Opinion
NUMBER 2016 CA 0333
02-21-2017
BRIAN R. TOOMER v. WAYNE O. MIZELL, WAYNE'S WORLD TUBING AND CANOEING, LLC, DEPUTY TIMMY STEWART, SHERIFF RANDY SEAL, IN HIS OFFICIAL CAPACITY, ABC INSURANCE CO., AND XYZ INSURANCE CO.
Rusty Savoie Covington, LA Attorney for Appellant Plaintiff - Brian R. Toomer Charles M. Hughes, Jr. Gary L. Hanes Mandeville, LA Attorneys for Appellees Defendants - Randy "Country" Seal, in his capacity as Sheriff of Washington Parish, and Deputy Timmy Stewart
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of Washington, Louisiana
Trial Court Number 105748 Honorable Martin E. Coady, Judge Rusty Savoie
Covington, LA Attorney for Appellant
Plaintiff - Brian R. Toomer Charles M. Hughes, Jr.
Gary L. Hanes
Mandeville, LA Attorneys for Appellees
Defendants - Randy "Country" Seal,
in his capacity as Sheriff of
Washington Parish, and Deputy
Timmy Stewart BEFORE: GUIDRY, WELCH, CRAIN, HOLDRIDGE, AND CHUTZ, JJ. WELCH, J.
The plaintiff, Brian R. Toomer, appeals a judgment granting the motion for summary judgment filed by defendants, Randy "Country" Seal, in his capacity as Sheriff of Washington Parish, and Deputy Timmy Stewart, which dismissed the plaintiff's claim for damages against those defendants. For reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
According to the allegations of the plaintiff's petition, Wayne Mizell managed Wayne's World Tubing and Canoeing, LLC ("Wayne's World"), which was a business that provided tubes, canoes, transportation, and other services to persons wishing to tube or canoe along the Bogue Chitto River in Washington Parish, Louisiana, and the plaintiff lived in the vicinity of Wayne's World. The plaintiff alleged that he and Mr. Mizell had a tenuous history and that he had previously informed Mr. Mizell that Mr. Mizell was not welcome on or allowed on his property.
The plaintiff further alleged that on July 4, 2012, Deputy Timmy Stewart of the Washington Parish Sheriff's Department was performing paid detail security services at Wayne's World and was wearing his Washington Parish Sheriff's deputy uniform. Mr. Mizell, accompanied by Deputy Stewart and Charles Brumfield, a Wayne's World employee, came to the plaintiff's home by boat and then proceeded onto the plaintiff's property where the plaintiff and his family were having a Fourth of July party. The plaintiff asked Mr. Mizell to leave his property; however, Mr. Mizell began to accuse the plaintiff of stealing or damaging a tube from Wayne's World. Mr. Mizell then punched the plaintiff in the face and physically assaulted the plaintiff, causing him to fall to the ground and injure his knee and other parts of his body.
According to the petition, Mr. Brumfield was wearing a t-shirt that reflected or implied he was with the Washington Parish Sheriff's Office.
As a result of the events occurring on July 4, 2012, the plaintiff claimed that he underwent painful and debilitating surgery to his knee and suffered damages. Therefore, on June 26, 2013, the plaintiff filed a petition for damages against Mr. Mizell; Wayne's World; Deputy Stewart; Sheriff Randy Seal, in his official capacity as the Sheriff of Washington Parish, Louisiana; and the unknown liability insurers of Wayne's World and Sheriff Seal, his department, and/or his deputies.
The plaintiff also filed an amended petition for damages on August 6, 2013, to further set forth and elaborate on his claims.
In the petition, the plaintiff claimed that Deputy Stewart was aware of the tenuous relationship between the plaintiff and Mr. Mizell, that Deputy Stewart brought together or knowingly allowed to come together a criminal complainant and the alleged target of that complaint, that he used his position with the Washington Parish Sheriff's Office to allow Mr. Mizell physical access to the plaintiff, and that Deputy Stewart's chosen course of action was reckless and the result was predictable. The plaintiff alleged that Deputy Stewart was liable for his actions and his failure to follow proper and recognized police procedures. The plaintiff further alleged that Sheriff Seal was vicariously liable for the actions and carelessness of his deputy, and for his (or his predecessor's) failure to properly instruct and/or supervise the deputy's off-duty work, failure to properly train departmental personnel, and/or failure to take other reasonable actions to prevent what occurred.
