author: WEIMER, Justice.

text:
    Marvin W. BUXTON v. IOWA POLICE DEPARTMENT.
    No. 2009-C-0520.
    Supreme Court of Louisiana.
    Oct. 20, 2009.

      Law Office of Christopher R. Philipp, Christopher Richard Philipp, Lafayette, for Applicant.
    J. Bryan Jones, III, LLC, Jennings Bryan Jones, III, Cameron, for Respondent.
   WEIMER, Justice.

LWe granted certiorari in this matter primarily to examine whether an employer is liable for medical treatment when an employee’s on-the-job injury is aggravated in a severe automobile accident that occurred off the job two years later. In urging such liability, claimant has relied on this court’s holding in Kelly v. City of New Orleans, 414 So.2d 770 (La.1982) and LSA-R.S. 23:1101(C). Following a consideration of the specific facts of this case and the applicable law, we find claimant’s reliance is misplaced, and we reverse the portion of the judgment casting the defendant employer responsible for the injuries suffered in the off-the-job accident.

In argument to this court, the defendant employer has also urged the lower courts erred in determining claimant is entitled to temporary total disability benefits (TTD) for the on-the-job injury. Finding there was manifest error in that decision, we reverse that award.

| sFACTUAL BACKGROUND

The facts and early procedural history of this case are recounted in Buxton v. Iowa Police Department, 06-1389 (La.App. 3 Cir. 3/7/07), 952 So.2d 922, writ denied, 07-0719 (La.6/1/07), 957 So.2d 176 (Buxton I). Marvin W. Buxton, a corporal with the Iowa Police Department (Iowa), was involved in a work-related accident on May 7, 2004, when his police unit was struck by a motorcycle as he attempted to block Thompson Street in Iowa, Louisiana. The Lake Charles Police Department had requested assistance from the Iowa police in stopping the driver of the motorcycle, who had refused to pull over for speeding. Buxton brought his unit to a standstill, blocking both lanes of travel on Thompson Street. However, while attempting to pass to the left of Buxton, the motorcycle rider hit the front passenger side of the police unit with his bike and was thrown into a ditch. The record contains pictures of the police unit which depict minimal damage consisting primarily of a broken plastic light cover on the right front bumper. Nevertheless, according to Buxton I, Buxton claimed that he hit his head on the door of his unit as he attempted to exit it immediately prior to the impact.

This incident occurred at approximately 2:00 a.m., and Buxton continued working until his shift ended at 6:00 a.m. At that time Police Chief Charles Ipes ordered Buxton to go to the pathology laboratory in Lake Charles to take a drug screen test. However, shortly after arriving there, Buxton and his wife left because he was in pain and felt that it would take too long to undergo the test.

The couple returned to Iowa, where Buxton was seen by his family doctor, Dr. Young Bin Kang, who diagnosed him as suffering from a left hand contusion, headache, and neck pain. Although the court of appeal noted that Buxton had not worked since the May 7, 2004 accident, the record shows he merely took ten days of Issick leave after the accident and remained on the payroll until he resigned his position on the police force effective June 9, 2004.

Buxton had been custodian of the evidence room at the police station. When he went on sick leave after the accident, Chief Ipes assigned that job to Officer Jimmy Horner, who conducted an inventory. In doing so, he discovered discrepancies in the evidence located there and an amount of money missing. Chief Ipes requested that the Calcasieu Parish Sheriffs Office perform an investigation into the matter. Pursuant to a warrant, a search was made of Buxton’s home, where numerous evidence envelopes were found, along with marijuana, other drugs, and drug paraphernalia.

On the advice of his counsel, Buxton resigned from the Iowa Police Department effective June 9, 2004. Thereafter, charges were filed against him for malfeasance in office, obstruction of justice, and possession of marijuana. Buxton later pled no contest to the charge of malfeasance in office and was sentenced to two years of supervised probation.

On June 29, 2004, Buxton filed a claim for unemployment compensation. He checked “Yes” to the question asking if he was able to work, searching for work, and available to accept employment. Eventually, his application for unemployment compensation was denied. In an opinion dated August 12, 2004, the Administrative Law Judge stated the reasons for deciding Bux-ton was disqualified from receiving benefits were: he had resigned his employment following his arrest; the evidence seized in the investigation showed misconduct connected with his employment; and he refused a drug test ordered by his superior.

|40n July 15, 2004, Buxton filed a disputed claim seeking workers’ compensation benefits based on Iowa’s failure to pay him wage benefits or authorize medical treatment. He further stated that he had never refused to take a drug screen after the accident. Iowa answered, arguing the affirmative defense of intoxication based on Buxton’s failure to undergo the drug screen. Following a hearing on a rule, Iowa was ordered to authorize Buxton’s evaluation by Dr. Clark Gunderson.

Trial on the merits was not held until June 15, 2006, two years after the on-the-job accident and one year after the last medical treatment of Buxton’s alleged injuries. Both Buxton and his wife testified. Various documents, including medical records and depositions of other witnesses, were admitted into evidence.

The Office of Workers’ Compensation hearing officer found that Buxton refused to undergo the drug screen and that Iowa was entitled to the presumption of intoxication as provided by LSA-R.S. 23:1081(7)(b). The hearing officer further held that Buxton failed to rebut the presumption and dismissed his claims against Iowa with prejudice.

Buxton appealed. The threshold issue on appeal was whether the dismissal was appropriate. Additionally, Buxton urged that the hearing officer erred in finding that no work-related accident occurred, in denying his disability and entitlement to benefits, and in denying his claim for penalties and attorney’s fees.

IsThe court of appeal found no error in the hearing officer’s finding that Buxton refused to submit to the drug test, thus entitling Iowa to rely on the presumption that the accident occurred as a result of his intoxication. However, the court of appeal concluded Buxton had adequately refuted the presumption of intoxication. Thus, the court of appeal reversed the judgment in favor of the employer. The matter was remanded because the record was insufficient for the appellate court to determine the other issues raised by Bux-ton and noted in his assignments of error. Buxton I.

Medical evidence:

At the first trial in 2006, defendant Iowa introduced the deposition testimony of Dr. Young Bin Kang, who outlined the history of his treatment of Buxton. In February of 2002, he was first consulted by Buxton, who was working as a “sales supervisor.” Buxton complained of muscle spasms, but did not specify an area of the body where he felt them; he also complained of discomfort at the site of a surgical wound that was the result of recent hernia repair. Dr. Kang diagnosed Buxton as suffering from high blood pressure and being overweight. A month later Buxton returned and repeated his complaint of muscle spasm, adding a complaint of cramps in the ribs. Dr. Kang diagnosed bronchitis and prescribed antibiotics. He also prescribed Vicodin and Soma for muscle spasm and muscle ache.

Dr. Kang, who was also the police department doctor, next saw Buxton in December of 2002, when he performed a pre-employment physical examination of the applicant for a position on the police force. The doctor’s conclusion was that Buxton was in good health, but he recommended lower calorie intake and more activity to achieve weight loss.

Between the pre-employment physical and the motorcycle/police unit collision, Buxton consulted Dr. Kang twice. On April 9, 2003, he had complaints of back pain, | fidue to a pulled muscle. He said he hit his back against a table five days earlier, and also had an on-the-job episode of pulling a dead body from a wrecked 18-wheeler. Dr. Kang concluded Buxton was suffering from “simply back pain” and nervousness. He prescribed Lortab for pain and Soma for muscle spasm. A month later, after having been in a fight, Buxton’s chief complaint was lower back pain, as well as injuries to his right knee, right hand, and elbow. Upon examination, Dr. Kang’s only positive finding was a small bruise on the lower back side.

Buxton did not visit Dr. Kang again until May 7, 2004, less than 24 hours after the motorcycle/police unit collision. Bux-ton reported injury to the left hand and the left side of the face, plus neck pain and back pain. Upon examination, there were no lacerations or bruises. Although his neck was tender, all other body parts and extremities, including the back, were normal. Dr. Kang’s diagnosis was headache after the accident and neck pain between the shoulders. The doctor gave instructions related to a possible head injury and discharged the patient.

The next visit to Dr. Kang was on May 11, 2004, when Buxton’s chief complaint was headache, back pain, and neck pain; he also reported vomiting four times during the last four days. The prescription for Soma and Lortab was continued, and he was told he could also take Tylenol.

A week later, Buxton returned, complaining of a “knot” on the back of the neck, which Dr. Kang described as being “subjective” with no objective finding of same. Results of all of the previous post-accident tests performed on Buxton were normal. Because of Buxton’s complaints, the doctor’s recommendation was rest and the use of heating pads and/or braces for the lower back and a collar for the cervical area, if needed. Medication remained the same, with the addition of an anti-inflammatory, Motrin.

17The June 1, 2004 visit was a repetition of the complaints and a continuation of the medication. The result of the doctor’s physical examination of the patient was “normal.” On June 7, 2004, Buxton and his wife Margaret reported to Dr. Kang. Mrs. Buxton stated he needed an MRI for the back, in her opinion. Dr. Kang disagreed that an MRI was called for at that time and he asked that they wait for that.

A month after that visit, on July 8, 2004, the patient wanted to go back to work, but the doctor did not approve of him doing heavy duty yet. Buxton’s physical examination was the same. Although there was tenderness in the lower back, his deep tendon reflexes, sensory function, and motor function in all the lower extremities were normal. The patient did have hypertension.

Buxton’s next visit with Dr. Kang was on August 16, 2004, four days after he was denied unemployment compensation. Buxton reported to the doctor that he thought his blood pressure was up because of the back pain. The doctor’s examination that day was that the deep tendon reflex was slightly sluggish and the motor function was a little diminished. Dr. Kang decided to order the MRI for the back to rule out a ruptured disk or some other severe injury. Dr. Kang also prescribed a muscle relaxer and Lortab for the pain.

