At issue in this case is whether the public duty doctrine applies to insulate the City of Lafayette from liability where the Lafayette Police Department failed to prevent a fatal shooting. After reviewing the record and the applicable law, we reverse the judgment of the court of appeal, which denied the City of Lafayette's motion for summary judgment, and, applying the traditional duty-risk analysis, hold that the police officers did not act negligently.
FACTS AND PROCEDURAL HISTORY
This case arises out the death of Christopher Scott Hardy, who was shot and killed during an altercation with defendant, Brian Bowie
The depositions submitted in support of the opposition to the instant motion established that the McKinley Strip area is an area known to be a popular college hangout near the University of Southwestern Louisiana. On any particular weekend the crowd at the Strip can number between 400 and 500 people. Because the area contains several bars that are required by law to close at 2:00 am, officers from the Lafayette Police Department are on duty to enforce bar closure, traffic control and DWI laws. On the night of the incident, four Lafayette Police Department officers were on duty. Four off-duty sheriff's deputies were also providing paid security in the area.
Officer Charles Steve Viccellio, who had been in law enforcement for about 13 years at the time of the incident, testified that on the night in question, as he and the other officers were assisting in moving the crowd out of the bars, there was a loud bang that sounded like a gun shot. Viccellio and his partner immediately headed across the street in search of the cause of the noise. As they walked across the street, people were telling the officers, "there's a black guy with a gun." When the two officers arrived in the open parking lot across the street from Pete's Bar, there was a group of approximately thirty young men beating a young black man. It took them approximately two minutes to break up the fight and to determine that the black man at the bottom of the pile was not in possession of a gun. Several people from the crowd then told the officers that the man with the gun was further into the parking lot. The officers then went further into the parking lot, and as they attempted to get through what is estimated to be several hundred people, they heard two more loud bangs that were later determined to be gun shots. Immediately after the shots were fired, one officer drew his gun and after Bowie attempted to escape by car, he was taken into custody. The testimony establishes that a person standing at the point where the fight occurred could not see the point where the fatal shooting occurred because cars and people were blocking the view.
What occurred while the officers were looking for the origin of the "loud bang" is explained by the testimony of witnesses Daniel Boudreaux, Jason Coleman, and Lance Adamson. According to Jason Coleman, Brian Bowie's friend, the black man involved in the fight was also his and Bowie's friend. While the 30 men were beating up their friend and others were advancing on him, Bowie pulled out his gun and fired a shot in the air. Coleman called this a "warning shot." After that shot, Bowie and Coleman retreated towards his car with Scott Hardy following them. Bowie got into his car and Hardy opened the car door, attempting to prevent them from leaving. The two men exchanged words and punches, and then Bowie, while seated in his car, fired two fatal shots at Hardy. Coleman, who was
The other witnesses' accounts are almost identical. Lance Adamson testified to hearing a loud noise, and estimated that the time between the loud noise and the shots fired at Hardy was "more than a minute." Daniel Boudreaux testified that approximately one to five minutes elapsed from the time Bowie fired the warning shot to the time he first saw Hardy walking towards Bowie's car and then approximately two to three minutes elapsed until Bowie shot Hardy. The officer testified that "only a very few minutes" elapsed between the "loud bang" and the gun shots.
Plaintiffs filed the instant suit against several defendants, including the City of Lafayette (the "City") for damages arising out the death of their son. Plaintiffs' petition alleged various acts of negligence by the City in not preventing the altercation that ultimately led to his death. In response, the City filed an "Exception of No Cause of Action and/or Motion for Summary Judgment." The City argued it owed no duty to Hardy, and in the alternative, it argued no duty was breached. In support, the City attached affidavits from officers and fact witnesses, who indicated that the confrontation between Hardy and Bowie lasted less than a minute, and that no gun was visible until the shots were fired. Plaintiffs allege in opposition to the motion that since the officers admitted to hearing the warning shot, this gave rise to a duty to Hardy to identify, confront, disarm and arrest the armed individual (Bowie) with whom he was involved in a hostile confrontation. They claim that if the police had reacted to the warning shot earlier, they would have apprehended Bowie before he shot Hardy.
The trial court denied the City's Motion for No Cause of Action and/or Motion for Summary Judgment. The Third Circuit Court of Appeal denied writs on December 18, 1997. The City then filed a writ with this Court and we remanded the matter to the court of appeal for briefing, argument, and opinion. Hardy v. Bowie, 98-0546 (La.4/9/98), 717 So.2d 1136. On remand, the Third Circuit again affirmed the denial of the City's exception of no cause of action and/or motion for summary judgment. Hardy v. Bowie, 97-1707 (La.App. 3 Cir. 10/7/98), 719 So.2d 1158. We granted the City's writ. Hardy v. Bowie, 98-2821 (La.1/15/99), 735 So.2d 643.
