The defendants, a sheriff and five of his deputies, appeal the trial court's judgment certifying a class action suit against them. For the following reasons, we affirm and remand with instructions consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the defendants' use of tear gas to disburse a crowd on September 24, 2006, during the Sugar Cane Festival in New Iberia, Louisiana. Various deputies deployed the tear gas three separate times at three different locations.
The plaintiffs filed a class action petition for damages in April 2009. Their motion for class certification was filed in August 2011. Following hearings in the summer of 2013, the trial court granted the class certification. In a lengthy judgment rendered in June 2014, the trial court found that the requirements of La.Code Civ.P. art. 591(A) and (B)(3) were met, and that there were questions of law and fact common to the class that predominated over questions affecting only individual members. The defendants appeal that class certification and assign as error:
The Louisiana Supreme Court has set forth the law regarding class action certification as follows:
Price v. Martin, 11-853 pp. 6-8 (La.12/6/11), 79 So.3d 960, 966-967 (footnotes omitted).
Louisiana Code of Civil Procedure Articles 591 and 592 address the prerequisites, summarily referred to as numerosity, commonality, typicality, adequacy of representative parties, and objectively definable class, necessary to maintain a class action and the certification procedure undertaken by the trial court. Pursuant to La.Code Civ.P. art. 591(A):
Paragraph B of La.Code Civ.P. art. 591 further requires that, in addition to the previous prerequisites being met, the commonality requirements must also be met, more specifically in this case:
Testimony from the Certification Hearing
Delphina Walker, owner of Gator's Barbecue, located in the 600 block of Hopkins Street near the intersection of Hopkins Street and Robertson Street, testified that she and her husband, Edward Charles Walker, were working in their barbecue stand on the day of the events in question. She said they arrived early to prepare hot dogs for the kids. Walker provided a disc jockey, who was playing loud music. She estimated the crowd numbered "no more than five hundred." She said there were infants to the elderly in attendance. She characterized the celebration as a family event. Walker said she heard no warnings and that no officers approached her to request the use of the public address system. Walker said there was no fighting or motorcycle engines being revved. She described chaos following the sudden and unexpected teargas "attack." Walker believed that her barbecue stand business failed due to the teargasing, because people, especially the elderly, were afraid to come out after the attack. Walker admitted there was a lot of motor vehicle traffic and pedestrian traffic crossing the street. She further admitted that she was inside the Gator's barbecue stand when the first teargasing occurred. However, she said she could see what was going on through a window. She admitted that bottles and rocks were thrown at the police officers, but only after the teargasing had started.
Cheryl Ann Hill, Walker's sister, testified she was at the Hopkins and Robertson Street location during the festival. She arrived at about 11:00 a.m. in order to help her sister make hotdogs for the kids. She estimated that there were between three and five hundred people in the area including about sixty kids. Hill said there was no fighting in the area or people throwing beer bottles. Hill denied hearing any
Bradley Simon was fifteen years old at the time of the festival and testified as a listed class representative. Simon said that he arrived at around 4:30 p.m. having walked from his father's house, which was right around the corner from Gator's. Simon was in the same area that Hill, Walker and her husband, and others were. Simon denied seeing any fighting or throwing of beer bottles. He said that he ran immediately once the police administered the first round of tear gas. Simon said he heard no warnings from the police, and that the police were just "amongst theirself, talking amongst theirselves" before administering the tear gas. He said the tear gas sounded like fireworks, but when it hit the ground everyone went running. Simon estimated the crowd to be about three or four hundred people in front of Gator's but closer to between seven hundred and a thousand people in the three block area in which the festival was being celebrated. He estimated that there were about fifty children dancing in the Gator's area. Simon described hollering and screaming following the teargas and estimated that two hundred people were affected by the tear gas. He said he felt "disappointed" because the police "had no probable cause of doing that ... Everybody was just enjoying they self." Simon said the tear gas affected his asthma a little bit for a few days. Although he had no idea what it meant to be a class representative, Simon felt qualified because it "wasn't right."
Edward Mitchell, Walker's son, who was twenty-nine at the time of the hearing, arrived at the festival in the late afternoon. He estimated there were between two and three hundred people in the Gator's area with seventy-five to one-hundred of those being children. Mitchell said that after the first tear gas was administered, he and his mother approached the police to ask why they were doing it. However, Mitchell's fiancé was pregnant at the time and prone to anxiety attacks, so he left to take her to the emergency room. Mitchell said the tear gas made his eyes burn and that he felt like he could not breathe. Mitchell said he felt disrespected. He felt that at least 150 people were affected by the teargas. Mitchell stated that prior to the teargas administration, he did not see any fighting, throwing of beer bottles, hollering, or screaming in the crowd. He never heard a warning from the police prior to the tear gas.
Rebecca Etienne, who was sixteen at the time of hearing and nine at the time of the festival, estimated there were four hundred people in front of Gator's, around one hundred of which were kids. Etienne is Hill's niece, Simon's cousin, and Mr. Walker's cousin. Etienne said that the police stood around for about thirty minutes before they administered the tear gas without warning. Etienne and her mother left immediately amongst the screams and
Sergeant Jeffery Schmidt of the Iberia Parish Sherriff's Office prepared a report two days following the September 24, 2006 incident. Sergeant Schmidt testified that he was dispatched to the Hopkins/Robertson Street area because there were complaints that traffic was at a standstill due to people being in the street and vehicles blocking the street. Sergeant Schmidt said his instructions from his supervisor, Lieutenant Stephen Hill, were to clear the street. Sergeant Schmidt said that he and four other officers were in the area. He said that the first thing they did was have Lieutenant Brett Broussard announce on the public address system to clear the street or gas would be deployed. He said the announcement was made at least three times. Sergeant Schmidt said the only reaction from the crowd was that the motorcycles parked at Brook's Tire, which was located across the street from Gator's, would start revving their motors. He said the motorcycles were approximately seventy yards from where Lieutenant Hill was making the announcements.
