Woodrow Wilson, Jr. v. Town of Mamou

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-409

WOODROW WILSON, ET AL.

VERSUS

THE TOWN OF MAMOU, ET AL.

**************
APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, DOCKET NO. 65721-A
HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE

**************
SYLVIA R. COOKS
JUDGE
**************

Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

Amy, J., concurs in the result and assigns written reasons.

JUDGMENT AFFIRMED AS AMENDED.

Jonathan C. Vidrine
510 W. Magnolia Street
Ville Platte, Louisiana 70586
(337) 363-2772
COUNSEL FOR PLAINTIFFS:
Woodrow Wilson, et al.

Lisa E. Mayer
John F. Wilkes
Joy C. Rabalais
Dayna M. Edwards
Lana Duhon
200 West Congress Street, Suite 1000
Post Office Box 4305
Lafayette, Louisiana 70502-4305
(337) 232-1604
COUNSEL FOR DEFENDANTS:
Town of Mamou and Chief Herman Celestine, in his official
capacity as Chief of Police of the Town of Mamou

COOKS, Judge.

STATEMENT OF THE CASE

The Town of Mamou and the Chief of Police, Herman Celestine, appeal the

judgment of the trial court finding the Town liable for damages for the death of

Yvette Michelle Wilson. The plaintiffs appeal asking for an increase in wrongful

death damages and survival damages. We affirm the judgment of the trial court on

liability but find the trial court erred in failing to assign any percentage of fault to the

perpetrator of the murder, Harry Richard, Jr. Accordingly, we amend the judgment

of the trial court to reflect Richard is 50% at fault in the death of Ms. Wilson and

increase the wrongful death damages to $150,000 for each of the four children. We

also award $50,000 for survival damages.

STATEMENT OF THE FACTS

This case arises out of a murder/suicide which occurred in the small town of

Mamou, Louisiana. On December 10, 2003 at approximately 12:50 p.m. Conray

Frank heard screams coming from his neighbor’s home. He ran over to lend

assistance and found Yvette Michelle Wilson on the ground in the yard holding her

new baby. She was badly beaten, bruised and bleeding from cuts on her face. Mr.

Frank learned the perpetrator was her boyfriend, and the father of her four children,

Harry Richard, Jr. Mr. Frank immediately called the police and Richard fled the

scene. Lt. Charles “Tiny” Israel of the Mamou police department responded to the

call. When Lt. Israel arrived, he saw Ms. Wilson was bruised and bleeding. He

testified he proceeded with caution because he “was worried that maybe the boyfriend

was still there.” Lt. Israel asked Mr. Frank to take Ms. Wilson to the police station

while he “made the block” to look for Richard. Unable to locate Richard, he returned

to the police station to fill out the paperwork and take pictures of Ms. Wilson’s

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battered condition. Lt. Israel clearly assessed the seriousness of the threat to Ms.

Wilson and recognized his responsibility to protect her. He testified Ms. Wilson

communicated to him that she believed Richard was dangerous and she wanted him

arrested and kept in jail because she feared for her life. Lt. Israel testified:

It’s because she was so scared to death that that man was gonna walk in
to the police station and kill her, and I kept her in my office and I said
you have to [press charges], and then it’s my duty as a police officer to
see when someone’s brutalized like she was to take the appropriate
action and put a warrant out on him.

Lt. Israel testified the police department was shorthanded at the time of the

incident. However, the record reflects there were several other officers on duty and

in the police station at the time of the incident but Lt. Israel did not communicate any

urgency in apprehending Richard. Both Detective Todd Otis and Chief of Police

Herman Celestine testified they would have assisted Lt. Israel in locating Richard or

escorting Ms. Wilson to safety if they had been asked. After filling out the required

forms, Lt. Israel called Faith House in Lafayette to secure placement for Ms. Wilson

and her four children. Although, Lt. Israel testified Ms. Wilson was not interested in

going to Faith House, this assertion was flatly refuted by Jackie Anderson of Faith

House, who testified Ms. Wilson was scared and wanted shelter from Richard. Ms.

