STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
07-409
WOODROW WILSON, ET AL.
VERSUS
THE TOWN OF MAMOU, ET AL.
************** APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, DOCKET NO. 65721-A HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE
************** SYLVIA R. COOKS JUDGE **************
Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.
Amy, J., concurs in the result and assigns written reasons.
JUDGMENT AFFIRMED AS AMENDED.
Jonathan C. Vidrine 510 W. Magnolia Street Ville Platte, Louisiana 70586 (337) 363-2772 COUNSEL FOR PLAINTIFFS: Woodrow Wilson, et al.
Lisa E. Mayer John F. Wilkes Joy C. Rabalais Dayna M. Edwards Lana Duhon 200 West Congress Street, Suite 1000 Post Office Box 4305 Lafayette, Louisiana 70502-4305 (337) 232-1604 COUNSEL FOR DEFENDANTS: Town of Mamou and Chief Herman Celestine, in his official capacity as Chief of Police of the Town of Mamou COOKS, Judge.
STATEMENT OF THE CASE
The Town of Mamou and the Chief of Police, Herman Celestine, appeal the
judgment of the trial court finding the Town liable for damages for the death of
Yvette Michelle Wilson. The plaintiffs appeal asking for an increase in wrongful
death damages and survival damages. We affirm the judgment of the trial court on
liability but find the trial court erred in failing to assign any percentage of fault to the
perpetrator of the murder, Harry Richard, Jr. Accordingly, we amend the judgment
of the trial court to reflect Richard is 50% at fault in the death of Ms. Wilson and
increase the wrongful death damages to $150,000 for each of the four children. We
also award $50,000 for survival damages.
STATEMENT OF THE FACTS
This case arises out of a murder/suicide which occurred in the small town of
Mamou, Louisiana. On December 10, 2003 at approximately 12:50 p.m. Conray
Frank heard screams coming from his neighbor’s home. He ran over to lend
assistance and found Yvette Michelle Wilson on the ground in the yard holding her
new baby. She was badly beaten, bruised and bleeding from cuts on her face. Mr.
Frank learned the perpetrator was her boyfriend, and the father of her four children,
Harry Richard, Jr. Mr. Frank immediately called the police and Richard fled the
scene. Lt. Charles “Tiny” Israel of the Mamou police department responded to the
call. When Lt. Israel arrived, he saw Ms. Wilson was bruised and bleeding. He
testified he proceeded with caution because he “was worried that maybe the boyfriend
was still there.” Lt. Israel asked Mr. Frank to take Ms. Wilson to the police station
while he “made the block” to look for Richard. Unable to locate Richard, he returned
to the police station to fill out the paperwork and take pictures of Ms. Wilson’s
-1- battered condition. Lt. Israel clearly assessed the seriousness of the threat to Ms.
Wilson and recognized his responsibility to protect her. He testified Ms. Wilson
communicated to him that she believed Richard was dangerous and she wanted him
arrested and kept in jail because she feared for her life. Lt. Israel testified:
It’s because she was so scared to death that that man was gonna walk in to the police station and kill her, and I kept her in my office and I said you have to [press charges], and then it’s my duty as a police officer to see when someone’s brutalized like she was to take the appropriate action and put a warrant out on him.
Lt. Israel testified the police department was shorthanded at the time of the
incident. However, the record reflects there were several other officers on duty and
in the police station at the time of the incident but Lt. Israel did not communicate any
urgency in apprehending Richard. Both Detective Todd Otis and Chief of Police
Herman Celestine testified they would have assisted Lt. Israel in locating Richard or
escorting Ms. Wilson to safety if they had been asked. After filling out the required
forms, Lt. Israel called Faith House in Lafayette to secure placement for Ms. Wilson
and her four children. Although, Lt. Israel testified Ms. Wilson was not interested in
going to Faith House, this assertion was flatly refuted by Jackie Anderson of Faith
House, who testified Ms. Wilson was scared and wanted shelter from Richard. Ms.
