Cheatham v. City of New Orleans

368 So. 2d 146, 1979 La. App. LEXIS 3611
CourtLouisiana Court of Appeal
DecidedJanuary 19, 1979
DocketNo. 9249
StatusPublished
Cited by6 cases

This text of 368 So. 2d 146 (Cheatham v. City of New Orleans) 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
Cheatham v. City of New Orleans, 368 So. 2d 146, 1979 La. App. LEXIS 3611 (La. Ct. App. 1979).

Opinions

BEER, Judge.

This is a wrongful death action by the widow and child of Charles Cheatham. The case against defendants, Daniel J. DeNoux and Stephen Reboul, was tried by jury and resulted in a verdict in favor of plaintiff in her individual capacity in the amount of $529,000 and in her capacity as administra-trix of the estate of her minor son in the amount of $125,000. Simultaneous with the jury trial, the case against the City of New Orleans (hereafter, “City”) was tried by the district judge, who cast the City in judgment for the same amounts.

[148]*148Other defendants were originally sued but, thereafter, as a result of various motions and exceptions, dismissed. The City, DeNoux and Reboul are the only appellants.

About midnight, April 11, 1975, DeNoux and Reboul, both patrolmen on the New Orleans Police Force, but clearly off-duty and in their civilian clothes, were, with their friend Richard Schilling, out for dinner in the French Quarter. As they walked along Bourbon Street near Toulouse, they were approached by a young shoe-shine boy, who, with some persistence, tried to persuade them to have their shoes shined. The evidence indicates that the boy, miffed because of their indifference, directed various obscenities toward them, and they became irritated. According to plaintiff’s witnesses, Reboul began to manhandle the boy, who, at the trial, testified that Cheatham then came upon the scene and intervened in his behalf. The boy testified that one of the defendants asked Cheatham if he wanted to fight about it and, immediately thereafter, struck the first blow. While he and Cheatham were fighting, the other defendant drew a gun and fired at Cheatham. He testified that Cheatham never had a gun of any other weapon and that defendants never identified themselves as police officers.

A cab driver, Joseph Baker, called by plaintiff, testified that he saw the men manhandling the boy and stated that when he came up to the group to investigate he was told to stay out of it. He says that Cheatham came up at about the same time and was also told to stay out. However, Cheatham told them he was going to make the matter his business. An argument ensued. Then, according to Baker, the following took place: One of the defendants was holding a drink and asked someone to hold it for him, whereupon he struck Cheatham. This witness did not see anyone pull a gun but, as he went to get the keys from his cab parked across the street, he heard a shot. After hearing the shot, he saw Reboul holding up his badge and gun and heard him telling the onlookers to stand back. This, according to all the witnesses called in behalf of plaintiff, was the very first instance of either of the defendants identifying themselves in any way as police.

Witnesses Douglas Gaspard and Alfred Smith essentially confirm the testimony regarding the altercation and the lack of self-identification on the part of Reboul and DeNoux until after Cheatham was shot by Reboul.

DeNoux and Reboul gave this account of the incident: After they warned the shoeshine boy to be on his way and stop annoying them, Cheatham came forward and began to abuse them verbally in an obscene way. They contend that they, thereupon, identified themselves as police but that Cheatham continued to abuse them. They threatened to arrest Cheatham and it appeared that he was going to relent but, instead, struck Reboul in the face and a fight ensued with the two of them scuffling on the ground. During the scuffle, Cheat-ham came up with the gun which Reboul was carrying in his waistband and pointed it at DeNoux, who was a few feet away from them, whereupon DeNoux drew his gun and shot Cheatham.

Defendants sought to corroborate their version of the episode by the introduction of statements from two witnesses obtained by police homicide investigators following the shooting. However, one of these witnesses was found dead soon after the shooting, and the other took the stand and repudiated the statement that he had made to the investigator. Both of these witnesses had long criminal records, which included convictions for felonies.

Ballistics tests established that it was De-Noux’s pistol which fired the bullet which unobjected-to hearsay shows was taken from Cheatham’s body.

The factual issue which the jury was obliged to resolve from the conflicting testimony of these witnesses is clear: Was the shooting justified? The jury, apparently unwilling to accept the testimony of Re-boul, DeNoux and Schilling on this critical issue, accepted the testimony of the witnesses called in behalf of the plaintiff.

There is evidence to support this basic credibility determination by the jury. [149]*149The preponderance of the evidence — including DeNoux’s admission against interest— supports the conclusion that it was DeNoux who fatally wounded Cheatham. Does this conclusion, coupled with the jury’s obvious determination (which we believe to be correct) that the shooting was unjustified, necessarily liable Reboul? We turn to a consideration of that issue:

LSA-C.C. art. 2324 provides:
“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

As we see it, the ultimate resolution of this issue turns on the question of foreseeability. As noted in Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972), every act leading up to an event which is the subject matter of litigation cannot be said to be a cause-in-faet. However, when such antecedent act supports a conclusion that, more probably than not, it was a necessary ingredient of the ultimate event, it then constitutes a cause-in-fact. We believe that the fatal wounding of Cheatham by DeNoux falls outside of that degree of reasonable foreseeability ascribable to Reboul as he scuffled with Cheatham. The record gives no support to a conclusion that Reboul could have reasonably foreseen that his scuffling with Cheat-ham would lead — momentarily—to De-Noux’s bizarre act of fatally shooting an unarmed man.

Though Reboul’s scuffle with Cheatham certainly created a situation where some injury could result, it is, we believe, unreasonable to foresee, from Reboul’s standpoint, death by shooting — at the hands of another. We conclude that the jury, though within its province in its basic determination of liability, erred in casting Re-boul.

Finally, insofar as basic issues of liability are concerned, we conclude that the record supports the jury’s conclusion that Cheatham was not contributorily negligent insofar as that contention has to do with his fatal wounding at the hands of DeNoux even though such conclusion might not be the same had we been dealing only with injuries resulting from the scuffle with Re-boul.

In her individual capacity, plaintiff was awarded the following:

For the pain and suffering of her deceased husband prior to his death $ 50,000
For loss of past earnings and for loss of future earnings of her deceased husband 279,000
For her mental pain and suffering and for her loss of love and affection both past and future 200,000
$529,000.

As administratrix of her minor son, she was awarded $125,000 “for the loss of love and affection of his deceased father and for any future pain and suffering.”

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Bluebook (online)
368 So. 2d 146, 1979 La. App. LEXIS 3611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheatham-v-city-of-new-orleans-lactapp-1979.