# Supreme Court of Louisiana

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FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the **3rd day of May, 2017** , are as follows:

**BY HUGHES, J.** :

2016 -C-0 745 DANIELLE LARSON v. XYZ INSURANCE COMPANY, ET AL. (Parish of Orleans) Knoll, J., retired, participated in this decision, which was argued prior to her retirement.
The ruling of the court of appeal is affirmed. The matter is remanded to the trial court for further proceedings. AFFIRMED AND REMANDED. WEIMER, J., concurs in the result only and assigns reasons. GUIDRY, J., concurs and assigns reasons. CRICHTON, J., concurs for reasons assigned by Justice Guidry.03 /0 3 /2017 SUPREME COURT OF LOUISIANA

No. 2016
- C
- 0745 DANIELLE LARSON VERSUS XYZ INSURANCE COMPANY, ET AL.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL , FOURTH CIRCUIT, PARISH OF ORLEANS

HUGHES , J. 1 We granted the writ application in this case to review the applicability of La. R.S. 9: 2 795.3, the Equine Immunity Statute . The trial court granted a motion for summary judgment filed by Equest Farm, LLC , finding that the immunity statute applied because plaintiff Danielle Larson was a participant engaged in equine activity at the time the Equest Farm pony bit her. The court of appeal reversed , holding that Larson was not a “ participant ” under the immunity statute , and that summary judgment was inappropriate because there were genuine issues of material fact as to whether another provision in the immunity statute might apply. We hold that there are genu ine issues of material fact on the issue of whether the immunity statute applies

. Accordingly, we affirm the court of appeal and remand to the trial court

. Facts This suit concerns a horse bite injury sustained in 2013 by Danielle Larson, who visited Eque st Farm for the purpose of visiting and feeding horses owned by that facility. Equest Farm is located in City Park in New Orleans, and it boards horses as well as offers camps, lessons , field trips, and birthday parties with horses

.

1 Knoll, J., retired, participated in this decision , which was argued prior to her retirement.2 Larson , an Illinois re sident, frequently came to the New Orleans area to visit her boyfriend. Larson testified th at she has never owned a horse but that she had been riding horses since childhood and she rode horses at a stable in Illinois

. Larson testified that she had previously been shown how to feed a horse: with a flat hand, fingers together so that they are angled down and not sticking up. Larson
testified that in the past she had fed horses common treats such as carrots, apples, and sugar cubes. Larson testifi ed in her deposition that she had been visiting Equest Farm since 2011 or 2012 to “talk to them” and “give them love and affection

. ” Larson testified that prior to the incident she had visited Equest Farm at least six times and that she trie d to go every time she visit ed New Orleans. Larson testified that each time she went to Equest Farm for a visit she would first check in with someone from the equestrian center front office before heading into the stables

. Larson testified that during a previous visit, a ma n who appea red to work for Equest Farm gave her mints to feed the horses. Approximately five days before the date of the accident, Larson dropped by Equest Farm to ask if in the coming days she could visit with the school horses, which are horses owned by facility used for lessons. She also wanted to return with treats and was seeking advice on what the horses liked. Larson said she spoke with someone who worked in the office, named Kaley or Kiley, who told her she could return with certain treats, includin g carrots , and feed and visit with the school horses. When Larson returned with carrots on Monday, September 23, 2013, the Equest Farm office was closed in accordance with its regular schedule , and Larson proceeded to the stalls where the school horses w ere kept. On her way, she encountered two riders who boarded horses at Equest Farm, Joanna Deal and3 Susan Gegenheimer. Larson told them that she was going to feed the school horses

carrots. Ms. Deal and Ms. Gegenheimer told Larson to be careful because the y heard one of the school ponies had bit ten a child. As Larson was visiting with the school horses, she arrived at a stall where a pony, Wesley, was standing at the gate

