author: STEWART, J.

text:
    LOUISIANA MOBILE IMAGING, INC., Plaintiff-Appellee, v. RALPH L. ABRAHAM, JR., INC., Defendant-Appellant (A Professional Medical Corporation).
    No. 44,600-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 14, 2009.

      Barry W. Dowd, Monroe, for Appellant.
    James W. Berry, Rayville, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

|, Defendant/Appellant, Ralph L. Abraham, Jr., Inc. (“Abraham”), is appealing a judgment granted in favor of Plaintiff/Ap-pellee, Louisiana Mobile Imaging, Inc. (“LMI”). For the reasons discussed below, we affirm the trial court’s judgment.

FACTS

In this case, LMI is seeking to recover unpaid funds in the amount of $14,528.86 from Abraham pursuant to an agreement whereby LMI provided its ultrasound equipment to Abraham to be used in his medical office. According to the terms of the agreement, Abraham would bill an insurance carrier or Medicare for both his services to the patient and for the use of LMI’s ultrasound machine. Once Abraham received payment, he would keep the amount due for his services and remit the sums due for the use of the ultrasound to LMI.

On September 1, 1998, LMI transferred any rights it may have had in the ultrasound equipment to Consolidated Medical Management, Inc. (“CMM”) via an asset purchase agreement.

For reasons not clear from the record, the amounts alleged to be due for use of the ultrasound equipment from September 24, 1999, to October 9, 1999, were not remitted by Abraham to the appropriate party.

On June 13, 2006, LMI filed a petition for a concursus proceeding. It sought to require Abraham to deposit the funds at issue into the court’s registry and allow all interested parties the opportunity to seek recovery of those funds. LMI based its claim on an agreement dated August 22, 2007, whereby CMM assigned, transferred, and conveyed to it, for consideration |2in the amount of $10.00, all rights stemming from the original agreement to any money being held by Abraham that arose from the use of the ultrasound machine.

Abraham filed dilatory exceptions of unauthorized use of a summary proceeding and lack of procedural capacity and peremptory exceptions of res judicata, no cause of action and no right of action in response to LMI’s petition. The trial court sustained Abraham’s dilatory exception of improper use of summary proceeding and gave LMI ten days to amend the pleading to cure the defect subject to dismissal. The remaining exceptions were held in abeyance pending the amendment. LMI subsequently filed an amended petition that eliminated the concursus language.

Abraham disputed LMI’s claim to the funds. He filed an exception of prescription, arguing that the claim was subject to the three-year liberative period pursuant to La. C.C. art 3494. Abraham also disputed the validity of the August 22, 2007 assignment of rights from CMM to LMI and the amount alleged to be due.

The trial for this case took place on October 2, 2008. Since the matter had been essentially tried in a previous case, the parties in this case offered evidence adduced in the matter of Ralph L. Abraham v. North End Farms, that was heard in the Fifth Judicial District Court on October 6, 2005. In that matter, Abraham filed suit to recover some rent that was allegedly due on a parcel of farm property. North End Farms is a Louisiana partnership, of which Cooper is a partner. North End Farms, which is a Louisiana partnership, admitted that the rent was due, but claimed as a setoff the same | ¡¿funds which are at issue in this matter. The trial court determined that no setoff was applicable due to the lack of identity of the parties.

LMI received an assignment from Cooper, who was a partner is North End Farms and has 100% interest in LMI, on June 14, 2007, where he relinquished any rights he had to payment from Abraham of amounts due pursuant to the agreement regarding the ultrasound equipment. On that same day, North End Farms clarified that LMI was the proper party to proceed against the funds. North End Farms had previously claimed an interest in the funds via assignment. Based on these assignments and the assignment from CMM to LMI, LMI asserts that it is entitled to these funds.

Testifying in Ralph L. Abraham v. North End Farms, Cooper verified his assignment explaining that “he assigned any rights that he may have against Ralph Abraham to North End Farms.” Cooper initially had a 25% interest in LMI, but ultimately acquired 100% of its interest.

In the prior proceeding, Abraham testified that he was holding sums in excess of $14,000.00 based on the advice of his attorney. He testified that the funds were attributable to the use of the ultrasound machine and were to be remitted to the owners of that machine pursuant to an agreement. He admitted that the funds held were not his property, but were being held for the benefit of others.

The trial court denied Abraham’s exception of prescription, found the written assignment was properly authenticated and admissible, and determined that LMI was entitled to recover the funds held by Abraham. The trial court noted in its reasons for judgment:

|/The defendant’s bookkeeper testified [in the prior case] without contradiction that the defendant had collected $14,528.86 for the use of the ultrasound machines, that the machine did not belong to the defendant, that these funds did not belong to the defendant, and that these monies were deposited in the defendant’s account and not paid to anyone.

LMI was awarded $14,528.86. Abraham now appeals the denial of his exception of prescription and the judgment awarding LMI the amount of $14,528.96.

LAW AND DISCUSSION

Validity of the Assignment

In Abraham’s first assignment of error, he argues that the trial court erred in ruling that the August 2007 assignment of the contract, which was from CMM to LMI, was admissible and properly authenticated. Abraham asserts that this assignment is not properly authenticated because it was not accompanied by any corporate minutes of CMM showing that the person who signed the assignment was someone with the authority to do so.

The August 2007 assignment contains the following description for the rights conveyed:

... any and all rights which it have [sic] or hold [sic] in and to monies presently in the hands of Ralph L. Abraham, Jr., M.D. (A Professional Medical Corporation), which arose out of the utilization of ultrasound or imaging equipment at the office of Dr. Abraham pursuant to an original agreement between the said Ralph L. Abraham, Jr., M.D. (A Professional Medical Corporation) and Louisiana Mobile Imaging, Inc.
La. C.C. art 2642 states:
All rights may be assigned, with the exception of those pertaining to obligations that are strictly personal. The assignee is subrogated to the rights of the assignor against the debtor.

IftAn assignment is a valid transfer of rights and may be done orally. Rond v. Sims, 355 So.2d 591 (La.App. 4 Cir. 2/14/78). An oral assignment must be proved like any other fact. Id. There is no requirement in this section of the Civil Code that the assignment be in authentic form before a notary and two witnesses. Meyer v. Ullo, 627 So.2d 226 (La.App. 4 Cir 11/18/93). The ultimate debtor cannot question the validity of an assignment of a debt unless he can show prejudice. Sutton v. Lambert, 94-2301 (La.App. 1 Cir. 6/23/95), 657 So.2d 697.

David Cooper testified that LMI was the assignee of rights, which were transferred by CMM. Cooper testified that he asked Bland Greeson of CMM to obtain the assignment. Even though Cooper did not have certified minutes of the corporation’s board showing the agent’s authority, he gave testimony concerning his dealings on behalf of LMI in obtaining the reassignment of rights from CMM. In the absence of any evidence otherwise contradicting this occurrence, Cooper’s uncontradicted testimony and the written assignment establishes that this assignment was made. Additionally, a copy of the assignment was submitted to the trial court.

After hearing Cooper’s testimony, coupled with the evidence submitted, the trial court determined that the written assignment was properly authenticated and admissible:

The testimony of Mr. Cooper, together with the testimony and exhibits from this trial and from the prior litigation which was offered into evidence, shows that the plaintiff is owed the money that is the subject of this litigation.

|fiWe agree with the trial court’s determination that the assignment was properly authenticated and admissible. Therefore, this assignment of error is meritless.

Amount of the Award

In his second assignment, Abraham argues that the trial court erred in awarding $14,528.86, when the clear stipulation at trial showed the only amount which could possibly be owed was $1,211.89. To support this argument he refers to the testimony of Hope Jones, Abraham’s office manager who submitted three invoices for $341.55, $430.34, and $440.00. Therefore, even if the assignment is determined to be valid, Abraham asserts that the only amount owed is $1,211.89.

The three invoices amounting to $1,211.89 that Abraham is referring to were directly from Cooper, not LMI. In fact, these invoices are no longer an issue because Abraham did issue Cooper checks for these amounts. Abraham has confused the claims of Cooper with LMI’s demand. Rather, the funds at issue in the present case are those which Abraham retained that were attributable to the use of the diagnostic equipment. LMI is seeking to recover all of the funds collected and held by Abraham from the use of LMI’s machine, which amounted to $14,528.86.