Sheriff Seal and Deputy Stewart filed an answer generally denying the allegations of the plaintiff's petition. Thereafter, Sheriff Seal and Deputy Stewart filed a motion for summary judgment, seeking the dismissal of the plaintiff's claims against them on the basis that there was no "identifiable and legally- enforceable duty" that they owed to the plaintiff. By judgment signed on December 15, 2014, the trial court granted the motion for summary judgment of Sheriff Seal and Deputy Stewart, and it is from this judgment that the plaintiff has appealed, asserting that the trial court erred in granting summary judgment on the basis that Deputy Stewart owed no duty to the plaintiff.
Although the December 15, 2014 judgment was designated as a final judgment for purposes of immediate appeal in accordance with La. C.C.P. art. 1915(B), since the judgment dismissed Sheriff Seal and Deputy Stewart from this suit, certification of the judgment as final under La. C.C.P. art. 1915(B) was unnecessary. See La. C.C.P. art. 1915(A); Motorola, Inc. v. Associated Indemnity Corporation, 2002-0716 (La. App. 1st Cir. 4/30/03), 867 So.2d 715, 721.
II. LAW AND DISCUSSION
Louisiana Code of Civil Procedure article 966 was recently amended by 2015 La. Acts, No 422 §1, eff. January 1, 2016. Since the motion for motion for summary judgment in this case was filed and adjudicated prior to the effective date of 2015 La. Acts, No. 422, the prior version of La. C.C.P. art. 966 is applicable herein.
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact, and the summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2); Power Marketing Direct, Inc. v. Foster, 2005-2023 (La. 9/6/06), 938 So.2d 662, 668. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2) and (C)(1).
Now, see La. C.C.P. art. 966(A)(3).
The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2). However, a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F)(1).
Now, see La. C.C.P. art. 966(D)(1).
Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Power Marketing Direct, Inc., 938 So.2d at 669. B. Negligence/Duty Risk
In this case, the plaintiff's claims against Deputy Stewart and Sheriff Seal are based upon negligence. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La. 3/10/06), 923 So.2d 627, 632-633. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard of care (or the defendant owed a duty of care to the plaintiff) (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (or breached the requisite duty) (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the harm or the plaintiff's injuries (the cause-in-fact element); (4) the risk of harm was within the scope of protection afforded by the duty breached (the scope of the duty, scope of protection or legal cause element); and (5) actual damages (damages element). See Bellanger v. Webre, 2010-0720 (La. App. 1st Cir. 5/6/11), 65 So.3d 201, 207, writ denied, 2011-1171 (La. 9/16/11), 69 So.3d 1149; Lazard v. Foti, 2002-2888 (La. 10/21/03), 859 So.2d 656, 659. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Bellanger, 65 So.3d at 207.
Therefore, to carry the burden on a motion for summary judgment, Sheriff Seal and Deputy Stewart were required to show an absence of factual support for any essential elements of the negligence cause of action. Sheriff Seal and Deputy Stewart specifically sought summary judgment on the basis that there was no "identifiable and legally-enforceable duty whatsoever" that was applicable to their conduct, i.e., there was an absence of factual support for the duty element of the plaintiff's negligence action. In addition, the trial court granted the motion for summary judgment on the basis that it found "[no] duty was created on the part of the defendants...." Therefore, our discussion herein is limited to the duty element of the plaintiff's claim. See La. C.C.P. art. 966(F)(1). C. Duty
Both the plaintiff and defendants, in their appellate briefs to this court, have made arguments (and relied on jurisprudence) concerning the scope of the duty and breach elements of the plaintiff's claim. In addition, both have used the terms and concepts regarding the scope of the duty interchangeably with those regarding duty. However, duty and scope of the duty are two separate elements under the duty/risk analysis for the imposition of liability for negligence. The sole issue before this court is duty, which, as set forth hereinafter, is a question of law, and the inquiry is whether the plaintiff has any law—statutory, jurisprudential or arising from general principles of fault—to support his claim. On the other hand, the scope of the duty, which is not at issue herein, is a question of policy as to whether the particular risk falls within the scope of the duty and the inquiry is whether the enunciated rule of conduct, i.e. the duty, extends to or is intended to protect this plaintiff from this type of harm arising in this manner. See Syrie v. Schilhab, 96-1027 (La. 5/20/97), 693 So.2d 1173, 1177; and Dyer v. City of New Orleans, 96-2802 (La. App. 4 Cir. 8/20/97), 700 So.2d 866, 869, writ denied, 97-2347 (La. 11/26/97), 703 So.2d 650 (citations omitted). Thus, the issue of whether Deputy Stewart's actions under the circumstances were reasonable and whether Mr. Mizell's actions were foreseeable, while relevant to the breach and scope of the duty elements of the plaintiff's claim, is not pertinent herein to our determination of whether Deputy Stewart (and thus, Sheriff Seal) owed a duty to the plaintiff as a matter of law.
