Frank v. Pitre

• Decision Date: 19 December 1977
• Docket Number: No. 59630,59630
• Citation: 353 So.2d 1293
• Parties: Chester FRANK v. Elin PITRE, Sheriff of Evangeline Parish.
• Court: Louisiana Supreme Court

Page 1293

353 So.2d 1293

Chester FRANK v. Elin PITRE, Sheriff of Evangeline Parish.

No. 59630.

Supreme Court of Louisiana.

Dec. 19, 1977.

Rehearing Denied Jan. 27, 1978.

Marion Overton White, White & Pitre, Opelousas, for plaintiff-appellee.

J. Wendel Fusilier, Fusilier, Pucheu & Soileau, Ville Platte, for defendant-appellant.

DIXON, Justice.

This application was granted to review the ruling of the Court of Appeal, 341 So.2d 1376 (La.App. 3d Cir. 1977), in awarding damages to a policeman who had suffered gunshot wounds in the performance of his duty. Plaintiff had been shot in attempting to quell a barroom disturbance by one L. J. Dick, who was killed in the melee. Dick was supposed to be a prisoner in the Evangeline Parish jail at the time. Defendant, Elin Pitre, was the custodian of the jail, and was cast in judgment.

Dick was a young man, recently returned on parole from Angola where he was serving a sentence for burglary. While on parole he was again arrested for burglary and was in jail on that charge and as a parole violator.

The courts below found that Dick had been permitted to leave the jail on the Saturday in question under a lenient policy of granting "passes" to certain prisoners. Testimony of deputies (Pitre did not testify) tending to establish that Dick escaped from the antiquated jail with a key they found in his bed was not believed.

Accepting the facts relied upon by the courts below to find the defendant negligent, we are unable to agree with their conclusion that there was sufficient causation between the negligence and the injury to cast the defendant. The Court of Appeal held that one of the main reasons to incarcerate a prisoner is to protect the public from him, and that it was a natural, probable and foreseeable consequence that Dick might intentionally injure someone if released.

A prisoner arrested for burglary is entitled to bail. Art. 1, § 18, La.Const.1974. The purpose for incarceration after arrest for a crime is to assure the presence of the accused for trial. Although a parolee does not have the constitutional right to bail, he may be admitted to bail within the discretion of the trial judge. Argro v. United States, 505 F.2d 1374 (1974); U. S. v. Schreiber, D.C., 367 F.Supp. 791 (1973). A parole violator is entitled to a quick "probable cause" hearing when charged with violating the conditions of release. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); R.S. 15:574.2-574.11. It is true that a parole officer may cause to be incarcerated a parolee suspected of a violation when the delay for a hearing might cause an undue risk to the public or to the parolee. There is no such evidence in this record. The probation or parole officer merely placed a detainer on Dick when he was jailed for burglary, apparently awaiting the conviction to commence revocation proceedings. (Dick had been in jail about a month when the shooting occurred). Since there was nothing in Dick's background to connect him with serious, violent crime, or with shooting, we cannot agree with the conclusion that one of the main purposes of the incarceration of Dick was to protect the public from intentional injury by him.

This case is not the first in which the liability of those charged with the custody of prisoners was at issue. In Green v. State of Louisiana, 91 So.2d 153 (La.App. 1st Cir. 1956), plaintiffs filed suit against the State for damages incurred when a fifteen year old inmate of a State institution escaped and negligently operated an automobile in such a fashion as to injure the plaintiffs. Defendant's exception of no cause of action was sustained by the trial court and the plaintiffs appealed. The First Circuit Court of Appeal affirmed the ruling, holding that even assuming the State employees to be negligent in allowing the prisoner to escape, as a matter of law, the acts were not the "direct, efficient and proximate cause of plaintiffs' injuries." Then Judge Tate, writing for the court, discussed the duty in the following manner:

"An institution's duty to restrain a convicted criminal is not based upon the purpose of protecting the general public from all harms that the prisoner might inflict if he were allowed to escape. A convicted person may be as dangerous on the day of his legal release as he was on the first day that he was confined, although the institution may still be under a legal duty to detain or to release him. There is no more reason for the State to be civilly responsible for the convict's general misconduct during the period of his escape than for the same misconduct after a legal release, unless there is some further causal relationship than the release or escape to the injuries received. . . ." 91 So.2d at 155.