Hope Jones, who was Abraham’s office manager, testified during the trial in the Ralph L. Abraham v. North End Farms case that Abraham received $14,528.86 from billing from the ultrasound machine that was not remitted to the appropriate third party. Jones also reiterated that neither the ultrasound machine, nor the funds remitted that related to the ultrasound | ^machine, belonged to the defendant. Jones brought and submitted invoices amounting to $14,528.86 that were billed to Abraham, who then billed the same amount to a third party. Abraham then retained these funds. This testimony was uncontradicted.

In evaluating the evidence, the trier of fact should accept as true the uncon-tradicted testimony of a witness where the record indicates no sound reason for its rejection. Fontenot v. Patterson Insurance, 2006-1624 (La.App. 3 Cir. 2/18/09), 5 So.3d 954.

In regards to our review of the record, we accept Jones’ testimony as true. As stated above, the written assignment was properly authenticated and admissible. Therefore, the trial court did not err in awarding LMI $14,528.86.

Prescription

In his third and final assignment, Abraham asserts that the trial court erred in denying the exception of prescription because the suit was filed over six years after the services were rendered on which the claim was made. Abraham argues that the invoices were for services rendered between September 24, 1999, and October 9, 1999. LMI filed this lawsuit on June 13, 2006, which was over six years after the service was rendered.

To support this prescription argument, Abraham cites La. C.C. art. 3494, which states in pertinent part:

The following actions are subject to a liberative prescription of three years:
(1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions,_jjtuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board;

The nature of the transaction between Dr. Abraham and LMI was revealed in the testimony of Cooper. He stated that the medical equipment and a technician were made available by LMI to Dr. Abraham. The fees owed to LMI in connection with this arrangement were determined by the amount of procedures that performed on the patients in Dr. Abraham’s office with the use of the equipment.

Our review of the record and the applicable law convinces us that LMI is not seeking to recover funds from Abraham for his performance of a service. Rather, LMI is seeking to recover funds resulting from Dr. Abraham’s utilization of its medical equipment and technician.

Such a unique arrangement displays the characteristics of an innominate contract. An innominate contract is one with no special designation in our law. La. C.C. art.1914. Since this case is characterized as a innominate contract, it is governed by a liberative prescription of ten years as provided by La. C.C. art. 3499. La. C.C. art 3499 reads:

Unless otherwise provided by legislation, a personal action is subject to a liberative prescriptive period of ten years.

Therefore, the trial court was correct in denying the exception of prescription.

CONCLUSION

For the aforementioned reasons, we affirm the trial court’s judgment rendered in favor of LMI. Costs of this appeal are assessed against the appellant, Abraham.

| c, AFFIRMED.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge. DUFRESNE, C.J.,

license: Public Domain

text:
    Donna HOWARD, Individually and on Behalf of her Two Minor Children, Chad Howard and Kendra Howard, Clarence Johnson, Joyce Johnson, Orville Johnson and Helen Johnson. v. UNION CARBIDE CORPORATION.
    No. 08-CA-750.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    Rehearing Denied Nov. 20, 2009.

      Andrew A. Lemmon, Irma L. Netting, Hahnville, LA, and Paula A. Ates, Destre-han, LA, and Roy F. Amedee, Jr., New Orleans, LA, for Plaintiff/Appellee.
    David M. Bienvenu, John P. Murrill, Lexi T. Holinga, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, SUSAN M. CHEHARDY, CLARENCE E. McMANUS and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|sThis is an appeal by Union Carbide Corporation, defendant/appellant, from a judgment fixing damages for randomly selected plaintiffs in this class action suit. The suit grew out of a chemical leak at defendant’s plant in Taft, Louisiana. For the following reasons, we vacate two of the awards and otherwise affirm the remaining damage awards.

The leak began at about 10:00 PM on Thursday, September 10, 1998, and it was contained at about 3:00 PM on Friday, September 11. On Thursday afternoon and throughout the next day, Tropical Storm Frances inundated the area with torrential rains. The weight of the accumulated rainwater on the floating roof of a large tank caused the roof to partially collapse. This in turn broke the seal and allowed some of the contents to leak onto the roof and evaporate. The substance in the tank was about 80% petroleum pen-tanes with a few other carbon compounds making up the remainder. By Friday afternoon plant personnel were able to cover the tank roof with chemical foam and thus |4stop the evaporation process. Air monitors in the area showed that once the evaporation was stopped, the residual naphtha in the air immediately dissipated.

Suit was filed on behalf of all people exposed to the compounds. At a hearing on the class certification the various experts testified as to the extent and direction of the plume of naphtha, its probable concentration, and its effects on people exposed during the release. At the conclusion of the hearing the trial judge certified the following class:

Those persons living or located between the Union Carbide Plant and the towns of Taft and Killona, including the towns of Taft and Killona, and the residents of the town of Montz, who were present in these locations for some time, from 10:00 PM on September 10, 1998 until 3:00 PM on September 11, 1998, and who experienced the physical symptoms which include any or all of the following — eyes, nose or throat irritation, coughing, choking or gagging, or nausea, as a result of their exposure to naphtha or other chemical substance released from Union Carbide.

By agreement of the parties a trial of thirty randomly selected plaintiffs was held to determine 1) whether claimants were exposed to the naphtha fumes, 2) whether they suffered compensable damages, and 3) the amount of their damages. One claimant was dismissed for failure to comply with discovery, seven were dismissed for failure to appear at trial, and eight were found not to have been within the class boundaries during the relevant times. The remaining fourteen claimants were given damage awards ranging from $3,500 to $750. This appeal followed.

Union Carbide’s argues: (1) The trial court committed manifest error in awarding damages to Franklin McGinnis and Debra Brown due to the lack of any credible evidence that they were present in the area. (2) The trial court committed manifest error in awarding excessive damages ranging from $750-$3,500 to claimants who sustained minor symptoms and required no medical treatment or prescription medication. The exposure did not violate health based exposure limitations. The jurisprudence suggests that damage awards of $0J$2005 are appropriate. (3) The trial court committed manifest error in awarding any damages in this matter due to the lack of any medical evidence specifically linking each claimant’s symptoms to the alleged exposures.

In Reck v. Stevens, 373 So.2d 498 (La. 1979), the Louisiana Supreme Court pointed out that the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Reck disapproved the appellate court’s simply reviewing the medical evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the particular injuries on the particular plaintiff. Reck further disapproved of the use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Id. at 1260-61 (Citations omitted). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Id.

Youn explained:

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, |fi245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

623 So.2d at 1261.

Manifest Error-Clearly Wrong Standard

When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the factfinder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Hebert v. Rapides Parish Police Jury, 06-2001, p. 3 (La.4/11/07), 974 So.2d 635, 654 citing Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, a reviewing court may well find manifest error even in a finding purportedly based upon a credibility determination. Id. at 844-845.

Debra Brown

In a tort case, the plaintiff must prove by a preponderance of the evidence both the negligence of the defendant and the damages caused by the defendant’s fault. Coutee v. Global Marine Drilling Co., 05-0756 (La.2/22/06), 924 So.2d 112, 117 (Citation omitted). Union Carbide argues that Ms. Brown’s symptoms, if any, were minimal and there was a lack of credible evidence that she was present where she claimed to be during the naphtha release. Union |7Carbide also argues that there was no testimony that exposure to naphtha can cause sinus injury.

Debra Brown’s deposition was introduced at the trial. Ms. Brown testified that she left her home in Hahnville on Thursday evening to pick up her son from the Waterford Three nuclear plant where he worked. She traveled the River Road and arrived at the roadblock near the Union Carbide plant at about midnight. After what she estimated to be five to seven minutes she was rerouted back toward Hahnville, then south to Highway 3127, and then west to the road going from Highway 3127 to the River Road through Killona. She encountered a second roadblock at the juncture of Highway 3127 and the Killona road, after which she returned home. The maps and evidence show that no portion of Highway 3127 that she traversed lies within the zone of the class certification. Thus, she was in the appropriate zone for at most seven minutes.

