Webb v. State Through Dept. of Institutions
Decision Date | 26 November 1956 |
Docket Number | No. 4309,4309 |
Citation | 91 So.2d 156 |
Parties | Virginia WEBB v. The STATE of Louisiana Through DEPARTMENT of INSTITUTIONS. |
Court | Court of Appeal of Louisiana — District of US |
Jack P. F. Gremillion, Atty. Gen., Harry Fuller, Asst. Atty. Gen., for appellant.
Dodd, Hirsch & Barker, Baton Rouge, for appellee.
The trial judge, in this matter, rendered written reasons for judgment which we herewith reproduce in full:
'This is an action in tort against the State of Louisiana through the Department of Institutions for personal injuries sustained by the plaintiff when she was shot in her home on November 22, 1953, by an escaped convict from the Louisiana State Penitentiary at Angola. The State waived its Sovereign immunity and allowed itself to be sued by Act 163 of 1954.
'The undisputed facts are that one Ricardo Escobar did on the evening of November 21, 1953, escape from Angola prison and fled unseen into the Tunica Hills woods. Escobar on the next morning around 10 o'clock came upon the home of the plaintiff, Virginia Webb, and her husband. There, while still in the process of attempting to make good his escape, Escobar without cause went into the Webb home and fired two shots from a revolver stolen from an Angola State employee. One of the shots struck the plaintiff in the stomach. For this she seeks damages.
'There is no question but that Virginia Webb has the right to have her cause of action heard and decided in view of legislative permission granted by a special act of legislature. It is well settled that a plaintiff with legislative permission has a cause and right of action against the defendant, State of Louisiana, if the facts in his petition would have disclosed a right and cause of action against any other defendant. Marler v. State (La.App.) 1955, 78 So.2d 26. The only practical difference between the State of Louisiana and any other tort defendant is the doctrine of sovereign immunity which was waived in this instance by the Legislature. In permitting suit, the Legislature waives both principles of sovereign immunity: (1) that the King (or State) can do no wrong, and (2) that the King (or State) cannot be sued in its own courts. Thus the plaintiff has a right and cause of action.
'Whether or not Virginia Webb or anyone else may recover against the State of Louisiana for the harms done by escaped convicts, however, presents a problem which is res nova in Louisiana and difficult to decide.
'It is difficult not only because of the fact that it is res nova in Louisiana but also because of the peculiar physical nature of the Angola prison. It might be added at this point that this Court is very familiar with Angola, its physical layout, operations, problems and personnel. This Court is also familiar with the convict, Escobar.
'The first question in this case is whether or not a State can be negligent or guilty of fault in the maintenance of a State prison. The second question is whether or not the State or any of the employees were guilty of negligence in relation to the handling of the prisoner, Escobar. If the first questions be answered in the affirmative, the sole remaining question would be whether or not such negligence had a Casual (Causal) connection to the injury to the plaintiff in this case.
'Whether or not a state government can be guilty of negligence in the operation of prison seems obvious. The State has the capacity to commit tortious acts and to be negligent. Lewis v. State, 1945, 207 La. 194, 20 So.2d 917. The Military Department of the State of Louisiana has committed torts. Marler v. State (La.App.) 1955, 78 So.2d (26). The Highway Commission has committed tortious acts. Varnado v. State, 1931 (18 La.App. 624) 136 So. 771. It has been held that the Department of Institutions could commit tortious acts in the operations of a State mental institution. Lewis v. State, 1945, 207 La. 194, 20 So.2d 917. Thus Angola officials and employees can be guilty of negligence. The Legislature has given the right to Virginia Webb to prove that the State of Louisiana was negligent in regard to her injuries in November, 1953.