Anderson stated Ms. Wilson was concerned for the welfare of her children and

intended to go to Faith House, that day, as soon as she was able to pick her children

up from school. Ms. Anderson testified based on her conversation with Ms. Wilson,

Faith House began making arrangements for her arrival.

Ms. Wilson then called her mother, Laura, to come down to the police station.

Ms. Wilson remained at the police station until approximately 3:00 p.m. She left

with her mother, and without police protection, to gather her children from school and

to begin preparations to flee to Faith House. Lt. Israel chose not to accompany her

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to her mother’s house but instead sent Patrolman Al Moore to secure a warrant from

the duty judge for Richard’s arrest. Two hours later at approximately 5:00 p.m.,

while Officer Moore was busy getting a warrant, and Lt. Israel was going off duty,

Richard appeared at Ms. Wilson’s mother’s house, brandishing a gun. There was

pandemonium in the house as other family members tried in vain to protect Ms.

Wilson, and her children. Richard stormed through the house and found Ms. Wilson

in the hall. He shot twice and missed. He chased her outside into the yard, and shot

her in the back. Ms. Wilson died shortly thereafter. After killing Ms. Wilson,

Richard turned the gun on himself.

Woodrow and Laura Wilson filed a wrongful death and survival action on

behalf of their daughter, Yvette Michelle Wilson, and her four children against the

Town of Mamou and Herman Celestine, in his official capacity as Chief of Police.

The petition alleged the police officers of the Town of Mamou breached their duty

in failing to detain and arrest Harry Richard, Jr. knowing he was a danger to Ms.

Wilson, failing to escort her to safety pending the arrest of Richard, failing to adopt

proper police procedures and failing to properly train police officers regarding their

duty to protect victims of domestic violence. Following a bench trial, the trial court

found the police officers negligent and awarded $60,000 in damages to each of Ms.

Wilson’s four children and $5,465.80 for funeral expenses.

LAW AND DISCUSSION

Immunity of the Town of Mamou

We find no merit in the Town of Mamou’s assertion that it is immune from the

imposition of liability due to either La.R.S. 46:2142 or La.R.S. 9:2798.1. The former

statute provides that: “Any law enforcement officer reporting in good faith, exercising

due care in the making of an arrest or providing assistance pursuant to the provisions

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of R.S. 46:2140 and 2141 shall have immunity from any civil liability that otherwise

might be incurred or imposed because of the report, arrest, or assistance provided.”

La.R.S. 46:2142. However, in this case, liability does not stem from the report, arrest

or assistance provided. Rather, it is related to the failure to assist. Neither is La.R.S.

9:2798.1(B) applicable in this situation as the statute provides: “Liability shall not be

imposed on public entities or their officers or employees based upon the exercise or

performance or the failure to exercise or perform their policymaking or discretionary

acts when such acts are within the course and scope of their lawful powers and

duties.” (Emphasis added.) Louisiana Revised Statutes 46:2140 is a legislative

mandate and, thus, its requirements on the part of the officer are neither policymaking

nor within his or her discretion. Accordingly, we find the immunity statutes

inapplicable.

Standard of Review

A trial court’s findings of fact may not be reversed absent manifest error or

unless it is clearly wrong. Stobart v. State of Louisiana, through Dep’t of Transp.

and Dev., 617 So.2d 880 (La.1993). When reviewing the trial court’s findings of fact,

the appellate court must review the entire record to determine whether the trial court’s

conclusion was a reasonable one. Id. If the trial court’s findings are “reasonable in

light of the record reviewed in its entirety, the court of appeal may not reverse, even

if convinced that had it been sitting as a trier of fact, it would have weighed the

evidence differently.” Id. at 882. We have reviewed the record and find the

testimony amply supports the decision of the trial court finding liability on the part

of the Town of Mamou in the death of Ms. Wilson.

