Barlow v. City of New Orleans

• Decision Date: 09 November 1970
• Docket Number: No. 50301,50301
• Citation: 241 So.2d 501,257 La. 91
• Parties: Roger D. BARLOW v. CITY OF NEW ORLEANS and Travelers Insurance Company.
• Court: Louisiana Supreme Court

Page 501

241 So.2d 501

257 La. 91

Roger D. BARLOW v. CITY OF NEW ORLEANS and Travelers Insurance Company.

No. 50301.

Supreme Court of Louisiana.

Nov. 9, 1970.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, and R. Henry Sarpy, Jr., New Orleans, for defendants-appellants.

Law Offices of Steven R. Plotkin, Steven R. Plotkin and Owen J. Bradley, New Orleans, for plaintiff-appellee.

McCALEB, Justice.

We granted certiorari at the instance of defendants, City of New Orleans and its public liability insurer, Travelers Insurance Company, to review a judgment of the Court of Appeal (4th Cir.) affirming a judgment awarding $9,100 damages for injuries sustained by plaintiff as the result of a fire originating in the rear of a locked police car in which plaintiff had been placed and left unattended by two police officers of the City of New Orleans following his arrest for public drunkenness. See Barlow v. City of New Orleans, La.App., 228 So.2d 47.

At about 8 o'clock on the morning of February 27, 1967 the police officers, O'Neill and Marchese, stopped at the Camp Inn barroom located at 801 Camp Street in the City of New Orleans primarily for the purpose of inducing the proprietor of the bar to play a phonograph record made by a fellow police officer on the juke box of the establishment. When they entered, plaintiff was slumped over a table in the bar in a highly intoxicated condition and, at the request of the proprietor, Gabriel Castrinos, plaintiff was arrested and taken by Officer O'Neill to the police car where he was locked in the rear compartment used for the temporary confinement of prisoners upon arrest. At the time plaintiff was arrested for public drunkenness, he was in such a state of intoxication that he could not walk and had to be assisted to the vehicle. ¹ A 'pat down' was conducted by O'Neill before plaintiff was placed in the police car and, when he locked him in the rear compartment, the officer then returned to the bar where, allegedly, his partner was making a search of the back rooms for vagrants or other intoxicated persons. Some minutes after plaintiff was thus left unattended in the police vehicle, with all windows rolled up and locked securely, a fire broke out in the rear section where he was incarcerated. The officers were then summoned by a person unknown ² and, upon release of the automatic locks, plaintiff emerged from the car. He suffered burns to his arms, legs and other parts of his body for which he was treated and confined at Charity Hospital for some forty-two days.

This suit for damages followed in which recovery is sought on the basis of the alleged negligence of the police officers in leaving plaintiff unattended in the locked vehicle in his intoxicated condition, and in failing to protect him from the hazard which caused his injuries. The defendants deny negligence on the part of the police officers and assert, alternatively, the defense of contributory negligence, contending that plaintiff started the fire by striking matches. It is alleged that, because investigation disclosed the presence of spent matches in the rear of the police car and that no mechanical or electrical failure existed, it may be inferred, in the absence of any other evidence as to the cause of the fire, that it was started by the striking of matches by plaintiff himself.

Plaintiff denies he started the fire. Also, in dispute is the length of time plaintiff was left unattended in the locked vehicle (estimates were given ranging from a few minutes to fifteen minutes) and the reason for Officer O'Neill leaving plaintiff after the arrest and why he returned to the bar. ³

Both the district court and the Court of Appeal concluded that there was a breach of duty on the part of the officers under the circumstances presented, i.e., the extreme state of intoxication of plaintiff, the absence of an emergency necessitating the officers leaving plaintiff unattended, and the fact that the vehicle was locked which made it impossible for plaintiff to escape from the danger to which he was exposed by reason of the fire. Neither court perceived merit in the affirmative defense of contributory negligence.

Defendants contend here that the Court of Appeal erred in holding the police officers guilty of any breach of duty; in concluding that Officer O'Neill was negligent in leaving plaintiff unattended in the rear of the police vehicle; in finding that the fire was of unknown origin and should have been foreseeable by the arresting officers; and in failing to find contributory negligence on the part of plaintiff under the evidence adduced.

Concerning the charge of negligence against the police officers, counsel for defendants argue that, since the evidence of the arresting officers shows that plaintiff was a well-known, quiet drunk who had been arrested on many previous occasions by these officers in a more or less unconscious condition due to intoxication, it is unreasonable to deduce that they should have foreseen that, after plaintiff had been placed in the rear compartment of the police car in his helpless condition with the doors and windows well secured, he would sustain injury of any sort. The theory of this defense, of course, is the principal premise of defendants' case that plaintiff started the fire himself as a means of escape from the vehicle.

This postulation is untenable in our view. It seems manifest that where a person is arrested for drunkenness and confined in an automobile from which he cannot escape, it would be unrealistic to conclude that the arresting officers owe him no duty to see that he may not be harmed from an outside source or other source, or that he is not entitled to protection from injury resulting from his own unconscious acts while he is in the custody of the arresting officers. And it will not do, in the absence of a showing of an emergency which demanded the immediate attention of the officers to other police work, for the officers to say that because they were handling a docile drunk they could not foresee that he might suffer injury. On the contrary, the courts of this State have recognized the general principle stated in 38 American Jurisprudence, Negligence, Section 39, page 684 that, when a person is so intoxicated as to be incapacitated for physical or mental effort, a greater duty is owed to him by the person whose duty it is to exercise care for his safety. Shuff v. Zurich-American Insurance Company, La.App., 173 So.2d 392; Kimbrell v. American Indemnity Co., La.App., 56 So.2d 880. Such an intoxicated person has been likened to that of a child of tender years. In Gouzien v. Feraci, 2 La.App. 115, it is stated:

'But being drunk did not put him beyond the protection of the law. On the contrary, it placed him in the position of a child--or those unable to take care of themselves and called for more caution on the part of others. Horsthemke v. New Orleans Ry. & Light Co., 146 La. 931, 84 So. 210.'

The duty of care owed one under arrest and in custody to keep him safe and protect him within reasonable limits from injury not attributable to his own willful act has been recognized by all courts. For example, in Honeycutt v. Bass, La.App., 187 So. 848, which incidentally contains an excellent discussion of this principle by Chief Justice Hamiter, the court concluded that a jailer should and could reasonably anticipate the danger of placing a belligerent drunken prisoner, who had propensities to assault, with another drunken prisoner, who was the victim of the assault. It is the rule, apart from statutory requirements, that a sheriff or police officer owes a general duty to a prisoner to save him from harm and the officer is liable for...