author: COOKS, Judge. Conery, J.,

text:
    Jimmy WILLIAMS, Sr., et al. v. PLACID OIL COMPANY, et al
    16-839
    Court of Appeal of Louisiana, Third Circuit.
    08/02/2017

      Wells T. Watson, Jeffrey T. Gaughan, Baggett, McCall, Burgess, Watson & Gau-ghan, 3006 Country Club Road, Lake Charles, LA 70605, (337) 478-8888',' ATTORNEY FOR PLAINTIFFS/APPEL-LEES, Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows
    Lewis O. Unglesby, Lance Unglesby, Unglesby Law Firm, 246 Napoleon Street, Baton Rouge, LA 70802,' (225) 387-0210, ATTORNEY FOR PLAINTIFFS/AP-PELLEES, Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows
    Donald Kelly, William Townsend, Kelly and Townsend, P.O. Box 756, Natchitoch-es, LA 71457, (318) 352-2353, ATTORNEY FOR PLAINTIFFS/APPELLEES, Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows
    Joseph B. Morton, Richard M. Crump, Ebony S. Morris, Marón Marvel Bradley Anderson & Tardy LLC, 201 St. Charles Ave., Suite 2411, New Orleans, LA 70139-6001, (504) 684-5100, ATTORNEY FOR DEFENDANT/APPELLANT, Ingersoll-Rand Company
    H. Alston Johnson, III, Phelps Dunbar LLP, 400 Convention Street, • Suite 1100, P.O. Box 4412, Baton Rouge, LA'70821-4412, (225) 346-0285, ATTORNEY FOR DEFENDANT/APPELLANT, Ingersoll-Rand Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.- Cooks, Elizabeth A. Pickett, John E. Conery, and D. Kent Savoie, Judges,
   COOKS, Judge.

I ¡¡On August 9, 2003, Myra Williams died at the age of 59. Several months prior to her death, Myra was diagnosed as having incurable, malignant mesothelioma. She endured a difficult and painful battle with that disease until her death. Myra was married to Jimmy Williams, Sr. and was the mother of four children.

Jiiiimy was exposed to asbestos fibers while working at the Placid Oil Facility in Natchitoches, Louisiana. Jimmy unknowingly brought the cancer causing fibers and dust home on his clothing after each day of work. Myra would handle and wash Jimmy’s clothing, and sustained what is commonly referred to as bystander asbestos exposure. It is undisputed that Myra’s constant exposure to Jimmy’s work clothing caused her mesothelioma.

Jimmy and the- four children filed suit on March 16, 2004, against several defendants, namely Placid Oil Company, Inger-soll-Rand Company, Petro-Hunt, L.L.C., LLECO Petroleum Products, Inc,, Cana-dianOxy Offshore Production Co., J. Graves Insulation Company, Inc., Shreveport rubber & Gasket company, Anco In-sulations, Inc., Garlock, Inc., General Electric Company, DHEC Corporation. Plaintiffs’ suit included both a survival action filed on behalf of Myra and wrongful death actions on behalf of Jimmy and the four children against the defendants. Soon after filing suit, Plaintiffs dismissed Pe-tro-Hunt, CanadianOxy, DHEC, Anco and LLECO without prejudice. J. Graves Insulation filed a motion for summary judgment. That motion was unopposed by any party, and was granted by the trial court, dismissing Plaintiffs’ claims against it with prejudice. Prior to trial, Plaintiffs settled with Placid Oil, Shreveport Rubber & Gasket and LGeneral Electric. That left Ingersoll-Rand as the only named defendant that proceeded to trial.

Ingersoll-Rand was the manufacture? of ten compressors that were installed in the “compressor room” of the Placid Oil facility. The turbo chargers and exhaust pipes for each compressor were insulated with asbestos. Plaintiffs also elicited testimony that the Ingersoll-Rand compressors had asbestos gaskets on them, which came directly from Ingersoll-Rand.

Ingersoll-Rand argued the compressor insulation was covered with aluminum sleeves which prevented release of the asbestos fibers. This was disputed by several witnesses who maintained many of the exhaust pipes were not covered with aluminum sleeves. There also was testimony that the aluminum sleeves that were attached did not prevent release of asbestos dust in the compressor room.

The sole exposure expert to testify at trial, Frank Parker, stated the compressors emitted “very significant [asbestos] dust,” which was visible to the naked eye in the compressor room. Thus, he concluded Jimmy was exposed to huge concentrations of asbestos dust. Mr. Parker also opined there was no way Myra could have handled Jimmy’s clothing without suffering asbestos exposure.

After a three-day bench trial, the trial court issued a judgment, accompanied by written reasons for judgment. As to the survival action, the trial court found Placid Oil and Ingersoll-Rand were at fault in causing Myra’s mesothelioma and were each liable for their virile share. In regard to the wrongful death action, the trial court concluded that under the law Inger-soll-Rand was solely at fault in causing Myra’s mesothelioma. Myra was awarded $3,000,000.00 in damages for her survival action. As to the wrongful death actions, Jimmy was awarded $1,000,000.00, and each of the four children were awarded $750,000.00 each.

Ifilngersoll-Rand has appealed the judgment of the trial court, asserting the following assignments of error:

1. The trial court erred in concluding that plaintiffs had proven a causal connection between the decedent’s disease and Ingersoll-Rand Company products.
2. The trial court erred in declaring in a summary judgment that no fault could be allocated to J. Graves Insulation and that the judgment was a final judgment.
3. The trial court erred in assigning 50% responsibility to Ingersoll-Rand Company in the survival action.
4. The trial court erred in assigning 100% responsibility to Ingersoll-Rand Company in the wrongful death action.
5. The trial judge awarded excessive damages in the wrongful death action.

ANALYSIS

I. Ingersoll-Rand’s Liability.

Ingersoll-Rand argues the trial court erred in finding Plaintiffs proved a causal connection between Myra’s disease and Ingersoll-Rand’s products. Finding the evidence at trial established a causative link between Ingersoll-Rand’s compressors and Myra’s mesothelioma, we find this assignment of error without merit.

The uncontradicted evidence established the compressor room at the Placid Oil facility housed ten compressors manufactured by Ingersoll-Rand. The corporate representative for Ingersoll-Rand, Gerald Swimmer, acknowledged in his deposition that the Ingersoll-Rand compressors contained asbestos material. Testimony established the compressors required asbestos insulation because in normal operation the turbo chargers and exhaust pipes on the compressor could reach temperatures in excess of one thousand degrees fahrenheit. Frank Parker, Plaintiffs’ exposure expert, testified, at that time, the only available insulation was made of asbestos containing material.

|flTestimony established that the intense vibrations of the compressors while running caused the release of asbestos fibers and dust from the insulation into the air. The compressors ran continuously and the vibrations from the compressors could be felt before even entering the compressor room, Frank Parker stated the vibrations that occurred when the compressors were running was the main factor in asbestos dust and fibers being released into the air. He gave the following testimony at trial as to the enormity of the Ingersoll-Rand compressors and the dust that was emitted from them due to the vibrations:

So these, these are big, you just, I mean you just gotta see them to believe them. And so anything like insulation, that type of thing on them is [going to] have tremendous vibrations and creates uh, very significant dust.

Part of Jimmy’s duties required him to clean and sweep up the compressor room, which had the unintended effect of causing any settled asbestos fibers and dust to circulate back into the air while he was sweeping. Several witnesses, including Jimmy Williams, Sr., Bill Frazier and Frank Parker testified that the most obvious and likely cause for Myra’s asbestos exposure was Jimmy’s work in the compressor room. These witnesses all testified there was a constant level of asbestos dust in the compressor room that was actually visible to the naked eye in sunlight.

Ingersoll-Rand attempted to counter this testimony by maintaining the insulation on the compressors was covered with aluminum sleeves, which it argued prevented release of the asbestos fibers and dust. However, both Prentiss McLeod and Jimmy Williams, Sr. testified many of the turbo chargers and exhausts were not covered with aluminum sleeves. Most importantly, the great weight of the testimony, which the trial court accepted, established there was significant release of asbestos fibers and dust from the compressors.

Jjlngersoll-Rand complains in its brief that Plaintiffs have failed to establish an exact “dose” of exposure to asbestos. However, a plaintiff is not required to produce such proof to prevail in his/her action. As Plaintiffs point out, the court in Robertson v. Doug Ashy Building Materials, Inc., 10-1547 (La.App. 1 Cir. 10/4/11), 77 So.3d 323, 336, writ denied, 11-2468 (La. 1/13/12), 77 So.3d 972, addressed a similar argument, and stated, as follows:

we cannot find, nor have we been directed to, any authority for the trial court’s determination that a plaintiff must prove or that an expert must know the “dose” of asbestos as to each particular defendant in order to establish causation. Rather, based on our review of the jurisprudence, the plaintiff is only required to show “significant exposure to the [asbestos-containing] product complained of to the extent that it was a substantial factor in bringing about his injury.” Rando [v. Anco Insulations Inc.], 08-1163 at p. 35, 16 So.3d at 1091.

This standard of proof, developed by Louisiana courts over years of asbestos litigation, is known as the “substantial factor” test. Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169, p. 35 (La. 5/22/09), 16 So.3d 1065, 1091. Thus, a plaintiff must prove, by a preponderance of the evidence that: (1) her exposure to the defendant’s asbestos product was significant; and (2) that this exposure caused or was a substantial factor in bringing about her meso-thelioma. Id.

