Frank v. Pitre

Decision Date31 January 1977
Docket NumberNo. 5779,5779
Citation341 So.2d 1376
PartiesChester FRANK, Plaintiff-Appellee, v. Elin PITRE, Sheriff of Evangeline Parish, Defendant-Appellant.
CourtCourt of Appeal of Louisiana — District of US

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

White & Pitre, Marion O. White, Opelousas, Murphy W. Bell, Baton Rouge, for plaintiff-appellee.

Before HOOD, C.J., and CULPEPPER and GUIDRY, JJ.

GUIDRY, Judge.

Plaintiff, a policeman for the City of Ville Platte, seeks damages for personal injuries sustained when he was shot by a prisoner of the Evangeline Parish Sheriff's Department. Made defendant is Elin Pitre, Sheriff of Evangeline Parish. The trial court rendered judgment in favor of plaintiff in the amount of $41,004.00. Defendant appeals.

The shooting occurred shortly after midnight on September 12, 1971 . Plaintiff, who at the time of the incident was uniformed and working in his capacity as a policeman, had been stationed in a section of Ville Platte known as the 'woods'. The 'woods' is a strip of bars and nightclubs fronting Dr. Carver Street in that city .

During the course of plaintiff's patrol of this area he was called upon to intervene in a fight which had broken out in the 'Happy Landing Club'. After quietening the row plaintiff escorted Sidney Gallow, one of the participants in the fight, outside for a talk. Following plaintiff's departure from the club with Gallow another scuffle arose inside. In this latter scuffle Jessie Sims, the floorwalker at the Happy Landing Club, was hit and knocked out by one L. J. Dick. Dick had not been involved in the previous altercation. After the blow by Dick, Sims fell unconscious to the floor. Dick then took Sims' pistol from his holster and headed for the door. At approximately the same time, plaintiff, who was standing across the street from the club with Sidney Gallow, left Gallow and walked towards the entrance to the Happy Landing. As Dick fled through the screen doors of the club he targeted plaintiff, then only 5 feet away. Plaintiff was shot three times by Dick. He sustained wounds in his chest, face and shoulder. L. J. Dick was shot to death at the scene by another city policeman.

Dick was at the time of this incident, a prisoner of the Evangeline Parish Sheriff's Department. About five weeks prior to this shooting incident, on August 5, 1971, Dick was arrested by the Ville Platte City Police on charges of simple burglary. At that time Dick had just returned to Ville Platte after serving 20 months in the State Penitentiary at Angola. Dick was on supervised probation at the time of his arrest on August 5, 1971. Dick was subsequently on or about August 12, 1971 transferred from the Ville Platte City jail to the Evangeline Parish jail. Thurman James, Dick's parole officer, as a result of this arrest issued a detainer on Dick for a parole violation. (C.Cr.P. Article 899). There is nothing in the record to suggest that the detainer was lifted or that Dick had been admitted to bail.

At the trial on the merits plaintiff contended that the proximate cause of his injuries was the negligence of the defendant in failing to keep L. J. Dick in custody. Specifically plaintiff alleged that Dick, known by defendant to have a propensity for violence, was at large in the community with the consent of defendant. Defendant denied that Dick had been released with his consent and further denied any responsibility for the incident contending that the prisoner was an escapee. Defendant alternatively asserted the defense of assumption of the risk.

The trial court found that the prisoner, L. J. Dick, was not an escapee, but rather had been given liberty in accordance with the policies of the defendant. The trial court determined that this negligence of the Sheriff and his subordinates contributed directly to the shooting of plaintiff, who was in no way at fault, and therefore defendant's negligence was the proximate cause of the damages plaintiff sustained. The trial court also determined that although the plaintiff was a police officer in a dangerous occupation he had not assumed the particular risk involved herein.

A determination as to whethr, under the circumstances of this case, defendant bears any responsibility to plaintiff for the injuries sustained must be reached by application of the duty-risk inquiry as espoused in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Under Hill, supra, this inquiry is as follows:

1. What, if any, duty was owed by defendant to plaintiff?

2. Was there a breach of the duty?

3. Was the breach of duty a substantial cause-in-fact of the injury?

4. Was the risk and harm within the scope of protection afforded by the duty breached?

WHAT, IF ANY, DUTY WAS OWED BY DEFENDANT TO PLAINTIFF?

A Sheriff has the responsibility for the custody of inmates in his parish jail. The Sheriff is the keeper of the public jail of his parish. LSA-R.S. 33:1435; LSA-R.S. 15:706, Walker v. Interstate Fire & Casualty Co., 334 So.2d 714 (La.App.2nd Cir. 1976). Accordingly, a sheriff has the legal duty to detain persons lawfully in his custody. However, further examination of this duty reveals that the duty of the Sheriff to maintain and restrain his prisoners 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. As stated in Green v. State, 91 So.2d 153 (La.App.1st Cir. 1956) writs denied February 25, 1957:

'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 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.'

