text:
    In re Hilliard C. FAZANDE, III.
    No. 2009-B-0938.
    Supreme Court of Louisiana.
    Oct. 20, 2009.

      Charles Bennett Plattsmier, Bernadine Johnson, Baton Rouge, for Applicant.
    The Law Offices of Hilliard C. Fazande, III, Hilliard Charles Fazande, III, Elie, Jones & Associates, Ernest Lake Jones, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Hilliard C. Fazande, III, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

From June 2, 2004 to April 13, 2006, respondent was ineligible to practice law for failure to comply with mandatory continuing legal education (“MCLE”) requirements for 2002.

While he was ineligible to practice law, respondent was retained by a bail-bonding company, Do The Right Thing, to obtain a bond reduction for Travis Martin in State of Louisiana v. Travis Martin, No. 06-1056 on the docket of the 24th Judicial District Court for the Parish of Jefferson. Do The Right Thing paid respondent $1,500 for this service.

On March 1, 2006, respondent filed a motion to reduce bond on Mr. Martin’s behalf without Mr. Martin’s knowledge or consent. On March 3, 2006, respondent met Mr. Martin and represented him at his arraignment, during which respondent signed the cover of the official court record as Mr. Martin’s attorney. The State also provided respondent with discovery material at that time.

|2On March 3, 2006, Mr. Martin’s girlfriend, Tameka Wells, hired attorney Salvador Brocato, III to represent Mr. Martin. On March 6, 2006, Mr. Brocato filed a motion to enroll as counsel, a motion for discovery, and a motion to reduce bond on Mr. Martin’s behalf.

On March 20, 2006, respondent filed another motion to reduce bond on Mr. Martin’s behalf, which motion was actually a request to split the bond between property and cash. Respondent represented Mr. Martin at the hearing on the motion held on March 21, 2006 with Mr. Martin’s knowledge and consent.

On March 31, 2006, Mr. Brocato requested the State’s discovery material from respondent. However, respondent did not turn the material over to Mr. Bro-cato. Later that same day, Mr. Martin told respondent that he was not sure if he wanted to retain respondent’s services or Mr. Brocato’s services. Subsequently, on April 3, 2006, in response to a request by Mr. Martin, respondent provided Mr. Martin with his file, including the discovery material.

Thereafter, Mr. Martin could not pay Mr. Brocato his entire fee. Accordingly, Mr. Brocato filed a motion to withdraw as Mr. Martin’s counsel. Because Mr. Broca-to had withdrawn, Mr. Martin requested that respondent attend an April 13, 2006 hearing in his case. However, when respondent appeared at the hearing, the judge would not allow him to participate due to his ineligible status. That same day, respondent corrected his ineligibility and was declared eligible to practice law.

On July 11, 2006, respondent filed a motion to withdraw as Mr. Martin’s attorney. The judge granted the motion the same day.

JjDISCIPLINARY PROCEEDINGS

In April 2006, Mr. Brocato filed a complaint against respondent with the ODC. In August 2007, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.2(a) (scope of representation), 1.4 (failure to communicate with a client), 1.8(f) (a lawyer shall not accept compensation for representing a client from a third party unless the client gives informed consent), 1.16(a) (a lawyer shall not represent a client if the representation will result in violation of the rules of professional conduct or other law), 5.4(c) (a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services), 5.5(a) (engaging in the unauthorized practice of law), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent initially failed to answer the formal charges, and the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). One month later, respondent filed a motion to recall the deemed admitted order. This motion was granted by the hearing committee chair. Thereafter, respondent did not file a pleading captioned as an answer to the formal charges, but in his pre-hearing memorandum, he admitted he was ineligible to practice law during the period specified in the formal charges due to his failure to complete his CLE hours.

| ¿Hearing Committee Report

This matter proceeded to a formal hearing on the merits. After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

Respondent was contacted by Do The Right Thing to obtain a bond reduction for Mr. Martin. It appears that, on March 3, 2006, respondent met with Mr. Martin and was also retained by Mr. Martin to assist him in his criminal defense. Subsequently, Mr. Martin’s girlfriend retained Mr. Brocato’s services on Mr. Martin’s behalf. Although there is some confusion thereafter as to communications between respondent, Mr. Martin, his girlfriend, and Mr. Brocato, there is no clear and convincing evidence to establish that respondent represented Mr. Martin without his consent or took instructions from a third party relative to Mr. Martin’s defense. However, it was established by clear and convincing evidence that respondent was ineligible to practice law from June 2, 2004 to April 13, 2006 for failure to comply with MCLE requirements for 2002. Therefore, during the period of time complained of, respondent was practicing law while ineligible to do so.

Based on these findings, the committee determined that respondent violated Rules 5.5(a), 8.4(a), and 8.4(d) of the Rules of Professional Conduct. The committee found the remaining violations alleged in the formal charges were not proven by clear and convincing evidence.

The committee recommended that respondent be suspended from the practice of law for six months, with all but 45 days deferred, subject to the condition that he attend Ethics School. The committee further recommended that respondent’s office banking records and procedures be monitored for one year. One committee member | r,recommended that respondent be suspended from the practice of law for one year, with six months deferred.

Respondent filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the matter, the disciplinary board agreed that the record supports the hearing committee’s factual findings that respondent engaged in misconduct by practicing law while ineligible. Thus, the board adopted those findings. However, the board determined that the record does not support the committee’s findings that respondent’s other alleged misconduct was not proven by clear and convincing evidence. Specifically, the board found that the committee erred in rejecting the allegations that respondent undertook the representation of Mr. Martin without his consent and that respondent took instructions from Do The Right Thing instead of from Mr. Martin. In support of this finding, the board noted that respondent filed the first motion to reduce bond on March 1, 2006, two days before he ever met Mr. Martin. The board also noted that Mr. Martin submitted an affidavit in which he attested that he did not give respondent permission to represent him until March 21, 2006. Furthermore, the board indicated that respondent stated at oral argument before a panel of the board that he believed he was acting on behalf of Do The Right Thing when he filed the motion to reduce bond. Therefore, the board determined that (1) respondent did not have Mr. Martin’s authorization to represent him for the bond reduction; (2) respondent took instructions from Do The Right Thing, not from Mr. Martin; and (3) respondent was compensated by Do The Right Thing, a thh'd party, without Mr. Martin’s permission.

| ,;With respect to the allegation that respondent failed to timely withdraw as Mr. Martin’s attorney, respondent testified he believed he had been removed as counsel of record when the judge informed him he could not participate in the April 13, 2006 hearing due to his ineligibility. Because this testimony was not rebutted, the board found the ODC did not prove by clear and convincing evidence that respondent failed to timely withdraw from Mr. Martin’s case, in violation of Rule 1.16(a).

Based on these findings, the board determined that respondent violated Rules 1.2(a), 1.4, 1.8(f), 5.4(c), 5.5(a), 8.4(a), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) of the Rules of Professional Conduct. With respect to Rule 8.4(c), a violation of which was not alleged in the formal charges, the board indicated respondent violated this rule by (1) filing a motion reciting that Mr. Martin had authorized the representation, when in fact he had not, and (2) filing pleadings when he knew or should have known he was ineligible to practice law.

The board determined that respondent knowingly and intentionally violated duties owed to Mr. Martin, the legal system, and the legal profession. His conduct had the potential to cause serious injury to Mr. Martin, the public, and the legal system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is a suspension.