In November of 2004, an x-ray of the lower spine was negative. The MRI that Dr. Kang ordered was performed in January of 2005. Although Dr. Kang had told the patient to come back after the test to discuss the results, the August 16, 2004 visit was the last time Dr. Kang saw Bux-ton.

Nevertheless, the record contains a handwritten report by Dr. Kang dated September 1, 2004, that states the doctor’s opinion that the patient “needs time to recover from the accident.”

Is At the first trial, Buxton introduced the medical records of Dr. Clark A. Gunder-son, which included a report of an office visit on April 26, 2005. The report is entitled “TO WHOM IT MAY CONCERN” and contains a checkmark at “IS NOT ABLE TO RETURN TO WORK” and a handwritten remark of “no duty” which are relative to work status.

At the second trial, on May 5, 2008, the parties entered the deposition of Dr. Clark A. Gunderson as a joint exhibit. Buxton first consulted Dr. Gunderson on April 26, 2005, which was the first time he consulted an orthopedic doctor after the 2004 accident. He reported to the doctor that he had experienced immediate nausea and vomiting at the time of the motorcycle/police unit collision and a few hours later developed back and neck pain. The doctor noted that the patient presented with a “bent forward posture.” He had diminished sensation in the S-l dermatome on the right and the right Achilles reflex was absent. He reported tenderness about L-8 to L-5 on both sides, as well as on both sacroiliac joints; straight leg raising caused back pain at 40 degrees on both sides.

Buxton returned to Dr. Gunderson on May 26, 2005, with the films and report of the January 11, 2005 MRI. Dr. Gunderson testified the MRI showed no disk herniation of the lumber spine; he stated the discs were “normal.” The narrowing of the spinal column was a congenital condition, not related to the accident. Nevertheless, Buxton’s symptoms were right leg numbness, bilateral hip numbness, and right greater than left low back pain. Dr. Gunderson recommended a myelogram and further tests, and in his record of the May 2005 visit, he recorded the patient’s current work status as “no duty.”

Uln his deposition, Dr. Gunderson summarized his diagnosis as diminished sensation in the S-l dermatone on the right; the right Achilles reflex was absent; and tenderness about the L3-L5 level on both sides.

Dr. Gunderson did not see Buxton again until September 27, 2007, seven months after Buxton incurred injuries when the automobile he was driving collided with a cow on February 25, 2007. On that date, he was immediately transported to Lake Charles Memorial Hospital where he was treated at the emergency room for bilateral open mandible fractures, a fractured nose, chest wall contusions, cervical inju-ríes and other injuries to his face and head. After he was stabilized, he was transferred to the LSU Medical Center in Shreveport, where he underwent surgery to reduce the open bilateral mandible fractures. The record contains pictures of the automobile that was damaged by the collision with the cow; the vehicle is crushed from the cow’s hitting the windshield and causing a cave-in over the driver’s seat.

When Buxton consulted Dr. Gunderson in September of 2007, his complaints, according to the doctor, were constant “neck pain radiating down to between his shoulder blades” and “lower back pain going into both hips and down both legs, all the way to his feet.” Although Dr. Gunderson agreed that his symptoms were significantly different in 2007 than they were in 2005, his notation was that Buxton related all of his complaints to the original injury, i.e., the motorcycle/police unit accident; Bux-ton admitted he did hit a cow, but said all pain pre-existed the cow accident.

Dr. Gunderson reviewed MRIs taken on July 26, 2007. According to the report there were multiple levels of disk bulging at the left lower three levels in the lumbar spine. However, the doctor stated one cannot compare MRI reports of two different radiologists. When questioned by counsel for claimant about whether the cow accident aggravated Buxton’s previous back injury, Dr. Gunderson stated the cow 110accident “probably made it worse.” The doctor was of the opinion that Buxton needed a myelogram and that he is “probably” going to need a posterior laminecto-ry and fusion with pedicle screws. He also thought the cow accident made the need for surgery of both the neck and lower back more likely than before the cow accident.

It is undisputed that following the cow accident, in November of 2007, Dr. R. Dale Bernauer of the Bernauer Clinic in Lake Charles was of the opinion the Buxton needed surgery to his neck and his back, especially his lower back. However, Dr. Bernauer offered no opinion regarding causation.

At the second trial in 2008, the parties introduced the entire record from the first trial and joint exhibits, including the Gun-derson deposition. They also entered a stipulation that: Buxton’s weekly wage was $490.86; Buxton resigned his employment with the police department on June 9, 2004; and defendant is entitled to a credit of $6,666 for Buxton’s settlement with the motorcycle rider’s insurer. It was also undisputed that Iowa paid all of the expenses Buxton incurred with Dr. Kang and Dr. Gunderson.

After taking the matter under advisement, the hearing officer rendered judgment in favor of Buxton, awarding temporary and total disability benefits in the amount of $327.24 per week, beginning September 1, 2004, the date on which Dr. Kang had noted Buxton needed time to recover. The judgment also held Iowa liable for the “reasonable and necessary medical treatment for the injuries to his lumbar spine by Dr. Gunderson.” Iowa’s credit of $6,666 was recognized.

Iowa perfected a suspensive appeal. The appellate court affirmed the decision of the hearing officer. Buxton v. Iowa Police Department, 08-0980 (La.App. 3 Cir. 2/4/09), 3 So.3d 641 (Buxton II). Upon application by Iowa, this court granted a writ. Buxton v. Iowa Police Department, 09-0520 (La.4/24/09), 7 So.3d 1201.

DISCUSSION

As we previously noted, Buxton has relied on this court’s holding in Kelly v. City of New Orleans, supra, and on the provisions of LSA-R.S. 23:1101(C). Iowa has challenged that reliance by urging that the second accident was an independent, superceding cause of any disability that claimant has at the present time. Although these issues are fact intensive, we must examine the statutory provisions, as well as the principles enunciated in the jurisprudence, to determine their application to the facts evidenced by the record. Our analysis is complicated by the fact that aggravation of a previous on-the-job injury was not an issue in the first trial on the merits because the second accident did not occur until approximately eight months after the hearing officer dismissed Bux-ton’s claim on the grounds of waiver for having refused a drug test following the on-the-job accident. It was not until the second trial, after remand, and the subsequent second appeal, Buxton II, that the issue of the employer’s responsibility for a subsequent aggravation of a previous on-the-job injury was addressed. Even then, the hearing officer did not specifically mention the issue or even acknowledge the employer’s defense of intervening cause.

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. LSA-R.S. 23:1031. This court has stated that under this statute a successful claimant’s proof must show personal injury which is the result of an accident, which accident arises out of and in the course of employment. Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119, 122 (La.1982). The chain of causation required by the statutory scheme as adopted by the legislature in LSA-R.S. |1223:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. Id. The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. See Chapman v. Belden Corporation, 428 So.2d 396, 400 (La.1983). (Medical testimony, along with claimant’s testimony, suggested only a possibility of a causal relation between his employment and his disability.); see also, Anthony v. BE & K Construction, 32,729 (La.App. 2 Cir. 5/10/00), 760 So.2d 608, writ denied, 2000-1673 (La.9/15/00), 768 So.2d 1280. In Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974), this court stated:

Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testi-. mony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.

Although it was conceded by the parties that Buxton suffered an accident on May 7, 2004, which accident arose out of and in the course of his employment with the Iowa Police Department, the above stated rules apply equally to the facts of this matter, which involve an off-the-job aggravation of an on-the-job injury. As the court of appeal noted in Buxton II, Iowa’s appeal (and its subsequent application for writ to this court), while couched in terms of three assignments of error, essentially focuses on its contention that the injuries following the incident in which Buxton struck the cow was not causally related to the motorcycle collision.

Under certain circumstances an aggravation of an injury initially sustained at work is regarded as compensable, obligating the employer to continue paying compensation benefits, even though the aggravation develops away from the premises |iaand when the claimant is no longer employed by the employer. Stewart v. Hospitals Affiliates International, Inc. of Baton Rouge, 404 So.2d 944, 945 (La.1981) (A fall at home was causally connected to an at-work injury that weakened claimant’s leg.) The aggravation is regarded as a development of the initial accident even though the aggravation develops away from the employer’s premises after employment has terminated. Id. The Louisiana jurisprudence is consistent with “[mjost jurisdictions” wherein the general rule is that “natural consequences that flow from the primary injury are compensable absent an independent intervening cause.” (Emphasis supplied.) Karenina M. Darmer, Worker’s Compensation for Off-Site Aggravation of Employment-Related Injuries-Blackwell v. Bostitch, 591 A.2d 381 (R.I.1991), 26 Suffolk U.L.Rev. 529, 532-533 n. 18, citing Hanover Insurance Company v. Allstate Insurance Company, 554 So.2d 1261, 1264-1265 (La.App. 1 Cir.1989) (Parties stipulated that the off-the-job automobile accident occurred before claimant had fully recovered from surgery to his knee necessitated by a work injury; the surgeon testified the knee was still highly susceptible to injury.) Commentary has noted that “[i]f, as might be the case with an automobile accident following the work-related accident, there is no causal relationship between the two injuries, any complications [ought] properly to fall outside the employer’s responsibilities.” 13 H. Alston Johnson, III, Louisiana Civil Law TREATISE: WORKERS’ COMPENSATION § 236 at 555 (4th ed.2002).

