Misuraca v. City of Kenner - 01-707 ( La. App. 5 Cir 11/14/01), 802 So. 2d 784

Rule:

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. Whether a duty is owed is a question of law. The inquiry is whether the plaintiff has any law--statutory, jurisprudential, or arising from general principles of fault--to support his claim. Governmental agencies in the performance of governmental functions may be subjected to the imposition of certain duties, the breach of which may result in liability for damages to those injured by a risk contemplated by that duty. The determination of whether a particular duty should be imposed on a particular governmental agency is a policy question. 

Facts:

A driver lost control of his vehicle. His car left the roadway, clipped a telephone pole guy-wire, flipped over, and landed upside-down in the adjacent drainage canal. The police officer was the first road officer to arrive at the accident scene. As the officer approached the canal, he passed two men attempting to handle a disconnected guy-wire. The decedent yanked on the guy-wire. The wire came in contact with a live electrical line, and both men were electrocuted. The widow brought a wrongful death and survival action against defendant city and police officer, alleging that the police officer was negligent in allowing the decedent to touch a guy-wire. The district court granted the city and officer's motion for summary judgment. The widow appealed.

Issue:

Was the officer liable for the death of the decedent?

Answer:

No

Conclusion:

The city did not articulate any social, economic, or political considerations surrounding the police officer's actions in handling the immediate investigation or securing the accident scene. Thus, the city was not immune from liability under La. Rev. Stat. Ann. § 9:2798.1 and the appellate court was required to analyze the officer's actions under the traditional duty-risk analysis. Evidence showed that after the police officer began his investigation, while the officer's back was turned, the decedent, against the officer's previous direction, began to handle the downed guy-wire again. The officer was reasonably discharging his duty when the two men were electrocuted. The court concluded that 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 police officer acted reasonably under the circumstances presented, he is not liable.