Mahl v. Himel

| iKLIEBERT, Chief Judge,

dissenting in part; concurring in part.

I agree with the majority opinion that a duty risk analysis must be utilized to determine liability on the part of defendants. However, I disagree with the majority’s decision to substitute their factual findings for those of the trial court. This violates the standard of appellate review set by our Supreme Court in Rosell v. ESCO, 549 So.2d 840, 844 (La.1980) which states as follows:

“It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or…