Carlin v. Blanchard

537 So. 2d 303, 1988 WL 141453
CourtLouisiana Court of Appeal
DecidedDecember 20, 1988
DocketCA 87 1350
StatusPublished
Cited by8 cases

This text of 537 So. 2d 303 (Carlin v. Blanchard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlin v. Blanchard, 537 So. 2d 303, 1988 WL 141453 (La. Ct. App. 1988).

Opinion

537 So.2d 303 (1988)

Warren B. CARLIN
v.
Johnny BLANCHARD, et al.

No. CA 87 1350.

Court of Appeal of Louisiana, First Circuit.

December 20, 1988.

*305 William C. Dupont, Dupont, Dupont and Dupont, Plaquemine, for plaintiff—Warren B. Carlin.

Edward A. Songy, Plaquemine, for defendant—Johnny Blachard, et al.

Ernest L. Johnson, Baton Rouge, for defendants, third party Leon Epps.

Before CARTER, LANIER and LeBLANC, JJ.

LeBLANC, Judge.

This is a personal injury suit in which the plaintiff seeks damages for personal injuries sustained from a gunshot wound to his foot.

FACTS

On July 13, 1984, plaintiff, Warren Carlin, was employed as a detective by Freddie Pitre, the Sheriff of Iberville Parish. On that date, an armed robbery occurred at the Pelican Shoppette in Iberville Parish. While responding to the robbery call in an unmarked unit plaintiff observed a car and driver who met the description of the robbery suspect proceeding on a gravel road located between the levee and the Mississippi River. Plaintiff radioed in this information and began pursuing the suspect with his grill light and dashboard siren on. He was advised that other units were en route and would set up a roadblock to capture the suspect; plaintiff was told to continue pursuing the suspect toward the roadblock. Ralph Stassi, Chief Criminal Deputy Sheriff, and Detective Johnny Blanchard, both of the Iberville Parish Sheriff's Office, assisted in setting up the roadblock and were each armed with shotguns. When the suspect, later identified as Leon Epps, observed the roadblock, he applied his brakes about one hundred yards away from the roadblock, causing his car to slide sideways, raising a large cloud of dust before coming to a stop. Plaintiff immediately exited his vehicle and ordered Epps to surrender. According to plaintiff's testimony, Epps then tried to back his vehicle over plaintiff, who fired a warning shot with his pistol into the ground. Epps then stopped and began getting out of his car, preparing to surrender. However, upon having heard the warning shot, Stassi and Blanchard began firing their shotguns toward the person they saw standing near Epps' vehicle, which was still enveloped in a cloud of dust. Epps got back in his car and drove toward the roadblock, which he by-passed by going over the levee. During the gunfire by Stassi and Blanchard, plaintiff was shot in his right foot. Epps was not injured and was apprehended at another roadblock.

Subsequently, plaintiff filed suit against Sheriff Pitre, Chief Criminal Deputy Stassi and Detective Blanchard alleging negligent injury; his employment with the Sheriff's office was terminated shortly thereafter.[1] Defendants responded to this suit by filing a peremptory exception of no cause and no right of action on the basis that plaintiff's exclusive remedy was workers' compensation. The trial court overruled these exceptions. Defendants also filed a third-party demand against Epps seeking indemnity from him in the event they were held liable to plaintiff on the principal demand.

Following a jury trial, a special verdict was rendered in favor of plaintiff and against defendants finding Stassi forty-five percent at fault; Blanchard, thirty percent at fault; and plaintiff, twenty-five percent at fault for his injuries. The following items of damages were awarded: past pain and suffering $5,000.00; future pain and suffering $5,000.00; permanent or partial disability $40,000.00; scarring $5,000.00; future impairment of income $10,000.00; and, past and future medical expenses $20,000.00. After reducing the damages by *306 plaintiff's percentage of fault, the trial court rendered judgment for plaintiff in the amount of $63,750.00. On defendants' third-party demand, the jury found that fault among the defendants and Epps should be apportioned forty-two percent each to Stassi and Blanchard and sixteen percent to Epps. In accordance therewith, the trial court rendered judgment against Epps in favor of defendants/third-party plaintiffs for $10,200.00. Epps filed a devolutive appeal from this judgment.

Subsequent to the rendition of judgment, defendants filed a motion for new trial on the basis of alleged juror misconduct. This motion was denied by the trial court after a hearing. Defendants thereafter filed a suspensive appeal with this court.

ISSUES

The following issues were raised by defendants, Pitre, Stassi and Blanchard, in their appeal.

1. Whether plaintiff was precluded from a tort suit against defendants on the basis that worker's compensation was his exclusive remedy?

2. Whether defendants established jury misconduct sufficient to warrant a new trial under CCP art. 1972(3)?

3. Whether defendants should be relieved of any liability to plaintiff under the "sudden emergency doctrine"?

4. Whether the conduct of defendants, Stassi and Blanchard, was a cause in fact of plaintiff's injuries?

5. Whether the jury erred in awarding only twenty-five percent fault to plaintiff on the principal demand and only sixteen percent fault to Epps on defendants' third-party demand?

6. Whether the jury erred in awarding an excessive amount of damages to plaintiff?

In his appeal, third-party defendant, Epps, raises only the following issue.

7. Whether the jury erred in assigning any fault to him?

ISSUE ONE

Defendants contend that "[a] sheriff's deputy injured by another deputy during the course and scope of his employment has no claim against the fellow deputy or sheriff in tort, but his exclusive remedy is worker's compensation." They argue that the trial court erred in denying their exceptions of no right and no cause of action which were based on this contention.

Sheriff's deputies are public officials who are generally excluded from coverage under the workers' compensation statute. La.R.S. 23:1034; Parker v. Cappel, 500 So.2d 771 (La.1987). However, under subsection (C) of R.S. 23:1034, a political subdivision may, at its own discretion and using its own funds, elect to provide workers' compensation to deputy sheriffs. Parker, supra.

In this case, defendants maintain plaintiff was paid "compensation" for several months by the sheriff's department and that "[t]his action by the sheriff is a clear manifestation of the sheriff's intention to provide worker's compensation to plaintiff in accordance with the provisions of subsection C of R.S. 23:1034." This argument is without merit.

There is no evidence in the record that Sheriff Pitre either had obtained workers' compensation coverage for his deputies from an insurer or established a plan for self-insurance. Rather, the payments made to plaintiff, which defendants refer to as "compensation", were actually voluntary payments of plaintiff's full salary, although plaintiff was unable to work during certain periods for which he was paid. Since the record does not establish that Iberville Parish sheriff deputies had workers' compensation coverage at the time in question, plaintiff is not precluded from suing his fellow deputies or the sheriff in tort. The trial court correctly overruled defendants' exceptions.

ISSUE TWO

After the trial of this matter, the jury foreman contacted the judge and informed him of certain statements made by jurors during their deliberations, which the foreman *307 thought might indicate prejudice against the sheriff's office.

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Bluebook (online)
537 So. 2d 303, 1988 WL 141453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlin-v-blanchard-lactapp-1988.