The record was replete with evidence that Myra’s mesothelioma arose from her exposure to asbestos while handling Jimmy’s work clothes and riding in the family vehicle, which was Jimmy’s transportation, to and from work. Frank Parker, Plaintiffs exposure expert, was adamant in his belief' that there was no way Myra could have handled, Jimmy’s clothing without suffering substantial exposure to asbestos.

Testimony by Ingersoll-Rand’s corporate representatives, Gerald Swimmer and Victor Weintraub, reflected that Ingersoll-Rand was aware of potential asbestos problems as early as the 1950’s. Frank Parker testified in the 1950’s, in connection with its sales to the United States Naval Academy, Ingersoll-Rand | ^became aware of the potential health hazards caused by exposure to asbestos. By 1971, OSHA had identified asbestos as a Class 1 health hazard. .

The record reflects Ingersoll-Rand was fully aware asbestos was a component part of its compressors. It also was aware of the potential health hazards-from exposure to asbestos. Despite this knowledge, there was no testimony that Ingersoll-Rand warned any Placid Oil employees, including Jimmy Williams Sr., about these potential health hazards.

For the reasons set forth above, we And no error on the trial court’s part in finding Myra’s exposure to asbestos as a result 'of Jimmy’s work with the Ingersoll-Rand compressors, was significant, and the exposure was a substantial factor in the development of her mesothelioma. This assignment of error is without merit.

II. Summary Judgment Dismissing J. Graves Insulation.

In its second assignment of error, Ingersoll-Rand asserts the trial Court erred by declaring, in a summary judgment, that J. Graves Insulation was not at fault and finding that the judgment was a final judgment.

Ingersoll-Rand alleges J. Graves was an insulation company that worked, at the Placid Oil facility at certain times during the period in question. J. Graves was named as a party defendant in Plaintiffs’ lawsuit. In response, J. Graves filed a motion for summary judgment. J. Graves supported its motion with sworn answers to interrogatories that it never “provide[d] asbestos-containing material to the Placid Oil facility.” Jimmy Williams, Sr. testified he remembered J. Graves performed some insulation work on pipes at the Placid Oil facility, but did not know how often J, Graves was on site and testified there Were other insulation companies who performed work there that he could not remember. J. Graves provided discovery responses. that the only products sold or used by it at the Placid Oil facility were used only for insulation of cold- processes; Thus, J. Graves ^maintained it was not responsible for Myra being exposed to any asbestos-containing materials used or supplied by J. Graves. ,

J. Graves’ motion was unopposed by any party, and was granted by the trial court pursuant to La.Code Civ.P. art. 966(G), dismissing Plaintiffs’ claims against it with prejudice. No appellate review was sought by any party, including Ingersoll-Rand, from the trial court’s judgment dismissing J. Graves. Despitethis, Ingersoll-Rand questions the propriety of the summary judgment in its quest to have J., Graves cast with liability for a virile share of the damages awarded by the trial court. We find' no merit in this argument, and-find. the motion for summary judgment granted in favor of J. Graves was a final and appealable judgment when rendered and signed. Ingersoll-Rand did not timely file an appeal attacking the correctness of that summary judgment and it is legally barred froin doing so now.

Plaintiffs also accurately note, even absent the summary judgment, under the provisions of La.Civ.Code art. 2324 at that time, as a solidarity obligor, Ingersoll-Rand could be cast in judgment for the full amount, including that portion allocated to J. Graves, unless Plaintiffs settled with J. Graves. Further, Ingersoll-Rand failed to introduce any evidence reflecting any work done by J. Graves at the Placid Oil facility, least of all any evidence that asbestos-containing material was actually installed or worked on by J. Graves.

Ill, Survival Action.

In this assignment of error, Ingersoll-Rand maintains the trial court erred' in assigning 50% responsibility to Ingersoll-Rand Company in the survival action. After a review of the record and evidence adduced at trial, we find no error in the trial court’s allocation of an equal virile share to both Ingersoll-Rand and Placid Oil.

hnThe Louisiana Supreme Court has held the current comparative fault law does not apply in asbestos exposure cases such as the instant one, where the substantial injury-producing exposures giving rise to plaintiffs’ claims occurred prior to the August 1, 1980. Cole v. Celotex Corp., 599 So.2d 1058 (La.1992). The Louisiana Su preme Court in Cole explained the reasoning for this as follows:

We conclude that the key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later. We further conclude that when the. tortious exposures occurring before Act 431’s effective date are significant and such exposures later result in the manifestation of. damages, pre-Act law applies.

Id., at 1066.

Ingersoll-Rand incorrectly argues that Placid Oil could have been assigned a greater percentage of fault. Pursuant to the law, pre-comparative fault law controls liability for the survival claims, and each liable defendant has an equal, virile share of the award provided to the plaintiffs. Id. As Plaintiffs note, Placid Oil was found strictly liable as the premise owner pursuant to La.Civ.Code art. 2317. At the time of Myra’s exposures, La.Civ.Code art. 2317 did not require a finding of knowledge of the danger. Placid Oil-was strictly liable solely because it was the premises owner, Under strict liability concepts,.-the mere fact of .the premise owner’s relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in 'custody. Thus, the trial court appropriately cast Placid Oil as liable for a single virile share for the survival damages awarded.

Ingersoll-Rand also ignores the applicable law in arguing its liability should be reduced because “for one third of the 21 years for which that sum was awarded, Ingersoll-Rand Company products had no causal role in his exposure.” As | n Plaintiffs note, it is irrelevant whether or not exposure occurred and ended at different intervals in time. It is only relevant that the evidence established “significant exposure to the asbestos-containing product complained of to the extent that it was a substantial factor in bringing about [the] injury.” Rando, 16 So.3d at 1091. As set forth above, the trial court did not err in finding Ingersoll-Rand’s products were a substantial factor in bringing about Myra’s mesothelioma; thus, Ingersoll-Rand is automatically responsible for an equal virile share under the law at the time of exposure.

Plaintiffs’ note, at the time of Myra’s exposure to asbestos, La.Civ.Code art. 2324 provided that a single solidary obligor could be compelled to pay the entire judgment. Touchard v. Williams, 617 So.2d 885 (La.1993). The underlying principal of soli-dary liability was to insure that the injured Plaintiff received full recovery. Under pre-1987 law, one solidary obligor could be obligated for the whole. Id. at 890. However, La.Civ.Code art. 2324 reserved to all parties their respective rights of indemnity and contribution. The trial court noted In-gersoll-Rand had the ability to seek a virile share reduction, but specifically found “Ingersoll-Rand failed to prove any other virile share liability.” The trial court further stated “Ingersoll-Rand has the same obligation as the Plaintiffs [sic] to prove its case. They did not call any witnesses or introduce any evidence on the issue of Third Party Fault.”

The trial court found, at most, In-gersoll-Rand only mentioned the involvement of several other entities, but did not prove any liability on their part in Myra’s exposure to asbestos. “When a defendant urges the fault of a non-party, it is incumbent upon that defendant to provide evidence which preponderates that fault actually exists on the part of the non-party.” Joseph v. Broussard Rice Mill, Inc., 00-0628, p. 8-9 (La. 10/30/00), 772 So.2d 94, 99, (citing Terro v. Casualty Reciprocal Exch., 93-593 (La.App. 3 Cir. 2/2/94), 631 So.2d 651, writ denied, 94 522 (La. 4/22/94), 637 So.2d 157); Smith v. Jack Dyer & Associates, 633 So.2d 694 (La.App. 1 Cir. 1993).

The trial court also found, as to the survival action, the “only parties against whom any claim was proven is Placid Oil and Ingersoll-Rand.” In its brief, Inger-soll-Rand argues the evidence below established fault on six other entities.

Initially, we note Garlock, Flexitallic and Pittsburgh-Corning (three of the six entities specifically named by Ingersoll-Rand), had been previously adjudged bankrupt. Applying La.Civ.Code art. 2324, as written at the time of the substantial exposure, a non-settling solidary defendant cannot reduce its liability through the insolvency of a co-defendant.

Thus, along with finding Ingersoll-Rand failed to provide any evidence of these parties’ fault, the trial court correctly found the applicable law at the time of Myra’s exposure did not allow a virile share offset or credit for the alleged liability of the entities listed to reduce Inger-soll-Rand’s responsibility for payment of the judgment. Moreover, we also find no error in the trial court’s finding that In-gersoll-Rand failed to provide any evidence as to any of the other specified parties’ alleged fault, and note as well that the judgment dismissing J. Graves is final. The record did not establish sufficient proof of any negligence on the part of Hudson Engineering. While the record did establish Hudson built the buildings at the Placid Oil facility, there was no mention of asbestos. Prentiss McCloud testified that Hudson insulated the compressors as per the instruction of Ingersoll-Rand. Inger-soll-Rand’s arguments as to Shreveport Rubber & Gasket are indicative of the lack of evidence established at trial. In its appellate brief, when briefly discussing Shreveport Rubber, Ingersoll-Rand states it was a “provider of | ^gaskets or of asbestos sheets from which Placid personnel made their own gaskets.” In support of that claim, Ingersoll-Rand cites the following testimony of Jimmy Williams, Sr.:

Q. Okay. Did you ever hear of a company called Shreveport Rubber and Gasket? ■
A. Yes sir.
Q. Uh, and isn’t it true that Placid bought their gaskets or some of their gaskets from Shreveport Rubber and Gasket?
A. I’m sure they did. They were a supplier of it.