. Larson placed a carrot in her hand and held it out, but the carrot was knocked from her hand by the horse , causing the carrot to fall to the ground. As Larson squatted down to pick up the carrot, Wesley also reached for the carrot . Instead of biting the carrot, however, Wesley bit off
Larson ’s thumb.
Larson required substantial medical care . Doctors attached her injured hand to her groin for four weeks to keep what remained of her hand viable. Larson will have to be fitted for a prosthetic thumb or transfer a toe to her hand. There is a dispute about the signage that was posted on the d ay of the incident

. Larson testified that she did not see any signs at Equest Farm prohibiting visitors from feeding the horses. Ms. Deal also testified that on the day of the accident she did not recall any such signs , but that she did not go into the sch ool horse barn often. Ms. Gegenheimer also testified that at the time of the accident she was not aware of any rules that would prevent visitors from feeding the horses.
Ms. Gegenheimer further testified that she did not see any signage specifically warnin g others about a prior nipping incident involving Wesley . Equest Farm LLC, member Leslie Kramer averred by affidavit that there have been signs posted since
2011 that feeding treats or petting horses is not allowed. She averred that the signs stated visito rs could “look but not touch” the horses. As for We s l ey , he appears to have a good reputation at Equest Farm, although it is not without blemish. Ms. Deal testified that she saw small children4 r i de on Wesley. Ms. Gegenheimer testified he was a “great lesson horse.” Ms. Kramer averred that Wesley “is considered to be one of Equest Farm’s best school ponies.” Ms. Kramer also averred that the only other time Wesley has bitten
anyone was when a child who had been riding him was h olding his ears and muzzle trying to get him to kiss her. Wesley nipped he r and bruised her cheek, however , the student continued to take lessons riding Wesley, and no lawsuit was filed. Procedural History Larson filed a Petition for Damages alleging that Equest Farm and its insurer

were liable for her injuries under theories of negligence and strict liability. Equest
Farm filed a M otion for S ummary J udgment, which argued that Larson’s suit should be dismissed due to the applicability of the Equine Immunit y Statute , La. R.S. 9:2795.3. Equest Farm asserted that Larson was a “ participant ” who was injured as a result of inherent risks of equine activity , and under the Equine Immunity Statute, the facts of her case preclude her from recovery against Equest
Farm. The trial court granted Equest Farm’s Motion for Summary Judgment, dismissing Larson’s suit. In reasons given from the bench, the trial court found : I believe that when you went and touched

– when you touched that horse, when you w ent to feed that horse it was equine activity. You’re not a spectator and it could be

– somebody could say that it’s inspecting. I don’t know. Evaluating, I don’t know. But I don’t know what that means. I do know horses and I know that you feed a horse lik e this (Indicating), and I know if you drop that carrot a horse takes his tongue and he felt the finger and feels like a carrot, and he bites it. Now, again, you’re saying maybe that’s comparative fault, whatever. That’s not a dangerous animal. I mean, th at’s not

– he didn’t do anything negligent. He did what a horse does. That’s all you get . . . . And just the way he looks, his eye s are way up here, his mouth is way down here. I mean, we own horses. And it’s ugly. That picture that was subm itted to us is absolutely ugly . . . .5 I think the Fourth Circuit needs to look at it. The [F]ourth Circuit needs to tell me it was equine activity. I do. I think they need to tell me that. Because I do think she took herself out of a spectator position. Had she stay ed behind and the horse came over and bit her, I’m with you. But when you go and put yourself in the middle of it, and you knew horses

-- what your client says, she loves horses, she knows them, she does that. I just don’t know. I think the definition

-- y ou know maybe you’re right but somebody might say that’s inspecting, that’s evaluating. I don’t know. But I think you need to let the Fourth Circuit tell you that I’m wrong. So I’m granting your Summary Judgment. Larson appealed. The court of appeal reve rsed the summary j udgment, finding that Larson was not a participant engaged in equine activity , and thus Equest Farm wa s not afforded immunity under the statute