In aggravation, the board found that respondent refused to acknowledge the wrongful nature of the conduct. The board determined the following mitigating factors are applicable: absence of a prior disciplinary record and inexperience in the practice of law (admitted 2000).

Turning to the issue of an appropriate sanction, the board noted that this court has imposed sanctions ranging from suspension to disbarment in cases involving 17attorneys who engage in the practice of law while ineligible to do so. The baseline sanction for this type of misconduct is generally a one year and one day suspension from the practice of law. See In re: Hardy, 03-0443 (La.5/2/03), 848 So.2d 511.

Because of the mitigating factors present, the board determined that “this ease calls for a measure of leniency.” Accordingly, the board recommended that respondent be suspended from the practice of law for one year, fully deferred, subject to one year of supervised probation, during which time special attention should be placed upon reviewing the financial records of respondent’s law practice. The board further recommended that respondent complete Ethics School and Trust Accounting School.

The ODC filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

|8In this matter, respondent filed a motion to reduce bond on Mr. Martin’s behalf. However, he did so at the direction of Do The Right Thing, who compensated him for his services. This occurred on March 1, 2006, two days before the first time respondent met Mr. Martin, and that meeting appears to have been coincidental. According to Mr. Martin’s affidavit, he did not give respondent verbal permission to represent him until March 21, 2006, a day after respondent filed a second motion to reduce bond on his behalf. As such, respondent accepted compensation from a third party, who directed the bond reduction portion of the representation, without the knowledge or consent of Mr. Martin. Furthermore, it is undisputed that during the time he represented Mr. Martin, respondent was ineligible to practice law due to his failure to comply with MCLE requirements in 2002. This conduct by respondent is in violation of the following Rules of Professional Conduct: Rules 1.1(b), 1.2(a), 1.4, 1.8(f), 1.16(a), 5.4(c), 5.5(a), 8.4(a), and 8.4(d).

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 191987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We find respondent’s conduct was grossly negligent. He violated duties owed to Mr. Martin, the legal system, and the legal profession, causing potential harm to Mr. Martin and the legal system. In aggravation, we find that Mr. Martin was a vulnerable victim. The mitigating factors present are: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and inexperience in the practice of law.

The baseline sanction for respondent’s misconduct is clearly a period of suspension from the practice of law. The only issue before us is whether the suspension should be deferred in its entirety, or whether respondent should be required to serve some period of actual suspension. Under the circumstances presented, we conclude a six-month suspension, with all but thirty days deferred, is warranted. We will further order that respondent be placed on supervised probation for one year, during which time he shall enroll in and attend one full day of Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee. Any failure of respondent to comply with the conditions of probation may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

ImDECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Hilliard C. Fazande, III, Louisiana Bar Roll number 26638, be and he hereby is suspended from the practice of law in Louisiana for a period of six months. It is further ordered that all but thirty days of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for one year governed by the conditions set forth in this opinion. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . The board found respondent did not violate Rule 1.16(a) because he timely withdrew as Mr. Martin’s counsel, but the rule proscribed the representation in the first instance. Under Rule 1.16(a)(1), a lawyer must refuse to represent a client if "the representation will result in violation of the rules of professional conduct or other law.” In this instance, respondent violated Rule 5.5(a) by practicing law while he was ineligible to do so for his failure to comply with the minimum requirements of continuing legal education. Accordingly, respondent violated Rule 1.16(a) by accepting the representation of Mr. Martin.

      . We reject the board’s finding that respondent violated Rule 8.4(c). This rule violation was not alleged in the formal charges, and nothing in the factual allegations contained therein suggests that respondent’s conduct involved dishonesty, fraud, deceit, or misrepresentation. See Louisiana State Bar Ass’n v. Keys, 567 So.2d 588 (La.1990) (holding that due process prohibits sanctioning an attorney for unrelated misconduct revealed by evidence in the disciplinary proceeding when the attorney has not been notified that the uncharged violations would be considered as disciplinary offenses or that he should be prepared to present a defense as to that misconduct).

      . The hearing committee and the board both recommended that respondent also attend Trust Accounting School, apparently stemming from the fact that in 2006, he wrote a check to a CLE provider which was returned NSF. Setting aside for a moment that respondent was not charged with any misconduct arising out of this matter, we note that the check at issue was a personal check, not one drawn on his client trust account. Therefore, we see no reason to impose upon respondent the requirement that he attend Trust Accounting School.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Rodney RICHARDSON.
    No. 2009-KK-0638.
    Supreme Court of Louisiana.
    Oct. 20, 2009.

      James D. Caldwell, Attorney General, Leon A. Canizzaro, Jr., Dist. Atty., Lucas Jason Cuccia, Ayson R. Graugnard, Asst. Dist. Atty., for Applicant.
    Chaz Prentice Arnett, Joshua A. Perry, Rebecca Bers, for Respondent.
   PER CURIAM:

hThe state has charged defendant with possession of cocaine in violation of La. R.S. 40:967(0(2). Defendant moved to suppress the evidence and after a hearing conducted on January 13, 2009, the trial court found no probable cause for defendant’s arrest and granted the motion. The Fourth Circuit found no abuse of discretion by the trial court and denied the state’s application for review. State v. Richardson, 09-K-0105 (La.App. 4th Cir.3/2/09). However, we granted the state’s writ to review the decisions below and now reverse because testimony at the suppression hearing shows clearly that the police acquired probable cause to arrest defendant when he abandoned a crack cocaine pipe before, not after, the officers asked him to stop to discuss a complaint that he had been begging in violation of a city ordinance.

At the hearing conducted on January 13,-2009, the state called a single witness, New Orleans Police Officer Nicholas Williams, assigned to the Fifth District Task Force. The officer related that on the night of January 6, 2008, he and his partner had just turned their patrol unit into a gas station located at Canal and North Galvez in New Orleans when they were approached by an individual |2who complained that a black male riding a bicycle had been repeatedly asking him for money. The man had told the bicyclist to stop harassing him and, even as he spoke to the officers, he pointed them in the direction of defendant, who was riding a bicycle across from them on the opposite side of Canal Street. The officers decided to give defendant a warning about begging people for money in the neighborhood and turned on Canal to approach him. According to Williams, Canal Street “is a fairly [well] lit street,” and he had his headlights on, but when he pulled within 30 feet of defendant, the officer activated his unit’s spotlight “as another tool to have a clearer vision of what’s going on.” Officer Williams observed defendant turn his head as he pedaled and look at him with a startled expression. The officer then observed defendant drop from his right hand a silver object as he continued riding along Canal Street close to the curb. Williams pulled along side the bicycle and his partner, taking advantage of the open window in the patrol car, asked defendant to stop. Defendant complied and while his partner asked him some questions, Williams walked back and retrieved the silver object. He immediately identified it as a crack pipe “because it had wire mesh at one end, and it was burned .... it looked like it still had some residue in it.” The officer placed defendant under arrest and in an incident search retrieved a single rock of crack cocaine from the breast pocket of his shirt.