This was the entirety of the testimony cited by Ingersoll-Rand that referred to Shreveport Rubber & Gasket. Although Mr. Williams testified they likely supplied gaskets, it was not stated they supplied asbestos gaskets nor was there any mention of Shreveport Rubber & Gasket supplying asbestos sheets. There also is no mention of what Shreveport Rubber & Gasket may have known or failed to do. Simply because Shreveport Rubber & Gasket settled with Plaintiffs does not meet Ingersoll-Rand’s burden of proof

As noted by the trial court, the appellate court in Roberts v. Owens-Corning Fiberglas Corp., 03-248, p. 14 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 642, discussed the burden a non-settling defendant must meet to find negligence on third parties:

Exxon correctly contends, and as Roberts’ experts stated, that any exposure or inhalation, of a respirable fiber, may cause lung disease. But our courts have, as a matter of policy, required that “the claimant must show that he had a significant exposure to the product complained of to the extent that it was a substantial factor in bringing about injury.” Bordelon, 96-0525 at p. 30, 726 So.2d at 948, cited in Abadie[ v. Metropolitan Life Ins. Co.], 00-344, 00-856 at p. 9 [ (La.App. 5 Cir. 3/28/01)], 784 So.2d [46,]at 65. The court in Abadie was very clear that a non-settling defendant must prove, not only that a settling defendant manufactured an asbestos-containing product, but also that the products were used in such a manner that dust was emitted. Evidence of the mere physical presence of asbestos-containing material is insufficient to find a manufacturer liable to a plaintiff. Abadie, 00-344, 00-856 at p. 92, 784 So.2d at 67.

luBased on our review of the record, the trial court’s finding that no other entity besides Ingersoll-Rand and Placid Oil was at fault in the survival action is not manifestly erroneous. The record is void of the required evidence for Ingersoll-Rand to meet its burden of proof on this issue.

IV. Wrongful Death Action.

Ingersoll-Rand argues in this assignment of error that the trial court erred in assigning 100% responsibility to it in the wrongful death action. Ingersoll-Rand argues in its brief that the “liability determination in a survival action and a wrongful death action is the same in every case unless the death did not result from the same cause that produced the injuries in the survival action.” As Plaintiffs note, this assertion is wholly without merit.

The Louisiana Supreme Court in Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262, addressed this issue. In Walls, the supreme court addressed whether the 1976 amendment to La.R.S. 23:1032, which provided for executive officer immunity, applied to a wrongful death claim where the decedent’s death from silicosis, contracted as a result of occupational exposure to silica dust, occurred well after the amendment’s effective date, but his exposure to the hazardous substance occurred prior to the amendment. The plaintiffs in Walls argued that the exposure theory in Cole, 599 So.2d 1058, should apply to their wrongful death claim, arguing that Cole requires all long-latency occupational lung disease cases to be governed by the law in effect on the date the victim was exposed to the disease causing agent.

The court in Walls rejected this argument, stating that “Cole should not be read so expansively.” Walls, 740 So.2d at 1270. In doing so, the supreme court explained that Cole involved a direct tort action, which, like all other actions, accrues upon the existence of both wrongful conduct and an injury. In long-latency disease cases, where the relevant injury is the victim’s disease, determining |1fithe exact moment of injury is virtually impossible. However, the court in Walls recognized that a different situation exists when the cause of action is one for wrongful death:

While we acknowledge the factual similarities between Cole and the instant case, we find the distinguishing factors dispositive, and reject the plaintiffs’ contention that Cole’s “tortious exposure doctrine” applies to determine the applicable law in the instant case.

Id. at 1271. After distinguishing Cole on the ground that the 1976 amendment to La.R.S. 23:1032 was not at issue in that case, which turned on the distinct language of Act 431 and the legislative intent expressed therein, the supreme court explained:

[T]he instant case does not involve a direct tort action or a survival action, such as gave rise to Cole, but instead presents an action for wrongful death. In Louisiana, it is well established that the survival action and the wrongful death action are two different causes of action that arise at different times.

Noting that the survival action and the wrongful death action are totally separate and distinct causes of action that arise at different times and allow recovery of completely different damages, the court concluded that although “Cole established the ‘exposure theory’ for determining the applicable law within the context of the direct tort action and survival action ... Cole’s rationale cannot apply to the instant case involving a wholly distinct cause of action for wrongful death.” Walls, 740 So.2d at 1273. Thus, the supreme court determined with regard to the wrongful death cause of action in long-term exposure cases, the law to be applied is the law in existence at the time of death.

The trial court correctly noted “[t]he wrongful death claim’s determined by the law at the time of death as differentiated from the survival claim determined by law at the time of the exposure.” The trial court also stated Ingersoll-Rand “is entitled to no additional percentage reduction absent proving it was more likely that not the fault of others.”

hfiThe trial court found Placid Oil was not at fault in the wrongful death claim as Ingersoll-Rand produced no evidence of any actual or constructive knowledge of Placid concerning any asbestos related dangers at its facility. As we discussed in relation to the survival action, under the version of La.Civ.Code art. 2317 in existence at the time of Myra’s substantial exposure to asbestos, there was no requirement that the premise owner have actual or constructive knowledge to impose strict liability.

However, in 2004, when Myra died, changes had been made to La.Civ.Code art. 2317 and La.Civ.Code art. 2317.1 applied. In relevant part, La.Civ.Code 2317.1 read as follows:

The owner or custodian of a thing is answerable per damages occasioned by its ruin, vice or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care and that he failed to exercise reasonable care.

The trial court found Placid Oil strictly liable in the survival action solely based on its capacity as the premise owner, not an employer. Ingersoll-Rand failed'to introduce any evidence of actual or constructive knowledge on Placid Oil’s part concerning any asbestos dangers posed by Ingersoll-Rand’s compressors to its employees. There was also no evidence that Ingersoll-Rand ever placed Placid Oil on notice of any potential hazards from working around its compressors.

Ingersoll-Rand cites the case of Warren v. Sabine Towing and Transp. Co., Inc., 01-573 (La.App. 3 Cir. 10/30/02), 831 So.2d 517, writs denied, 02-2926, 02-2927, 022936 (La. 2/14/03), 836 So.2d 116, 117, as supportive of its position that its apportionment of fault should be reduced in the wrongful death claim. In Warren, a survival action and wrongful death action were tried over the decedent’s battle with acute myelogenous leukemia as a result of alleged exposure to benzene during his employment. After a bench trial, the trial court assigned 33% fault to 117the employer and the balance to other entities in the survival action. In the wrongful’death action, no fault- was assigned to the employer. This court reversed and found the employer liable for 40% fault in both the survival action and wrongful death action.

Ingersoll-Rand asserts this case supports its position that “there is nothing in the record to support a different allocation of responsibility in the wrongful death action from that found in the survival action.” We disagree, and find the Warren case is distinguishable..from the present case. Importantly, both the survival action and wrongful death action in Warren were determined based upon a comparative fault system. Thus, the basis for our reversal in Warren is not present in the facts before us today. The survival action in this case is based on pre-comparative fault law and the wrongful death, action, is based on comparative fault, Thus, Warren is not analogous to the instant case.

After a thorough review of the record and applicable law, we find the trial court did not abuse its discretion in assessing one hundred percent- fault in the wrongful death action to Ingersoll-Rand. As discussed above, Ingersoll-Rand failed to produce evidence at trial to establish fault on the part of any other entities.

V. Wrongful Death Damage Awards.

In its' final assignment of error, Ingersoll-Rand asserts the $750,000.00 award to each of Myra’s children for their individual wrongful death action was excessive. Ingersoll-Rand does not challenge the trial court’s award of $1,000,000.00 to Jimmy Williams, Sr.

This court in Raymond v. Government Employees Ins. Co., 09-1327, p. 3 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, 1190-91, writ denied, 10-1669 (La. 10/08/10), 46 So.3d 1268, this court discussed the appellate review of damages:

The supreme court recently reiterated the principles of appellate review of damages in Guillory v. Lee, 09-75, pp. 14-16 (La. 6/26/09), 16 So.3d 1104, 1116-1118:
It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La. 10/17/00), 774 So.2d 70, 74. This court has noted:
[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.
Perkins v. Entergy Corp., 00-1372 (La. 3/23/01), 782 So.2d 606, reh’g denied, 4/27/01 (quoting Canter v. Koehring, 283 So.2d 716, 724 (La. 1973)) (superseded by statute on other grounds). Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., et al., 623 So.2d 1257, 1261 (La.1993), reh’g denied, 10/7/93.
The role of an appellate court in reviewing a general damages award, one which may not be fixed with pecuniary exactitude, is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. This court has long held true to the following principle:
[bjefore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.
Wainwright, 00-0492, p. 6, 774 So.2d at 74 (quoting Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La. 1977) (internal citations omitted)). See also Miller v. Lammico, 07-1352, p. 28 (La. 1/16/08), 973 So.2d 693, 711 (stating that an appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion and citing Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993)); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993); Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Furthermore, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. (citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978) and Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985)). Moreover, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Perkins, 782 So.2d at 612 (citing Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La. 7/5/94), 639 So.2d 216, 221). Reasonable persons frequently disagree about the measure of damages in a particular case. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn, 623 So.2d at 1261.

