STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-1
SHARON TISDALE
VERSUS
DAVID HEDRICK AS SHERIFF OF CONCORDIA PARISH AND MATTHEW MORGAN
************ APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, DOCKET NO. 52698 HONORABLE JIMMIE C. PETERS, DISTRICT JUDGE AD HOC
************ SYLVIA R. COOKS CHIEF JUDGE ************
Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Sharon Darville Wilson, Judges.
AFFIRMED.
Charles S. Norris Christopher Norris P.O. Box 400 Vidalia, LA 71373 (318) 336-1999 COUNSEL FOR PLAINTIFF/APPELLEE: Sharon Tisdale
Vincent J. Desalvo 7918 Wrenwood Blvd., Suite A Baton Rouge, LA 70809 (225) 927-7035 COUNSEL FOR PLAINTIFF/APPELLEE: Sharon Tisdale
Ronald S. Bryant Timothy R. Ruchardson Frosch, Rodrigue, Arcuri, LLC 1615 Poydras Street, Suite 1250 New Orleans, LA 70112 (504) 592-4600 COUNSEL FOR DEFENDANT/APPELLEE: David Hedrick, Concordia Parish Sheriff COOKS, Chief Judge.
On February 20, 2019, Plaintiff, Sharon Tisdale, after purchasing groceries at
a Wal-Mart store in Vidalia, Louisiana, was walking to her vehicle in the parking
lot. Defendant, Matthew Morgan, approached her and offered to assist her in loading
her groceries into her vehicle. Plaintiff, who stated she was uncomfortable with the
way Mr. Morgan approached her, initially refused the offer of assistance. However,
Mr. Morgan continued to insist that he help her, and she relented and allowed him
to help her.
After the groceries were loaded, Plaintiff closed her rear storage compartment
and went to sit down in the driver’s seat, when Mr. Morgan suddenly jerked the
driver’s side door open and told Plaintiff “I need a ride, and I need it right now.”
Plaintiff attempted to reason with him and even offered him money to leave her
alone. Mr. Morgan declined the offer of money saying “I will need the money later,
but right now I need a ride.” According to Plaintiff, Mr. Morgan became extremely
agitated and began cursing her. He demanded she move over into the passenger seat
so that he could get behind the wheel. Plaintiff refused, telling Mr. Morgan she
could not maneuver over the front seat console.
Mr. Morgan then pulled Plaintiff from the driver’s seat, closed the door and
produced what Plaintiff described as a box cutter. He then began to walk her over
to the other side of the vehicle to place her in the passenger seat. Plaintiff realized
that her assailant was intent upon taking her with him, rather than just taking the
vehicle. Mr. Morgan placed her in the passenger seat, closed the door and began
walking around the vehicle to get to the driver’s side door. Fearing what would
happen to her if she went with Mr. Morgan, Plaintiff opened the door, jumped out
and ran away from the vehicle screaming. Mr. Morgan then ran from the vehicle
toward a bank building between the Wal-Mart parking lot and the highway. Not
2 long afterwards, police quickly arrived on the scene and apprehended Mr. Morgan
inside the bank.
Mr. Morgan was a twice convicted felon who was an inmate trustee in the
custody of the Sheriff of Concordia Parish, David Hedrick. Mr. Morgan’s first
felony conviction in 2002 was for forcible rape, the offense occurring on September
24, 1996 in Alexandria, Louisiana.1 Upon his release from that conviction, Mr.
Morgan was convicted of possession of a firearm by a convicted felon. He was
eventually assigned to the Concordia Parish Correctional Facility (hereafter CPCF),
located in Ferriday, Louisiana. Sheriff Hedrick, as Concordia Parish’s elected
sheriff, was in charge of the operation of the CPCF and the Concordia Parish jail.
At some point after arriving at the CPCF, Mr. Morgan applied for a trustee
position, which was approved by Warden Lance Moore. Mr. Morgan was
transferred to the parish jail, which is located in the Concordia Parish Courthouse,
just outside of Vidalia and within walking distance of the Wal-Mart.
