Spicuzza v. Fonseca

537 So. 2d 272, 1988 La. App. LEXIS 2667, 1988 WL 132118
CourtLouisiana Court of Appeal
DecidedDecember 13, 1988
DocketNo. CA 9206
StatusPublished
Cited by3 cases

This text of 537 So. 2d 272 (Spicuzza v. Fonseca) 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
Spicuzza v. Fonseca, 537 So. 2d 272, 1988 La. App. LEXIS 2667, 1988 WL 132118 (La. Ct. App. 1988).

Opinion

ARMSTRONG, Judge.

Plaintiff, Raymond Spicuzza, appeals the trial court’s judgment granting defendants’ exception of NO CAUSE OF ACTION and dismissing plaintiff’s claim for damages in a personal injury cause of action. Defendant/Cross-Claim defendant, Last Warning Promotions (“Promotions”) appeals the trial court’s decision granting defendant/cross-claimant’s, St. Bernard Parish Police Jury's (“Police Jury”), motion for Summary Judgment based on indemnification provisions contained in the lease agreement entered into by the defendants.

On September 26, 1986, Promotions contacted Police Jury to lease the St. Bernard Civic Center for a concert on October 27, 1986. The lease agreement required Police Jury to furnish twenty uniformed security personnel at Promotions’ expense. Promotions assumed “full responsibility for the character, acts and conduct of all persons admitted to said premises.” Promotions also agreed “to have on hand at all times and at its own expense, a sufficient number of policemen for the regulation of traffic, maintenance of order, and protection of persons and property.”

During the concert, fighting broke out amongst the spectators prompting Civic Center Security to call the St. Bernard Parish Sheriff’s Department for assistance. Spicuzza, a deputy with the Sheriff’s Department, was dispatched along with other deputies in response to the call for assistance. While attempting to disperse the crowd Spicuzza was kicked by one of the concert patrons thereby sustaining injury to his left leg.

By his first assignment of error Spicuzza argues that the trial court erred in finding that the defendants owed no duty to him. Applying Louisiana law to the facts of this case the trial court concluded Spicuzza had no cause of action.

Under the law in Louisiana a duty-risk analysis is used to determine liability in tort causes of action. Generally a proprietor owes a duty to invitees to exer[274]*274cise reasonable care to protect them from injury. This duty includes calling the police when necessary. Ballew v. Southland Corp., 482 So.2d 890 (La.App. 2nd Cir. 1986). A proprietor who summons the police as part of the duty to exercise reasonable care to protect invitees does not then assume a further special duty to protect police officers from the actions of patrons on the premises. Holdsworth v. Renegades of Louisiana, Inc. 516 So.2d 1299 (La.App. 2nd Cir.1987).

Where the proprietor committed no affirmative acts of negligence resulting in injury to the professional rescuer or failed to inform the rescuer of the circumstances, no duty is owed. Holdsworth, supra. The courts of this state in employing a duty-risk analysis have continued to hold that a proprietor is not liable for injuries sustained by professional rescuers because they do not fall within the ambit of risk of the proprietor’s original negligence. Solis v. Civic Center Site Development Company, Inc., 385 So.2d 1229 (La.App. 4th Cir. 1980); Weaver v. O’Banion, 359 So.2d 706 (La.App. 1st Cir.1978).

Spicuzza relies heavily upon the case of Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971) to support his contention that professional rescuers do not assume the risk of all. injury without recourse against others. This case, however, can be distinguished on its facts.

Plaintiff, Langlois, was a fireman injured by inhaling poisonous gas that escaped from defendant’s premises while responding to a call for aid on adjacent premises. The Supreme Court reversed the Court of Appeal and reinstated the trial court’s judgment for the plaintiff.

This decision was based primarily on the determination that defendant chemical corporation was engaged in ultrahazardous activities and was thus held to a strict liability standard. Langlois’ duty as a fireman was to drive the fire truck and rescue those on adjacent premises. He never entered defendant’s premises. Thus he did not knowingly assume the risk from gas emissions any more than drivers of other vehicles near defendant’s premises. Lan-glois’ exposure in line with his duty as a fireman was heightened by the ultrahaz-ardous activity carried on by the defendant. In this rescue situation, the proprietor was held to have breached a duty to the professional rescuer.

Spicuzza, however, knowingly assumed the risk which caused him harm and this risk is necessarily included in his duty as a police officer. Spicuzza responded to a disturbance call where a large, boisterous crowd was attending a rock concert. Such calls are common place for police officers and Spicuzza accepted the risks involved with such duty when he became a police officer.

Finally, there is a strong policy reason for failing to find a special duty owing to professional rescuers. If such a duty were recognized by the courts, proprietors would be reluctant to summon police to their premises when needed because of fear of liability resulting from injury to the officers by third parties. Solis, supra. If police officers were allowed to recover in such situations, proprietors might choose to resort to self-help measures instead, creating additional risks to public safety. We find no error in the trial court’s determination that defendants did not owe a duty to Spicuzza to prevent injuries inflicted on him by a third party when summoned to their premises.

By his second assignment of error, Spi-euzza insists that the trial court denied him equal protection of the law under the Fourteenth Amendment by dismissing his cause of action because a non-professional rescuer would not be banned from recovery. Spicuzza argues in Louisiana there is no rational reason to distinguish between professional rescuers and non-professional rescuers.

Spicuzza is correct in referring to a rational basis for distinguishing between professional and non-professional rescuers. The equal protection clause mandates similar treatment of persons in similar situations. Arceneaux v. Treen, 671 F.2d 128 (5th Cir.1982). However, where a classification is urged, the Arceneaux case states, it is subject to one of two standards of [275]*275judicial scrutiny to determine whether it will pass constitutional muster.

It is hornbook law that equal protection analysis is traditionally made against the backdrop of two standards, strict scrutiny and minimum rationality. Strict scrutiny, requiring that the challenged statute further a compelling state interest is “strict” in theory and usually “fatal” in fact and “has been reserved for matters involving race, religion, national origin, and characterizations impinging upon ‘fundamental rights.’ ” Seoane v. Ortho Pharmaceuticals, Inc., 660 F.2d 146, 149 (5th Cir.1981). Rational basis scrutiny requires only that the legislative classification rationally promote a legitimate governmental objective.
Under the wide scope of discretion afforded states under this test, the constitutional safeguard is “offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective, (footnotes omitted) Arceneaux, 671 F.2d at 131.

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537 So. 2d 272, 1988 La. App. LEXIS 2667, 1988 WL 132118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spicuzza-v-fonseca-lactapp-1988.