Marti Elizabeth Simon v. Ronald Theriot, Sheriff

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-562

MARTI ELIZABETH SIMON, ET AL.

VERSUS

RONALD THERIOT, SHERIFF, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 78281
HONORABLE PAUL J. DEMAHY, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Carl J. Rachal
Simon Law Offices
122 Representative Row
Lafayette, Louisiana 70508
(337) 232-2000
Counsel for Plaintiff/Appellant:
Marti Elizabeth Simon, on behalf of her minor children, Haley Nel Richard and
Haven Gage Richard

Patrick B. McIntire
Robin J. Magee
Oats & Marino
100 East Vermilion Street, Suite 400
Lafayette, Louisiana 70501
(337) 233-1100
Counsel for Defendants/Appellees:
Ronald Theriot, Sheriff
St. Martin Parish Sheriff's Office

KEATY, Judge.

Plaintiff appeals the trial court‟s judgment granting of a peremptory

exception in favor of Defendants. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The action giving rise to this litigation involves the wrongful death causes of

action by the survivors, i.e., the minor children of decedent, Christopher Ted

Richard (Ted).

On October 8, 2010, Ted dropped off his girlfriend, Danielle Belle (Belle)

and/or her mother, at her home. Thereafter, Belle and/or her mother called 9-1-1 to

file a complaint against Ted. Members of the St. Martinville City Police and St.

Martin Sheriff‟s units were subsequently dispatched to the scene and arrived,

surrounding the vehicle that Ted was occupying. Ted locked and barricaded

himself inside his vehicle. Thereafter, Ted called his father, Larry Richard (Larry),

his mother, Cheryl Richard (Cheryl), and his ex-wife, Marti Elizabeth Simon

(Simon),1 on his cell phone wherein he indicated he intended to kill himself.

Over the next few hours, Ted made several phone calls to Larry, Cheryl, and

Simon. During one of these calls to his father, Larry told Ted that he was “on his

way” and to “not do anything stupid.” Ted told his father that he would not shoot

himself or do “anything stupid” and that he would wait for his father to arrive at

the crisis scene.

Major Ginny Higgins (Major Higgins) was the head crisis negotiator with

the St. Martin Parish Sheriff‟s Office and was in charge of the crisis negotiations

with Ted. Major Higgins told Larry, Cheryl, and Simon that she did not want them

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Simon and Ted have two minor children, Haley Nel Richard and Haven Gage Richard.

having any further communications with Ted as it would interfere with their

handling of the crisis negotiations. Major Higgins and her assistant, Deputy

Allison Boudreaux (Deputy Boudreaux), also told them that if they spoke by

telephone with Ted, they would be criminally charged with obstruction of justice

and arrested for interfering with their negotiations. After these conversations with

Major Higgins and Deputy Boudreaux, Ted made numerous cell phone calls to

Larry, Cheryl, and Simon. Due to the threat of arrest and incarceration, all of these

cell phone calls went unanswered. Ted subsequently shot and killed himself while

in his own vehicle.2

Simon, on behalf of her minor children, Haley Nel Richard and Haven Gage

Richard, thereafter filed a Petition for Damages against Defendants, Ronald

Theriot, in his capacity as St. Martin Parish Sheriff, and the St. Martin Parish

Sheriff‟s Office. Simon‟s petition alleged that Defendants were negligent and/or at

fault in causing Ted‟s death. Defendants responded by filing an answer with

general denials and a peremptory exception for failure to state a cause of action. In

its initial judgment in favor of Defendants, the trial court stated that Simon failed

to state a cause of action as her petition failed to allege facts which would impose a

duty upon Defendants. The trial court granted Defendants‟ exception but also

allowed Simon thirty days to amend her petition to state a cause of action. After

Simon filed an amended petition for damages, Defendants re-urged their original

exception of no cause of action. The trial court ruled in favor of Defendants,

granted the exception, and dismissed Simon‟s lawsuit with prejudice.

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The facts stated above are the same facts alleged in Simon‟s petition and supplemental
and amended petition.

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Simon is now before this court asserting that the trial court committed

reversible error and abused its discretion by failing to accept the allegations and

facts in her original and supplemental petition for damages as true and correct and

in granting Defendants‟ peremptory exception of no cause of action on the grounds

that Simon failed to allege an affirmative duty prohibiting family members from

participating in crisis negotiations when a person is threatening suicide.

