Dyer v. City of New Orleans

700 So. 2d 866, 96 La.App. 4 Cir. 2802, 1997 La. App. LEXIS 2108, 1997 WL 476593
CourtLouisiana Court of Appeal
DecidedAugust 20, 1997
DocketNo. 96-CA-2802
StatusPublished
Cited by4 cases

This text of 700 So. 2d 866 (Dyer 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
Dyer v. City of New Orleans, 700 So. 2d 866, 96 La.App. 4 Cir. 2802, 1997 La. App. LEXIS 2108, 1997 WL 476593 (La. Ct. App. 1997).

Opinion

JiPLOTKIN, Judge.

Plaintiffs, Curtis C. Dyer, his wife, Made-lene Dyer, their five children, and their grandchild (hereinafter collectively designated as “the Dyer family”), appeal a-trial court judgment after a trial on the merits in favor of defendants, City of New Orleans and Police Officer William “Billy” Mims (hereinafter collectively designated as “the City”). We affirm.

Facts

This action arises out of injuries sustained by members of the Dyer family when the car in which they were riding was struck by stray bullets from a gun fight between Officer Mims, who was off-duty at the time, and robbery suspects. The incident occurred in the 4200 block of Ulloa Street near Carrolton Avenue in the City of New Orleans, somé-time between 9 and 11 p.m. on Thursday, November 29, 1991, while the Dyer family was en route to Mr. Dyer’s sister’s home to attend a Thanksgiving dinner. As a result of the incident, Mrs. Dypr. was struck in the face by a bullet fragment, sustaining facial injuries and scarring. | aAdditionally, one of the children, Emmanuel, who was 11 at the time, suffered injury when a bullet fragment lodged in his head; it is not removable. All of the members of the Dyer family claim that they suffer emotional damages as a result of the incident.

The Dyer family did not witness the actual' gun fight.' However, in support of their ease against Officer Mims and the City, they presented the testimony of Angelo Bridgewater, who witnessed the incident from the second-floor bedroom at the rear of his home at the corner of Ulloa and Solomon streets. Mr. Bridgewater testified that he had noticed a suspicious vehicle driving around the neighborhood and had taken his family inside. Shortly thereafter, he heard screams from a group of children who were playing in front of a house several doors over from Mr. Bridgewater’s home. He looked out the window and saw Officer Mims “busted out” out of the door of the house, brandishing a gun. According to Mr. Bridgewater, Officer Mims ran into the street, shooting at two men who were running down the street. One of the men was struck and went down. At that time, Mr. Bridgewater said, the other man turned and shot at Officer Mims, then turned the corner, jumped into his car, and got away. Officer Mims shot eight or nine times and was the only one who shot in the direction of the automobile occupied by the Dyer family, Mr. Bridgewater stated.

Officer Mims, who was a member of the New Orleans Police Department’s Reserve Division, testified differently. He had just [868]*868arrived at Ms girlfriend’s house in the 4200 block of Ulloa on Thanksgiving night, 1991, when he heard his girlfriend’s mother, then his girlfriend, screaming for him to come because someone was being robbed in front their house. He grabbed his gun and his police radio, which he had just laid on his girlfriend’s dresser, and ran down the stairs. When he opened the screen door, he saw two men, one of which was holding ajjgirl in front of him and threatening to take her with him. When he opened the door, he said, “Freeze, police,” at which time the man released the hostage, turned, and ran. Officer Mims said that he thought he saw a shotgun in the man’s hand, so he ran out of the house, and got behind a car for cover.' When he saw a second man running on the sidewalk, he ran into the middle of the street and told him to “Freeze, police.” At that point, the first man, who had the shotgun, turned and took a defensive position, Officer Mims said, and the second man started shooting at him. He returned the fire, and saw the man with the shotgun fall. The other man then ran off down the street.

Officer Mims testified that he opened fire only because he feared injury. He did not shoot the second man as he ran away, he said, because he was fleeing and no longer presented a risk to his life because he was no longer shooting at him. He did not know there were any other people on the street at the time of the incident, other than the people behind him, Officer Mims said. He never fired up Ulloa Street into the next block, he said.

In response to questions from the plaintiffs’ attorney, Officer Mims admitted that police officers are legally allowed to fire their weapons only if their life is in danger, or in defense of another person. Moreover, police officers are not allowed to use deadly force merely to apprehend or stop a fleeing subject. Police regulations do say that the unnecessary or premature drawing or exhibiting of a firearm “limits an officer’s alternative in controlling a situation, creates unnecessary anxiety on the part of citizens, and may result in an unwarranted or accidental discharge of the firearm,” but asserted that he did not draw or exhibit his firearm unnecessarily or prematurely. The gun was in his hand when he ran into the street only because he grabbed it off the dresser, he said. Police officers Uare not supposed to shoot at innocent or guilty people, Officer Mims admitted; “our job is to apprehend.”

In entering judgment in favor of the City and Officer Mims, the trial court found specifically that Officer Mims’s actions in exiting the building with his firearm drawn were reasonable, “given what Officer Mims saw and heard prior to existing [sic] the building.” Moreover, the trial judge found that Officer Mims only returned shots after one of the suspects turned and shot at him first. Moreover, the trial judge noted that the photographs admitted into evidence tended to discredit the testimony of Mr. Bridgewater. The trial judge concluded that “plaintiffs have not proven by a preponderance of the evidence that Officer Mimms [sic] either acted unreasonably or that he breached a duty by violating departmental policy.” In their only assignment of error, the plaintiffs claim that the trial court erred by failing to apply a duty-risk analysis to the facts of this case.

Duty-risk analysis

This court has recently considered the responsibility of police officers engaged in gun fights with suspected criminals in the presence of innocent citizens. See Brown v. Diversified Hospitality Group, 96-0413 (La.App. 4 Cir. 4/30/97) 694 So.2d 520 and Stroik v. Ponseti 96-0842, 96-1500 (La.App. 4 Cir.11/6/96), 683 So.2d 1342, writ granted, 96-2897 (La.2/7/97), 688 So.2d 483.1 In Stroik, the court adopted the duty-risk analysis for determining whether the City and the police officer should be held liable for a citizen’s injuries, as set out by the Louisiana Supreme Court in Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So.2d 318. In order to recover in such a case, the plaintiff must prove five elements:

[869]*869(1) the ■ defendant had a duty to conform his conduct to a specific standard; (2) the •defendant failed to conform his conduct to the appropriate standard; (3) the defendant’s substandard conduct was a eause-in-fact-of the plaintiff’s injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages.

Stroik, 683 So.2d at 1349.

The first two inquiries listed above, which form the crux of the instant case, were further explained in Stroik as follows:

Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law — statutory, jurisprudential or arising from general principles of fault — to support his claim. The scope of the duty inquiry is a question of policy as to whether the particular risk falls within the scope of the duty.

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700 So. 2d 866, 96 La.App. 4 Cir. 2802, 1997 La. App. LEXIS 2108, 1997 WL 476593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyer-v-city-of-new-orleans-lactapp-1997.