Todd B. Borders VS Sheriff J. Austin Daniel and Deputy Sheriff Michael Johnson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0340 NO TODD B BORDERS VERSUS SHERIFF J AUSTIN DANIEL AND DEPUTY SHERIFF MICHAEL JOHNSON Judgment rendered December 21 2007 Appealed from the 20th Judicial District Court in and for the Parish of West Feliciana Louisiana JrJ Trial Court No 17712 Honorable William G Carmichael y Judge ATTORNEYS FOR JEAN PAUL LAYRISSON TIMOTHY D SCANDURRO PLAINTIFF APPELLANT NEW ORLEANS LA TODD B BORDERS LLOYD F SHROEDER II ATTORNEYS FOR CRAIG E FROSCH DEFENDANTS APPELLEES NEW ORLEANS LA SHERIFF J AUSTIN DANIEL AND DEPUTY SHERIFF MICHAEL JOHNSON BEFORE CARTER C J PETTIGREW AND WELCH JJ PETTIGREW l This is employee an as result of the a employed them action in tort for 1 Following a personal injuries allegedly sustained by negligence of a fellow one public employee and the sheriff who bench trial that resulted in the dismissal of his suit the plaintiff employee has appealed We affirm FACTS On July 25 2001 Sergeant Michael Johnson Parish Sheriff s Office received a 911 emergency advised that her husband Nick Price in a and EMS ambulance to Acres RV Park in an respond to a attempt to locate a been attempting to commit suicide at their residence a medical assist call at the Green campground Deputy Borders drove around the person in need of assistance not see campground waiting for the ambulance to arrive run someone out into the road and throw attempting to As he drove requiring assistance anyone Deputy Borders The motorist related that she had observed campground Price who telephone call from Maria Signal 24 Le at the Green Acres campground Deputy Borders did motorist West Feliciana 2 Upon his arrival grounds dispatcher with the Sergeant Johnson dispatched Deputy Todd Borders plaintiff herein campground an was a objects someone at her flag down assistance car was through the While hailed circling the by a passing down the road from the Thinking that this had Deputy Borders radioed his supervisor Sergeant Peters and advised Sergeant Peters what the motorist had told him Sergeant Peters instructed Deputy Borders investigate once an ambulance arrived at the When the ambulance arrived to ride down Louisiana Highway 965 and campground Deputy Borders advised the emergency medical personnel that he intended to investigate the incident described by the motorist and 1 5 R 23 1034 B provisions of La the Louisiana Worker s Compensation statutes that for work related injuries against an employer 2 Pursuant to the would parties dispute whether Sergeant Johnson informed Deputy Borders that the call was for a possible undisputed that Deputy Borders was dispatched unassisted to respond to the complaint It well known procedure within the sheriff s office to always send more than one deputy in response to a The suicide but it is is deputies are exempted from the exclusivity of ordinarily prevent a plaintiff from filing suit in tort sheriff s suicide call 2 would return shortly activated his vehicle guard rail of the a described area by the motorist Deputy Borders floodlight and observed two males and bridge behind roadway and partially where the three to the Proceeding on a stationary vehicle parked vehicle from the The vehicle the shoulder of the road seated and turned his were female a patrol leaning against the situated was car around so as to ordered the they were They were speaking very excitedly and he Stepping out of his patrol saying pair to stop and explain but to no avail At that car Price hood of his Border s patrol car at and After a thereafter able to subdue Mr to Sheriff thereafter On to take on his way to the was was not attacked by able to work full time placed Deputy Borders resigned his position July 24 2002 at the sheriff s on part time patrol car Mr Price was Deputy Borders was hospital he first noticed Mr a Price Deputy Borders lumber fusion Deputy Borders continued and status At that Deputy Borders office Mr Borders instituted this action Sheriff Daniel Deputy Deputy Borders salary from the date of the incident through December 1 2003 Daniel of West Feliciana him back onto the however car subsequently hospitalized himself and ultimately underwent Despite the fact that he time push transport Mr Price to the West Feliciana Hospital for Deputy Borders testified that to receive his full Nick Price to radio for assistance Deputy Borders to assist symptoms of injuries he sustained when he was was wildly deputies later arrived by Sergeant Peters unable to struggle with not only Mr Price but also with already handcuffed in the backseat of Deputy Borders patrol evaluation as Price and confine him in the back of the where Mr Price continued to thrash instructed was and Deputy Borders twice screaming threatening obscenities attempted companion Deputy Borders managed Other to Deputy Borders with force sufficient weapon from its holster his male was lunged a woman point Deputy Borders surprised and attacked by the third person subsequently identified Mr approach the rear running towards him understand what on Deputy Borders passed the bridge Upon approaching the parked vehicle Deputy Borders could discern a man partially against J Austin Daniel Sheriff Deputy Michael Johnson the dispatcher who took 3 the call from Maria Price and dispatched Deputy Borders to the Deputy Borders alleged that the above named defendants advise him that he failing being dispatched was dangerous situation liable for the On and failing damages he sustained when he was attacked held in this matter provisions of La on medical assist call provide proper support by Mr RS September 18 19 2006 are therefore to strike the RS 13 1501 in this matter jury in a Price 51053 and La 13 to jury 4 Mr A bench trial At the close of the evidence the trial requested that the parties submit post trial memoranda On October 11 2006 the trial court rendered The trial court found that reasons to advise duty a August 13 2002 Sheriff Daniel and Deputy Johnson moved Borders thereafter consented to the motion to strike the court to petition negligent in failing Deputy Borders further alleged that said defendants demand pursuant to the was were to a