Anderson stated Ms. Wilson was concerned for the welfare of her children and
intended to go to Faith House, that day, as soon as she was able to pick her children
up from school. Ms. Anderson testified based on her conversation with Ms. Wilson,
Faith House began making arrangements for her arrival.
Ms. Wilson then called her mother, Laura, to come down to the police station.
Ms. Wilson remained at the police station until approximately 3:00 p.m. She left
with her mother, and without police protection, to gather her children from school and
to begin preparations to flee to Faith House. Lt. Israel chose not to accompany her
-2- to her mother’s house but instead sent Patrolman Al Moore to secure a warrant from
the duty judge for Richard’s arrest. Two hours later at approximately 5:00 p.m.,
while Officer Moore was busy getting a warrant, and Lt. Israel was going off duty,
Richard appeared at Ms. Wilson’s mother’s house, brandishing a gun. There was
pandemonium in the house as other family members tried in vain to protect Ms.
Wilson, and her children. Richard stormed through the house and found Ms. Wilson
in the hall. He shot twice and missed. He chased her outside into the yard, and shot
her in the back. Ms. Wilson died shortly thereafter. After killing Ms. Wilson,
Richard turned the gun on himself.
Woodrow and Laura Wilson filed a wrongful death and survival action on
behalf of their daughter, Yvette Michelle Wilson, and her four children against the
Town of Mamou and Herman Celestine, in his official capacity as Chief of Police.
The petition alleged the police officers of the Town of Mamou breached their duty
in failing to detain and arrest Harry Richard, Jr. knowing he was a danger to Ms.
Wilson, failing to escort her to safety pending the arrest of Richard, failing to adopt
proper police procedures and failing to properly train police officers regarding their
duty to protect victims of domestic violence. Following a bench trial, the trial court
found the police officers negligent and awarded $60,000 in damages to each of Ms.
Wilson’s four children and $5,465.80 for funeral expenses.
LAW AND DISCUSSION
Immunity of the Town of Mamou
We find no merit in the Town of Mamou’s assertion that it is immune from the
imposition of liability due to either La.R.S. 46:2142 or La.R.S. 9:2798.1. The former
statute provides that: “Any law enforcement officer reporting in good faith, exercising
due care in the making of an arrest or providing assistance pursuant to the provisions
-3- of R.S. 46:2140 and 2141 shall have immunity from any civil liability that otherwise
might be incurred or imposed because of the report, arrest, or assistance provided.”
La.R.S. 46:2142. However, in this case, liability does not stem from the report, arrest
or assistance provided. Rather, it is related to the failure to assist. Neither is La.R.S.
9:2798.1(B) applicable in this situation as the statute provides: “Liability shall not be
imposed on public entities or their officers or employees based upon the exercise or
performance or the failure to exercise or perform their policymaking or discretionary
acts when such acts are within the course and scope of their lawful powers and
duties.” (Emphasis added.) Louisiana Revised Statutes 46:2140 is a legislative
mandate and, thus, its requirements on the part of the officer are neither policymaking
nor within his or her discretion. Accordingly, we find the immunity statutes
inapplicable.
Standard of Review
A trial court’s findings of fact may not be reversed absent manifest error or
unless it is clearly wrong. Stobart v. State of Louisiana, through Dep’t of Transp.
and Dev., 617 So.2d 880 (La.1993). When reviewing the trial court’s findings of fact,
the appellate court must review the entire record to determine whether the trial court’s
conclusion was a reasonable one. Id. If the trial court’s findings are “reasonable in
light of the record reviewed in its entirety, the court of appeal may not reverse, even
if convinced that had it been sitting as a trier of fact, it would have weighed the
evidence differently.” Id. at 882. We have reviewed the record and find the
testimony amply supports the decision of the trial court finding liability on the part
of the Town of Mamou in the death of Ms. Wilson.
