Sherome Hankton v. The State Of Louisiana, Medical Center Of Louisiana At New Orleans (university Hospital), Through The Board Of Supervisors At

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 11th day of December, 2020 are as follows:
BY Genovese, J.:
2020-C-00462 SHEROME HANKTON VS. THE STATE OF LOUISIANA, MEDICAL
CENTER OF LOUISIANA AT NEW ORLEANS (UNIVERSITY
HOSPITAL), THROUGH THE BOARD OF SUPERVISORS AT
LOUISIANA STATE UNIVERSITY AND DR. JOHN DOE (Parish of
Orleans Civil)
AFFIRMED IN PART. AMENDED IN PART. AND AFFIRMED AS
AMENDED. SEE OPINION.
Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore,
sitting in the vacant seat for District 4 of the Supreme Court. He is now
appearing as an ad
hoc for Justice Jay B. McCallum.
Retired Judge Fre ddie P itcher, J r., assigne d a s Justice a d hoc , sitting for
Chief Justi
ce Bernette Johnson, recused.
Weimer, J., concurs in part, dissents in part and assigns reasons.
Hughes, J., concurs in part, dissents in part and assigns reasons.
Crain, J., dissents and assigns reasons.

12/11/20
S
UPREME COURT OF LOUISIANA
No
. 2020-C-00462
S
HEROME HANKTON
VS.
THE STATE OF LOUISIANA, MEDICAL CENTER OF LOUISIANA AT
NEW ORLEANS (UNIVERSITY HOSPITAL), THROUGH THE BOARD
OF SUPERVISORS AT LOUISIANA STATE UNIVERSITY
AND DR. JOHN DOE
ON
WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
GEN
OVESE, JUSTICE∗
Plaintiff, Sherome Hankton, an officer with the New Orleans Police
Department, filed this personal injury suit for damages resulting from an attack upon
her by a prisoner, Conrad Jackson, while Officer Hankton was guarding Jackson
during a hospital stay. Following a bench trial, the trial court apportioned 50% fault
to Jackson, 40% fault to the hospital , and 1 0% fault to Officer Hankton; it then
awarded damages tota ling $1,134,287.44. T he court of appeal affirmed in part,
amended in part, and affirmed as amended. We granted certiorari to review the trial
court’s allocation of fault. For the reasons that follow, we affirm in part, amend in
part, and affirm as amended.
FACTS AND PROCEDURAL HISTORY
C
onrad Jackson (“Jackson”), an armed robbery suspect, was being treated at
the Medical Center of Louisiana at New Orleans (“University Hospital”) for injuries
he sustained after jumping from a two- story building while attempting to elude
* R etired Judge James H. Boddie, Jr., heard this case as Justice pro tempore, sitting in the vacant
seat for District 4 of the Supreme Court. He is now appearing as an ad hoc for Justice Jay B.
McCallum. Retired Judge Freddie Pitcher, Jr., assigned as Justice ad hoc, sitting for Chief Justice
Bernette Johnson.

2

police. During his hospitalization, Jackson was being guarded by New Orleans
Police Department (“NOPD”) police officers.
On November 24, 2009, approximately three weeks after Jackson’s hospital
admission, Plaintiff, NOPD Officer Sherome Hankton (“Officer Hankton”), reported
to University Hospital to guard Jackson. Shortly after her guard duty began, Jackson
attacked Officer Hankton and attempted to escape . Officer Hankton received
multiple injuries, including approximately 25 stab wounds inflicted by Jackson with
a pair of suture scissors while he attempted to gain access to her gun.
Officer Hankton filed a personal injury action against Defendant, the State of
Louisiana, through the Board of Supervisors of Louisiana State U niversity and
Agricultural and Mechanical College, on behalf of the Interim LSU Public Hospital1
(collectively “University Hospital”), for the injuries she sustained in the attack .
University Hospital answered and raised several affirmative defenses, including the
comparative fault of Officer Hankton and that of a nonparty. A Motion for Leave to
Intervene and a Petition of Intervention was filed by the City of New Orleans (the
“City”), requesting to intervene in the matter and to be reimbursed for expenses paid
to Officer Hankton pursuant to the Louisiana Workers’ Compensation Act.2
Following a bench trial, judgment was rendered in favor of Officer Hankton.
The trial court assessed fault as follows: Jackson 50% , University Hospital 40%,

1 Officer Hankton’s petition erroneously named the State of Louisiana, through its Political
Subdivision, the Medical Center of Louisiana at New Orleans (University Hospital), through the
Board of Supervisors at Louisiana State University and Mechanical College, Medical Center of
Louisiana at New Orleans (University Hospital), through the Board of Supervisors at Louisiana
State University and Mechanical College, and Dr. John Doe.

2 The parties stipulated that the City had sufficient interest to be joined a s an intervenor.
Additionally, they stipulated to the City’s workers’ compensation lien of $201,094.05, which was
subject to a reduction following any assessment of fault to Officer Hankton and/or the City, and a
fee pursuant to La.R.S. 23:1103(C) (the “Moody fee”).