Specifically, wrongful death claims are meant to compensate the survivors designated by La.Civ.Code art. 2315.2 for their own injuries arising from the loss of the decedent. “The elements to consider in making an award of wrongful death damages include loss of love and affection, loss of services, loss of support, medical expenses, and funeral expenses.” Raymond, 40 So.3d 1191, citing Smith v. Municipality of Ferriday, 05-755 (La.App. 3 Cir. 2/1/06), 922 So.2d 1222, writ denied, 06-934 (La. 9/29/06), 937 So.2d 860.

Ingersoll-Rand’s main objection to the amounts awarded to each of the Williams’ children is that they were adults at the time of Myra’s death and not minor children. Thus, Ingersoll-Rand argues the $750,000.00 wrongful death damage awards made to the two minor children in Raymond, 40 So.3d 1179, and | anthe $2,500,000.00 wrongful death award made to a ten year old child for the death of her mother in Rachal v. Brouillette, 12-794 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137, writ denied, 13-690 (La. 5/3/13), 113 So.3d 217, are distinguishable based on that factor. While we agree awards given to minor children for the wrongful death of a parent are typically higher than those given to adult children, that factor alone does not necessarily render the awards in this case excessive.

All four children, as well as several other witnesses, testified that Myra was the center of the Williams’ family. All family events and holiday gatherings were usually held at Myra and Jimmy’s. The children testified that family gatherings and even holidays together were much less frequent following Myra’s death. Both Williams’ daughters testified that Mother’s Day, which in the past was a cause for celebration, was now an extremely difficult day to endure.

Each child testified, in heartbreaking detail, regarding the loss they suffered as a result of their mother’s death. The record was clear that Myra’s last few months were extremely painful as tumors ravaged her body, breaking through her rib cage and encasing her heart. Each child testified as to the difficulty of watching their mother go from an energetic, healthy woman to someone bedridden and in such excruciating pain that even Oxycontin provided no relief.

Each child also testified as to the extremely close relationship they had with Myra. Both daughters testified they spoke with their mother every day either in person or on the phone. Jimmy Williams, Jr., the oldest child, testified even on the occasions when he was out of town working, he tried to call his mother every day. When his mother became incapacitated due toiler illness, Jimmy Jr. stopped working and stayed home to care for her. He also, stated he promised his mother he would take care of his.father after her death.

The facts in this case are especially tragic. As a result of their mother’s battle with mesothelioma, the Williams’ children were forced to witness her ^extremely painful and debilitating final few months before she lost her life. The children were devastated by her death, and despite the trial being many years-after Myra’s death, their testimony indicated those feelings of loss-were still palpable.

This court in Mathieu v. State, Department of Transportation and Development, 598 So.2d 676, 682 (La.App. 3 Cir.), writ denied, 600 So.2d 665 (La.1992), noted that “Louisiana courts have often upheld large-wrongful death awards as reasonable in cases where the decedent and the surviv-, ing spouse and minor children had extraordinarily close and loving relationships.” The fact that the children in this case were adults does not negate the fact that this was an extremely close, and loving family that was devastated by Myra’s death.

After a thorough review of the record, although we find the awards rendered to the Williams’ children may be on the high side, we cannot say the trial court abused its vast discretion in rendering each child $750,000.00 as wrongful death damages. Therefore, we will not disturb the trial court’s awards.

VI. Legal Interest.

Although not listed as an assignment of error in its original brief, a lengthy portion of Ingersoll-Rand’s reply brief focuses on the fact the trial court’s judgment did not specifically address legal interest. However,- as Plaintiffs note, although not mentioned in the trial court’s judgment, the trial court obviously recognized the-accrual of interest during the hearing when it raised Ingersoll-Rand’s suspensive appeal bond from $5,500,000.00 (the.amount of all awards against Inger-soll-Rand) to$9,200,703;55. This was done pursuant to Plaintiffs’ challenge of the sufficiency of the appeal bond. Ingersoll-Rand complied with the trial court’s ruling and did not pursue any writ with this court on that issue.

Ingersoll-Rand’s comments- in its reply brief that the judgment did' not award judicial interest attempts to interject an issue not properly raised here. We take liberty to note, however, when a judgment does • not specifically state the words 12a“with interest from judicial demand,” such interest is automatically assessed against the defendants by “operation of law.” Louisiana Revised Statutes 13:4203 states “[l]egal interest shall attach from date of judicial demand on all judgments sounding < in damages ‘ex delicto’ which may be rendered by any of the courts.” (Emphasis added.) The courts of this state have long held the “attachment” occurs by operation of law even if the court fails to include language in, the judgment saying so. As this court specifically found in Duplechain v. Jalili, 10-736 (La. App. 3 Cir. 12/8/10), 52 So.3d 1072, 1077, writ denied, 61 So.3d 664 (La. 3/25/11), “[l]egal interest on judgments for damages in tort cases is an operation of law. The interest attaches automatically until the judgment is paid regardless of whether it was prayed for in the petition or mentioned in the judgment.” Therefore, the fact the judgment did not specifically address legal interest is of no moment as legal interest attaches by operation of law.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed in all respects. All costs of this appeal are assessed to defendant-appellant, Ingersoll-Rand Company.

AFFIRMED.

Conery, J., concurs, in part, dissents in part and assigns reasons.

Savoie, J., concurs in part, dissents in ‘ part and assigns reasons.

Conery, J.,

concurs in part, dissents in part, and assigns reasons.

|2SI concur with the majority’s opinion affirming fault at 50% to Placid Oil and 50% to Ingersoll-Rand in the survival action. I respectfully dissent from the majority’s decision to assess 100% fault to Inger-soll-Rand in the wrongful death action. The evidence is clear that Myra Williams died from mesothelioma in 2003 caused by contact with asbestos from her. husband’s work clothes while he worked for Placid Oil. I agree with the reasoning of astute counsel for Ingersoll-Rand that Mrs. Williams’ death was caused by the fault of both Ingersoll-Rand and Placid Oil. If the fault of Placid Oil was a substantial factor causing Myra Williams to contract meso-thelioma, suffer, and die for purposes of her survival action, then the trial court has already adjudicated causation and a 50% virile share reduction for purposes of the wrongful death action should be assessed as well.

I understand able counsel for plaintiffs’ argument that the wrongful death action is separate from the survival action and that for purposes of the survival action, the law that applies is the law at the time of asbestos exposure. Placid Oil’s virile share in the survival action was based on strict liability under La.Civ.Code art. 2317 as the owner, of premises causing its workers to he exposed to.ultra-hazardous substances, in this case, asbestos, primarily from Mr. Williams’ exposure to asbestos in the compressor room in the mid 1970s. The law at the time 124of exposure in the 1970s had no requirement that proof of Placid Oil’s actual or constructive knowledge- of the hazard was necessary in. order to recover survival damages under La.Civ.Code art. 2317.

I also agree that the law in effect at the timé of death applies to the wrongful death action. Mrs. Williams-died in 2003. Louisiana Civil Code Article 2317 was amended in 1996 to add a negligence standard requiring, in this case, proof by-a preponderance of the evidence that Placid Oil as the plant owner/operator/ employer knew or should have known of the ruin, vice, or defect which caused the damages and that Placid failed to exercise reasonable care to prevent the damage. La.Civ.Code art. 2317.1. Plaintiffs specifically plead and proved at trial that Placid Oil was the owner and operator of the oil and gas refinery and processing facility in question, was the employer of Mr. Williams, and knew or should have known of the hazardous exposure of its workers to asbestos, and took no steps to warn or protect its employees and their families. Now, for the first time on appeal, plaintiffs argue that somehow Placid Oil’s virile share responsibility in the wrongful death action should be eliminated.

Mr. Williams was undeniably exposed to asbestos from Placid Oil’s compressors in Placid Oil’s compressor room where ten massive Ingersoll-Rand compressors with seventeen (17) turbo chargers insulated with asbestos were located. Yet the trial judge failed to make any specific findings or even discuss Placid Oil’s liability for wrongful death damages under La.Civ. Code art. 2317.1 as amended and in effect at the time of Mrs. Williams’ death in 2003 in its reasons for judgment, stating only, “Therefore, the Court finds that the only party at fault |25 in causing Myra Williams mesothelioma is Ingersoll-Rand. Ingersoll-Rand had a responsibility to provide adequate warnings and to recognize inherent dangers, but Inger-soll-Rand did nothing.” (Emphasis added.) This after the trial court had just found that Placid Oil was 50% at fault in causing Mrs. Williams to contract meso-thelioma and awarded Mr. Williams and the four adult children damages of $3,000,000.00 for her pre-death suffering in the survival action.

I would submit that as Mr. Williams’ employer and owner of the oil refinery and plant facilities, Placid Oil had an even greater duty than Ingersoll-Rand, who sold the compressors to Placid, to warn and protect its employees, as it clearly had direct knowledge of the hazards and dangers of asbestos exposure in the compressor room. As a “sophisticated user” of the known asbestos containing components at its plant, Placid Oil knew or should have known of the potential for secondary exposure from asbestos on its employees’ work clothes, had a specific duty to warn and protect against such hazardous exposure, and did nothing.