Liability of the Town of Mamou
The liability of the Town of Mamou is analyzed under the duty-risk theory
of recovery. Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606. Under the duty- -4- risk analysis, the plaintiff must prove the conduct in question was a cause-in-fact of
the harm, the defendant owed a duty to the victim, the requisite duty was breached by
the defendant and the risk of harm was within the scope of protection afforded by the
duty breached. Hardy, 744 So.2d 606; Berry v. State, through Dep’t of Health and
Human Res., 93-2748 (La. 5/23/94), 637 So.2d 412. Whether a duty is owed to the
plaintiff is a question of law. Stroik v. Ponseti, 96-2897 (La. 9/9/97), 699 So.2d
1072, citing Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289 (La. 1993);
Hardy, 744 So.2d 606.
The duty of a police officer in a domestic abuse situation is found in
Louisiana Revised Statutes 46:2140. When a police officer has reason to believe a
family member, household member or dating partner has been abused, the officer
“shall immediately use all reasonable means to prevent further abuse[.]” La.R.S.
46:2140(A)(emphasis added). Reasonable means include: (1) arresting the
perpetrator, in the case of a felony, with or without a warrant; (2) assisting the victim
in obtaining medical treatment necessitated by the battery; (3) arranging for, or
providing, or assisting in the procurement of transportation for the abused person to
a place of shelter or safety; and, (4) notifying the abused person of his right to initiate
criminal or civil proceedings, the availability of a protective order, and the
availability of community assistance for domestic violence victims. La.R.S.
46:2140(A). This provision is part of the Protection from Family Violence Act and
was prompted by the growing problem of domestic abuse in Louisiana. The Act
authorizes the Department of Health and Human Resources to establish programs for
the development of community based shelters for victims of family violence and
provides funding for those programs.1 Louisiana Revised Statutes 46:2131 provides
1 The Statement of Purpose is found in La.R.S. 46:2121, and provides, in relevant part: A. The legislature hereby finds and declares that there is a present and growing
-5- a “civil remedy” for the victims of domestic abuse. The legislature recognized law
enforcement agencies were often not as aggressive in the enforcement of criminal
laws when the battery occurred within the home. By providing a civil remedy, the
legislature signaled a desire for a definite change in the policies and procedures of the
police departments in the handling of abuse situations and a more aggressive
prosecution of the perpetrators of domestic violence. Louisiana Revised Statutes 46:
2131 provides, in relevant part:
The purpose of this Part is to recognize and address the complex legal and social problems created by domestic violence. The legislature finds that existing laws which regulate the dissolution of marriage do not adequately address problems of protecting and assisting the victims of domestic abuse. The legislature further finds that previous societal attitudes have been reflected in the policies and practices of law enforcement agencies and prosecutors which have resulted in different treatment of crimes occurring between family or household members and those occurring between strangers. It is the intent of the legislature to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Furthermore, it is the intent of the legislature that the official response of law enforcement
need to develop innovative strategies and services which will reduce and treat the trauma of family violence. Available studies documenting police statistics indicate that thousands of persons in this state are regularly beaten, tortured, and, in many cases, killed by spouses or persons with whom they are living in a primary relationship. These studies further indicate that victims of family violence come from all socioeconomic classes and ethnic groups, though it is the poor who suffer most from family violence, since it is less likely that they have immediate access to private counseling and shelter for themselves and their children. Children, though often not physically assaulted, suffer deep and lasting emotional effects, and it is most often the children of those parents who commit family violence that perpetuate the cycle by abusing their spouses. B. The legislature further finds and declares that there is a high incidence of deaths and injuries sustained by law enforcement officers in the handling of domestic disturbances. A definite correlation between family violence and marital homicide has been established, yet police arrests for family violence are low, and victims are reluctant to press charges. Furthermore, instances of family violence are considered to be the single most unreported crime in the state. C. It is the intention of the legislature to achieve a reduction in serious and fatal injuries to the victims of family violence and to clarify the problems, causes, and remediation of family violence by providing that necessary services including shelter, counseling, and referrals to social services, medical care and legal assistance in the form of a family violence center.