3

and Officer Hankton 10%. Officer Hankton was awarded damages totaling
$1,134,287.44.3
University Hospital appealed, raising several assignments of error, including
in part, whether the trial court erred in assessing 40% fault to University Hospital
and assessing 10% fault to Officer Hankton, while failing to assess any fault to the
NOPD. The court of appeal affirmed in relevant part, including affirming the trial
court’s judgment on the allocation of fault. Hankton v. State, 19-557 (La.App. 4 Cir.
3/4/20), 294 So.3d 25.
This Court granted certiorari to review University Hospital’s challenge to the
trial court’s 10% fault allocation to Officer Hankton and the lack of an assignment
of any percentage of fault to NOPD, a nonparty . Hankton v. State , 20-462 (La.
7/2/20), 297 So.3d 765.
DISCUSSION
In an action for damages where personal injury is sustained, the percentage of
fault of all persons causing or contributing to the injury shall be determined,
regardless of whether the person is a party or a nonparty and regardless of immunity
by statute, including immunity pursuant to La.R.S. 23:1032. La.Civ.Code art.
2323(A). The allocation of fault by the trier of fact is a factual determination that
will not be set aside by a reviewing court unless it is manifestly erroneous or clearly
wrong. Thompson v. Winn-Dixie Montgomery, Inc. , 15-477, p. 14 (La. 10/14/15 ),
181 So.3d 656, 666; Foley v. Entergy Louisiana, Inc. , 06-983, p. 9 (La. 11/29/06),
946 So.2d 144, 153; Ferrell v. Fireman’s Fund Ins. Co. , 94 -1252, pp. 3 -4 (La.
2/20/95), 650 So.2d 742, 745. Although great deference is to be afforded the
factfinder’s determination, the manifest error standard does not mandate that the
factfinder’s determination cannot ever, or hardly ever, be upset. Brewer v. J.B.

3 The trial court’s judgment further ordered that the City’s workers’ compensation lien be reduced
by 10% and subject to a one-third Moody fee.

4

Transport, Inc., 09-1408, 19-1428, p. 13 (La. 3/16/10), 35 So.3d 230, 240 (citing
Ambrose v. New Orleans Police Dep’t Ambulance Serv. , 93 -3099, 93-3110, 93 -
3112, p. 8 (La. 7/5/94), 639 So.2d 216, 221).
This Court, in Duncan v. Kansas City Southern Railway Co ., 00-66, pp. 10-
11 (La. 10/30/00), 773 So.2d 670, 680 -81, summarized the standard for reviewing
allocation of fault determinations as follows:
This Court has previously addressed the allocation of fault and
the standard of review to be applied by appellate courts reviewing such
determinations. Finding the same considerations applicable to the fault
allocation process as are applied in quantum assessments, we concluded
“the trier of fact is owed some deference in allocating fault” since the
finding of percentages of fault is also a factual determination. Clement
v. Frey, 95-1119 (La.1/16/96); 666 So.2d 607, 609, 610. As with other
factual determinations, the trier of fact is vested with much discretion
in its allocation of fault. Id. Therefore, an appellate court should only
disturb the trier of fact’s allocation of fault when it is clearly wrong or
manifestly erroneous. Only after making a determination that the trier
of fact’s apportionment of fault is clearly wrong can an appellate court
disturb the award, and then only to the extent of lowering it or raising
it to the highest or lowest point respectively which is reasonably within
the trial court’s discretion. Clement, 666 So.2d at 611; Coco v. Winston
Industries, Inc., 341 So.2d 332, 335 (La.1977).

The appellate court [’]s determination of whet her the trial court
was clearly wrong in its allocation of fault is guided by the factors set
forth in Watson v. State Farm Fire and Cas. Ins. Co. , 469 So.2d 967,
974 (La.1985). In Watson, we said []various factors may influence the
degree of fault assigned, including:

(1) [W]hether the conduct resulted from inadvertence or
involved an awareness of the danger, (2) how great a risk
was created by the conduct, (3) the significance of what
was sought by the conduct, (4) the capacities of the actor,
whether su perior or inferior, and (5) any extenuating
circumstances which might require the actor to proceed in
haste, without proper thought. And, of course, as
evidenced by concepts such as last clear chance, the
relationship between the fault/negligent conduct an d the
harm to the plaintiff are considerations in determining the
relative fault of the parties.

Watson, 469 So.2d at 974. These same factors guide the appellate
court’s determination as to the highest or lowest percentage of fault that
could reasonably be assessed. Clement, 666 So.2d at 611.

5

With the foregoing principles in mind, we address University Hospital’s
argument relative to the trial court’s allocation of fault. We have reviewed the
relevant portions of the record in this matter, including the trial testimony of Officer
Hankton; NOPD Officer Tracey Fulton, whom Officer Hankton relieved of guard
duty; T.J. Freeman, the Deputy Chief of Police for University Police Department
(“UPD”) at the time of this incident;4 and, George Armbruster, an expert in the field
of police policies, procedures, and training. Further, we have reviewed Jackson’s
deposition that was introduced into evidence at trial.
University Hospital argues that the trial court’s assessment of only 10% fault
to Officer Hankton is manifestly erroneous. The trial court’s Reasons for Judgment
provide a discussion of the evidence supporting its assessment of fault to Officer
Hankton. The trial court noted that she was a 12-year veteran of NOPD and had
been placed on guard duty many times. Officer Hankton testified that when an
officer takes over custody of a prisoner from another officer, a search for weapons
should occur, as well as communication between the officers. She also testified that
she was familiar with the concept of keeping a distance of about six feet away from
a prisoner to allow for rea ction time should a subje ct take hostile actions. Officer
Hankton also explained she was taught in the academy that an officer should never
turn his/her back to a prisoner.
In this instance, however, the trial court found that when she relieved Officer
Fulton of his guard duty , Officer Hankton did not inquire w hether Jackson was
restrained, but testified that she assumed that he was. She also did not ask whether
Jackson had been searched, and she did not search Jackson upon entering the hospital
room. Additionally, while there were two chairs in the hospital room, for her guard
duty, Officer Hankton chose to sit in the cha ir located between Jackson’s bed and

4 Because the parties and the lower courts refer to T.J. Freeman as “Mr. Freeman,” that is how he
is referred to by this Court.

