corp., d/b/a Hardy Mart" as his employer. The claimant alleged that he was entitled to "benefits for permanent, total disability due, alternatively TTDs or SEBs, with medical benefits, penalties, attorney fees, legal interest and all costs[.]" Central Oil answered the petition, asserting that it was not the claimant's employer and that the claimant was not injured in the course and scope of his employment.

On January 12, 2015, the claimant filed a supplemental and amending petition, alleging that Northside was his direct employer and that Northside was "liable, in solido, with the statutory employer." More specifically, the claimant alleged Northside and Central Oil were engaged in a joint venture by virtue of the lease and consignment agreements, and both entities were liable to him for workers' compensation benefits. Northside answered the petition, admitting that the claimant was its employee. However, Northside contended the claimant was not injured in the course and scope of his employment.

Subsequently, the claimant filed a motion for partial summary judgment, seeking a judgment declaring Central Oil and Northside liable to him for workers' compensation benefits. He argued that his duties as a cashier required him to manage the sales of gasoline for Central Oil, which was engaged in a joint venture with Northside. According to the claimant, since Northside (the direct employer) was uninsured at the time of the incident, Central Oil was liable to him for workers' compensation benefits.

Thereafter, Central Oil filed a motion for summary judgment, arguing that it was not engaged in a joint venture with Northside. In support of its motion, Central Oil attached the following exhibits: a copy of the lease agreement between it and Northside; a copy of the consignment agreement between it and Northside; the affidavit of its president, Hardeman Cordell, in which Cordell denied the existence of a joint venture; and excerpts from the deposition of Khaled Nagi, Northside's representative, in which Nagi testified that Northside and Central Oil were not involved in a partnership or joint venture.

The WCJ denied the claimant's motion for partial summary judgment and granted summary judgment in favor of Central Oil. The WCJ stated, "[A]lthough I do find that the consignment agreement is very detailed, I am unable to find that a combination of the contract of lease and the consignment agreement equates to a joint venture." The WCJ dismissed Central Oil from the proceedings.

The claimant proceeded to trial with Northside as the remaining defendant. Following the trial, the WCJ concluded that the claimant was injured in the course and scope of his employment. The WCJ stated:

* * *
At the time immediately preceding the shooting, claimant and his coworker, Mr. Briggs, were in the process of completing a close-out procedure on behalf of defendant. It is reasonable for claimant to be considered "in the act of leaving" during this close-out procedure. Thereafter claimant locked and secured the premises of defendant. It is also reasonable for claimant to be considered "in the act of leaving" during that process. Furthermore, claimant entered his vehicle and was leaving the parking lot of defendant when he was shot. He was both literally and jurisprudentially "in the act of leaving" at the time he sustained injury. Inasmuch as he was in the act of leaving, he's entitled to "a reasonable period" while still on the employer's premises and he must be regarded as being within the course and scope of employment.
Defendants failed to present evidence that the shooting arose out of a dispute with another person over matters unrelated to the employment. According to Detective Kent, the assailant was never apprehended and the motive for the shooting was never discovered.
* * *

The WCJ concluded that the claimant was entitled to the "payment of all medical expenses related to his work related injury, including treatment received in the state of California." Initially, the WCJ awarded temporary total disability benefits in the amount of $312.50 per week from July 14, 2014, to August 4, 2016. The WCJ also awarded supplemental earnings benefits "in the same amount from August 4, 2016 and continuing in accordance with law." Further, the WCJ awarded penalties in the amount of $4,000 and attorney fees in the amount of $5,000. Thereafter, the WCJ amended the judgment to reduce the amount of weekly benefits to $208.33.

The claimant appeals. Northside has answered the appeal.

DISCUSSION

The claimant contends the WCJ erred in granting summary judgment in favor of Central Oil and denying his motion for partial summary judgment. He argues that the evidence established that Northside and Central Oil were engaged in a joint venture. The claimant also argues that the terms of the consignment agreement reveal that a joint venture existed for the following reasons: Northside's employees were responsible for selling Central Oil's oil and gasoline products; the store operated under the name "Hardy Mart"; Central Oil retained the right to determine the price of the gasoline and the obligation to maintain the gasoline pumps; Northside was required to operate during certain hours; Northside's employees were required to wear certain uniforms; Northside received a share of the profits derived from the sale of gasoline; Northside's employees were required to read the gas meters to determine the amount of gasoline sold and to provide a daily report of the sales; and Northside's employees were responsible for changing the signage to reflect the cost of gasoline when instructed to do so by Central Oil.