In exonerating Placid of any liability in the wrongful death action, the majority opinion concludes, “Ingersoll-Rand failed to introduce any evidence of actual or constructive knowledge on Placid Oil’s part concerning any asbestos dangers posed by Ingersoll-Rand’s compressors to its employees.” (Emphasis added). The evidence in the record shows just the opposite. The record is replete with uncontradicted evidence of Placid Oil’s fault. Indeed, plaintiffs made specific allegations of Placid Oil’s fault and negligence in their detailed petition, and then went on to introduce uncontradicted evidence at trial in support of those allegations. Almost all the evidence on this issue came from - plaintiffs’ own experts and witnesses.

|2fiAs an intermediate appellate court, our duty is to review the evidence in the entire record under the manifest error, clearly wrong standard. Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110. In Hayes, the supreme court offered clear guidance as to the role of the appellate court in a manifest error review. Great deference is to be given to the trial judge’s factual findings. We are cautioned not to re-weigh the evidence and “where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly wrong.” Hayes, 193 So.3d at p. 1116. However, here the trial judge made no “credibility decisions,” did not “weigh the evidence,” and did not make a “conscious choice between two permissible views of the evidence” on the issue of whether Placid Oil “knew or should have known” of the asbestos exposure to its workers at its facility and failed to exercise reasonable care to protect its workers and their families, as was its duty under the law. La.Civ.Code art. 2317.1; Hayes, 193 So.3d at p. 1116. Based on a review of the entire record, I would find that the trial judge was “manifestly erroneous” and “clearly wrong” in failing to apply the un-contradicted and unrebutted evidence in the record and find that Placid Oil “knew or should have known” of the asbestos exposure to its workers, and yet failed to take any steps to protect or warn its employees and their families, specifically Jimmy Williams, Sr. and Myra Williams, his wife.

The deposition testimony of Prentiss McLeod, previously identified as a Placid Oil superintendent at the time Mr. Williams worked in Placid Oil’s compressor room in the mid 1970s, conclusively establishes that Placid Oil had knowledge that insulation around the turbo chargers on each of Ingersoll-Rand’s ten compressors contained asbestos, that each compressor had almost thirty gaskets made of asbestos, and that exposure to asbestos was hazardous. Mr. McLeodJ^testified, “Those ten engines we had in the plant, those Ingersoll-Rands, had asbestos on the turbo chargers and the exhaust piping.”

He went on to testify:

Q Okay. You said a couple of times that that was asbestos insulation.
A Yes.
Q How do you know that? I’m not saying you’re wrong—
A Right, at that time, asbestos was all you got for hot temperature. I’m talking about back in the mid to late 1960’s.

Mr. McLeod also confirmed that as early as the 1970s, Placid Oil was aware of the Occupational Safety and Health Administration (OSHA) regulations concerning asbestos exposure:

Q You were aware that OSHA has regulations for handling asbestos
A Yes.
Q When did you first become aware of that?
A Oh, at one of our safety meetings back before that addition out there. I’d say probably the late 1970’s. It might have been a little before then. It couldn’t have been much before then.
Q Was it part of your job, whatever it was, whenever you learned about the— because you’ve been Superintendent out there, whenever you learned about asbestos regulations, was part of your job to see that the workers followed these regulations?
A Right.
Q It was?
A Right. And do not touch anything with asbestos on it, you know, without proper clearance, and et cetera.

The trial judge made a specific factual finding that “Prentice McLeod was the superintendent while Mr. Williams, Sr., was a compressor operator. McLeod described the compressors as having almost thirty gaskets on each compressor that were made of asbestos.” Mr. Williams was exposed to asbestos from the asbestos | ^insulation around the turbo chargers on the compressors and was further exposed when the asbestos gaskets were changed. The trial court’s written reasons go on to state its clear factual finding that “McLeod knew that the insulation used on the compressors contained asbestos.”

Mr. Williams’ unrebutted testimony confirmed that there were seventeen (17) turbo chargers on the compressors and that the exhaust on each was insulated with asbestos. No warnings about asbestos hazards were provided to him by either Inger-soll-Rand or Placid Oil:

Q. Did anyone tell you that asbestos was hazardous?
A. Not that I remember.
Q. Either Ingersoll-Rand or Placid?
A. Neither one.
Q. Did anyone ever tell you that the uh, that when you were handling asbestos it was creating dust and that dust was hazardous?
A. No, sir.

Dr. Victor Roggli, the plaintiffs’ world renowned expert in-pathology with particular. expert knowledge of the, effect of asbestos on the human body, testified that in 1970 OSHA enacted an “emergency act” to warn everyone about the dangers of asbestos exposure. Congress enacted enabling legislation in 1971. Oil and gas refineries and facilities such as Placid Oil had a non-delegable duty to protect their employees from asbestos exposure and follow the' law as adopted by congress. Among those OSHA regulations were the requirements that employers monitor asbestos exposure and require that work clothes be segregated in order to prevent contaminated work clothes from being taken home, the exact situation which caused Mrs. Williams to contract mesothelioma from the asbestos on her husband’s work clothes.

I29Uncontradicted testimony at trial .established that Mr. Williams worked for Placid Oil from 1966-1995, and worked in the compressor room in the mid 1970s, approximately 1973-1978, with constant exposure to asbestos dust and fibers from the insulation around Ingersoll-Rand compressors. Mr. Williams, as well as several other witnesses, testified that the huge compressors vibrated and asbestos • dust from the compressors was clearly visible in the air in the area where Mr. Williams was working. In fact, one of Mr. Williams’ jobs was to sweep and clean up the dust, causing the fibers to once again become airborne, according to the uncontradicted evidence at trial. Dr. Roggli confirmed that the presence of visible asbestos fibers in the air meant that concentrations of asbestos exceeded all safety standards. Yet Placid failed completely to provide monitors, provide warnings and protect its workers. • Neither Mr. McLeod, Mr. Williams’ supervisor, nor anyone else at Placid Oil informed Mr. Williams of the dangers of asbestos exposure or the dangers of secondary 'exposure until after Mrs. Williams became ill and' was diagnosed with mesothelioma.

Mr. Frank Parker, III, the plaintiffs’ own expert in the field of industrial hygiene, also discussed the employer’s non-delegable duties under the Walsh Healey Act adopted in the 1950s and OSHA regulations adopted in 1970. He further testified that in 1952 the Louisiana Legislature recognized the potential dangers of asbestos exposure and made asbestosis a com-pensable claim under the Louisiana Worker’s Compensation Act. Especially in light of the change in the law governing worker’s compensation and the OSHA regulations requiring compliance by employers whose employees were exposed to asbestos, Placid Oil had a duty to know and at the very least should have known of the dangers of asbestos exposure, both as an émployer as ■well as the owner/operator of an oil and gas refinery and facility known to contain asbestos. Yet no notice, warnings or proper procedures were put in place to protect Placid Oil’s workers or their lanfamilies. Placid Oil was certainly a “sophisticated user” of the machinery at its plant, having participated in the design and construction of the plant, including specifically the placement and use of the large Ingersoll-Rand compressors that were vital to the plant’s operation,, with seventeen (17) turbo chargers insulated with asbestos and with thirty asbestos gaskets on each.

The testimony of Mr. Bill Frazier, plaintiffs eoworker who worked for Placid Oil from 1967 until about 1980, confirmed that he and the other workers' were never warned by Placid Oil of the known dangers of asbestos exposure at any'formal safety meetings or otherwise. Mr. McLeod, the supervisor in charge, made that point clear in his testimony. Though required by OSHA regulations, Placid Oil workers were not issued company coveralls or uniforms and wore their own clothes to work and back home after work. The workers were never instructed that they should change their clothes or take showers before leaving work at the Placid Oil facility. The levels of asbestos exposure were never monitored by either workers' or ■ supervisors, and the workers were never issued or told to wear respirators when working around asbestos insulation. No warnings were given to family members of the workers about the potential for secondary asbestos exposure from the employees and their work clothes.

Mr. Williams testified in like ihariner at trial, as did Jimmy Williams, Jr. The evidence was uncontradicted that 'Mrs. Williams personally laundered all of her husband’s work clothes and was given no warnings whatsoever by Placid Oil.

Ingersoll-Rand cites Warren v. Sabine Towing and Transp. Co., Inc., 01-573 (La. App. 3 Cir. 10/30/02), 831 So.2d 517, writs denied, 02-2926, 02-2927, 022936 (La. 2/14/03), 836 So.2d 116, 117, as supportive of its position that its apportionment of fault should be reduced to no more than 50% in the wrongful death claim. In Warren, as in this case, a survival action and wrongful death action were tried over the decedent’s battle with acute myelogenous leukemia as a result |R1of alleged exposure to benzene during his employment. After a bench trial, the trial court assigned 33% fault to the employer and the balance to other entities in the survival action. In the wrongful death action, no fault was assigned to the employer. In a well-reasoned decision, this court reversed and found the employer liable for 40% of fault in both the survival action and wrongful death action.

Louisiana Civil Code article 2323(A) governs the application of comparative fault for a wrongful death claim and states:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a non-party, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss 'as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss. (Emphasis added.)

Placid Oil should be assigned a fifty (50%) percent virile share of the fault in the wrongful death action and it was manifestly erroneous for the trial judge to fail to do so. Based on the entire record before us, the evidence is clear and it is uncontra-dicted, having come from plaintiffs’ own experts and witnesses, that Placid Oil had the requisite actual knowledge of the dangers of asbestos exposure to Mr. Williams, especially in the compressor room, failed to exercise reasonable care to prevent Mr. Williams and his spouse from hazardous exposure to asbestos, and thus should be held liable for a 50% virile share of the wrongful death damages, along with Inger-soll-Rand, pursuant to La.Civ.Code art. 2317.1. At the very least, Placid Oil “should have known” of the asbestos hazards and did nothing to warn its employees and their families. Since Placid Oil has been released in ^bankruptcy, its virile share of liability must be offset in the judgment against Ingersoll-Rand under La.Civ.Code art. 2323(a), just as was done in the survival action.