On the morning of February 20, 2019, Mr. Morgan was assigned to work with
other trustees on the Courthouse grounds. The group of trustees was under the
supervision of Concordia Parish Deputy Sheriff Morris Wilson. At some point,
Deputy Wilson left the courthouse to run some errands. He testified he believed this
was okay because there was a social function being conducted at the Courthouse and
other deputies would be present to supervise the inmates. The trial court noted the
record established no other deputies were aware they were expected to supervise the
inmates. Noticing the lack of supervision, Mr. Morgan, who was dressed in blue
jeans and a black jacket, simply walked away from the Courthouse and made the
walk to the Vidalia Wal-Mart where he attempted to kidnap Plaintiff.
1 Mr. Morgan was initially charged with aggravated rape, but he and the State entered into a plea bargain where he agreed to plead guilty to forcible rape. He was sentenced to serve thirty years at hard labor with twenty years of the sentence to be served without the benefit of probation, parole, or suspension of sentence. Mr. Morgan was given credit for time served and was subsequently granted parole.
3 As a result of the incident. Plaintiff suffered only minor physical injuries.
However, she sustained significant emotional trauma from the incident. She initially
saw Dr. Huey Moak, a general practitioner, a few days after the incident. She
complained of being very nervous and an inability to sleep. He prescribed her with
anxiety medication (Xanax).
She next saw Joe Swoveland, a licensed professional counselor, on March 11,
2019. She treated with Dr. Swoveland on several occasions and he found her to be
suffering from anxiety and depression. Mr. Swoveland testified Plaintiff was
restless, unable to sit still and had an exaggerated startle response. She also
complained of chest pain, abdominal distress, increased heart rate and obsessive
thoughts. She complained to Mr. Swoveland that she had been affected by the
incident to such a degree she could not even attend her church. By her third visit to
Mr. Swoveland, Plaintiff said she began experiencing frequent nightmares. She told
Mr. Swoveland she began sleeping with a weapon on her bedside table when her
husband was not at home. Her husband worked in the oil and gas industry and was
frequently offshore for upwards of a week or more at a time. Mr. Swoveland, who
could not prescribe medication, believed the Xanax Plaintiff was taking was not of
a sufficient dosage to alleviate her anxiety. Mr. Swoveland also noted that the
relationship between Plaintiff and her husband suffered significantly, as Plaintiff felt
her husband was not sufficiently supportive and was becoming frustrated that she
was not getting better. Mr. Swoveland did note that by her April 11, 2019 visit
Plaintiff had, for the first time since the incident, gone by herself to a local store to
buy goods. She stated she experienced some anxiety, but was able to cope by using
cognitive techniques she learned at therapy. She also went on a shopping trip with
female friends, but experienced significant panic when a male employee of one of
the stores helped load some plants in her vehicle. Mr. Swoveland was adamant in
his diagnosis that Plaintiff suffered from post-traumatic stress disorder (PTSD). Mr.
4 Swoveland stated it was his goal in treating Plaintiff, to make enough progress
through therapy to decrease her symptoms to a point that she would no longer meet
the PTSD criteria. He did believe she had made some, limited progress, but was
unsure if she would ever recover.
Plaintiff began treating with Dr. Warren Lowe, a medical psychologist. Dr.
Lowe immediately diagnosed that Plaintiff suffered from PTSD, which he
categorized as severe in nature. He noted prior to the incident Plaintiff had no
psychological problems but following the attack by Mr. Morgan she had
“hypervigilance, startle reactions, a very significant amount of anxiety, much
difficulty being out, and even in the company of others, but certainly at that time not
even going out alone.” Dr. Lowe continued Plaintiff on Xanax and also started her
on Lexapro, an antidepressant medication. Dr. Lowe felt Plaintiff was “trying very
hard” to cope with her situation but was having difficulty making much progress.