-6- agencies to cases of domestic violence shall stress the enforcement of laws to protect the victim and communicate the attitude that violent behavior is not excused or tolerated.
The issue presented is whether, considering the totality of the
circumstances, without the benefit of hindsight, the police officers took reasonable
measures to protect Ms. Wilson from harm. “Officers are held to choosing a course
of action which is reasonable under the circumstances.” Latiolais v. Guillory, 99-815,
p.8 (La.App. 3 Cir. 11/3/99), 747 So.2d 675, 680, quoting, Hardy, 744 So.2d 606.
This court in Latiolais addressed the liability of the sheriff’s department for the death
of a mother and her son at the hands of the estranged husband. In Latiolais, the
deputy sheriff was called to the bus/camper of the victim to assist in removing the
former spouse from the premises. The deputy found the couple in their
undergarments in the camper. When asked to leave, the estranged husband was upset
that the sheriff’s department had been called but calmed down, got in his truck and
drove off. The deputy then assisted the victim and her children with moving her
clothes from the camper to her vehicle. He advised the victim to drive around while
he informed her mother she would be staying with her that night. While the deputy
was on the porch talking to the victim’s mother, he heard shots and glass breaking.
The deputy discovered the former husband had returned and shot the victim and her
son in the vehicle. This court found the circumstances surrounding the incident did
not alert the deputy that there was an “impending danger” to the victim. When called
to the scene the deputy did not observe a fight or altercation. The perpetrator did not
act in a violent way toward the deputy or the victim. The deputy had effectuated the
removal of the former husband and was assisting the victim and her children to her
vehicle.
The facts in the present case are distinguishable from the facts in Latiolais.
-7- Lt. Israel was fully aware of the intensity of the situation based on the severity of the
beating and Ms. Wilson’s fear for her life. He immediately perceived Richard was a
dangerous man and proceeded with caution, noting: “I was worried that maybe the
boyfriend was still there.” Lt. Israel also recognized his duty was two-fold: to protect
the victim and apprehend the abuser. He testified:
It’s because she was so scared to death that that man was gonna walk in to the police station and kill her, and I kept her in my office and I said you have to [press charges], and then it’s my duty as a police officer to see when someone’s brutalized like she was to take the appropriate action and put a warrant out on him.
Although Lt. Israel recognized his responsibility, he made only a cursory
attempt to locate Richard, did not ask for assistance in apprehending Richard, and
allowed Ms. Wilson to leave the police station unescorted to gather her children and
pack her belongings before going to Faith House. This he did despite the fact that he
testified that Ms. Wilson was “[v]ery bloody, beat up, brutalized and, you know, in
bad condition” and “she could barely move.” He further confirmed Ms. Wilson had
been “beat so badly, she was purely exhausted. Her emotional state was in an –just
like in limbo. I mean – I mean, I don’t think she could make – she could make a
decision – you know, a good decision because she had been beat up so badly.”
Chief of Police Herman Celestine acknowledged the Mamou police
department has no policies or procedures for the handling of domestic violence cases.
He admitted this was a failure on the part of the department: “We should have one,
it should have been in the handbook.” Chief Celestine testified it is customary in
these types of situations for the police to escort the victim back to the house to pack
clothes and prepare to leave. When asked why Lt. Israel did not escort Ms. Wilson
to her mother’s home, he stated:
-8- Well I think he should of, but I mean he was getting off, the other officer was coming on, he was getting off and he went to look for Harry Richard, probably if he could have find him before he gets back to her.
Chief Celestine stated he would have secured assistance in apprehending
Richard while Ms. Wilson was in the protection of the police station. The plaintiff
offered the testimony of Detective Todd Otis. Detective Otis testified he was in the
station at the time Ms. Wilson came in and would have assisted Lt. Israel if asked.
He also testified since this incident, under the new chief of police, the department
implemented a new policy which requires the police officers to protect the victim
until the perpetrator is arrested.