At the time the instant lawsuit was filed, La. C.C.P. art. 966(B)(2) provided, in pertinent part:

[A motion for 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[.]

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Garrison v. State Farm Fire & Cas. Co. , 51,245 (La. App. 2 Cir. 4/5/17), 217 So.3d 586 ; Argonaut Great Central Ins. Co. v. Hammett , 44,308 (La. App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied , 2009-1491 (La. 10/2/09), 18 So.3d 122.

The law regarding the formation of a joint venture has been summarized as follows:

A joint venture results from the undertaking by two or more persons to combine their efforts, knowledge, property or labor to engage in and carry out a single business venture for joint profit. A joint venture is analogous to a partnership and controlled largely by the rules applicable to partnerships. There must be a sharing of the profits and losses with each party having some right of control over the business. The existence or nonexistence of a joint venture is a question of fact and each case must be considered according to its circumstances.
* * *
No formal or specific agreement is required. Generally, the relationship may be formed by an oral agreement and the existence of a joint venture may be inferred from the conduct of the parties and other circumstances.

Riddle v. Simmons , 589 So.2d 89, 92 (La. App. 2 Cir. 1991), writ denied , 592 So.2d 1316 (La. 1992). Joint ventures arise only where the parties intended the relationship to exist, and they are ultimately predicated upon contract either express or implied. Broadmoor, L.L.C. v. Ernest N. MorialNew Orleans Exhibition Hall Auth. , 2004-0211 (La. 3/18/04), 867 So.2d 651.

In the instant case, the "Contract of Lease" between Northside and Central Oil provided, in pertinent part:

* * *
[Central Oil] shall retain and be entitled to a portion of the revenue derived from the sale of gasoline as proscribed in the gasoline consignment agreement and shall not be required to compensate [Northside] for any portion of the leased premises used for sale of gasoline.
[Central Oil] shall be responsible only for repairs to the roof, structural members, or foundation of the building situated on the leased premises in addition to all repairs associated with the canopy and exterior signage used for the sale of gasoline, but shall not be responsible for any other repairs which may be due on the leased premises. All maintenance and repairs of any kind and nature which may be due to the improvements situated on the leased premises shall be made at the expense of [Northside], and [Central Oil] shall have no obligation to make any repairs whatsoever to the leased premises except to those portions above stated.
[Northside] shall also maintain at its expense owner's, Lessor, and Lessee liability insurance covering the contents of the building, together with liability insurance to protect [Central Oil and Northside] from liability to employees of [Northside] and/or third persons. * * * Certificates of all insurance coverage shall be furnished by [Northside] to [Central Oil].
* * *
[Central Oil] shall not at any time or to any extent whatsoever be liable, responsible, or in any way accountable for any injury to or death of persons or loss, destruction, or damaged property, including property and employees of [Northside], occurring in, on, or about the leased premises, or wherever occurring, resulting from any use of or activities on the leased premises, whether such injury, death or loss, destruction or damage shall be caused or in any way result from or arise out of any act, omission, or negligence of [Northside] or of any occupant, sublessee, visitor, or user of any portion of the leased premises, or shall result from or be caused by any other matter or thing, whether of the same kind or of a different kind than the matters or things above set forth and [Northside] shall forever indemnify [Central Oil] against any and all claims, liability, loss, damage, actions, or causes of action whatsoever on account of any such injury, death, loss, destruction, or damage and any related expense, including attorney's fees.
* * *
[Northside] agrees to adhere to all standards set by marketers of oil and gas or any other product sold on the leased premises and /or distributed by [Central Oil] and shall require that employees [wear] uniforms as required by the aforesaid marketers. Furthermore, [Northside] acknowledges receipt of the Site Checklist * * * which is used [to] evaluate the leased premises and hereby agrees to conform with the standards and criteria[.]
* * *
Leased premises shall be open for business a minimum of 6:00 A.M. to 10:00 P.M. Sunday through Thursday and 6:00 A.M. to 11:00 P.M. Friday and Saturday[.]