A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Ponceti v. First Lake Properties, Inc., 2011-2711 (La. 7/2/12), 93 So.3d 1251, 1252. A duty is defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. Perkins v. Entergy Corp., 98-2081 (La. App. 1st Cir. 12/28/99), 756 So.2d 388, 403, affirmed, 2000-1372 (La. 3/23/01), 782 So.2d 606. Whether a duty is owed is a question of law. Ponceti, 93 So.3d at 1252; Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La. 1984). The inquiry is whether the plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his claim. Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La. 1993). Although duty is a question of law, summary judgment on the issue of duty is proper only where no duty exists as a matter of law and no factual or credibility disputes exist. Sutherland v. Alma Plantation, L.L.C., 2015-1136 (La. App. 4th Cir. 5/4/16), 193 So.3d 1178, 1182, writ denied, 2016-1044 (La. 9/16/16), ___ So.3d ___, quoting Teter v. Apollo Marine Specialties, Inc., 2012-1525 (La. App 4th Cir. 4/10/13), 115 So.3d 590, 598.
Generally, there is no duty to protect others from the criminal acts of third persons. Harris, 455 So.2d at 1371. However, pursuant to Louisiana statutory law and jurisprudence, a police officer is a person who has been authorized and empowered by a governmental entity to perform duties, which relate to the governmental function of maintaining peace and order. See Herrera v. First Nat. Ins. Co. of America, 2015-1097 (La. App. 1st Cir. 6/3/16), 194 So.3d 807, 815, writ denied, 2016-1278 (La. 10/28/16), ___ So.3d ___; Persilver v. Louisiana Dept. of Transp., 592 So.2d 1344, 1349 (La. App. 1st Cir. 1991). The peacekeeping aspect of a police officer's duties includes routine patrolling, investigating, and answering of emergency calls. La. R.S. 40:2402(3)(a); Herrera, 194 So.3d at 815; Persilver, 592 So.2d at 1349. Along with the duty to maintain peace and order, a police officer has a duty to prevent crime, enforce the law, and protect the citizenry. La. R.S. 40:2402(3)(a); Herrera, 194 So.3d at 815; Persilver, 592 So.2d at 1349. Such duties include making arrests, performing searches and seizures, executing criminal warrants, preventing and detecting crime, and enforcing the penal, traffic, and highway laws of this state. La. R.S. 40:2402(3)(a) and 40:1379(A); Herrera, 194 So.3d at 815; Persilver, 592 So.2d at 1349.
