LaBauve v. State

• Decision Date: 12 May 1993
• Docket Number: No. 92-466,92-466
• Citation: 618 So.2d 1187
• Parties: Harold LaBAUVE, Plaintiff-Appellee, v. STATE of Louisiana, et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1187

618 So.2d 1187

Harold LaBAUVE, Plaintiff-Appellee, v. STATE of Louisiana, et al., Defendant-Appellant.

No. 92-466.

Court of Appeal of Louisiana Third Circuit.

May 12, 1993.

David W. Groner, New Iberia, for Harold LaBauve, plaintiff-appellee.

Joseph Erwin Kopsa and Rose Polito Wooden, Baton Rouge, for the State, et al., defendants-appellants.

Before DOMENGEAUX, C.J., LABORDE, WOODARD and COOKS, JJ., and CULPEPPER ^*, J. Pro Tem.

LABORDE, Judge.

In this police brutality suit, plaintiff, Mr. Harold LaBauve, appeals the trial court's finding that he was comparatively negligent as well as the amount of damages awarded him and the trial court's refusal to find that a federal cause of action existed. The defendants, the State of Louisiana, appeal the trial court's finding that Trooper Pellerin was negligent and its application of comparative negligence to this action as well as the trial court's denial of defendant's exception for dismissal from plaintiff's federal law claim. Finding no error on the part of the trial court, we affirm.

FACTS

On August 19, 1989, Harold LaBauve, and his wife, Helen LaBauve, were returning from eating and dancing at Lytles Restaurant in Abbeville, Louisiana. Mr. LaBauve was seventy-six years old, and he and Helen had been married for fifty years. They were traveling on Louisiana Highway 14 and passed through the town of Delcambre, Louisiana which was celebrating the annual Shrimp Festival. Officer Dennis Pellerin, who was assigned to a DWI Tasks Force, observed the LaBauve's Lincoln being driven half on the roadway and half on the shoulder. He followed the vehicle for a quarter of a mile then turned on his emergency lights. The LaBauve vehicle pulled off the roadway, and Trooper Pellerin stopped behind it and turned his spot light on the Lincoln. Trooper Pellerin exited his vehicle and requested the driver to exit the Lincoln.

Mr. LaBauve exited his vehicle, walked to the rear of the vehicle, and asked what he was being charged with. According to Trooper Pellerin, Mr. LaBauve swayed when he walked. Trooper Pellerin did not answer but demanded to see Mr. LaBauve's driver's license. Mr. LaBauve asked twice again what the charge was, but Trooper Pellerin did not respond. Mr. LaBauve reached into his wallet to produce his driver's license.

From this point, Mr. LaBauve and Trooper Pellerin have two very different versions of the following events, and it is necessary to set forth both accounts. Mr. LaBauve maintains that when he reached into his wallet to produce his driver's license, Trooper Pellerin grabbed him by the arm and forcibly pushed him against the hood of the State Police vehicle, bruising Mr. LaBauve's knees. In response, Mr. LaBauve shouted an obscenity at Trooper Pellerin. Trooper Pellerin spun Mr. LaBauve around, picked him up and slammed him head first onto the concrete pavement, causing extensive damage to Mr. LaBauve's nose and face. While lying down on the concrete bleeding, Mr. LaBauve called out for his wife, Helen. When Helen exited the vehicle, she saw Trooper Pellerin with his knee in her husband's back attempting to handcuff him. Trooper Pellerin then placed Mr. LaBauve in the back of his police unit, waited for other Troopers with a breathalyzer unit to arrive and transferred custody of Mr. LaBauve to Sergeant Cordell Ruiz.

According to Trooper Pellerin, he had to ask Mr. LaBauve for his license three times. After Mr. LaBauve finally produced the license, Trooper Pellerin identified the driver of the Lincoln as Mr. LaBauve. He then gave Mr. LaBauve his Miranda warnings and asked him if he had been drinking. Mr. LaBauve told him he had consumed two small glasses of wine. Trooper Pellerin explained the field sobriety test to Mr. LaBauve who refused to take it. At this point, Trooper Pellerin informed Mr. LaBauve that he was under arrest. Mr. LaBauve turned and began to walk back toward his vehicle stating that he refused to go anywhere with Trooper Pellerin.

At this point, Trooper Pellerin grabbed Mr. LaBauve's left arm. Mr. LaBauve spun around, and Trooper Pellerin ducked and grabbed Mr. LaBauve by the waist. Mr. LaBauve began swinging his arms in an effort to get away from Trooper Pellerin. Trooper Pellerin then brought Mr. LaBauve to the front of his patrol car and positioned himself between the hood of his patrol car and Mr. LaBauve. According to Trooper Pellerin, he had Mr. LaBauve's left arm in a half nelson but could not secure Mr. LaBauve's right arm. Because Mr. LaBauve continued to swing his right arm, Trooper Pellerin prepared to "take him to the ground", which is a technique used by law enforcement officers to restrain a struggling subject.

