94 1859 La.App. 1 Cir. 5/5/95, Hill on Behalf of Hill v. Joseph

• Decision Date: 05 May 1995
• Citation: 655 So.2d 486
• Parties: 94 1859 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 486

655 So.2d 486

94 1859 La.App. 1 Cir. 5/5/95

Evelyn T. HILL on Behalf of Kimberly Ranee HILL v. Warren JOSEPH, Jr., et al.

No. 94 CA 1859.

Court of Appeal of Louisiana First Circuit.

May 5, 1995.

Rehearing Denied June 21, 1995.

Johnnie A. Jones, Jr., Baton Rouge, for plaintiff-appellant Evelyn T. Hill, on behalf of Kimberly Ranee Hill.

Tamara D. Simien, Baton Rouge, for defendant-appellee Warren Joseph, Jr., et al.

Before WATKINS and FOGG, JJ., and TANNER, ¹ J. Pro Tem.

[94 1859 La.App. 1 Cir. 2] WATKINS, Judge.

Plaintiff, Evelyn T. Hill, appeals the dismissal of her suit against defendant, Walter "Butch" Naquin, on an exception of no cause of action. Because we find that the plaintiff has failed to set forth a cause of action, we affirm the dismissal of her claims.

Ms. Hill, on behalf of Kimberly Ranee Hill, filed suit against several defendants for the wrongful death of Kimberly's mother, Kim Marie Hill. The plaintiff's petition states in pertinent part:

I.

Defendants herein, WARREN JOSEPH, JR.; RICHARD STALDER, in his official capacity as SECRETARY, LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; WALTER "BUTCH" NAQUIN, JR., in his official capacity as DISTRICT ATTORNEY, 17TH JUDICIAL DISTRICT; and EARL JONES d/b/a BEADY'S CELEBRITY LOUNGE, are all indebted to Kimberly Ranee Hill, in solido, for the reasons stipulated herein below:

II.

On or about Saturday, 11/14/92, at about 1:00 o'clock a.m., Kimberly Ranee Hill's mother, Kim Marie Hill, was shot and killed while minding her own business and patronizing the business known as Beady's Celebrity Lounge located in Thibodaux, when she was attacked by the known-to-be-violent convicted criminal defendant, Warren Joseph, Jr., who had been stalking her, while he was on parole from the Department of Corrections.

III.

Petitioner avers that the proximate cause of Kim Marie Hill's death was the intentional act of the defendant, Warren Joseph, Jr., and the negligence of the defendants, Richard Stalder, Walter "Butch" Naquin, Jr., and Earl Jones, consisting more particularly, but not exclusively, of their failure to protect Kim Marie Hill from the murderer who they knew had previously threatened her life.

The peremptory exception of no cause of action tests the legal sufficiency of the petition. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Haskins v. Clary, 346 So.2d 193 (La.1977).

[94 1859 La.App. 1 Cir. 3] The petition must set forth material facts upon which the cause of action is based. LSA-C.C.P. art. 891. The correctness of conclusions of law is not conceded for the purposes of a ruling on an exception of no cause of action. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980).

When an exception of no cause of action is based on an affirmative defense, the exception must be overruled unless the allegations of the pleading exclude every reasonable hypothesis other than the premise upon which the defense is based. Owens v. Martin, 449 So.2d 448, 452 (La.1984).

Herein, the defendant brought the peremptory exception of no cause of action based upon the affirmative defense of absolute or qualified prosecutorial immunity.

As a general rule, a district attorney is immune from civil liability for acts committed in the performance of his prosecutorial duties, absent allegations and proof of malice. Dickerson v. Kemp, 540 So.2d 467 (La.App. 1st Cir.1989). This immunity is derived from the doctrine of judicial immunity. When a district attorney acts in a judicial or quasi-judicial capacity, he enjoys essentially the same immunity from liability for damages that protects a judge. Foster v. Powdrill, 463 So.2d 891 (La.App. 2d Cir.1985). "However, since this immunity is conferred on the district attorney solely by virtue of the office he holds, the rule becomes different if the district attorney acts in a matter clearly outside the authority or jurisdiction of his office. As the district attorney is acting in another capacity, then the reason for his immunity, the integral relationship between his acts and the judicial process, ceases to exist." Id. at 893.

The plaintiff seeks recovery from the defendant for his alleged failure to...