Liability of the Town of Mamou

The liability of the Town of Mamou is analyzed under the duty-risk theory

of recovery. Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606. Under the duty-
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risk analysis, the plaintiff must prove the conduct in question was a cause-in-fact of

the harm, the defendant owed a duty to the victim, the requisite duty was breached by

the defendant and the risk of harm was within the scope of protection afforded by the

duty breached. Hardy, 744 So.2d 606; Berry v. State, through Dep’t of Health and

Human Res., 93-2748 (La. 5/23/94), 637 So.2d 412. Whether a duty is owed to the

plaintiff is a question of law. Stroik v. Ponseti, 96-2897 (La. 9/9/97), 699 So.2d

1072, citing Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289 (La. 1993);

Hardy, 744 So.2d 606.

The duty of a police officer in a domestic abuse situation is found in

Louisiana Revised Statutes 46:2140. When a police officer has reason to believe a

family member, household member or dating partner has been abused, the officer

“shall immediately use all reasonable means to prevent further abuse[.]” La.R.S.

46:2140(A)(emphasis added). Reasonable means include: (1) arresting the

perpetrator, in the case of a felony, with or without a warrant; (2) assisting the victim

in obtaining medical treatment necessitated by the battery; (3) arranging for, or

providing, or assisting in the procurement of transportation for the abused person to

a place of shelter or safety; and, (4) notifying the abused person of his right to initiate

criminal or civil proceedings, the availability of a protective order, and the

availability of community assistance for domestic violence victims. La.R.S.

46:2140(A). This provision is part of the Protection from Family Violence Act and

was prompted by the growing problem of domestic abuse in Louisiana. The Act

authorizes the Department of Health and Human Resources to establish programs for

the development of community based shelters for victims of family violence and

provides funding for those programs.1 Louisiana Revised Statutes 46:2131 provides

1
The Statement of Purpose is found in La.R.S. 46:2121, and provides, in relevant part:
A. The legislature hereby finds and declares that there is a present and growing

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a “civil remedy” for the victims of domestic abuse. The legislature recognized law

enforcement agencies were often not as aggressive in the enforcement of criminal

laws when the battery occurred within the home. By providing a civil remedy, the

legislature signaled a desire for a definite change in the policies and procedures of the

police departments in the handling of abuse situations and a more aggressive

prosecution of the perpetrators of domestic violence. Louisiana Revised Statutes 46:

2131 provides, in relevant part:

The purpose of this Part is to recognize and address the
complex legal and social problems created by domestic
violence. The legislature finds that existing laws which
regulate the dissolution of marriage do not adequately
address problems of protecting and assisting the victims of
domestic abuse. The legislature further finds that previous
societal attitudes have been reflected in the policies and
practices of law enforcement agencies and prosecutors
which have resulted in different treatment of crimes
occurring between family or household members and those
occurring between strangers. It is the intent of the
legislature to provide a civil remedy for domestic violence
which will afford the victim immediate and easily
accessible protection. Furthermore, it is the intent of the
legislature that the official response of law enforcement

need to develop innovative strategies and services which will reduce and treat the
trauma of family violence. Available studies documenting police statistics indicate
that thousands of persons in this state are regularly beaten, tortured, and, in many
cases, killed by spouses or persons with whom they are living in a primary relationship.
These studies further indicate that victims of family violence come from all
socioeconomic classes and ethnic groups, though it is the poor who suffer most from
family violence, since it is less likely that they have immediate access to private
counseling and shelter for themselves and their children. Children, though often not
physically assaulted, suffer deep and lasting emotional effects, and it is most often the
children of those parents who commit family violence that perpetuate the cycle by
abusing their spouses.
B. The legislature further finds and declares that there is a high incidence of deaths
and injuries sustained by law enforcement officers in the handling of domestic
disturbances. A definite correlation between family violence and marital homicide has
been established, yet police arrests for family violence are low, and victims are
reluctant to press charges. Furthermore, instances of family violence are considered
to be the single most unreported crime in the state.
C. It is the intention of the legislature to achieve a reduction in serious and fatal
injuries to the victims of family violence and to clarify the problems, causes, and
remediation of family violence by providing that necessary services including shelter,
counseling, and referrals to social services, medical care and legal assistance in the
form of a family violence center.

