Walker v. Interstate Fire & Cas. Ins. Co.

Decision Date07 July 1976
Docket NumberNo. 12949,12949
Citation334 So.2d 714
PartiesMargaret F. WALKER, Plaintiff-Appellant, v. INTERSTATE FIRE & CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
CourtCourt of Appeal of Louisiana — District of US

Kidd, Katz & Strickler, Monroe, by George M. Strickler, Jr., New Orleans, for plaintiff-appellant.

Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendants-appellees.

Before HALL, MARVIN and JONES, JJ.

JONES, Judge.

This is an appeal from a judgment sustaining a peremptory exception of no cause of action to plaintiff's petition for damages.

Plaintiff alleges that Ernest Jenkins, Jr. was serving a six month sentence in the Bienville Parish jail under the care, custody and control of Arvis E. Whitman, sheriff of that parish. Plaintiff contends that Jenkins had a history of criminal offenses, including escapes from custody and mental instability, and that the sheriff was aware of those facts, as well as the fact that Jenkins was generally expected to be 'potentially dangerous.' According to plaintiff's petition, Jenkins was permitted 'to come and go from jail almost totally at will with little or no supervision.'

Plaintiff further alleges the following:

'On or about July 7, 1973, Ernest Jenkins, Jr. left the Bienville Parish jail, stole a 30-30 rifle, went to the house of petitioner which is also located in Bienville Parish, and without any provocation whatsoever, shot through the window of petitioner's house at petitioner, hitting her, severely injuring her, and almost killing her, as she lay in bed asleep.'

Plaintiff contends that the negligence of the sheriff was the legal cause of her injuries.

Defendants Arvis Whitman and Interstate Fire and Casualty Insurance Company, his insurer, filed an exception of no cause of action contending that the injury of which plaintiff complains was too remote to be attributable to the negligence of the defendants.

An exception of no cause of action was filed on behalf of the Bienville Parish Sheriff's Department asserting that there is no such legal entity and praying for dismissal of that named defendant. That exception was sustained as was the exception of the sheriff and his insurer. With respect to the latter, the lower court stated that 'even assuming the negligence of the defendants as alleged by the plaintiff, under the jurisprudence of this state, . . . the peremptory exception of no cause of action should be sustained.'

We find the court erred and reverse the lower court judgment with respect to the sheriff and his insurer and remand the case for further proceedings.

The lower court cited Green v. State, 91 So.2d 153 (La.App.1st Cir . 1956) involving a suit for damages inflicted by an escapee's negligent operation of an automobile, as authority for its position. That case is distinguishable from the instant situation as alleged by plaintiff in that the risk encountered by that plaintiff, i.e., injury through negligent operation of a vehicle, was not encompassed within the state's duty with respect to incarcerated criminals. The court in Green, supra, stated:

'Accepting the pleaded facts concluding State employees to be negligent in the prisoner's escape, nevertheless in our opinion the District Court correctly held that as a matter of law the negligent acts or omissions permitting such escape were not the direct, efficient, and proximate cause of plaintiffs' injuries through the prisoner's subsequent negligent use of an automobile; that the breach of the duty and the duty breached were not sufficiently related to the injuries received as to import liability for damage resulting from the breach. We do not believe that the negligent operation of a car then unavailable, to have been the natural and probable and and reasonably foreseeable consequences of the initially negligent acts or omissions of State employees; the theft and negligent use being so remote and separated in time and by intervening circumstances from the initial negligence, which allegedly permitted the prisoner to escape his confinement. See Mire v. East Louisiana Railroad Co., 42 La.Ann. 385, 7 So. 473; Cappel v. Pierson, 15 La.App. 524, 132 So. 391.' Id at p. 155.

The instant case is controlled by Webb v. State, 91 So.2d 156 (La.App.1st Cir. 1956), decided on the same day as Green, supra. The court affirmed an award for personal injuries sustained by a woman who was shot by an escapee from Angola . The court distinguished Webb, supra, from Green, supra, in the following manner:

'It should be pointed...

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11 cases
  • Christensen v. Epley
    • United States
    • Oregon Supreme Court
    • October 23, 1979
    ...132 So. 391 (1931); Webb v. State, 91 So.2d 156 (La.App.1956); Geiger v. State, 242 So.2d 606 (La.App.1970); Walker v. Interstate Fire and Casualty Co., 334 So.2d 714 (La.App.1976); Graham v. State, 354 So.2d 602 (La.App.1978); Frank v. Pitre, 353 So.2d 1293 (La.1977); Moss v. Bowers, 216 N......
  • Frank v. Pitre
    • United States
    • Louisiana Supreme Court
    • December 19, 1977
    ...foreseeable consequence of the original act or acts of negligence." 91 So.2d at 163. See also Walker v. Interstate Fire & Casualty Insurance Co., 334 So.2d 714 (La.App. 2d Cir. 1976); Geiger v. State of Louisiana, 242 So.2d 606 (La.App. 1st Cir. 1970). One further case is instructive. In Ca......
  • Thomas v. State
    • United States
    • Court of Appeal of Louisiana — District of US
    • May 25, 1989
    ...conduct is a substantial factor in bringing about plaintiff's injuries is a question of fact. Walker v. Interstate Fire and Casuality Insurance Co., 334 So.2d 714 (La.App. 2nd Cir.1976). Rather than attempting to predict the unpredictable, one should direct the inquiry of forseeability to a......
  • Nelson v. Washington Parish
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 15, 1986
    ...or should have been known to his jailers. Lloyd v. State, 395 So.2d 1385 (La.App. 1st Cir.1981); Walker v. Interstate Fire & Casualty Insurance Co., 334 So.2d 714 (La.App. 2d Cir.1976); Webb v. State, 91 So.2d 156 (La.App. 1st Cir.1957); Green v. State, 91 So.2d 153 (La.App. 1st 2. Whether ......
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