Thus, a police officer has a duty to the public that arises from a social contract that confers upon him the authority to enforce the laws of the city and state within his jurisdiction and subject to the order of his superior officers. The police officer's duty is to exercise the authority conferred upon him with respect and concern for the well-being of those he is employed to protect and serve. Dyer v. City of New Orleans, 96-2802 (La. App. 4th Cir. 8/20/97), 700 So.2d 866, 869, writ denied, 97-2347 (La. 11/26/97), 703 So.2d 650; see also Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606, 614. This authority must at all times be exercised in a reasonable fashion, and the officer must act as a reasonably prudent man under the circumstances; thus, police officers are held to choosing a course of action that is reasonable under the circumstances. Id.; see also Syrie v. Schilhab, 96-1027 (La. 5/20/97), 693 So.2d 1173, 1177. Generally, this same duty applies to off-duty police officers working a private detail if they are primarily performing the duties of a police officer or are within the scope of their employment because they are actively engaged in police work or performing some action furthering the police function. See Blair v. Tynes, 621 So.2d 591, 595-596 (La. 1993); Roberts v. Benoit, 605 So.2d 1032, 1037-1039 (La. 1991); Cheatham v. Lee, 277 So.2d 513, 516 (La. App. 1st Cir.), writ denied, 279 So.2d 696 (La. 1973). D. Discussion of the Evidence
Sheriff Seal and Deputy Stewart; in support of their motion for summary judgment, relied on the deposition testimony of the plaintiff, Deputy Stewart, Chief Deputy Shannon Lyons, and Mr. Mizell. In opposition to the motion for summary judgment, the plaintiff likewise relied on the deposition testimony of Deputy Stewart, Chief Deputy Lyons, and Mr. Mizell, as well as affidavits from Irvin L. Magri, Jr. and Chief Deputy Lyons.
Sheriff Seal and Deputy Stewart challenged the admissibility of the affidavit of Mr. Magri on the basis that it failed to comply with the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (1993). However, since this affidavit pertained to other elements of the plaintiff's action (i.e., breach and scope of the duty or risk), the trial court deferred ruling on the matter.
Collectively, this testimony established the following undisputed facts:
Mr. Mizell owned Wayne's World, which caters to tubers along the Bogue Chitto River in Franklinton, Louisiana. The plaintiff owns property near Wayne's World. In late 2011 or early 2012, Mr. Mizell went to the plaintiff's home and confronted him about damage done to the road leading to Wayne's World. The two exchanged heated words, and the plaintiff told Mr. Mizell to stay off his property. This heated situation continued between the plaintiff and Mr. Mizell's workers for several months thereafter.
Sheriff Seal was sworn in as Sheriff of Washington Parish on July 1, 2012. That same date, Deputy Stewart became a duly-sworn deputy sheriff with the Washington Parish Sheriff's Office. Prior to that, Deputy Stewart had approximately twenty years of law enforcement experience with the Bogalusa Police Department and has been POST (Peace Officer Standards and Training Council) certified since 1993.
Mr. Mizell and Wayne's World regularly contracted with the Washington Parish Sheriff's Office to provide uniformed deputies for private security details. The Washington Parish Sheriff's Office facilitated this service and set the fee for it. However, the exchange of money typically took place directly between the contracting business (or person) and the individual deputies working the detail, but on some occasions, the Washington Parish Sheriff's Office collected a fee for the service. Chief Deputy Lyons was the Washington Parish Sheriff's Office liaison for private details. Chief Deputy Lyons offered Deputy Stewart the opportunity to work the private detail at Wayne's World and Deputy Stewart accepted the assignment. While Deputy Stewart was working the paid detail at Wayne's World, he was in full uniform, wore his gun, and had a Washington Parish Sheriff's Office unit (police vehicle) with him.
At some point on July 4, 2012, one of Mr. Mizell's employees reported to Mr. Mizell that he had seen the plaintiff with one of the Wayne's World tubes in his boat, that he later saw the tube torn apart hanging from a stick, and that he had retrieved the damaged tube. Mr. Mizell then requested that Deputy Stewart accompany him to the plaintiff's residence to question the plaintiff about damaging one of the tubes. Mr. Mizell, Deputy Stewart, Mr. Brumfield, and Gary Crawford then traveled to the plaintiff's property on a boat owned by Mr. Mizell. Mr. Brumfield had previously worked for the Washington Parish Sheriff's Department in the past, but was not then an employee of the Washington Parish Sheriff's Office. Once the group arrived at the plaintiff's property, Deputy Stewart was tying up the boat and Mr. Mizell disembarked and approached the plaintiff, who was outside barbecuing with family and friends. The plaintiff told Mr. Mizell to get off his property, but Mr. Mizell questioned the plaintiff about the tube. The plaintiff denied damaging the tube; Mr. Mizell then called the plaintiff a "lying son of a b----" and struck the plaintiff in the face with his left hand. Deputy Stewart rushed to the plaintiff and Mr. Mizell and separated them. Mr. Mizell was subsequently arrested for simple battery and criminal trespass. Prior to July 4, 2012, Deputy Stewart had never met either the plaintiff or Mr. Mizell.