The record also shows that Central Oil and Northside entered into a consignment agreement whereby Central Oil would "deliver Motor Fuels to [Northside] for sale to the motoring public at [the convenience store]." The consignment agreement contained the following specific provisions:

* * *
5. PRICE: [Central Oil] shall establish the price at which its Motor Fuel is sold to the public and [Northside] agrees to promptly price said Motor Fuels on the dispensers and at the premises in accordance with the instructions of [Central Oil], which instructions may be oral or in writing. [Central Oil] on Monday and Thursday of each calendar week shall be permitted to remove the gross proceeds minus any commission due to [Northside] received from the sale of [Central Oil's] Motor Fuel from an account established by [Northside]. * * * [Central Oil and Northside] agree to share equally any transaction charges incurred for the purchase of Motor Fuel. * * *
6. COMMISSION: [Central Oil] and [Northside] agree that [Northside] will be paid a commission on sales of Motor Fuels. The commission due to [Northside] is one-half (1/2) the profit on the sale of the Motor Fuel. Profit shall be the difference between the street price or price in which the Motor Fuel is sold to the public and the delivered price which includes all expenses and charges including but not limited to transportation charges and taxes.
* * *
8. RELATIONSHIP OF PARTIES: It is expressly agreed that [Northside] is not the employee of [Central Oil]. Further, IT IS EXPRESSLY UNDERSTOOD THAT AS [CENTRAL OIL'S] AGENT SELLING FOR [CENTRAL OIL'S] ACCOUNT, [NORTHSIDE] DOES NOT HAVE THE RIGHTS OF A "FRANCHISEE" UNDER THE FEDERAL PETROLEUM MARKETING PRACTICES ACT * * * OR ANY SIMILAR STATE OR FEDERAL STATUTE.
* * *

(Emphasis in original).

As stated above, Cordell's affidavit was admitted into evidence in support of the motion for summary judgment. In his affidavit, Cordell described Northside as "an independent convenience store" that was "independently operated by Northside." He specifically denied entering into an agreement to create a joint venture with Northside and averred as follows:

* * *
25. Northside Stores, LLC does not share in the profits of any facet of the operations of Central Oil.
26. There is no relationship or enterprise between Central Oil and Northside outside of the Contract of Lease for the property itself and Northside's agreement to collect payments for fuel supplied on consignment and sold onsite.
27. There is no provision in the Contract of Lease recognizing employees of Northside as statutory employees of Central Oil.
28. There is no provision in the Gasoline Consignment Agreement regarding statutory employment and no negotiation regarding statutory employment as a condition of the Gasoline Consignment Agreement.
29. [The claimant] is not, and has never been, an employee of Central Oil[.]
30. [Central Oil] and [Northside] did not contemplate, intend to, or in fact, operate as a partnership or joint venture.
31. In the convenience store industry, it is standard practice for merchants to be supplied with goods on consignment, including fuel, food products, novelty products, and beverages.
* * *

Khaled Nagi provided deposition testimony as Northside's corporate representative. Nagi testified as follows: the name of the store was "Northside"; however, the name, "Harde Mart," appeared on the store's sign; Adel Nagi began operating the store less than two months before the shooting occurred and had not changed the sign; the claimant had been employed by the previous owner of the store; when Northside began operating the store, the claimant was retained as a part-time employee; the store's hours of operation were from 7:00 a.m. until 11:00 p.m. every day; all money was left in the store overnight; the claimant was not responsible for taking money to the bank; Northside employees were responsible for accepting payments for gasoline and would call Central Oil if they experienced problems with the gas pumps; Northside did not perform any repairs on the gas pumps; Northside employees who worked the morning shift were responsible for reading the gas meters and documenting the amount of gas sold every day; and Northside was not engaged in a partnership with Central Oil.