At trial, defense counsel pointed out several inconsistencies between Ms. Brown’s deposition testimony and her testimony at trial. The trial judge concluded that Ms. Brown suffered from an irritated sinus for approximately five days. However, at her deposition, Ms. Brown testified that her symptoms only lasted 36 hours or one and one-half days. In contrast, at trial, she testified that her symptoms lasted at least five days. The trial judge concluded that “aggravation of her pre-existing sinus condition primarily fixes her damages.” But, in her deposition, Ms. Brown testified that she did not know if her sinus symptoms resulted from her exposure to the emission. At trial, although she admitted she sought no medical attention and was able to take a flight to attend a wedding, she nonetheless testified that she believed that her sinus problem was aggravated by the release because her sinus attack was worse on this occasion. In short, her testimony was internally inconsistent regarding the duration and severity of the sinus problem. Also, even accepting as true her | atrial testimony that she believed the sinus problem was caused by her exposure, that belief is insufficient to establish causation by a preponderance of the evidence.

Ms. Brown also said that after returning home early Friday morning she took a 6:00 AM flight to Chicago to attend a wedding. She said that the weather was fine on her departure from New Orleans even though weather reports showed continuing severe weather from the tropical storm. Finally, in her deposition she indicated that the above events occurred late Friday night and Saturday morning, well after the time set forth in the class certification, rather than late Thursday night and Friday morning as she claimed at trial.

Considering the above contradictory evidence and testimony, and the fact that at most Ms. Brown may have been in the zone for a mere seven minutes, the trial judge was manifestly erroneous in awarding Ms. Brown damages. Therefore, we vacate the award of $2,500 to this claimant.

Rogest Gross

Mr. Gross testified that he was stopped for two hours at a roadblock where the Killona road meets the River Road. He said that he had gone to his mother’s house in Edgard to cut her grass and work in her flower beds on Thursday afternoon (during the tropical storm). He said that he left his mother’s house at about 9:30 PM on Thursday night and was proceeding on River Road to his home in Alma when he encountered the roadblock. Mr. Gross stated that he encountered the roadblock around 9:30 PM to 10:00 PM where he waited two hours. He stated that he arrived at his home in Alma about 11:00 PM. Maps of the area showed that Edgard is about eight miles from where the alleged roadblock was encountered. The logs from St. Charles Parish sheriffs office indicate that the first roadblock was not set up until 11:43 PM on Thursday night. It thus would have taken him over two hours to traverse the eight miles | cifrom Edgard to Killona. Furthermore, if he were stuck in traffic for two hours, he would not be home by 11:00 PM. This testimony is simply not credible and we therefore vacate the award of $750 to this claimant.

Franklin McGinnis

The trial judge awarded Mr. McGinnis $3,500. Mr. McGinnis testified that he lived in Killona and he lived there at the time of the incident. At the time of the release, he was working the day shift at the Union Carbide plant. He started work around 6:00 AM either on Thursday or Friday during the pertinent time frame. He noticed a strong odor while he worked outside at the plant. The bad odor came through the plant. He saw people vomiting and coughing. He began wheezing and coughing. His eyes burned and he was nauseated. At one point, the plant sounded a siren to stop work. The workers had to go inside a warehouse. He was frightened for a couple of days. He explained that this odor, unlike any other odor he had ever experienced, stood out because it was very strong. He did not know where the odor was coming from. He worked his entire shift and did not recall missing work because of the incident. He thought that his physical symptoms lasted that night and perhaps a couple of hours on the following day. He did not go to a doctor. However, he did get checked out by the first aid person at Union Carbide, who also checked out other people. He took no medication.

Union Carbide points to several inconsistencies both in Mr. McGinnis’ testimony and in comparison to his claim form. At trial, Mr. McGinnis testified that he has had congestive heart failure. As a result he takes medication, which makes it difficult for him to remember. He was even uncertain as to the year that he married his wife. At first, he testified that he worked for H.B.Zachary. But on cross-examination, he was referred to his 1999 application for that company. Then, he testified he was working for Fluor Daniel’s at the time of | inthe incident. He maintained that he was working as a foreman at the time. When confronted with the fact that his claim form indicated that he was at his home rather than at work at the time of the incident, he stated that on the form he was merely giving his address.

The trial judge made a credibility determination and accepted Mr. McGinnis’ testimony as credible. He evidently found that any discrepancies in his testimony were attributable to poor memory problems. We find no manifest error in the trial judge’s credibility determination. Furthermore, for the reasons stated below would conclude that the trial judge did not abuse its discretion in the amount of the damage award. Thus, we affirm Mr. McGinnis’ damage award of $3,500.

The Remaining Damage Awards

$1,500 Awards (Killona Residents)

Ella Mae Darrensbourg testified that she was at her home the entire time of the incident. After 10:00 PM on September 10th, she smelled an odor when she opened the door of her trailer and stood outside. She experienced symptoms of burning eyes, sneezing, and coughing. She did not see a doctor. She used Robitussin and Visine. Her symptoms lasted about four days. There were times during the event that she left her trailer to walk to her husband’s nearby business — a bar.

Colleen Lathers testified that she was at home the entire evening of September the 10th through September 11th. She smelled a funny odor and experienced headache, nausea, and burning eyes. She was uncertain as to the duration of the eye irritation and nausea. She flushed her eyes with water and took over-the-counter medication but she saw no doctor. The parish forced her to “shelter in place” and she stayed inside. The headache was the most prevalent symptom — it lasted a few days.

[ t iTone Silas testified that on the night of September 10th, he was outside the house on the covered porch with other people when he and the other members “started feeling kind of bad.” One child vomited. He smelled something like paint thinner in the air. The group went inside. He experienced nausea and took over-the-counter medication. He also experienced eye, nose, and throat irritation. He washed out his eyes. The symptoms did not last long. The following day, firefighters arrived and told them to stay inside. He stated that he did not see a doctor.

Cynthia Johnson-Gordon’s deposition testimony was introduced into evidence in lieu of her live testimony by agreement of the parties. Ms. Johnson-Gordon testified that at the time of the incident, around 10:00 PM, her neighbor informed her that there was a spill. The neighbor asked her to go to the neighbor’s house. Ms. Johnson-Gordon stated that she, her friend, and her children stayed at the neighbor’s house until the next day when everything had cleared and it was safe to return to her home. She explained that her neighbor was concerned about Ms. Johnson-Gordon because Ms. Johnson-Gordon had health problems and lived in a trailer that had no air-conditioning. Ms. Johnson-Gordon stated that she smelled something unusual that night. Although she had previously smelled fumes from the plant, this episode was different. This time, her eyes burned. As a result of the incident, she experienced burning eyes, burning nose, stomachache, nausea, headache, and coughing. Her eyes started to burn when she stepped outside. She used cold compresses on her eyes. Her eyes stopped burning after a couple of hours. That night her nose burned for a couple of hours. She did not take medication for that symptom. Her stomachache and nausea lasted a few hours. She took Pepto-Bismol for those symptoms. She had a headache that night and the following day. She took no medication for the headache. She does not take 11gaspirin. Her coughing lasted perhaps 30 minutes. Her throat burned. But, she just drank cold water. She did not see a doctor. She did not miss work because of the incident. She had two days off before she had to return to work.

$2,000 Awards (Montz Residents)

June Gross testified that she was at home when she became aware around 1:00 AM or 2:00 AM on September 11th that there was a broadcast over the television to stay inside until further notice. She did not recall whether she smelled anything unusual. Later that day, she had eye irritation or burning of her eyes. She used rosewater for her eyes. Her eyes burned a day or two. She did not see any doctor. She had no other symptoms. She thought she went to work the following day.

Dorothy Richard testified that at the time of the incident, she worked the evening shift from 2:00 PM until 10:00 PM at the Postal Service located at the airport. When she arrived home from work on the evening of September 10th, her neighbors told her there was an explosion and people were instructed to remain inside. She noticed an odor when she arrived home. She experienced nausea, gagging, burning eyes, throat irritation, and coughing. She was frightened for a day or two until she learned that it was safe to go outside. Her physical symptoms lasted a day or two. She went to work the following day and worked the entire day. She used over-the-counter medications—Pepto Bis-mol, Tylenol, and Visine. She did not go to a doctor. She did not miss work as a result of the incident.