suicide call rather than to monitor the radio transmissions In his scene with written although Sergeant Johnson may have breached his Deputy Borders that the original Signal 24 involved Sergeant Johnson s acts or Deputy Borders The trial court dismissed the From that judgment together omissions not the were cause of the a potential suicide injuries sustained by petition of Deputy Borders at his cost judgment Deputy Borders has appealed ANALYSIS AND LAW The Louisiana Constitution of 1974 courts of appeal extends appeal may to both law and facts La Const art V 9 10 judgment of not overturn a finding that is provides that the appellate jurisdiction of the manifestly a trial court absent an error erroneous or clearly wrong See B A court of of law or a Stobart Department of Transportation and Development 617 So 2d 880 882 1993 its If the trial court entirety sitting as an or appellate the trier of fact jury findings court may not it would have 3 La 5 R 13 5105 4 La 5 R 13 5101 makes it clear that sheriff s provides that no suit against a are reasonable in reverse even deputies 4 n though convinced that had subdivision shall be tried are State v also covered 2 La light of the record reviewed weighed the evidence differently political factual by La R S by a jury 13 5105 in it been Where there two are be permissible views of the evidence the fact finder s choice between them manifestly clearly erroneous or Rosell wrong ESCO v 549 So 2d 840 cannot 844 La 1989 When the manifest findings based are findings for only the fact finder heavily so Where documents is so or on not credit the witness in even where such factors be can aware the listener s objective evidence internally inconsistent wrongness determinations or story s a court of not present and credit the testimony of one of two manifestly erroneous or clearly wrong recovery on altercation the on bridge legal cause legal error of the were the or story itself reasonable fact finder would error or clear But credibility determination finding is based on its decision to finding can virtually never be Rosell 549 So 2d at 844 45 court and the one out to be in presented Deputy Borders bases his theory of the because the individual who attacked same same person for whom the call for medical to this court by Deputy Borders is that the trial concluding that the negligence of Sergeant Johnson was manifestly The second issue erroneous in was court not the presented by deciding any factual against Deputy Borders reasons for judgment the trial Johnson testified that he informed an a witnesses that injuries sustained by Deputy Borders In its written of fact finder s or more Deputy Borders is whether the trial court issues a story issued The initial issue committed its face that s Id proposition that the Signal 24 request for medical assistance and the the was a witness in what is said appeal may well find manifest presently before this Deputy Borders turned assistance a finding purportedly based upon a case contradict on to the trier of fact s of the variations in demeanor and tone of understanding and belief so implausible are In the regarding the credibility of witnesses clearly wrong standard demands great deference error voice that bear on attempted suicide a also noted that the station Deputy Borders had been Deputy Borders that he 1I other evidence log which on a court noted that was Signal 24 on that introduced was sending him point is contrary as an to the scene The trial court exhibit at trial indicated that which is the code for 5 although Sergeant a medical assist call not an attempted suicide deputies who testified that evidence The trial court further noted that monitoring the radio transmissions at the time of the dispatch all were they heard indicates scene of act mention of suicide no that Johnson Sergeant attempted suicide but failed the Deputy Borders and the other to The trial court concluded that knew that the notify Deputy Borders that he the complaint involved was an being dispatched to reasonably attempted suicide and thereby breached his duty an In their brief to this court defendants action must prove that the conduct in the defendant owed duty of a defendant and the risk of harm breached See Resources 93 2748 assert that a negative determination of Berry no State 4 5 pp liability was a cause within the scope of was a 637 So 2d 412 See Mathieu 414 La resulting harm breached protection afforded by the duty 5 23 94 Human Defendants further La 11 30 94 From Johnson issue is not Exhibit P 2 court opined so complaint form completed by Sergeant it is clear that Maria Price told Sergeant Johnson that Nick Price the trying to commit suicide at residence and gave the location as Green Acres Campground It does not say that the incident was occurring near the campground or on or near the highway or a bridge Both Deputy Borders and emergency medical personnel were dispatched to a specific location the campground They were unable to find anyone in distress there Deputy Borders decided to leave the campground to investigate the charge that someone was throwing objects at passing vehicles He was testified that his intention Deputy as to Borders he informed the medical technicians in the ambulance of leave one decision to responded with an obscenity questioning leave the campground Deputy Borders 6 in a Imperial Toy Corporation 94 0952 p easily resolved The question is whether the breach of Sergeant Johnson s duty to act reasonably is the legal cause of the injuries sustained by Deputy Borders Put another way would the injuries to Deputy Borders have been sustained even if Sergeant Johnson had informed him that he was responding to an attempted suicide For the following reasons I find that the evidence indicates the injuries would probably have been sustained regardless of how the dispatcher characterized the initial call and therefore the breach of Sergeant Johnson s duty was not the legal cause of the injuries suffered by the plaintiff cause by the inquiries of the duty risk analysis results v to negligence through Department of Health and resolving the issue of causation the trial The in fact of the plaintiff the requisite duty to any of the answer 11 