6

the window, which placed her less than six feet away from Jackson and her firearm
within four feet of Jack son. For the se reasons, the trial court assigned Officer
Hankton 10% fault.
The court of appeal affirmed the trial court’s a ssessment of 10% fault to
Officer Hankton, reasoning as follows:
Applying the Watson factors, we find Officer Hankton’s conduct
amounted to inadvertence. In particular, Officer Hankton testified that
she did not check to see if Mr. Jackson was restrained in the bed, but
rather assumed he was restrained because Officer Fulton was guarding
Mr. Jackson prior to her arrival. Further, she testified that she sat in the
chair next to Mr. Jackson’s bed, which was within Mr. Jackson’s reach.
As Officer Hankton confirmed, sitting in a chair so close to Mr. Jackson
was an act contrary to her training. As such, her conduct inadvertently
created the risk that she was accessible to Mr. Jackson. In this instance,
we agree with the trial court’s findings that Officer Hankton did not act
as a reasonable police officer under the circumstances. However, we
find that Officer Hankton’s conduct was a mere inadvertence. She was
not aware that Mr. Jackson was armed with surgical tools and would
attack her. Thus, we find the trial court was not manifestly erroneous
in allocating ten percent (10%) of fault to Officer Hankton.

Hankton, 294 So.3d at 32.

University Hospital argues that the trial court erred in assigning an inadequate
amount of fault to Officer Hankton since she disregarded her training and her
personal safety. Specifically, it posits that Officer Hankton should have checked to
see if Jackson was restrained and should have searched both Jackson and the hospital
room for weapons. Additionally, University Hospital asserts that Officer Hankton
should have properly positioned herself in order to keep a safe distance between her
and Jackson. According to University Hospital , Officer Hankton was negligent in
failing to implement these simple preventative measures that would have
significantly decreased the likelihood of an attack.
Although University Hospital argues strenuously that the actions of Officer
Hankton warrant a greater assessment of fault, it relies on the same facts cited by the
trial court and simply disagrees with the percentage of fault assigned. We find t he

7

apportionment of fault made by the trial court to Officer Hankton was based upon
the evidence placed before it and is fully supported by the record.
The record confirms that Officer Hankton admitted that upon her arrival at the
hospital, she failed to confirm with Officer Fulton that Jackson was restrained. She
testified that she believed Jackson was restrained, but he was covered with a blanket,
and she did not independently confirm this fact. Officer Hankton also testified that
she was aware of the concept of keeping about six feet away from a prisoner in order
to allow for reaction time should a prisoner take hostile action and was also aware
of the need to search for weapons while on guard duty . She admitted that upon
assuming guard duty, she sat in a chair between the hospital bed and the window.
According to her testimony, Jackson a ttacked her from behind when she stood and
momentarily turned away from the bed toward the window. These actions of Officer
Hankton constitute negligence ; h owever, as concluded by the court of appeal,
Officer Hankton’s conduct amounted to “mere inadvertence [,]” as “[s]he was not
aware that Mr. Jackson was armed with surgical tools and would attack her.” Id.
For the foregoing reasons, we conclude that the record contains a reasonable factual
basis for the trial court’s determination, and University Hospital has failed to prove
the trial court’s judgment allocating 10% fault to Officer Hankton rises to the level
of being clearly wrong. We, therefore, affirm the trial court’s allocation of 10% fault
to Officer Hankton.
We next address University Hospital’s argument that the trial court erred in
failing to assess NOPD with any percentage of fault. In considering this argument,
we are mindful that “[t]o the extent that a party defendant seeks to have the benefit
of comparative fault of another as an affirmative defense, . . . it bears the burden of
proof by a preponderance of the evidence that the other party’s fault was a cause-in-
fact of the damage being complained about.” Dupree v. City of New Orleans, 99 -
3651, p. 18 (La. 8/31/00), 765 So.2d 1002, 1014 n.13 (citations omitted).

8

Initially, we note that t he trial court’s Reasons for Judgment do not address
the potential fault of NOPD ;5 therefore, we are unable to ascertain the trial court’s
reasons for not assessing any fault to NOPD. T he court of appeal did address
University Hospital’s burden of proving the fault of NOPD and concluded that it did
not meet this burden, reasoning as follows:
A review of the record shows that the NOPD’s policies and procedures
were not introduced into evidence at trial. Moreover, Appellants did not
present any experts to testify regarding the NOPD’ s policies and
procedures that were in place at the time of the attack. While Officer
Fulton testified as to his police training, he was not qualified as an expert
to testify as to the NOPD’s policies and procedures. Additionally, Mr.
Armbruster, Appella nts’ expert in police policies, procedures, and
training, c ould not testify as to the NOPD’ s policies and procedures
because he was not qua lified as an expert on the NOPD’s policies and
procedures. Thus, we find the trial court did not commit manifest error
in failing to assess fault to the NOPD.