Officer Williams testified that he had no intent to arrest defendant for any violation of the city ordinance prohibiting public begging because he did not believe at the time that he had observed a crime and that he “was just going to approach Mr. Richardson and just let him know that it was a city law towards begging, and I needed to advise him to stop doing that, give him a warning.” See New Orleans, La., Code § 54-412(C)(1995)(“No person shall stand, sit, or remain next to or in a roadway or street, or upon the shoulder of any street or roadway, or upon a neutral ground of any street or roadway for the purpose of begging.... ”). However, while the officer may have had a subjective intent merely to approach |3the defendant and conduct a non-custodial interview with him, Williams conceded that when he activated his spot light, defendant looked back with an expression that “you might get on your face if I get behind your car and activate my lights and siren in an attempt to, you know, write you a ticket or something.”

The defense argues here, as it did below, that defendant’s reaction to the spotlight was one that any reasonable person would have had and that the shining of the intense light, particularly when followed by the officers’ action in pulling up beside defendant and effectively impeding his progress by confining him close to the curb as he pedaled, amounted to a seizure of defendant without probable cause for an arrest or reasonable suspicion to conduct an investigatory detention. However, we agree with the state that even assuming a seizure for purposes of the Fourth Amendment took place, it occurred after, not before, defendant discarded his crack pipe, and that abandonment of the narcotics paraphernalia with visible residue giving rise to probable cause for an arrest was thus not attributable to any prior illegality by the police.

As an initial matter, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen.... ” Florida v. Royer, 460 U.S. 491, 497, 108 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983)(White, J.); see also Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991)(“[T]he proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions .... is by no means novel; it has been endorsed by the Court any number of times.”) (citations omitted). Thus, an encounter between a police officer and a citizen “will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Bostick, 501 U.S. at 434, 111 S.Ct. at 2386. Because police officers remain free to approach any citizen to ask him a few questions “as long as [they] |4do not convey a message that compliance with their requests is required,” Bostick, 501 U.S. at 435, 111 S.Ct. at 2386, the nature of the encounter turns decisively, and a person has been “seized” for purposes of the Fourth Amendment, “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).

The Mendenhall test marks the threshold at which the encounter loses its consensual character and may become a significant Fourth Amendment event. However, for those cases in which the police have not physically restrained an individual but have otherwise asserted their official authority over him, the decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) added the requirement to Mendenhall that the citizen actually submit to the officer’s authority before the Fourth Amendment threshold is crossed. Hodari D. thus clarified that the Mendenhall test is a “necessary, but not a sufficient condition for seizure ... effected through a ‘show of authority.’ ” Id., 499 U.S. at 628, 111 S.Ct. at 1551. After Hodari D., a person has been seized for purposes of the Fourth Amendment only if he has been physically restrained or if he actually submits to an official show of authority under circumstances in which a reasonable person would understand that his freedom of movement had been decisively curtailed. United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994). In Louisiana, the test of when a seizure occurs is slightly broader, as it encompasses not only actual restraint or submissions to the assertion of official authority, but also circumstances in which “the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” State v. Tucker, 626 So.2d 707, 712 (La.1993).

In the present case, Officer Williams and his partner did not “seize” defendant when they swung their patrol car around and began following him as he | spedaled his bicycle on Canal Street and Williams’s activation of the spot light did not then convert the nature of the impending encounter into a non-consensual stop in the same way that use of blue flashers or police emergency lights invariably signal that some form of official detention in underway. See 4 Wayne R. LaFave, Search and Seizure, § 9.4(a)(4th ed. 2004)(“So too, other police action which one would not expect if the encounter was between two private citizens-boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority — will likely convert the event into a Fourth Amendment seizure.”)(footnotes omitted). While the use of a spotlight to illuminate an individual or an automobile on a public street may constitute a seizure when combined with other circumstances, such as a blocking action taken by the police to impede any progress, see, e.g., State v. Chopin, 372 So.2d 1222, 1224-25 (La.l979)(when police officers blocked defendant’s path by swinging their patrol unit around, switching on their bright lights, and braking three feet in front of him they seized defendant because their approach “clearly indicated that some form of official detention was imminent.”); Commonwealth v. Mulholland, 794 A.2d 398, 402 (Pa.Super.Ct.2002)(seizure occurred when officer activated his patrol unit’s spotlight and “parked his cruiser in such a fashion as to make it difficult if not impossible for the van to leave the parking lot.”), it does not alone cause the encounter to lose its consensual character because it “may also indicate to the reasonable person that the officer is carrying out his community caretaking function, and such conduct is frequently necessary to protect officers during any type of night-time police-citizen encounter.” State v. Garcia-Cantu, 253 S.W.3d 236, 245-46, n. 43 (Tex.Crim.App.2008)(eollecting cases); see, e.g., State v. Clayton, 309 Mont. 215, 45 P.3d 30, 35 (2002)(no Fourth Amendment seizure occurred under circumstances in which “[t]he police officers did not initiate the stop, but only pulled in behind [the defendant] and shined the spotlight to determine how |Bmany people were in the vehicle. The officers did not have their sirens or emergency lights on and the encounter took place on a public street.”); cf. Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983)(“It is likewise beyond dispute that [the officer’s] action in shining his flashlight to illuminate the interior of Brown’s car trenched upon no right secured to the latter by the Fourth Amendment.... Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.”) (citations and footnote omitted).

Moreover, even assuming that in the present case the mere activation of the patrol unit’s spot light constituted an assertion of official authority comparable to activating the police unit’s blue flashers, no seizure occurred at that moment because defendant responded not by stopping but by looking back briefly and continuing to pedal long enough to discard his crack pipe before the officers closed the 30 feet separating them and pulled along side of him. Even if at that point the officers could be said to have effectively blocked defendant’s progress by confining him to a narrow path along the curb after illuminating him with the spotlight, and that they thereby seized him for Fourth Amendment purposes when he stopped pedaling at their request because no reasonable person would have felt free under the circumstances to ignore them and go about his business, the crack pipe had already been discarded and Officer Williams remained free to retrieve it. State v. Andrishok, 434 So.2d 389, 391 (La.l983)(“Where officers do not have the right to make an investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized by the police officers. If, however, property is abandoned without any prior unlawful intrusion into a citizen’s right of freedom from governmental interference, then such property may be lawfully seized.”). It further appears that at the point defendant discarded his crack pipe the officers were not coming upon him with such force or had seized such 17unquestioned command of the situation that an actual stop was certain to occur. See State v. Robinson, 471 So.2d 1035, 1037 (La.App. 1st Cir.l985)(when police officer spotted rape suspect riding a bicycle in the opposite lane of traffic, turned around, came along side and told him he wanted to speak to him, suspect jumped off the bicycle, fled, and escaped over a fence too high for the officer’s canine unit to negotiate).

The ruling of the trial court granting defendant’s motion to suppress is therefore reversed and this case is remanded to the court for further proceedings consistent with the views expressed herein.

JUDGMENT OF THE TRIAL COURT GRANTING THE MOTION TO SUPPRESS REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS.

      . Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision.


author: GUIDRY, Justice.

text:
    Randy FONTENOT, et al. v. PATTERSON INSURANCE, et al. Germaine Brooks, et al. v. City of Lafayette, et al.
    No. 2009-C-0669.
    Supreme Court of Louisiana.
    Oct. 20, 2009.
    Order on Rehearing Dec. 11, 2009.

      James D. Caldwell, Attorney General, Colleen Ann McDaniel, Asst. Atty. Gen., for Applicant.