Thus, if there be a breach of the Sheriff's duty to continue the prisoner's incarceration, it can only be complained of those whose injury was proximately caused by the breach. That is, the injury received should be one for the prevention of which the duty exists. A discussion of these elements will follow.

WAS THERE A BREACH OF THE DUTY?

We now examine the facts to determine whether the defendant, Sheriff, breached his duty. As aforestated the trial court found that the defendant was negligent in that he knew of L. J. Dick's propensities for violence but nonetheless allowed the prisoner weekend liberty.

Without question the evidence established that L. J. Dick was a man of violent propensities. Although most of the witnesses agreed that L. J. Dick seldom made use of weapons, it was generally agreed by all witnesses that Dick was a 'fighter' who had on numerous occasions been cited for breaches of the peace. Furthermore Dick had just recently returned from serving a sentence at the state penitentiary on a simple burglary conviction when he was again apprehended by the Ville Platte Police on another charge of simple burglary. The Sheriff was aware that Dick was awaiting trial on this latter charge and that a detainer had been issued charging him as a parole violator.

The evidence also establishes that L. J. Dick was not an escapee, but rather, the prisoner, accompanied by two fellow inmates, had just signed out and left the parish jail with the apparent consent of the jailer. The testimony reflects that the prisoners left the jail on Saturday morning, September 11, 1971. Defendant denies that L. J. Dick was given liberty and instead contends that L. J. Dick left by means of a pass key he had secured from another prisoner. The trial court rejected this contention. We find no error in this determination. In any event, the evidence is clear that defendant was aware that Dick was not incarcerated and yet made no real effort to recapture him. The Sheriff's deputies testified that on September 11, 1971 during the late afternoon, after Dick was found to be missing, a patrol car was sent to the prisoner's mother's house. The mother denied this. The Sheriff's deputies admitted that this was the only action they took since they were not concerned about Dick's absence and figured he would be back . The Sheriff's department issued no bulletins for the pickup of L. J. Dick, nor did the Sheriff's log book indicate that Dick had escaped.

Under the evidence outlined above we agree with the findings of the trial court. The prisoner L. J. Dick had violent propensities which were known to the defendant, yet knowing this the defendant custodian failed to act in a reasonable manner in securing or in trying to re-secure the custody of Dick. We conclude that under the facts of this case the defendant had a duty to retain and maintain the prisoner L. J. Dick in his custody and that he breached this duty.

WAS THE BREACH OF DUTY A SUBSTANTIAL CAUSE-IN-FACT OF THE INJURY?

Simply stated, but for the defendant's breach of duty to keep his prisoner in custody, the plaintiff would not have been shot by the prisoner. Certainly this breach of duty which enabled this prisoner of violent propensities to be free of defendant's custody was a substantial cause in fact of the plaintiff's injuries.

WAS THE RISK AND HARM WITHIN THE SCOPE OF PROTECTION
AFFORDED BY THE DUTY BREACHED?

Having determined that the defendant's breach of his legal duty was a cause in fact of the plaintiff's injuries we now determine if the duty breached was a duty imposed to protect against the particular risk involved. If so the defendant's liability has been established.

In Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), the court stated:

'All rules of conduct, irrespective of whether they are the product of the legislature or a part of the fabric of courtmade law of negligence, exists for...

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8 cases
  • Christensen v. Epley
    • United States
    • Oregon Supreme Court
    • October 23, 1979
    ...to wander from the prison and assault members of the public." The Louisiana Court of Appeals, in allowing recovery in Frank v. Pitre, 341 So.2d 1376, 1379, 1380 (La.1977), noted that the escaped person "was a known criminal with a propensity for violence towards others." The Restatement als......
  • Frank v. Pitre
    • United States
    • Louisiana Supreme Court
    • December 19, 1977
    ...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 att......
  • Riley v. Evangeline Parish Police Jury
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 2, 1993
    ...for the sheriff's department. Nielson v. Jefferson Parish Sheriff's Office, 242 So.2d 91 (La.App. 4th Cir.1970); Frank v. Pitre, 341 So.2d 1376 (La.App. 3rd Cir.1977), reversed, 353 So.2d 1293 (La.1977). The "official act standard of liability," though confusing in practice, was applied by ......
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    • Court of Appeal of Louisiana — District of US
    • May 26, 2004
    ...v. City of New Orleans, 503 So.2d 536 (La.App. 4 Cir.1987); Matthews v. Felps, 515 So.2d 545 (La.App. 1 Cir.1987), and Frank v. Pitre, 341 So.2d 1376 (La.App. 3 Cir.1977), reversed on other grounds, 353 So.2d 1293 3. 625 So.2d 1337 (La.1993). 4. In Lawrence v. Hartsuck, 383 So.2d 453 (La.Ap......
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