There was a break in Plaintiff’s office visits with Dr. Lowe’s due to the Coronavirus
pandemic. When he saw her after an approximate one-year period, Plaintiff stated
her PTSD symptoms still occurred, but were not as frequent. She did acknowledge
she would not answer her door unless she knew who was ringing the doorbell and
she was still suffering frequent flashbacks. Dr. Lowe found the Lexapro had caused
Plaintiff to gain significant weight since the last visit. He reluctantly agreed to put
her on a lesser dosage for the benefit of her self-esteem. Dr. Lowe last saw Plaintiff
on November 16, 2020. Plaintiff agreed she would continue to see Dr. Patricia
Brawley, a McComb, Mississippi licensed professional counselor and mental health
therapist. Dr. Lowe concluded after his numerous treatments with Plaintiff that she
would, “more likely than not, require psychological treatment including medication
for an indefinite period of time. At a minimum, I would estimate this treatment will
be necessary for at least the next five to ten years, but perhaps much longer.”
5 Not long after beginning treatment with Dr. Lowe, Plaintiff also began seeing
Dr. Brawley. Her first visit with Dr. Brawley was in September of 2019. Plaintiff
related she had difficulty sleeping, was easily frightened and cried constantly. Dr.
Brawley agreed with the other healthcare professionals that Plaintiff suffered from
PTSD as a result of the incident with Mr. Morgan. On her second visit with Dr.
Brawley, Plaintiff described an incident where she was unable to answer her door
for a repairman she knew was coming, but instead hid in the bathroom until he left.
She explained to Dr. Brawley she had extreme difficulty in eating at restaurants and
doing many simple things, such as filling her vehicle with gas. Despite the social
distancing requirements implemented during the pandemic, Plaintiff still could not
stand in a line of people, even six feet apart. Plaintiff explained to Dr. Brawley that
on the rare instances she went shopping, if she was required to stand in line with
other people, she would simply leave the store when panic was beginning to set in.
As with Dr. Lowe, the pandemic limited the face-to-face sessions with Dr. Brawley,
but videoconferencing and telephonic sessions were conducted. In her deposition,
Dr. Brawley felt Plaintiff learned some coping skills, but “still [has] a ways to go”
and the negative triggers she experiences from the incident will always remain as a
part of her life.
As a result of the traumatic event inflicted upon her by Mr. Morgan, on
January 27, 2020, Plaintiff filed a petition seeking to recover personal injury
damages she sustained as a result of the incident in the Wal-Mart parking lot. Named
as defendants were Sheriff Hedrick, individually and in his capacity as the Sheriff
of Concordia Parish, and Mr. Morgan. Plaintiff asserted she sustained physical pain
and suffering, mental anguish and emotional distress, loss of enjoyment of life,
medical related expenses, and post-traumatic stress disorder (PTSD) as a result of
Mr. Morgan’s attack on her person. The matter proceeded to a bench trial on March
12, 2021.
6 As to the issue of liability, the trial court found the Sheriff’s employees at the
Correctional Facility were clearly negligent through their actions and inactions in
allowing Mr. Morgan to acquire trustee status. The court also found Mr. Morgan
was granted trustee status in large part because he had skill in air conditioner repairs.
This, the trial court concluded, led to a lack of extensive vetting of Mr. Morgan as
specifically required by the Policies and Procedures Manual. The trial court noted
the Correctional Facility could not produce Mr. Morgan’s written request nor any
record stablishing a review by the department ever took place. In his deposition,
Warden Lance Moore could only recall interviewing Mr. Morgan, but could not
recall what was specifically discussed or what trustee status was granted. He could
not even say that Mr. Morgan’s trustee application had ever been reduced to writing.
Combined with the Correctional Facility’s failure to follow the mandates of the
Policy Manual in the trustee application process, the trial court found the clear
language on the Policy Manual unequivocally provided that any inmate with a
“history of sex offence convictions” cannot qualify for trustee status at any level.
Mr. Morgan should have been immediately eliminated from consideration of trustee
status on this fact alone.