A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:
La. C.C.P. art. 966(C)(2).
Section 4 of Acts 1997, No. 483, which amended this article, declares that "all cases inconsistent with" Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41, are legislatively overruled. In Hayes v. Autin, the Third Circuit explained the effect of the 1996 amendment as follows:
685 So.2d at 694-95.
It is under this standard that we review this motion for summary judgment, which review is de novo. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991). Thus, the City's motion will be granted unless we find that the plaintiffs have presented evidence of a material factual dispute. A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp. Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751; Penalber v. Blount, 550 So.2d 577, 583 (La.1989). Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Id.
The Public Duty Doctrine
The public duty doctrine has been defined as follows:
Stewart v. Schmieder, 386 So.2d 1351 (La. 1980) (quoting Cooley on Torts, 4
In affirming the lower court's denial of the City's motion for summary judgment, the court of appeal formulated the issues in light of the public duty doctrine described above as follows:
The court of appeal held:
The legislature attempted to adopt the traditional public duty doctrine by statute in 1985. La. R.S. 9:2798.1
However, where liability is based on a public entity's non-discretionary acts, liability will be judged under the traditional duty-risk analysis. Fowler v. Roberts, supra (holding on rehearing that La. R.S. 9:2798.1 did not apply to immunize the DPS for its negligence, and reinstating the original majority opinion, as supplemented by the plurality opinion). In Fowler, we applied the two-step test enunciated in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) for determining whether the discretionary function exception applies in specific fact situations. A court must first consider whether the government employee had an element of choice. "[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. If the employee had no discretion or choice as to appropriate conduct, there is no immunity. When discretion is involved, the court must then determine whether that discretion is the kind which is shielded by the exception, that is one grounded in social, economic or political policy. If the action is not based on public policy, the government is liable for any negligence, because the exception insulates the government from liability only if the challenged action involves the permissible exercise of a policy judgment. Fowler v. Roberts, supra at 15.
In this case, the City has not articulated any social, economic or political policy considerations surrounding the police officers actions in handling the crowd at the McKinley Strip or in attempting to locate the person who fired the first shot that would implicate La.R.S. 9:2798.1. Thus, the City is not immune from liability under La. R.S. 9:2798.1 and we must analyze the police officers' conduct under the duty-risk analysis.
Under the duty-risk analysis, plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Berry v. State, Through Department of Health and
Generally, 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 action." Prattini v. Whorton, 326 So.2d 576 (La.App. 4
Considering all the facts and circumstances of this case, we conclude that the law enforcement officers had a duty to act reasonably to investigate a possible violation of the law and to protect citizens who may be harmed by the violation. When the officers heard what they thought was a gun shot, they had the affirmative duty to choose a reasonable course of action in investigating the shot and restoring peace and order. See Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1177; Mathieu, supra at 325. Having identified the duty owed by the officers, we now turn to a determination of whether that duty was breached.
For the following reasons, clearly, the officers were reasonably discharging their duty when Bowie fired the fatal shot. Here, the police officers had no direct contact with either Hardy or Bowie prior to the fatal shooting. After they heard the warning shot, they immediately went out to the parking lot to investigate. When they heard from the crowd that a black man had a gun, they proceeded to look for a black man and in the course of their search broke up a fight in which a black man was being beaten by a large group of men. From that location, which was in the vicinity of the area where Bowie fired the warning shot, they could not see Bowie or Bowie's car and very shortly thereafter, Bowie shot Hardy. The police officers had not identified Bowie as the individual who was alleged to have the gun and they had no information that Bowie was going to attempt to shoot anyone, particularly Hardy. Hardy was not involved in the fight with Bowie's friend and thus the warning shot was not directed at Hardy. Hardy had no interaction with Bowie until Hardy approached him, apparently to prevent him from leaving the scene so that the police could arrest him for firing the warning shot, and Hardy was shot within 30 seconds to one minute later. The police officers acted reasonably under the circumstances in the performance of their duties. Plaintiffs have presented no evidence demonstrating that material factual issues regarding the reasonableness of the police officers' actions are in dispute.
The traditional public duty doctrine and its exceptions are not the law of Louisiana. Rather, La. R.S. 9:2798.1 and the duty-risk analysis are used to determine whether public entities and their officers and employees are liable. Where, as here, the
For the reasons stated herein, the judgment of the court of appeal is reversed, the City's motion for summary judgment is granted, and the petition for damages against the City is dismissed. The case is remanded to the trial court for further proceedings.