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agencies to cases of domestic violence shall stress the
enforcement of laws to protect the victim and communicate
the attitude that violent behavior is not excused or
tolerated.

The issue presented is whether, considering the totality of the

circumstances, without the benefit of hindsight, the police officers took reasonable

measures to protect Ms. Wilson from harm. “Officers are held to choosing a course

of action which is reasonable under the circumstances.” Latiolais v. Guillory, 99-815,

p.8 (La.App. 3 Cir. 11/3/99), 747 So.2d 675, 680, quoting, Hardy, 744 So.2d 606.

This court in Latiolais addressed the liability of the sheriff’s department for the death

of a mother and her son at the hands of the estranged husband. In Latiolais, the

deputy sheriff was called to the bus/camper of the victim to assist in removing the

former spouse from the premises. The deputy found the couple in their

undergarments in the camper. When asked to leave, the estranged husband was upset

that the sheriff’s department had been called but calmed down, got in his truck and

drove off. The deputy then assisted the victim and her children with moving her

clothes from the camper to her vehicle. He advised the victim to drive around while

he informed her mother she would be staying with her that night. While the deputy

was on the porch talking to the victim’s mother, he heard shots and glass breaking.

The deputy discovered the former husband had returned and shot the victim and her

son in the vehicle. This court found the circumstances surrounding the incident did

not alert the deputy that there was an “impending danger” to the victim. When called

to the scene the deputy did not observe a fight or altercation. The perpetrator did not

act in a violent way toward the deputy or the victim. The deputy had effectuated the

removal of the former husband and was assisting the victim and her children to her

vehicle.

The facts in the present case are distinguishable from the facts in Latiolais.

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Lt. Israel was fully aware of the intensity of the situation based on the severity of the

beating and Ms. Wilson’s fear for her life. He immediately perceived Richard was a

dangerous man and proceeded with caution, noting: “I was worried that maybe the

boyfriend was still there.” Lt. Israel also recognized his duty was two-fold: to protect

the victim and apprehend the abuser. He testified:

It’s because she was so scared to death that that man was
gonna walk in to the police station and kill her, and I kept
her in my office and I said you have to [press charges], and
then it’s my duty as a police officer to see when someone’s
brutalized like she was to take the appropriate action and
put a warrant out on him.

Although Lt. Israel recognized his responsibility, he made only a cursory

attempt to locate Richard, did not ask for assistance in apprehending Richard, and

allowed Ms. Wilson to leave the police station unescorted to gather her children and

pack her belongings before going to Faith House. This he did despite the fact that he

testified that Ms. Wilson was “[v]ery bloody, beat up, brutalized and, you know, in

bad condition” and “she could barely move.” He further confirmed Ms. Wilson had

been “beat so badly, she was purely exhausted. Her emotional state was in an –just

like in limbo. I mean – I mean, I don’t think she could make – she could make a

decision – you know, a good decision because she had been beat up so badly.”

Chief of Police Herman Celestine acknowledged the Mamou police

department has no policies or procedures for the handling of domestic violence cases.

He admitted this was a failure on the part of the department: “We should have one,

it should have been in the handbook.” Chief Celestine testified it is customary in

these types of situations for the police to escort the victim back to the house to pack

clothes and prepare to leave. When asked why Lt. Israel did not escort Ms. Wilson

to her mother’s home, he stated:

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Well I think he should of, but I mean he was getting off,
the other officer was coming on, he was getting off and he
went to look for Harry Richard, probably if he could have
find him before he gets back to her.

Chief Celestine stated he would have secured assistance in apprehending

Richard while Ms. Wilson was in the protection of the police station. The plaintiff

offered the testimony of Detective Todd Otis. Detective Otis testified he was in the

station at the time Ms. Wilson came in and would have assisted Lt. Israel if asked.

He also testified since this incident, under the new chief of police, the department

implemented a new policy which requires the police officers to protect the victim

until the perpetrator is arrested.