Hankton, 294 So.3d at 33.
The court of appeal’s finding of no manifest error by the trial court, therefore,
was premised on the fact that University Hospital failed to introduce NOPD’s
policies and procedures in effect at the time of the attack and to present ex pert
testimony on these policies and procedures. University Hospital argues before this
Court that the absence of evidence of NOPD ’s policies and procedures and expert
testimony relative to same does not preclude an assessment of fault on the part of
NOPD.
Accordingly, before addressing the propriety of the trial court’s allocation of
fault, we first consider the necessity for and the adequacy of expert testimony. We
find that the court of appeal too narrowly focused the inquiry relative to University
Hospital’s burden of proof on NOPD’s policies and procedures. We acknowledge
that specific NOPD policies and procedures were not introduced into evidence, and
there was no expert testimony relative to its specific procedures; however, Mr.

5 The trial court’s Reasons for Judgment do state that “[a]lthough Mr. Jackson was considered an
arrestee in hospital, it was established at trial that he was not properly restrained.”

9

Freeman, Officer Fulton, Officer Hankton, and Mr. Armbruster all testified as to the
relevant general police procedures for guarding a prisoner, and this evidence was
unrefuted. It is axiomatic that law enforcement officers must abide by minimal
practices and procedures that permeate the law enforcement community. There are
certainly rudimentary practices on which officers are instructed in the course of their
training and officers are required to adhere to these practices in the performance of
their professional duties as law enforcement officers. Although different law
enforcement agencies may have differing specific policies and procedures unique to
their jurisdiction, it is not genuinely disputed that general police procedure s still
apply.
While University Hospital could have introduced N OPD polic ies and
procedures and elicited expert testimony regarding the particular duties that were in
effect and were breached by NOPD, as it attempted to do, we find that expert
testimony relative to specific NOPD policies and procedures was not necessarily
required for an assessment of fault as to NOPD . Any relevant NOPD policy and
procedure would necessarily fall within the general polic ies and procedures of law
enforcement officers as testified to by Mr. Freeman, Officer Fulton, Officer
Hankton, and Mr. Ar mbruster. We conclude that University Hospital was not
required to introduce the written policies and procedures of NOPD or to introduce
expert testimony specifically opining on NOPD’s duty or breach thereof in order to
meet their burden of proving fault on the part of NOPD. Therefore, w e must now
consider whether University Hospital otherwise met its burden of proving fault on
the part of NOPD.
Mr. Freeman, the Deputy Chief of UPD at the time of the incident and a law
enforcement officer for 38 years, provided testimony regarding prisoners who were
patients at University Hospital. It was his testimony that when an offender is taken
to University Hospital for treatment, he/she remained in the care, custody and control

10

of the law enforcement agency that brought th e individual to the hospital. He
explained that protocol requires the prisoner to remain restrained and that restraining
the prisoner is the responsibility of the arresting agency. Additionally, Mr. Freeman
testified that UPD has neither the resources to place, nor the responsibility of placing,
guards in the hospital rooms of patients receiving treatment.6
Officer Fulton also testified about police protocol applicable to guarding a
prisoner and the responsibilities of the guard. According to Officer Fulton, when an
officer is being relieved of guard duty, the officers should communicate about the
prisoner’s history and whether he was a flight risk. He also testified that protocol
required guards to sit in a position that enables them to keep a visual observation of
the prisoner . Officer Fulton also explained the necessity of keeping a distance
between the guard and the prisoner so that the guard may respond to actions taken
by the prisoner. According to Officer Fulton, a guard should also know what tools
the medical staff are using and to be sure that the tools have been removed when
they leave the room. Additionally, he testified that the prisoner should be restrained
at all times, except when he is receiving certain medical tr eatment. Finally, it was
his testimony that a guard is to inspect the hospital room to make sure that the area
is clear of any type of weapon or anything that the prisoner can use to hurt someone.
Officer Hankton testified about her training in police procedures and its focus
on the safety of herself and fellow officers. She explained that handcuffs are utilized
to immobilize an individual and that it was the responsibility of the agency who
made the arrest to have the individual restrained. As a matter of police procedure ,
the individual is searched. She was aware of the concept of keeping a distance of
approximately six feet between the officer and the prisoner. Officer Hankton further

6 Mr. Freeman also testified extensively about U PD policies and procedures with regard to
prisoners who were patients at University Hospital. He stated that they applied to not only UPD,
but to law enforcement officers who brought prisoners to University Hospital , and it was their
responsibility to adhere to them. However, Officer Hankton and Officer Fulton testified that they
were not given copies of UPD’s policies and procedures.