$2,500 Award (Entergy Plant)

Lisa McKnight testified that on September 10th and 11th she worked a daytime schedule at the Waterford Three Entergy Plant. She started work around 6:30 AM. On Friday September 11th, while traveling to work, she noticed an unusual odor. The odor lasted throughout the day. After smelling | mthe odor, she experienced burning eyes, coughing, gagging, and nausea. Her plant has a first aid station but she did not use the aid. Her eyes burned for about two weeks. The other symptoms resolved within one to two days. She took over-the-counter medication for her symptoms—Emetrol, Tylenol, and Visine. She did not go to a doctor. She never missed work as a result of the incident. She worked around chemical plants for a long time but never experienced the severe eye irritation she experienced for the current release.

$3,500 Awards (Occidental Plant)

Martin Granier, Anne Ockmond, and James McCormick testified that the Occidental Plant is across the street from Union Carbide.

Martin Granier testified that at the time of the release, he worked for River Parish Maintenance at the Occidental Plant. At that time he worked from 6:00 PM to 6:30 AM. At approximately 1:00 AM on September 11th, he began to smell an odor. As time wore on, the smell worsened. The odor caused him to choke. Next, his eyes watered and he developed a runny nose, sore throat and nausea. He worked his entire shift from September 10th to September 11th. The symptoms lasted a couple of days. He did not go to a doctor or take anything. Also, Occidental had eye wash and first-aid areas, which he did not utilize. He explained that he saw a whitish cloud come across the plant from Union Carbide and felt something on his skin.

Lionel Harry testified that he was working outside as a scaffold builder at the Occidental Plant at the time of the incident. He worked a shift of 6:00 PM on September 10th to 6:30 AM on September 11th. He noticed workers complaining of a smell. He did not see anything in the air. He smelled an odor unlike anything he had ever smelled before. Around 2:00 AM or 2:30 AM, his eyes watered and later on he had a headache. His eyes watered until he got home. His headache lasted a couple of days but the headache lessened the next 114day. He took aspirin and did not see a doctor. He completed his shift. He did not feel the need to seek first aid at the plant that evening.

Anne Ockmond testified that at the time of the incident she was working at the Occidental Plant. She became aware of the odor on September 11th when she went to work her schedule of 7:00 AM to 7:30 PM. She noticed a very strong, pungent odor. She did not, however, notice anything unusual in the ah’. She described her symptoms as minor. After noticing the odor, she developed eye, nose, and throat irritation as well as nausea. The symptoms occurred when she was at the plant. She worked both inside and outside the plant. At trial, she testified that the symptoms lasted a few days but when referred to her deposition, she admitted that she previously testified that the symptoms lasted one day. She never missed work. She did not recall using the first aid station at Occidental. She saw no doctor. She did not recall whether she took medication.

James McCormick testified that he was working at the Occidental Plant on September 10th and September 11th. He worked from 6:00 AM to 6:30 PM. When he arrived at work on the 11th, he noticed a smell. Shortly thereafter, he experienced eye, nose, and throat irritation. He also experienced a headache. He took aspirin for his headache. He stated that he either obtained the aspirin from his locker or from the nurse at Occidental. However, he also testified that he never went to the first aid clinic at Occidental to request assistance for his symptoms. He worked outside the entire day. The symptoms probably lasted a couple of weeks. He did not go to the doctor. He did not miss work as a result of the incident.

Discussion

Union Carbide argues that the trial court’s general damage awards to claimants in amounts that ranged from $750 to $3,500 are excessive. It asserts | isthat jurisprudence requires that the minor, temporary, irritant symptoms described at trial, limited to a duration of no more than approximately one day and requiring no medical treatment whatsoever, should be valued at approximately $0-$200 (depending on the circumstances of individual claimants). Union Carbide also argues in brief that the maximum award should be $750.

In the present case, the trial judge gave a well-reasoned judgment, tailoring each award to the injuries suffered by each plaintiff in accordance with the plaintiffs proximity to the source. Dr. John B. Sullivan Jr., a medical toxicologist, who was accepted as an expert in the fields of medical toxicology and environmental health, testified that it was reasonable that someone closer to the source would receive a higher concentration than someone further away. For example, he stated that people closest to the release in Taft would suffer more acute symptoms than people further away. Thus, there was evidence to support the trial judge’s finding that those claimants closer to the source sustained greater injuries.

The trial judge evidently attached great weight to Dr. Sullivan’s testimony that the complaints did not require any sort of medical treatment. Dr. Sullivan testified that the standard kind of treatment is what these individuals did such as using Visine. Dr. Sullivan also testified that there was no doubt in his mind that an exposure to naphtha at certain concentrations could produce the symptoms that the complainants reported. In his opinion, an acute onset of symptoms would induce some irritation of the eyes, nose, and throat.

Dr. William Nassetta’s deposition was introduced at the current trial. Dr. Nas-setta, an expert in occupational medicine, testified that usually people | ^experience irritant types of effects from exposure. These are stinging in the eyes, tearful eyes, and stinging in the membranes that line the nose. A person could get a sore throat or experience coughing. The other types of effects that one commonly sees with naphtha would be a central nervous system reaction. Naphtha is a central nervous system depressant and one could see some non-specific central nervous system signs or symptoms such as headaches, nausea, dizziness, and almost a sensation of feeling drunk. Dr. Nassetta stated that there could be a plume release within inches of a person and that person may not have any effect but a person nearby could have a very significant effect.

Dr. Sullivan testified that generally if the exposure is terminated, the symptoms resolve within minutes. However, the event in this case lasted 17 hours. Dr. Sullivan stated that with 17-hour exposure, the symptoms may take a day to disappear rather than minutes.

On the other hand, Dr. Nassetta testified that the event might have lasted as long as 70 hours after the plant contained the leak with foam. Thus, there might have been smaller exposures after 17 hours.

Based on the record before this Court, the general damages awarded to the above claimants are not beyond that which a reasonable trier of fact could assess for the effects of these particular injuries to these particular plaintiffs under these particular circumstances.

Decree

Accordingly, given the trial judge’s vast discretion in this matter, we affirm the damage awards to Ella Mae Darrensbourg ($1,500), Colleen Lathers ($1,500), Tone Silas ($1,500), Cynthia Johnson-Gordon ($1,500), June Gross ($2,000), Dorothy Richard ($2,000), Lisa McKnight ($2,500), Martin Granier ($3,500), Lionel Harry ($3,500), Anne Ockmond ($3,500), James McCormick ($3,500), and Franklin McGinnis ($3,500).

| l7Finding manifest error, we vacate the trial court’s damage awards to Debra Brown ($2,500) and Rogest Gross ($750).

AFFIRMED IN PART; VACATED IN PART.

DUFRESNE, C.J., concurs in part and dissents in part.

McMANUS, J., concurs in part and dissents in part.

DUFRESNE, C.J.,

concurring in part and dissenting in part.

hi concur with the majority opinion vacating the damage awards to Debra Brown and Rogest Gross.

However, I dissent from the amount of damages awarded to the various groups of plaintiffs and would reduce those damages as follows:

Occidental Plant Employees from $3,500 to $500 each;
Killona Residents from $1,500 to $100 each;
Montz Residents from $2,000 to $150 each; and
Entergy Plant Employees from $2,500 to $250 each.

Although the trier of fact has vast discretion in fixing damages, the award as affirmed by the majority are excessive considering that none of the plaintiffs ever sought medical treatment, none missed any work because of their symptoms, and none complained of any continuing problems due to their exposure to the chemical.

Considering all of the evidence of record I respectfully concur in part and dissent in part.

McMANUS, J., concurs in part and dissents in part for the reasons assigned by DUFRESNE, C.J.

      . An example of a case in which the appellate court affirmed higher awards for what Union Carbide characterizes as minor injuries for which the claimants did not seek medical attention is In re New Orleans Train Car Leakage Fire Litigation, 00-1919 (La.App. 4 Cir. 4/20/05), 903 So.2d 9, writ denied, 05-1297 (La.2/3/06), 922 So.2d 1171.


author: CLARENCE E. McMANUS, Judge.

text:
    Bennie PATTERSON v. Carlo DeMATTEO, Louana Bracato DeMatteo, CLLC Investments, Inc. & ABC Insurance Company.
    No. 09-CA-326.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    Rehearing Denied Nov. 16, 2009.