The key question is the relationship between the second injury and the initial, work-related injury. The courts have held that an accident occurring away from work is compensable, where the work-related injury has not healed at the time of the accident, and as such, rendered the employee susceptible to further aggravating injuries. See Hughes v. General Motors Guide Lamp Division, 469 So.2d 369, 376 (La.App. 2 Cir.1985) (Testimony of two physicians, plus that of lay witnesses, established an “overwhelming preponderance of the evidence” of a causal relationship between the two injuries.)

Another example is Carter v. Rockwood Insurance Company, 341 So.2d 595 (La.App. 2 Cir.1977), which arose when an employee’s continued weakness in her leg initiated by an on-the-job accident caused a fall in the bath tub. The second accident, which resulted during normal activity, was a natural and anticipatable consequence of the work-related accident. The work-related injury prevented plaintiff from catching herself and thereby was a contributing cause of the fall itself; the work-related injury caused plaintiff to fall with greater force than she otherwise would have, contributing to the severity of the fall; the work-related injury had caused osteoporosis of the leg bone and thereby contributed to the severity of the second injury. The court concluded the nature of the original knee injury was such that the chance of subsequent re-injury was a foreseeable risk and consequence. Carter, 341 So.2d at 598-600.

In the instant case, the court of appeal cited Kelly for the proposition that the employer is liable for medical expenses caused by aggravation of Buxton’s on-the-job injury, and Buxton relies on Kelly in his brief to this court. However, the factual situation in Kelly is significant. Kelly was a City of New Orleans policeman who was riding in a patrol car which was hit by a motorcycle. He and his partner were on duty, answering an emergency call, when the substantial impact occurred. Kelly’s left shoulder dislocated and then pushed back into place, resulting in severe pain. According to the treating physician, Kelly’s ligaments were damaged as a result of the | ^automobile accident, and that accident, combined with an earlier injury to the same shoulder when Kelly was a police cadet, increased the possibility of future dislocations. A future dislocation did occur, while Kelly was swimming; it was undisputed that his swimming was not an on-the-job activity. This court held that Kelly’s subsequent shoulder dislocation that occurred off the job was a mere continuation and aggravation of his on-the-job injuries, not a new, unrelated injury.

Nevertheless, Buxton relies on the general statement in Kelly that an “aggravation of a work-related injury is compensa-ble even if it occurs away from work.” Kelly, 414 So.2d at 772. He argues that the “foreseeability” requirement enunciated in Dickerson v. Kroger, 509 So.2d 813, 816 (La.App. 1 Cir.1987) (and reiterated in Hollingsworth v. East Baton Rouge School Board, 94-0518 (La.App. 1 Cir. 12/15/95), 666 So.2d 376), writ denied, 96-0165 (La.3/15/96), 669 So.2d 422, is an added requirement never mentioned in the earlier jurisprudence, including \KKelly. This argument overlooks the factual situation which prompted the general statement in Kelly. This court explained that undisputed medical evidence proved that the first two on-the-job injuries “predisposed” Kelly to the swimming injury. The latter occurred while Kelly was still partially disabled and under treatment. Surgical correction was required following the swimming injury because of Kelly’s employment accidents. Id.

In the instant case, the record contains no proof that the serious injuries from the cow accident were related to the on-the-job accident and injury. In Louisiana, as in the majority of states, there is a requirement that the subsequent injury flow from the work-related injury and not be caused by an intervening accident wholly unrelated to the work-related injury. 26 Suffolk U.L.Rev. at 532-533 n. 18. Kelly is illustrative: the subsequent injury flowed from the work-related injury, resulted from an every-day activity, and was not caused by an intervening accident unrelated to claimant’s employment. This court held that the surgery which became necessary because of the non-work related injury, was compensable because medical testimony indicated that there was a 75 percent probability that such an injury would occur because the policeman’s ligaments had been weakened by the work-related accidents. In the instant ease, there was no proof that Buxton was predisposed to injury by the motorcycle accident. Dr. Gun-derson was the only doctor to testify following the second accident; he stated in his deposition that the second injury, in his opinion, “probably made [the previous back injury] worse.” There was no evidence that the work-related injury predisposed Buxton to future injury such as disc problems in the lumbar region that appeared after the severe collision with the cow, but not before. In Kelly, further medical treatment was required because of the employment accidents, not because of an intervening automobile accident. In the instant case, the|i7only evidence of the necessity of surgery for a back injury stems from the subsequent collision involving the cow, not from the motorcycle accident.

Simply stated, in Kelly, it was proven that the work-related injuries were a cause of the injury suffered away from work. Conversely, in this matter, there is no proof the work-related injury pre-disposed the claimant to the injuries sustained in the non-work-related accident or that medical treatment subsequent to the non-work-related accident was required because of the employment accident.

As this court stated in Haughton v. Fireman’s Fund American Ins. Companies, 355 So.2d 927, 929 (La.1978): “If an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job connected accident.” However, “[w]hen there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability.” Id. Haughton was employed as a common laborer. While on the job, he stumbled while carrying a heavy timber and fell, breaking his left thigh bone. He was hospitalized, and the fracture was surgically reduced and fixed with a steel plate and screws. Post-surgery tests suggested a bone marrow disorder, which was subsequently diagnosed as multiple myeloma. The break was thought to have been a “pathological fracture,” caused by weakening of the walls of the bone. In addition to the orthopedic treatment, Haughton was placed under the care of a hematologist for the control and treatment of the myeloma. The orthopedic surgeon ascribed a 25 percent residual disability to the left leg “as a result of the injury and subsequent surgery.” When the employer discontinued compensation benefits on the grounds that Haughton was totally disabled by the myeloma and not the broken leg, Haughton brought an action claiming workers’ compensation benefits 11sfor total disability allegedly caused by the work-related injury. The trial court judgment denying compensation was affirmed by the court of appeal. Haughton v. Fireman’s Fund American Ins. Companies, 349 So.2d 385 (La.App. 4 Cir.1977).

This court granted certiorari and reversed. Haughton, 855 So.2d 927. We noted that causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence. We found there was no evidence of an intervening cause. Nothing happened to Haughton after the accident except his failure to recover; he did not suffer a new accident or disease; the disease he had when the accident occurred contributed to the injury itself. In the instant case, the accident involving the cow is the new accident that was lacking in Haughton.

We note that the appellate court in the instant case relied on the manifest error standard of review in its affirmation of the hearing officer’s decision to hold the employer liable for medical expenses incurred subsequently to the cow accident. Factual findings in workers’ compensation cases are subject to the manifest error rule. Winford v. Conerly Corporation, 04-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Taylor v. Hollywood Casino, 41,196 (La.App. 2 Cir. 6/28/06), 935 So.2d 293; City of Shreveport v. Casciola, 43, 132 (La.App. 2 Cir.3/26/08), 980 So.2d 203.

Under the manifest error rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The manifest error standard applies even when the decision of the workers’ compensation hearing officer is based upon written reports, records, or | ^depositions. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992); Alexander v. Brookshire Grocery Company, 42,855, p. 3 (LaApp. 2 Cir.1/9/08), 975 So.2d 100, 102, writ denied, 08-0503 (La.4/25/08), 978 So.2d 367.

Unlike Haughton, supra, this case presents evidence of an intervening cause; the accident involving the cow obviously had no relation to the job Buxton formerly held with the city. Buxton did not seek medical treatment for the initial injury during the two-year period between his last visit with Dr. Gunderson and the second accident; this substantial gap in treatment went wholly unexplained; the need for surgical intervention was never mentioned prior to the cow accident; the objective evidence was that before the second accident Bux-ton’s lower back discs were “normal” and after the second accident they were herniated. All of these facts were sufficient to refute the only testimony regarding causation noted by the hearing officer in his oral reasons for judgment, ie., the oblique statement by Dr. Gunderson that the cow accident “probably made” the on-the-job back injury worse.

Thus, we reject claimant’s argument that proof of any aggravation of an on-the-job injury by a subsequent accident which is not job related is sufficient to make the employer liable for continued compensation benefits. In this matter, there was simply insufficient proof that the work-related injuries were a cause of the injury suffered away from work, and the hearing officer was manifestly erroneous in failing to so find.

In addition to claimant’s argument that the foreseeability requirement was not mentioned by this court in Kelly or otherwise, he argues that in 1989, the legislature 12n“overruled” the foreseeability requirement articulated in Dickerson, supra, by an amendment to LSA-R.S. 23:1101, which added the following provision:

C. For purposes of this Section, “third person” shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.

Claimant concludes that “the standard is now simply whether or not the injury caused by the third party aggravated the employment related injury. If so, the employer is obligated to pay benefits.” Claimant has cited no authority for this conclusion other than LSA-R.S. 23:1101.

We find this argument untenable. Louisiana Revised Statutes 23:1101 is entitled “Employee and employer suits against third persons; effect on right to compensation.” Obviously, this legislation addresses employee and employer rights and remedies against third-person tortfeasors. This legislation, by its terms, does not confer new rights on employees vis-a-vis their employers. In the situation presented by the instant case, there is no third person.

Thus, we hold that the record before us does not support the decision of the hearing officer to hold Iowa liable for continued treatment of Buxton’s lower back injuries by Dr. Gunderson, and we reverse that portion of the judgment.

We turn now to the issue of Bux-ton’s entitlement to TTD benefits. Again, we are bound by the manifest error standard of review.

|2iA workers’ compensation claimant seeking temporary or permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. Greis v. Lake Charles Memorial Hospital, 97-1258, p. 5 (La.App. 3 Cir.3/6/98), 709 So.2d 986, 988, writs denied, 98-0937, 98-0939 (La.5/15/98), 719 So.2d 467. This burden of proof is statutorily mandated. Louisiana Revised Statute 23:1221 provides, in pertinent part:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(1) Temporary total.
(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
(c) For purposes of Subparagraph (l)(a) ... compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. [Emphasis added.]

