Dennis v. Wiley

• Decision Date: 11 September 2009
• Docket Number: No. 2009 CA 0236.,2009 CA 0236.
• Citation: 22 So.3d 189
• Parties: Lisa D. DENNIS v. Jeffrey F. WILEY, Individually, and in his Capacity as Sheriff of Ascension Parish, Harold Tridico, Individually, and in his Capacity as Former Sheriff of Ascension Parish, QRS Insurance Company, and XYZ Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

22 So.3d 189

Lisa D. DENNIS v. Jeffrey F. WILEY, Individually, and in his Capacity as Sheriff of Ascension Parish, Harold Tridico, Individually, and in his Capacity as Former Sheriff of Ascension Parish, QRS Insurance Company, and XYZ Insurance Company.

No. 2009 CA 0236.

Court of Appeal of Louisiana, First Circuit.

September 11, 2009.

Georgia G. Turgeau, Tracey Powell, Slidell, LA, Attorney for Plaintiff-Appellee, Lisa D. Dennis.

Fred Schroeder, Craig E. Frosch, New Orleans, LA, Attorneys for Defendants-Appellants, Sheriff Jeffrey Wiley and Former Sheriff Harold Tridico.

Before CARTER, C.J., GUIDRY and PETTIGREW, JJ.

CARTER, C.J.

This case involves a res nova issue in Louisiana: whether the victim of a crime is entitled to an award of damages for the negligent infliction of emotional distress due to the wrongful disposal of evidence collected during an ongoing criminal investigation. The trial court awarded the plaintiff $50,000.00 for the emotional distress and mental anguish she suffered as a result of the defendant's breach of duty to preserve the criminal evidence. For the following reasons, we reverse.

FACTS

It is undisputed that twenty years ago, on January 31, 1989, the plaintiff, Lisa Dennis, was raped at knifepoint by an unknown assailant in her Donaldsonville, Louisiana home. The Ascension Parish Sheriffs Office (Sheriffs Office) investigated the aggravated rape.¹ As part of the investigation, the plaintiff was taken to the Provost Memorial Hospital where a rape kit was conducted. Additionally, the plaintiffs clothing was collected, her home was processed for evidence, and she provided a physical description for a composite sketch of her attacker. Unfortunately, the rapist was never identified, arrested, or prosecuted, and the plaintiffs case remains open and unresolved to this date.

Fourteen years after the attack, in May 2003, the plaintiff was watching media coverage of the Baton Rouge area serial rapist and killer, Derrick Todd Lee. Convinced that the serial killer was her attacker, the plaintiff contacted the Sheriffs Office to identify him as the possible rapist. The plaintiff requested that the Sheriffs Office examine the evidence collected during the investigation of her 1989 rape to determine if the serial killer was her assailant. The same detective who had investigated the initial crime handled the ongoing investigation.

During a search for the evidence, the Sheriffs Office quickly ascertained that the plaintiffs rape kit, as well as all of the other physical evidence connected with the initial investigation, had been destroyed pursuant to a court order in 1995. The court ordered the disposal of the evidence following the Sheriffs Office request that the District Attorney for Ascension Parish file a motion to dispose of the evidence. It is undisputed that the District Attorney's motion to dispose of the evidence in 1995 was based on the fact that the evidence had been mislabeled by the Sheriffs Office as evidence of a crime that could no longer be prosecuted and was therefore considered abandoned/forfeited contraband held in connection with a criminal investigation.

On June 9, 2003, the Sheriffs Office conducted a meeting with the plaintiff to inform her that the evidence had been mislabeled as a simple rape case instead of an aggravated rape case. The Sheriffs Office explained that evidence for a simple rape case could legally be disposed of after a statutorily-mandated period of time because the offender could no longer be prosecuted for the crime and that there was no statute of limitation for the destruction of evidence in an aggravated rape case. The Sheriffs Office also informed the plaintiff that the physical description of her rapist did not match the physical description of the serial killer (based on the serial killer task force timeline); thus, there was no positive lead or identification linking the serial killer to the plaintiffs rape. Additionally, the Sheriffs Office told the plaintiff that her case would continue to be an ongoing and open criminal investigation even without the evidence.