Trooper Pellerin maintains that while preparing to take him to the ground, he and Mr. LaBauve's feet became tangled and they tripped. Trooper Pellerin further maintains that this is what caused Mr. LaBauve to fall on the ground, face first, on gravel and rocks which resulted in bruises, cuts and abrasions on his face and knees. Officer Pellerin stated that he did not bring Mr. LaBauve to the ground in order to hurt him. Trooper Pellerin then handcuffed Mr. LaBauve's arms behind his back. After Mr. LaBauve was secured, Mrs. LaBauve exited the Lincoln and cleaned some blood off his face. Two other State Troopers arrived on the scene as did the DWI van and Acadian Ambulance.

Mr. LaBauve sought medical treatment from Dr. Monty Rizzo, an Otolaryngologist, for the injuries he sustained from the fall to the cement. Dr. Rizzo testified that Mr. LaBauve sustained a septal deviation requiring surgery and that Mr. LaBauve's complaints of trouble sleeping and breathing on the right side with sinus difficulty is compatible with this type of injury.

Mr. LaBauve filed his petition for damages on December 6, 1989 and named as defendants, the State of Louisiana, through the Department of Public Safety and Corrections (State Police) and its employee, State Trooper Dennis Pellerin. Mr. LaBauve asserted that his civil rights were violated under 42 U.S.C. Sec. 1983, the First and Fourteenth Amendments to the United Sates Constitution and the Louisiana Civil Code. Trial without a jury was held December 5, 1990.

The trial court found that Trooper Pellerin caused injury to Mr. LaBauve as the result of the manner in which Trooper Pellerin subdued him. The trial court further found that Trooper Pellerin was negligent in inflicting an injury on Mr. LaBauve and awarded $12,000 in general damages and $3,500 in medical expenses. Since Trooper Pellerin was operating in the scope and course of his employment, State Police and not Trooper Pellerin, is liable for the money judgment. The trial court also ordered State Police to pay all court costs. The trial court further found Mr. LaBauve to be twenty percent at fault finding that if Mr. LaBauve had complied immediately with Trooper Pellerin's request, this situation would not have occurred. The judgment was silent as to Mr. LaBauve's federal law claims and demand for attorney's fees. State Police asserted that the federal law claims should be dismissed, but this was denied by the trial court. Judgment was signed on May 17, 1991. State Police and Trooper Pellerin suspensively appealed, and Mr. LaBauve answered the appeal.

APPELLANTS' ASSIGNMENT OF ERROR NUMBER ONE

Appellants maintain that the trial court erred in finding Trooper Pellerin negligent and assert the appropriate cause of action is for "clearly excessive use of force" during an arrest as set forth in Kyle v. City of New Orleans, 342 So.2d 1257 (La.App. 4th Cir.1977), reversed and remanded on other grounds, 353 So.2d 969 (La.1977), on remand on the issue of quantum, 357 So.2d 1389 (La.App. 4th Cir.1978), writ denied, 359 So.2d 1307 (La.1978). Kyle, supra, involved the shooting of three New Orleans apartment dwellers by police officers during their arrest.

The court in Kyle, supra, stated the officers' actions must be evaluated against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers. There is nothing in Kyle, supra, that leads us to believe that the Louisiana Supreme Court dictated that there be a specific tort of "clearly excessive use of force" during an arrest. On the contrary, the language in Kyle, supra, demonstrates that the officers' conduct was measured by standard negligent tort theories. Mr. LaBauve's petition states that the suit is filed under the provisions of the Louisiana Civil Code. La.Civ.C. art. 2315 is the general negligence article. We find the trial court correctly found a cause of action for negligence under La.Civ.C. art. 2315 given Trooper Pellerin's use of excessive force while arresting Mr. LaBauve. Thus, the trial court did not commit an error of law.

We further find the trial court was not manifestly erroneous in finding as a matter of fact that Trooper Pellerin was negligent in his arrest of Mr. LaBauve in taking him down onto gravel and rocks. The trial court did not find Trooper Pellerin intentionally hurt Mr. LaBauve, only that he was negligent in his handling of Mr. LaBauve, who was seventy-six years old. After reviewing the record, we find the trial court was not manifestly erroneous in finding Trooper Pellerin negligent. Thus, we find this assignment of error lacks merit.

APPELLANTS' ASSIGNMENT OF ERROR NUMBER TWO

Appellants' second assignment of error is that the trial court did not make sufficient findings of fact to use the two part test set forth in Kyle, supra, when dealing with a cause of action for "clearly inappropriate use of force to effectuate the arrest." The Kyle, supra, test is to determine first if the arrest was lawful and second, assuming a lawful arrest, to utilize a balancing test taking into account certain factors.

Kyle, supra, relies on the case of Picou v. Terrebonne Parish Sheriff's Office, 343 So.2d 306 (La.App. 1st Cir., 1977) writ denied, 345 So.2d 506 (La.1977...