Riverside Transportation Inc. v. Burke, No. 2007 CA 1370 (La. App. 3/26/2008), 2007 CA 1370.
| Decision Date | 26 March 2008 |
| Docket Number | No. 2007 CA 1370.,2007 CA 1370. |
| Parties | RIVERSIDE TRANSPORTATION, INC. v. DAVID EDWIN BURKE AND THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS. |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE 19TH JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF EAST BATON ROUGE, TRIAL COURT NO 471,773, HONORABLE JANICE CLARK JUDGE PRESIDING.
NEIL D. SWEENEY, STEVE K. SCHILLING, Counsel for Plaintiff Appellee, Riverside Transportation Inc.
JILL L. CRAFT, Counsel for Intervenors Appellees, Maria Montalvo Bianca Cheng, Ronald Cheng April Hill Roy Hill, Angel Hebert Lisa Lambert, Pamela Kindel Kristen Miley, and Helga Pope.
PHILIP J. SHAHEEN, Counsel for Defendants Appellants David Edwin Burke and the State of Louisiana Through the Department of Public Safety and Corrections and the Office of State Police
JACK TOBIAS, Counsel for Defendant/Appellant David Edwin Burke.
Before WHIPPLE, PETTIGREW, and HUGHES, JJ.
This appeal challenges whether damages were properly awarded against the State of Louisiana and an undercover law enforcement officer who became involved in an altercation with the occupants of a limousine in the New Orleans French Quarter during Mardi Gras when the officer approached the limousine as several ladies were entering the vehicle. For the reasons that follow, we amend the judgment and affirm as amended.
On March 5, 2000 Maria Montalvo reserved a portion of Mike Anderson's Restaurant on Bourbon Street to host a Mardi Gras party for some of her friends, relatives, and business associates. Ms. Montalvo hired a limousine from Riverside Transportation, Inc. (Riverside) to drive her and some of her guests from her Baton Rouge residence to the party. Among the occupants of Ms. Montalvo's limousine were: Bianca Cheng, Ronald Cheng, April Stevens,1 Roy Hill, Angel Hebert, Lisa Lambert, Pamela Kindel, Kristen Miley, and Helga Pope.
Along the way, the Montalvo party rendezvoused with another limousine carrying party guests, after which the two limousines made a stop at a LaPlace tavern before traveling to the French Quarter. When the two limousines became caught up in stop-and-go traffic on Iberville Street, some of the ladies in the group exited the limousine to visit the portable toilets installed along the street. Upon attempting to re-enter the limousine, the ladies were followed by State Trooper David Edwin Burke, who was working undercover in plain clothes, maintaining a perimeter for a nearby drug bust. As justification for his attempting to enter the limousine, Trooper Burke claims that he saw one of the ladies lose her footing as she was entering the limousine and felt it was his duty to come to her assistance. Testimony differed as to the extent and manner in which Trooper Burke entered into the limousine. The occupants of the limousine claim Trooper Burke did not indicate he was a law enforcement officer and they thought he was a hoodlum or gang member attempting to perpetrate a crime on them. Some of the occupants of the limousine became embroiled in a physical altercation with Trooper Burke, resulting in injuries. Roy Hill was arrested for felony assault of an officer.
