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NOT DESIGNATED FOR PUBLICATION

ANTHONY J. DUPLESSIS, JR. VERSUS WAL-MART STORES, INC. AND DANIEL DOE

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NO. 2007-CA-1223 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 99-327, DIVISION "E" Honorable Jacques A. Sanborn, Judge ****** CHIEF JUDGE JOAN BERNARD ARMSTRONG ****** (Court composed of Chief Judge Joan Bernard Armstrong, Judge Dennis R. Bagneris Sr., Judge Max N. Tobias Jr.)

JOHN J. FINCKBEINER, JR. 327 EXCHANGE PLACE NEW ORLEANS, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT

SIDNEY J. HARDY LYNDA A. TAFARO MCCRANIE SISTRUNK ANZELMO HARDY MAXWELL & MCDANIEL 3445 NORTH CAUSEWAY BOULEVARD SUITE 800 METAIRIE, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE, WAL-MART STORES, INC.

AFFIRMED

The plaintiff-appellant, Anthony J. Duplessis, Jr., appeals an April 18, 2007 judgment dismissing his personal injury claim with prejudice against the defendants-appellees, Wal-Mart Store, Inc. and Daniel Doe. The trial court found that the plaintiff failed to carry his burden of proof. This conclusion was based essentially on the finding of fact that the plaintiff failed to prove by a preponderance of the evidence that the man who allegedly tackled the plaintiff was a Wal-Mart employee.1 This in turn is based on the trial court's factual findings, making this a fact intensive manifest error case. In fact, the plaintiff's primary assignment of error is that the trial court committed manifest error in concluding that the plaintiff failed to carry his burden of proving by a preponderance of the evidence that the person who negligently knocked the plaintiff down and caused his injuries was a Wal-Mart employee. The plaintiff does not complain of any legal errors on the part of the trial court. There are numerous cases under such circumstances supporting the application of the manifest error standard of review to the fact finder's determination of whether or not a party has borne his burden of proof by a preponderance of the evidence (more likely than not). Hall v. Folger Coffee Co., 03-1734, pp. 19-20 (La. 4/14/04), 874

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So.2d 90, 104; Hernandez v. State,through Dept. of Transp. & Dev. 02-0162, p. 20 (La.App. 4 Cir. 10/16/02), 841 So.2d 808, 822; Hoerner v. ANCO Insulations, Inc., 00-2333, p. 12 (La.App. 4 Cir. 1/23/02), 812 So.2d 45, 57; ScenicLand Const. Co., LLC v. St. Francis Medical Center, Inc., 41,147, p. 11 (La.App. 2 Cir. 7/26/06), 936 So.2d 247, 253-255; Eldridge v. Carrier, 04-203, p. 6 (La.App. 3 Cir. 11/17/04), 888 So.2d 365, 369; Vermilion Parish Police Jury v. Albert, 03-1420, p. 8 (La.App. 3 Cir. 3/3/04), 867 So.2d 67, 73; Schexnayder v. Exxon Pipeline Co., 01-1236, pp. 6-9 (La.App. 5 Cir. 3/13/02), 815 So.2d 156, 160-161. Having determined that the manifest error standard of review is applicable, we look to the following pronouncement from Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110, 93-3112, pp. 8-9 (La. 7/5/94), 639 So.2d 216, 220-221, for guidance: In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this Court held that the court of appeal should not upset the factual findings of a trial court absent manifest error or unless clearly wrong. A proper review, therefore, cannot be "completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record established that the finding is not clearly wrong." Id. at 1333. More recently, regarding this constitutional appellate review of fact in civil cases, La. Const. art. 5,

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