Lisa D. Dennis VS Jeffrey Wiley, Individually and In His Official Capacity as Sheriff of Ascension Parish, Harold Tridico, Individually as In His Official Capacity as Former Sheriff of Ascension Parish, QRS Insurance Company and XYZ Insurance Company

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 0236 sF LISA D DENNIS VERSUS JEFFREY F WILEY Capacity as and in his SHERIFF of ASCENSION PARISH HAROLD TRIDICO as Individually Individually and in his Capacity FORMER SHERIFF of ASCENSION PARISH QRS INSURANCE COMPANY and XYZINSURANCECOMPANY Judgment Rendered On September 11 2009 Appeal from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Trial Court No 78050 Honorable Guy Holdridge Judge Presiding Georgia G Turgeau Tracey Powell Attorney for Plaintiff Appellee Lisa D Dennis Slidell LA Fred Schroeder Craig E Attorneys for Defendants Appellants Sheriff Jeffrey Wiley and Former Frosch New Orleans LA BEFORE rf1 I 2f 1 Sheriff Harold Tridico CARTER C J O l0 GUIDRY AND PETTIGREW JJ crmCtAAA N J CARTER C J This crime is entitled to to the distress due criminal involves case an award of The trial emotional distress and mental duty of evidence awarded the court criminal evidence a of emotional during collected anguish she suffered to preserve the whether the victim of damages for the negligent infliction wrongful disposal investigation breach of issue in Louisiana a res nova ongoing an 50 000 00 for the plaintiff result of the defendant as a For the following reasons s we reverse FACTS It is Lisa that twenty years ago undisputed Dennis was at raped knifepoint by Donaldsonville Louisiana home Office was investigated taken to the I aggravated attacker Unfortunately and the plaintiff s provided case a the was rapist was never Rouge identify him as in area was the as Harold Tridico defendants rape kit a was her was conducted processed for composite sketch identified May 2003 arrested or of her prosecuted was the plaintiff her attacker the watching The during contacted the plaintiff requested that plaintiff the the sheriff of Ascension Parish individually was serial rapist and killer Derrick Todd Lee possible rapist sheriff of Ascension Parish at the time of the named a collected her home the Sheriff s Office examine the evidence collected were in assailant part of the investigation the plaintiff physical description for Convinced that the serial killer In 1989 plaintiff remains open and unresolved to this date media coverage of the Baton to the 1989 unknown an Hospital where Fourteen years after the attack Sheriff s Office As rape Additionally the plaintiffs clothing and she 31 January The Ascension Parish Sheriff s Office Sheriff s the Provost Memorial evidence on plaintiff s suit is and in their official 2 Jeffrey capacities investigation His F successor Wiley of her and the Both sheriffs 1989 rape to determine if the serial killer who had investigated During that the a with the initial The rape kit as investigation ordered the court her assailant the initial crime handled the search for the evidence plaintiff s was well had been disposal of the Sheriff s Office to destroyed pursuant the evidence It is evidence in 1995 the Sheriff s Office was based on a crime that could motion to motion s to of dispose dispose of the longer be prosecuted no by and inform her that the evidence had been mislabeled aggravated an simple rape case The Sheriffs Office case rape could legally be disposed time because the offender could there was no rape case on statute of of her s a not match the open criminal plaintiff that investigation On June 7 even 2004 the negligent infliction rape instead mandated period a of her plaintiff an aggravated that the physical thus case there plaintiff s was no rape positive lead Additionally would continue to be or the ongoing and against the Sheriff s Office for the an without the evidence plaintiff of mental case evidence for explained that statutorily plaintiff physical description of the serial killer the serial killer to the Office told the simple with the limitation for the destruction of evidence in rapist did linking meeting longer be prosecuted for the crime and that the serial killer task force timeline identification Sheriff no of after a as a The Sheriff s Office also informed the description based a investigation On June 9 2003 the Sheriff s Office conducted of a Office s therefore considered abandonedforfeited contraband held in connection with criminal to the Sheriff the fact that the evidence had been mislabeled evidence of as evidence connected court order in 1995 a following undisputed that the District Attorney was quickly ascertained physical request that the District Attorney for Ascension Parish file the evidence detective same ongoing investigation all of the other as The filed suit anguish and emotional 3 distress as a result of the Sheriff s Office aggravated incorrectly disposing The rape Instead she criminal evidence reckless plaintiff made and wanton life trauma and was plaintiff also altered re she would never behind bars and there is the rapist in the future against her however or no for plaintiff maintained it had been as longer use that she may be able to and that her the attack The and she felt vulnerable set out to harm her she realized that by destroying the peace of mind because her attacker is any evidence that in any available ever that when she attack plaintiff testified that although or were lived the emotional re immediately after extremely fearful was assailant if he should she