11

testified that when changing custody of a subject from one officer to another, there
should be a dialogue between the officers. Additionally, she was instructed to
determine if the individual was restrained when taking over guard duty and, during
guard duty, to maintain visual observation of the person being guarded.
Mr. Arm bruster, accepted as an expert in police policies, procedures , and
training, also provided testimony as to the responsibilities and protocols of law
enforcement when guarding a prisoner. He explained the need for officers to keep
a safe distance from the prisoner to maintain a position of advantage. With respect
to handcuffing, Mr. Armbruster testified that handcuffing techniques are taught as
restraining methods used to restrict the mobility of the prisoner. Like the officers,
Mr. Armbruster testified that when guards are being relieved, they should exchange
information, and the incoming guard should be informed if the person is restrained.
Additionally, an incoming guard should search the prisoner and the area to ensur e
that nothing is within the reach of the prisoner. Mr. Armbruster’s testimony echoed
the need to have constant watch of the prisoner, and he stated that officers are taught
the concept of keeping a distance of about six feet from the prisoner. Finally,
according to Mr. Armbruster, each individual agency is responsible for the care,
custody, and control of the prisoner during guard duty.
Based upon this evidence, we find that University Hospital met its burden of
proving that NOPD had a duty to guard Jackson, a violent criminal, during his
hospitalization. This duty to guard encompassed a duty of the guards to
communicate, to maintain observation of Jackson , to search Jackson and the
premises, and a duty to properly restrain the prisoner.
Thus, the next step in the inquiry is whether University Hospital proved that
NOPD breached its duty to guard. We readily conclude that it did. Th e record
establishes that Officer Fulton and Officer Hankton failed to have a conversation
upon her arrival and did not discuss whether Jackson was restrained. Officer Fulton

12

admitted that he did not check for restraints, and he searched neither the prisoner nor
the hospital room. Officer Hankton did not independently confirm that Jackson was
restrained, and she did not search either the room or Jackson for weapons. She also
failed to maintain a safe distance from Jackson and momentarily turned her back to
him. The evidence also establishes that NOPD did not diligently observe Jackson,
as he was able to obtain medical instruments, and to fashion a makeshift handle for
the suture scissors.7 Finally, although Jackson testified that he was never restrained
during his hospital stay, Officer Fulton claimed that Jackson was restrained when he
left the hospital room. Despite this conflicting testimony, Jackson was obviously
not adequately restrained, given that he was able to get out of bed and attack Officer
Hankton.
The final determination to be made is whether the actions of NOPD were a
cause-in-fact of Officer Hankton’s injuries. Because N OPD failed in its duty to
guard, Jackson ultimately was able to obtain the suture scissors, fashion them into a
weapon, and secrete them. Thereafter, he used the suture scissors in his attack upon
Officer Hankton. Thus, we conclude that the conduct of NOPD in breaching its duty
to guard was a cause-in-fact of the resulting harm.
Based on our examination of the evidence and testimony presented at trial,
notwithstanding the d eference due to the trial court, we find that the trial court’s
failure to assess any degree of fault to NOPD is not supported by the record. To the
contrary, the record contains a reasonable factual basis to establish fault on the part
of NOPD. Accordingly, the failure to asse ss any degree of fault to NOPD was
manifestly erroneous.
Given our conclusion that NOPD bears some degree of fault, we must adjust
the allocation of fault. Notably, the assessment of 50% fault to Jackson has not been

7 Jackson’s testimony as to when he obtained the suture scissors and the length of time they
remained hidden was unclear; however, Jackson was able to obtain and hide the weapon, all of
which went undetected by NOPD.

13

challenged by University Hospital. Additionally, as we determined above, the
assessment of 10% fault to Officer Hankton is not manifestly erroneous. Thus, the
remaining 40% of fault must be reallocated between University Hospital and NOPD
pursuant to the principles set forth in Clement, 666 So.2d 607.
In allocating fault, courts must consider both the nature of the conduct and the
extent of the causal relationship between the conduct and the damages claimed. Id.
at 611; Watson, 469 So.2d at 974. These same factors guide the appellate court’s
determination as to the highest or lowest percentage of fault that could reasonably
be assessed. Clement, 666 So.2d at 611. After an appellate court fi nds a clearly
wrong apportionment of fault, it should adjust the award, but only to the extent of
lowering or raising it to the highest or lowest point respectively, which is reasonably
within the trier of fact’ s discretion. Id.; Toston v. Pardon , 03 -1747, p. 17 (La.
4/23/04), 874 So.2d 791, 803 ; Brewer, 35 So.3d at 244. Therefore, in making a
determination of the highest or lowest percentage of fault that could reasonably be
assessed under the facts of this case, we apply the comparative fault factors
announced in Watson, 469 So.2d at 974.
Because University Hospital argues that the trial court erred in failing to
assign NOPD any degree of fault, the fault of NOPD is discussed in detail above.
However, that discussion in no way minimizes the fault of University Hospital, and
we find that the record amply supports an assessment of fault to University Hospital.
In its Reasons for Judgment, the trial court recounted that Jackson was able to
obtain three medical instruments, and he was able to fashion the suture scissors into
a weapon. Specifically, as to University Hospital, the trial court found that medical
staff negligently left these medical instruments in Jackson’s hospital room and, “but
for University Hospital’s failure t o account for and safeguard its own medical
devices and tools, [Officer] Hankton would not have been brutally and repeatedly
stabbed.”