Riverside filed this lawsuit seeking damages, contending that Trooper Burke, acting under color of state law, unlawfully trespassed into the limousine, committed battery upon the occupants, and wrongfully detained the limousine. Made defendants were David Edwin Burke and the State of Louisiana, through the Department of Public Safety and Corrections. Thereafter, Maria Montalvo, Bianca Cheng, Ronald Cheng, April Stevens, Roy Hill, Angel Hebert, Lisa Lambert, Pamela Kindel, Kristen Miley, and Helga Pope filed an intervention in the suit seeking damages for injuries sustained in the mêlée.2
Following a trial without a jury, the trial court entered judgment in favor of Riverside against the defendants for $38,000.00 in compensatory damages, $500.00 in punitive damages, and $5,000.00 in attorney fees, along with costs and interest. The trial court further rendered judgment against defendants in favor of the intervenors for damages, along with costs and interest, as follows: Maria Montalvo — $12,000.00; April Hill $8,500.00; Pam Kindel — $6,500.00; Helga Pope — $5,000.00; Bianca Cheng — $5,000.00; Angel Hebert — $5,000.00; Lisa Lambert — $5,000.00; Kristen Miley — $5,000.00; Roy Hill — $2,500.00; and Ronald Cheng — $2,500.00. The intervenors were also subsequently awarded attorney's fees "in the amount of $150.00 per hour for 234.00 hours through the date of filing of the Motion for Attorney Fees, January 24, 2007, plus any time incurred from that date forward at the rate of $150.00 per hour."3
Defendants appeal and contend on appeal that the trial court erred: (1) in finding that plaintiffs carried their burden of proving that the defendants were liable for damages as a result of the actions of David Burke; (2) in refusing to allow Trooper Murphy Paul to testify or to allow defendants to proffer his testimony at the hearing of defendants' motion for new trial; (3) when on Wednesday, September 20, 2006, it ordered defendants' attorney to provide plaintiffs' law enforcement witnesses for depositions on Friday, September 22, 2006, three days before the trial was to begin on Monday, September 25, 2006; (4) when it ruled, during an in-chambers conference on Wednesday, September 20, 2006, that any witness not present for deposition on Friday, September 22, 2006, would be precluded from testifying at the trial commencing September 25, 2006; and (5) in refusing to allow defendants to utilize the depositions of plaintiff/intervenors to cross examine them, particularly as the trial court allowed plaintiffs to cross examine defendants' witnesses with their depositions.
The trial court issued the following oral reasons for rendering judgment in favor of the plaintiffs:
The court is of the opinion that petitioners Helga Pope and others have preponderated in their burden of establishing liability with respect to the actions of defendant.
The court finds defendant David Burke liable for his actions in entering the limousine without probable cause and without consent of the owner or occupants, therein causing a fracas to ensue.
Therefore, the court grants judgment in accordance therewith and hereafter will assign damages....
Subsequently, the trial court awarded damages and gave additional oral reasons as follows:
The Court finds that petitioner, Riverside Transportation, Inc., has demonstrated by a preponderance of the evidence that they're entitled to compensatory damages in the amount of thirty-eight hundred dollars and punitive damages in the amount of fifteen-hundred dollars, attorney fees in the amount of five-thousand dollars, judgment to be signed accordingly.4
...The Court finds that petitioner, Marie Montal[vo], sustained a closed fist, powerful hit frontally to her face without cause or provocation. She testified she was in a great deal of pain and frightened beyond words. The Court awards her twelve-thousand dollars....
Because April Hill while entering the vehicle, while returning to the vehicle, Mr. Burke jumped on her back knocking her to the floor by his weight injuring and frightening her; therefore, the Court awards her eighty-five hundred dollars. With respect to petitioner, Pam Kindel, who suffered injury to her face and has a scar, permanent scar, as well as the trauma she witnessed being inflicted upon her husband, she demonstrated to this Court by a preponderance of the evidence that she sustained injury, and the Court hereby awards her sixty-five hundred dollars.
The Court awards petitioners, Kristen Miley, [H]elga Pope, Lisa Lambert, and Angel ... Hebert for their damages ... five thousand dollars each.
With respect to ... Ronald Cheng and Roy Hill ... twenty-five hundred dollars each....
The damage awards were later amended to include an award to Bianca Cheng in the amount of $5,000.00.
In defendants' first assignment of error, they argue that the plaintiffs failed in their burden to prove liability on the part of defendants, and alternatively that the amount of damages awarded was excessive.
Plaintiffs maintain that the actions of Trooper Burke violated 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
In any action or proceeding to enforce a provision of 42 U.S.C. § 1983, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. 42 U.S.C. § 1988(b).
Recovery under § 1983 requires a plaintiff to allege and prove two essential elements: (1) that the defendant's conduct occurred under color of state law, and (2) that defendant's conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or a law of the United States. Lambert v. Riverboat Gaming Enforcement Division, 96-1856, p. 5 (La. App. 1 Cir. 12/29/97), 706 So.2d 172, 175-76, writ denied, 98-0297 (La. 3/20/98), 715 So.2d...
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