. Larson v. XYZ Ins. , 2015

- 0704 (La. App. 4 Cir. 3/23/16), 192 So.3d 181. The appeal court conc luded that the definition of “engages in equine activity” found in subsection (A)(1) of the

statute , which must be strictly construed, does not include “a visito r to a stable who feeds treats to a horse. ” Id . at p. 10, 187. The court noted that the definit ions of “equine activity” listed in subsection (A)(3) are to be considered in determining whether someone is a participant. Id . at p. 12, 189. However, t he court of appeal determined that Larson was not “inspecting” or “evaluating” under subsection (A) (3) ( d ). Id

. Larson’s visit to see the horses and give the m “love and affection” do es not meet the dictionary definitions of inspect or evaluate, and dictionary
definitions are to be used because the statute does not define these terms. Id

. Thus, the court of appeal concluded that Larson was not a participant under the Equine Immunity Statute. The majority 2 also opined that even if Larson wa s a “ spectator ” pursuant to Subsection (A)(1) , the s tatute could still provide Equest Farm with immunity if
Larson , as a spectator, placed herself in an unauthorized area. Id . at p. 13, 189. The

2 While the concurrence mentions the possible applicability of La. R.S. 9:2795.3(A)(3)(e), it was not addressed by the majority opinion.6 court of appeal found that there were genuine issues of material fact on this issue that bar summary judgment. Specifically, Larson and the two riders testified that they could not r ecall seeing signs that prohibit ed touching or feeding the horses. Id

. at pp. 14

- 15, 190. But a ccording to an affidavit of Ms. Kramer 3 , such signs were posted. Id . at p. 15, 190. The court of appeal stated that whether Equest Farm is entitled to immunity u nder La. R.S. 9: 2 795.3 at this juncture should be decided by a trier of fact. Id

. The court of appeal thus reversed the grant of summary judgment and remanded to the trial court for further proceedings

. Id

. Equest Farm filed a n application for certiorari, which this court granted.
Larson v. XYZ Ins. Co. , 2016

- 0745 (La. 6/28/16), 192 So.3d 782. Law and Analysis Appellate courts review summary judgments de novo under the same criteria that govern a district court ’ s consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City , 2010

- 2828 (La. 7/1/11), 65 So.3d 1263, 1267; Samaha v. Rau , 2007

- 1726 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial

- New Orleans Exhibition Hall Author ity , 2002

- 1072 (La. 4/9/03), 842 So.2d 373, 377. In ruling on a motion for summary judgment, the judge’ s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue o f triable fact. All doubts should be r esolved in the non

- moving party’ s favor. Hines v.
Garrett , 2004

- 0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially e nsures or precludes recovery, affects a litigant ’ s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one

3 Ms. Kramer provided two affidavits in support of Equest Farm’s Motion for Summary Judgment. Attached to her second affidavit were photos of the posted signs that instructed visitors not to touch or feed the horses.7 conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id . at 765

- 66. On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support fo r one or more elements essential to the adverse party ’ s claim, action, or defense, then the

non - moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of t he motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See La. C.C.P. art. 966(D )( 1 ) ; s ee also Schultz v. Guoth , 2010

- 0343 (La. 1 /19/11), 57 So.3d 1002, 1006. When a motion for summary judgment is made a nd supported as provided in
La. C.C.P. art. 967, an adverse party may not rest up on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in
La. C.C.P. art. 967, must set forth specific facts showing tha t there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B) ; se e also Dejoie v. Medley , 2008

- 2223 (La.5/5/09), 9 So.3d 826, 832. Whether a particular fact in dispu te is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall , 2003

- 1488 (La. 4/23/04), 874 So.2d 131, 137. We agree with the court of appeal that there are contested issues of material fact that make summary judg ment inappropriate. Issues of the applicability of the immunity statute and potential comparative negligence of the parties remain.
Decree8 The ruling of the court of appeal is affirmed. The matter is remanded to the trial court for further proceedings. AFFIRMED and REMANDED

### 05 /03 /20 17 SUPREME COURT OF LOUISIANA

NO. 20 16 -C-0 74 5
DANIEL LE LARSO N
VERSUS
XYZ INSURANCE COMPANY, ET AL.