      Allen & Gooch, Michael Edward Parker, Lafayette, Lawrence N. Curtis, Ltd., Larry Curtis, Gregory Karl Klein, Lafayette, Johnny Edward Wellons, Chiquita Patrece Tate, Baton Rouge, Simien & Miniex, APLC, Rickey Wayne Miniex, Lafayette, for Respondent.
   GUIDRY, Justice.

| , Upon initial consideration, this Court remanded the matter to the court of appeal for review of the jury’s decision under the manifest error standard. We have again granted certiorari in this case to address the narrow issue of whether the court of appeal, on remand, applied the proper standard of review to amend the jury’s findings as to liability and the allocation of fault. Based on our detailed review of the record, we find the appellate court erred in substituting its judgment for that of the jury, rather than determining the jury’s factual findings were reasonable. For the treasons that follow, we reverse the judgment of the court of appeal and reinstate the jury’s verdict relative to liability and the allocation of fault.

FACTS

In March 2001, shortly after 11:00 p.m., Randy Fontenot, while operating a police cruiser in his capacity as an officer for the Lafayette City-Parish Consolidated Government (hereafter, “LCG”), was involved in a collision with a vehicle driven by Ger-maine Brooks. As a result of the accident, Mr. Fontenot was seriously injured. While Mr. Brooks sustained injuries, his passenger, Charlotte Phillips, died as a result of being ejected from his vehicle.

The incident took place at the intersection of Main and Morgan Streets in Brous-sard, Louisiana. Both streets are two-way roads with no physical separation between the lanes, and each had a posted speed limit of thirty-five miles per hour. Mr. Fontenot was traveling east on Main Street in the direction of Morgan Street. Mr. Brooks was operating his vehicle in á southerly direction on Morgan Street. At the time of the accident, the traffic signal regulating the flow of travel at the intersection was in a flashing sequence. A flashing yellow light controlled Mr. Fonte-not’s travel on Main Street, the major artery. Mr. Brooks was subject to a flashing red light regulating the traffic on Morgan Street.

There were no eyewitnesses to the accident. Uncontested documentary evidence and witness testimony presented at trial indicated Mr. Brooks was traveling between eighteen and twenty-six miles per hour, and Mr. Fontenot was traveling at fifty-six miles per hour. The police report prepared in connection with the incident indicates the front of Mr. Fontenot’s vehi-ele made impact at the front passenger side |3of Mr. Brooks’s vehicle, causing the latter vehicle to spin completely around counter clockwise and both vehicles to skid a considerable distance after striking each other. Mr. Brooks advised the investigating officer at the accident scene that he had come to a complete stop at the intersection, and that he proceeded after not seeing any approaching vehicles.

PROCEDURAL HISTORY

THE PETITIONS FOR DAMAGES

Two lawsuits were instituted as a result of the accident. As to the first, Mr. Fonte-not and his wife, Susanne Fontenot, filed a tort action seeking damages against Mr. Brooks and his insurance carrier, Patterson Insurance Company (hereafter, “Patterson Insurance”), asserting Mr. Brooks’s negligent operation of his vehicle in failing to stop at the red light and/or proceeding into the intersection in the path of Mr. Fontenot’s vehicle resulted in their damages. In a supplemental and amending petition, the Fontenots named as an additional defendant, among others, the State of Louisiana, through the Department of Transportation and Development (hereafter, “DOTD”). They alleged the intersection was unreasonably dangerous due to an inappropriate traffic signal and insufficient street markings. LCG filed a third party demand and intervention against each of the named defendants seeking reimbursement of workers’ compensation benefits paid to Mr. Fontenot. Following the insolvency of Patterson Insurance, the Louisiana Insurance Guaranty Association 14(hereafter, “LIGA”) was substituted in its place as a defendant. See La. R.S. 22:1375, et seq.

The second suit was filed against Mr. Fontenot and LCG by Mr. Brooks and Leona Phillips, Charlotte’s mother, seeking personal injury and wrongful death damages, respectively. The parties alleged Mr. Fontenot’s negligent operation of his police vehicle, stemming from his excessive speed and failure to keep a proper look out, caused the accident. LCG filed a reconventional demand against Mr. Brooks and his insurer seeking monetary recovery for damages to its police vehicle and worker’s compensation benefits paid to Mr. Fontenot. LCG also filed a third party demand against the DOTD, which prompted Mr. Brooks and Ms. Phillips to file an amending petition adding the DOTD as a defendant, citing the defectiveness of the intersection.

THE TRIAL COURT

The trial court consolidated the two suits. By the time the matter proceeded to a jury trial, the only remaining claims were those the Fontenots and LCG (hereafter collectively, “the plaintiffs”), had pending against the DOTD, Mr. Brooks, and LIGA. At the four-day trial, in addition to submitting considerable medical evidence, the parties presented documentary evidence and extensive expert testimony in the fields of accident reconstruction, traffic control, and highway design. As to the lay testimony, the essential testimony relative to the issue of liability was the testimony of the police officer that investigated the accident and prepared the incident report.

|sThe nature of the evidence introduced to the jury by the plaintiffs and the DOTD supported their claims that Mr. Brooks neglected to stop at the flashing red light upon reaching the intersection and, even if he did properly stop, he did not look for approaching traffic prior to proceeding forward. The DOTD, Mr. Brooks, and LIGA presented evidence supporting their allegations that Mr. Fontenot’s negligent operation of his police cruiser resulted in his injuries, citing his excessive speed and failure to exercise caution when proceeding into the intersection.

As to the claims asserted against the DOTD, the parties urged Mr. Brooks’s visibility was obscured by the presence of a public library building located on the corner of Morgan Street. They submitted expert testimony in support of their assertion that, to ensure all parties could safely travel through the inherently dangerous intersection, the mode of the light should have been configured for a four-way standard red-yellow-green light, instead of a flashing light. The parties also attempted to establish inadequate street markings contributed to Mr. Brooks’s failure to come to a full and/or properly positioned stop at the intersection that would have afforded him adequate visibility of approaching traffic. Specifically, they argued the accident was attributable to the absence of a painted stop bar, also referred to as a “limit line” in La. R.S. 32:234(A)(1), for the traffic proceeding forward on the corner of Morgan Street. While they acknowledged the presence of a stop bar exclusively for the traffic turning left off of Morgan Street onto Main Street, the parties maintained that another stop bar should have been staggered by the DOTD in a position closer to the edge of the intersection so that there would be full visibility of the oncoming traffic on the intersecting street. As to the left turn lane stop bar, the plaintiffs, Mr. Brooks, and LIGA urged it “visually tricked” and confused Mr. Brooks into thinking he had to stop at that marking, which was in excess of eighteen feet | Rfrom the intersection and had the library as a visible obstruction barring a proper outlook for approaching traffic.

At the conclusion of trial, while the jury was deliberating, the trial judge issued a judgment on the record, assigning liability as follows: 50% to Mr. Brooks; 50% to the DOTD; and 0% to Mr. Fontenot. The trial judge awarded LOG property damages against Mr. Brooks and the DOTD in the total amount of $19,994.87. Subsequently, following its deliberations, the jury entered a verdict assigning fault as follows: 90% to Mr. Brooks; 10% liability to Mr. Fontenot; and 0% liability to the DOTD. The jury awarded Mr. Fontenot special damages. In addition, it awarded damages for loss of consortium to Mrs. Fontenot and the Fontenots’s minor daughter. No general damages were awarded by the jury.