      Christopher R. Schwartz, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Matthew D. Monson, Kristi U. Louque, Pajares & Schexnaydre Law Firm, Attorneys at Law, Mandeville, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

| gPlaintiff, Bennie Patterson, appeals from a ruling of the trial court granting summary judgment in favor of defendants, Carlo and Louana DeMatteo, dismissing plaintiffs claim against them. For the reasons that follow, we affirm the decision of the trial court.

Eric Patterson, plaintiffs son, was a security guard at Big Dawg’s Lounge, a bar in Gretna, Louisiana. On April 28, 2007, Eric Patterson was shot several times by an unknown assailant while standing in the parking lot in front of the building that housed the bar. Plaintiff filed this suit for wrongful death, naming as defendants the owners/lessors of the building, Carlo and Louana DeMatteo, lessee of the building, Nex-Gen Management, and the owners of the business (Big Dawg’s Lounge), Michael Calegan and Carol Parrino. In his claims against the DeMatteos, plaintiff alleged that they were negligent in failing to recognize the foreseeability of criminal activity on the premises, failing to have an adequate security plan for dealing with the criminal activity and failing to have proper regard for the safety of others.

|sThe DeMatteos filed a motion for summary judgment alleging that they breached no duty owed to plaintiffs son and that they did not know or have reason to know that an unknown third party would commit a random criminal act on the premises that they owned and leased to others. The motion for summary judgment was granted by the trial court, and the DeMatteos were dismissed from the suit. The trial court further certified the judgment as final for purposes of immediate appeal.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, 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(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Fat Tuesday Cafe, L.L.C. v. Foret, 06-738 (La.App. 5 Cir. 2/13/07), 953 So.2d 821.

This Court’s review of a grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, O3-1424, (La.4/14/04), 870 So.2d 1002, 1006. This Court asks the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066 (La.7/6/04), 880 So.2d 1.

|4In support of the motion for summary judgment, defendants introduced the police report of the shooting, to prove that the decedent was shot by an unknown assailant. They introduced their affidavits, which stated that they were the owners of the property and that the property was leased to Nex-Gen at the time of the shooting, that they were not involved in the operation of the bar in any way, and they were not present at the time of the shooting nor did they have employees or agents present at the time of the shooting. Defendants further averred and the lease documents showed that there was no provision for control of the business operations or security provisions. The lease document provided that “Lessee must carry his or her own insurance for liability and contents of building.”

In opposition to the motion for summary judgment, plaintiff introduced copies of the police report of the incident and the lease, and the report of Dr. William E. Thornton, an expert in the areas of forensic criminology and security. He examined the crime reports for building in which Big Dawg’s is located for a period from 2000 to April 2007, and the crime records for the surrounding area for a period from 2005 to April 2007, and concluded that there was a reasonable foreseeability for violent crime to occur on the premises and that the owners should have monitored criminal activity and provided subsequent security measures. Dr. Thornton did not distinguish between the owners of the business and the owners of the immovable property in his report.

In determining whether liability exists under the particular facts presented, the Louisiana Supreme Court has adopted a duty-risk analysis. Under this analysis, the plaintiff must prove that conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of |fiprotection afforded by the duty breached. Posecai v. Wal-Mart Stores, Inc., 99-1222, (LA.11/30/99), 752 So.2d 762.

The threshold issue is whether the defendant owed the plaintiff a duty. Duty is a question of law. Generally, there is no duty to protect others from the criminal activities of third persons. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). The duty to protect from the criminal act of others arises under limited circumstances only, when the criminal act in question was reasonably foreseeable to the owner of the business. Ponsecai, supra. Further, a duty of protection which has been voluntarily assumed must be performed with due care. A business which undertakes to hire a security guard to protect itself and its patrons is liable for physical harm which occurs because of negligence on the part of that guard. Harris, supra; Ledet v. Doe, 00-112 (La.App. 5 Cir. 5/17/00), 762 So.2d 242.

The business in this case was the bar known as Big Dawg’s Lounge. Defendants, the DeMatteos, are not the owners of the business, but are the owners only of the immovable property leased to the owners and/or agents of the owners of the business. Defendants are not involved in any aspect of the business, nor did they assume any liability for actions of the owners of the business. Furthermore, they did not undertake or assume the duty to provide protection or security.

In Joseph v. Doe, 377 So.2d 875 (La.App. 4 Cir.1979), under very similar circumstances, the Court said that the relationship between a lessor and a lessee does not render the lessor liable for the negligence of the lessee in the conduct of its business. In that case, plaintiff was shot by an unknown assailant while inside a bar. Plaintiff sued the unknown assailant, the bar owner/lessee and the property owner/lessor. The court noted that the allegations of the petition, along with the | ^affidavits of plaintiff and property owner, established only a lessor/lessee relationship between the owner and the operator of the bar.

In support of his contention that the trial court erred in granting summary judgment, plaintiff/appellant cites Adams v. Traína, 36,306 (La.App. 2 Cir. 10/25/02), 830 So.2d 526, writ denied 02-2844 and 02-2898 (La.2/7/03), 836 So.2d 101, 102, where the Second Circuit Court of Appeal held that a premise owner can be liable in tort for failing to take reasonable measures to protect its invitees from harm caused by the criminal acts of third parties. We believe that the Adams case is distinguishable from the instant matter. In Adams, defendant Traína not only owned the land and building, he also owned and operated several businesses in the building, including a car wash, the Ebony Club (a “bottle club” which means that alcohol may be consumed but not sold there), and Traína Oil Co., a business entity that sold liquor, beer and wine, which patrons of the Ebony Club would purchase. One night a fight broke out and bystander Adams was shot in the parking lot while leaving the Ebony Club. The Second Circuit Court of Appeal, in reversing a grant of a motion for involuntary dismissal, considered testimony of the frequency of police calls to the parking lot (25 in two years), of the neighbors who described the activities in the parking lot that included shootings, fights, loud music and profanity, and that Traína was aware that there was drinking in the parking lot, but did not employ security to stop such actions.

In this case, the DeMatteos owned the property, but had no ownership or control of the businesses operating in the property. The people patronizing those businesses were not invitees of the DeMatteos, but rather invitees of the businesses. Thus the Adams case, in which defendant not only owned the immovable property, but also owned and/or had control of the businesses that were operated on the property, is not applicable.

|7We find that under the circumstances of this case, defendants owed no duty to protect the patrons of the business from the criminal acts of unknown third parties. Accordingly, the trial court did not err in granting defendant’s motion for summary judgment and dismissing plaintiffs suit against them.

For the above discussed reasons, the decision of the trial court granting summary judgment in favor of defendants Carlo and Louana DeMatteo is affirmed. All costs are assessed against appellant.

AFFIRMED.


author: AMY, Judge. GREMILLION, Judge,

text:
    Lisha M. McRAE v. Mark McRAE.
    No. 09-289.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 28, 2009.
    Henry H. Lemoine, Jr., Lemoine & Wampler, Pineville, LA, for Plaintiff/Appellant, Lisha M. McRae.
    Mark McRae, Leesville, LA, for Defendant/Appellee, in Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

_JjThe plaintiff alleged that the defendant owed child support payments for the summer months of 2002 through 2008. The defendant asserted that the support judgment, as modified, did not include support for these months. The trial court found in favor of the defendant. The plaintiff appeals. We reverse and remand with instructions.

Factual and Procedural Background

The plaintiff, Lisha McCurry Vanderlick (formerly McRae), and the defendant, Mark McRae, were divorced in 1992. One child was born of the marriage. In the initial implementation plan for joint custody of the child, signed by the trial court in February 1992, the plaintiff was designated the domiciliary parent. The order awarded the defendant designated periods of physical custody. As for the summer, the defendant was provided with six weeks of physical custody during the child’s school vacation. The order provided that: “Any child support payments shall be suspended during the summer visitation.” Support of $700.00 per month was ordered.

In December 1997, the custody plan was amended. The amended judgment included a change in the summer physical custody schedule to provide that the minor child:

[Sjhall reside with her father during June of each year and with her mother during July of each year. The child will spend the second (2nd) weekend of each of those months with the non-custodial parent. Additionally!;,] the father will have visitation in August for five (5) consecutive days in August of each year, to include a Saturday and Sunday, prior to the beginning of the school year.