Thus, to be entitled to TTD benefits a claimant must present clear and convincing evidence that he is unable to work at any type of employment whatsoever because of his physical condition; the fact that he would be working in pain is not proof that he is totally disabled.

The judgment rendered in favor of Bux-ton awards him temporary and total disability benefits in the amount of $327.24 per week, beginning September 1, 2004. 122The only evidence relating to that date is Dr. Kang’s notation in a handwritten report introduced by Buxton at the first trial; Dr. Kang wrote that Buxton needed “time to recover.”

The hearing officer’s decision to award TTD benefits beginning on September 1, 2004, for an injury incurred in a May 7, 2004 on-the-job accident is an acknowledgment that the claimant did not prove disability prior to that time. Dr. Kang’s report and his deposition testimony made it clear that his treatment of Buxton from the date of the accident until his last visit on August 16, 2004, was based on Buxton’s subjective complaints of back pain; the doctor even acknowledged consideration of Mrs. Buxton’s opinion regarding her husband’s need for an MRI of the lower back. Consistently, Dr. Kang’s treatment of Bux-ton was geared toward alleviating the patient’s pain.

Although counsel for claimant was present at Dr. Kang’s deposition on June 15, 2005, he did not question the doctor. Thus, Dr. Kang never testified concerning Buxton’s claimed disability. Instead of any testimony confirming the employee’s claimed disability, Dr. Kang testified that Buxton wanted to go back to work on July 8, 2004, but the doctor did not want him to do heavy duty.

Similarly, both Buxton and his wife testified at the first trial on June 15, 2006. Buxton stated he had not worked since the May 7, 2004, because of his back and neck pain. Mrs. Buxton confirmed that her husband suffered from back pain since the accident. Neither witness gave any other reasons for his not being employed.

No other evidence concerning the period of time from May 7, 2004, until September 1, 2004, was introduced at the second trial, despite the appellate court’s statement in Buxton I that the record was insufficient for the court to make a determination of the disability issue.

I23TI1US, the hearing officer’s decision to award TTD benefits from September 1, 2004, was based on one statement by Dr. Kang that he needed “time to recover.” Clearly, this was not clear and convincing evidence of total disability. The hearing officer committed manifest error in finding Buxton had carried his burden of proof to entitle him to benefits beginning on that date.

Having found the date chosen by the hearing officer for the start of TTD benefits was manifestly erroneous, we have examined the record de novo to determine whether claimant satisfied his burden of proving total disability by evidence of factors or events occurring subsequent to September 1, 2004.

The only other medical evidence relating to Buxton’s claimed disability consists of Dr. Gunderson’s medical records and his deposition testimony. It is undisputed that Buxton was totally disabled following the cow accident, but we have decided that issue adversely to claimant. Therefore, the only relevant portions of Dr. Gunder-son’s records and/or testimony are those that relate to the claimant’s condition prior to the cow accident.

Dr. Gunderson examined Buxton twice prior to the cow accident, on April 26, 2005, and again in May of 2005. The record is silent as to the reason for Bux-ton not returning to Dr. Gunderson or not pursuing the tests that the doctor recommended at the May visit. The only objective evidence that supported Buxton’s complaints of pain were the observations summarized by Dr. Gunderson, ie., diminished sensation in the S-l dermatone on the right; the right Achilles reflex was absent; and tenderness about the L3-L5 level on both sides.

After examining the MRI films and report of January 11, 2005, Dr. Gunderson stated the lumbar discs were “normal,” with some narrowing of the spinal column that was a congenital condition.

I^Dr. Gunderson was deposed on December 4, 2007, when he was examined by counsel for claimant and counsel for the employer. Counsel for claimant asked a few questions about recuperation time if Buxton were to have the neck and back surgery to repair the injuries incurred in the cow accident. In light of our decision regarding the injuries incurred in the cow accident, that testimony is not relevant to the issue of TTD benefits. There is no testimony in the deposition related to the issue of the patient’s disability prior to the cow accident.

As to the issue of disability, claimant introduced the report of the April 26, 2005 visit with Dr. Gunderson which, as previously noted, has a checkmark at “IS NOT ABLE TO RETURN TO WORK” and a written remark of “no duty.” Again, in May of 2005, Dr. Gunderson noted “no duty.” Those reports, along with the testimony in the first trial of claimant and his wife concerning claimant’s inability to work because of pain, comprise the entire case for the claimant regarding entitlement to TTD benefits. Claimant and his wife apparently chose not to testify in the second trial despite the appellate court’s observation that the record from the first trial was insufficient for a decision on disability.

Claimant’s meager evidence is insufficient to satisfy his burden pursuant to LSA-R.S. 23:1221(l)(e).

Further, as the employer has pointed out, claimant’s evidence has been refuted by several factors. First, claimant’s application for unemployment compensation benefits contains an acknowledgment that he was able to work. Next, in July 2004 claimant reported to Dr. Kang that he was ready to go back to work. He renewed his complaints of pain to Dr. Kang on August 16, 2004, four days following the denial of his application for unemployment compensation benefits. The 2005 MRI showed “normal” discs in the lower back, as contrasted to the bulging discs shown in the 2007 IgfiMRI, subsequent to the second accident. Finally, between claimant’s visit in May 2005 to Dr. Gunderson and the cow accident, there was a unexplained gap in claimant’s seeking medical treatment of over two years duration that went unexplained, despite his opportunity to testify at a second trial. When Buxton returned to Dr. Gunderson after the cow accident, he attempted to relate his back injury to the on-the-job accident. Nevertheless, Dr. Gunderson agreed his symptoms were significantly different in 2007 than they were in 2005, when he had last seen Buxton.

As this court has previously stated, a workers’ compensation claimant must meet his burden of proof, despite the fact that procedural rules are construed liberally in favor of the claimant. Prim, 297 So.2d at 422. If the evidence leaves probabilities equally balanced or shows only possibilities, his case must fail. Id. Especially in light of the enhanced burden of clear and convincing evidence, our de novo review of the record convinces us that the evidence of temporary and total disability is insufficient to support the hearing officer’s award of TTD benefits. Accordingly, we reverse the judgment in favor of Marvin W. Buxton in its entirety.

REVERSED.

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

      . The court of appeal also noted that as a result of the search, a criminal charge was filed against Buxton's wife.

      . LSA-R.S. 23:1081 provides employers with several defenses to a claim by an employee. Paragraph (l)(b) provides that an employee may not recover compensation if his injury was caused by intoxication, unless the employee’s intoxication resulted from activities which were in pursuit of the employer's interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee’s work hours. Paragraph (5) provides an employee is presumed to be intoxicated if there is evidence of use of a nonprescribed controlled dangerous substance. Paragraph (7)(a) provides an employer has the right to order drug testing immediately after the on-the-job accident. According to Paragraph (7)(b) and Paragraph (12), if the employee refuses to submit to the test, the employer is entitled to the presumption that the work-related accident arose as a result of the employee's intoxication. Paragraph (12) also provides that once the presumption arises, the burden shifts to the employee to prove by a preponderance of the evidence that the intoxication was not a contributing cause of the accident.

      . Similarly, the police units of both Kelly and Buxton were struck by a motorcycle. The similarity ends there.

      . Buxton reads this sentence too broadly and out of context. It is not every aggravation of a work-related injury occurring away from work which is compensable.

      . The word “foreseeability” is a legal term used to assist the courts in expressing the requirements of the general rule of causation. "Foreseeability” is the "quality of being reasonably anticipatable.” Black's Law Dictionary 660 (7th ed.1999).

      . Dickerson's workers’ compensation insurer sought to recover the benefits it had paid plaintiff in connection with a non-work injury he sustained in a slip-and-fall in a grocery store; plaintiff re-injured the knee he had previously injured in a work-related accident. The insurer relied on LSA-R.S. 23:1101(B) which provides a cause of action against third party tortfeasors "to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents” to "[a]ny person having paid or having become obligated to pay compensation under the provisions of this Chapter.” The court pointed out that this provision gave one who paid compensation benefits the right to recover from the tortfeasor. However, by its very terms, it applied only to injuries for which worker's compensation was payable, that is, work-related injuries. Citing Employer's Mutual Liability Ins. Co. v. Dixon, 425 So.2d 885, 886 (La.App. 4 Cir.1983) and Allstate Ins. Co. v. Theriot, 362 So.2d 1214, 1215 (La.App. 4 Cir.1978), rev’d on other grounds, 376 So.2d 950 (La.1979), the court concluded;
      If, however, a subsequent injury away from work was foreseeable, and came about as a result of the work-related injury having predisposed the victim to future injury, the subsequent injury is compensable under worker's compensation law. Kelly v. City of New Orleans, 414 So.2d 770, 772 (La.1982). We need not determine, however, whether this was the case in the present injury, since the parties stipulated that the injury was new, unforeseen, and not caused by the existing injury.

        Dickerson, 509 So.2d at 816.

      . It is difficult to determine from the record whether the hearing officer made a factual or legal error in holding the employer liable for medical expenses incurred after the cow accident. He never addressed causation of the second injury and/or the defense of intervening cause. However, out of an abundance of caution, we have applied the more stringent standard of review, the manifest error standard.

      . It is undisputed that the second accident occurred when the vehicle Buxton was driving hit a cow. The record is silent concerning the particulars of the accident, other than the pictures that illustrate the severity of the collision. Nothing in the record before us indicates the existence of a third party, such as the owner of the cow. We have no basis on which to conclude that LSA-R.S. 23:1101 is relevant to disposition of the issues presented.

