Barlow v. City of New Orleans

• Decision Date: 03 November 1969
• Docket Number: No. 3639,3639
• Citation: 228 So.2d 47
• Parties: Roger D. BARLOW v. CITY OF NEW ORLEANS and Travelers Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 47

228 So.2d 47

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

No. 3639.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 3, 1969.

Rehearing Denied Dec. 1, 1969.

Writ Granted Jan. 20. 1970.

Plotkin, Sapir & Bradley, Steven R. Plotkin, Owen J. Bradley, New Orleans, for plaintiff-appellee.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, for defendants-appellants.

Before CHASEZ, BARNETTE and LE SUEUR, JJ.

BARNETTE, Judge.

Plaintiff, Roger D. Barlow, instituted suit seeking the recovery of damages for burn injuries he allegedly received on or about February 27, 1967, while confined in the rear seat of a patrol car of the New Orleans Police Department following his arrest for public drunkenness. Officers Gerald O'Neill and John Marchese arrested Barlow at a barroom on the corner of Camp and Julia Streets in the City of New Orleans. Plaintiff charged Officers O'Neill and Marchese with negligence in the performance of their police duties in failing to take the necessary steps and reasonable precautions to insure his safety by leaving him unattended in a locked police vehicle, and in failing to protect him from the hazard which caused his injuries. In the alternative he urged the doctrine of res ipsa loquitur and by supplemental petition the doctrines of last clear chance and discovered peril.

Defendants, the City of New Orleans, the employer of the police officers, and Travelers Insurance Company, the public liability insurer of the City of New Orleans, answered and denied negligence on the part of Officers O'Neill and Marchese. Defendants further alleged that the burns sustained by plaintiff were caused solely and proximately by his own negligence. In the alternative defendants urged the defense of contributory negligence. After trial on the merits judgment was rendered against defendants for the sum of $9,100. Defendants have appealed suspensively. Plaintiff answered the appeal seeking an increase in the award.

On the whole, there is no material conflict in the findings of fact of the trial court and the findings we have reached after a careful consideration of the record. As we discuss these facts below we will indicate the one or two points on which we have reached a different conclusion.

On the morning of February 27, 1967, New Orleans, Police Officers Gerald O'Neill and John Marchese reported for duty at 7:30 a.m. at the First District Police Headquarters. Their period of duty was to extend from 7:30 a.m. to 3:30 p.m. that day. Following roll call and a cursory inspection of their patrol vehicle, Car 14, they left their headquarters and proceeded to their patrol zone. Officer O'Neill was driving that day and Officer Marchese was writing the arrest reports. The patrol zone to which they were assigned embraced the corner of Camp and Julia Streets at which is located Camp Inn, a restaurant and bar. The area in question is known for the many drunks and vagrants who walk the streets and patronize the bars in that section. Officers O'Neill and Marchese had made many arrests of such persons in that area on prior occasions.

Shortly after 8 a.m. Officers O'Neill and Marchese entered Camp Inn and became engaged in a conversation with the owner of the establishment, Gabriel Castrinos, concerning the conditions in the area. The three proceeded to the rear of the establishment to play a phonograph record made by a fellow police officer in the hope that Castrinos would place the record on his juke box. At this point, plaintiff was observed seated at one of the tables apparently asleep with his head resting on his arms. Castrinos advised the officers that his waiters had attempted to remove the plaintiff from the premises but were unsuccessful in their efforts. After the record was played, the officers agreed that O'Neill would arrest the plaintiff for public drunkenness and take him to the patrol car while Marchese inspected the rear room of the establishment for possible loiterers and vagrants.

After awakening the plaintiff, Officer O'Neill walked him out to the patrol car, which was parked against the uptown curbing of Julia Street facing in the direction of St. Charles Avenue. A 'pat' search was made of the exterior of plaintiff's clothing and he was locked in the vehicle.

The patrol car was especially designed and equipped for the confinement and transportation of prisoners. The rear of the vehicle had a metal cage-like partition between the front and rear seats, with similar cage-like metal barriers over the rear windows. The handles on the rear doors had been removed and the latches could only be released by a push-button device located under the front dashboard. Barlow was locked in the back seat of the patrol car and immediately he slumped into a sleeping position.

After locking Barlow in the vehicle, O'Neill returned to the Camp Inn to assist Marchese if necessary in the inspection of the premises. The two officers engaged in further conversation with Castrinos, and some minutes later, the exact length of time being disputed, someone came to the front door and informed the officers there was a fire in the police car. The officers immediately rushed out to the vehicle and pressed the buttons to release the rear door latches. The left rear door opened on its own due to the vehicle being parked on an incline. Fire and smoke were noted in the left rear portion of the vehicle. Barlow, who was then located in the right rear portion of the vehicle proceeded from that point out of the left rear door through the flames. After attending to the plaintiff, the officers summoned a fire department crew who extinguished the fire. Barlow was removed to Charity Hospital for emergency care and treatment. He was released from Charity Hospital on April 10, 1967, having remained there for a period of 42 days.

The trial judge found that the officers were in the restaurant and bar 'approximately fifteen minutes' while Barlow was left unattended in the locked patrol car. The testimony is in conflict on this point, and we think it is impossible to determine factually the length of time Barlow was unattended. We think the preponderance of evidence indicates that it was not as long as 15 minutes.

The alleged negligence of Officers O'Neill and Marchese necessarily involves first a determination of the degree of care owed by them to plaintiff because of his intoxicated condition and his confinement and detention in the locked patrol car, and secondly, whether or not there was any breach of that duty. Interrelated with these questions is the issue of contributory negligence on the part of plaintiff.

From a reading of the record it is obvious that plaintiff was very drunk when placed in the patrol car. Officer O'Neill testified that he had to help Barlow out to the car. He stated: 'I had to assist the man. I had to hold onto him. If I didn't, he would have fallen on his face.' Barlow admitted that he had been on a drunken spree all weekend and that he probably had visited all the bars in the area. He could not recall if he had worked the previous Saturday. He had a long record of prior arrests for public drunkenness, several having been made by the two officers in this suit. However, the officers testified that Barlow was known as a 'quiet drunk' and caused little trouble.

Defendants argue that there was no negligence on the part of the officers in leaving Barlow unattended for a short time in the locked patrol car, especially in his condition of extreme intoxication apparently slumped in sleep and posing no immediate threat to safety of himself or others. Furthermore they argue that there was no duty on their part to anticipate the occurrence of a fire of unknown origin.

From our jurisprudence has evolved a principle of law that imposes upon a police officer the duty to exercise reasonable and ordinary care and diligence to prevent injury to a prisoner in his custody; but he is not charged with negligence in failing to prevent that which he cannot reasonably foresee might happen. The jurisprudence also supports the principle that in the case of an intoxicated prisoner the police officer is impelled to use a higher degree of care for his safety and protection than is necessary or expected in the case of one who has control of his physical and mental faculties and able to protect himself. See Shuff v. Zurich-American Insurance Company, 173 So.2d 392 (La.App.1st Cir. 1965); Kimbrell v. American Indemnity Co., 56 So.2d 880 (La.App.2d Cir. 1952); Honeycutt v. Bass, 187 So. 848 (La.App.2d Cir. 1939).

We must conclude that the fire was of unknown origin. Much testimony and argument was in the realm of speculation. It was factually established that there was no defect in the mechanical or electrical systems of the patrol car. There is no evidence to indicate that there was smoldering fire which suddenly burst into flame. After the fire was extinguished, water was standing a few inches deep in the recessed right and...