ON W RIT OF CERTIORARI

TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH O

F ORLEANS

WEI MER, J. , con cu rri ng in th e res ul t o nl y . I res pe ct fu ll y co nc ur
. As th e m ajor it y ack no wled ge s, th is co ur t gr an te d writ s

“ to r e v i ew th e ap pl ic ab il it y of La. R.S. 9: 27 95 .3, th e Equ in e Im m un it y St at ut e.”
La rs on v. XYZ In s. Co. , 16 -7 45 , sl ip op
. a t 1 ( La.

__ /_ _/ 17 ). Nev ert he le ss , an d
wit ho ut an y di sc us si on or an al y si s o f th e st at ut e, th e d eci si on of th e co ur t of app eal
is rat he r su m

m ari ly affi rm ed , on th e ba si s th at th ere are ge nu in e is su es of m at eri al fact
whi ch m ak e su m

m ary jud gm en t in ap pr op ria te

. The cas e is rem an de d, bu t no t be fo re th e m ajor it y po in ts ou t th at “ [i]ss ue s of th e ap pl ic ab il it y of th e im m un it y st at ut e an d
po te nt ia l co m

pa rat iv e n eg li ge nc e o f th e p art ie s re m ai n.” Id . at 8

. B e cau se we gr an te d th e writ fo r th e sp eci fic pu rp os e of rev ie win g t h e
ap pl ic ab il it y of th e im m

un it y st at ut e, I be li ev e an al y si s of th e st at ut e in s of ar as th e

un di sp ut ed fact s are con cern ed is ap pr op ria te in or de r to pr ov id e so m e g ui da nc e o n th e la w t o th e p a r t i e s on rem an d. At le as t on e of m y co ll eag ue s is in ag reem en t on th is po in t, as he ha s au th or ed a co nc ur rin g o pi ni on in whi ch he of fers hi s own vi ew of th e im m un it y st at ut e u nd er “ th e ev id en ce p res en te d t hu s fa r.” Id . at 1 (Gu id ry J.,

co nc ur s an d a ss ig ns reas on s)

.I writ e se pa rat el y to em ph as iz e th at th is co nc ur ren ce is bu t on e Ju st ic e’s vi ew of th e st at ut e an d, be cau se it is on ly on e Ju st ic e’s vi ew, it sh ou ld no t be gi ve n un du e

w e i g h t b y th e di st ric t co ur t in it s an al y si s on rem an d. If a co nc ur rin g op in i o n
rep res en te d t he m ajor it y

vi ew, th is cas e wou ld ha ve be en res ol ve d o n t ha t b as is

. W it h al l du e res pe ct to th e co nc ur rin g op in io n, I be li ev e a di ffer en t an al y si s is

m eri te d. W hi le I do no su gg e s t t h a t my an al y si s rep res en ts th e pr ev ai li ng vi ew, I of fer it by way

of d em on st rat in g th e di ffi cu lt y face d by th e di st ric t cou rt on rem an d
in in te rp ret in g La. R.S . 9: 27 95 .3 wi th ou t d efi ni ti ve gu id an ce fr om th is co ur t.
W ha t o u r ru le s of st at ut or y co ns tru ct io n te ach us is th at th e fu nd am en ta l
qu es ti on in al l cas es of st at ut or y in te rp ret at io n is le gi sl at iv e in te nt , an d we be gi n ou r

se arch fo r th at in te nt wit h th e la ng ua ge of th e st at ut e. Mos s v. Sta te , 05 -1 96 3, p. 15 (La. 4/ 4/ 06 ), 92 5 So .2d 11 85 ,11 96 ; se e al so , Con nect ic ut Nat . Ba nk v. Ger m ai n , 50 3 U.S. 24 9, 25 3- 54 (1 99 2) (“ W e ha v e st at ed ti m e an d ag ai n th at co ur ts m us t
pr es um e th at a le gi sl at ur e sa y s in a st at ut e wha t it m ean s an d m ean s in a st at ut e wha t it sa y s th ere.” ). In th is cas e, ev en a cu rs or y ex am in at io n of th e la ng ua ge of La. R.S.
9: 27 95 .3 rev eal s th at th e le gi sl at ur e ha s ex te nd ed im m un it y to s o me, b ut no t al l,
act iv it ie s in vo lv in g eq ui ne s. Thi s is ev id en ced by th e r e a l i t y th at , whi le th ere are