14

The court of appeal considered the propriety of the trial court’s allocation of
fault to University Hospital . Applying the Watson factors, it held that the trial
court’s factual finding that University Hospital created an unreasonable risk of harm
was not manifestly erroneous. The court noted Mr. Freeman ’s testimony that
University Hospital’s employees did not adhere to its policies, and his admission
that if surgical tools were left in Jackson’s room by an employee, that was a violation
of their policies. Thus, the court of appeal agreed with the trial court’s finding that
Jackson’s stabbing of Officer Hankton would not have occurred but for University
Hospital’s failure to safeguard its surgical tools.
In affirming the percentage of fault allocated to University Hospital, the court
of appeal reasoned that “University Hospital, by admission of its own employee, Mr.
Freeman, violated its policies in failing to secure surgical tools that were used as a
weapon to attack Officer Hankton[,]” and this violation created an unreasonable risk
of harm to Officer Hankton. Hankton, 294 So.3d at 32. Thus, although University
Hospital challenged the percentage of fault it had been assessed, the court of appeal
held that the trial court did not err, noting that the highest percentage of fault had
been assessed to Jackson.
Having considered the evidence, we find the record support s the conclusion
that as between University Hospital and NOPD, University Hospital bears the
majority of fault with respect to the nature of the conduct and the relationship to the
damage. University Hospital’s conduct in fail ing to follow its own policies and
procedures lead to the attack on Officer Hankton. It was University Hospital
employees who needed the instruments, who used the instruments, and who failed
safeguard their instruments. The risk created by this negligent conduct of University
Hospital was significant. Clearly, University Hospital was in the superior position
and could have and should have adhered to its own policies and procedures, and thus
avoided leaving suture scissors in a hospital room within the reach of Jackson. Had

15

it done so, Jackson would not have been armed with the weapon he used to carry out
his attack on Officer Hankton in the first instance.
Secondly, and no less significant, given its obligation to protect life and
property, as testified to by Mr. Freeman, we find fault in UPD’s failure to intervene
and assist Officer Hankton once Jackson’s attack began. Officer Hankton testified
that there was a UPD officer outside of Jackson’s room during the time of her attack.
Officer Hankton was yelling and struggling, and Jackson was demanding that she
give him her gun as he brutally attacked her. Despite this obvious danger, the UPD
officer did not intervene to assist Officer Hankton, whic h Mr. Freeman testified
would also be a policy violation. This failure to act allowed an extremely dangerous
and life threatening situation to continue, and it put Officer Hankton and all other
persons and property on the premises in grave danger.
For the reasons detailed above, NOPD was likewise negligent and at fault .
However, NOPD was clearly no more at fault than University Hospital. Cognizant
of the negligent conduct of NOPD in reallocating fault, we emphasize as the trial
court correctly determined, “but for University Hospital’s failure to account for and
safeguard its own medical devices and tools, [Officer] Hankton would not have been
brutally and repeatedly stabbed.” While the negligent actions of NOPD were a
contributing factor, the stabbing of Officer Hankton would not have occurred absent
the medical instruments being left in the hospital room where they were accessible
to Jackson.
Based on our analysis of the Watson factors, we find that University Hospital
bears a greater degree of fault than NOPD. Charged with establishing the high/low
range of fault attributable to NOPD that would constitute a reasonable conclusion
by the trier of fact, and having reviewed the record, we find the fault of NOPD was
not less than 15%, but no more than 25%. Accordingly, in reapportioning the
remaining percentage of fault, we assign NOPD with 15% fault, which is the lowest

16
amount the trial court could have reasonably allocated to NOPD. In turn, we reduce
University Hospital’s fault from 40% to 25% . Based upon our reallocation, the
percentages of fault assessed are Jackson 50% , Officer Hankton 10%, University
Hospital 25%, and NOPD 15%.
CONCLUSION/DECREE
For the reasons set forth herein, we affirm the judgment of the trial court
allocating 10% fault to Officer Hankton. The judgment of the trial court is amended
to reflect our reallocation of fault, reducing the fault of University Hospital from
40% to 25% and assigning 15 % fault to NOPD. As amended, the trial court’s
judgment is affirmed.
AFFIRMED IN PART, AMENDED IN PART, AND AFFIRMED AS
AMENDED.

12/11/20
SUPREME COURT OF LOUISIANA
No. 2020-C-00462
SHEROME HANKTON
VS.
THE STATE OF LOUISIANA, MEDICAL CENTER OF LOUISIANA AT
NEW ORLEANS (UNIVERSITY HOSPITAL), THROUGH THE BOARD
OF SUPERVISORS AT LOUISIANA STATE UNIVERSITY
AND DR. JOHN DOE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT,
PARISH OF ORLEANS
WEIMER, J., concurring in part, dissenting in part.
I agree with the majority that the trial court’s apportionment of fault was
manifestly erroneous and, in the absence of a challenge to the apportionment of 50%
fault to Defendant Jackson, that percentage must stand. In the absence of such a
challenge, Jackson’s fault has analytically been taken as a given.
However, Jackson’s conduct was intentional, so I believe it necessary to state
that apportioning his fault equally with all other actors is not necessarily mandated
by law. As this court has recognized, the Civil Code’s apportionment of fault
provision “reflects a legislative determination that on the continuum of moral
culpability, the act of an intentional actor should not benefit from a reduction in the
damages inflicted on a less culpable negligent actor.” Landry v. Bellanger, 02-1443,
p. 14 (La. 5/20/03), 851 So.2d 943, 954 (discussing La. C.C. art. 2323). A
factfinder’s recognition of a continuum of moral culpability based on varying degrees
of intent might well require apportioning greater fault to an intentional tortfeasor in
comparison to negligent tortfeasors. While I am bound by the same procedural