The plaintiff also offered the testimony of Officer Al Moore. He was asked

by Lt. Israel to obtain a warrant for Richard’s arrest. He testified:

I came back to the police department and when I walked
into the office I said to Mr. Israel I have the warrants
signed and at the same time that’s when the dispatcher
came on that there had been a shooting at 817 9th Street.

The plaintiff offered the testimony of Dr. Wade Schindler, an expert in

police procedure. Dr. Schindler is a professor of Criminal Justice and Criminology

at Tulane University and president of Orleans Regional Security Institute, a

consulting firm. Dr. Schindler opined the Town of Mamou was negligent for failure

to adequately supervise, train and implement policies and procedures for the safety

of the people of Mamou. Dr. Schindler testified Lt. Israel should not have allowed

a neighbor to transport Ms. Wilson to the station and should not have allowed Ms.

Wilson to leave without police protection until Richard was apprehended. Even the

defendant’s expert witness, Dr. Larry Gould, from the East Baton Rouge Parish

Sheriff’s office, acknowledged Lt. Israel was “not active” in procuring transportation

for Ms. Wilson and ensuring her safety. Dr. Gould testified:

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What I can say is the longer the police have her in their
protection the longer that she’s in the protection of
somebody else, the less likelihood statistically, I don’t
know about her specific case, statistically the likelihood of
an additional assault goes down, that’s what the studies
say.

In this case, the murder occurred within hours of the initial call to the police.

It is within this critical time period, when passions have not cooled, that the

likelihood of additional harm to the victim increases. Given the severity of the

beating, and the fear of Ms. Wilson, it was foreseeable that Richard posed “an

impending danger” to Ms. Wilson and Lt. Israel should have implemented measures

to ensure her safety until Richard was apprehended. While the Mamou police

department has no policies or procedures for the handling of these cases, Chief

Celestine testified customarily the police escort the victim to her home to retrieve her

clothes or to a place of safety. That was not done in this case. Lt. Israel allowed Ms.

Wilson to leave the station unescorted while Richard was still at large. Moreover,

we do not find Lt. Israel was aggressive in his search for Richard. He did not enlist

the assistance of the officers on duty at the station at the time of the incident. Instead

he made what the trial court described as only a “token effort to locate Harry Richard,

Jr.” 2

Lt. Israel was not an inexperienced officer. He has worked in law

enforcement for twenty-eight years and has routinely handled domestic abuse cases.

However, the “business as usual” way of handling these cases is what the legislature

is seeking to change. “Societal attitudes” which minimize the significance of

2
Lt. Israel asserted for the first time at trial that he left the police station while Ms. Wilson
was there to search for Richard. The trial court apparently did not find this statement credible and
found Lt. Israel performed a “two or three minute search at the outset [and] no one did anything other
than patrolman Al Moore who was at the home of Judge Thomas Fuselier seeking the Judge’s
signature on an arrest warrant while Harry Richard, Jr. was gunning down Michelle Yvette Wilson.”
Further, Al Moore testified when he secured the warrant and brought it to the station, Lt. Israel was
at the station and not on patrol.

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violence in the home “have been reflected in the policies and practices of law

enforcement agencies . . . it is the intent of the legislature that the official response

of law enforcement agencies to cases of domestic violence shall stress the

enforcement of laws to protect the victim and shall communicate the attitude that

violent behavior is not excused or tolerated.” La.R.S. 46:2131. Police officers

cannot always guarantee the safety of the victim, but they must take all reasonable

measures under the circumstances to offer protection to the victim until the aggressor

is apprehended or the officer is reasonably certain the situation is no longer

dangerous. Under the circumstances presented in this case, we find Lt. Israel and the

Mamou police department should have taken reasonable measures to escort Ms.

Wilson to a place of safety until Richard was apprehended. Accordingly, we affirm

the decision of the trial court finding liability on the part of the Town of Mamou.