We have reviewed the summary judgment record in its entirety. There is nothing in the record to support the claimant's contention that Northside and Central Oil were engaged in a joint venture. The summary judgment evidence established that Central Oil and Northside were two separate and distinct entities that entered into a standard commercial lease and a standard agreement to sell gasoline pursuant to a consignment agreement. Northside utilized a building with underground gas tanks, pumps and equipment that were owned by Central Oil. Northside did not have the authority to determine the price of the fuel and was paid a percentage of the profits pursuant to the consignment agreement. Northside's corporate representative admitted that Northside did not know how much fuel was sold. He stated, "[W]e sell it to [customers] and we just make a penny of [sic] off that gallon and that's it. We don't know anything about profit, we don't know anything about the gas." The representative also stated that Northside cashiers were only responsible for "ring[ing] the gasoline" and collecting the payments from customers. We find no error in the WCJ's finding that the claimant failed to prove that a joint venture between Northside and Central Oil existed. Consequently, we find that the WCJ did not err in granting summary judgment in favor of Central Oil and denying the claimant's motion for partial summary judgment. This assignment lacks merit.

The claimant also contends the WCJ erred in failing to conclude that his average weekly wage was $700. He argues that the evidence established that he worked from 1:00 p.m. until 11:00 p.m., 7 days per week, and that he was paid $700 per week in cash. Therefore, according to the claimant, his weekly indemnity benefits should have been based on that amount. Further, the claimant argues that at the very least, the WCJ should have utilized the legally required minimum wage to calculate his wages.

An employee is entitled to workers' compensation benefits if he "receives personal injury by accident arising out of and in the course of his employment." La. R.S. 23:1031(A). Factual findings in workers' compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept. , 2009-0520 (La. 10/20/09), 23 So.3d 275 ; Crawford v. Town of Grambling , 51,090 (La. App. 2 Cir. 1/11/17), 211 So.3d 660, writ denied , 2017-0284 (La. 4/7/17), 218 So.3d 110. Under this rule, the reviewing court does not decide whether the WCJ was right or wrong, but only whether its findings are reasonable. Id. When there are two permissible views of the evidence, the WCJ's choice between them can never be manifestly erroneous or clearly wrong. Id. The reviewing court is emphatically not permitted to reweigh the evidence or reach its own factual conclusions from the record. Marange v. Custom Metal Fabricators, Inc. , 2011-2678 (La. 7/2/12), 93 So.3d 1253 ; Crawford , supra .

As stated above, the claimant testified that he was paid $700 per week in cash. Conversely, Northside maintained that the claimant was paid $200 per week in cash, and he received an additional $450 per month for food and rental assistance. Northside submitted the claimant's W2 form, which showed that the claimant earned $1,600 from June 2014, when Northside began operating the convenience store, until he was injured on July 16, 2014. In the reasons for judgment, the WCJ stated, "Based on the documents offered and admitted into the record, claimant's average weekly wage was found to be three hundred twelve dollars and fifty cent[s] ($312.50)."

The claimant did not present any evidence to support his testimony that he earned wages in the amount of $700 per week. It is clear from the record that the WCJ found credible the testimony of Northside's corporate representative, who testified that the claimant was paid $200 per week in cash, $250 per month toward rent and $200 per month toward food. Based on this record, we find that the WCJ was not manifestly erroneous in concluding that the claimant's average weekly wage was $312.50, and that he was entitled to weekly benefits in the amount of $208.33. This assignment lacks merit.

Further, the claimant contends the WCJ erred in failing to award the correct amount in indemnity benefits. He argues that, pursuant to La. R.S. 23:1171.2, the amount of weekly compensation should have been increased by 50 percent because of Northside's failure to obtain workers' compensation insurance.

It is undisputed that Northside did not have workers' compensation insurance in effect at the time of the claimant's injury. However, the record reveals that the claimant did not raise this issue in the lower court. In fact, during the trial and in his post-trial brief, the claimant specifically argued, "[T]he average weekly wage in this case should be $700 and the workers' compensation indemnity rate should be two-thirds of that which amounts to $466.67." Consequently, the WCJ did not consider the applicability of 23:1171.2. Because the issue was not raised in the lower court, this Court will not consider it for the first time on appeal. See , Segura v. Frank , 1993-1271, 1993-1401 (La. 1/14/94), 630 So.2d 714 ; Politz v. Politz , 49,242 (La. App. 2 Cir. 9/10/14), 149 So.3d 805 ; Cooper v. Southern Hunting Products, Ltd. , 39,166 (La. App. 2 Cir. 12/22/04), 891 So.2d 91.