LAW

“In reviewing the judgment of the district court relating to an exception of

no cause of action, appellate courts should conduct a de novo review because the

exception raises a question of law and the lower court‟s decision is based solely on

the sufficiency of the petition.” Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04),

869 So.2d 114, 119.

DISCUSSION

I. Simon’s Mis-Reading of the Trial Court’s Judgment

In her assignment of error, Simon asserts two issues: (a) that the trial court

failed to accept the allegations of fact in the original and supplemental petitions as

true and (b) that the trial court granted the exception of no cause of action because

Simon did not allege an affirmative duty “prohibiting family members from

participating in crisis negotiations when a person is threatening suicide.” In

opposition, Defendants contend that Simon is mistaken on both counts.

As used in the context of the peremptory exception, a cause of action refers

to the operative facts which give rise to the plaintiff‟s right to judicially assert the

action against the defendant. Ramey, 869 So.2d 114. The function of the

peremptory exception of no cause of action is to test the legal sufficiency of the

petition, which is done by determining whether the law affords a remedy on the

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facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru S., Inc.,

616 So.2d 1234, 1235 (La.1993). “On the trial of the peremptory exception

pleaded at or prior to the trial of the case, evidence may be introduced to support or

controvert any of the objections pleaded, when the grounds thereof do not appear

from the petition.” La.Code Civ.P. art. 931. Additionally, “[n]o evidence may be

introduced at any time to support or controvert the objection that the petition fails

to state a cause of action.” Id. Consequently, “the court reviews the petition and

accepts well pleaded allegations of fact as true, and the issue at trial of the

exception is whether, on the face of the petition, the plaintiff is legally entitled to

the relief sought.” Jackson v. State ex rel. Dep’t of Corr., 00-2882, pp. 3-4 (La.

5/15/01), 785 So.2d 803, 806.

In her original petition, Simon alleged the same facts as stated in the factual

section above. She further alleged that Defendants were at fault by:

A. Negligently failing to utilize properly trained negotiators;

B. Negligently failing to properly train the negotiators in question;

C. Negligently failing to follow proper accepted police training
and procedures for crisis negotiations for dealing with suicidal
individuals such as Ted Richard;

D. Negligently failing to allow the deceased‟s father, mother and
ex-wife from assisting in the crisis negotiations;

E. Other such actions and/or inactions in failing to see and/or do
what should have been done under the circumstances in order to
avoid and/or prevent the death of Ted Richard; and

F. Any and all other acts of negligence and/or fault which may be
proven at the trial of this matter.

As mentioned above, the trial court initially ruled in favor of Defendants and

allowed Simon thirty days to amend her petition to state a cause of action. In its

written reasons for judgment dated June 13, 2012, the trial court stated that “[for]

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the purpose of the exception the following facts in the petition are considered

true.” The trial court then recited the facts as alleged by Simon in her petition.

The trial court further stated:

Plaintiff has cited no authority which imposes upon deputies,
negotiating with a person threatening suicide, an obligation to allow
untrained family members to participate in the negotiations. This
court has found no such authority. Plaintiff has failed to allege facts
which impose a duty upon the Sheriff‟s deputies or the Sheriff;
therefore, plaintiff has failed to state a cause of action.

Simon subsequently filed an amended and supplemental petition. She re-

alleged the same facts contained in her original petition. She further alleged that

Defendants were at fault by:

a. Failing to recognize and/or not ignore the risks of suicide,
which were foreseeable;

b. Failing to take reasonable steps necessary to prevent said
suicide;

c. Once it became clear that there was a high risk of suicide, by
failing to adhere to their duty to do everything possible to
prevent such suicide, including, but not limited to, allowing Ted
Richard‟s family to speak with him to attempt to circumvent,
deter and/or prevent such suicide;

d. By failing to act reasonably and prudently under the
circumstances;

e. By acting carelessly and recklessly under the circumstances;
and

f. Any and all other acts of negligence which may be proven at
the trial of this matter.

Despite the supplemental and amended petition, the trial court again granted

the Defendants‟ peremptory exception on December 15, 2012. In its oral reasons

for judgment dated November 16, 2012, the trial court stated that it has to “accept

the facts as true in deciding.” The trial court further stated that it did not see that a

legal duty existed on the part of the Sheriff.