The plaintiff also offered the testimony of Officer Al Moore. He was asked
by Lt. Israel to obtain a warrant for Richard’s arrest. He testified:
I came back to the police department and when I walked into the office I said to Mr. Israel I have the warrants signed and at the same time that’s when the dispatcher came on that there had been a shooting at 817 9th Street.
The plaintiff offered the testimony of Dr. Wade Schindler, an expert in
police procedure. Dr. Schindler is a professor of Criminal Justice and Criminology
at Tulane University and president of Orleans Regional Security Institute, a
consulting firm. Dr. Schindler opined the Town of Mamou was negligent for failure
to adequately supervise, train and implement policies and procedures for the safety
of the people of Mamou. Dr. Schindler testified Lt. Israel should not have allowed
a neighbor to transport Ms. Wilson to the station and should not have allowed Ms.
Wilson to leave without police protection until Richard was apprehended. Even the
defendant’s expert witness, Dr. Larry Gould, from the East Baton Rouge Parish
Sheriff’s office, acknowledged Lt. Israel was “not active” in procuring transportation
for Ms. Wilson and ensuring her safety. Dr. Gould testified:
-9- What I can say is the longer the police have her in their protection the longer that she’s in the protection of somebody else, the less likelihood statistically, I don’t know about her specific case, statistically the likelihood of an additional assault goes down, that’s what the studies say.
In this case, the murder occurred within hours of the initial call to the police.
It is within this critical time period, when passions have not cooled, that the
likelihood of additional harm to the victim increases. Given the severity of the
beating, and the fear of Ms. Wilson, it was foreseeable that Richard posed “an
impending danger” to Ms. Wilson and Lt. Israel should have implemented measures
to ensure her safety until Richard was apprehended. While the Mamou police
department has no policies or procedures for the handling of these cases, Chief
Celestine testified customarily the police escort the victim to her home to retrieve her
clothes or to a place of safety. That was not done in this case. Lt. Israel allowed Ms.
Wilson to leave the station unescorted while Richard was still at large. Moreover,
we do not find Lt. Israel was aggressive in his search for Richard. He did not enlist
the assistance of the officers on duty at the station at the time of the incident. Instead
he made what the trial court described as only a “token effort to locate Harry Richard,
Jr.” 2
Lt. Israel was not an inexperienced officer. He has worked in law
enforcement for twenty-eight years and has routinely handled domestic abuse cases.
However, the “business as usual” way of handling these cases is what the legislature
is seeking to change. “Societal attitudes” which minimize the significance of
2 Lt. Israel asserted for the first time at trial that he left the police station while Ms. Wilson was there to search for Richard. The trial court apparently did not find this statement credible and found Lt. Israel performed a “two or three minute search at the outset [and] no one did anything other than patrolman Al Moore who was at the home of Judge Thomas Fuselier seeking the Judge’s signature on an arrest warrant while Harry Richard, Jr. was gunning down Michelle Yvette Wilson.” Further, Al Moore testified when he secured the warrant and brought it to the station, Lt. Israel was at the station and not on patrol.
-10- violence in the home “have been reflected in the policies and practices of law
enforcement agencies . . . it is the intent of the legislature that the official response
of law enforcement agencies to cases of domestic violence shall stress the
enforcement of laws to protect the victim and shall communicate the attitude that
violent behavior is not excused or tolerated.” La.R.S. 46:2131. Police officers
cannot always guarantee the safety of the victim, but they must take all reasonable
measures under the circumstances to offer protection to the victim until the aggressor
is apprehended or the officer is reasonably certain the situation is no longer
dangerous. Under the circumstances presented in this case, we find Lt. Israel and the
Mamou police department should have taken reasonable measures to escort Ms.
Wilson to a place of safety until Richard was apprehended. Accordingly, we affirm
the decision of the trial court finding liability on the part of the Town of Mamou.
