Wright v. Skate Country, Inc.

• Decision Date: 12 May 1999
• Docket Number: No. 98-CA-0217.,98-CA-0217.
• Citation: 734 So.2d 874
• Parties: Lioney WRIGHT and Barbara Wright v. SKATE COUNTRY, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

734 So.2d 874

Lioney WRIGHT and Barbara Wright v. SKATE COUNTRY, INC., et al.

No. 98-CA-0217.

Court of Appeal of Louisiana, Fourth Circuit.

May 12, 1999.

Rehearing Denied June 30, 1999.

Joseph W. Thomas, New Orleans, La, And Henry P. Julien, Jr., New Orleans, La, for Plaintiffs/Appellees.

Avis Marie Russell, City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Annabelle H. Walker, Deputy City Attorney, New Orleans, La, for Defendant/Appellant/City Of New Orleans.

Court composed of Chief Judge ROBERT J. KLEES, Judge STEVEN R. PLOTKIN, Judge CHARLES R. JONES, Judge MIRIAM WALTZER, and Judge JAMES F. McKAY.

PLOTKIN, Judge.

The City of New Orleans appeals a $2,300,000 judgment in favor of the administrators of the estate of Lioney Wright, who received injuries due to a gunshot wound inflicted as he was leaving the Skate Country in New Orleans East on September 3, 1990. For the reasons detailed below, we reverse and render judgment dismissing the suit against the City of New Orleans.

FACTS

On September 3, 1990, Lioney Wright, who was 19 at the time, went to the Skate Country skating rink in New Orleans East. At some point during the evening, a fight broke out among the many teenagers and young adults present at Skate Country— estimated by various witnesses in the record at between 200 and 400 people. Mr. Wright became involved in the fight. As a result he and his girlfriend Denise Williams were taken by a uniformed off-duty New Orleans police officer working a "paid detail" to the skating rink office, effectively separating Mr. Wright from the other young people involved in the fight.

On the order of the manager of the skating rink, the New Orleans police officers then "cleared" the skating rink, ordering everyone to leave. Testimony indicated that some of the police officers were informed by other people present at the skating rink that some of the people in the parking lot were passing guns around and that Mr. Wright should not be allowed to leave because he was in danger. The testimony is inconsistent concerning how long Mr. Wright and Ms. Williams were held in the office; however, they were eventually allowed or required to leave. Mr. Wright testified by perpetuation testimony that he had been asking to go home ever since he was taken into the office.

Mr. Wright joined his friends in the automobile in which he had arrived. After the automobile left the skating rink parking lot, approximately one-half to one block away, occupants of another vehicle opened gunfire on the car occupied by Mr. Wright. Although the car contained seven young men, only Mr. Wright, who was seated in the middle of the back seat, was hit by a bullet. He was rendered a quadriplegic as a result of the shooting.

Mr. Wright filed suit against inter alia Skate Country and the City of New Orleans.¹ The basis for the suit against the City was the alleged negligence of the police officers working at Skate Country on the "paid detail." The issues against the City were bifurcated and the liability issue was tried on November 18-20, 1996. On January 29, 1997, the trial court issued judgment on the liability issues, holding the City liable for Mr. Wright's injuries based on a finding that the police officers were negligent in the following two respects: (1) not allowing Mr. Wright and Ms. Williams to stay inside the building for a longer period of time after clearing the building, and (2) failing to arrest the individuals involved in the altercation.

Trial on the damage issue was scheduled for September 29, 1997; however, the damage issue was settled in a pre-trial conference on the morning of trial. At that time, the parties dictated a consent judgment into the record stipulating that the damages sustained were $2,300,000, plus legal interest, plus court costs and expert witness fees. The City appeals, assigning four alleged errors:

1. The district court failed to apply the duty/risk analysis correctly so as to determine that the plaintiff's injuries were not proximately caused by the defendant police officers' actions or inaction.

2. The district court erred in concluding that the police officers violated a duty owed to the plaintiff.

3. The district court erred in finding that the police officers' actions were the legal cause of the plaintiff's injuries.

4. The district court erred in holding that the officers' actions were in the course and scope of their City employment although they were off-duty and working as security guards for a private employer.

Because we find merit in the City's fourth assignment of error, we pretermit discussion of the first three issues.