m an y fact s su rro un di ng th e acci de nt th at rem ai n in di sp ut e, it is un di sp ut ed th at th e

a c t i v i t y in whi ch th e pl ai nt iff was en ga ge d– pe tt in g th e ho rs es an d feed in g t h e m
tre at s– is no t am on g th e a ct iv it ie s sp eci fic al ly en um erat ed in th e st at ut e as fal li ng wit hi n t he de fin it io ns of “ en ga ge s i n a n e qu in e act iv it y ” o r of “ eq ui ne act iv it y .” The co nc ur rin g op in io n at te m pt s to rem ed y th is om is si on th ro ug h an ex pa ns iv e read in g of La. R.S. 9: 27 95 .3(A) (3 )(e) , whi ch de fin es an “ eq ui ne act iv it y ” as “ [a] rid e, tri p, hu nt , o r ot he r eq ui ne act iv it y of a n y type ho wev er in fo rm al or im pr om pt u th at

are sp on so red by an eq ui ne act iv it y sp on so r.” Howev er, th e la ng ua g e o f th is

2pr ov is io n do es no t al lo w fo r it s in te rp ret at io n as th e no n- ex ha us ti ve li st of il lu st rat iv e

act iv it ie s th e co nc ur rin g op in io n wou ld read it as
. Rat he r, th e “ eq ui ne act iv it y ” m us t be “ sp on so red by an eq ui ne act iv it y sp on so r.” Mo reo ve r, th e ph ras e “ or ot he r eq ui ne
act iv it y of an y type ho wev er in fo rm al or im pr om pt u” is pr eced ed by t he qu al ifyin g ph ras e “ [a] rid e, tri p, hu nt .” Pet ti ng , ta lk in g to an d gi vi ng tre at s to ho rs es ha rd ly fal ls
wit hi n th e un iv ers e of act iv it ie s rel at in g to a rid e, tri p or hu nt –t he act iv it ie s ad dr es se d
in th is su bs ect io n. Fi na ll y , a nd m os t s ig ni fic an tl y , th e “ eq ui ne act iv it y ” refe ren ced
in th is su bs ect io n i s i ts el f a d efi ne d t erm , th e d efi ni ti on be in g c on ta in ed in La. R .S.
9: 27 95 .3(A) (3 )(a) -(f). Cl earl y , ha d th e le gi sl at ur e in te nd ed t o co nf er a br oa d, al len co m pa ss in g i m

m un it y , it co ul d h av e d on e so ve ry si m pl y by ex te nd in g im

m un it y
to al l “ eq ui ne act iv it y ,” wit h o u t a dd in g th e ex te ns iv e an d de ta il ed de fin it io na l
la ng ua ge in th e st at ut e de li ne at in g wha t act iv it y co ns ti tu t e s “ eq ui ne act iv it y ” an d
wha t “ en ga ge s i n a n e qu in e act iv it y ” m ean s. La. R.S. 9 :2 79 5.3 (A)(1 ) an d (3 ). The
fact th at th e le gi sl at ur e d id no t ch oo se th at pa th is tel li ng
. In craf ti ng La. R.S. 9: 27 95 .3, th e le gi sl at ur e h a s go ne to gr eat le ng th s to de li ne at e ex act ly wh a t c o nd uc t is en co m pa ss ed wit hi n th e gr an t of st at ut or y im m un it y . Pet ti ng an d ta lk in g to ho rs es , as well as feed in g th em tre at s, is no t co nd uc t th at is de li ne at ed in th e st at ut e as be in g s ub ject to th e gr an t of im m

un it y . Thu s,

co ns is te nt wit h th e lo ng -s et tl ed ru le th at st at ut es in de ro ga ti o n o f co m m on la w or

na tu ral rig ht s mu st be st ric tl y co ns tru ed , I m us t, fo r th e reas on s ci te d ab ov e, 1

res pe ct fu ll y

di sa gr ee wi th th e st at ut or y an al y si s o f m

y est eem ed co ll eag ue
. Fi na ll y , an d in so far as th e m ajor it y op in io n is co nc ern ed , I wou ld no te th at La.
R.S. 9: 27 95 .3(C )(2 ) pr ov id es an ex em pt io n fro m st at ut or y im m un it y fo r th e fai lu re