As for support of the child, the amended judgment again required the defendant to pay $700.00 per month. It stated that: “The child support payment by MARK MCRAE for the month of June is suspended.”

|2The summer schedule was once again amended by an August 2003 order, which provided for shared physical custody throughout the summer as follows:

The summer visitation schedule will be amended to give to McRae visitation in the following manner:
He will have visitation for the first two weeks of June and July and the first ten (10) days of August. He will be allowed to pick up the child at 6:00 P.M. on the day preceding the first of each month. The only exception to this will be if the exercise of this visitation interferes with the child’s normal school schedule. There will be no weekend visitation for Vanderlick during these summer visitations. For clarity’s sake, a week is considered a seven (7) day period for purposes of this ruling.

The order provided that “[a]ll other provisions of the previous implementation not otherwise amended herein shall remain in effect as written.”

After a period of litigation concerning the appropriate venue for further proceedings, the trial court increased the defendant’s support in October 2003. The judgment stated that “the child support previously set herein in September of 1992, is increased to $1,350.00 per month, effective from the date of the filing of this rule, November 3, 2001[.]” The plaintiff sought to make the judgment executory in January 2003. As a result, the trial court entered an executory judgment in May 2004, reflecting a total of $12,903.17 in unpaid child support payments and interest. A judgment of satisfaction was later entered.

The ruling now under review stems from the plaintiffs September 2008 Rule for Contempt of Court. She referenced the October 2003 order in which the defendant’s support obligation was increased to $1,350.00 per month and alleged that the defendant failed to pay support for the months of June, July, and August in the years 2002 through 2008. She argued that, because the most recent judgment does not address suspension of the support during the summer months, it was owed by the l3defendant. In response, the defendant argued that the October 2003 judgment only changed the amount of support and left the pre-existing provisions for suspension of support for summer visitation unchanged. At the hearing on the rule, he confirmed that he “prorated” the support “during the period of time when the child was with [him].”

The trial court found in favor of the defendant, concluding that the only area changed in the October 2003 judgment was the amount of support. It explained that “the suspension of the child support as stated by prior judgments remains in force and effect.” It denied the plaintiffs request for a finding of contempt and for a finding of an arrearage.

The plaintiff appeals, assigning the following as error: “The trial court erred in holding that a subsequent judgment did not supersede preceding judgments resulting in an erroneous finding that the defendant is not in arrears.”

Discussion

The plaintiff argues that the October 2003 judgnent superseded the previous judgments providing for a suspension of the support obligation during summer months. Thus, due to the defendant’s failure to pay support during June, July, and August from 2002 to 2008, she seeks a determination that the defendant owes $12,646.00 in back child support.

As observed by the trial court, the October 2003 judgment related solely to the amount of support. It did not alter or amend the previous orders relating to the |4summer schedule of physical custody. The trial court ordered that the previous judgments remained in effect, denying the plaintiffs claim for relief. Although the trial court correctly determined that the October 2003 judgment only related to the amount of support and, therefore, did not supersede the previous suspension of summer support payments, it erroneously denied the plaintiffs claim for the July and August payments.

The original 1992 implementation plan generally suspended the defendant’s support obligation during his period of summer visitation. However, the December 1997 amended judgment changed that designation, providing for the suspension of support for the month of June. This suspension was limited to June, despite the fact that the defendant was also given physical custody of the minor child during a portion of August. Thereafter, the August 2003 amendment changed the custody schedule, but retained other provisions of the previous implementation. Thus, the suspension of support for June remained in effect.

In short, the trial court correctly determined that the defendant was not required to provide support for the month of June. It erred, however, in failing to recognize that the series of judgments required the defendant to provide support in July and IfiAugust. In light of this determination, we remand this matter to the trial court for determination as to the amount of the arrearage and for the entry of the related judgment.

DECREE

For the foregoing reasons, the trial court’s judgment is reversed insofar as it did not order the appellee, Mark McRae, to pay child support for the months of July and August for the years 2002 to 2008. We remand this matter to the trial court to determine the arrearage and amend the judgment accordingly. Costs of this proceeding are assessed equally between the appellant and the appellee.

REVERSED AND REMANDED.

GREMILLION, J., concurs and assigns written reasons.

GREMILLION, Judge,

concurs.

hi would reverse and render judgment as to the amount in which Mr. McRae is in arrears because the amount can be determined from the record.

      . The rule for contempt listed the amounts paid by the defendant for the months June, July, and August for the years 2002 through 2008. During his testimony, the defendant confirmed that the listing accurately reflected the amounts that he paid. The petition indicates that the defendant paid $675 in June 2002 through 2008. It also reflects that the defendant paid $675 of the $1350 due for July 2002 through 2008, that he paid $891 of the $1350 due for August 2002 through 2007, and that he paid $918 of the $1350 due for August 2008.

      . The judgment provides only that:
      This matter came on for hearing on August 18, 2003, on Mover’s Motion to Modify Child Support. Considering the pleadings, the documentary evidence, and the testimony, the Court finds in favor of mover and;
      IT IS ORDERED, ADJUDGED, and DECREED that the child support previously set herein in September of 1992, is increased to $1,350.00 per month, effective from the date of the filing of this rule, November 13, 2001; and
      IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the Respondent, MARK MCRAE, is ordered to pay all costs of court.
      JUDGMENT RENDERED by Written Reasons on October 14, 2003, and SIGNED in Open Court on the 29th day of October, 2003.


author: PAINTER, Judge.

text:
    Randy J. GARY v. MONCLA WELL SERVICE, et al.
    No. 09-377.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      J. Bryan Jones, III, Lake Charles, LA, Whit M. Cook, II, Baton Rouge, LA, for Plaintiff-Appellant Randy J. Gary.
    Frank K. Neuner, James D. Hollier, Lafayette, LA, for Defendant-Appellee Schlumberger Well Services.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| plaintiff, Randy J. Gary, appeals the trial court’s dismissal of Schlumberger Well Services (Schlumberger) based on a finding, pursuant to a motion for summary judgment, that Schlumberger did not owe a duty to Plaintiff to protect him from the injury incurred.

FACTS AND PROCEDURAL HISTORY

In written reasons for judgment, the trial court correctly outlined the underlying facts of the case as follows:

Gary, a floorhand employed by West-bay Contracting Corporation (‘West-bay’), sustained an accident on May 7, 1995 while disassembling a lubricator with two of his fellow crew members. Although he was a Westbay employee, Gary had worked under contract for Monda Well Services (‘Monda’) for many years and considered himself to be a member of the Monda drilling crew. Monda had been hired by Marshall Petroleum, the operator of the well, to provide a drilling rig and crew at this location. Marshall had also contracted with Schlumberger to provide well evaluation services on the rig. There was no contract between Schlumberger and Monda.
Gary’s accident occurred as the crew was disassembling a lubricator while it was suspended from a catline. The lubricator, a pressure control device comprised of three sections, had been used by Schlumberger during its operations on the rig earlier that day. Schlumber-ger rented the lubricator from McLo Rentals and the rental fee included the cost for McLo to transport, assemble and disassemble the lubricator at the well site. Although McLo had been paid to disassemble the lubricator, the Monc-la crew gratuitously performed this job without any request from Schlumberger. No one from Schlumberger was involved in disassembling the lubricator with Gary and his fellow crew members. At the time of the incident, the Schlumber-ger crew had left the drill floor and was disassembling their equipment in another area of the well site.