      . Dr. Gunderson related the need for neck surgery solely to the cow accident. Thus, the portion of the judgment which we reverse casts the employer liable for medical treatment of the lower back only.


source: Caselaw Access Project

author:
PER CURIAM.
     JOHNSON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Ryan Marie SMITH.
    No. 2007-K-2028.
    Supreme Court of Louisiana.
    Oct. 20, 2009.
    Rehearing Denied Dec. 11, 2009.

      James D. Caldwell, Attorney General, Paul Carmouche, Dist. Atty., Lea R. Hall, Jr., Catherine Marion Estopinal, Asst. Dist. Attys., for Applicant.
    Margrett Ford, New Orleans, for Respondent.
   PER CURIAM.

h The state charged defendant and Raul Jorge Castro by bill of information with armed robbery in violation of La. R.S. 14:64. The cases severed when Castro entered a plea of guilty as charged on the day before trial. Following trial by jury, defendant was found guilty as charged and sentenced to 12 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appealed her conviction and sentence to the Second Circuit, which found that the evidence presented at trial appeared sufficient to support her conviction as a principal to the crime of simple robbery but not to the charged offense of armed robbery because the state had failed to establish that defendant knew or intended that Castro would arm himself with a gun immediately before confronting the victim in a Wal-Mart parking lot and snatching her purse from a shopping cart within her control. The court of appeal accordingly vacated defendant’s conviction for armed robbery, entered a judgment of guilt for simple robbery in violation of La. R.S. 14:65, and remanded for resentencing. State v. Smith, 42,302 (La.App.2d Cir.8/15/07), 962 So.2d 1190 (Brown, C.J., dissenting from denial of rehearing). We granted the state’s application to review the | gdecision below and reverse because we disagree with the premise of the Second Circuit’s opinion that “[t]o be a principal to armed robbery, the State must prove beyond a reasonable doubt that a defendant knew that her co-offender would arm himself with a dangerous weapon.” Smith, 42,302 at 4, 962 So.2d at 1193.

On a late August afternoon in 2005, Tammy Rogers rolled her shopping cart through a pelting rain storm to the rear of her SUV parked on the lot of a Wal-Mart on Mansfield Road in Shreveport. Rogers held an umbrella against the rain and she had placed her purse on top of the items stacked in the shopping cart. She popped the rear hatch of her vehicle to begin loading her purchases into the back when she noticed a small white car stop nearby. Rogers at first thought the occupants were looking for a shopping cart. Instead, an Hispanic man jumped out of the vehicle, ran around, grabbed Rogers’s purse out of her cart, then jumped back into the car, which sped away. Rogers could not tell whether the man had anything in his hand because he was holding his arm down at his side and the confrontation had happened “very fast.” However, she observed that the vehicle had at least two other occupants.

The Hispanic male was Raul Jorge Castro and, as he admitted when he entered a guilty plea to armed robbery, he had been armed with a small, black powder hand gun. Castro was defendant’s boyfriend and they had arrived in Shreveport only days earlier from Arkansas in a stolen white Kia sedan. They were staying with defendant’s aunt in Shreveport and on the afternoon of August 9, 2005, they drove to the Wal-Mart in the company of Cody Duos, defendant’s 17-year-old cousin, and his younger brother, Dillon. Both boys sat in the back seat of the vehicle as defendant drove and Castro occupied the front passenger seat. Cody Duos testified at trial that along the way, Castro talked about removing the license plate from the car, although they were ostensibly going to the Wal-Mart only to buy some groceries. When they arrived at the Wal-Mart, defendant began driving up and down the parking lot aisles for “like just a little while,” bypassing open parking places as she and Castro discussed looking for people |swith umbrellas. Defendant then stopped briefly and Castro climbed into the back seat of the car. Cody did not notice that Castro had anything in his hand when he joined him in the back seat as defendant continued cruising the parking lot but he heard defendant and Castro discuss that Rogers would be an “easy snatch” when they spotted her. After defendant stopped, Cody noticed for the first time that Castro had a gun in his hand as he stepped out of the car and rushed towards the victim. According to Cody, defendant also got out of the car and went “[straight for the lady’s purse.” He testified that defendant then snatched the purse from the cart as Castro stood next to her with a gun and pointed it at the victim “like a little above her head just a bit.” After defendant and Castro jumped back into their car with Rogers’s purse, defendant “just started driving.... She got lost, and they ditched the purse,” but not before Castro removed Rogers’s check book and several credit cards. Defendant eventually drove to a Kentucky Fried Chicken where they used one of Rogers’s checks to pay for food at the take-out window. Cody testified that as they headed back to the residence of defendant’s aunt, defendant threatened to tie him up and beat him if he mentioned the purse snatching to anyone and Castro drove home the point by waving the gun in his face as he warned that he would kill him and his brother if he talked.

On August 11, 2005, officers from the Caddo Parish Sheriffs Office acted on tips that a redheaded woman and an Hispanic male were passing bad checks and could be found at the address of defendant’s aunt, and located the white Kia parked outside the residence. The officers ran the plate number on the vehicle and determined that it had been reported stolen in Arkansas. They knocked on the door and spoke with defendant’s aunt, who told them that the car belonged to defendant and Castro and that they were staying with her. After speaking with Cody and determining that defendant and Castro had passed a bad check at Kentucky Fried Chicken, the officers ran a check and found out that Tammy Rogers had made a report of a robbery two days earlier. They searched the white Kia and recovered the check book and credit cards taken from Rogers, along with |4two black powder pistols. Cody then led the officers to the location where Castro had discarded Rogers’s purse and the police recovered that item as well. At trial, Cody Duos identified one of the guns as the weapon he had seen in Castro’s hand as he got out of the car and approached Tammy Rogers.

Following her arrest, defendant gave a statement to the police in which she initially denied any knowledge of the Rogers offense, but eventually admitted that she had been present and that, “We took a lady’s purse.” However, she denied any knowledge that Castro had used a gun. At trial, defendant testified that after they arrived at Wal-Mart, she gave the wheel to Cody and climbed into the back seat with Castro after Dillon got up front to sit next to his brother. “We stopped the vehicle,” defendant told jurors, “Jorge got out with the gun in his hand, stole the purse out of the lady’s buggy, jumped back in the car, and we took off.” Defendant identified the silver black powder pistol recovered from the Kia as the weapon Castro had held in his hand as he approached Rogers. According to defendant, Cody was still at the wheel when they drove away and defendant claimed that Cody and Dillon then got “out of the car down in the ditch and threw the purse in the woods.” Defendant denied that she wrote out one of Rogers’s stolen checks, claiming that Castro had done so, but admitted that she then passed the check at the take-out window in return for their order. Defendant again claimed that she had not planned to rob anyone, that she “never intended on any of that to happen,” and that she never armed herself with a weapon or used one in any fashion on that day. She also denied threatening Cody after the offense. Defendant explained to jurors that she had initially lied in her statement to the police because she was coming off “ice,” or crystal methamphetamine, which had produced a “speedy mind loss.”

In his guilty plea colloquy on the day before defendant’s trial, Castro acknowledged his role in the Rogers offense and confirmed that defendant had been involved as well. The state introduced a transcript of that colloquy at defendant’s trial, but when it called Castro to testify, he sought to distance himself Isfrom any statements made during his plea implicating defendant, explaining that he had been nervous and “just wanted to get it over with,” and that what he had meant to say was that defendant may have been present at the time but was not involved in any fashion with his snatching of Rogers’s purse. Castro had signed an affidavit to that effect which the defense introduced at trial in counterpoise to the state’s introduction of its witness’s plea colloquy. Castro also testified that he had “no use of force, intimidation, or nothing” toward the victim, and testified that he had been armed not with one of the black powder handguns in the car but with a silver crowbar that he discarded after the offense. Castro testified that he had entered his guilty plea to armed robbery only because, “I wasn’t getting any counsel to the best of my ability.” However, Castro eventually admitted that while he alone had approached Rogers, defendant knew that he intended to rob someone at Wal-Mart. When asked by the prosecutor whether defendant “knew that you were armed with that gun and you took that purse,” Castro replied, “Yes, sir.”

In his closing argument to jurors, the prosecutor made no effort to reconcile the divergent accounts of the confrontation in the Wal-Mart parking lot given by Cody Duos and Tammy Rogers. “What’s really germane here,” he argued to jurors, “is whether [defendant is] involved.... No matter how you think the robbery went down, it’s not really a question that it was a robbery ... that it was armed. It’s not really a question that she was involved ... [as] a principal to that offense ... [and] just as guilty as everybody else.”

In reviewing the evidence presented at trial, the court of appeal also made no effort to resolve the discrepancies in the accounts of the actual confrontation in the parking lot. However, it concluded that the jurors “chose to believe the testimony of Defendant’s young cousin, Cody, as opposed to Defendant and Castro,” at least •with respect to the circumstances leading up to the confrontation and the events which then took place following the offense. Smith, 42,302 at 12, 962 So.2d at 1197. Thus, evidence “that Defendant was the driver of the getaway vehicle and that Defendant was involved in the planning, commission and, later, | nan attempted coverup of the offense,” established, “[b]y all aspects of the definition of principal to the offense,” that defendant “could be found guilty as a principal based on any of her actions before, during and after the offense.” Id., 42,302 at 11, 962 So.2d at 1196.