accompanied the initial have closure not the actions of the Sheriff s Office The intentionally not of intentional destruction of the mistakenly destroyed victimized The the Sheriff s Office did evidence just alleged that she humiliated and allegations alleged that distress that severe drastically no grossly negligent learned the evidence had been terror all of the evidence connected with her 1989 be identified identify the can be used to legal remedy she The rapist prosecute may have plaintiff acknowledged based on her eyewitness recollection After Office had a bench trial on June 18 the trial rape The trial lengthy court issued duty to retain and preserve reasons for judgment analysis and examining the jurisprudence anguish damage awards liability on under these facts alternatively excessIve 4 plaintiff s damages on the duty emotional distress and mental The Sheriff s Office and that the the evidence of the outlining the law The trial court concluded that the 50 000 00 from the Sheriff s Office no ruled that the Sheriff s and that the breach had caused the plaintiff s aggravated it has court liability for negligent infliction of emotional distress finding Sheriff s Office had breached its risk 2008 plaintiff was entitled appealed arguing that the damage award to that was LAW AND ANALYSIS Initially we note that discretionary function immunity under LSA or performance of its policy making by the trial issue raised by Inc So 2d 248 251 liability 5 20 03 And we in this so plaintiff s criminal on case is allegations it that led to the Sheriffs was of a not the result of it 1 Cir 2 20 98 App Cent Office s decision is not the kind of to a 709 discretionary function be exposed Ins dispose of can Co 02 1138 a simple a decision based discretionary government acts Sheriff s Office causes cannot negligence liability on an social rely for reasons injury on See La 5 rape or to in the action that is was as made after pertaining to This mistake case political policy Office lawful duties nor When the public policy considerations 851 So 2d at 968 statutory immunity in this situation mislabeled economic unrelated Gregor or mistake a aggravated act within the Sheriffs negligently it is liable to those it rape instead of was the evidence choice discretionary The Sheriffs Office admits that public policy investigation was appellate apparent that the mislabeled evidence the collection of the evidence and that the evidence an an this remedy against that the Sheriffs Office Argenot Great nor was not 851 So 2d 959 963 Under these factual based v La a was and Capital City Towing determine whether the applies Gregor case 97 0098 course immunity However not extend See 927B art Rouge must first ofLSA R S 9 2798 1 immunity to of Baton appellate brief that the law does LSA C C P City v motu proprio ex acts within the lengthy written reasons for judgment court in its particular defendant Recovery discretionary or the Sheriffs Office in its court may notice R S 9 2798 1 based upon the exercise But the issue of statutory scope of its lawful powers and duties addressed pled the affirmative defense of the Sheriffs Office to Therefore the shield itself from potential A claim for a infliction of genuine and serious emotional distress is negligent viable claim in Louisiana 567 So 2d 1081 School Bd mental 1096 96 1824 anguish in provides by La La 1990 see State v also Barrino 1 Cir 6 20 97 App e very act whatever of whose fault it happened to on liability to duty risk analysis the plaintiff attach under the defendant owed a was a of duty in fact of the cause care to the the defendant and the risk of harm the duty breached Hardy negative to any answer v In this the resulting rape court Barrino the Sheriff s Office case processing of of the another the duty at 33 risk For or damages was breached the the by protection afforded by 744 So 2d 606 613 A duty risk analysis results in a 697 So 2d at 33 34 that readily admits the evidence obtained during in the mislabeled evidence the The mistake a investigation was of the made in plaintiff s mislabeling mistake led to the approved destruction of the evidence after the statutorily mandated time for retention of criminal evidence had period that it vehemently denies however 2 inquiries La 9 8 99 to must prove that requisite duty within the scope of Bowie 98 2821 of the determination of no liability was which 2d So harm resulting the plaintiff use Barrino 697 for 2315 art Courts Parish Recovery damage causes repair it Rouge 33 LSA C C that man to determine recovery under article 2315 question East Baton v 697 So 2d 27 analysis conduct in of Wildlife and Fisheries Dept emotional distress is based part him obliges or See Moresi Louisiana Revised Statute connection with a criminal owes 15 41 proceeding that any provides for Louisiana Code of Criminal Procedure art prosecuted for 2 The Sheriff s special duty the is not to be used evidence a passed as to preserve disposal evidence 572A I felony necessarily punishable by imprisonment Office evidence of property seized in is no longer needed as or provides that no person shall be at hard labor after six years from simple rape is punishable by Conversely there is no time imprisonment with limitation for the prosecution of a crime that is punishable by death or life imprisonment such as the crime of aggravated rape LSA C Cr P art 571 LSA RS 14 It is undisputed that 1 42D the requisite period of time had passed for disposal of the evidence connected with the investigation of a simple rape