Sergeant Schmidt estimated the crowd to be about eight hundred people. Schmidt said that initially two cans of teargas were deployed by himself and Deputy Broussard, both of which were hand thrown. He said he threw his into the street with the intention of clearing the street. Following the deployment, Sergeant Schmidt said that some people in the crowd immediately started throwing bottles at the officers. At that point, the officers deployed another round of teargas canisters.
Sergeant Schmidt said the situation escalated, and the crowd started to surround them while yelling and threatening them. The officers retreated one block in their cars because, Sergeant Schmidt said, they were afraid. The deputies were later called to return to the area because another officer requested assistance for a deputy who was getting "overrun by people." At this point, Sergeant Schmidt said teargas was deployed again.
Sergeant Schmidt estimated that he was at the location about forty minutes before the deployment of the teargas. He said that he did not see any children in the area or elderly people nor did he see any fighting. Prior to the teargas he did not see anyone making threats toward the police or bottles being thrown.
Detective Jeremy Hatley of the Broussard Police Department was a sergeant at the time of this incident. Detective Hatley's unit was the third or fourth one to arrive on the scene, where he observed a large crowd and stagnant traffic. Upon exiting his vehicle, he heard motorcycles revving their engines. He observed a hit-and-run of a black SUV in which a motorcycle ridden by a man and a woman slid underneath an SUV and then took off. Detective Hatley said the police had their overhead lights on. Detective Hatley heard Deputy Broussard's warnings and testified that he gave warnings over the public address system prior to Deputy Broussard. He estimated that the warnings, between them, were less than ten but more than five. However, he said that the crowd did not obey any of the warnings to disburse. Detective Hatley did not disburse any of the initial teargas, but said that the crowd reacted violently by surrounding the police and throwing bottles at them. Detective Hatley then deployed a teargas unit. He said he was struck by shattering glass, and his unit was struck by glass bottles. Detective Hatley was in two different locations that evening. Although Detective Hatley did not see any violent behavior upon his arrival at the
Katherine Guidry was in attendance at what she described as a "block party." Guidry testified that she heard the officer warnings but did not respond in any way and continued to stay in the area despite being told to leave. However, she said some people were preparing to leave. Once the tear gas was disbursed, Guidry went to her car, where she sat for an hour, because she was blocked in. Guidry said her eyes burned from the teargas.
CERTIFICATION OF THE CLASS ACTION
The primary issues in this case center on whether there is adequacy of representation and whether the commonality requirements are met, such that the class, as defined, can be certified. We note at the outset that the claims asserted by the plaintiffs are particularly suited to class action litigation because the ability of the parties to pursue individual claims would be impractical in that the expense of litigation would far surpass any reasonable award. See Duhé v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 01-637 (La.4/27/01), 791 So.2d 637. Further, the law favors maintenance of the class action because of the flexibility the trial court has to modify the certification as required. See Price, 79 So.3d 960 and La.Code Civ.P. art. 592(A)(3)(c).
Nevertheless, we find that the trial court erred in finding that there are questions of law or fact common to the class that predominate over individual issues based on the current class definition. The lone fact that some people in the area of Hopkins and Robertson Streets were subject to tear gas is insufficient to meet the commonality requirement.
Price, 79 So.3d at 969 (citations omitted).
In the present case, the class was defined as:
The testimony from the certification hearing revealed that only those who heard no warning and immediately left the area were represented. Although we find no manifest error in the trial court's factual findings, we find the trial court legally erred in finding that common issues predominate over this group of claimants and those who remained for, or possibly came upon the scene of, the second and third
In a footnote following this passage, the trial court stated:
The trial court continued:
A footnote following states:
However, there are no common claims amongst people who claimed not to have heard any warnings but left immediately once the first tear gas was disbursed, people who heard the warnings but refused to leave, and people who may or may not have heard the warnings but reacted with criminal behavior toward the police in response. Based on the various locations and disbursements, it is impossible for the class members to prove individual causation because the same set of operative facts do not exist. There will be no common evidence; rather there will be evidence based on three different disbursals involving very different types of plaintiffs that are plainly antagonistic to each other. The supreme court requires that proof of commonality be "significant." See Price, 79 So.3d at 970. The central fact that tear gas was disbursed is not significant enough to warrant a class action certification amongst all three groups of people. There is no dispute that tear gas was disbursed, but the numerous factors involved in the various disbursals in several locations warrant a finding that common issues do not predominate over individual ones. The defendants' liability, if any, will differ based on different plaintiffs, and different locations and times.
The proposed class members simply do not have claims in common such that a class certification is warranted based on the current definition of the class. However, La.Code Civ.P. art. 592(A)(d) clearly authorizes the trial court to "alter, amend, or recall its initial ruling certification and may enlarge, restrict, or otherwise redefine the constituency of the class." We can affirm the certification of the class despite its substandard definition because the trial court can remedy this error on remand. Thus, we affirm the trial court's class action certification, but remand to the trial court to redefine the class based on the evidence that was put forth at the certification hearing.
The judgment of the trial court certifying the class action of the plaintiffs, Cheryl Hill, et al, is affirmed. However, this case is remanded to the trial court with the instruction that it redefine the class to include only that group of individuals meeting the commonality and typicality requirements represented at the certification hearing. Costs of this appeal are assessed equally between the parties.