The defendants assert the negligence of Ms. Wilson, Ms. Wilson’s family
and the intentional actions of Harry Richard as contributing factors in Ms. Wilson’s
death. We do not find Ms. Wilson was negligent in leaving the police station with her
mother. The testimony by Ms. Anderson of Faith House and Laura Wilson, her
mother, establish without a doubt that Ms. Wilson knew Richard was violent and it is
reasonable to conclude she was afraid he may harm her children. Ms. Wilson’s desire
to gather her small children and take them with her to Faith House was not
unreasonable under the circumstances. By leaving the station, she was doing the one
thing every mother would do - protect and care for her children. The fact that Richard
murdered Ms. Wilson in the presence of her family and then committed suicide
demonstrates his instability and confirms that Ms. Wilson’s fears were not
unreasonable. 3 Moreover, we note Lt. Israel was fully aware that Ms. Wilson was in
3 We note in Latiolais, 747 So.2d 675, the estranged husband in a fit of violent rage murdered both the wife and son.
-11- no condition to make “a good decision because she had been beat up so badly.” We
specifically reject the assertion that Ms. Wilson’s family could have prevented the
tragedy which occurred. Ms. Wilson was taken to her mother’s home as a temporary
shelter to gather her children before leaving for Faith House. When Richard arrived
he was brandishing a gun and began shooting in the house. Ms. Wilson had just come
from the police station. It was the police department’s responsibility, not the family’s,
to protect Ms. Wilson. We find no merit in this argument. However, we find the trial
court erred in failing to assign fault to Richard in causing the death of Ms. Wilson.
While the police officers did not take reasonable measures to protect Ms. Wilson, that
action alone would not have resulted in the death of Ms. Wilson without Richard’s
participation. See, e.g. Waters v. Brookshire Grocery Company, 07-203 (La.App. 3
Cir. 11/7/07), __So.2d __; Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234
(La.App. 3 Cir. 1993), writ denied, 617 So.2d 1234. Accordingly, we amend the
judgment to reflect Harry Richard, Jr. is 50% at fault.
Damages
The plaintiffs assert the trial court erred in failing to award survival damages
in this case. The medical testimony indicates that Ms. Wilson was dead upon her
arrival at Savoy Medical Center. In support of the survival action, the plaintiffs
submitted the testimony of Ms. Wilson’s sister who stated Ms. Wilson took a silver
ring from her finger, gave it to her and said “bye.” Even though the trial court
obviously found the sister’s testimony was not credible, the record clearly establishes,
as borne out by the witnesses, that several minutes prior to the fatal shooting, Ms.
Wilson was fully aware Richard had entered the home with a gun and was searching
for her. She had to be in extreme fear for her life as he chased her through the house
-12- and fired two shots. Her fear and anxiety, no doubt, intensified when she realized
Richard was only a few steps behind her and was within firing range. It is reasonable
to conclude she knew her death was imminent. “The survival action in a suit resulting
from the death of a tort victim includes recovery for pain and suffering, loss of
earnings and other damages sustained by the decedent up to moment of death.” Prince
v. Mattalino, 583 So.2d 541, 543 (La.App. 3 Cir. 1991). “Damages for pain and
suffering are properly awarded if there is a scintilla of evidence of any suffering or
pain or the part of the deceased by his actions or otherwise.” Id. The trial court erred
in failing to award any survival damages in this case. We find an amount of $50,000
is a reasonable amount for survival damages.
The trial court awarded $60,000 to each of the children for the wrongful
death of their mother. The elements of damage for a wrongful death action are loss
of love, affection, companionship, services and loss of support, medical expenses and
funeral expenses. Simmons v. CTL Distrib., 03-1301 (La.App. 5 Cir. 2/23/04), 868
So.2d 918. Wrongful death awards may be based on the degree of affection with the
deceased, the amount of guidance needed by the minor child and the closeness of the
family relationship. Williams v. City of Monroe, 27,065 (La.App. 2 Cir. 7/3/95), 658
So.2d 820, writ denied, 664 So.2d 451,452. An appellate court may disturb an award
of damages only when the record clearly shows that the factfinder abused its broad
discretion in making the award. Scott v. Pyles, 99-1775 (La.App. 1 Cir. 10/25/00), 770
So.2d 492, writ denied, 782 So.2d 633. After a determination that an award
constitutes an abuse of discretion based on the particular injuries sustained and their
effect on the particular injured person, the appellate court may reduce or increase the
award to the highest or lowest amount reasonably within the factfinder’s discretion.