Answer to Appeal

By answer to this appeal, Northside contends the WCJ erred in finding that the claimant's accident arose during the course and scope of his employment. Northside argues that the claimant was injured in the parking lot of the convenience store, after he completed his shift, locked the store, entered his personal vehicle and started to drive away. Further, Northside argues that the video recording of the shooting reveals that robbery was not the apparent motive for the shooting because the unknown assailants did not approach the claimant's vehicle.

To establish entitlement to workers' compensation benefits, a claimant must show that he sustained a personal injury by an accident arising out of and in the course of his employment. La. R.S. 23:1031(A) ; Buxton , supra ; Maxwell v. Care Solutions, Inc. , 50,088 (La. App. 2 Cir. 9/30/15), 179 So.3d 650, writ denied , 2015-1954 (La. 11/30/15), 184 So.3d 36. The two requirements of arising out of employment and in the course of employment are separate but mutually interdependent concepts used to determine whether the injury is sufficiently related to the employment to warrant coverage under the system of workers' compensation. Mundy v. Dept. of Health & Human Res. , 593 So.2d 346 (La. 1992) ; Maxwell , supra . However, these requirements should not be considered in isolation, and a strong showing of one can overcome or strengthen a weaker showing of the other. Maxwell , supra ; Mitchell v. Brookshire Grocery Co. , 26,755 (La. App. 2 Cir. 4/5/95), 653 So.2d 202, writ denied , 1995-1115 (La. 6/16/95), 655 So.2d 339.

An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer's premises or at other places where employment activities take the employee. Mundy , supra ; Maxwell , supra . The principal criteria for determining course of employment are time, place and activity. Id. Even if an employee has finished his day's work and is in the act of leaving, he is entitled to a reasonable period while still on the employer's premises which is regarded as within the course of employment; the working day embraces these intervals just as it embraces reasonable periods of rest, relaxation, and attendance to personal needs. Mitchell , supra ; Duncan v. South Central Bell Tel. Co. , 608 So.2d 649 (La. App. 2 Cir. 1992), writ denied , 610 So.2d 800 (La. 1993). As stated above, factual findings in workers' compensation cases are subject to the manifest error rule. Buxton , supra ; Crawford , supra .

In Mitchell , supra , the claimant worked as a cashier at a grocery store. After the claimant completed her shift and clocked out, she purchased some grocery items prior to leaving the store. She fell in the parking lot as she was walking to her car. This Court found that the accident occurred in the course of and arose out of her employment. We stated:

[I]n looking at the time, place, and activity at the time of the accident, we note that it was after Mitchell's shift ended, she was still on the employer's premises, and she was walking to her car to go home.
Our jurisprudence had been inclined toward coverage of injuries on the employer's premises within a reasonable time after the completion of the employee's work day.

Id. at 205.

In Maxwell , supra , the claimant was employed as a caregiver who provided care to clients in their homes. The claimant completed her shift at 5:00 p.m.; however, before she left her client's home, he began to complain of chest pain. The claimant called her employer; a nurse on the employer's staff instructed the claimant to call 9-1-1, accompany the client to the hospital and remain with him until he was either discharged from the emergency room or admitted to the hospital. Per the instructions, the claimant followed the ambulance to the hospital in her personal vehicle. The claimant remained with the client for several hours, until a decision was made to admit him to the hospital. As she was walking to her vehicle, at approximately 10:00 p.m., the claimant was attacked in the hospital parking lot by an unknown assailant. This court found that the injury occurred in the course of and arose out of her employment. We stated:

Ms. Maxwell was on the hospital's premises specifically engaged in duties (or having just completed them) under instructions from a nurse on defendant's staff. Furthermore, it is irrelevant that claimant may have been finishing her shift or even "off the clock" when she went to the hospital with her client. The critical fact is that she did so because she was instructed to do so by a staff member of Care Solutions. Further following her instructions, as soon as the client Ms. Maxwell had been caring for that day had been admitted to the hospital, claimant left him, and it was as she was walking to her vehicle in the hospital parking lot that she was the victim of a vicious attack by an unknown assailant. Unquestionably, claimant was in the course of her employment with defendant when she sustained her injuries.