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Contrary to Simon‟s argument that the trial court was demanding evidentiary

proof and based upon the above oral and written reasons for judgment, we find that

the trial court did accept the allegations of the petition and amending and

supplemental petition as true for purposes of the exception. The trial court simply

found that under the circumstances alleged, i.e., an armed, barricaded, and suicidal

individual, the deputies did not owe any duty to Simon that would make them

liable for damages if the suicide took place.

Additionally, the trial court did not grant the exception simply because

Simon failed to allege that there was an affirmative duty. Allegation of a duty

would not be a fact but would be a legal conclusion that is to be disregarded when

analyzing the petition. See Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428

(La. 3/16/10), 35 So.3d 230 (whether a duty is owed is a question of law); see also

Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127 (allegations in counter-

claim that original suit was frivolous and in bad faith were mere conclusions when

unsupported by facts). What the trial court found was that “[p]laintiff has failed to

allege facts which impose a duty upon the Sheriff‟s deputies.” Again, the facts

alleged in this case establish that the deputies were confronted with an armed,

barricaded, and suicidal individual who was never in custody at any time during

the encounter. The trial court correctly concluded that, under these circumstances,

no duty arose on the part of the Sheriff and the deputies. The exception was

granted, not because of a failure to allege a duty, but because under the facts as

pled, viewed in the light most favorable to Simon, no duty arose as a matter of law.

Simon correctly notes that the trial court found that the Sheriff had no legal

duty under the facts of this case to assure the survival of Ted. Simon, however,

argues that duty was not the issue. Rather, Simon argues that the issue was

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whether, under La.Civ.Code art. 2315, the deputies “were negligent in the handling

of the suicide situation.” We find that Simon is mistaken. The issue raised by the

exception was whether a duty existed under the circumstances alleged. It is

axiomatic that in all negligence cases, Louisiana courts have adopted a duty-risk

analysis to determine if liability exists under the facts of a particular case. Brewer

v. J.B. Hunt Transp., Inc., 09-1408, 09-1428 (La. 3/16/10), 35 So.3d 230. The first

element of a duty-risk analysis is whether “the defendant had a duty to conform his

or her conduct to a specific standard of care.” Id. at 240. The existence of a legal

duty is a question of law, and it is appropriate for resolution by an exception of no

cause of action. Id.

Thus, we find that Simon mis-read the trial court‟s judgment. Accordingly,

we find that Simon‟s assignment of error is without merit for the reasons stated

above and below.

II. The Trial Court’s Ruling Regarding the Supplemental and Amended
Petition

Despite Simon‟s protestations, the issue in this case is whether Louisiana

law imposes a duty on the Sheriff to allow family members to participate in crisis

negotiations, or more generally, to assure the survival of a suicidal man who has

locked himself in a car with a loaded shotgun pointed at his head. We find that it

does not.

As mentioned above, the existence of a duty is a question of law. Hardy v.

Bowie, 99-2821 (La. 9/8/99), 744 So.2d 606. “The inquiry is whether the plaintiff

has any law—statutory, jurisprudential, or arising from general principles of

fault—to support his claim.” Id. at 614. In Hardy, police officers were responding

to the sound of a gunshot within a crowd. One of the issues was whether they

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owed a duty to bystanders, and particularly the decedent who was shot soon after

the police began their search for the gun-wielding assailant. The court noted that

“[g]enerally, a „police officer has a duty to perform his function with due regard

for the safety of all citizens who will be affected by his action.‟” Id. at 614

(quoting Prattini v. Whorton, 326 So.2d 576 (La.App. 4 Cir. 1976)). Citing

Mathieu v. Imperial Toy Corp., 94-952 (La. 11/30/94), 646 So.2d 318, the Hardy

court observed that police officers are “held to choosing a course of action which is

reasonable under the circumstances.” Hardy, 744 So.2d. at 614.

We note that the above cases have acknowledged tort protection for the

benefit of innocent bystanders and for the protection of suspects from battery by

the police. Nevertheless, Simon has not provided jurisprudence which stands for

the proposition that there exists a duty upon police officers to allow family

members to participate in crisis negotiations. Likewise, we have been unable to

find jurisprudence to that effect.