Wilson v. Nat’l Union Fire Ins. Co., 27,702 (La.App. 2 Cir. 12/6/95), 665 So.2d 1252.
-13- Ms. Wilson had four surviving children, under the age of six. The baby was only three
weeks old at the time of the shooting. Laura Wilson, Ms. Wilson’s mother, testified
regarding the close relationship the children had with their mother. She stated the
older child is going to counseling twice a week since the death of his mother. All four
children will be deprived of the love, affection and the support of their mother for their
entire live. We have reviewed the case law and find the lowest reasonable recovery
for the wrongful death of a mother, given the ages of the children, is $150,000 to each
child. See McGrail v. Lee, 35,756 (La.App. 2 Cir. 4/3/02), 814 So.2d 729, which
affirmed a jury award of $750,000 each to three children, ages nine, eighteen, and
twenty-one. The court found the award “approach[es], but do[es] not exceed the
highest amount reasonably within the broad discretion of the jury.” Id. at 736. In
Simmons, 868 So.2d 918, the court affirmed an award of $300,000 to the child; See
also Brooks v. City of Baton Rouge, 558 So.2d 1177 (La.App. 1 Cir. 1990), writ
denied, 566 So.2d 982. Plaintiff correctly points out in Ford v. State, through Dep’t
of Transp. and Dev., 99-1297 (La.App. 3 Cir. 4/12/00), 760 So.2d 478, writ denied,
00-1935 (La. 9/27/00), 769 So.2d 1214, writ denied, 00-1864 (La. 9/29/00), 770 So.2d
350, writ denied, 00-1938 (La. 9/29/00), 770 So.2d 352, this court awarded $150,000
to a daughter for the wrongful death of her seventy-five year old mother and in Monk
v. State, through Dep’t of Transp. and Dev., 05-97 (La.App. 3 Cir. 6/29/05), 908 So.2d
688, writ granted, 05-2337(La. 3/24/06), 925 So.2d 1238, order recalled, 05-2337
(La. 10/17/06), 940 So.2d 642, this court awarded the children $500,000 for the death
of their mother. Accordingly, we amend the judgment to increase the award to
$150,000 to each child.
DECREE
Based on the foregoing review of the record, we affirm the decision of the
-14- trial court finding liability on the part of the Town of Mamou. We amend the
judgment to reflect Harry Richard, Jr. is 50% at fault in causing the death of Ms.
Wilson and we increase the damage award for the wrongful death of Ms. Wilson to
$150,000 to each child. We award $50,000 for survival damages. In all other respects
the judgment is affirmed. All costs of this appeal are assessed to the Town of Mamou.
-15- NUMBER 07 - 409
AMY, J., concurring in the result.
I respectfully concur in the result. This is an instance in which the legislature
has provided instruction to law enforcement to use “all reasonable means to prevent
further abuse.” However, the question of what particular actions constitute “all
reasonable means” remains an open one for the courts. This is particularly true where
the police are not exercising custodial control over the victim.
Here the trial court was faced with a situation in which the police officer
offered medical treatment or assistance with contacting a shelter, but the victim either
refused or decided not to pursue further assistance. Nevertheless, given the testimony
surrounding Miss Wilson’s time at the police department and her return to her
mother’s home, the trial court could have concluded that the police officer’s
assistance was simply inadequate. The record supports a determination that the
officer failed to explain the immediacy and danger of not reporting to the shelter to
either the victim or her mother. It also supports a finding that the department could
have reasonably offered further protection in transport to the shelter and that the
failure to do so was a cause of Miss Wilson’s death. Thus, I find that the imposition
of liability on the Town of Mamou must be affirmed.
I join in the majority’s determinations regarding statutory immunity,
apportionment of fault, and assessment of damages.