The defendants assert the negligence of Ms. Wilson, Ms. Wilson’s family

and the intentional actions of Harry Richard as contributing factors in Ms. Wilson’s

death. We do not find Ms. Wilson was negligent in leaving the police station with her

mother. The testimony by Ms. Anderson of Faith House and Laura Wilson, her

mother, establish without a doubt that Ms. Wilson knew Richard was violent and it is

reasonable to conclude she was afraid he may harm her children. Ms. Wilson’s desire

to gather her small children and take them with her to Faith House was not

unreasonable under the circumstances. By leaving the station, she was doing the one

thing every mother would do - protect and care for her children. The fact that Richard

murdered Ms. Wilson in the presence of her family and then committed suicide

demonstrates his instability and confirms that Ms. Wilson’s fears were not

unreasonable. 3 Moreover, we note Lt. Israel was fully aware that Ms. Wilson was in

3
We note in Latiolais, 747 So.2d 675, the estranged husband in a fit of violent rage murdered
both the wife and son.

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no condition to make “a good decision because she had been beat up so badly.” We

specifically reject the assertion that Ms. Wilson’s family could have prevented the

tragedy which occurred. Ms. Wilson was taken to her mother’s home as a temporary

shelter to gather her children before leaving for Faith House. When Richard arrived

he was brandishing a gun and began shooting in the house. Ms. Wilson had just come

from the police station. It was the police department’s responsibility, not the family’s,

to protect Ms. Wilson. We find no merit in this argument. However, we find the trial

court erred in failing to assign fault to Richard in causing the death of Ms. Wilson.

While the police officers did not take reasonable measures to protect Ms. Wilson, that

action alone would not have resulted in the death of Ms. Wilson without Richard’s

participation. See, e.g. Waters v. Brookshire Grocery Company, 07-203 (La.App. 3

Cir. 11/7/07), __So.2d __; Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234

(La.App. 3 Cir. 1993), writ denied, 617 So.2d 1234. Accordingly, we amend the

judgment to reflect Harry Richard, Jr. is 50% at fault.

Damages

The plaintiffs assert the trial court erred in failing to award survival damages

in this case. The medical testimony indicates that Ms. Wilson was dead upon her

arrival at Savoy Medical Center. In support of the survival action, the plaintiffs

submitted the testimony of Ms. Wilson’s sister who stated Ms. Wilson took a silver

ring from her finger, gave it to her and said “bye.” Even though the trial court

obviously found the sister’s testimony was not credible, the record clearly establishes,

as borne out by the witnesses, that several minutes prior to the fatal shooting, Ms.

Wilson was fully aware Richard had entered the home with a gun and was searching

for her. She had to be in extreme fear for her life as he chased her through the house

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and fired two shots. Her fear and anxiety, no doubt, intensified when she realized

Richard was only a few steps behind her and was within firing range. It is reasonable

to conclude she knew her death was imminent. “The survival action in a suit resulting

from the death of a tort victim includes recovery for pain and suffering, loss of

earnings and other damages sustained by the decedent up to moment of death.” Prince

v. Mattalino, 583 So.2d 541, 543 (La.App. 3 Cir. 1991). “Damages for pain and

suffering are properly awarded if there is a scintilla of evidence of any suffering or

pain or the part of the deceased by his actions or otherwise.” Id. The trial court erred

in failing to award any survival damages in this case. We find an amount of $50,000

is a reasonable amount for survival damages.

The trial court awarded $60,000 to each of the children for the wrongful

death of their mother. The elements of damage for a wrongful death action are loss

of love, affection, companionship, services and loss of support, medical expenses and

funeral expenses. Simmons v. CTL Distrib., 03-1301 (La.App. 5 Cir. 2/23/04), 868

So.2d 918. Wrongful death awards may be based on the degree of affection with the

deceased, the amount of guidance needed by the minor child and the closeness of the

family relationship. Williams v. City of Monroe, 27,065 (La.App. 2 Cir. 7/3/95), 658

So.2d 820, writ denied, 664 So.2d 451,452. An appellate court may disturb an award

of damages only when the record clearly shows that the factfinder abused its broad

discretion in making the award. Scott v. Pyles, 99-1775 (La.App. 1 Cir. 10/25/00), 770

So.2d 492, writ denied, 782 So.2d 633. After a determination that an award

constitutes an abuse of discretion based on the particular injuries sustained and their

effect on the particular injured person, the appellate court may reduce or increase the

award to the highest or lowest amount reasonably within the factfinder’s discretion.

