Roberts v. Benoit, 91-C-0394

Citation605 So.2d 1032
Decision Date09 September 1991
Docket NumberNo. 91-C-0394,91-C-0394
PartiesBobby Ray ROBERTS, Jr. v. Joseph T. BENOIT, the City of New Orleans, Parish of Orleans, Criminal Sheriff for the Parish of Orleans, State of Louisiana, Charles Foti, Individually, and XYZ Insurance Companies.
CourtSupreme Court of Louisiana
Dissenting Opinion of Justice Watson Sept. 9, 1991;
As Revised Sept. 10, 1991.

Dissenting Opinion of Justice Dennis Sept. 11, 1991.

Rehearing Granted Nov. 1, 1991.

On Rehearing May 28, 1992.

Thomas A. Usry, Lloyd F. Schroeder, II, Usry and Weeks, Metairie, for defendant-applicant.

Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, Robert A. Dragon, Jr., Dragon & Kellner, Lafayette, Ronald A Welcker, Vincent J. Glorioso, Jr., Glorioso & Welcker, New Orleans, David Wyatt Robertson, Baton Rouge, for respondents.

Robert A. Dragon, Jr., Dragon & Kellner, Lafayette, Ronald A. Welcker, Glorioso & Welcker, Frank J. D'Amico, Vincent J. Glorioso, Jr., New Orleans, David Wyatt Robertson, Baton Rouge, Stephen Guy deLaup, Metairie, Jacob John Amato, Jr., Lisa Anne Dunn, Amato & Creely, Gretna, for plaintiffs-respondents.

T. Allen Usry, Lloyd F. Schroeder, II, Usry & Weeks, Metairie, for defendants-respondents.

Brett John Prendergast, New Orleans, for New Orleans City Attorney's Office, amicus curiae.

William R. Coenen, Jr., Rayville, for Sheriff Gary K. Bennett, West Carroll Parish, Sheriff Lovell Graham, Richland Parish, Sheriff Eugene Parker, Franklin Parish, Louisiana Dist. Atty's Ass'n, amicus curiae.

Homer E. Barousse, Jr., Edwards, Stefanski, Barousse, Cunningham, Stefanski & Zaunbrecher, Crowley, for Sheriff Kenneth Goss, Acadia Parish, amicus curiae.

Scott Gerard Vincent, Cleveland, Barrios, Kingsdorf & Casteix, New Orleans, for Sheriff Ed Layrisson, Tangipahoa Parish, amicus curiae.

John Robert Burgess, Burgess & Lee, Livingston, for Sheriff Odom Graves, Livingston Parish, amicus curiae.

Edwin L Blewer, Jr., Kelly W. Strickland, James Richard Sterritt, Cook, Yancey, King & Galloway, Shreveport, for Sheriff Don Hathaway, Caddo Parish, Sheriff Larry Deen, Bossier Parish, Sheriff J.R. Oakes, Claiborne Parish, Sheriff Floyd Lambert, DeSoto Parish, Sheriff Buddy Huckabay, Red River Parish, Sheriff Royce McMahen, Webster Parish, Sheriff Joe Storey, Bienville Parish, amicus curiae.

Stephen Anees Mogabgab, Hulse, Nelson & Wanek, Covington, for Sheriff Pat Canulette, St. Tammany Parish, amicus curiae.

Tucker Lee Melancon, Melancon & Rabalais, Marksville, for Sheriff William Belt, Avoyelles Parish, amicus curiae.

Stephen J. Oats, William Martin Hudson, III, Patrick B. McIntire, Oats & Hudson, Lafayette, for Sheriff James R. Savoie, Cameron Parish, Sheriff Wayne Morein, Evangeline Parish, Sheriff Wiley Warren, Winn Parish, amicus curiae.

Richard Phillip Ieyoub, Atty. Gen., Thomas S. Halligan, Asst. Atty. Gen., Counsel for Hon. Richard P. Ieyoub, Atty Gen., and the State of La., amicus curiae.

Bradley Charles Myers, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, for Louisiana Mun. Ass'n, amicus curiae.

Thomas Allen Usry, Lloyd F. Schroeder, II, Usry & Weeks, Metairie, for Louisiana Sheriff's Ass'n, Sheriff Thomas Mabile, Assumption Parish, Sheriff Floyd Hodges, Caldwell Parish, Sheriff Randy Maxwell, Concordia Parish, Sheriff Dale Rinicker, East Carroll Parish, Sheriff Freddie Pitre, Sr., Iberville Parish, Sheriff Van Beasley, Jackson Parish, Sheriff Wayne McGuffee, LaSalle Parish, Sheriff Willie W. Houck, Lincoln Parish, Sheriff Charles Harmon, Madison Parish, Sheriff Frank Carroll, Morehouse Parish, Sheriff Laymon Godwin, Ouachita Parish, Sheriff Tommy Hollingsworth, Rapides Parish, Sheriff Eugene Holland, St. Helena Parish, Sheriff Joseph Nassar, St. James Parish, Sheriff Lloyd B. Johnson, St. John the Baptist Parish, Sheriff Huey Bourgeois, St. Mary Parish, Sheriff Fred E. Scott, Tensas Parish, Sheriff Belvin F. Bergeron, West Baton Rouge Parish, Sheriff William Daniel, West Feliciana Parish, amicus curiae.

Steven Franklin Griffith, Destrehan, for Sheriff Johnny Marino, St. Charles Parish, amicus curiae.