Id. at 656-657.

In the instant case, the claimant had just completed his shift. He immediately closed and locked the door to the convenience store and proceeded to his vehicle. The claimant was in the act of leaving his employer's premises when he was shot by an unknown assailant. We find no error in the WCJ's finding that the claimant was injured in the course of his employment.

An accident arises out of employment if the conditions or obligations of the employment caused the employee in the course of his employment to be at the place of the accident at the time the accident occurred. When an employee is squarely within the course of his employment, virtually any risk has been considered arising out of employment. Mundy , supra ; Maxwell , supra . An injury by accident should not be considered as having arisen out of employment if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment. La. R.S. 23:1031(E).

In this case, the claimant was an employee of a convenience store. He testified that his normal workday was from 1:00 p.m. until 11:00 p.m. On the night he was injured, he closed the store at 11:00 p.m., per his usual routine. The claimant sustained significant injuries as a result of being shot by an unknown assailant, on his employer's premises, as he was leaving to go home. We find that the WCJ did not err in finding that the claimant's injuries occurred in the course of and arose out of his employment with Northside.

Additionally, Detective Kent, of the Monroe Police Department, testified that the shooter was never apprehended and the motive for the shooting was unknown. Consequently, we find that the WCJ did not err in finding that Northside failed to meet its burden of proving that the claimant's injuries "arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment."

CONCLUSION

For the foregoing reasons, we hereby affirm the grant of summary judgment in favor of the defendant, Central Oil & Supply Corporation, and we affirm the denial of the claimant's motion for partial summary judgment. We also affirm the WCJ's finding that the claimant was injured in the course and scope of his employment and the award of weekly benefits in the amount of $208.33. Costs of this appeal are assessed to the employer, Northside Stores, LLC.

AFFIRMED.

      Northside was owned by Adel Nagi.

      The events from that night were captured and recorded by the convenience store's video surveillance system. The recording was entered into evidence during the trial. Detective Jeremy Kent, of the Monroe Police Department, testified that the shooter was never apprehended.

      The claimant testified that he was in a coma for several weeks and he does not remember the shooting.

      In some portions of the record, "Hardy Mart" is spelled "Harde Mart."

      The claimant filed an appeal of that ruling. This Court dismissed the appeal, finding that the judgment was not an immediately appealable final judgment. Elmuflihi v. Central Oil & Supply Corp. d/b/a Hardy Mart , 50,850 (La. App. 2 Cir. 3/17/16) (unpublished).

      After the proposed judgment was submitted to counsel for Northside, counsel wrote a letter to the WCJ, stating, "The court found the [average weekly wage] to be $312.50. However, the court then awarded TTD and SEBs at the same rate. The rate should be $208.33."

      During the corporate deposition, Khaled Nagi testified that Northside did not receive one-half of the profits from the sale of gasoline. He stated that Northside received a commission in the amount of one cent per gallon of fuel sold.

      Khaled Nagi is the brother of Northside's owner, Adel Nagi, who was also present at the deposition. Adel Nagi did not testify because he "doesn't speak a lot of English." Khaled Nagi testified that he owned his own convenience store but he did not have any ownership interest in Northside.

      An employer shall secure compensation to his employees (1) by insuring and keeping insured the payment of such compensation with an authorized workers' compensation insurer, (2) by using any combination of life, accident, health, property, casualty, or other insurance policies offered by authorized insurers, or (3) by furnishing the satisfactory proof of the employer's financial ability to pay such compensation. La. R.S. 23:1168(A) ; Hurt v. Superior Cable Installation, Inc. , 1999-2982 (La. App. 1 Cir. 5/12/00), 762 So.2d 705, writ not cons. , 2000-1950 (La. 9/29/00), 769 So.2d 549. Where an employer has failed to provide security for compensation as required by La. R.S. 1168, the amount of weekly compensation provided by the workers' compensation statutes shall be increased by 50 percent. La. R.S. 23:1171.2.