The Fontenots filed a motion for a judgment notwithstanding the verdict (hereafter, “JNOV”), or, in the alternative, a motion for new trial requesting the court readdress the jury’s allocation of fault and the denial of general damages. The trial court granted the JNOV, in part, and awarded Mr. Fontenot an additional $500,000 in general damages.

APPELLATE REVIEW

Three separate appeals were taken from the inconsistent trial court rulings. While the Fontenots contested the jury’s allocation of fault, the DOTD and LOG appealed the apportionment of fault rendered by the trial judge. The DOTD also objected to the award of general damages pursuant to the JNOV. Applying a de novo review, the court of appeal affirmed the jury verdict as amended by the trial judge’s JNOV. However, it reversed the jury’s allocation of liability, finding the jury erred in assessing any fault to Mr. Fontenot for the accident. The appellate court reduced Mr. Brooks’s liability from 90% to 50%, and allocated the remaining 50% fault to the DOTD. Fontenot v. Patterson Ins. Co., 06-1624 (La.App. 3 Cir. 12/5/07), 972 So.2d 401.

Subsequently, this Court granted the DOTD’s application for writ of certiorari challenging the court of appeal’s application of a de novo standard of review. Fontenot v. Patterson Ins. Co., 08-0414 (La.6/6/08), 983 So.2d 907. We concluded, because the Fontenots and the DOTD each asserted their right to a jury trial, the jury had the authority to decide all claims pending against the DOTD. As such, the matter was remanded to the appellate court with instructions to review only the jury’s verdict and to utilize the manifest error standard. Fontenot v. Patterson Ins. Co., 08-0414 (La.12/12/08), 997 So.2d 529.

On remand, the court of appeal concluded the jury manifestly erred as to the allocation of fault and reassessed liability by attributing Mr. Brooks with 60% fault and the DOTD with the remaining 40% fault. Fontenot v. Patterson Ins. Co., 06-1624 (La.App. 3 Cir. 2/18/09), 5 So.3d 954. In doing so, the trial court relied in full on the reasons articulated in its earlier opinion, wherein it had utilized a de novo standard of review.

Specifically, addressing the issue of liability, the appellate court found there was no breach of duty on the part of Mr. Fontenot. While it conceded the DOTD’s evidence supported a finding he was speeding, the court determined the excessive speed was not a cause-in-fact of the accident. Rather, the court of appeal attributed the majority of fault to Mr. Brooks stemming from his failure to yield to Mr. Fontenot’s vehicle. It opined Mr. Brooks’s negligence could have only resulted from the visual obstruction caused by the public library when Mr. Brooks mistakenly stopped at the left turn lane bar.

As to the liability of the DOTD, the court of appeal, unlike the jury, found the Istestimony of the plaintiffs’ experts to be more persuasive and well-reasoned than that of the DOTD’s experts relative to whether the intersection was unreasonably dangerous. Upon concluding the absence of standard light configuration and a stop bar constituted defects causally-related to the accident, and that the DOTD had knowledge of the defects, it assessed the remaining 40% fault to the DOTD. Lastly, the appellate court found no merit in the DOTD’s objection to the assessment of general damages pursuant to the JNOV. One member of the appellate panel dissented asserting the majority erred in substituting its judgment for the jury’s reasonable findings as to the allocation of fault.

We granted certiorari to determine whether the court of appeal misapplied the manifest error/clearly wrong standard of review in reversing the judgment of the jury regarding the issues of liability and the apportionment of fault. Fontenot v. Patterson Ins. Co., 09-0669 (La.5/22/09), 9 So.3d 130.

STANDARD OF REVIEW

In reviewing the factual findings of a trial court, we are limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100, p. 4 (La.1/16/96), 666 So.2d 612, 615. It is well settled that an appellate court may not disturb a jury’s finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176. An appellate court must do more than simply review the record for some evidence which supports or controverts the findings. Stobart v. State of La., through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). It must instead review the record in its entirety to determine whether the factual findings were clearly wrong or manifestly erroneous. Id.

| ¡¡Significantly, the issue to be resolved is not whether the jury was right or wrong, but whether its conclusion was reasonable. Id. Thus, this Court, after a full review of the record, may not reverse reasonable findings, even if we had weighed the evidence differently sitting as the trier of fact. Siverd v. Permanent General Ins. Co., 05-0973, p. 3 (La.2/22/06), 922 So.2d 497, 500.

DISCUSSION

LIABILITY

Burden of Proof

Indisputably, more than one party may be at fault for the damages sustained in the vehicular accident giving rise to these proceedings. This is premised in Louisiana’s comparative negligence scheme articulated in La. C.C. art. 2323. In deciding which parties are responsible, this Court has adopted a duty-risk analysis to establish the existence of delictual liability under La. C.C. art. 2315. Lazard v. Foti, 02-2888, p. 3 (La.10/21/03), 859 So.2d 656, 659. “In determining whether liability exists under a duty-risk analysis, a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, that [the] defendant owed a duty to [the] plaintiff which [the] defendant breached and that the risk of harm was within the scope of protection afforded by the duty breached.” Campbell v. La. Dept. of Transp. & Dev., 94-1052, p. 5 (La.1/17/95), 648 So.2d 898, 901, citing Mundy v. Dept. of Health and Human Resources, 620 So.2d 811 (La.1993). The duty-risk analysis is applicable for our consideration of whether Mr. Brooks and Mr. Fontenot should be apportioned fault for the accident.

Regarding the DOTD’s liability, the pertinent legal principles are somewhat different insofar as tort claims may be pursued against the public entity under La. ImC.C. art. 2317 and La. R.S. 9:2800 strict liability, as well as in negligence pursuant to La. C.C. art. 2315. Henderson v. Nissan Motor Corp., 03-0606, pp. 5-6 (La.2/6/04), 869 So.2d 62, 66-67. When addressing an action under either theory, the legal analysis is the same. The plaintiff bears the burden of showing that: (1) the DOTD had custody of the thing that caused the plaintiffs injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the DOTD had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs injuries. Netecke v. State ex rel. DOTD, 98-1182, 98-1197, p. 7 (La.10/19/99), 747 So.2d 489, 494.

We now apply these principles to address the reasonableness of the jury’s findings relative to the liability of Mr. Brooks, Mr. Fontenot, and the DOTD.

Mr. Brooks

Both the jury and the court of appeal found that Mr. Brooks was negligent and his actions were a cause-in-fact of the damages incurred by the Fontenots and LCG. Unquestionably, Mr. Brooks, in his capacity as a motorist, owed a legal duty to use reasonable care in the operation and control of his vehicle. See La. R.S. 32:58. The flashing red light controlling his lane of travel required that he stop at the intersection in a position where he had “a view of approaching traffic on the intersecting roadway [i.e., Main Street] before entering the intersection.” La. R.S. 32:123(B). See also La. R.S. 32:234. Moreover, he was barred from proceeding through the intersection 11Tuntil he yielded the right of way to those vehicles that constituted an immediate hazard. La. R.S. 32:123(B).

Based on our review, we agree with the lower courts that Mr. Brooks was negligent in the operation and control of his vehicle, and that his negligence was a substantial cause of the accident. The police report indicates Mr. Brooks advised Sergeant Elliot Thomas of the Brossard Police Department at the scene of the accident that he came to a complete stop at the intersection, and that “he looked both ways not seeing any oncoming vehicles on Main Street before he began entering the intersection.” This statement was corroborated by the trial testimony of Sergeant Thomas, who prepared the report.