the date that the offense or was committed without hard labor The crime of LSA R S 6 14 438 obtained during of the crime statutory or the of investigation We find merit to this jurisprudential basis crime victims Whether a particular crime a argument Our research has for the imposition of such is owed is duty clearly plaintiff has any law general principles of fault the judiciary why a s The Sheriff s Office is criminal offenders apprehend designed mental been charged is general duty designed benefit an victim may someday the proper preservation of criminal apprehension and a pursue prosecution civil suit to aid Attorney so in or a evidence criminal Likewise other reason damages Id and be is or crime well more so in that that the Obviously for the successful apparent that the duty to is directed toward investigation as a nothing legal remedy However it is can It is that evidence of the crime has is necessary maintaining public order that criminal suspects arising from to preserve peace individual victim of or some is policy or her v inquiry crime from emotional distress knowledge of criminals evidence obtained in general public a The Nothing in that general duty mistakenly destroyed or to general duty LSA R S 33 l435 may result from the negligently misplaced District a protect the individual victim of to anguish that preserve with to Faucheaux 744 So 2d at 614 Hardy plaintiff to compensate her for be owed to the duty would jurisprudential statutory revealed any be extended La 1993 whether there is any rule of law to determine role 292 support her claim to to duty a not question of law a Terrebonne Consol Government 615 So 2d 289 whether the for the benefit of the victim as the for the benefit of the readily apprehended and successfully prosecuted It is important prosecute criminal a criminal 167 case The to note Also the Sheriff s Office cases without District that the Sheriff s Office has a court Attorney order is absolutely cannot See LSA R S dispose authority to of evidence for 15 41 and LSA C Cr P given independent charge of 7 no every art criminal in his district and the District prosecution how he should 3 prosecute evidence collected during LSA C Cr P criminal a other law enforcement agency is District Attorney art power to when and preservation of the Sheriffs Office or any of many considerations utilized in the one determination of whether s Therefore the 61 investigation by only whom Attorney determines to prosecute Clearly the District prosecute is independent from the actions of the Sheriffs Attorney s Office the needs and wishes of the victim of a crime or Further this evidence claim destruction the or of action pursuing sub judice or pending civil 08 592 are and is negligent impairment of or Value Foods Inc in La premised on proving his the or the See Robertson obligation same her civil lawsuit centers Attorney or duty s The District Attorney See LSA C Cr P Corrections 99 2290 1 25 02 on 7 the in s statute a a power and duties arts 61 and 62 806 La 2d So App 665 672 673 Super Those are denied a 8 to have criminal offender evidence arises from the Id 7 3d So at 675 cases is n helpful the evidence 3 in for the special relationship between subject to the supervision of the Attorney Attorney is the scope ofduties such as initiating and ex reI Dept of Public Safety and 769 So 2d 1270 536 U S 2002 case negligently destroyed to preserve contract The plaintiff s right negligent spoliation duty at 674 It is well settled that the District 1 Cir 11 3 00 cert 3d So prosecution of the absolutely immune from civil liability for actions within Sinclair v State pursuing a criminal prosecution La Id to preserve d id the defendant have a s a right of a plaintiff to be free from interference pertinent question raised plaintiff whether arising from Frank v 7 So 3d 669 of the need for the evidence in the future this situation General where the civil action claim But in either scenario the evidence has been foreseeability 3 claim distinguishable because it Arguably Thus the a 5 Cir 1 13 09 App evidence available for the District in the future present the typical negligent spoliation of not loss of evidence involves evidence that would have benefited or plaintiffs potential causes does case 910 1271 writ denied 122 S Ct 2369 153 L 00 3331 2d Ed 189 the parties Longwell 16 10 Jefferson Parish v 07 So 2d affirmative agreement or an 970 756 2d So 1100 breach of this s at 1105 Because there is evidence in a crime the and criminal possible civil no statutory the 07 259 07 2223 no the well Id of any 970 So 2d to preserve the of the victim of personal benefit devoid of evidence 973 08 claim for the remedy jurisprudential duty or 5 Cir App 25 1 a special relationship undertaking by the Sheriffs Office or La La has plaintiff plaintiff has for the plaintiffs emotional remedy then so If not the duty record is evidence for the If investigation affirmative agreement writ denied 1104 1105 defendant preserve the evidence undertaking to Service Dist No 1 Hosp added emphasis or being personal of or the to preserve sense a security or infliction of emotional plaintiffs action for negligent distress fails Further as to whether the every risk 1044 La a duty is ultimately 1991 Seldom does Id There must be the rule of conduct the risk of injury and the loss Lundin Associates Inc Additionally to the cause a plaintiff in this in fact of the possibility Tammany of or if 260 La 542 we case which we speculation a ease sought as to a but for plaintiffs Roberts