QUANTUM

The quantum, awards in this case are likewise reviewed under the manifest error “clear abuse of discretion” standard as stated in the Louisiana Supreme Court decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993), and Hayes, 193 So.3d 1110. Ingersoll-Rand also appealed the trial judge’s decision to award each of the four adult children of Myra Williams $750,000.00 in wrongful death damages for the loss of their mother. Ingersoll-Rand did not appeal the amount of the $3,000,000.00 survival damages award brought by Mr. Williams and the adult children for Myra Williams’ pre-death suffering, or the amount of the $1,000,000.00 wrongful death award to Mr. Williams.

I would find that the $750,000.00 wrongful death award to each of the adult children is manifestly erroneous, especially in light of the generous survival action damages which Mr. Williams and the four children inherited after Ms. Williams’ death. The wrongful death award to the adult children is three times the average award in cases of this type, as discussed in detail in Ingersoll-Rand’s brief. While I agree with plaintiffs’ counsel that damages should be set individually and not by simply reviewing “average” awards, and that many of the awards in the $250,000.00 range for wrongful death damages for adult children are somewhat dated and would be higher in today’s dollars, I would find that awarding damages |aato adult children by a factor of three times the average of most previous awards affirmed in the jurisprudence is a leap too far and too fast.

I agree with counsel for Ingersoll-Rand that the adult children cannot recover for their own mental anguish as they watched their mother suffer and die. The adult children have no right under the law to sue for such a claim, absent circumstances not present here. Much of their trial testimony focused on that issue. As previously stated, the adult children have already inherited, along with their father, the generous $3,000,000.00 survival damage claim of their mother for her own pre-death suffering.

The wrongful death claim accrues at the moment of death and is intended to compensate for the suffering of the named beneficiaries after the decedent’s death. In its reasons for judgment on the issue of the adult children’s’ wrongful death damages, the trial judge said only:

Every child testified that Ms. Williams was the center of their universe. She woke them each morning with a cup of coffee and a smile while growing up. She was there when their children were born. She kept her grandchildren every day. She cooked supper every night and everyone congregated at her home even after they were grown and had moved out. The court awards each child $750,000.00 for the wrongful death of their mother.

The elements of damages in the wrongful death claim at issue here are loss of love and affection, companionship, guidance and loss of services. Funeral expenses are recoverable but were not mentioned by the trial court and do not appear to be an issue on appeal.

While I agree with esteemed counsel for plaintiffs that these adult children each had a very close and loving relationship with their mother and are entitled to a fair and just award, I would find that the award of $750,000.00 to each in this case 1 ¡¡4is unreasonably high, is not supported by the record and is manifestly erroneous. While respecting the enormity of their loss and the emotional pain each continues to experience, after reviewing the entirety of the testimony of each, as well as all the evidence in the record on this issue, I would hold that the highest award that is reasonably supported by the evidence in the record is $500,000.00 to each of the adult children.

CONCLUSION

I would affirm the trial judge’s finding that Ingersoll-Rand and Placid Oil are each 50% at fault in the survival claim, and that Ingersoll-Rand is entitled to a virile share credit for Placid Oil’s fault in the survival action. I would reverse the trial judge in the wrongful death claim and assess a 50% virile share fault to Placid Oil and 50% virile share to Ingersoll-Rand in the wrongful death claim. I would reduce the quantum award in the wrongful death claim to $500,000.00 to each of the four adult children. I would assess 50% of the costs of appeal to plaintiffs and 50% to Ingersoll-Rand. In all other respects, I would concur with the majority to affirm the trial judge’s decision.

Savoie, J., concurs in part, dissents in part, and assigns reasons.

IsJn connection with the survival action, I concur with the majority’s opinion affirming the trial court’s allocation of 50% of the fault to Ingersoll-Rand and 50% of the fault to Placid Oil. I also concur with the majority’s opinion as to quantum. However, I respectfully dissent from the majority’s opinion inasmuch as it affirms the trial court’s allocation of 100% fault to Ingersoll-Rand in connection with the wrongful death claim.

With respect to the wrongful death claim, I agree that the law applicable to the wrongful death claim is the law in effect at the time of Mrs. Williams’ death , and therefore La. Civ.Code art. 2317.1 and principles of comparative fault are applicable in determining Ingersoll-Rand’s liability. However, I would ñnd the trial court manifestly erroneous in failing to allocate any percentage of fault to Placid Oil. The deposition testimony" of Prenitiss McLeod, a Placid Oil plant supervisor con-" clusively establishes that Placid Oil had knowledge at the time Mr. | .^Williams worked in the compressor room in the 1970’s that the Ingersoll-Rand compressors contained asbestos. The record is further replete with evidence establishing that Placid "Oil knew, or should have known, of the potential of secondary asbestos exposure from its /employees’ work clothes, yet it failed to provide adequate warnings or protections. Therefore, Placid Oil should have been allocated a percentage of fault.

When there is a finding that the trial court erred in apportioning fault, the fault allocation should be adjusted “only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.” Clement v. Fry, 95-1119, pp. 7-8 (La. 1/16/96), 666 So.2d 607, 611. Because of the testimony suggesting that Ingersoll-Rand provided no warnings whatsoever with respect to its compressors that were installed at Placid Oil, it is my opinion that 25% of the fault is the lowest reasonable percentage of fault that the trial court could have allocated to Placid Oil, and therefore, I would reduce Ingersoll-Rand’s liability for the wrongful death claim to 75%.

      . The other defendants, named, were Petro-Hunt, L.L.C., LLECO Petroleum Products, Inc., CanadianOxy Offshore Production Co., J. Graves Insulation Company, Inc., Shreveport ’Rubber & Gasket Company, Anco Insula-tions, Inc., Garlock, Inc., General Electric Company, DHEC Corporation. Petro-Hunt and CanadianOxy were named as "successors in interest” to Placid Oil Company.

      . Ing’ersoll-Rand’s right to contribution from J. Graves for its virile share would not affect Plaintiffs' judgment for the whole amount against it, unless as noted, Plaintiffs settled with J. Graves.

      . The record is clear that Jimmy Williams, Sr. began working for Placid' Oil in 1966, and worked as a compressor operator in the compressor room at the Placid Oil facility in the 1970’s when he was exposed to asbestos. Thus, it is clear pre-comparative fault law applies.

      . The six entities listed by Ingersoll-Rand are as follows: Garlock (a manufacturer and seller of gaskets), Flexitallic (a manufacturer and seller of gaskets), Pittsburgh-Corning Corporation (a manufacturer of Unibestos, which is an asbestos insulation product which Inger-soll-Rand claims was present in the compressor room), Shreveport Rubber & Gasket Co. (a provider of gaskets from which Ingersoll-Rand claims Placid Oil personnel made their own gaskets), J, Graves Insulation Co. (an alleged installer of asbestos insulation) and Hudson Engineers (which built a great deal of the Placid Oil facility).

      . Landry v. Avondale Industries, Inc., 03-3432 (La. 7/2/04), 877 So.2d 970.

      . See Landry, 877 So.2d 970; Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262.

      . Damage caused by ruin, vice, or defect in things. The owner or custodian of a thing is answerable for damages occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Added by Acts 1996, l?t Ex.Sess., No. 1, § 1, eff. April 16, 1996.

      . A sophisticated user is defined as one who is "familiar with the product,” Hines v. Remington Arms Co., Inc., 94-455, p. 10 (La. 12/8/94), 648 So.2d 331, 337, or as one who "possesses more than a general knowledge of the product and how it is used.” Asbestos v. Bordelon, Inc., 96-525, p. 44 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 955. As a result of their familiarity with a product, sophisticated users are presumed to know the dangers presented by the product; hence, there is no duty to warn them. Hines, 648 So.2d 331.

      . See plaintiffs’petition paragraphs 17-24.

      . In Re Placid Oil Co. Bankruptcy No. 86-33419-SGJ-11. Adversary No. 09-03356-SGJ, 463 B.R. 803 (2012).

      . Mrs, Williams was 59 when she died on August 9, 2003. The names and ages of her adult children when she died were: Jimmy Sloan Williams, age 40, Dalton Glen Williams, age 37, Jeanette Williams Shows, age 35, and Gwen Williams Hernandez, age 26.

      . See e.g., Thomas v. A.P. Green Indus. Inc., 2005-1064 (La.App. 4 Cir. 5/31/06), 933 So.2d 843; Roberts v. Owens-Corning Fiberglass, 2003-0248 (La.App. 1 Cir. 4/2/04), 878 So.2d 631; Mathieu v. DOTD, 598 So.2d 676 (La. App. 3 Cir. 1992); Warren v. Sabine Towing, 2001-0573 (La.App. 3 Cir. 10/30/02), 831 So.2d 517; Talbert v. Evans, 2011-1096 (La. App. 4 Cir. 3/7/12); 88 So.3d 673.

      . La.Civ.Code art. 2315.6.

      . Barbara Raymond v. Gov. Employees Ins. Co., 09-1327 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, writ denied, 10-1569 (La. 10/8/10), 46 So.3d 1268.