However, in determining exactly what offense defendant had committed, the court of appeal found that “[t]he evidence is insufficient ... to establish that Defendant had any knowledge or intent that Castro would arm himself with a dangerous weapon.” Id., 42,302 at 12, 962 So.2d at 1197. Defendant denied any such knowledge and no other witness at trial “provide[d] any evidence that Defendant knew or anticipated that Castro would arm himself with a weapon.” Id. The court of appeal thus concluded that defendant “did not have the requisite mental state ... to be a principal to armed robbery.” Id. At the same time, the majority on the panel concluded that defendant was a principal to the crime of simple robbery, and not merely to a theft, because Tammy Rogers did not “give up the purse of her own will, nor was it merely taken secretly.” Id., 42,302 at 14, 962 So.2d at 1198. Thus, evidence that the victim “was openly and quickly approached by a man in the heavy rain who grabbed her purse, which was in her close proximity,” gave jurors a rational basis for finding “that such a situation was, at the very least, intimidating.” Id. The majority decision accordingly modified defendant’s conviction from armed robbery to simple robbery and remanded the case to the trial court for resentencing in accord with La. R.S. 14:65. In his dissent to the denial of rehearing, Chief Judge Brown emphasized evidence that defendant “drove the car, specifically looked for and identified a victim and immediately after the robbery passed the victim’s check at KFC,” and defendant’s own testimony that “she saw her boyfriend with a ‘silver gun.’” Smith, 42,302 at 1, 962 So.2d at 1198 (Brown, C.J., dissenting from denial or rehearing). In his view, that evidence fully supported the jury’s verdict and the majority had “simply reweighed the evidence which is constitutionally prohibited and reduced the conviction.” Id.

|7As an initial matter, we agree with Chief Judge Brown that viewing the evidence in a light most favorable to the prosecution, as a reviewing court must under the due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a rational trier of fact could find from Castro’s testimony that defendant knew he had a gun and from defendant’s testimony that she saw Castro with a gun when he confronted the victim, that defendant was fully aware Castro would arm himself when they discussed looking for easy targets as she played the aisles in the Wal-Mart parking lot. However, even assuming, arguendo, that rational jurors would interpret the testimony to mean only that defendant observed Castro with a gun at the moment he snatched Tammy Rogers’s purse and that, as appellate counsel argues, she only then realized that Castro had deviated from their plan calling for an “easy snatch” by “in essence, calling an unnecessary audible,” we remain in agreement with the dissent that the evidence at trial fully supported the jury’s verdict that defendant was guilty as a principal to the crime of armed robbery.

Some jurisprudential support exists for the position taken by the court of appeal and defendant that defendant must have subscribed to Castro’s decision to arm himself before he stepped from the car to render her a principal in the offense of armed robbery. See State v. Doucet, 93-1523, p. 6 (La.App. 3rd Cir.5/4/94), 638 So.2d 246, 249 (reducing first degree robbery conviction to simple robbery because “[t]he evidence does not support a conclusion that the defendant knew of the existence of the knife before or during the robbery or that [the co-perpetrator] might lead the victim to believe that he was armed with a dangerous weapon.... Additionally, [the co-perpetrator] testified that the defendant was not aware that he had a knife on his person until after the robbery.”); State v. Smith, 450 So.2d 714, 716-17 (La.App. 4th Cir.l984)(redueing armed robbery conviction to simple robbery because the evidence revealed that the co-perpetrator spontaneously armed himself with a hammer belonging to the victim in the middle of the robbery and used it to intimidate the victim while defendant stood on the other side of the lacounter urging his accomplice to get all of the money but not mentioning the hammer). Both decisions rely on the general rule that “[a]ll principals to a crime are not necessarily guilty of the same grade of the offense. A principal may be convicted of a higher of lower degree of the crime, depending upon the mental element proved at trial.” Smith, 450 So.2d at 717 (citing State v. Holmes, 388 So.2d 722 (La.1980)). Thus, under Smith and Doucet, the requisite intent of a principal who concerns himself in a robbery by aiding and abetting another in the commission of the offense is the intent to commit either armed or simple robbery, and in the latter case, the intent of the co-perpetrator to arm himself before or during the offense may not be imputed to the principal.

However, neither Doucet nor the Fourth Circuit’s Smith, nor the Second Circuit’s decision in the present case for that matter, takes into account a general principle of accessorial liability that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other, including “ ‘deviations from the common plan which are the foreseeable consequences of carrying out the plan.’ ” State v. Smith, 98-2078, p. 7 (La.10/29/99), 748 So.2d 1139, 1143 (quoting 2 Wayne R. LaFave and Austin Scott, Substantive Criminal Law, § 7.5, p. 212 (1986)). The rule has particular application in cases of felony murder. Thus, a simple burglary may turn into an aggravated burglary and then escalate further into a second degree felony murder well beyond the original plan of the defendant or his accomplice who then unexpectedly kills during commission of the underlying felony offense. See, e.g., State v. McFarland, 07-0026, p. 10 (La.App. 5th Cir.5/29/07), 960 So.2d 1142, 1148 (affirming conviction for second degree felony murder in the course of an aggravated burglary because “the fact that the defendant claimed he did not know [the co-perpetrator] was armed does not absolve him from responsibility, as the risk that the unauthorized entry of an inhabited dwelling may escalate into violence and death is a foreseeable consequence of burglary which every party to the offense must accept no matter what he or she actually intended.”)(citing Smith, |998-2078 at 7, 748 So.2d at 1143). An armed robbery planned by defendant may also escalate into a second degree felony murder when co-perpetrator kills to facilitate his escape from the scene. State v. Wiley, 03-0884, p. 14 (La.App. 5th Cir.4/27/04), 880 So.2d 854, 864. Louisiana courts have also given the rule broader application beyond felony murder. See State v. Wix, 02-1493, p. 10 (La.App. 4th Cir.1/15/03), 838 So.2d 41, 48 (defendant guilty of aggravated battery when co-perpetrator shot victim during an armed robbery because “it is foreseeable that an armed robbery victim may be shot during the perpetration of the robbery, particularly when both of the perpetrators, as in the instant case, held weapons on the victim.”); but see State v. 35,409, pp. 9-10 (La.App. 2nd Cir.9/26/01), 799 So.2d 563, 569 (trespassing defendant not guilty of criminal damage to property because co-perpetrator’s use of box cutter to carve initials into swimming pool liner was not a foreseeable consequence of entering the property to use the pool without permission).

Professor LaFave has cautioned against applying the rule of foreseeable deviation too broadly beyond the special context of felony murder doctrine. 2 Wayne R. La-Fave, Substantive Criminal Law, § 13.3(b)(2nd ed. 2002)(“[G]eneral application of the ‘natural and probable consequence’ rule of accomplice liability is unwarranted. A’s guilt as an accomplice to one crime should not per se be a basis for holding A accountable for a related crime merely because the latter offense was carried out by A’s principal, for this as well would result in A’s guilt of a crime as to which he did not have the requisite mental state.”). In fact, some jurisdictions have modified the rules of felony murder by providing a statutory affirmative defense for the principal who participates in the underlying felony without knowledge or good reason that his co-perpetrator is armed and bent on a lethal result. See, e.g., Ark.Code Ann. § 5-10-102(b) (Michie 2002) (affirmative defense to the crime of felony murder if defendant (1) does not commit, solicit or aid in anyway the homicidal act; (2) was not armed with a deadly weapon; (3) “[reasonably believed that no other participant was armed with a deadly weapon;” |inand (4) “[reasonably believed that no other participant intended to engage in conduct that could result in death or serious bodily injury.”); Conn. Gen.Stat. Ann. § 53a-54c (West 2007)(same); Colo. Rev.Stat. 18-3-102(2)(2008) (same, but adding the requirement that the defendant “[ejndeavored to disengage himself from the commission of the underlying crime or flight therefrom immediately upon having reasonable grounds to believe that another participant is armed with a deadly weapon ... or intended to engage in conduct likely to result in death or serious bodily injury.”).

However, Louisiana statutory law does not provide that kind of affirmative defense in any context, and application of the foreseeable deviation rule in the present case does not carry the risk of convicting defendant of an offense for which she did not have the requisite intent. Under present law, armed robbery is a general intent, not specific intent, crime. An offender therefore has the requisite intent when “from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his pai't to have accomplished such result.” State v. Elzie, 343 So.2d 712, 714 (La.1977); R.S. 14:10. Thus, “in the case of armed robbery, when the proof shows that the perpetrator armed with a dangerous weapon causes another to surrender to him whatever was the object of the robbery, the necessary criminal intent has been furnished by the very doing of those criminal acts.” Holmes, 388 So.2d at 727.

In the present case, the evidence at trial showed, and defendant does not dispute, that she and Castro drove around the Wal-Mart parking lot looking for “an easy snatch.” Although by implication they were looking for targets of easy | nopportunity that did not call for excessive force, the offense they contemplated, purse snatching, is a crime of violence, R.S. 14:2(B)(24) that entails misappropriation by the use of force. La. R.S. 14:65.1. Defendant was therefore accountable for Castro’s decision to arm himself with the black powder pistol before he stepped from the car even if she did not know at any point before Castro got out of the car and approached the victim that he had a weapon and would have it in hand when he snatched the victim’s purse, and even if she remained behind in the car while Castro rushed towards the victim’s shopping cart. Castro’s decision to take the gun to increase the odds of success in the event the victim offered unexpected resistance was an entirely foreseeable consequence and inherent risk 1 iaof the original plan to commit a crime of violence by snatching Tammy Rogers’s purse. The crime escalated from purse snatching to armed robbery when the armed Castro rushed at the victim and snatched her purse in a face-to-face confrontation. Although Rogers did not see anything in Castro’s hand (whether held at his side or pointed at her head) and did not testify that she felt threatened or feared for her life, and although Castro insisted that he had used no force or violence directed towards the victim, we agree with the Second Circuit that the circumstances were sufficiently intimidating for a rational trier of fact to find that Castro’s taking amounted to a robbery because an ordinary person in Rogers’s position reasonably could have inferred a threat of bodily harm from the onrushing Castro if she resisted. Cf. United States v. Gipson, 383 F.3d 689, 699 (8th Cir. 2004)(for purposes of 18 U.S.C. § 2113(a), defining bank robbery as the taking “by force and violence, or by intimidation,” the element of intimidation “is satisfied if an ordinary person in the position of a victim teller or bank employee reasonably could have inferred a threat of bodily harm from the robber’s actions.”); State v. Pasek, 691 N.W.2d 301, 306 (S.D.2004)(adopting federal objective standard of intimidation under state statute defining first degree robbery committed by means of force or fear)(citing Gipson).