On June 7, 2004, the plaintiff filed suit against the Sheriffs Office for the negligent infliction of mental anguish and emotional distress as a result of the Sheriff's Office incorrectly disposing all of the evidence connected with her 1989 aggravated rape. The plaintiff made no allegations of intentional destruction of the criminal evidence. Instead, she alleged that the actions of the Sheriffs Office were reckless, wanton, and grossly negligent. The plaintiff maintained that when she learned the evidence had been mistakenly destroyed, she re-lived the emotional terror, trauma, and severe distress that accompanied the initial attack, and that her life was drastically altered just as it had been immediately after the attack. The plaintiff also alleged that she was extremely fearful, and she felt vulnerable, humiliated, and re-victimized. The plaintiff testified that although she realized that the Sheriffs Office did not intentionally set out to harm her by destroying the evidence, she would never have closure or peace of mind because her attacker is not behind bars and there is no longer any evidence that can be used to prosecute the rapist in the future, or for use in any available legal remedy she may have against her assailant if he should ever be identified. The plaintiff acknowledged, however, that she may be able to identify the rapist based on her eyewitness recollection.

After a bench trial on June 18, 2008, the trial court ruled that the Sheriffs Office had liability for negligent infliction of emotional distress, finding that the Sheriffs Office had breached its duty to retain and preserve the evidence of the plaintiffs aggravated rape, and that the breach had caused the plaintiffs damages. The trial court issued lengthy reasons for judgment, outlining the law on the duty-risk analysis and examining the jurisprudence on emotional distress and mental anguish damage awards. The trial court concluded that the plaintiff was entitled to $50,000.00 from the Sheriffs Office. The Sheriffs Office appealed, arguing that it has no liability under these facts, and alternatively, that the damage award was excessive.

LAW AND ANALYSIS

Initially, we note that the Sheriffs Office pled the affirmative defense of discretionary function immunity under LSA-R.S. 9:2798.1 based upon the exercise or performance of its policy-making or discretionary acts within the course and scope of its lawful powers and duties. But the issue of statutory immunity was not addressed by the trial court in its lengthy written reasons for judgment, nor was this issue raised by the Sheriffs Office in its appellate brief. However, an appellate court may notice ex proprio motu that the law does not extend a remedy against a particular defendant. LSA-C.C.P. art. 927 B; See Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97-0098 (La. App. 1 Cir. 2/20/98), 709 So.2d 248, 251. And we must first determine whether the discretionary function immunity of LSA-R.S. 9:2798.1 applies so that the Sheriffs Office can be exposed to liability in this case. Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La.5/20/03), 851 So.2d 959, 963.

Under these factual allegations, it is apparent that the mislabeled evidence that led to the Sheriffs Office's decision to dispose of the evidence in the plaintiffs criminal case is not the kind of discretionary choice or action that is based on public policy. The Sheriffs Office admits that a mistake was made after the collection of the evidence and that the evidence was mislabeled as pertaining to an investigation of a simple rape instead of an aggravated rape case. This mistake was not the result of a decision based on social, economic, or political policy, nor was it a discretionary act within the Sheriffs Office lawful duties. When the government acts negligently for reasons unrelated to public policy considerations, it is liable to those it causes injury. See Gregor, 851 So.2d at 968. Therefore, the Sheriffs Office cannot rely on statutory immunity to shield itself from potential negligence liability in this situation.

A claim for negligent infliction of genuine and serious emotional distress is a viable claim in Louisiana. See Moresi v. State Dept. of Wildlife and Fisheries, 567 So.2d 1081, 1096 (La.1990); see also Barrino v. East Baton Rouge Parish School Bd., 96-1824 (La.App. 1 Cir. 6/20/97), 697 So.2d 27, 33. Recovery for mental anguish or emotional distress is based on LSA-C.C. art. 2315, which provides in part: "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Courts use the duty-risk analysis to determine recovery under article 2315. Barrino, 697 So.2d at 33. For liability to attach under the duty-risk analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm or damages, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, 613. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Barrino, 697 So.2d at 33-34.

In this case, the Sheriffs Office readily admits that a mistake was made in the processing of the evidence obtained during the investigation of the plaintiffs rape resulting in the mislabeled evidence. The mislabeling mistake led to the court-approved destruction of the evidence after the statutorily-mandated time period for retention of criminal evidence had passed.² The Sheriffs Office vehemently denies, however, that it owes any special duty to preserve evidence obtained during the investigation of a particular crime for the benefit of the victim of the crime. We find merit to this argument. Our...