      . Wanda Baker Smith, et al. v. The Municipality of Ferriday, 05-755 (La.App. 3 Cir. 2/1/06), 922 So.2d 1222, writ denied, 06-934 (La. 9/29/06), 937 So.2d 860.

      . In Chaisson v. Avondale Indus., Inc., 05-1511 (La.App. 4 Cir. 12/20/06); 947 So.2d 171, an award of $562,000.00 each for two adult children was affirmed with the comment that the award was "a little higher than some previous awards”. And in Oddo v. Asbestos Corp., 04-0004 (La App. 4 Cir., 8/20/15), 173 So.3d 1192, a $600,000.00 jury award for each of two adult children was not challenged on appeal. Though $750,000.00 wrongful death damages to each child was affirmed by our court in Raymond, supra, that case involved four minor children and not adult children as here.

        . See, Walls v. American Optical, 98-455 (La. 9/8/99), 740 So.2d 1262; See also, Cole v. Celotex, 599 So.2d 1058 (La.1992).

      . La.Civ.Code art. 2317.1 states in part;
      The owner or custpdian of a thing is answerable for damage occasioned fay its ruin, vice, or defect, only upon a showing that he knew or, in the' exercise of reasonable care, should have known of the ruin, vice, or defect which caused tire damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

      . See for example, the testimony of Plaintiff’s expert in industrial hygiene, Frank Parker, III, who indicated that OSHA regulations pertaining to asbestos became effective in 1970 or 1971, and that "the regulations required “steps to be taken by an. employer to protect its employees from potential exposure to asbestos[,]’’ including periodic employee monitoring, protocols to prevent or limit exposure to asbestos, and requiring that ‘-'work clothes” and “street clothes” be kept separate, etc, Mr. Parker also testified that as of approximately. 1952, asbestosis was a com-pensable disease under workers’ compensation laws. Similarly, Plaintiffs’ pathology expert, Dr, Roggli, testified as to the enactment of OSHA regulations in 1970 or 1971 that alerted everyone to the dangers of asbestos. Additionally, Mr, McLeod testified as to his knowledge of OSHA regulations concerning asbestos in the 1970’s,


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF E.M.
    No. 51,511-JAC
    Court of Appeal of Louisiana, Second Circuit.
    June 2, 2017

      SAMUEL D. GOODWIN, Counsel for Appellant, Mother
    KIM SMITH, Counsel for Appellee, State of Louisiana, Department of Children and Family Services
    JEREMY BABERS, Counsel for Appel-lee, Father .
    CHILD ADVOCACY PROGRAM, By; Nancy Googe Cooper, Counsel for Appel-lee, Child
    Before MOORE, GARRETT, and STONE, JJ.
   GARRETT, J.

|TIn this child in need of care (“CINC”) case, the mother, KM, appeals from a juvenile court judgment accepting a case plan of adoption only, and not reunification, for the child, EM. For the following reasons, we affirm.

FACTS

KM was 14 years old when she gave birth to EM on June 24, 2015. Due to KM’s young age during pregnancy, the baby suffers from various health problems, including optic nerve hypoplasia. Simply put, the optic nerve did not develop and EM is permanently blind. EM had three possible fathers. Paternity testing eventually revealed the father to be DG, who was an 18-year-old junior in high school at the time EM was conceived. DG stated that he thought KM was 16. Although it is not entirely clear from the record, DG was convicted of either carnal knowledge of a juvenile or indecent behavior with a juvenile. He is serving a prison sentence as a consequence of his actions with KM.

The record indicates that KM was raised in an unstable environment. She has several younger siblings and lived with her mother, JC, and her father, LM. JC was somewhat disabled after having West Nile virus. It appears from the record that JC may have also abused drugs. JC was not able to control KM, who frequently ran away from home. The Louisiana Department of Children and Family Services (“DCFS”) had records indicating that KM had been the victim of neglect in July 2002, July 2007, and August 2010. JC had an open file with the DCFS from May 2015,12largely dealing with her inability to control KM. The lack of supervision of KM contributed to her pregnancy and the birth of EM.

On September 17, 2015, concerns were reported to the DCFS regarding EM. KM did not appear to be able to care for the baby and frequently left the child with others, skipped school, ran away from home, and sometimes ran away with the baby. She missed doctor appointments for the baby and appointments to obtain food assistance. JC stated that she was not able to care for the baby and could not control KM. According to JC, there were no other family members who could care for EM. KM had planned to allow EM to be adopted by a couple in Texas, but changed her mind.

At the time the DCFS became involved in this case, an employee with a maternity home where KM stayed during part of her pregnancy had EM in her possession and took the child to various doctor appointments. This individual considered adopting EM, but decided against it.

On October 8, 2015, the juvenile court issued a verbal instanter order of removal and signed the order the next day. The court determined that EM was the victim of abuse and/or neglect and emergency circumstances existed requiring that the child be taken into the custody of the DCFS.

A hearing was held on October 15, 2015, and the court issued a continued custody and protective order placing the child in the legal custody of the DCFS due to neglect. The DCFS was ordered to conduct a home study of the paternal grandparents, HG and WG. KM’s visitation with the child was to be supervised. EM was placed in foster care with a nonrelative.

On November 13, 2015, the state filed a petition to have EM declared a CINC. A dispositional hearing was held on February 8, 2016. The |sJanuary 2016 DCFS report to the court, which contained a case plan with a goal of reunification, was filed into evidence. Among KM’s case plan goals were attending and completing a parenting program,, providing a safe and stable home for EM, attending routine medical appointments for the baby, and remaining in school. At the hearing it was determined that KM was not attending school, but was supposed to return to school the next week. The court ordered a mental health evaluation and ordered KM to attend counseling. The attorney representing EM advised the court that the baby’s paternal grandparents were an excellent resource. The court adjudicated EM a CINC and ordered that the paternal grandparents could have overnight visitation with the baby. The court maintained custody with the DCFS, but placed EM with KM and her mother, JC, instead of continuing the child in foster care.

The case was reviewed by the court on March 10, 2016. KM was 15 at that point. JC said KM was doing what she should to care for EM. The paternal, grandmother, HG, did not share that opinion and stated that she thought KM had issues. She noted that KM often left the baby with her when KM had other things she wanted to do. The case plan goal remained reunification. The case review judgment of March 18, 2016, specified that the child continued to be a CINC and custody was maintained with the DCFS. EM’s placement remained with KM and JC.

Another case review hearing was held on May 12, 2016. An amended case plan for reunification, or adoption in the alternative, was approved. At that point, EM was living with the paternal grandparents. EM was attending a daycare for children with special needs. A report from the daycare that was filed into evidence stated that EM was in much better condition since |4she had been staying with the paternal grandparents. The child was clean and was sent to daycare with formula and extra clothes. The report noted that when EM was living with KM, the baby was not as well cared for and had diaper rash.

KM’s parents were considering a move to Arizona • and, because she was still a minor, KM was in their custody. KM claimed she had. completed parenting and anger management courses. She stated she was not getting along with her mental health counselor and asked that a new one be assigned. The case review judgment continued custody with the DCFS. The baby was allowed to stay with the paternal grandparents. The court stated that KM would be allowed to go to their home for supervised visitation' with EM. The paternal grandparents lived only a block and a half away from KM.

A permanency/case review hearing was held on October 27, 2016, before a juvenile court hearing officer. At that point, EM had been in the custody of the DCFS for one year. The DCFS recommended that the case plan goal be amended to adoption. The paternal' grandparents were prepared to adopt the child.

KM testified that she was enrolled in school, but had not been attending. She stated she was behind in school and it was not “working out” for her. She commented that “I’ll go if it really comes down to it.” KM wanted to get a GED when she turned 16. KM’s parents were in the process of divorcing. JC had moved out of the house and'was living with a friend. KM remained in the family home with her father, LM, who did not attend the hearing. According to KM, her father was not working and her mother | stook the family vehicle when she left, so the family did not have transportation. KM stated she had been taking care of her younger siblings.

KM now had a new boyfriend who was 17 and attending the Youth Challenge Program in Minden. The boyfriend’s mother brought KM to court. According to KM, her boyfriend’s mother said that KM and EM could live with her. KM stated that she did not want to give EM up for adoption.

KM admitted she had frequently- missed visitation with the baby and acknowledged that the paternal grandparents were taking good care of the child. When questioned by the court, KM admitted that EM has special needs and attends a school for handicapped children. KM said she had missed the child’s doctor appointments because she does not have transportation.

The paternal grandmother testified that EM had been living with her since March 2016. The paternal grandparents became certified foster parents in September 2016. The child went to all doctor appointments and was receiving physical and occupational therapy. The therapists were teaching EM to'walk with a cane due to her blindness.

According to HG, KM was not able to care for EM. KM missed 13 doctor appointments for the child and had visited only seven times, although she had weekly scheduled visitation. HG also said if KM wanted to attend doctor appointments, she could'have accompanied HG. HG opined that EM would be better off with her and WG and that KM had not matured. The paternal grandparents wanted to adopt the child.

Sylviara Hunt, the caseworker with the DCFS, stated that she had trouble contacting KM. At one point, she and KM discussed termination of RKM’s parental rights. A report by the DCFS, dated October 18, 2016, and filed into evidence, showed that after a meeting at the state office building, KM became angry, went to the parking lot, and kicked a car.