There is no evidence to contradict Mr. Brooks’s assertions that he stopped and looked before entering the intersection. Rather, his negligent actions stem from his failure to see what he should have seen. In support, the undisputed testimony of Dr. Andrew McPhate, P.E., the DOTD’s expert in the field of vehicle dynamics and accident reconstruction, indicates Mr. Brooks was traveling between nineteen and twenty-six miles per hour, and Mr. Fontenot was traveling at approximately fifty-six miles per hour. He concluded, utilizing these respective calculated speeds, Mr. |12Fontenot was clearly approaching the intersection when Mr. Brooks proceeded from his stop. Mr. Brooks should have seen the police cruiser, and should have not entered the intersection before yielding the right of way, and is at fault because he did neither.

As for the reason why Mr. Brooks did not see the approaching vehicle, in the absence of his testimony at trial, we are only guided by the police report, which was admitted into evidence. While it provides there were no vision obscurements for either driver, the report indicates Mr. Brooks’s “condition” at the time of impact was “inattentive or distracted.” The jurisprudence provides, “[i]f a motorist fails to see what he should have seen, the law charges him with having seen what he should have seen, and the court examines his subsequent conduct on the premise that he did see what he should have seen.” Fernandez v. General Motors Corp., 491 So.2d 633, 636-637 (La.1986). Mr. Brooks breached his duty to use reasonable care, which encompassed within it a risk that an approaching driver could be simultaneously present on the road traveling at an excessive rate of speed. Therefore, we determine the jury did not err in finding that Mr. Brooks was at fault in causing the accident.

Mr. Fontenot

Next, we examine whether the jury manifestly erred in concluding that Mr. Fontenot is partly responsible for the accident. As a motorist approaching an intersection controlled by a flashing yellow light, Mr. Fontenot was legally obligated to exercise caution and vigilance in order to ascertain whether he could safely proceed into the crossing. La. R.S. 32:234. The degree of caution required of a 11sperson approaching a flashing yellow light includes approaching at a reasonable speed and maintaining a proper lookout for danger. Logically, what constitutes a reasonable speed and a proper lookout depends on the facts of each case.

Mr. Fontenot is not immune from liability simply because he was engaged in law enforcement-related tasks at the time of the accident. Although he was operating a police cruiser, he was still under a duty to drive in due regard for his own safety and others in accordance with the surroundings and circumstances that were in existence. With this in mind, it is undisputed that he was traveling at an excessive speed, and did not have his flashing lights or siren activated. La. R.S. 32:24 affords traffic privileges to the drivers of emergency vehicles while providing protection to the citizens in the community. In pertinent part, emergency drivers, under certain circumstances, are permitted to proceed through red/stop signals after slowing down, safely exceed the maximum speed limits, and disregard regulations governing the direction of movement. La. R.S. 32:24(B). However, we agree with the court of appeal that La. R.S. 32:24 does not apply in defense of Mr. Fontenot’s actions. Based on the record, we find Mr. Fontenot was not “responding to an emergency call, or in the pursuit of an actual or suspected violator of the law” as is required for implication of the privilege. La. R.S. 32:24(A). Therefore, his actions are gauged by an ordinary standard of care, rather than a gross negligence standard when the privilege is applicable, since his conduct does not meet the requirements of La. R.S. 32:24. Rabalais v. Nash, 06-0999, p. 5 (La.3/9/07), 952 So.2d 653, 657-658; Lenard v. Dilley, 01-1522, p. 6-7 (La.1/15/02), 805 So.2d 175, 180. Pursuant to La. R.S. 32:58, Mr. Fontenot was bound by the same motorist’s duty as Mr. Brooks to use reasonable care in the operation and control of his vehicle. Thus, he had a duty to see that which a reasonably prudent observer would have seen under similar circumstances. Fernandez, 491 So.2d at 636.

Applying these principles, we conclude the jury did not err in finding Mr. Fontenot was negligent in the operation of his vehicle. There is no evidence that he took any measures to reduce his speed when approaching the intersection, although he was exceeding the speed limit by approximately twenty-three miles per hour. This failure rendered him unable to ascertain whether he could proceed into the intersection safely. If he had slowed down and looked for oncoming traffic, as required by law, he would have undoubtedly seen Mr. Brooks’s vehicle stopped, or proceeding forward at a speed significantly below the thirty-five miles per hour speed limit. Upon seeing Mr. Brooks’s vehicle, he could have taken some prophylactic measures to avoid the collision.

We concede Mr. Fontenot had a valid expectation that Mr. Brooks, when confronted with a blinking red light would stop and yield the right of way. However, it strikes the Court that Mr. Fontenot relied on the flashing yellow caution light to the same extent as he would have for a green light, and in this reliance he was in error. His duty of care included the duty to keep his vehicle under control and to maintain a proper lookout for hazards at all times. Edwards v. Horstman, 96-1403, p. 6 (La.2/25/97), 687 So.2d 1007, 1011. Therefore, we agree with the jury that Mr. Fontenot’s negligence was a contributing cause of the accident. The court of appeal erred in substituting the jury’s reasonable findings in this regard.

_b dotd

Lastly, we review the jury’s determination that the DOTD was not liable for the accident giving rise to the proceedings. The primary duty of the DOTD is to continually maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. La. R.S. 48:21(A); Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1172 (La.1986). It is the DOTD’s knowledge, constructive or actual, which gives rise to the obligation to take adequate measures necessary to prevent injury. Rhodes v. State, Through Dep’t of Transp. & Dev., 95-1848 (La.5/21/96), 674 So.2d 239, 242. Notably, the DOTD’s duty of care extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State Through Dept. of Transp. & Development, 502 So.2d 1383, 1387 (La.1987).

Nonetheless, this Court is also cognizant that the DOTD is not a guarantor of the safety of all the motoring public under every circumstance. Netecke v. State ex rel. DOTD, 98-1182, 98-1197, p. 8 (La.10/19/99), 747 So.2d 489, 495. Nor is the DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway. Id. This Court has also held that the DOTD’s failure to design or maintain the state’s highways to modern standards does not establish the existence of a hazardous defect in and of itself. Myers, 493 So.2d at 1173. In other words, we will not impose liability for every imperfection or irregularity, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983). Whether the DOTD breached its duty, that is, whether the intersection was in an unreasonably dangerous condition is a question of fact and 11fiwill depend on the facts and circumstances of each case. Cormier v. Comeaux, 98-2378, pp. 6-7 (La.7/7/99), 748 So.2d 1123, 1127.

As stated, the plaintiffs, Mr. Brooks, and LIGA allege the DOTD’s liability stems from the unreasonably dangerous condition of the intersection resulting from the flashing configuration of the traffic signal and absence of a stop bar. While the DOTD does not contest it had custody and control of the intersection, it emphatically disputes the intersection was defective and that it was a eause-in-fact of the resulting injuries. At trial, the jury was faced with conflicting expert testimony relative to whether the intersection was unreasonably dangerous at the time of the accident.