The trial court then found that the negligence of the Sheriff’s employees
continued when he was moved to the parish jail. The trial court noted, despite a
clear policy to the contrary, Mr. Morgan was not required to wear prison clothing or
clothing that identified him as an inmate. The trial court specifically found “[t]here
was never a satisfactory explanation” for why this occurred. Further, Deputy Wilson
left the Courthouse to obtain supplies at a nearby establishment without alerting
anyone to supervise his four-man trustee unit. This left Mr. Morgan unsupervised
and in civilian clothes. He simply blended into the crowd and wandered away. Thus,
the trial court found Sheriff Hedrick, through the actions of his employees, was
guilty of gross negligence in the attack upon Plaintiff.
7 The trial court also found Mr. Morgan committed an intentional tort against
Plaintiff, and that fault in causing Plaintiff’s damages, along with the Sheriff’s fault,
must be quantified pursuant to La.Civ.Code art. 2323(A). The trial court then
allocated ninety percent (90%) of the fault in causing Plaintiff’s damages to Sheriff
Hedrick and ten percent (10%) to Mr. Morgan.
On the issue of damages, the medical records and depositions of the medical
professionals who treated Plaintiff were introduced at trial. Plaintiff testified at trial
and spoke of her continuing nightmares, panic attacks, inability to sleep, fear of
crowds and fear of close contact with unfamiliar men. Despite the significant
counseling she has received and medication she has taken, she remains in fear of
things such as standing in the line at a store, pumping gas, sitting at a restaurant,
hearing her doorbell ring and panicking if anyone approaches in her direction from
behind. She testified her life has been significantly and detrimentally altered as a
result of the incident with Mr. Morgan.
Sue Calkins, a close friend of Plaintiff, testified she has known her for over
forty years and has observed the severe changes in Plaintiff since the incident. Ms.
Calkins stated Plaintiff was not an overly cautious woman or a worrier, but that
completely changed after February 20, 2019. Although she felt Plaintiff was trying
her best, she is often simply unable to cope with her anxiety.
Plaintiff’s husband also testified as to how the incident significantly changed
his wife’s life. He also stated it had severely impacted not just her, but the lives of
her family and close friends. He stated the February 20, 2019 attack changed his
wife from “fearless to fearful.”
As to special damages, the trial court noted they consisted of past and future
healthcare expenses and there was “little to no conflict with regard to those
amounts.” Plaintiff was awarded past healthcare expenses of $5,865.00 and future
healthcare expenses of $10,500.00.
8 As to general damages, the trial court gave the following reasoning for
awarding $250,000.00 to Plaintiff for the injuries she sustained:
All of the healthcare providers’ testimony points to one basic fact—Mrs. Tisdale will never completely recover from the effect of the injury she sustained on February 20, 2019. While all of the caregivers agree that she is a totally honest patient, is goal oriented, and has done everything within her power to cope with he recurring effects of PTSD, they also agree that her efforts will more probably than not be insufficient to affect a complete recovery. No matter how hard she may try, the ”triggers” will always be there, and when she encounters the wrong one, it will have a devastating effect on her ability to cope.
In most personal injury cases, we are faced with a physical injury that has emotional side effects. The results of the injury are visible to all, and always present. In Mrs. Tisdale’s case, her injury is invisible to everyone else, and while it is always underlying, she never knows when a smell, sound, event, or even her imagination will trigger her uncontrollable response. While she has good and bad days, she cannot go to sleep without first wondering if she will have recurring nightmares; and she never wakes up knowing what type of day it will be. When she stops at a store, eats at a restaurant, pumps gas into her vehicle, goes to church, or even welcomes someone into her home, she cannot predict the reaction—and this is a fact she must live with for the rest of her life. While others will try their best to give support to Mrs. Tisdale’s situation, they will always fail to understand her reactions to some of the most basic of human interactions. Thus, Mrs. Tisdale must face every minute practically on her own.