Hunt stated that HG takes good care of EM and frequently updates her on the child’s progress. Hunt noted that not much was réquired of KM in her case plan, due to her age.

After the testimony concluded, the hearing officer, determined that it was not safe to return EM to KM. KM could not provide a stable environment and nothing had changed with KM in the year that EM had been in DCFS custody. The hearing officer observed that’KM had the most limited case plan she had ever seen, that the plan was appropriate for KM’s age, and still she had failed to do what was required. The hearing officer found that placing the child for adoption was appropriate. EM was to remain in the custody of the DCFS, with a permanent case plan of adoption by the paternal grandparents. The DCFS was instructed to file’ a petition to terminate KM’s parental rights.

The hearing officer filed recommendations for the permanency/case review hearing, in accordance with the comments set forth above. No written objection to the recommendations was made .by KM pursuant to La. Ch., C. art. 423(F) and (G). The recommendations were adopted by the juvenile court as its judgment on November 28, 2016.

KM .appealed the judgment of November 2016. She also supplemented the record with a transcript of a juvenile court hearing conducted on February 9, 2017.

|70n appeal, KM argues that the lower court committed manifest error when it accepted a case plan- goal of adoption only, given the unique circumstances, of this case. The DCFS and the attorney representing EM have filed briefs in which they ask this court to affirm the judgment changing the case plan goal to adoption.

LEGAL PRINCIPLES

The health, safety, and best interest of the child is the paramount concern in all CINC proceedings. See La. Ch. C. art. 601. A CINC proceeding is commenced by a petition filed by the district attorney. When authorized by the court, the DCFS may file a petition if there are reasonable grounds to believe that the child is a CINC. See La. Ch. C. art. 631.

. The adjudication hearing is held before the court without a jury. La. .Ch. C. art. 664. The state shall have the burden to prove the allegations of the petition by a preponderance of the evidence. La. Ch. C. art. 665. Following the adjudication hearing, the court shall immediately declare whether the evidence warrants a CINC adjudication. See La. Ch. C. art. 666.

Within 60 days after a child enters the custody of a child care agency, the custodian shall develop a case plan detailing the custodian’s efforts toward achieving a permanent placement for the child. See La. Ch. C. art. 673. The case plan shall be designed to achieve the least restrictive, most family-like, and most appropriate setting available, and in close proximity to lathe parents’ homes, consistent with the best interest and special needs of the child. The health and safety of the child shall be the paramount concern in the development of the case plan. See La. Ch. C. art. 675.

At the disposition hearing, the court shall consider the content or implementation of the case plan and any response filed concerning it. See La. Ch. C. art. 677. The disposition hearing may be conducted immediately after the adjudication and shall be conducted within 30 days after the - adjudication. See La. Ch. C. art. 678. Dispositional alternatives are listed in La. Ch. C. art. 681.

If at any point in CINC proceedings, the child is removed from his parents’ care and control and placed in the custody of the DCFS, the case review process of La. Ch. C. arts. 687-700 is implemented. The custodial agency shall file a case review report with the court or, if appropriate, with the administrative review body ten days prior to every scheduled review hearing. See La. Ch. C. art. 688. A review hearing shall be conducted by the court or administrative review body three months after the disposition hearing if the child was removed prior to disposition or within six months after the disposition hearing if the child was removed at disposition, but in no case more than six months after removál. of the child from his parent(s). Case reviews shall continue to be held at least once every six months thereafter until the child is permanently placed, or earlier upon the motion of a party for good cause shown or on the court’s own motion. La. Ch. C. art. 692.

Regarding permanency hearings, La. Ch. C. art. 702 provides in pertinent part:

. |nB. The court shall conduct a permanency hearing within nine months after the disposition hearing if the child was removed prior to disposition or within twelve months if the child was removed at disposition, but in no case more than twelve months after the removal. Permanency reviews shall continue to be held at least once every twelve months thereafter until the child is permanently placed or earlier upon motion of a party for good cause shown or on the court’s own motion.
C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child’s age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.
E. Except as otherwise provided in Article 672.1, the court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child’s placement in an alternative safe and permanent home in accordance with the child’s permanent plan. The child’s health and safety will be the paramount concern in the court’s determination of the permanent plan.
G. When reunification is determined to be the permanent plan for the child, the court shall advise the parents that it is their obligation to achieve the case plan goals and correct the conditions that require the child to be in care within the time period specified by the court. Otherwise, an alternative permanent plan for the child will be selected and a petition to terminate parental rights may be filed. When adoption is the permanent plan for the child, the court will advise the parent of his authority to voluntarily surrender the child and to consent to the adoption prior to the filing of a petition to terminate parental rights.

More than simply protecting parental rights, our judicial system is required to protect the children’s rights to thrive and survive. State in Int. of S.M., 1998-0922 (La. 10/20/98), 719 So.2d 445; State in Int. of C.S., 49,955 (La.App. 2 Cir. 3/18/15), 163 So.3d 193; State in Int. of P.B., 49,668 (La.App. 2 Cir. 12/17/14), 154 So.3d 806.

In order for reunification to remain the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. See La. Ch. C. art. 702(C)(1); State in Int. of P.B., supra; State in Int. of N.B., 51,374 (La.App. 2 Cir. 2/15/17), 215 So.3d 398.

Mere cooperation by a parent is not the sole focus of the evaluation of a permanency plan. Rather, the courts must assess whether the parent has exhibited significant improvement in the particulars that caused the state to remove the children from the parent’s care and custody. Stability in the home environment and relationships is a consideration in the permanency plan determination. A parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated. State in Int. of P.B., supra.

To reverse a trial court’s permanency plan determination, an appellate court must find from the record that the trial court’s finding is clearly wrong or manifestly erroneous. State in Int. of C.S., supra; State in Int. of N.B., supra. In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. State in Int. of N.C., 50,446 (La.App. 2 Cir. 11/18/15), 184 So.3d 760; State in Int. of P.F., 50,931 (La.App. 2 Cir. 6/22/16), 197 So.3d 745.

InWhere there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. If the juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. State in Int. of P.F., supra.

DISCUSSION

KM appeals only from the judgment following the permanency hearing changing the case plan goal from reunification to adoption. She contends it is clearly wrong to terminate the parental rights of a maturing, now 16-year-old in preference to the paternal parents whose son is the perpetrator who impregnated KM when she was 14. KM urges that she initially demonstrated the ability to care for EM by going to doctor appointments, interacting with the child, providing a stable environment, and meeting the child’s daily needs. KM contends that, when she had sufficient family support, she was able to adequately parent EM. According to KM, she later had difficulty getting EM to doctor appointments because she had to depend on her own mother, JC, for transportation. This was not available after JC left the family home. KM argues that she is maturing and will likely be able to care for EM on her own in the coming years. KM maintains that the lower court was manifestly erroneous in changing the case plan goal to adoption. She urges this court to reverse that decision.

The record fails to show that the lower court was manifestly erroneous or clearly wrong in changing the case plan goal from reunification to [^adoption. The DCFS has made reasonable efforts to reunify KM with EM. We recognize that KM faced some obstacles in fulfilling her case plan goals. KM, who is still a minor, was only 14 when she gave birth to EM. KM’s family is unstable and her parents are in the midst of a divorce. Her father may leave the state. KM’s mother is disabled and possibly suffers from drug addiction, preventing her from providing family support for KM. In spite of these factors, KM has failed to fulfill the minimal case plan goals over which she had control, such as remaining in school and regularly visiting EM. While KM stated that she and EM could live with the parents of KM’s current boyfriend, this is a new relationship and there is no showing that this arrangement will be stable or in EM’s best interest.

When KM had extensive family support from her own mother, KM initially showed some indication of perhaps being able to care for EM. However, her efforts and focus on caring for the child quickly waned. EM is a child with significant medical issues, including blindness. She requires a higher level of care than KM has proven able to provide. While KM may develop the ability to care for EM sometime in the future, that ability and commitment is lacking at the present time. EM cannot wait,several years in the hope that KM will mature enough to become the parent that EM requires.

The best interest of EM is of paramount importance. More than one year has passed since EM was taken into DCFS custody. In that time, KM has regressed, rather than progressed, in her efforts to demonstrate that she can adequately care for EM. She has failed to fulfill her case plan goals. While EM has been living with HG and WG, the child has received the necessary nurturing, medical care, and educational support that her special [ isneeds require. The record shows that EM has thrived while in the care of the paternal grandparents. The paternal grandparents have demonstrated that they are committed to meeting EM’s long-term special needs. Under these circumstances; the lower court did not err in changing the case plan goal from reunification to adoption.

CONCLUSION

For the reasons stated above, we affirm the judgment of the lower court changing the permanent case plan in this matter from reunification to adoption. Costs in this court are assessed to KM.

AFFIRMED.

      . Initials are used to ensure the confidentiality of the minors in this case. URCA 5-1, 5-2.

      . At that hearing, the court noted that EM was living with the paternal grandparents, was attending a special school, and had therapy twice a week. HG reported that, at a recent visitation, KM brought the child a book, but then would not let her touch it. HG did not think this was appropriate' because EM is blind. She also reported that EM cried when she visited with KM, HG stated that her son, EM’s father, would not live with the family when he is released from prison, She would not agree that KM was the victim of a sex crime because she was promiscuous and did not know who the father of the child .was until paternity testing was conducted. HG said she did not think that the mother of KM’s new boyfriend could provide a stable environment for EM. .