Louisiana Personal Injury Lawyer Blog
The Crowley Today reports that a man has filed suit against a Arcadia Parish Sheriff’s Deputy, the Crowley Police Department, and the City after an incident that occurred less than one year ago on July 16, 2009.
The suit concerns Reginald Phillips, an Arcadia man who merely wanted to return to his estranged wife’s residence to retrieve his belongings. Fearing his estranged wife might resort to violence during this visit, Mr. Phillips requested Crowley Police escort him on his trip. Mr. Phillips alleges that while inside her residence, the officers left him and his wife alone. It was at this point that Kimberly Phillips allegedly shot Mr. Phillips several times, resulting in severe injuries including permanent paralysis below the waist.
Mr. Phillips alleges in his claim general negligence against the officers and the Police Department. Case history in Louisiana has shown that prevailing on a statutory negligence claim under Louisiana Civil Code Articles 2315 and 2316, plaintiffs are required to allege five elements: (1) the defendant had a duty owed to the plaintiff to exhibit a specific minimum level of conduct; (2) the defendant breached his duty to live up to this standard; (3) the defendant’s conduct actually caused the plaintiff’s injuries; (4) the defendant’s conduct could in some way serve as the legal basis
for the plaintiff’s injuries; and (5) the plaintiff must provide evidence of actual damages suffered. For a recent case concerning these elements, please refer to Tyson v. King (a motor vehicle accident case) here.
The first element of a negligence claim requires a showing that the defendant actually owed a legal duty to the plaintiff. For example, in a given case a court may find that a police department has a duty to ensure that its deputies are adequately trained in the use of attack dogs. Whether a duty of care exists toward the plaintiff will typically be either a statutory or case-law based determination.
Once a duty is determined to exist, the court will resolve whether the defendant’s conduct actually breached that duty. That is to say, the court looks into whether the defendant failed to live up to the standard of care required by law.
Assuming the facts as Mr. Phillips provides them (the defendant Police Department will surely have their own version) are accurate, a court will then determine whether the officer’s absence was the cause of Mr. Phillips injuries. The go-to test for this is the “but for” or cause-in-fact test. For example, to meet this element a plaintiff will have to prove that “but for [the act of alleged negligence]” the accident would not have happened. Given Phillips would have been unlikely to go to the home without a police escort, his attorneys will claim that the police’s failure to monitor the situation closely “caused” the unfortunate incident.
The cause-in-fact test is not to be confused with the fourth element necessitating proof of legal causation. This fourth element requires that the plaintiff be granted protection under the law from the defendant’s breach of duty. That is to say, the defendant must be subject to legal liability under some law or statute for his or her substandard conduct.
Finally, the damages element is more straightforward, requiring the plaintiff to allege actual damages as opposed to speculative damages.
This step by step analysis in a general negligence case can become cumbersome. General negligence cases are typically fact intensive cases, with either the judge or jury ultimately deciding, based on all the facts and circumstances, whether each
of the required elements are met.
The Berniard Law Firm is here to help assist you if you or anyone you know has suffered injuries from what appears to be a case of general negligence.