constraints as the majority to not disturb the 50% allocation to Jackson, a review of
the record inescapably establishes his brutal attack was the product of forethought
and planning. Under a different procedural posture, I might well have found a greater
allocation of fault to that intentional tortfeasor was required.
For allocating the remaining 50% of fault among the negligent parties in the
present posture, this case does require the factfinder to account for, among other
factors, the relative “capacities of the actor, whether superior or inferior” to that of
other actors with a role in the tort. See Watson v. State Farm and Cas. Ins. Co.,
469 So.2d 967, 974 (La. 1985). The majority of this court wisely–in my
estimation–recognizes that the New Orleans Police Department (NOPD) was
erroneously omitted from an assignment of fault by the lower courts. However, I
respectfully disagree that the NOPD’s share of fault was less than that of University
Hospital. As the majority has properly framed this case, the relevant duty to prevent
the patient-prisoner from attacking Officer Hankton concerns procedures for guard
duty. Accordingly, apportionment of fault requires “a comparison of the respective
degrees of duty.” Socorro v. City of New Orleans, 579 So.2d 931, 943 (La. 1991).
The record reflects that while both NOPD and University Hospital, which had
its own security personnel, shared a duty to guard Jackson, the duty to guard was not
shared equally. Stated simply, the primary duty of University Hospital was to
medically treat Jackson, whereas NOPD’s sole duty at the hospital was to guard
Jackson.1 From these facts alone, under the comparison of the capacities of these
1 While tacitly acknowledging in her brief that she could not see what was “outside the door” of
Jackson’s hospital room, the Plaintiff has nevertheless posited that she believed a University
Hospital security guard was nearby Jackson’s room yet did not respond to her cries for help when
Jackson attacked her. Inasmuch as the lower courts erred by failing to evaluate the relative fault
between NOPD and University Hospital, in my de novo review of the record on this point, I find
Plaintiff’s testimony insufficient to impact the apportionment of fault. See Evans v. Lungrin,
97-0541, 97-0577, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735 (“where one or more trial court legal
errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if
2

actors and their duties required by Watson and Soccoro, supra, I would ascribe a
greater degree of fault to NOPD than to University Hospital.
However, facts establishing breaches of the duty to guard are not the lone facts
to be considered. Indisputably, but for the University Hospital’s failure to prevent
Jackson’s access to the surgical scissors he used in the attack, his attack would not
have been so destructive. Therefore, accounting for the injurious effects of
University Hospital’s twofold breaches of its duty to: 1) guard Jackson’s person; and
2) prevent Jackson as a patient-prisoner from having access to surgical instruments,
raises University Hospital’s culpability to a place equal with the NOPD’s singular
breach of its duty to guard. See Socorro, 579 So.2d at 943 (indicating that alongside
a “comparison of the respective degrees of duty” that a comparison of the “respective
degrees of causation” is an appropriate consideration for assigning degrees of fault).
Thus, after accepting the majority’s conclusion that Plaintiff is 10% at fault,2 for the
remainder, I find that ascribing NOPD with 20% fault and University Hospital 20%
fault would comport with requirement to ascribe fault consistent with the highest and
lowest points reasonably within the factfinder’s discretion. See Clement v. Frey,
95-1119, 95-1163, p. 8 (La. 1/16/96), 666 So.2d 607, 611.
the record is otherwise complete, the appellate court should make its own independent de novo
review of the record and determine a preponderance of the evidence.”).
2 As noted earlier, because the fault of the intentional tortfeasor Jackson is beyond review and,
therefore, set at 50%, this court’s analysis is essentially constrained to apportioning the remaining
50%. If the entire 100% fault had been submitted for this court’s review, I might have apportioned
plaintiff’s fault differently.
3

12/11/20
S
UPREME COURT OF LOUISIANA
No
. 2020-C-00462
S
HEROME HANKTON
VS.
THE STATE OF LOUISIANA, MEDICAL CENTER OF LOUISIANA AT
NEW ORLEANS (UNIVERSITY HOSPITAL), THROUGH THE BOARD
OF SUPERVISORS AT LOUISIANA STATE UNIVERSITY AND DR.
JOHN DOE
O
n Writ of Certiorari to the Court of Appeal, Fourth Circuit,
Parish of Orleans Civil
H
ughes, J., concurs in part and dissents in part.
I
agree with the analysis of the well-written opinion but am mindful of the
other opinions of my colleagues. Within the legal parameters available, I would
assign fault at 50% to defendant Jackson, 10% to University Hospital, 20% to
NOPD, and 20% to plaintiff.

SUPREME COURT OF LOUISIANA
No. 2020-C-00462
SHEROME HANKTON
VS.
THE STATE OF LOUISIANA, MEDICAL CENTER OF LOUISIANA AT
NEW ORLEANS (UNIVERSITY HOSPITAL), THROUGH THE BOARD
OF SUPERVISORS AT LOUISIANA STATE UNIVERSITY AND DR.
JOHN DOE
On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of Orleans
Civil
CRAIN, J., dissents with reasons.
Allocations of fault are reviewed under a manifest error standard of review.
Thompson v. Winn-Dixie Montgomery, Inc., 15-477, p. 14 (La. 10/14/15), 181 So.3d
656, 666. The majority correctly found the trial court erred in its allocation of fault;
however, the duty-risk analysis of the alleged negligence of Officer Hankton, the
NOPD, and University Hospital mandates a different allocation.
Under a duty-risk analysis, a plaintiff must prove: (1) the conduct in question
was the cause -in-fact of the resulting harm ; (2) defendant owed a duty of care to
plaintiff; (3) the requisite duty was breached by the defendant ; and (4) the risk of
harm was within the scope of protection afforded by the duty breached. Faucheaux
v. Terrebonne Consolidated Government, 615 So.2d 289 (La.1993).
First, it is uncontested Officer Hankton had a duty to ensure Jackson’s
security. Testimony established law enforcemen t officers are responsible for the
security of prisoners in their custody, not University Hospital. The arresting agency,
here the NOPD, maintained responsibility of the care, custody, and control of the
prisoner at all times. Yet, Jackson was left unsecured and with access to a dangerous
instrument. Officer Hankton admitted she failed to follow protocol, which she
12/11/20

