Mathieu v. Imperial Toy Corp.

646 So. 2d 318, 1994 La. LEXIS 2897, 1994 WL 673953
Supreme Court of Louisiana·Decided November 30, 1994·No. 94-C-0952·Published·Cited by 288 cases

Opinion

646 So.2d 318 (1994)

Gerard A. MATHIEU, et al.
v.
IMPERIAL TOY CORPORATION, et al.

No. 94-C-0952.

Supreme Court of Louisiana.

November 30, 1994.
Rehearing Denied January 26, 1995.

*319 Stephen H. Shapiro, George A. Blair, III, Avis M. Russell, Terri F. Love, Bruce G. Whittaker, Michael Riehlmann, New Orleans, and Franz L. Zibilich, Metairie, for applicant.

Rodney G. Cater and Jennifer Willis, Cater & Willis; and William P. Quigley, New Orleans, for respondent.

Gerald J. Nielsen, Metairie, for Louisiana Mun. Ass'n, Louisiana Ass'n of Chief of Police, amicus curiae.

Thomas A. Usry, Metairie, for Louisiana Sheriffs Ass'n and Louisiana Sheriff Risk Management, amici curiae.

KIMBALL, Justice.[*]

FACTS

On the night of May 16, 1988, the New Orleans Police Department was notified that *320 a suspicious person with a gun had been seen near the Lafon Nursing Home, just off St. Bernard Avenue, between Senate and Caton Streets in New Orleans. A patrol car was dispatched to investigate, but when the responding officers arrived, they advised the dispatcher that the subject was not in the area.

A short time later, the police department was notified again that a suspicious person with a gun was peering into windows at the nursing home. New Orleans police officers Armando Asaro and Gary Guggenheim, who were travelling along St. Bernard Avenue approximately two to three blocks away from the scene at the time of the call, responded. When these two officers, who were five and seven year veterans of the New Orleans Police Department, arrived on the scene, they parked their patrol car on Senate Street near a side entrance to the nursing home, just past the driveway to the nursing home's parking lot. They were met there by a security guard and a nursing assistant. The security guard told the officers that the man who had given rise to the call was lying asleep in the grass just outside the parking lot behind the building, about forty (40) or fifty (50) feet away.

Based on this information, the officers decided to approach the man quietly by proceeding through the parking lot.[1] The officers testified at trial that from their years of working in the area they were aware of the fact that children were frequently in the area. As such, the officers testified that they intended to disarm the subject while he was lying asleep on the grass. Officer Asaro also testified that the area of the city where this incident occurred is a high crime area, frequented by drug addicts, and that he was fearful the subject might be intoxicated or on drugs. The officers further testified that disarming individuals is a routine practice for members of the New Orleans Police Department, and that they thought it would be particularly easy to disarm this subject because they believed he was either asleep or intoxicated.

When Officer Guggenheim was about twenty feet away from the subject, he saw the gun in the subject's hand and drew his service revolver. When he was four to six feet away, the subject lifted his head and pointed the gun that he was holding in his right hand at Officer Guggenheim, prompting Officer Guggenheim to fire. After firing three or four shots, Officer Guggenheim paused, because he thought the subject was going to drop the gun, but he quickly resumed firing once he realized that the subject was still pointing the gun at him and moving.

In the meantime, Officer Asaro was about twenty feet behind his partner. He saw the subject bring his hand up, lift his head, and point the gun at Officer Guggenheim. Officer Asaro could not respond because his partner was in his line of fire. After Officer Guggenheim fired six rounds, he dropped to the ground to reload and rolled to the side. The subject then rose and pointed the gun at Officer Asaro. Officer Asaro fired three times, and the subject fell backward. Two bullets from Officer Asaro's weapon struck the subject.[2] Officer Asaro testified that the entire episode, from the moment the subject raised his hand to point his gun at Officer Guggenheim until he was shot by Officer Asaro, lasted for only a "split second."

After the shooting, the officers approached the subject, and Officer Guggenheim stepped on the subject's hand to take his gun away. The gun was crushed under Officer Guggenheim's foot because it was a plastic toy. The officers later learned that the subject, Gerard A. Mathieu, was a delusional and paranoid schizophrenic, who, as his psychiatrist later *321 testified, had not been taking his medication at the time of the shooting and was detached from reality.

PROCEDURAL HISTORY

Plaintiffs, Gerard A. Mathieu and Roxie Mathieu, suing on her own behalf and on behalf of her minor daughter Areatha Mathieu, filed suit against the City of New Orleans, Officers Gary Guggenheim and Armando Asaro, Superintendent Warren Woodfork of the New Orleans Police Department, K-Mart Corporation, Imperial Toy Company, Inc., and their insurers.

After all defendants other than the City of New Orleans had either been dismissed from the suit or settled with plaintiffs, the matter proceeded to trial against the City of New Orleans in Civil District Court for the Parish of Orleans.[3] The trial court found that the manner in which the two police officers approached Mr. Mathieu was negligent and a legal cause of his injuries. The court therefore rendered judgment against defendants and in favor of Mr. Mathieu in the amount of $4,952,742.48, including $203,599.88 for stipulated past medical expenses, $3,749,142.60 for future medical expenses, and $1,000,000.00 in general damages based on a life-expectancy of twenty-seven years for Mr. Mathieu. The court also awarded Areatha Mathieu, who was seventeen at the time of the shooting, $127,000.00, including $25,000.00 for past loss of consortium and $102,000.00 for future loss of consortium. Because the judge also determined that twenty percent of the fault should be attributed to Imperial Toy Company, the manufacturer of the toy gun that had been released by settlement, all of the foregoing awards were reduced by twenty percent.

On appeal by the City, the Fourth Circuit concluded that the officers were guilty of negligence. The court held that the officers' selected approach was negligent, in that it left the officers with no alternative but to use deadly force if Mr. Mathieu made any movement.[4]

We granted certiorari to review the correctness of the court of appeal's decision in this matter.[5] Because we conclude that Officers Gary Guggenheim and Armando Asaro were not negligent in the manner in which they approached Plaintiff Gerard Mathieu, we reverse the judgments of the lower courts.

ISSUE

Whether the manner in which these two police officers approached Mr. Mathieu while attempting to disarm him was negligent, such that their employer, the City of New Orleans, is liable in respondeat superior.[6]

LAW

The standard negligence analysis we employ in determining whether to impose liability under La.C.C. art. 2315 is the duty/risk analysis, which consists of the following four-prong inquiry:

I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred?
II. Did the defendant(s) owe a duty to the plaintiff?
III. Was the duty breached?
*322 IV.

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Mathieu v. Imperial Toy Corp., 646 So. 2d 318, 1994 La. LEXIS 2897, 1994 WL 673953 (La. 1994).

646 So. 2d 318 (Mathieu v. Imperial Toy Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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