Thus, even assuming that the jury did not credit Cody’s testimony that Castro held out the black powder pistol aimed at the victim’s head while defendant stood at his side snatching the victim’s purse, the evidence, viewed in a light most | ^favorable to the prosecution, permitted a rational trier of fact to find that Castro had committed an armed robbery and that defendant was a principal to the crime because she counseled and encouraged Castro in the commission of a crime of violence and then shared in the proceeds after fleeing the scene. The decision of the court of appeal is therefore reversed, defendant’s conviction and sentence for armed robbery are reinstated, and this case is remanded to the district court for purposes of execution of sentence.

DECISION OF COURT OF APPEAL REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED.

JOHNSON, J., dissents and assigns reasons.

JONES, J., dissents for reasons assigned by JOHNSON, J.

JOHNSON, J.,

dissents and assigns reasons.

| ¶ This case involves a robbery that occurred in a Wal-mart parking lot. Raul Jorge Castro (Castro) was charged with armed robbery in violation of La. R.S. 14:64. Ryan Marie Smith (Smith) was also charged, as a principal, with armed robbery for her role in the offense. Smith and Castro were tried separately.

At Smith’s trial, the victim testified that while she was unloading items from her shopping cart into her vehicle, a man exited from a white car, grabbed her purse from her shopping cart, and escaped. Smith was the driver of the vehicle. The victim testified that she saw at least two other people inside of the getaway car, but she was unable to determine whether the man who robbed her (Castro) was holding anything in his hands, and she did not see a gun. Smith testified that she did not have any knowledge that Castro planned to arm himself with a weapon or that a weapon was present in the car before the robbery. A jury found Smith guilty of armed robbery and sentenced her to twelve (12) years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

The Court of Appeal, Second Circuit, found that the evidence was insufficient to establish that Smith had knowledge that Castro would arm himself with a dangerous weapon to commit the robbery. The Court of Appeal noted that:

All principals to a crime are not necessarily guilty of the |2same grade of offense. State v. Doucet, 93-1523 (La.App. 3d Cir.5/4/94), 638 So.2d 246. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427; State v. King, 06-554 (La.App. 5th Cir.1/16/07), 951 So.2d 384. To be a principal to an armed robbery, the State must prove beyond a reasonable doubt that a defendant knew that her co-offender would arm himself with a dangerous weapon. Doucet, supra.

The Court of Appeal properly found that the evidence was sufficient to convict Smith of simple robbery because this robbery involved (1) a taking, (2) of something of value, (3) from a person or in the immediate control of another, (4) by the use of force or intimidation, (5) but not armed with a dangerous weapon. La. R.S. 14:65.

Given the facts present in this case, the defendant’s conviction was properly modified to simple robbery. Finding no error, I would not disturb the Court of Appeal judgment.

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

      . Before the 1983 amendment of R.S. 14:64, armed robbery was a specific intent crime because it required proof of a theft from the victim, i.e., an intent to deprive the victim permanently of his or her personal possessions. See State v. Johnson, 368 So.2d 719, 722 (La.1979). However, the 1983 amendment of R.S. 14:64 substituted “taking” for “theft” and armed robbery thereby became a general intent crime. State v. Gordon, 504 So.2d 1135, 1142, n. 4 (La.App. 5th Cir.1987). However, even under former law, the requisite specific intent was to commit a theft, not to use a dangerous weapon. The latter element has always been a matter of general intent, i.e., the offender intends to arm himself because in fact he arms himself before, during, or immediately after, committing a robbery.

      . Other states have taken divergent views of whether the mere snatching of a victim's personal effects without any additional force directed toward the victim constitutes robbery or larceny. See Peter G. Guthrie, Annot., Purse Snatching as Robbery or Theft, 42 A.L.R.3d 1381, 1383 (1972)("[T]he rule prevailing in most jurisdictions [is] that the mere snatching or sudden taking of property from the person of another does not itself involve such force, violence, or putting in fear as will constitute robbery[.]”); see also 3 Wayne R. LaFave Substantive Criminal Law, § 20.3(d), pp. 181-82 (2nd ed. 2003)("The great weight of authority ... supports the view that there is not sufficient force to constitute robbery when the thief snatches property from the owner's grasp so suddenly that the owner cannot offer any resistance to the taking. ”)(footnote omitted).
      However, legislatures remain free to denominate taking by sudden snatching as a species of robbery and not of larceny. Thus, Florida defines the offense of robbery by sudden snatching as the taking of money or other property from the victim’s person when "in the course of the taking, the victim was or became aware of the taking.” Fla. Stat. Ann. § 812.131(l)(West 2000); see Brown v. State, 848 So.2d 316 (Fla.App. 2nd Dist.2003). The statute specifically provides that the state need not show that the offender "used any amount of force beyond that effort necessary to obtain possession of the money or other property,” or that the victim offered any resistance or suffered any injury.
      Similarly, in Louisiana, the crime of purse snatching is defined as "the theft of anything of value contained within a purse or wallet at the lime of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.” (emphasis added). The offense constitutes a particular and more serious species of misappropriation with violence when the offender is not armed with a dangerous weapon, i.e., simple robbery in violation of La. R.S. 14:65, because it carries a maximum term of imprisonment of 20 years at hard labor, nearly three times as great as the maximum penalty provided for simple robbery.
      However, unlike the Florida statute, R.S. 14:65.1 does not require that the victim know at the time of the taking that his or her property is taken or snatched. It therefore remains possible in Louisiana to "snatch” a victim's purse from her possession without her awareness at the time of the taking. See State v. Anderson, 418 So.2d 551, 552 (La. 1982)(defendant guilty of purse snatching when he grabbed victim's purse placed on floor between her legs as she sat watching a football game unaware of the taking until after it occurred); compare McNeamey v. State, 210 Ga.App. 582, 436 S.E.2d 585 (1993)(evidence that victim was leaning over and unloading groceries into her car from the opposite end of her shopping cart when defendant grabbed her purse from the cart without her knowledge did not support conviction for robbery by snatching; victim learned of the crime only when bystander informed her that defendant had taken her purse). An anomalous consequence of the rule in Anderson is that a defendant may commit the more serious offense of purse snatching under circumstances in which he does not commit the less serious offense of simple robbery because the offense did not entail the use of any more force than the act of snatching or any act of intimidation to separate the victim from her property.

      . Even assuming that jurors did not credit the testimony of Cody Duos that Castro raised his gun to the head of the (unaware) victim, R.S. 14:64(A), defining the crime of armed robbery, does not require that the offender “use” a dangerous weapon during commission of the offense, or accomplish the robbery by means of a dangerous weapon; it requires proof only that the offender was “armed” during the offense. Compare Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)(18 U.S.C. § 924(c)(1), which proscribes "use” of a firearm in relation to a drug trafficking crime requires proof that the defendant actually employed a gun in relation to the drug offense.); cf. Ga.Code Ann. § 16-8-41(a)(2007)("A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”).
      In the present case, and in terms of the potential danger to Tammy Rogers, it made little difference whether Castro pointed his pistol at the victim’s head as he snatched her purse or held it at the ready at his side. In either case, he was “armed” during commission of an offense which involved misappropriation accompanied by the use of force or intimidation.

      . State v. Smith, 42,302, (La.App. 2 Cir. 8/15/07) 962 So.2d 1190, 1194.


author: WALTER J. ROTHSCHILD, Judge.

text:
    DOLLAR THRIFTY AUTO GROUP, INC. & Dollar Systems, Inc. v. BOHN-DC, L.L.C., d/b/a Don Bohn Dodge and ABC Insurance Co.
    No. 08-CA-338.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2008.
    Rehearing Denied Oct. 28, 2008.
    Writ Denied Jan. 30, 2009.
    William F. Bologna, John C. McNeese, Dwight L. Acomb, Attorneys at Law, New Orleans, Louisiana, for Plaintifl/Appellant.

      Burgess E. McCranie, Jr., Donna Bram-lett Wood, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

|2Plaintiffs, Dollar Thrifty Automotive Group, Inc. and Dollar Systems, Inc. (“Dollar”), appeal a summary judgment rendered in favor of defendant, Bohn-DC, L.L.C. d/b/a Don Bohn Dodge (“Bohn”), dismissing Bohn from this lawsuit. For the reasons which follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In August 2005, Dollar, which is in the business of leasing vehicles to the public, delivered eight of its vehicles to Don Bohn Dodge for repair and/or maintenance services. On August 29, 2005, Hurricane Katrina made landfall. In the aftermath of the hurricane, floodwaters engulfed much of New Orleans and the surrounding areas, including the premises of Don Bohn Dodge. The eight vehicles owned by Dollar were damaged or destroyed by these floodwaters. Bohn asserts that over 300 of its vehicles were damaged or destroyed as well.

|3On August 28, 2006, Dollar filed a Petition for Damages against Bohn, asserting that Bohn was negligent and/or in breach of contract by failing to safeguard Dollar’s vehicles to insure they were not lost or damaged by Hurricane Katrina, failing to exercise ordinary prudence in preserving Dollar’s vehicles, failing to take the same precautions to protect Dollar’s vehicles as it took to preserve its own vehicles, and failing to notify Dollar that it could not or would not protect Dollar’s vehicles that were entrusted to Bohn.