In support of their claims against the DOTD, the plaintiffs relied generally on the testimony and written report of Archie Burnham, the Fontenots’s engineering expert in the field of traffic safety. He testified at trial that the failure to place a stop bar for traffic proceeding forward on Morgan Street contributed to Mr. Brooks’s inability to come to a properly positioned stop at the intersection that would have afforded him full visibility of approaching traffic. Mr. Burnham agreed with the DOTD’s contention that the purpose of the left turn lane stop bar was to prevent cars turning from Main Street onto Morgan Street from “clipping” those waiting to turn left from Morgan Street. However, he claimed, due to the absence of a stop bar for the vehicles proceeding forward on Morgan Street, the left turn stop bar influenced Mr. Brooks into thinking he had to stop at that marking, which barred visibility down Main Street due to the presence of the library. Mr. Burnham contended the potential danger arising from such was exacerbated at night.

In support of his assertions, Mr. Burn-ham noted the DOTD’s PM-01 Standard Plan, a general plan utilized by DOTD engineers in road design, indicated stop bars should be placed at four-way intersections. Similarly, he relied on the Manual on 117Uniform Traffic Control Devices (hereafter, MUTCD), which sets forth the minimum standards of the DOTD in the construction and maintenance of its roads and highways. It also recommended placement of stop bars at intersections. Mr. Burnham alleged the DOTD’s negligence stemmed from its noncompliance with the PM-01 Standard Plan and the MUTCD. However, on cross-examination, he conceded a deviation from the two written authorities would be permissible if engineering factors warranted such, and, in such cases, deference should be rendered to the professional judgment of the design engineer on the respective project.

As additional evidence of the DOTD’s failure to implement adequate safety measures, Mr. Burnham concluded the DOTD had not performed a traffic engineering update on the intersection since the installation of the light twenty years prior to the accident. His observation was premised solely on the general fact there had been eighteen prior accidents at the same location, eleven of which involved similar accident scenarios (i.e., traffic approaching from east bound on Main Street). He suggested such a study would have revealed the fact many accidents had occurred and the need for additional safety measures, such as a stop bar.

Finally, Mr. Burnham testified that the intersection was unreasonably dangerous because the traffic signal was configured in a flashing mode to accommodate the evening reduction in travel. He opined that the intersection would have been “safer” and “better” had the light been configured in a standard red-yellow-green sequence or, in the alternative, four-way red flashing signal. When asked on cross-examination what statutory or codified support he had for his assertions, Mr. Burnham alleged there was none, and that his claims were based on his professional judgment.

hsThe DOTD submitted in its defense the testimony of several of its employees and experts relative to the condition of the intersection at the time of the accident. Peter Allain, the DOTD’s traffic engineering administrator, testified that engineering studies were done on the intersection at various times through the years to ensure compliance with the required design and maintenance standards of the MUTCD and the American Association of State Highway and Transportation Officials. Similarly, Richard Savoie, the DOTD’s project development engineer and road and highway design expert, testified the intersection’s traffic flow and safety controls were studied in preparation for a highway improvement project that took place in the year 2000. As to the DOTD’s alleged noncompliance with the PM-01 Standard Plan, Mr. Savoie explained it is a general plan used for all DOTD projects. He stated that, while the PM-01 Standard Plan generally calls for placement of a stop bar on four-way intersections, the detailed plan prepared by the design engineer for a specific project dictates the work conducted. In noting the design plan as implemented for the 2000 improvement project did not specify placement of an additional stop bar at the edge of intersection, Mr. Savoie maintained there is no blanket DOTD policy that stop bars must be placed at every intersection. When asked why there was no design requirement, Mr. Savoie responded that it was important that design engineers be allowed to exercise their professional judgment on a de facto basis.

Dr. Jack Humphries, the DOTD’s expert in traffic engineering and highway design, testified the placement of an additional stop bar would not have prevented the accident at issue. He opined Mr. Brooks failed to stop at a point where he could see approaching traffic and/or proceeded into the intersection without any regard for oncoming traffic. He also stated the flashing configuration of the light did not render the intersection unreasonably dangerous, citing the significant reduction in travel in 119the late night hours. Mr. Humphries also observed the MUTCD did not prohibit the use of a flashing light under such circumstances.

Finally, Dr. McPhate, the DOTD’s expert in accident reconstruction, testified that the surface of the intersection had no visual defects. He corroborated the testimony of Mr. Burnham, the Fontenots’s expert in traffic safety, that the library did pose a potential physical obstruction for a driver proceeding forward on Main Street when positioned at the left turn stop bar. However, Dr. McPhate emphasized that the library did not cause an obstruction when a driver is properly positioned at the edge of the intersection.

Having reviewed and considered the evidence in its entirety, it is evident the parties essentially agree on the salient facts surrounding the accident, and the jury’s decision as to the DOTD’s liability turned on its choice between two theories of liability presented by the experts. Employing the principles of appellate review, our only inquiry at this stage is whether the jury’s factual findings were reasonable, regardless as to how we may have weighed the evidence sitting as trier of fact. Arceneaux v. Domingue, 365 So.2d 1380, 1333 (La.1978). In the absence of finding the testimony of the DOTD’s experts to be so internally inconsistent or implausible, this Court is barred from discrediting their statements to conclude the jury’s findings were clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). This is attributable to the fact the jury was in a better capacity to evaluate the demeanor of the live witnesses, as compared with our access to only a cold record. Id., 549 So.2d at 844 (“When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder 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 |gnsaid.”). Under this standard, we are aware that when “a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous.” Id., 549 So.2d at 844-845.

Applying these precepts, we find no error in the jury’s decision to place greater weight on the evidence presented by the DOTD. The evidence was not in any respect internally inconsistent or unworthy of belief to warrant a substitution of the jury’s credibility determination. The parties presented valid arguments why the placement of an additional stop bar or modified traffic light configuration would make the intersection safer. However, this court will not infer the intersection constituted an unreasonable risk of harm solely from the fact that an accident occurred. Netecke, 98-1182, 98-1197 at 8, 747 So.2d at 495.

Rather, the record clearly establishes, as properly determined by the jury, that the accident was caused exclusively by driver error. As we have already discussed, Mr. Fontenot breached his duty to exercise caution and vigilance when he proceeded into the intersection at an excessive rate of speed in the face of approaching traffic. See La. R.S. 32:234. Mr. Brooks’s travel was dictated by the red light, under which he had a legal duty to position his stop at the intersection where he would have been able to see approaching traffic on Main Street, regardless of whether a stop bar was present. See La. R.S. 32:123(B) and La. R.S. 32:234. Moreover, Mr. Brooks unquestionably breached his legal obligation to not proceed into the intersection until he had yielded the right of way to those vehicles constituting an immediate hazard, namely, Mr. Fontenots’s vehicle. Id.

We have also considered the court of appeal’s reasons for reversing the jury’s findings as to the DOTD’s liability. To conclude the intersection was unreasonably dangerous and the cause of the accident, the court of appeal seized on the fact the | ¾1 evidence showed the public library posed an obstruction in some respect. Coupled with Mr. Brooks’s statement in the police report that he stopped at the intersection, the appellate court speculated the cause of the accident could have only stemmed from Mr. Brooks being visually tricked into stopping at the left turn stop bar and his view being obstructed from the library due to the absence of a stop bar for traffic proceeding forward. We disagree with the court of appeal’s conjecture.