Gary filed suit against Monda and Schlumberger. Schlumberger filed a third party demand against Marshall Petroleum. Monda filed a third party demand against Westbay, and when that claim was sent into arbitration, it filed a petition for declaratory judgment asking the trial court to quantify Westbay’s fault for purposes of an arbitration proceeding pending between Monda and Westbay. In September 121999, Monda obtained a summary judgment dismissing Gary’s claims against it pursuant to a statutory employer defense. Schlumberger filed a motion for summary judgment asserting that no material issue of fact remained because it owed no legal duty to supervise the activity which resulted in Gary’s injury. The trial court dismissed Gary’s claim against Schlumberger in July 2001, giving written reasons as follows, in pertinent part:

Louisiana law requires that the defendant owe the injured party a duty in order to prevail on a negligence claim. As a result, Gary must establish “by contract, statute, jurisprudence or otherwise” that Schlumberger owed him a duty under these facts. Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La.1993); Brow v. Allstate Indem. Co., 99-2319 (La.App. 1 Cir. 11/3/00), 771 So.2d 268, 272; Hardenstein v. Cook Const., Inc., 96-829 (La.App. 1 Cir. 2/14/97), 691 So.2d 177. Gary contends that Schlumberger was at fault because it failed to supervise and provide instruction to the Monda crew during the disassembly of the lubricator. Gary also alleges fault by Schlumberger for failing to warn the Monda crew of the potential dangers involved with disassembling the lubricator.
The Court finds that Schlumberger owed no legal duty to Gary to assure that the disassembly process was performed safely. Schlumberger was not contractually required to supervise the work performed by the Monda crew or warn them of any potential dangers involved in the disassembly of the lubricator. Additionally, Schlumberger did not possess any operational control over the work being performed by the Monda crew and Schlumberger did not direct the manner in which the lubricator was taken apart. Further, the Monda tool-pusher and driller both testified that the Monda crew did not require any supervision from Schlumberger with respect to disassembling the lubricator nor did they give Schlumberger any indication that they were incapable of safely performing this task prior to the incident. Finally, even Gary conceded that it was considered the Monda drilling crew’s customary task to disassemble the lubricator.
The Court, finds that based on the undisputed facts of this case, there is no legal duty owed to the plaintiff on the part of Schlumberger, and because the issue of whether a duty is owed is a question of law, summary judgment is appropriate. Mundy v. Dept, of Health and Human Res., 620 So.2d 811 (La. 1993). For these reasons, and based upon the law, the evidence, the briefs and exhibits submitted by the parties, and the argument of counsel, it is ordered that all claims asserted by Randy Gary against Schlumberger are dismissed with full prejudice, with plaintiff to bear all costs.

| sIn January 2002, a judgment was entered dismissing Schlumberger’s third party demand against Marshall Petroleum. In September 2006, a judgment was entered dismissing Moncla’s third party demand against Westbay, apparently on the grounds of abandonment. In October 2006, Gary filed a motion for a devolutive appeal asserting that the trial judge was incorrect in finding that Schlumberger has no legal duty. Schlumberger moved to dismiss the appeal as untimely. This court overruled that motion finding the appeal to be timely. We now consider the merits of Gary’s appeal.

DISCUSSION

On appeal, Gary asserts that the trial court erred in finding that Schlumberger did not owe a duty to supervise and train the crew that disassembled the lubricator.

Summary judgments are reviewed by appellate courts de novo. Supreme Sen. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. A motion for summary judgment is properly granted if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Travelers Ins. Co. v. Joseph, 95-200 (La.6/30/95), 656 So.2d 1000.

Hebert v. Clarendon Am. Ins. Co., 07-992, p. 1 (La.App. 3 Cir. 6/4/08), 984 So.2d 952, 954, writ denied, 08-1508 (La.11/10/08), 996 So.2d 1068.

The question of whether a duty is owed is one of law. Rando v. Anco Instdations, Inc., 08-1163 (La.5/22/09), 16 So.Bd 1065. “ ‘[WJhen an appellate court reviews a question of law the standard of review is simply whether the lower court’s interpretive decision is correct.’ Johnson v. Calcasieu Parish Sheriff’s Dept, 06-1179, p. 8 (La.App. 8 Cir. 2/7/07), 951 So.2d 496, 499.” Hebert, 984 So.2d at 954.

Here, as in Hebert, there are no factual disputes before us. Therefore, “we review whether the lower court’s interpretive decision was correct and whether [Schlumberger] was entitled to judgment as a matter of law.” Id.

|4In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty.

Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627, 632-33. quoted in Rando v. Anco Insulations, Inc., 08-1163, p. (La.5/22/09), 16 So.3d 1065.

After reviewing the record, we conclude that the trial court was correct in finding that Schlumberger owed no legal duty to Plaintiff. There is no suggestion that Schlumberger owed any statutory duty. We find no jurisprudence which requires imposition of a duty under the circumstances of this case. It is undisputed that Schlumberger had no contract with Monda or Westbay. Further, the record supports the conclusion that the contract between Schlumberger and McLo required McLo to disassemble the lubricator, in spite of Plaintiffs allegations to the contrary in brief. It is undisputed that Schlumberger did not ask the Monda crew to disassemble the lubricator and that Schlumberger did not participate in the disassembly. Two Monda supervisors testified that the crew did not need supervision from Schlumberger and that the crew had previously disassembled similar equipment. We can find no jurisprudence which suggests that Schlumberger took on a duty to the Monda crew by the act of using the lubricator at some point prior to its disassembly.

Accordingly, we affirm the trial court’s dismissal of Schlumberger pursuant to its motion for summary judgment.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff, Randy J. Gary.

AFFIRMED.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Ernest D. CAIN.
    No. 09-390.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Sheryl Laing, ADA, Alexandria, LA, for Appellee, State of Louisiana.
    Thomas Davenport, The Davenport Firm, Alexandria, LA, for Defendant-Appellant, Ernest D. Cain.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

| T FACTS AND PROCEDURAL HISTORY

On February 17, 2008, Deputy Scotty Paul of the Rapides Parish Sheriffs Department drove out to the home of Wilton Friday to investigate Mr. Friday’s complaint involving Defendant, Ernest D. Cain, his half brother. Mr. Friday reported that Defendant fired a gun earlier that day and the bullet grazed the trees near Mr. Friday’s residence. On that date, Defendant resided in a tent located on the back five acres of the property, about eight hundred yards from Mr. Friday’s residence.

When Deputy Paul drove up to Defendant’s campsite to investigate Mr. Friday’s complaint, Defendant stepped out from beside his truck and fired a shot in the air. Deputy Paul then arrested Defendant without incident.

Defendant was charged by bill of information with illegal use of a weapon, first offense, a violation of La.R.S. 14:94, for the shot fired in the air when Deputy Paul arrived. Following a jury trial, Defendant was found guilty as charged. Defendant was subsequently sentenced to serve two years at hard labor, suspended, and ordered to pay a fine of $500.00 and $241.50 in court costs by December 1, 2008. The default sentence for failure to pay the fine and costs by that date was six months in the parish jail. The trial court also ordered two years of supervised probation.

As a condition of probation, Defendant was not to be in possession of a firearm or ammunition during the two-year probation period. A monthly supervision fee of $60.00 was ordered and Defendant was ordered to submit to random drug testing, to abide by a curfew of 10:00 p.m. until 6:00 a.m., refrain from consuming alcoholic beverages and controlled dangerous substances, refrain from entering a bar, lounge or casino, reimburse the Public Defender $250.00 and attend and successfully 12complete substance abuse treatment. Lastly, the trial court ordered the forfeiture and destruction of the weapon seized from Defendant.

Defendant did not make or file a motion to reconsider sentence. He is now before this court on appeal, asserting four assignments of error which challenge both his conviction and sentence. For the following reasons, we find Defendant’s conviction and sentence should be reversed.

ANALYSIS

Defendant argues the evidence is not sufficient to support his conviction. We will address this assignment of error first in the event the Defendant is entitled to an acquittal. State v. Hearold, 603 So.2d 781 (La.1992). “When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.” Id. at 734.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is 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, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,1371.

| sThe illegal use of a weapon is defined in La.R.S. 14:94 as the intentional or criminally negligent discharge of a firearm where it is foreseeable that it may result in death or great bodily harm to a human being. In the instant case, Defendant argues it was not foreseeable that the warning shot would or could result in death or great bodily harm to a human being. Further, Defendant maintains the uncontra-dicted evidence shows there was no death or great bodily harm and there was no showing made that firing in the air could have had such consequences. Lastly, Defendant contends the act of firing in the air, in itself, negates the inference or conclusion that he had no regard for consequences giving rise to general intent.

At trial, Wilton Dean Friday, testified Defendant, who was his half-brother, was living in a tent on the back five acres of property that the two men had inherited. Defendant’s tent was located about eight hundred yards from Mr. Friday’s house which was located on the front part of the property. On February 17, 2008, Mr. Friday called the Rapides Parish Sheriffs Department to investigate an alleged gunshot he heard shortly after he and his wife arrived home from the hospital. Deputy Scotty Paul was dispatched to the scene. Mr. Friday asked Deputy Paul to speak to Defendant, as he believed this was where the gunshot came from. Soon thereafter, Mr. Friday heard a shot and Deputy Paul returned with news that he had arrested Defendant.