'Before going into the question of the alleged negligence of the State employees at Angola, it is necessary to note the physical layout and security setup at Angola. Angola is an approximately eighteen thousand acre prison farm lying some twenty six miles northwest of the town of St. Francisville in West Feliciana Parish. It is bounded on the western side and most of the southern and northern sides by the Mississippi River. On the eastern side and part of the northern sides Angola is bounded by the Tunica Hills. The outer limits of Angola facing the Tunica Hills are marked by a series of guard towers along a levee. There is no wall or electric fence running along this line for security purposes. It is very unclear for just what purposes these so called guard towers serve. Captain Clyde Morgan, a security officer who had worked at Angola some twenty five years, testified that the towers were guard posts which 'when a convict goes over the levee, they can call us and let us know.' R.P. 84. Assistant Warden R. F. Odom, who had been at Angola nearly nine years, when asked the security value of these towers, stated that they were guard towers. R.P. 151. Percy Tanner, another Angola security officer, indicated his belief that the towers were guard towers. R.P. 159. Captain McGehee Reid, the captain in charge of security over Escobar, testified in answer to a question regarding the purpose of the towers: 'Well, they were to guard the men on the farm.' R.P. 184. However, Warden Sigler in his testimony (R. 216, 217), as well as in his deposition, stated that the towers had little if any security value and were primarily useful as fire towers. Even though it seems quite odd for the Warden to have such different views from those of his security personnel, he seemingly is the one to know the security value of the towers.
'There are a number of different camps at Angola at different places where prisoners are kept. Around each camp there is a fence with at least one guard tower. Warden Sigler testified that 'The penitentiary is the perimeter of the camps.' (R.P. 216). When the prisoners are outside the confines of their particular camp, the security is the supervision kept over their work.
'However, in relation to the prisoner Escobar, the security set-up seems to have been different. Escobar had been made a 'trusty' and was on November 21, 1953, imprisoned in the 'trusty' camp, Camp E. According to the testimony of Warden Sigler the security of those prisoners, including Escobar, living in Camp E was that of a system of checks. Trusties, according to Warden Sigler, have no liberties other than they are not considered custodial risks to the point of having to be constantly under guard, but are kept under constant check and supervision. (R. 219). In relation to Escobar, Sigler stated that if two hours went by without a check being made on him, he would consider it careless on the part of the checker. (R.P. 218). Captain Maynard, who was chief of security when Escobar escaped, testified that Escobar should have been checked within every two hours during the daylight and within every hour at night according to his order. (R. 253).
'As additional parts of the security arrangement, prisoners were not supposed to have access to alcohol, narcotics or firearms and weapons.
'The facts of this case proved by the preponderance of the evidence at the trial appear as follows: On November 21, 1953, Escobar was a trusty prisoner at Angola. He had a criminal record of convictions of burglary and theft in 1940, rape in 1943, disturbance in 1948, carrying concealed weapon in 1951, burglary in 1952. On March 27, 1952, he was committed at Angola. In December of 1952 he was given the status of trusty. In July of 1953 he was assigned to work as a clean up man in the Angola Hotel. On November 7, 1953, two weeks before the escape, Captain Reid, who was in charge of Escobar, reported to the Angola officials in a written report that Escobar was capable of working under supervision only. (Prison Record of Escobar, Plaintiff Exhibit 4). However, the record clearly indicates that on the escape day Escobar was not under close supervision. He was working in the Angola Hotel as a clean up man. He had been sent out to pick cotton and came back to the hotel between four and five o'clock. He testified that he didn't recall being checked after that (R.P. 15). P. A. Tanner, who had supervision over Escobar when he escaped, testified that the last check made on Escobar was at five thirty. (R.P. 163). Escobar then drank some whiskey and took some dope, according to his testimony, stole an employee's gun and walked away about seven o'clock. (R.P. 40--43). Escobar states that the whiskey, dope and gun were taken from the rooms of free employees which had been left unprotected. There is no definite proof that he did obtain the whiskey, but no proof to the contrary. It is definitely established that he did get the gun and the dope. Both were found on him. The record also indicates that a prisoner could have obtained both whiskey and dope.
'There is some question as to the time Escobar was missed. Tanner who had supervision over Escobar, at the time in question, stated that Escobar was supposed to have been back on the Camp E yard between seven thirty and eight and when he didn't show up during that interval he went to the hotel looking for him. (R.P. 163). However, Chief of Security Maynard indicates that he was not notified until shortly before midnight. (R.P. 248) and also the radio log of Angola does not show any mention of an escape until around midnight.
'Captain C. C. Dixon, who was in charge of the dogs, testified that when he got there between eight and ten o'clock they were still having roll calls at Camp E to find out who escaped. They did not know it was...
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