Westmoreland v. City of Natchitoches

771 So. 2d 715, 0 La.App. 3 Cir. 00320, 2000 La. App. LEXIS 2254, 2000 WL 1470431
CourtLouisiana Court of Appeal
DecidedOctober 4, 2000
DocketNo. 00-00320-CA
StatusPublished
Cited by2 cases

This text of 771 So. 2d 715 (Westmoreland v. City of Natchitoches) 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
Westmoreland v. City of Natchitoches, 771 So. 2d 715, 0 La.App. 3 Cir. 00320, 2000 La. App. LEXIS 2254, 2000 WL 1470431 (La. Ct. App. 2000).

Opinion

LCOOKS, Judge.

Felicia Westmoreland filed suit against the City of Natchitoches seeking damages for injuries sustained when a police officer attempted to subdue Roderick Demery, who was attacking her and Paulette Dem-ery in a grocery store parking lot. The trial court found the officer free from fault and denied recovery. We affirm.

FACTS

On the morning of September 11, 1997, Paulette Demery picked up a friend, (Felicia Westmoreland) and requested she ride with her to drop her husband, Roderick Demery, off at his mother’s house. Paulette and Roderick were arguing with each other when they picked up Westmoreland at her residence in Natchitoches. Shortly thereafter, the argument escalated, and Roderick began prodding Paulette with a screwdriver while she drove. As they proceeded down 5th Street, Paulette attempted to signal a passing police officer with her lights, but Roderick threatened to stab her if she continued signaling. After turning onto Texas Avenue, Westmoreland asked Paulette to pull the car over so she could get out. Westmoreland intended to ask Sgt. Ricky Jones, a Natchitoches police officer who she saw parked at Turner’s Grocery, for a ride home. Roderick allowed Paulette to turn the ear into Turner’s Grocery, so Westmoreland could get out of the car and leave.

Once in the parking lot near Sgt. Jones’ patrol car, Paulette exited the car and began yelling to Sgt. Jones for assistance. Sgt. Jones testified Paulette was screaming frantically for him to get Roderick out of the car. He also testified that Paulette told him Roderick had a screwdriver and had been poking her with it in the car. Westmoreland followed Paulette out of the driver’s side of the car, and both women proceeded to the front of the car towards the store’s entrance. Roderick exited from the passenger-side and also proceeded to the front of the car. Roderick grabbed Westmoreland to block Paulette from running past him into the store. Roderick 13pinned the women against the ice machine outside against the wall and attempted to reach over Westmoreland to stab Paulette with the screwdriver.

Sgt. Jones testified he approached Roderick from behind and ordered him to back off and to drop the screwdriver. Sgt. Jones admitted, however, he did not see the screwdriver in Roderick’s hand. Roderick ignored Sgt. Jones’s repeated commands and continued to fight with West-moreland and Paulette. Sgt. Jones was not wearing his utility belt containing his weapon because he was not yet on duty that morning. He grabbed his PR-24 baton from his patrol car and attempted to radio the police department. He then ordered Roderick to stop and to drop the weapon. Roderick continued to struggle with Westmoreland and continued to ignore Sgt. Jones’ commands. Westmore-land placed her left hand on Roderick’s chest and used her right hand to pull his ponytail backwards in an attempt to get him away from her. Roderick had one hand around her neck. At some point, Paulette “broke away” and entered Turner’s Grocery. Sgt. Jones intervened and began to strike Roderick’s left shoulder with the baton. One of the first few blows also struck Westmoreland in her right forearm, breaking it. After several blows, Sgt. Jones subdued Roderick and placed him under arrest. The screwdriver was never found at the scene. After proceeding to the police station, Westmoreland sought medical attention for her broken arm.

ISSUE

Felicia Westmoreland assigns error to the trial court finding that the City of Natchitioches did not owe her a legal duty of care. The record reflects the trial court recognized the police officer’s legal duty to [717]*717Westmoreland but determined a breach of this duty did not occur under the circumstances. The sole issue on appeal is whether the trial court was clearly wrong in determining Sgt. Jones, considering the totality of the circumstances, acted reasonably when he intervened and arrested | ¿Roderick. Department of Transp. v. Schwegmann Westside Expressway, Inc. 95-1261 (La.3/1/96), 669 So.2d 1172.

DISCUSSION

To support a finding of negligence, plaintiff must prove: (1) defendant’s conduct was a substantial factor in bringing about her harm, (2) defendant owed her a duty, (3) defendant breached this duty, and (4)the risk and harm caused her was within the scope of protection afforded by the duty that was breached. Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318, 321-322; Roberts v. Benoit, 605 So.2d 1032 (La.1991). In applying the duty/risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. A negative answer to any of the inquiries results in a determination of no liability. Id.

Neither party disputes the first or second elements of this analysis. A police officer has a duty to perform his function with due regard for the safety of all citizens who will be affected by his actions. Stroik v. Ponseti, 96-842 -(La. App. 4 Cir. 11/6/96); 683 So.2d 1342. His authority must at all times be exercised in a reasonable fashion, and he must act as a reasonably prudent man under the circumstances. Justin v. City of New Orleans, 499 So.2d 629 (La.App. 4 Cir.1986), unit denied, 501 So.2d 232 (La.1987). The record indicates Sgt. Jones, by striking Roderick with his baton, broke Felicia West-moreland’s arm — the cause in fact of her injury. We note the use of force when necessary to make an arrest is a legitimate police function, but unreasonable or excessive force is a breach of an officer’s duty. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977).

We must decide whether the trial court erred in finding Sgt. Jones did not breach this duty by acting unreasonable under the circumstances or by using excessive force to effectuate the arrest. We are guided by Kyle, 353 So.2d 969. In that case, the supreme court enunciated several considerations in determining whether lKa police officer’s use of force to make an arrest is reasonable. The considerations include the known character of the arres-tee; the risks and dangers faced by the officers; the nature of the offense involved; the chance of the arrestee’s escape if the particular means are not employed; the existence of alternative methods of arrest; the physical size, strength, and weaponry of the officers as compared to the arrestee; and the exigencies of the moment. Id.

Sgt. Jones had knowledge of Roderick’s violent propensities. Sgt. Jones testified he arrested Roderick on a previous occasion for aggravated second degree battery of his wife. On this occasion, Sgt. Jones testified Roderick seriously battered Paulette, who required medical attention for her injuries. Westmoreland argues Roderick submitted to police commands without incident during his previous arrest. The inference urged by Westmore-land is that Sgt. Jones knew or should have known Roderick would not resist arrest in this instance. However, Sgt. Jones gave Roderick ample opportunity to stop the confrontation before intervening. The more reasonable inference, considering the particular facts presented, is Roderick had demonstrated his propensity for violence; he had the capacity to inflict serious harm; and he was not heeding the officer’s command to stop. Westmoreland testified Roderick had a screwdriver and was attempting to stab Paulette, who was crying and truly afraid.

The next consideration is the risk and danger faced by the officer. Westmore-land argues the risk presented to Sgt. Jones was minimal at best because Roder[718]*718ick’s attention was not focused on Sgt.

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Bluebook (online)
771 So. 2d 715, 0 La.App. 3 Cir. 00320, 2000 La. App. LEXIS 2254, 2000 WL 1470431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westmoreland-v-city-of-natchitoches-lactapp-2000.