Dubroc v. Allstate Ins. Co.

633 So. 2d 861, 93 La.App. 3 Cir. 780, 1994 La. App. LEXIS 870, 1994 WL 65231
CourtLouisiana Court of Appeal
DecidedApril 7, 1994
Docket93-780
StatusPublished
Cited by8 cases

This text of 633 So. 2d 861 (Dubroc v. Allstate Ins. Co.) 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
Dubroc v. Allstate Ins. Co., 633 So. 2d 861, 93 La.App. 3 Cir. 780, 1994 La. App. LEXIS 870, 1994 WL 65231 (La. Ct. App. 1994).

Opinion

633 So.2d 861 (1994)

Jimmy Dale DUBROC, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE CO., et al., Defendants-Appellees.

No. 93-780.

Court of Appeal of Louisiana, Third Circuit.

March 2, 1994.
Opinion Granting Rehearing April 7, 1994.

William Stafford Neblett, Alexandria, for Jimmy Dale Dubroc.

Raymond L. Brown Jr., Alexandria, for Allstate Ins. Co., et al.

Thomas Joseph DeJean, Opelousas, for Connie Perez.

Rhett M. Powers, Kenner, Vincent Ross Cicardo, Alexandria, for Jennifer Brandy Holt and Automotive Cas.

Michael Moyse Wahlder, Alexandria, for Creecy, Marlon.

B. Scott Cowart, Albin Alexandre Provosty, Alexandria, for William Earl Hilton Sheriff.

Richard Eric Starling Jr., Pineville, for Kay Jones and Ray Neff.

Before DOUCET, YELVERTON and SAUNDERS, JJ.

YELVERTON, Judge.

These are two consolidated cases. The two plaintiffs were injured in a car wreck. They sued for damages. One of the defendants was Sheriff William Earl Hilton of Rapides Parish. The Sheriff filed an exception of no cause of action. It was granted and the suit against the Sheriff dismissed. The plaintiffs appealed. We affirm, but remand *862 to allow the plaintiffs, if they can, to amend to state a cause of action.

The plaintiffs were Jimmy Dubroc in one case, and Connie Perez, on behalf of her interdicted daughter Melinda Deville, in the other. The following facts were alleged in Perez's and Dubroc's petitions. On September 21, 1991, Jennifer B. Holt was driving a vehicle proceeding east on Highway 28 in Alexandria. Five people were riding with her. Jimmy Dubroc and Melinda Deville Perez were passengers, along with Ray Neff and Kay Jones. Chad Coleman was the fifth passenger. They were taking Coleman to the hospital because he had a knife cut on his hand. On the way, Holt stopped the vehicle because Coleman needed to throw up. While the Holt car was stopped, a Rapides Parish Deputy Sheriff pulled over next to it to see what was going on. He saw Coleman's injury. The deputy told Jones that they should seek immediate medical treatment. Neff requested that the deputy give them an escort to the hospital. This request was refused.

Holt continued towards the hospital. In less than a mile, at the intersection of Highway 28 West and MacArthur Drive, Holt's vehicle collided with Creecy's vehicle. Dubroc and the Perez girl were injured. They were the people who sued the Sheriff.

Perez and Dubroc allege that the accident was caused by the negligence or fault of Sheriff William Earl Hilton, through his deputy, in the following ways:

1. Breached his duty to provide assistance in the form of an escort to the Holt vehicle;

2. Failure to appreciate the severe injuries of Coleman;

3. Failure to call an ambulance to transport Coleman to the hospital, thereby reducing risk of injury to occupants of the Holt vehicle;

4. Failure to personally transport Coleman to the hospital, thereby reducing risk of injury to occupants of the Holt vehicle;

5. Failure to follow police procedure in emergency situations;

6. Breached his duty to provide medical assistance;

7. Breached his duty to insure that the occupants of the Holt vehicle had a safe means of transportation to the hospital.

The Sheriff filed an exception of no cause of action.

NO CAUSE OF ACTION

Pleadings must be construed reasonably so as to afford litigants their day in court, to arrive at the truth, and to do substantial justice. When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence. The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition and is triable on the face of the papers; for the purpose of determining the issues raised by this exception, the well pleaded facts in the petition and any annexed documents must be accepted as true. Kuebler v. Martin, 578 So.2d 113 (La. 1991).

In addressing the exceptions, we must keep in mind that Coleman, the one with the cut hand, is not a plaintiff in this case. Nor is Holt, who was driving the car. The plaintiffs are two of the remaining four passengers in the car. We are not concerned about the duty to protect Coleman as to his cut hand, or any duty to protect the driver Holt from her own driving. We are concerned only with the duty to the passengers as affected by the likelihood that Holt's driving would endanger them.

In Louisiana the courts approach the question of responsibility of one party for the tort of another which injures a third party through the traditional duty-risk approach and the existence of a special relationship. The duty-risk approach consists of the well understood factors of cause-in-fact, existence of duty, breach of duty and inclusion within scope of duty. Berry v. State of Louisiana through DHHR, 625 So.2d 600 (92-1479, La. App. 3d Cir.1993).

We have been unable to find statutorily prescribed standards of conduct of a sheriff's officer in such circumstances as those presently alleged. La. Constitution 1974 art. 5, *863 § 27 provides that sheriffs outside the parish of Orleans shall be the chief law enforcement officer in the parish. They are invested by law with authority to direct, control or regulate traffic by La.R.S. 32:5. Thus, the deputy was empowered to investigate when he saw a car stopped with several people in it and one of them throwing up on the side of the road.

A sheriff may, but is not required to, operate and maintain an ambulance, emergency rescue service, and emergency disaster service within the parish. La.R.S. 33:1437.1. Therefore, we can conclude that the sheriff's deputy had the authority to do the things that the plaintiffs alleged he should have done: he could have called an ambulance; he could have provided an escort; he could have put Coleman in his own car and taken him to the hospital. We can also assume that had he provided an escort, Holt would probably not have gotten in a wreck. Or, had the deputy taken Coleman in his own car or called an ambulance, Holt might well have turned around and gone home and avoided the wreck. We cannot say that the petition failed to allege cause in fact.

Concerning duty and scope of duty, the Louisiana Supreme Court recently observed that "where the alleged wrongful conduct of the defendant is a failure to act or `nonfeasance', courts have found it necessary for some definite relationship between the parties to exist, such that social policy justifies the imposition of a duty to act upon the defendant." Fox v. Board of Supervisors of Louisiana State University, 576 So.2d 978 (La.1991).

The duty of law enforcement officers has been established jurisprudentially and is essentially that of maintaining peace and order, preventing and detecting crime, and enforcing the law. Zeagler v. Town of Jena, 556 So.2d 978, 980-81 (La.App. 3d Cir.), writ denied, 560 So.2d 14 (La.1990). This case explains:

This duty is one owed to the public generally but may be transformed into a duty owed to an individual where a personal or individual relationship (one-to-one relationship) arises between the police officer and an individual through closeness in proximity or time. Kendrick v. City of Lake Charles, 500 So.2d 866 (La.App. 1 Cir. 1986). This distinction between a policeman's duty to the general public and his duty to a specific individual was clearly set forth in Tompkins v. Kenner Police Dept., 402 So.2d 276 (La.App.

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Bluebook (online)
633 So. 2d 861, 93 La.App. 3 Cir. 780, 1994 La. App. LEXIS 870, 1994 WL 65231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubroc-v-allstate-ins-co-lactapp-1994.