Fred A. Book, Jr., Michael Steven Beverung, Lake Charles, for Sheriff Wayne McElveen, Calcasieu Parish, amicus curiae.

Daniel Rault Martiny, Metairie, for Sheriff Harry Lee, Jefferson Parish, Sheriff Ernest D. Wooton, Plaquemine Parish, amicus curiae.

Clark Raymond Cosse, III, Baton Rouge, for Louisiana Ass'n Bus. & Ind. amicus curiae.

HALL, Justice.

This is a suit for damages sustained by plaintiff, Bobby Ray Roberts, Jr., as a result of the accidental discharge of a gun owned and possessed by Joseph T. Benoit, a commissioned deputy sheriff with the Orleans Parish Criminal Sheriff's Office. Plaintiff sued Benoit, the State of Louisiana, the City of New Orleans, the Parish of Orleans, the Criminal Sheriff for the Parish of Orleans, Sheriff Charles Foti, Jr., individually, and Southern American Insurance Company, the insurer for the Criminal Sheriff's Office. 1 Plaintiff's wife, Kathy Roberts, intervened in this suit on behalf of herself and plaintiff's three minor children. The trial court found that plaintiff established the negligence of Benoit and Sheriff Foti, and awarded damages in the amount of $785,000 to plaintiff, $25,000 to plaintiff's wife, and $10,000 to each of plaintiff's three minor children. The court of appeal, finding that plaintiff established Sheriff Foti's negligence in hiring, commissioning and failing to adequately train Benoit, affirmed the trial court's judgment, with one judge dissenting in part. 2 Roberts v. Benoit, 574 So.2d 1256 (La.App. 4th Cir.1991). Having granted Sheriff Foti's writ application, 575 So.2d 816 (La.1991), we now reverse in part and render judgment rejecting the demands against the sheriff. 3

FACTS

In March 1979, Sheriff Foti hired the defendant Benoit as a cook. In January 1981, Sheriff Foti commissioned the kitchen workers, including Benoit, as deputy sheriffs, enabling them to receive state supplemental pay. Before being commissioned, the kitchen workers completed a training course. Training was given on an intermittent basis over a six-week period and included only one day (eight hours) of firearm training.

During the training course, the trainees were instructed that while off duty, it was better to have a gun and not need it than to need a gun and not have it, thereby impliedly encouraging deputies to carry a gun while off duty. The trainees were also given a copy of department regulations stating that when engaged in recreational activities which include the consumption of alcohol, a deputy should in all cases remove his firearm to a safe place, or leave it at home, before commencing with such activities. The regulations also stated that a weapon should be drawn only when one's life is in danger, or the use of deadly force is anticipated.

On October 25, 1981, the day of the accident, Benoit completed his regular kitchen duties at 2:30 p.m. After work, Benoit went home, bathed, changed clothes and went to his mother-in-law's home. Benoit then went to the home of his brother-in-law, Merlin Fontenette. While at Fontenette's home, Benoit drank a beer. Benoit and Fontenette then went to plaintiff's home to have plaintiff repair a broken light in Benoit's car. When they arrived at plaintiff's home, plaintiff was installing a stereo in another vehicle, and Benoit was drinking another beer. While there, Benoit drank a glass of wine and, by this time, was staggering a little. 4

Benoit had in his possession two weapons: a M1 carbine rifle which was in the trunk of his car, and a .38 caliber Charter Arms revolver purchased by him after he was commissioned as a deputy which was in an ankle holster on his leg. While at plaintiff's home, Benoit removed the revolver from the holster and played with the revolver for a period of almost forty-five minutes before the accident occurred. During this period, Benoit handed the revolver to Fontenette, who handed it back to Benoit; and, at one point, when the bullets fell from the revolver, plaintiff picked them off of the floor and handed them back to Benoit. Benoit cocked and uncocked the gun. During this period, plaintiff asked Benoit to put the gun away several times. Thereafter, the revolver discharged severely injuring plaintiff.

PARTIES' CONTENTIONS

No one contests the trial court's finding of defendant Benoit's negligence. Rather, the sole issue before this court is whether the sheriff in his official capacity should be held legally responsible for plaintiff's injuries. 5 Plaintiff asserts two bases for holding Sheriff Foti liable: (1) direct liability for negligently hiring, commissioning and training Benoit; and (2) vicarious liability for his employee's tortious conduct. Defendant, on the other hand, contends that Sheriff Foti's allegedly deficient practices in hiring, commissioning and training Benoit were neither a cause in fact nor a legal cause of plaintiff's injuries. Defendant further contends that no duty existed requiring Sheriff Foti to protect plaintiff against the risk of being shot by Benoit. Defendant still further contends that the sole cause of the accident was Benoit's negligence in engaging in horseplay with a loaded gun while intoxicated, an action in violation of Sheriff Foti's written regulations. Finally, defendant contends that to find Sheriff Foti legally responsible in this case would be, in essence, to impose absolute liability.

Agreeing with plaintiff, the trial court found Sheriff Foti primarily liable for negligently hiring, commissioning and training Benoit. Affirming, the court of appeal reasoned:

We find that the evidence supports the trial court's determination that Sheriff Foti did indeed breach his duty to ensure that Deputy Benoit, as a commissioned deputy sheriff, was adequately trained in the use of firearms. The failure to adequately train Deputy Benoit...

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