Henry v. Parish of Jefferson

835 So. 2d 912, 2002 WL 31915880
CourtLouisiana Court of Appeal
DecidedDecember 30, 2002
Docket02-CA-748
StatusPublished
Cited by1 cases

This text of 835 So. 2d 912 (Henry v. Parish of Jefferson) 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
Henry v. Parish of Jefferson, 835 So. 2d 912, 2002 WL 31915880 (La. Ct. App. 2002).

Opinion

835 So.2d 912 (2002)

Esther HENRY, Kim Henry (Murray), and Curtis Jones,
v.
The PARISH OF JEFFERSON, through the DEPARTMENT OF PARKS AND RECREATION, Traveler'S Insurance Company, and William Coleman, Sr., et al.

No. 02-CA-748.

Court of Appeal of Louisiana, Fifth Circuit.

December 30, 2002.
Rehearing Denied February 10, 2003.

Lester J. Waldmann, Brian C. Beckwith, Gretna, LA, Jim S. Hall, Metairie, LA, for Appellant.

Michael F. Grennan, Metairie, LA, for Appellee, Travelers Insurance Company.

William P. Connick, Michael S. Futrell, Metairie, LA, for Appellees, Parish Of Jefferson.

Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and MARION F. EDWARDS.

MARION F. EDWARDS, Judge.

Plaintiffs/Appellants appeal a jury verdict finding that the defendant, The Parish *913 of Jefferson, through the Department of Parks and Recreation, was not at fault or negligent for several shootings which occurred at Marrero Action Center Playground on the evening of November 14, 1992. For the following reasons, we affirm.

On the afternoon of November 14, 1992, Lakesha Lambert ("Lambert"), who was then a minor, appeared at the Marrero Action Center (MAC), in order to rent the upstairs room of the gym for her "Sweet Sixteen" birthday party. In booking the room for the party, Lambert was assisted by playground supervisor, William Coleman (Coleman). Lambert was required to fill out a form in conjunction with the room rental. On the form, Lambert indicated that the party would last from 8:00 p.m. until 1:00 a.m., and that eight chaperones would be present. Based on these assurances, Coleman allowed Lambert to reserve the room, as there was no MAC prohibition against renting rooms to minors. Because the amount of guests indicated on the form was below 100 persons, Jefferson Parish Recreation Department rules did not require the mandatory presence of a security officer. The party was by invitation only.

On the night of the November 14, Coleman twice called the Jefferson Parish Sheriff's Office, once to have the JPSO pass by as part of their normal rounds, and the second time to report an excess number of cars in the MAC parking lot. During the course of the evening the party drew many uninvited individuals who congregated in the MAC parking lot. At 12:06 a.m. on the morning of November 15, Coleman had called the JPSO a third time to request assistance in shutting down the party when, at the same time, he heard gun shots being fired. After police arrived, among several victims who had been shot, it was discovered that Corey Henry had been killed by the gunfire and that plaintiff, Curtis Jones, had become paralyzed as a result of his bullet wounds.

Plaintiffs filed suit on November 12, 1993, and, in supplemental and amending petitions, added the Parish of Jefferson through the Department of Parks and Recreation (Jefferson Parish) as a defendant, alleging that Jefferson Parish, through William Coleman, was negligent for failing to provide security and supervision for the party on the night that the shootings occurred.

The trial of this matter began before a jury on September 10, 2001, and the jury rendered a verdict in favor of Jefferson Parish on September 18, 2001, finding no fault or negligence on their behalf by William Coleman. Plaintiffs timely filed this appeal.

LAW AND ARGUMENT

In their first assignment of error, plaintiffs assert that the jury erred in finding no fault on the part of Jefferson Parish for the shootings that took place.

In Canter v. Koehring Co.,[1] the Louisiana Supreme Court stated:

[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

In Perkins v. Entergy Corp.,[2] The Louisiana Supreme Court further noted in regard to appellate review of jury verdicts:

*914 A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Id. (citing Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)). In order to reverse a trial court's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Further, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221.

In the determination of whether a defendant is liable under La. C.C. art. 2315, Louisiana has established a duty-risk analysis, which was explained the Louisiana Supreme Court in Posecai v. Wal Mart[3]

This court has adopted a duty-risk analysis to determine whether liability exists under the particular facts presented. Under this analysis the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Syrie v. Schilhab, 96-1027, p. 4-5 (La.5/20/97), 693 So.2d 1173, 1176-77; Berry v. State, 93-2748, p. 4 (La.5/23/94), 637 So.2d 412, 414. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. LeJeune v. Union Pacific R.R., 97-1843, p. 6 (La.4/14/98), 712 So.2d 491, 494.

In regard to the liability for injury of governmental agencies operating playgrounds, this court noted in Dussouy v. City of Kenner:[4]

Municipalities must exercise that care in the maintenance and operation of its public parks, playgrounds and recreational areas, and the appliances therein and thereof, commensurate with ordinary and reasonable care under the circumstances. The municipality is not the insurer of the safety of those making use of such facilities, neither is it required to eliminate every source or possibility of danger.
. . . .
The duty is not to insure against the possibility of an accident, but to act reasonably. A governmental agency or municipality operating a public park or playground is held to the same degree of care arising from ownership as any other person in possession and control of land; this rule requires that the agency or municipality use reasonable or ordinary care to keep the premises in reasonably safe condition for those using them. Sutter v. Audubon Park Commission, 533 So.2d 1226 (La.App. 4 Cir.1988), writ denied, 538 So.2d 597 (La.1989).

In addition, as will be discussed below, other courts have held that public entities have no legal duty to anticipate unforeseeable criminal acts that occur in public places.[5]

*915

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Related

Brown v. Ascension Parish
887 So. 2d 39 (Louisiana Court of Appeal, 2004)

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835 So. 2d 912, 2002 WL 31915880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-parish-of-jefferson-lactapp-2002.