Guillot v. Doe

879 So. 2d 374, 2004 WL 1472389
CourtLouisiana Court of Appeal
DecidedJune 30, 2004
Docket2003-1754
StatusPublished
Cited by11 cases

This text of 879 So. 2d 374 (Guillot v. Doe) 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
Guillot v. Doe, 879 So. 2d 374, 2004 WL 1472389 (La. Ct. App. 2004).

Opinion

879 So.2d 374 (2004)

Melvin GUILLOT, et al.
v.
John DOE, et al.

No. 2003-1754.

Court of Appeal of Louisiana, Third Circuit.

June 30, 2004.

*376 Dean A. Doherty, Lafayette, LA, for Plaintiffs/Appellees: Melvin Guillot and Tammy Guillot.

Brian T. Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendants/Appellants: Diane Lubiecki, Julien Lubiecki, and Allstate Insurance Company.

Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.

WOODARD, Judge.

During a birthday party/sleep over at Mrs. Diane Lubiecki and Mr. Julien Lubiecki's *377 home, a child attending the party accidently shot Jonathan Guillot in the forehead while attempting to unload a pellet gun. On appeal, the Lubieckis request that this court reverse the trial court's allocation of fault and its $45,000.00 general damage award. Also, the Lubieckis contend that the trial court improperly awarded Mrs. Tammy Guillot $5,000.00 for her mental anguish/emotional distress, under La.Civ.Code art. 2315.6. We affirm the trial court's $45,000.00 general damage award and its allocation of fault, but we reverse its decision to award Mrs. Guillot damages.

* * *

On January 24, 1997, the Lubieckis invited several children to attend a birthday party/sleep over at their home for their eleven-year-old son, Robert. Previously, Robert told the children who attended the party to bring their BB or pellet guns, if they had one, so they could go on a hunting trip for birds and other small animals.

The Guillots initially agreed to allow two of their sons, Brandon and Ryan, to spend the night, only, if the Lubieckis promised to supervise the children while they were using the guns. Specifically, Mr. Lubiecki told the Guillots: "[D]on't worry about it. You know, we'll treat [your children] like they're our own." The Lubieckis also promised to lock the guns up in their bedroom closet when the children were not hunting. At trial, Mr. Guillot recalled Mr. Lubiecki's words of assurance: "I promise you [the guns] will be locked up. Nobody will be around them without me supervising."

The Guillots did not want their youngest son, Jonathan, to spend the night, since he was only seven years old at the time and had never slept over at a friend's house. However, after receiving repeated assurances from the Lubieckis, the Guillots eventually allowed him to spend the night, as well. Mr. Guillot testified:

A[I] ... went over the same thing again.... Asked [Mr. Lubiecki], "You know, you're sure y'all going to watch him, and you know, [Jonathan's] my little guy [and] he's only ... seven...."
[He said,] "Oh, yes. Don't worry about it."
....
A [He said,] "[Jonathan's] going to be fine. We're going to watch him; treat him like our own."
Basically, ... Mr. Lubiecki probably thought I was a nut because I kept going over and over it....
Q You repeated the same instructions —
A Yes, sir.
Q —about gun safety?
A Yes, sir.
Q And were you given the same assurance?
A Yes, sir.

Later that night, the Lubieckis went to bed at approximately 10:00 p.m., but they did not lock the guns in their closet as they promised. At around midnight, before Brandon went to bed, he placed his pellet gun in Robert's unlocked bedroom closet with the rest of the guns that were already in there, which allegedly included a couple of shotguns and a twenty-two (.22) caliber rifle.

The following morning, on January 25, 1997, Mr. Lubiecki went outside to his shed, which was approximately thirty yards from the house, to work on his van. Soon afterwards, Mrs. Lubiecki, who was unaware of the fact that her husband was in the shop, drove to the store and, thus, left the children that were still in the house without adult supervision.

*378 At some point after Mrs. Lubiecki left the home, one of Robert's friends, Belton Richard, III, found Brandon's pellet gun and accidentally fired it, causing a pellet to strike Jonathan in the forehead. Belton dropped the rifle and ran outside screaming: "I shot him. I shot him. Help, help, help."

When Mr. Lubiecki heard Belton's screams, he found Jonathan and inspected the wound to his head. Mr. Lubiecki told Jonathan that "it was just a nick" and placed a Band-Aid on it. Robert's older sister, Shannon, who came in the house soon after the accident, took the Band-Aid off and cleaned the wound "with a Q-Tip."

After treating his wound, she called the Guillots to tell them about their son's injury. When Mrs. Guillot answered the phone, Shannon told her: "[Jonathan's] been scratched, and I don't think it's really anything, but you might want to come and look."

Mrs. Guillot had a bad feeling that the situation was more serious than Shannon had revealed, so she told her husband the news and they rushed to the Lubieckis' home. When they arrived, Mr. Lubiecki was outside on the porch. As they approached the house, the first thing he told them was that, when he heard Belton screaming "I shot him," he initially thought that Belton had grabbed the twenty-two (.22) in the closet. Mr. Lubiecki also expressed how relieved he was when he found out that Jonathan had been shot with a pellet gun: "Man, thank God it was a pellet gun [because] I thought [Belton] had grabbed the twenty-two (.22)."

At trial, Mr. Guillot described Jonathan's condition when they first saw him:

Q Okay. Was [Jonathan] crying?
A Just a little. He was more like shaking, scared, you know, shaken up.
Q Okay. Could you see any blood on his forehead?
A Yes.
Q Was there a Band-Aid covering the wound?
A Yes sir.
Q Despite the Band-Aid, could you still see blood on his head?
A Yes sir.
Q Was it dripping or was it just dried up?
A It was kind of still wanting to bleed, you know, but it wasn't gushing or anything. [Mr. Lubiecki and Shannon] had cleaned him up.

When Mrs. Guillot saw her son's condition, she began to cry. She was also very angry, since she believed Shannon misrepresented the severity of Jonathan's injury by calling it a mere scratch.

Soon afterwards, the Guillots took Jonathan to the emergency room at Our Lady of Lourdes Regional Medical Center (OLOL). Dr. Scott Thompson, the treating emergency room physician, made the following notations, concerning Jonathan's injury, in OLOL's "Emergency Record/Physician's Record":

HISTORY OF PRESENT ILLNESS: This little boy took a BB or pellet to the right forehead. He didn't get hit anywhere else. He said it stung a little bit.
....
PHYSICAL EXAMINATION: VITAL SIGNS: Stable. GENERAL: Polite little boy. He has a little divot of skin about the size of a BB missing on the right mid forehead. Superior and lateral to that is a little knot under the skin consistent with a BB. It is about an inch removed from the entry site. There is no other bony irregularity....
IMPRESSION: BB SUBCUTANEOUS.
*379

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Cite This Page — Counsel Stack

Bluebook (online)
879 So. 2d 374, 2004 WL 1472389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillot-v-doe-lactapp-2004.