There is no medication to prevent Mrs. Tisdale’s PTSD attacks, and her learned coping skills will come to the surface, not in preparation of an attack, but only after her vulnerabilities have been exposed. This fact gives meaning to the testimony of Dr. Lowe that she must struggle to characterize her PTSD events as challenges and not absolute failures.
The court has reviewed the post-trial briefs filed by the litigants, and have taken into consideration the jurisprudence submitted for review. However, a factfinder must determine the general damage award by the facts and circumstances of the case before the court, and must do so by assessing the effects of a particular injury to a particular plaintiff under the particular circumstances existing. Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993). In this case, the court finds the appropriate general damage award to be $250,000.00.
All costs were assessed against Sheriff Hedrick. A final judgment was signed on
May 3, 2021. Sheriff Hedrick appealed the trial court’s judgment, asserting two
assignments of error:
1. The District Court erred in apportioning only ten percent (10%) of the fault to Matthew Morgan.
9 2. The District Court erred in finding that $250,000.00 was a reasonable award for general damages in this matter.
ANALYSIS
I. Trial Court’s Apportionment of Fault.
Sheriff Hedrick does not appeal the trial court’s determination that he was
grossly negligent in his actions, which led to the injuries sustained by Plaintiff.
Sheriff Hedrick only asserts Mr. Morgan should have received a higher
apportionment of fault.
In Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.
10/30/00), 773 So.2d 670, 680-81, the Louisiana Supreme Court explained the
standard of review regarding comparative fault determinations as follows:
As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. [Clement v. Frey, 95- 1119 (La. 1/16/96), 666 So.2d 607]. Therefore, an appellate court should only disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement, 666 So.2d at 611; Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1977).
Sheriff Hedrick relies on Marceaux v. Gibbs, 96-2839 (La.9/9/97), 699 So.2d
1065, to support his argument that the trial court erred in only imposing ten percent
(10%) fault to Mr. Morgan in this case. In Marceaux, the inmate was granted trustee
status because he was deemed a “model prisoner.” While on a work detail, the
inmate and another prisoner were able to sneak into a volunteer fireman hut where
they were able to find and drink some alcohol that was present. Then, while his
supervisor was talking with others, the inmate managed to sneak into his
supervisor’s vehicle, which had the keys in the ignition, and drove off. In a matter
of minutes, the inmate, who was legally drunk, ran a red light and struck the
10 plaintiff’s vehicle. The Marceaux inmate was part of a detail of five prisoners the
Acadia Parish Sheriff released to the Town of Iota for use on public projects. The
Town was required to furnish security for the prisoners, with the provision that the
prisoners be directly supervised by a commissioned law enforcement officer.
However, on this day, the Town deviated from its prior practice, with only a public
works department employee, lacking law enforcement background, in charge of
supervision. The district court assigned the inmate thirty percent (30%) fault, the
Town sixty-five (65%) fault and the Acadia Parish Sheriff five percent (5%) fault.
On appeal, this court reversed the finding of gross negligence on the part of the
Acadia Parish Sheriff, and also found the Sheriff was entitled to indemnification
from the Town of Iota in accordance with the law. Marceaux v. Gibbs, 95-1397
(La.App. 3 Cir. 8/14/96), 680 So.2d 1189, writ granted, 96-2839 (La. 1/31/97), 687
So.2d 391. This court also found the inmate was not guilty of an intentional tort, but
rather ordinary negligence. After granting writs, the Louisiana Supreme Court
affirmed this court’s finding that the Acadia Parish Sheriff was not guilty of gross
negligence. The Supreme Court then, finding the inmate was not guilty of an
intentional tort, reassessed fault to place seventy percent (70%) on the inmate and
thirty percent (30%) on the Town of Iota.
Marceaux is clearly distinguishable from the instant case as it did not involve
gross negligence on the part of the sheriff, nor did it involve an intentional tort on
the part of the inmate.
Sheriff Hedrick also cites Thomas v. Sheridan, 07-1291 (La.App. 1 Cir.