In a case decided by the First Circuit the same day as Green, Webb v. State of Louisiana, 91 So.2d 156 (La.App. 1st Cir. 1956), the plaintiff brought suit against the State alleging that the negligence of State employees allowed a prisoner to obtain a gun and escape. During that escape, the plaintiff was shot. The Court of Appeal affirmed the trial court's judgment in favor of plaintiff, noting that the inflicting of wounds during an escape was a "most probable and reasonable foreseeable consequence of the original act or acts of negligence." 91 So.2d at 163. See also Walker v. Interstate Fire & Casualty Insurance Co., 334 So.2d 714 (La.App. 2d Cir. 1976); Geiger v. State of Louisiana, 242 So.2d 606 (La.App. 1st Cir. 1970). One further case is instructive. In Cappel v. Pierson, 15 La.App. 524, 132 So. 391 (2d Cir. 1931), plaintiff brought a wrongful death action against the superintendent of the Central Louisiana State Hospital after an inmate of that institution killed her husband on the day of his release. The Court of Appeal affirmed the judgment in favor of the defendant on two grounds. First, the court stated that the defendant's good faith execution of his quasi-judicial, discretionary authority could not be questioned in a civil damage suit. Second, and more importantly for our purposes, the court held that even assuming the negligence of defendant in releasing the inmate, that negligent act could not be the basis of liability because it was not the proximate cause of the death of plaintiff's husband. The court, by quoting a passage from a North Carolina case, noted that the release of the inmate ". . . was a mere condition which accompanied but did not cause, the injury . . ." 132 So. at 392.

It is not enough to say that if Dick had not been released under the sheriff's policy of weekend passes, the tragedy would not have occurred. If Dick's friend had not given him a ride to town the shooting would not have happened. There must be something more; there must be a closer connection between the act of the defendant and the injury of the plaintiff. Although Professor Stone says, "Proximate cause as a theory in negligence cases appears to be out in Louisiana" (Stone, Tort Doctrine, 12 La. Civil Law Treatise 54), it may be that proximate cause survives, and influences judges to say there is no liability, even though a reasonable man might have concluded, if he had thought about it, that a prisoner allowed to go home on Saturday might have gotten into a brawl in a saloon and shot a policeman. Whatever the theoretical basis for liability is called, the claimed cause of the injury (the release of Dick) did not sufficiently contribute to the injury to create liability in defendant.

The judgment of the Court of Appeal is reversed, and there is now judgment in favor of the defendant, rejecting the demands of the plaintiff, at plaintiff's cost.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, J., dissents for the reasons assigned.

TATE, J., assigns concurring reasons.

TATE, Justice, concurring.

Assuming that the defendant sheriff violated some legal duty by affording the prisoner a weekend pass, this violation was not the proximate or "legal" cause of the plaintiff's injuries. For a defendant's violation of a duty to be a legal cause of an injury, his violation must not only be a cause in fact of (i. e., a substantial factor contributing to) the injury, but the duty violated must also have included within its purpose the prevention of the risk encountered by the plaintiff to his injury. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive-It-Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Robertson, Reason v. Rule in Louisiana Tort Law, 34 La.L.Rev. 1 (1973).

Here, as the majority correctly notes, the sheriff's duty to confine the person held for bailable charges plainly did not include within its scope the protection of third persons from injury should the prisoner be released, with or without bail. I would prefer to rest our conclusions solely upon this analysis of proximate ("legal") cause, rather than also upon the additional use of pre-Dixie principles enunciated by the majority.

SUMMERS, Justice (dissenting).

Plaintiff Chester Frank instituted this suit in tort against Elin Pitre, Sheriff of Evangeline Parish. A cause of action is asserted based upon allegations of injuries incurred by Frank when he was shot and seriously wounded by L. J. Dick shortly after midnight on September 12, 1971. At the time L. J. Dick was alleged to be on temporary leave from custody in the Evangeline Parish prison by virtue of the sheriff's orders.

After a bench trial judgment was rendered in favor of the plaintiff Frank against the defendant Pitre for $41,004, with interest and costs. On appeal to the Third Circuit the judgment was affirmed. 341 So.2d 1376 (1977). Certiorari was granted on defendant's application. 345 So.2d 53 (La.1977).

In important particulars the facts are disputed. In these instances the credibility of witnesses was at issue and the factual determinations were resolved in favor of plaintiff by the trial court and the Court of Appeal. A...