Based on our de novo review of the record and the applicable law, we find that Sheriff Seal and Deputy Stewart have failed to meet their burden of showing an absence of factual support for the duty element of the plaintiff's claim and that they were entitled to judgment as a matter of law. To the contrary, the undisputed material facts surrounding the incident on July 4, 2012, established that Deputy Stewart, as an off-duty law enforcement officer working a private detail and performing the duties of a police officer, owed a duty to the plaintiff. Initially, Deputy Stewart had a duty to investigate a possible violation of the law by the plaintiff (the damage to the missing tube) and to maintain peace and order while conducting that investigation. When the decision was made to further investigate the matter by going to the plaintiff's property to question the plaintiff about the tube, Deputy Stewart had an affirmative duty to exercise his authority with respect and concern for the well-being of the public, including the plaintiff, and to act reasonably when he arrived on the plaintiff's property. Accordingly, summary judgment in favor of Deputy Stewart and Sheriff Seal, who is vicariously liable for Deputy Stewart's alleged negligence, was inappropriate, and we reverse the trial court's judgment dismissing the plaintiff's action and remand this matter for further proceedings.
In determining herein that summary judgment on the issue of duty was inappropriate as a matter of law, we make no determination as to whether Deputy Stewart acted reasonably under the circumstances (the breach element of the plaintiff's claims) or whether the scope of Deputy Stewart's duty encompassed the risk of an assault or battery by Mr. Mizell (the scope of the duty element of the plaintiff's claim). --------
III. CONCLUSION
For all of the above and foregoing reasons, the December 15, 2014 judgment of the trial court granting summary judgment in favor of Deputy Stewart and Sheriff Seal is reversed, and this matter is remanded for further proceedings.
All costs of this appeal in the amount of $8,354.00 are assessed to the defendants/appellants Randy "Country" Seal, in his capacity as Sheriff of Washington Parish, and Deputy Timmy Stewart.
REVERSED AND REMANDED. CRAIN, J., dissenting.
The undisputed facts establish that any duty Deputy Stewart owed to Toomer did not include the risk of a sudden, unprovoked punch by Mizell. Deputy Stewart had no knowledge of the history between Mizell and Toomer, or any facts or information suggesting that Mizell posed a physical threat to Toomer. In fact, Deputy Stewart had never met either man before the day of the incident. Mizell told Deputy Stewart only that Toomer had damaged one of his inner tubes, and Mizell requested that Deputy Stewart accompany him to investigate the matter. Upon arriving at Toomer's property, Mizell immediately approached Toomer and, after a brief exchange of words, punched him. Deputy Stewart had no opportunity to intervene before the punch, and prior to that moment, had no reason to believe that Mizell presented a risk of harm to Toomer. The affidavit of the plaintiff's expert does not offer any evidence to the contrary, as the affidavit identifies no facts supporting the expert's conclusory statements. See Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So. 3d 607, 614. The majority's determination that this issue is not properly before us is based on an overly narrow construction of the motion for summary judgment, which essentially collapsed into one the duty and scope of duty elements of the tort liability analysis, but clearly raised both. See Blair v. Tynes, 621 So. 2d 591, 595 (La.), on reh'g, 625 So. 2d 1346 (La. 1993). I would affirm the trial court's judgment. HOLDRIDGE, J., concurs. I respectfully concur with the reversal of the trial court's grant of the motion for summary judgment because I believe the Sheriff and his deputy did owe plaintiff a duty. However, the undisputed facts may show that the Sheriff did not breach any duty owed to the plaintiff. Under La. C.C.P. art. 966(E), ". . . a summary judgment shall be rendered ... only as to those issues set forth in the motion under consideration by the court at that time." Since the motion for summary judgment and the trial court's decision were based upon whether the Sheriff owed a duty to the plaintiff, it is inappropriate to address the breach issue in this appeal. However, the denial of the motion for summary judgment does not preclude the mover from re-urging the motion on the issue of breach (or any other issues). See e.g., Daniels v. SMG Crystal, LLC, 2013-0761 (La. App. 4 Cir. 12/4/13), 128 So.3d 1272, 1277.