See, Monteville v. Terr ebonne P arish C onsol. G overnm ent , 567 So.2d 1097, 1100-1101 (L a. 1 1990) (a nd case s cited there in). 3of an eq ui n e act iv it y sp on so r, eq ui ne pr of es si on al , or an y ot he r pe rs on to “ m ak e

reas on ab le an d pr ud en t effo rts to de te rm in e th e ab il it y of th e pa rti ci pa nt to en ga ge

sa fel y in th e eq ui ne act iv it y an d to sa fe ly man ag e th e pa rt ic ul ar eq ui ne ba se d on th e
pa r t i ci pa nt ’s rep res en ta ti on s of hi s ab il it y .” La. R.S. 9: 27 95 .3(C )(2 ) (em ph as is

a d d e d)

. In th e pr es en t cas e, th ere is te st im on y th at th e sc ho ol po ny, W es le y , ha d
pr ev io us ly bi tt en a ch il d, crea ti ng a fact ua l di sp ut e as to whe th er th e ho r s e h ad a kn own hi st or y of bi ti ng
. The re is al so di sp ut ed te st im o n y a s to whe th er si gn s ha d
be en po s t e d w a r n i n g pe op le no t to feed th e ho rs es
. Giv en th e ex is te nc e of th es e di sp ut ed is su es of m at eri al fact , I co nc ur in th e m ajor it y ’s de ci si o n t o affi rm th e de ci si on of t he co ur t o f ap pe al an d re m an d t hi s m at te r to th e d is tri ct co ur t.

41 05/03/2017 SUPREME COURT OF LOUISIANA No. 2016
- C
- 0745 DANIELLE LARSON VERSUS XYZ INSURANCE COMPANY, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL , FOURTH CIRCUIT, PARISH OF ORLEANS

GUIDRY , Justice , concurs and assigns reasons . I concur in the majority’s holding that summary judgment was not warranted

at t his juncture of the proceedings and that a remand for trial is necessary in this

case , becaus e there remain genuine issues of material fact on the issue of whether the Equine Immunity Statute applies

. Infra , p. 1. In reversing the trial court’s grant of summary judgment, a majority of the court of appeal reasoned t he plaintiff was

a “ spectator ” rather than a “ participant ” w ithin the meaning of the Equine Immunity Statute , a view contrary to the findin g of the trial court, which had determined the plaintiff was a “ participant ” and granted summary judgment without considering other relevant portio ns of the immunity statute

. The concurring judge in the court of appeal found there exist genuine issues of material fact as to whether the plaintiff was a “ participant. ” In my view, the trial court was correct in finding the plaintiff to be a “ participant ” engaging in equine activity within the meaning of the statute

. S ee La. R.S. 9:2795.3(A) (3)(e) . Further, because the plaintiff asked for and was given permission by the defendant’s employee to touch and feed the horses , according to her own deposition tes timony , the existence of a sign prohibiting such would not preclude a finding that the equine activity in which the plaintiff was engaged had been sponsored by the defendant.2 Notwithstanding my appreciation of the Equine Immunity Statute and the evidence presented thus far in regard to the motion for summary judgment, I respectfully concur in the holding of the court’s opinion today, which simply affirms the “ruling” of the court of appeal reversing the trial court’s grant of the defendant’s motio n for summary judgment, and remands the matter to the trial court for further proceedings. Infra , p. 8.05 /03/2017

SUPREME COURT OF LOUISIANA No. 2016
- C
- 0745 DANIELLE LARSON VERSUS XYZ INSURANCE COMPANY, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
CRICHTON, J., concurs for the reasons assigned by Guidry, J.