646 So 2d 318 326 In v was Deputy Borders point out that the plaintiff in question care to to testified that he was understand the meaning of the response people well acquainted with the medical personnel but did not It is evident in the ambulance considered his however that the abandonment of the departure they expected him to stay to aide them in locating the That is only relevant considering Borders problem at the campground testimony that he didn t know if the activity at the bridge reported by the passing motorist was related to the initial dispatch to the campground or not The people in the ambulance clearly didn t think the activity away from the campground was related to the initial call or that the departure if sic the deputy was appropriate It also seems probable that Deputy Borders would have asked the medical people to follow him if he thought that the incident at the bridge was related to the initial call in any manner whether medical or attempted suicide There was conflicting evidence as to the distance between the campground and the bridge Deputy Borders as initial call when testified that the distance was two that he checked the distance of a on tenths of the a mile Sheriff Daniel testified day of trial and it was over four tenths In deposition a mile Sergeant mile but less than five tenths of Peters testified that the distance distance question whether two tenths or was four tenths of four tenths of a a mile The actual mile is not critical The is whether it is reasonable for one to assume that a medical call or specific location Cat residence at Green Acres Campground could be related to report of someone waving his arms and throwing things at passing vehicles two tenths or four tenths of a mile away I find it is not reasonable on a bridge The evidence does not support Deputy Borders assertion that he was uncertain if the activity away from the campground was related to the initial call or not It is probable that Deputy Borders did not see any relationship between the claim of the passing motorist and the call that dispatched him to the campground initially It is more probable that upon finding no one in distress at the location of the first call considering that the medical people were at the scene and faced with the appeal from the passing motorist Deputy Borders thought that it was important to abandon the campground call and investigate the incident at the bridge It is possible that Deputy Borders might have made the connection that the incident on the bridge was related to the call to the campground had he been informed that it involved an It is more likely that having been informed of the attempted suicide suicide at the campground he would have been more reluctant to potential leave Either conclusion is speculative Italics contained in original text a suicide call to a The initial call been whether it was a medical assist call or even if it had attempted suicide call was terminated by Deputy Borders when he That conclusion is fortified by the fact the sic campground Deputy Borders notified the dispatcher that he was leaving the campground an left the The situation encountered at the bridge would have been the same regardless of the nature of the initial call Assuming that the initial call placed all concerned on notice that there was an attempted suicide at a residence at the campground the determination of what might have whether another happened after Deputy Borders left the campground deputy might have followed Deputy Borders to the bridge or might have stayed at the campground to assist the medical personnel or might have is just arrived at the bridge in time to stop or prevent the attack speculation It is impossible to conclude that a prior warning of a pOSSible suicide probably would have prevented or mitigated the attack on Deputy Borders 7 Though Sergeant Johnson may not be blameless his failure to Deputy Borders of the attempted suicide or to send two deputies was not the cause of the harm that came to Deputy Borders The legal cause of the injuries to Deputy Borders was the acts of Nick Price in Borders and the acts of Mr Price s companion who attacking Deputy attempted to pull Deputy Borders off Mr Price during the struggle inform Based have alerted review of the record in this matter on our a reasonable law enforcement officer that the for medical assistance or attempted suicide connected to the incident J personnel Armbruster on behalf of throwing an be remain at the some campground distance away passing vehicles Moreover was a causally person was Deputy Borders right back scene inferring that it where they were was more dispatched Deputy Borders conceded that car was must conclude that the duty of a not encompass the risk that passing in the nature of a sheriff s residence in suspect while responding on a motorist would not in and of itself notice that said incident call for assistance at a to an a a a s complaint of place medical call Additionally George some person in the road suicide call Therefore on we dispatcher to advise responding officers that a a possible suicide attempt did might be seriously injured by the subsequent report involving roadway a at trial law enforcement officer or a campground involved officer a he important that expert witness in police procedures and protocol who appeared rocks at her at vehicles evidence that would testimony that when medical personnel arrived at the campground advised them that he would medical at no Signal 24 dispatch whether to a residence in a reported by the motorist that running into the road and throwing things related in his find we an individual same suicidal throwing things distance away CONCLUSION After a thorough review of the record in this matter negligence attributable to Sergeant Johnson sustained by Deputy Borders the dismissal of the affirmed B decline to say that any fact of the injuries allegedly Accordingly the judgment of the trial court that resulted in negligence action filed All costs associated appellant Todd was a cause in we with this on behalf of Deputy Borders is hereby appeal shall be assessed against plaintiff Borders AffIRMED 8
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