APPEALABILITY OF JUDGMENT

As a preliminary matter, we must decide whether this court has jurisdiction to hear the City's October 8, 1997 appeal of the January 29, 1997 judgment on liability. On June 29, 1998, some nine months after both the September 29, 1997 consent judgment on damages and the October 8, 1997 filing of the instant appeal, the trial court issued a per curiam, in which she held that "the January 29, 1997 judgment which determined the issue of liability was a final judgment and that the appeal delays began to run on February 8, 1997."

Accordingly, the plaintiffs claim that the only issue presented to the court in the instant appeal is damages, which are the subject of a non-appealable consent judgment. Moreover, the only issue raised in the City's appeal is liability, the plaintiffs note. Thus, the plaintiffs have filed at least two motions to dismiss the appeal, both of which were denied by writ panels. The Louisiana Supreme Court also denied writs after this court's first denial. In denying the second motion on July 31, 1998, this court stated as follows:

Plaintiffs' motion to dismiss the appeal is denied. On March 13, 1998, this court denied plaintiffs' prior motion to dismiss which raised the same issues as plaintiffs argue in the present motion. According to the Supreme Court's writ disposition attached to plaintiffs' motion, the Supreme Court denied certiorari and specifically reserved plaintiffs' right to re-urge their argument: "Issue may be reraised in the even of adverse judgment."

Thus, the issue of the appealability of the liability judgment remains to be decided by this court. Under the 1997 amendments to La. C.C.P. art.1915(5), a partial judgment on liability in a bifurcated trial, such as the judgment at issue in this case, is not immediately appealable in the absence of an express determination by the trial court or agreement by the parties. The amendment went into effect on July 1, 1997, approximately six months after the liability judgment in this case. However, it is well-settled in Louisiana law that procedural laws are to be applied retroactively unless the legislature specifies that they be applied prospectively only; the legislature did not specify that the 1997 amendments should be applied retroactively to this case.

In fact, this court has previously held that the 1997 amendment to La. C.C.P. art.1915 is to be applied retroactively. Scott v. American Tobacco Co., Inc., 97-1973, p. 1 (La.App. 4 Cir. 11/4/98), 737 So.2d 47, citing Kaufmann v. Fleet Tire Service, 97-1428 (La.9/5/97), 699 So.2d 75

. In both Scott and Kaufmann, the cases were remanded to the trial court for a determination of the finality and appealability of the partial judgment. See also Young v. Dupre Transport, 97-0591 (La. App. 4 Cir. 10/1/97), 700 So.2d 1156.

The procedural posture of the instant case is different from the posture of the cases discussed above. In the instant case, no need to remand to the trial court for a determination is necessary because the trial court has already decided that issue and issued a per curiam, indicating that the liability judgment should be considered final and appealable. However, the trial judge's per curiam was not issued until 18 months after the judgment it attempted to designate as final on the day it was originally issued. Moreover, the per curiam went a step beyond that requirement and stated that the appeal delays began on February 8, 1997, a date some 18 months prior to the issuance of the per curiam on June 29, 1998.

We find that the trial court went beyond its authority in attempting to set the date for the commencement of the appeal period some 18 months prior to the issuance of the per curiam designating the judgment as a final judgment, immediately appealable. We find that the only way to make this case consistent with Kaufmann and Scott is to hold that the appeal delays began on September 29, 1997, the date of the consent judgment on damages. Accordingly, we find that the appeal was timely filed on October 8, 1997. The plaintiffs' claim that this court lacks jurisdiction to hear the appeal has no merit.

"COURSE AND SCOPE" OF EMPLOYMENT

The trial court's reasons for judgment do not contain a clear statement on the "course and scope" of employment issue. The majority of the trial court's reasons concern findings of negligence on the part of the police officers in handling the situation leading up to the shooting of Mr. Wright. In the second paragraph of the "Analysis" section, the reasons state the court's finding "that the officers were under a duty to primarily perform the duties of a police officer." The trial court's statement that the off-duty police officers were "primarily performing the duties of a police officer," is not a finding that they were in the course and scope of their employment with the City at the time of the incident, as the dissent suggests. The court simply found that a police officer who was not named in the suit, but who testified at trial, Robert Montgomery, was negligent, stating as follows: "Although Officer Robert Montgomery was not a named defendant, this Court finds that his actions were negligent and he was an employee of NOPD." Interestingly, the court granted a directed verdict in favor of the only two police officers named in the action, John Ray and Tommy...