Joel W. Martin v. City of New Orleans and David Michell

678 F.2d 1321, 1982 U.S. App. LEXIS 17978
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 25, 1982
Docket81-3277
StatusPublished
Cited by36 cases

This text of 678 F.2d 1321 (Joel W. Martin v. City of New Orleans and David Michell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joel W. Martin v. City of New Orleans and David Michell, 678 F.2d 1321, 1982 U.S. App. LEXIS 17978 (5th Cir. 1982).

Opinions

JERRE S. WILLIAMS, Circuit Judge.

In the early morning hours of October 6, 1979, plaintiff-appellee Joel Martin was walking through the French Quarter in New Orleans, Louisiana with his girlfriend, his brother, and a few of his brother’s friends. He was standing on Bourbon Street at the corner of Bienville when suddenly he was struck in the back of the neck with what he later discovered to be a bullet from the revolver of New Orleans policeman David Michell, the defendant-appellant.

Martin filed suit against Officer Michell and the New Orleans Police Department alleging that Michell had acted negligently in allowing his gun to discharge in a crowded area. Because Michell was acting within the course and scope of his employment as a policeman, Martin alleged, the Police Department was vicariously liable for Mi-chell’s negligence. Jurisdiction was based upon diversity of citizenship because Martin was a citizen of Kentucky.

On the evening of October 5, 1979, Officer Michell had been patrolling the French Quarter. He received a report over his radio informing him that a late model red Pontiac was careening through the Quarter and had just struck a mounted policeman. Moments later Michell was at the intersection of Bourbon and Conti Streets when he noticed a red Pontiac proceeding recklessly down Conti. The vehicle nearly hit another policeman, Robert Williams, several pedestrians, and Officer Michell. The Pontiac continued down Conti and then turned right at the next corner onto Royal Street. Anticipating that the driver would take a route around the block, Michell ran up Bourbon Street toward Bienville Street to await the return of the Pontiac. As Michell had guessed, the vehicle turned right from Royal onto Bienville and headed back toward Bourbon Street. Standing on Bien-ville, just before the Bourbon Street intersection, Officer Michell, by gesture and by standing in the street, ordered the driver of the Pontiac to halt. The driver ignored Michell and continued straight ahead almost running him down. At this point in the story, Michell’s account of the subsequent events differs from the account given by witnesses for Martin.

Michell testified that he jumped out of the car’s path and ran around to the passenger side of the vehicle. When he had observed the Pontiac earlier, Michell thought he had seen two people in the car, but now he saw the driver only. He claimed that he then drew his revolver, approached the front passenger side door, and leaned into the window to see whether the other person was hiding in the back seat. The driver grabbed Michell’s revolver and in their struggle, the gun went off.

[1324]*1324Betsy Buie and Judy Moscovitc, two of Martin’s companions that evening, were standing on Bourbon Street at the Bienville Street intersection just behind the Bourbon Street barricade when the incident took place. Although they were on the driver’s side of the Pontiac, they testified that because they were behind the car, they could see clearly everything that happened on the passenger side. They contended that Mi-chell approached the passenger side, drew his revolver, and using both hands, fired into the open window of the car. They stated unequivocally that Michell was standing completely outside of the car and that at no time did he lean into the car.

After the shot was fired, Martin grabbed the back of his head and sank to his knees. His testimony at trial indicated that at first he did not realize what had happened; he thought he might have been struck by a blunt object. But, almost instantly he was bleeding profusely. His companions rushed over to help him, but no one was able to stop the bleeding. A few minutes later, he was helped into a police squad car and taken to Charity Hospital.

Doctors at the hospital found that he had been shot and that the bullet and several bullet fragments had lodged in the soft tissue at the base of Martin’s head and top of his neck. Because it was so close to the spinal cord, the doctors decided it would be too dangerous to remove the bullet. Martin had no other symptoms or complications at that time and was released from the hospital three days later.

Since the incident, Martin has experienced only minimal physical discomfort. Occasionally his neck becomes tired and sore when he remains in one position for a long time. He testified that he continues to suffer emotionally because he is constantly aware of the bullet’s presence, and he fears the possibility of future complications.

Two neurosurgeons who had examined Martin testified as to the extent of his injuries and his prognosis. Both testified that Martin’s injury was healing well without complications. Because the bullet and its fragments remained in his neck, however, there would always be a risk of complications such as infection, arteriovenous fistula, and increased pain. If the bullet or fragments migrated to the spinal cord, Martin could become partially or totally paralyzed. Corrective surgery for any of these conditions would be dangerous and expensive. The doctors concluded that while the chance that Martin would experience these complications was small, the consequences were serious.

The case was submitted to the jury upon special interrogatories. They found that police officer Michell was negligent in the discharge of his gun and wounding of plaintiff, and that his negligence was a proximate cause of Martin’s injury. Martin was awarded $500,000.00. The court entered judgment in that amount.

In this appeal, Michell contends that the court committed reversible error in refusing to submit his requested jury instruction concerning the sudden emergency doctrine as a defense to the claim of negligence. Alternatively, he argues that the $500,-000.00 award cannot stand because it is punitive, speculative, and unsupported by the evidence. We find his contentions unpersuasive and affirm on both issues.

SUDDEN EMERGENCY DOCTRINE

Michell’s first point on appeal is that the court erred in refusing to instruct the jury on the sudden emergency doctrine. That doctrine has been defined by the Louisiana Supreme Court in these words:

One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385, 389 (1972). Mi-chell argues that the doctrine was applicable [1325]*1325to the facts of this case because recklessness of the driver of the automobile, including the attempt to run him down, put him into a position of imminent peril. Martin contends that Michell waived his right to appeal this issue because he failed to make a specific objection to the court’s charge and, in the alternative, that the charge gave an instruction substantially equivalent to the sudden emergency doctrine. We find that the issue was not waived by Michell but that the court’s charge sufficiently instructed the jury as to the applicable principles of law.

Prior to trial, both parties submitted proposed charges and special interrogatories to the court. Michell’s Requested Jury Charge No. 7 contained the sudden emergency doctrine in the above-quoted language with a citation to the Hickman case.

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Bluebook (online)
678 F.2d 1321, 1982 U.S. App. LEXIS 17978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joel-w-martin-v-city-of-new-orleans-and-david-michell-ca5-1982.