On cross-examination, Mr. Friday maintained he was clear about what he heard that night although he was taking pain medication when he was released from the hospital. He was not sure, however, of the last time he had taken pain medication before he was discharged that day. Mr. Friday denied having a conversation with the Defendant on the morning of February 17, 2008, wherein he told Defendant he was 14heavily medicated because of his surgery. On redirect, Mr. Friday testified that he did not take his pain medication on a regular basis and only took it as needed.

Deputy Paul testified that he investigated a report of gunshots on February 17, 2008. Mr. Friday advised him that Defendant was camped out in the pasture and he believed Defendant had fired a shot earlier. Deputy Paul then drove out to where Defendant’s tent was set-up and as he approached the tent, Defendant stepped out from beside his truck with a black pistol in his hand, a Glock 9 millimeter, automatic, and fired one shot in the air. Deputy Paul exited his vehicle, drew his weapon and ordered the Defendant to put down the gun and lay down on the ground. Defendant immediately cooperated with Deputy Paul’s order, was then handcuffed, patted down for weapons and placed in the unit.

According to Deputy Paul, Defendant appeared intoxicated. When he asked the Defendant if he had anything to drink, the Defendant stated that he was “drunk.” Defendant had no explanation as to why he fired the shot and there was no one else around.

On cross-examination, Deputy Paul testified Defendant was facing toward Mr. Friday’s house when he fired straight up into the air. Deputy Paul did not know where the bullet went from there. He was still in his unit when he saw the flash and did not hear the bullet hit anywhere. The bullet impact did not cause Deputy Paul to flinch or take cover.

Defendant testified that on February 17, 2008, he saw Mr. Friday at 10:00 a.m. with his arm in a sling. Defendant asked Mr. Friday what had happened and Mr. Friday reported that he had surgery. According to Defendant, Mr. Friday appeared heavily medicated. At about 8:00 p.m., Defendant was listening to the radio when a vehicle came through the gate that was supposed to be closed. He immediately |sbecame alarmed when the vehicle proceeded through the gate without stopping to open the gate. When the vehicle was ten to fifteen feet from his truck, the Defendant noticed that it was a police car. Defendant initially stated that a shot was not fired at that time.

Defendant did admit to firing a shot at about 6:00 p.m. when his other half brother, Truman Friday, had approached the area. Defendant explained that Mr. Friday had asked him to help watch his property because people were stealing from him and shooting at his house, and at that time, he was not home. According to the Defendant, Truman pulled up to the gate, stopped his vehicle and sat there for about five minutes. Defendant was not aware that it was Truman, so when Truman did not get out of the vehicle or blow his horn, Defendant fired a warning shot in the air. Defendant maintained the shot did not impact Mr. Friday’s house.

Defendant admitted he had been drinking alcoholic beverages that day and testified he was celebrating his graduation from a three-week, high plane-training course put on by the International Contractor’s Association. Defendant stated he consumed a half-liter bottle of wine over approximately four to five hours.

On cross-examination, Defendant testified prior to firing the shot at 6:00 p.m., he was concerned that Mr. Friday was in the house and was unable to come to the door because he was “knocked out” by pain medication. Defendant reiterated that Mr. Friday had complained about people stealing from him and had asked Defendant several times to watch the place for vehicles and people. According to Defendant, he fired a shot to warn the intruder and to possibly wake up Mr. Friday. Defendant testified it was dark and there were no streetlights. The only illumination was from the front windows on Mr. Friday’s porch, just enough light to see that a white vehicle had pulled up.

| (¡With regard to Deputy Paul’s testimony that Defendant fired a shot upon his arrival, Defendant maintained that Deputy Paul was fabricating the truth or lying. Defendant asserted Mr. Friday and Deputy Paul were lifelong acquaintances and alleged the lie was a favor to Mr. Friday. Defendant also testified Mr. Friday fabricated the fact that Defendant fired a shot when he drove up.

Defendant also testified he was scared for his life because he did not know that it was a police car. Defendant maintained if Deputy Paul would have turned on the lights or PA system, he would have believed it was a police car. Defendant assumed someone had come to harm him considering it was private property with a history of trouble with drug dealers, informants and hunters. Although Defendant was afraid, he did not fire a shot, “[b]e-cause you don’t fire shots at people, and I had already fired one shot already as a warning.”

On appeal, Defendant no longer denies he fired the weapon in the presence of Deputy Paul which was heard by Mr. Friday. Instead, Defendant challenges the foreseeability of his actions. Defendant contends it was not foreseeable that firing a shot in the air would or could result in death or great bodily harm to a person because there was no evidence that death or great bodily harm could result from his actions or that firing in the air could have resulted in death or great bodily harm. Lastly, Defendant contends the act of firing in the air, in itself, negates the inference or conclusion that he had no regard for consequences giving rise to general intent.

In State v. Powell, 95-424 (La.App. 3 Cir. 11/2/95), 664 So.2d 608, this court was faced with a similar situation. The defendant was charged under La.R.S. 14:94(E), which amongst other elements, the State had to prove that considering the time and place, it was foreseeable that death or great bodily harm might occur to another person. In Powell, the defendant drove by a residence and fired three to four |7shots from a .25 semi-automatic pistol. At the time the pistol was fired, four adults and a few children were in and around the front yard of the residence. The shots, however, were aimed in a direction opposite that of the residence, and, thus, the court concluded that it was not foreseeable that death or great bodily harm might occur.

In State v. Ordner, 06-1054 (La.App. 3 Cir. 2/14/07), 951 So.2d 508, unit denied, 07-587 (La.10/26/07), 966 So.2d 572, however, this court held it was foreseeable that discharge of a weapon, including shooting in the air, could result in death or great bodily harm. The defendant in Ord-ner was charged with illegal use of weapons and aggravated battery. On the evening in question, the defendant went to a party on a river where at least twenty-five to fifty young people were in attendance. The defendant had been drinking and brought a loaded gun to the party. Not long after his arrival, the defendant was approached by four men. In an attempt to stop a physical altercation, the defendant fired a shot in the air and the men took off running. The defendant, however, fired his gun two more times, even though the threat was over, striking and injuring a man who was trying to convince the defendant to put his weapon away and was never shown to have been a threat to the defendant. The court also observed that the State was required to show criminal negligence, not intent, for the illegal use of a weapon, and found the defendant was criminally negligent in firing the gun, regardless of his intention.

Like the defendant in Ordner, the Defendant was intoxicated, by his own admission, when he fired his weapon. However, unlike in Ordner, where the defendant there brought a loaded weapon to a party, Defendant in this case was on his own property, alone. Further, Defendant fired his gun only once and immediately cooperated with Deputy Paul after ascertaining he was a police officer. Ordner, after initially firing his gun once to stop an altercation, continued to fire his gun several | ¿more times after the threat was over. Therefore, the Ordner case is factually distinguishable from the facts presented here.

Further, the record is void of evidence that one could foresee Defendant’s actions could result in death or great bodily harm. According to Deputy Paul, there was no one else around. Defendant was facing toward Mr. Friday’s house, but fired straight up into the air, not in the direction of Mr. Friday’s home or in the direction of Deputy Paul’s person or vehicle. There is no evidence Defendant pointed the weapon at anyone or anything when he fired it in Deputy Paul’s presence. Deputy Paul was still in his vehicle and testified he did not hear or see where the bullet came down and the bullet impact did not cause him to flinch or take cover.

Additionally, Defendant and Mr. Friday lived on land composed of many acres, with Defendant living on the back five acres of the jointly owned property. The record indicates there were trees on the property and Defendant and Mr. Friday and his wife were the only residents on the property. As such, the likelihood that the bullet Defendant fired in the air would hit anyone was negligible and unlikely to cause bodily harm or death.

Therefore, we find the State did not meet the burden of proving it was foreseeable that Defendant’s shot fired into the air could have resulted in death or great bodily harm as required by La.R.S. 14:94. Accordingly, the evidence was insufficient and the Defendant’s conviction and sentence are reversed. Discussion of the remaining assignments of error is pretermit-ted.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence for illegal use of a weapon is reversed.

REVERSED.