Walker v. Interstate Fire & Cas. Ins. Co.
Decision Date | 07 July 1976 |
Docket Number | No. 12949,12949 |
Citation | 334 So.2d 714 |
Parties | Margaret F. WALKER, Plaintiff-Appellant, v. INTERSTATE FIRE & CASUALTY INSURANCE COMPANY et al., Defendants-Appellees. |
Court | Court 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.
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:
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:
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