Wilson v. Nat’l Union Fire Ins. Co., 27,702 (La.App. 2 Cir. 12/6/95), 665 So.2d 1252.

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Ms. Wilson had four surviving children, under the age of six. The baby was only three

weeks old at the time of the shooting. Laura Wilson, Ms. Wilson’s mother, testified

regarding the close relationship the children had with their mother. She stated the

older child is going to counseling twice a week since the death of his mother. All four

children will be deprived of the love, affection and the support of their mother for their

entire live. We have reviewed the case law and find the lowest reasonable recovery

for the wrongful death of a mother, given the ages of the children, is $150,000 to each

child. See McGrail v. Lee, 35,756 (La.App. 2 Cir. 4/3/02), 814 So.2d 729, which

affirmed a jury award of $750,000 each to three children, ages nine, eighteen, and

twenty-one. The court found the award “approach[es], but do[es] not exceed the

highest amount reasonably within the broad discretion of the jury.” Id. at 736. In

Simmons, 868 So.2d 918, the court affirmed an award of $300,000 to the child; See

also Brooks v. City of Baton Rouge, 558 So.2d 1177 (La.App. 1 Cir. 1990), writ

denied, 566 So.2d 982. Plaintiff correctly points out in Ford v. State, through Dep’t

of Transp. and Dev., 99-1297 (La.App. 3 Cir. 4/12/00), 760 So.2d 478, writ denied,

00-1935 (La. 9/27/00), 769 So.2d 1214, writ denied, 00-1864 (La. 9/29/00), 770 So.2d

350, writ denied, 00-1938 (La. 9/29/00), 770 So.2d 352, this court awarded $150,000

to a daughter for the wrongful death of her seventy-five year old mother and in Monk

v. State, through Dep’t of Transp. and Dev., 05-97 (La.App. 3 Cir. 6/29/05), 908 So.2d

688, writ granted, 05-2337(La. 3/24/06), 925 So.2d 1238, order recalled, 05-2337

(La. 10/17/06), 940 So.2d 642, this court awarded the children $500,000 for the death

of their mother. Accordingly, we amend the judgment to increase the award to

$150,000 to each child.

DECREE

Based on the foregoing review of the record, we affirm the decision of the

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trial court finding liability on the part of the Town of Mamou. We amend the

judgment to reflect Harry Richard, Jr. is 50% at fault in causing the death of Ms.

Wilson and we increase the damage award for the wrongful death of Ms. Wilson to

$150,000 to each child. We award $50,000 for survival damages. In all other respects

the judgment is affirmed. All costs of this appeal are assessed to the Town of Mamou.

JUDGMENT AFFIRMED AS AMENDED.

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NUMBER 07 - 409

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

WOODROW WILSON, ET AL.

VERSUS

THE TOWN OF MAMOU, ET AL.

AMY, J., concurring in the result.

I respectfully concur in the result. This is an instance in which the legislature

has provided instruction to law enforcement to use “all reasonable means to prevent

further abuse.” However, the question of what particular actions constitute “all

reasonable means” remains an open one for the courts. This is particularly true where

the police are not exercising custodial control over the victim.

Here the trial court was faced with a situation in which the police officer

offered medical treatment or assistance with contacting a shelter, but the victim either

refused or decided not to pursue further assistance. Nevertheless, given the testimony

surrounding Miss Wilson’s time at the police department and her return to her

mother’s home, the trial court could have concluded that the police officer’s

assistance was simply inadequate. The record supports a determination that the

officer failed to explain the immediacy and danger of not reporting to the shelter to

either the victim or her mother. It also supports a finding that the department could

have reasonably offered further protection in transport to the shelter and that the

failure to do so was a cause of Miss Wilson’s death. Thus, I find that the imposition

of liability on the Town of Mamou must be affirmed.

I join in the majority’s determinations regarding statutory immunity,

apportionment of fault, and assessment of damages.