On September 24, 2007, Bohn filed a Motion for Summary Judgment, seeking dismissal of Dollar’s suit against it on the grounds that any flood damage to Dollar’s vehicles was caused by a fortuitous event, Hurricane Katrina, and that Bohn could not be held liable for such damage. Bohn asserted that it acted as diligently and prudently as possible to protect the vehicles in its care, fulfilling any duty it had as an onerous depositary. It further stated that Bohn did not have any reasonable or practical place or “safe haven” to move over 300 vehicles prior to evacuating due to a major hurricane approaching. In support of its Motion for Summary Judgment, Bohn submitted an affidavit from Andy McGoon, a loss control manager working for Group 1 Automotive, Inc., in which he indicated that Bohn had an inventory of 357 new vehicles at Don Bohn Dodge on August 29, 2005, and that 327 of these vehicles were totaled due to floodwaters emanating from Hurricane Katrina. He further stated that the vehicles that were not flooded were assigned to management employees or offsite for accessories installation or other reasons. He further asserted that Bohn did not have the manpower to relocate its own vehicles or the vehicles of others at the time.

Dollar filed an Opposition to Bohn’s Motion for Summary Judgment, in which it claimed that Bohn failed in its legal duty as a depositary to diligently and prudently protect Dollar’s vehicles. It asserted that Bohn cannot rely on the “Act |4of God” defense, because Bohn’s fault preceded the Act of God, i.e. Hurricane Katrina, since Bohn failed to take preventative measures to protect Dollar’s property. Dollar claims that Bohn should have moved its vehicles to a less flood-prone area, particularly since Bohn’s premises had flooded in the past, or that Bohn should have notified Dollar that its premises had previously flooded so that Dollar could retrieve and move its own vehicles. Dollar submitted an affidavit from Greg Gebo, the manager of the Dollar Thrifty location near the airport in Jefferson Parish, who stated that he investigated and discovered that Bohn’s premises had previously flooded on May 8, 1995. He further stated that if Dollar had known of the flood-prone nature of Bohn’s premises or its lack of manpower to relocate Dollar’s vehicles, Dollar would have retrieved its vehicles and relocated them to an area that would not flood.

A hearing on Bohn’s Motion for Summary Judgment was held on November 5, 2007, and the trial judge granted the motion. On December 18, 2007, the trial judge signed a written judgment, granting Bohn’s Motion for Summary Judgment and dismissing it from this lawsuit. It is from this judgment that Dollar appeals.

LAW AND DISCUSSION

On appeal, Dollar contends that the trial court erred in granting Bohn’s Motion for Summary Judgment and dismissing Bohn from this lawsuit. We disagree.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 04/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. A motion for summary judgment is properly granted only if the pleadings, ^depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Hayne v. Woodridge Condominiums, Inc., 06-923 (La.App. 5 Cir. 4/11/07), 957 So.2d 804, 807; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195.

Dollar contends that the trial court erred in failing to properly apply the law of deposit to the circumstances of this case, improperly applying the law governing the affirmative defense of Act of God, and failing to recognize that Bohn’s failure to move Dollar’s vehicles or to notify Dollar of its flood-prone location constituted breach of its duties as an onerous depositary.

LSA-C.C. art. 2926 provides:

A deposit is a contract by which a person, the depositor, delivers a movable thing to another person, the depositary, for safekeeping under the obligation of returning it to the depositor upon demand.

LSA-C.C. art. 2930 provides:

When the deposit is onerous, the depositary is bound to fulfill his obligations with diligence and prudence.
When the deposit is gratuitous, the depositary is bound to fulfill his obligations with the same diligence and prudence in caring for the thing deposited that he uses for his own property.
Whether the deposit is gratuitous or onerous, the depositary is liable for the loss that the depositor sustains as a result of the depositary’s failure to perform such obligations.

In the present case, the parties agree that when Dollar delivered its vehicles to Bohn for maintenance and/or repairs and Bohn accepted the vehicles, an onerous contract of deposit was established. An onerous depositary owes a duty to exercise reasonable care and to take precautions against reasonably foreseeable danger to | f,deposited property. Broussard v. Paul Fournet Air Service, Inc., 574 So.2d 541, 542 (La.App. 3 Cir.1991), writ denied, 578 So.2d 934 (La. 1991). When a deposit is not returned as made, a presumption arises of the depositary’s negligence or fault, and the depositary has the burden to show that the loss or damage to the deposit was occasioned other than by his own negligence. National Auto Ins. Co. v. Champ’s New Orleans Collision Center, L.L.C., 06-1144, p. 4 (La.App. 4 Cir. 2/28/07), 954 So.2d 197, 199. However, a depositary is not an insurer of the deposit, and is not liable for loss or deterioration of the thing deposited that has resulted from an irresistible force or “force majeure,” in the absence of a special undertaking. Id.; LSA-C.C. art. 2930, comment (c).

The civilian concept of force majeure, meaning a superior or irresistible force, is similar to the common law concept of “Act of God,” which has been defined as:

a providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care, or by the use of those means which the situation renders reasonable to employ.

Saden v. Kirby, 94-854 (La.9/5/95), 660 So.2d 423, 428; Caldwell v. Let the Good Times Roll Festival, 30,800, p. 17 (La.App. 2 Cir. 8/25/98), 717 So.2d 1263, 1272, writ denied, 98-2489 (La.l1/25/98), 729 So.2d 566.

A hurricane that causes unexpected and unforeseeable devastation with unprecedented wind velocity, tidal rise, and upriver tidal surge, is a classic case of an “Act of God” or force majeure. National Auto Ins. Co. v. Champ’s New Orleans Collision Center, L.L.C., 06-1144 at 4, 954 So.2d at 199; Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 00-2754, p. 6 (La.App. 4 Cir. 11/14/01), 803 So.2d 86, 92, writ denied, 01-3292 (La.3/8/02), 811 So.2d 887. Clearly, Hurricane Katrina, with its unprecedented flooding and devastation, was a force majeure or Act of God that was unforeseen and unavoidable.

17Pollar claims that Bohn cannot rely on the Act of God defense in this ease because the prior fault of Bohn combined with Hurricane Katrina to cause the damage to Dollar’s vehicles. Dollar asserts that Bohn was negligent and failed in its duty to safeguard Dollar’s vehicles by failing to move the vehicles to a safe location prior to the hurricane and/or failing to notify Dollar that Bohn’s premises had flooded in the past and that Bohn lacked the manpower to move the vehicles. Dollar asserts that it would have moved its own vehicles to a safe location if Bohn had provided this information.

Dollar is correct in its assertion that when a force majeure or Act of God combines with the conduct of a defendant to produce an injury, the defendant may be held liable for any damages that would not have occurred but for its own conduct or omission. Saden, 94-854 at 8, 660 So.2d at 428. See also LSA-C.C. art. 1873. However, Dollar has failed to show that Bohn’s actions were not reasonable under the circumstances or that Bohn breached its duties as an onerous depositary, which combined with the hurricane to cause damage to Dollar’s vehicles.

The flooding and devastation in the aftermath of Hurricane Katrina was unforeseen and unprecedented. Although Dollar claims that Bohn had a duty to move Dollar’s vehicles to a safe location, we do not find that Bohn had such a duty under the circumstances. Bohn has indicated that it did not have the manpower to move Dollar’s vehicles or its own vehicles, and that it did not have an alternate location or “safe haven” to move the vehicles. Considering the circumstances, including the mandatory evacuation order in New Orleans and the surrounding areas, the time constraints involved, and the number of vehicles on Bohn’s premises, we find that Bohn’s failure to move Dollar’s vehicles to a different location was not unreasonable.

| ^Dollar further asserts that Bohn should have informed Dollar that its premises could flood, because it had previously flooded on May 8, 1995. Flooding is a common occurrence during a major storm. Failure to give warning of the obvious may not be a cause in fact of an injury. Caldwell, 30,800 at 16, 717 So.2d at 1271. Further, we note that Dollar has not indicated that it contacted Bohn before the storm to ask about prior flooding in the area. Nevertheless, as stated by Bohn, prior flooding was not an accurate indicator of the flooding in the aftermath of Hurricane Katrina. Although the manager of Dollar indicated that Dollar would have moved its vehicles to a location that “would not flood,” under the circumstances, we find that it was difficult, if not impossible, to know prior to the storm what areas would and would not flood, due to the unforeseen and unprecedented extent of the flooding in the aftermath of Hurricane Katrina.

We have carefully reviewed the record in this matter, and we fail to find any genuine issues of material fact that would preclude summary judgment in favor of Bohn. The parties do not disagree as to the pertinent facts; rather, they disagree as to whether or not these facts show that Bohn exercised reasonable care. We find that the pertinent facts do not establish that Bohn failed to exercise reasonable care to take precautions against reasonably foreseeable damage to the deposited property, eight vehicles owned by Dollar. Based on our de novo review, we find that the trial court correctly found that Bohn is not liable for any damage to Dollar’s vehicles and granted Bohn’s Motion for Summary Judgment.

DECREE

For the foregoing reasons, we affirm the summary judgment granted in favor of Bohn, dismissing it from this lawsuit.

AFFIRMED.