2

learned in training and pursuant to general police practices used over her twelve-
year career with the NOPD. She conceded she did not communicate with the prior
guard, Officer Fulton, regarding Jackson’s violent nature. She also did not
personally ensure Jackson was handcuffed or that the room was free of weapons or
dangerous instruments. Nor did she keep a distance of six feet between herself and
the prisoner. These acts amounted to a breach of a legal duty to secure the prisoner.
The possibility that an unrestrained prisoner would attack is within the risk
encompassed by that duty and was a substantial contributing factor to Officer
Hankton’s injuries. Thus, it was manifest error to assess Officer Hankton’s fault at
just ten percent . Applying the Watson1 factors and the principle enunciated in
Clement,2 I find the lowest percentage of fault that can reasonably be assessed to
Officer Hankton is twenty-five percent.
Next, the NOPD was solely responsible for guarding the prisoner. The
majority recognizes the NOPD “had a duty to guard Jackson,” which encompassed
“a duty of the guards to communicate, to maintain observation of Jackson, to search
Jackson and the premises, and a duty to properly restrain the prisoner,” but found
the “NOPD was clearly no more at fault than University Hospital.” It further held
“the stabbing of Officer Hankton would not have occurred absent the m edical
instruments being left in the hospital room where they were accessible to Jackson.”
I respectfully suggest t hese findings fail to properly consider the law on duty and
risk.
In general, the owner or operator of a facility has the duty of exercising
reasonable care for the safety of persons on his premises and the duty of not exposing
such persons to unreasonable risks of injury or harm. St. Hill v. Tabor, 542 So.2d
499, 502 (L a.1989). This duty does not extend to unforeseeable or

1 Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985).

2 Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607.
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3

unanticipated criminal acts by third persons . Harris v. Pizza Hut of La., Inc., 455
So.2d 1364, 1371 (La.1984). However, when a duty to protect others against
such criminal misconduct has been assumed, liability may be created by a negligent
breach of that duty. Mundy v. Dep't of Health & Human Res., 620 So. 2d 811, 813–
14 (La. 1993). As stated in the Restatement (Second) of Torts § 344 comment (f)
(1965):
If the place or character of his business, or his past experience, is such
that he [the proprietor] should reasonably anticipate careless
or criminal conduct on the part of third persons, either generally or at
some particular time, he may be under a duty to take precautions against
it, and to provide a reasonably sufficient number of servants to afford a
reasonable protection.

Thus, the question presented is not whether University Hospital had a duty to
provide a safe premises and reasonable medical care (including safeguarding
surgical instruments), which it undeniably did, but whether a criminal act by a n
unrestrained prisoner is within the scope of that duty. Here, the risk sought to be
covered by the hospital’s duty is a criminal attack by a n unrestrained violent
prisoner. Assuming, for the sake of argument, such an attack was foreseeable, the
next question, then, is whether University Hospital took reasonable precautions to
address that risk. 3 It did. University Hospital, by written policy, required NOPD
guards to constantly monitor the prisoner and ensure his security. This satisfied
University Hospital’s duty. To require more is to impose a duty upon a hospital to
assess the risk of violence of every patient -prisoner. That is simply not what a
hospital is charged with doing.
In contrast, the NOPD and its employed officers assumed the duty to secure
its prisoners and protect the hospital against any related threats of danger. Officer
Hankton failed to meet the established safety protocol, thereby breaching her duty.
Officer Fulton, the guard who worked the shift immediately preceding Officer

3 Notably, no evidence was presented that the hospital was aware of the nature of the prisoner or of the crimes for
which he was held.
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4

Hankton, failed to communicate the criminal background of Jackson, failed to ensure
Jackson was handcuffed, and failed to sweep the room to guarantee it was free from
dangerous instruments. Indeed, the attack occurred just ten minutes after Officer
Fulton left and Officer Hankton began her shift, prompting defense expert
Armbruster to opine that Jackson’s ability to conceal two weapons indicated a prior
failure by the NOPD to keep an eye on the prisoner.
The risk of an attack was the very reason both officers were required by both
the NOPD and the hospital to guard the prisoner ; thus, the ir duty absolutely
encompassed the risk of an attack , whether from a ho spital instrument or from the
prisoner’s own hands . The breach of that duty was a significant cause of the
damages. Accordingly, I would assign NOPD (for the imputed fault of Officer
Fulton) twenty-five percent fault, which is the lowest reasonable asses sment, and
assign no fault to University Hospital.4

4 The prisoner’s attack cannot be both the foreseen risk which im poses the duty on the officers and at the same time
the basis for a claim by one of the officers for the breach of that very duty. See relatedly, Argus v. Scheppegrell, 472
So.2d 573 (La. 1985).

12/11/20