MacK v. City of Monroe

595 So. 2d 353, 1992 La. App. LEXIS 467, 1992 WL 36479
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1992
Docket23288-CA
StatusPublished
Cited by7 cases

This text of 595 So. 2d 353 (MacK v. City of Monroe) 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
MacK v. City of Monroe, 595 So. 2d 353, 1992 La. App. LEXIS 467, 1992 WL 36479 (La. Ct. App. 1992).

Opinion

595 So.2d 353 (1992)

Vernisa MACK, et al., Appellants,
v.
The CITY OF MONROE, et al., Appellee.

No. 23288-CA.

Court of Appeal of Louisiana, Second Circuit.

February 26, 1992.
Writ Denied May 22, 1992.

*354 Guerriero & Guerriero by Jeffrey D. Guerriero, for appellants.

Nanci S. Summersgill, Asst. City Atty., for appellee.

Before SEXTON, VICTORY and STEWART, JJ.

VICTORY, Judge.

In this tort suit to recover for personal injuries and related damages, plaintiffs appeal the summary judgment granted in favor of the City of Monroe. We affirm.

FACTS

On January 29, 1989, Vernisa Mack (Mack) and defendant, James Charles McGraw (McGraw), her former live-in boyfriend and the father of her three children, had an altercation at Mack's home in Monroe over Ernest Richards, a man Mack had begun to date. McGraw and Mack had lived together for several years until about October, 1988. Shortly after the fight and McGraw's departure, Mack realized she had been cut and was taken to the hospital for stitches. The next day Mack went to the Monroe police and, at their instructions, signed an affidavit for a peace bond and an arrest warrant for McGraw on a charge of aggravated battery. Mack supplied the Monroe police with McGraw's place of employment and home address. However, McGraw was not arrested until after the February 11, 1989 incident related below.

On February 11, 1989, McGraw called Mack's home and asked if he could take their children to the movies. Mack gave permission for the children to accompany McGraw because the children were close to him, but Mack required McGraw's brother pick the children up at her home. Later in the day, Frankie Richards, who lived with and apparently was a relative of Ernest Richards, Mack's boyfriend, telephoned Mack and stated that McGraw was at the *355 Richards' home in West Monroe with the children and wanted Mack to come pick them up. Mack, concerned for her children and obviously afraid of McGraw, requested Brendi Chatman, (her sister who dated Frankie Richards), Rita Mack (her sister), and Jennifer Mack (her sister-in-law), to accompany her to West Monroe. She did not seek assistance from law enforcement officials.

Shortly after they arrived by car at the Richards' home in West Monroe, McGraw's van pulled up. McGraw exited his van and began walking towards their car, saying something about the baby being sick. Brendi Chatman got out of the car and starting walking towards the van saying "we just come after the kids." McGraw then turned back towards the van, telling Chatman he would get the children out of the van and give them to her. Brendi Chatman then apparently attempted to get the children from the van and was shot by McGraw. As Mack attempted to approach Chatman, McGraw hit her with the butt of the gun. Thereafter, the sequence of events is not clear, but McGraw apparently shot Mack, Jennifer Mack, and attempted to, or actually did, run over some or all of the wounded ladies with his van. Each received serious injuries for which recovery is sought in this lawsuit.

The injured ladies filed suit, along with Freggie Mack, husband of Jennifer Mack, who claimed loss of consortium. In addition to their own injuries, the women sued for loss of consortium on behalf of their minor children. Named as defendants were the City of Monroe, James Charles McGraw, and XYZ Insurance Company. Plaintiffs allege the city is responsible for their damages because of the failure to arrest McGraw prior to February 11, 1989.

The city moved for summary judgment. The trial judge found no legal causation between the failure to arrest McGraw on the battery warrant and/or the peace bond and the actions of McGraw, and therefore granted summary judgment in favor of the city. From this judgment, plaintiffs appeal.

Plaintiffs argue on appeal that the police, having been told of McGraw's actions of January 29, 1989, breached a duty to protect them by failing to obtain and/or execute a peace bond warrant and/or arrest warrant. They claim the risk of harm by McGraw fell within the scope of the duty owed them by the police department, that the issue of causation is one of fact which is disputed, and that the trial court erred in rendering summary judgment in favor of the city.

DISCUSSION

The law is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law. The burden of proof in a motion for summary judgment is on the mover to establish there are no genuine issues of material fact. Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubt should be resolved in favor of a trial on the merits.

Weighing evidence and making evaluations of credibility are not included in a determination of summary judgment. All inferences drawn from underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion for summary judgment. Smith v. American Universal Ins. Co., 522 So.2d 1366 (La.App.2d Cir.1988).

As we recently stated in Nichols v. Nichols, 556 So.2d 876, 878 (La.App.2d Cir. 1990), writ not considered, 561 So.2d 92 (La.1990):

A defendant's conduct is actionable under the duty/risk analysis of LSA-C.C. Art. 2315 where it is both a cause-in-fact of the injury and a legal cause of the harm incurred. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Fowler v. State Farm Fire and Casualty Insurance Co., 485 So.2d 168 (La.App.2d Cir.1986), writ denied 487 So.2d 441 (La.1986). The *356 cause-in-fact test requires that "but for" the defendant's conduct, the injuries would not have been sustained. The legal causation test requires that there be a "substantial relationship" between the conduct complained of and the harm incurred. Sinitiere v. Lavergne, supra; Fowler v. State Farm Fire and Casualty Insurance Co., supra.
The initial inquiry is into the scope of the defendant's duty to the plaintiff. The duty of a public official in general and a police officer in particular is well summarized in Kendrick v. City of Lake Charles, 500 So.2d 866, 870 (La.App. 1st Cir.1986), as follows:
"[T]he mere fact that a duty is of a public nature, and benefits the general public, does not require a conclusion that the city cannot be found liable for the breach of that duty." Stewart v. Schmieder, 386 So.2d 1351, 1358 (La. 1980). The duties of members of a city police department relate to its governmental function of maintaining public order. Tezeno v. Maryland Casualty Co., 166 So.2d 351 (La.App.3d Cir. 1964). When a public official breaches a duty which is owed to the public in general, such breach of duty generally does not result in liability to an individual. However, where a personal or individual relationship (one-to-one relationship) arises between the police officer and an individual, liability may be imposed for breach of a duty owed by the police officer to the individual. Serpas v. Margiotta, 59 So.2d 492 (La. App.Orl.1952). A duty owed to the public in general may be transformed into a duty owed to an individual through closeness in proximity or time.

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Bluebook (online)
595 So. 2d 353, 1992 La. App. LEXIS 467, 1992 WL 36479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-city-of-monroe-lactapp-1992.