Hardy v. Bowie

• Decision Date: 08 September 1999
• Docket Number: No. 98-CC-2821.,98-CC-2821.
• Citation: 744 So.2d 606
• Parties: Abel Jack HARDY, Jr. et al. v. Brian Q. BOWIE, et al.
• Court: Louisiana Supreme Court

744 So.2d 606

Abel Jack HARDY, Jr. et al. v. Brian Q. BOWIE, et al.

No. 98-CC-2821.

Supreme Court of Louisiana.

September 8, 1999.

Edwin Gustav Preis, Jr., Laura K. Theunissen, Timothy Wayne Basden, Preis, Kraft & Roy, Lafayette, Counsel for Applicant.

Patrick Craig Morrow, Jr., James Steven Gates, Morrow, Morrow, Ryan & Bassett, Opelousas, John P. Guillory, Leonard & Leonard, Lafayette, Counsel for Respondent.

Brian Q. Bowie, Lafayette, pro se.

Gustave Alexander Fritchie, III, Wood Brown, III, New Orleans, Counsel for Coregis Ins. Co.

VICTORY, J.¹

At issue in this case is whether the public duty doctrine applies to insulate the City of Lafayette from liability where the Lafayette Police Department failed to prevent a fatal shooting. After reviewing the record and the applicable law, we reverse the judgment of the court of appeal, which denied the City of Lafayette's motion for summary judgment, and, applying the traditional duty-risk analysis, hold that the police officers did not act negligently.

FACTS AND PROCEDURAL HISTORY

This case arises out the death of Christopher Scott Hardy, who was shot and killed during an altercation with defendant, Brian Bowie², in the McKinley Strip area in Lafayette on August 22, 1993.

The depositions submitted in support of the opposition to the instant motion established that the McKinley Strip area is an area known to be a popular college hangout near the University of Southwestern Louisiana. On any particular weekend the crowd at the Strip can number between 400 and 500 people. Because the area contains several bars that are required by law to close at 2:00 am, officers from the Lafayette Police Department are on duty to enforce bar closure, traffic control and DWI laws. On the night of the incident, four Lafayette Police Department officers were on duty. Four off-duty sheriff's deputies were also providing paid security in the area.

Officer Charles Steve Viccellio, who had been in law enforcement for about 13 years at the time of the incident, testified that on the night in question, as he and the other officers were assisting in moving the crowd out of the bars, there was a loud bang that sounded like a gun shot. Viccellio and his partner immediately headed across the street in search of the cause of the noise. As they walked across the street, people were telling the officers, "there's a black guy with a gun." When the two officers arrived in the open parking lot across the street from Pete's Bar, there was a group of approximately thirty young men beating a young black man. It took them approximately two minutes to break up the fight and to determine that the black man at the bottom of the pile was not in possession of a gun. Several people from the crowd then told the officers that the man with the gun was further into the parking lot. The officers then went further into the parking lot, and as they attempted to get through what is estimated to be several hundred people, they heard two more loud bangs that were later determined to be gun shots. Immediately after the shots were fired, one officer drew his gun and after Bowie attempted to escape by car, he was taken into custody. The testimony establishes that a person standing at the point where the fight occurred could not see the point where the fatal shooting occurred because cars and people were blocking the view.

What occurred while the officers were looking for the origin of the "loud bang" is explained by the testimony of witnesses Daniel Boudreaux, Jason Coleman, and Lance Adamson. According to Jason Coleman, Brian Bowie's friend, the black man involved in the fight was also his and Bowie's friend. While the 30 men were beating up their friend and others were advancing on him, Bowie pulled out his gun and fired a shot in the air. Coleman called this a "warning shot." After that shot, Bowie and Coleman retreated towards his car with Scott Hardy following them. Bowie got into his car and Hardy opened the car door, attempting to prevent them from leaving. The two men exchanged words and punches, and then Bowie, while seated in his car, fired two fatal shots at Hardy. Coleman, who was seated in the passenger seat at the time of the shooting, estimated that only two to three minutes elapsed between the warning shot and the fatal shots. He stated that the fight at the car lasted between 30 seconds and one minute.

The other witnesses' accounts are almost identical. Lance Adamson testified to hearing a loud noise, and estimated that the time between the loud noise and the shots fired at Hardy was "more than a minute." Daniel Boudreaux testified that approximately one to five minutes elapsed from the time Bowie fired the warning shot to the time he first saw Hardy walking towards Bowie's car and then approximately two to three minutes elapsed until Bowie shot Hardy. The officer testified that "only a very few minutes" elapsed between the "loud bang" and the gun shots.

Plaintiffs filed the instant suit against several defendants, including the City of Lafayette (the "City") for damages arising out the death of their son. Plaintiffs' petition alleged various acts of negligence by the City in not preventing the altercation that ultimately led to his death. In response, the City filed an "Exception of No Cause of Action and/or Motion for Summary Judgment." The City argued it owed no duty to Hardy, and in the alternative, it argued no duty was breached. In support, the City attached affidavits from officers and fact witnesses, who indicated that the confrontation between Hardy and Bowie lasted less than a minute, and that no gun was visible until the shots were fired. Plaintiffs allege in opposition to the motion that since the officers admitted to hearing the warning shot, this gave rise to a duty to Hardy to identify, confront, disarm and arrest the armed individual (Bowie) with whom he was involved in a hostile confrontation. They claim that if the police had reacted to the warning shot earlier, they would have apprehended Bowie before he shot Hardy.

The trial court denied the City's Motion for No Cause of Action and/or Motion for Summary Judgment. The Third Circuit Court of Appeal denied writs on December 18, 1997. The City then filed a writ with this Court and we remanded the matter to the court of appeal for briefing, argument, and opinion. Hardy v. Bowie, 98-0546 (La.4/9/98), 717 So.2d 1136. On remand, the Third Circuit again affirmed the denial of the City's exception of no cause of action and/or motion for summary judgment. Hardy v. Bowie, 97-1707 (La.App. 3 Cir. 10/7/98), 719 So.2d 1158. We granted the City's writ. Hardy v. Bowie, 98-2821 (La.1/15/99), 735 So.2d 643.

DISCUSSION

Summary Judgment

A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La. C.C.P. art. 966(C)(2).

Section 4 of Acts 1997, No. 483, which amended this article, declares that "all cases inconsistent with" Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41, are legislatively overruled. In Hayes v. Autin, the Third Circuit explained the effect of the 1996 amendment as follows:

The jurisprudential presumption against granting the summary judgment has been legislatively overruled by La.Code Civ. P. art. 966 as amended. In effect, the amendment "levels the playing field" between the parties in two ways: first, the supporting documentation submitted by the parties should be scrutinized equally, and second, the overriding presumption in favor of trial on the merits is removed.

Under the amended statute, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under Art. 966(C), once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. The amendment to Art. 966 brings Louisiana's standard for summary judgment closely in line with the federal standard under Fed. Rule Civ. Proc. 56(c),....

. . .

We therefore adopt the federal courts' more liberal standard for summary judgment. Provided that sufficient time for discovery has been allowed, we will assess the proof submitted by the parties in order to weed out meritless litigation, and to secure the just, speedy, and inexpensive determination of every action submitted for summary judgment.

685 So.2d...