inquiry we a La 1972 personal duty seriously question the fail if there is only McIntyre must St v 844 So 2d 304 310 plaintiff probably would injured but for the defendant s substandard conduct such conduct 9 a See Hill 1 Cir 3 28 03 If the played be recovered causative connection App v between to case policy of association 549 256 So 2d 620 622 decline to do A plaintiffs damages generally an of rule protect every victim found that the Sheriffs Office owed Parish Sheriff 02 0700 La Cause in fact is have been even duty because it is shown that the violation of the rule merely part in producing the injury v a question a within the scope of the particular risk falls Benoit 605 So 2d 1032 against the scope of determining not is a cause in fact Rhodes 1758 La 0242 La bringing 7 2 97 clearly 611 612 court wrong In this Where there s Id case serial killer was the a v concurrent are factual question and causes time the appellate absence of manifest however that killer was not it cannot be said that plaintiff terror man but for the would not have suffered emotional distress who had possibility her fourteen years earlier raped during the initial investigation of linked to open the plaintiff s attack rapist As would not be a investigation rather than be solved exists not Clearly this reality is the was the plaintiff s belief initially began the regrettable chain discarded evidence disposal Thus the trial of the evidence cause was a was told that the At the same It is evident preserved the serial the plaintiff faced the and that her the ie case plaintiff had no original criminal investigation in fact of the plaintiff s emotional that the serial killer was of events that led to the court that the longer possessed the the rape result The plaintiff s The was apprehended This is true whether the evidence from the distress since it no of whether the criminal evidence closure or unless it is negligent disposal of the of her attacker and the serial killer did not match regardless an 782 court may not set error or of her rape when she realized the unfortunate realization that the would remain injury 782 So 2d at 612 plaintiff learned that the Sheriff s Office evidence collected an La 3 23 01 distress increased when she met with the Sheriff s Office and physical description of substantial factor in was a 00 1372 an 94 Development writ not considered 97 1143 Entergy Corp finding of fact in the lived the re Perkins This is criminal evidence the plaintiff of Transp and 684 So 2d 1134 688 So 2d 487 about the harm trial a through Dept inquiry is whether the conduct in question So 2d 606 aside State 1 Cir 12 20 96 App the proper v her rapist discovery of that the manifestly erred in its conclusion that the substantial factor in 10 bringing about the plaintiff s emotional distress That factual conclusion is simply not reasonably supported by the record CONCLUSION We find plaintiff under as a a duty we trial court cause have great s The trial to preserve the personal benefit of this had established while law that the Sheriff s Office has this factual scenario Sheriff s Office had for the matter of in fact victim of by sympathy a a court erred in no liability finding judgment The plaintiff is plaintiff we feel constrained assessed with all costs of this REVERSED 11 investigation that the preponderance of the evidence for the this concluding that the evidence in the criminal crime and in to plaintiff Accordingly to reverse appeal the LISA D DENNIS NUMBER 2009 CA 0236 VERSUS COURT OF APPEAL JEFFREY F WILEY INDIVIDUALLY AND FIRST CIRCUIT IN HIS CAPACITY AS SHERIFF OF ASCENSION PARISH HAROLD TRIDICO STATE OF LOUISIANA INDIVIDUALLY AND IN HIS CAPACITY AS FORMER SHERIFF OF ASCENSION QRS INSURANCE COMPANY PARISH AND XYZ INSURANCE COMPANY CARTER c J BEFORE GUIDRY AND PETTIGREW JJ PETTIGREW J CONCURS IN THE RESULTS ONLY AND ASSIGNS REASONS PETTIGREW J concurring The majority recognizes and I agree genuine and serious emotional distress is Rouge Parish School Bd Baton 33 The a that a claim for 96 1824 App 1 Cir 6 20 97 La special duty no to preserve evidence obtained v East 697 So 2d 27 during the investigation of I particular crime for the benefit of the victim of the crime premise based on and La Civ pursuant to La criminal 2315 and the 5 R 46 1841 et seq Rights of Crime Victims and as In amended protected at all times a disagree with this legal general duties of the Sheriff s Office pursuant to La t he victim shall be La particular 5 R 33 1435 Witnesses R S 46 Act 1 1844 by all rules and laws governing procedure and the admissibility of evidence applicable to criminal proceedings enforcement the Code art provides that Moreover La 5 R 46 1844 L agencies shall expeditiously to victims or victims families when no Ultimately obtained Barrino viable claim in Louisiana majority then relieves the Sheriff s Office of liability by finding that the Sheriff s Office has the negligent infliction of I am of the concur in opinion the plaintiff failed distress caused judicial and law return any stolen or other personal property longer needed a is a as a evidence legal duty to preserve evidence particular crime not only for the benefit of the general public but also the victim of the However I still 1I opinion there during the investigation of provides that crime the result reached to carry her by the majority because burden of by the destruction of the evidence as proof I am of the to prove serious required in Barrino emotional

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