2/8/08), 977 So.2d 303, where the court assigned fifty percent (50%) fault to both
the sheriff and the inmate. In Thomas, the inmate had been admitted into the ICU
for symptoms of OxyContin withdrawal. He was under the guard of a sheriff’s
deputy. The inmate’s legs were shackled and he was handcuffed. However, to allow
him to eat while in the hospital bed, the inmate’s left hand was released. After eating,
11 but before re-cuffing the inmate’s hand, the deputy approached the bed and the
inmate grabbed the deputy’s gun with his left hand. The deputy was able to flee the
room and alerted authorities. The inmate quickly got out of bed and was able to grab
a nurse, and a hostage situation ensued. Eventually the inmate was subdued, and no
physical injuries were sustained. However, a suit for emotional damages was filed.
The trial court found one hundred percent (100%) fault on the part of the sheriff’s
office. The first circuit reversed in part, finding fifty percent (50%) fault on both the
sheriff and the inmate.
We find the facts in Thomas are quite distinguishable from the instant case
and not persuasive here. The spontaneous escape of the inmate in Thomas was not
a confluence of numerous grossly negligent actions on the part of the sheriff’s office
as we have in this case. It is hard to imagine a more grossly negligent series of
events which led to Mr. Morgan’s escape from the Concordia Parish Courthouse and
the subsequent attack on Plaintiff. It is conceded that Mr. Morgan’s past offense as
a violent sex offender should have precluded him from any possibility of attaining
trustee status. Mr. Morgan also was allowed to mingle among citizens attending a
function at the Courthouse while wearing street clothes with no insignia identifying
him as an inmate. Most egregious of all, is the uncontroverted fact that a sheriff’s
deputy simply left his supervisory post to run errands, leaving a group of inmates,
dressed in street clothes, wholly unsupervised and able to walk away with no
difficulty.
In this case, Sheriff Hedrick and his employees were guilty of gross
negligence that directly led to a life-altering attack on the Plaintiff. The failure of
Sheriff Hedrick to perform his duty of overseeing the inmate was the proximate
cause of Plaintiff’s injuries. The Sheriff was by far in the best position to prevent
the harm that occurred to Plaintiff. Under these circumstances, we find the trial court
12 was not clearly wrong or manifestly erroneous in allocating ninety percent (90%) of
the fault to Sheriff Hedrick for his department’s grossly negligent actions.
II. General Damages.
The Sheriff also argues the trial court erred in awarding general damages
which exceeded the highest reasonable amount Plaintiff may be awarded. In
Wainwright v. Fontenot, 00-492, p. 4 (La. 10/17/00), 774 So.2d 70, 74 the court
discussed stated the standard to be used by an appellate court when reviewing a
quantum award:
The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). Moreover, before a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.
Even were we to find this award on the high side, we can only disturb the trier
of fact’s determination if it abused its discretion. Youn, 623 So.2d 1257. Since the
attack, Plaintiff has undergone over three years of professional treatment from four
healthcare providers, including three that are experts in treating patients with
emotional trauma. There was no prior history of Plaintiff receiving any
psychological treatment. All the healthcare providers were consistent that Plaintiff
suffered from PTSD, which more likely than not would affect her for the remainder
of her life. No medical evidence was presented to counter these findings. Therefore,
considering the life-altering injuries the trial court attributed to the accident, and the
uncontradicted testimony of all the healthcare providers that Plaintiff will never fully
recover from the effect of the injuries she sustained on February 20, 2019, we do not
find the trial court abused its discretion in awarding $250,000.00 in general damages.
13 See Lawrence v. Government Employees Ins. Co., 13-1296 (La.App. 4 Cir.
10/15/14), 151 So.3d 917, writ denied, 14-2382 (La. 2/6/15), 158 So.3d 821.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All costs
of this appeal in the amount of $7,450.81 are assessed to defendant-appellant, Sheriff
David Hedrick.