It is undisputed that the parties proved the public library posed an obstruction in proximity to the intersection. However, the evidence reflects the obstruction is only at issue when a driver is positioned at the left turn lane stop bar at the intersection on Morgan Street, and not for traffic proceeding forward if a driver is properly positioned at the edge of the intersection. While the appellate court accepted Mr. Brooks’s statement that he stopped at the intersection, it failed to give credence that the report also reflected there were no visual obscurements. The record is absent any indication Mr. Brooks advised Sergeant Thomas, the investigating officer, that his vision was obstructed by the library or that he mistakenly stopped at the left turn lane stop bar instead of the edge of the intersection. Undoubtedly, these are two crucial factors worthy of reporting had they contributed to the accident. Instead, Mr. Brooks told Sergeant Thomas that he looked both ways and did not see approaching traffic. Based on these reasons, we find the court of appeal erred in finding that the intersection constituted an unreasonable risk of harm to the motoring public that resulted in the accident.

ALLOCATION OF FAULT

Next, we turn to address whether the jury was, based on the evidence presented at trial, manifestly erroneous in apportioning Mr. Brooks 90% fault and Mr. Fontenot [2¾10% fault. The law provides we must give great deference to the allocation of fault as determined by the trier of fact. Clement v. Frey, 95-1119, 95-1163, p. 7 (La.1/16/96), 666 So.2d 607, 610. We are also aware that the allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and that any allocation by the factfinder within that range cannot be clearly wrong. Foley v. Entergy La., Inc., 06-0983, p. 32 (La.11/29/06), 946 So.2d 144, 166. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award. Clement, 95-1119 at 7, 666 So.2d at 611.

As to the allocation of fault, the trier of fact is bound to consider the nature of each party’s wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson, 469 So.2d at 971. We are guided by the factors articulated in Watson: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Id., 469 So.2d at 974.

Our review of the record in its entirety convinces us that the jury’s findings as to the allocation of fault are reasonable. For the reasons already discussed, we find no error in the assessment of the majority of the fault to Mr. Brooks. He was traveling on the minor artery, which required him to yield to approaching traffic on Main Street, the major intersecting artery. Mr. Brooks’s failure to see what he should have seen prior to proceeding into the intersection, seemingly due to his inattention and inadvertence, directly resulted in the death of his passenger, the critical injuries suffered by Mr. Fontenot, and the LCG’s property damages.

| ^Additionally, the apportionment of 10% fault to Mr. Fontenot is unquestionably reasonable under the facts presented to the juiy. Although faced with a caution light, Mr. Fontenot traveled at an excessive rate of speed through an intersection without consideration of any other travelers on the roadway. His failure to exercise caution and vigilance as required under the law prevented him from seeing what he should have seen, in this case, Mr. Brooks’s oncoming vehicle.

CONCLUSION

Based upon our review, we determine the jury’s factual findings as to the determinations of liability and allocation of fault were not manifestly erroneous. The court of appeal erred in reversing the jury’s allocation of fault and, as such, in reassessing fault and damages.

DECREE

For the reasons stated herein, we reverse the court of appeal’s judgment as to the allocation of liability and assessment of damages and costs and reinstate the jury’s verdict.

REVERSED.

APPLICATION FOR REHEARING

Rehearing granted in part; denied in part. Rehearing in granted for the limited purpose of amending this Court’s opinion to omit reference to the documentary evidence and proffered evidence not presented for the jury’s consideration. This amendment does not affect the holding of the opinion or the principles stated therein, but is made solely for the purpose of complete accuracy. In all other respects, the plaintiffs’ motion for rehearing is denied.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . Following bifurcated trial proceedings in this matter, the court of appeal rendered an opinion attempting to reconcile the conflicting decisions rendered by the jury and the trial court. Fontenot v. Patterson Ins. Co., 06-1624 (La.App. 3 Cir. 12/5/07), 972 So.2d 401. Based on our review, we determined the jury had the authority to decide all actions pending against the State of Louisiana, through the Department of Transportation and Development, since it was not entitled to a judge trial under the facts. As a result, we remanded the case to the appellate court with instructions to review the jury’s verdict utilizing the manifest error standard. Fontenot v. Patterson Ins. Co., 08-0414 (La. 12/12/08), 997 So.2d 529.

      . The traffic signal converts to a flashing sequence daily from 11:00 p.m. to 5:00 a.m. The signal had converted to a flashing mode from the standard red-yellow-green sequence minutes before the accident. The actual timing of the conversion of the light is unrelated to the cause of the accident.

      . The Fontenots also filed the lawsuit on behalf of their minor daughter, Lauren Fonte-not, for loss of consortium.

      . Subsequent to their initial filing, the Fonte-nots instituted suit against the City of Brous-sard alleging a public library located at the corner of the intersection caused an obstruction to Mr. Brooks's view while at his designated stop and contributed to the accident. The other named defendants were Cupper Enterprises, Inc., a/k/a Country Station (hereafter, "Cupper”), and its insurer, One Beacon Insurance. Cupper was the owner of a convenience store where Mr Fontenot's vehicle ultimately came to a rest after striking a steel post on its property. For various reasons, these parties are no longer subject of this litigation.

      .Prior to trial, the claims set forth by Mr. Brooks and Ms. Phillips were settled and/or dismissed. As such, the only issues ripe for trial were LCG’s demand as a plaintiff in reconvention against Mr. Brooks, and the Fontenots's principal demands against Mr. Brooks and the DOTD.

      . Mr. Brooks did not appear for the trial proceedings, although he was subpoenaed by the DOTD to testify. While his deposition testimony was submitted into evidence, it was not produced at trial for the jury's consideration. Also, Mr. Fontenot was unable to testify about the events surrounding the accident due to a residual amnesic disorder resulting from injuries sustained in the accident subject of these proceedings.

      . The duty of a motorist approaching a flashing red signal is set forth in La. R.S. 32:234, entitled "Flashing Signals,” which provides in pertinent part:
      A. Whenever an illuminated flashing red ... signal is used in a traffic sign or signal, it shall require obedience by vehicular traffic as follows:
      (1) FLASHING RED (STOP SIGNAL) When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest cross-walk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign....
      The rules regarding stops at stop signs are provided in La. R.S. 32:123, entitled "Stop signs and yield signs." It states in pertinent part:
      B. Except when directed to proceed by a police officer or a traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.

      (Emphasis added.)

      . The duty of a motorist approaching a flashing red signal is articulated in La. R.S. 32:234, which states, in part:
      A. Whenever an illuminated flashing ... yellow signal is used in a traffic sign or signal, it shall require obedience by vehicular traffic as follows:
      (2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL)—When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.

      . In denying the statutory protection afforded under La. R.S. 32:24, we rely on the testimony of Officer Jason Robicheaux of the Lafayette Police Department. He testified he arrived at a home in response to a domestic disturbance 911 call around the same time as Mr. Fontenot. The caller reported threats made by her husband. As the officers were speaking to the caller in the front of her home, her husband passed by in a vehicle. Officer Robicheaux testified he and Mr. Fon-tenot decided to drive around to look for the caller’s husband so that they might have the opportunity to question him. Officer Robi-cheaux testified that, while they both left the home in a “hurried fashion,” he did not consider it an emergency. He also confirmed they did not turn on their audible or visual sirens.

      . No evidence was presented to the jury regarding the specific facts relevant to the accidents. Nor were they presented the time period during which the accidents occurred.

      . As a result of the reinstatement of the jury’s verdict, our consideration of the DOTD's assignment of error relative to the trial court’s award of general damages pursuant to the JNOV is prelermitted.