The Louisiana Supreme Court has upheld an exception of no cause of action

in a slightly different wrongful death by suicide claim. See Ramey, 869 So.2d 114.

In Ramey, the decedent physician committed suicide after being told over the

phone that he had failed a random drug screen, knowing that the drug test would

likely cost him his medical license. The plaintiffs sued the people who had advised

the decedent of the test result for negligently failing to take precautions against the

risk of suicide when such risk was foreseeable under the circumstances. The

supreme court granted the exception of no cause of action, though it remanded the

case to allow plaintiffs another opportunity to amend to cure the exception. Justice

Knoll, concurring with the holding of the failure to state a cause of action and

dissenting from the decision to remand rather than dismiss the suit, noted that the

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pleadings did not articulate any legal duty given “the strong policy considerations

against assigning delictual responsibility for the suicidal acts of another, and the

great reluctance of our courts to extend such liability, especially in non-custodial

circumstances.” Id. at 120. Justice Knoll also noted the highly speculative nature

of the claim and the general rule that “[p]leadings which establish only possibility,

speculation, or unsupported probability do not suffice to establish a cause of

action.” Id. at 120-21.

Other states have addressed the specific issue of police liability in the

context of an armed and suicidal individual. They have found no duty to allow

participation by family members in the crisis negotiations and have found no duty

to assure survival of the suicidal person at all. In Ferreira v. City of East

Providence, 568 F.Supp.2d 197 (D.R.I. 2008), Patricia Ferreira shot herself while

barricaded in a car. Her suicide came after her brother, against police orders, had

draped himself over the windshield of the car, from which he had to be removed

and placed in handcuffs in a police cruiser. In Ferreira, as in the present case, the

allegation was that if only the police had allowed the brother to continue the

dialogue, the suicide could have been prevented. The court noted that the police

were justified in removing the brother from the vicinity of the car and that to do

otherwise “would have placed Ferreira [the brother], who was in a stressed and

upset state, effectively in charge of the situation.” Id. at 207. The court found that

the issue was whether the officers owed any duty to protect Patricia from herself.

It found that they did not.

In Adams v. City of Fremont, 68 Cal. App. 4th 243, 80 Cal. Rptr. 2d 196

(1998), the court found that officers responding to a situation involving a person

threatening suicide with a loaded weapon have no legal duty of care that would

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expose them to liability if their conduct fails to prevent the suicide from being

carried out. In Adams, the court noted that police officers in the presence of an

armed and suicidal person are concerned with several interests: the physical safety

of the community, including themselves, other citizens, and family members; the

physical safety of the suicidal person, and; the psychological sanctity of family

members. The court held that “imposing liability for the negligent handling of a

threatened suicide improperly elevates the interests in preserving the life of the

person threatening suicide over the interests of public safety and the physical

safety of police officers.” Id. at 272.

In the present case, Simon contends that the out-of-state cases examined

above did not involve exceptions of no cause of action. We note, however, that

these cases were decided as a matter of law based on the issue of whether to

recognize a legal claim under circumstances virtually identical to the case at hand,

i.e., police dealing with an armed and suicidal individual. Both cases held that no

such cause of action should be allowed.

Simon has likewise cited cases in support of her assignment of error. In

Garza v Delta Tau Delta Fraternity Nat’l, 06-698 (La. App. 1 Cir. 3/28/07), an

unpublished decision, the allegation was that a police officer refused to take the

complaint of a rape victim, told her that no official action would be taken against

the alleged rapist, and told her that she would be sued for defamation if she

continued to complain. The gist of the case was that the officer encountered a non-

suicidal person and helped drive her to suicide. In the present case, however, the

petition and supplemental and amended petition makes it clear that the suicidal

person in this case was already barricaded in a car with a loaded gun threatening

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suicide when the police encountered him. Thus, the circumstances in this case are

easily distinguishable from Garza.

Simon also cites the case of White v Walker, 950 F.2d 972 (5th Cir. 1991), a

Mississippi federal case. The allegation in White was that the suicidal person was

never in contemplation of taking his own life until the encounter with the officer.

The court upheld the exclusion of a psychologist‟s testimony to the effect that the

officer‟s conduct contributed to the suicide. It reversed and remanded solely on

the issue of whether there was a Fourth Amendment violation of the suicidal

person‟s rights as a result of the traffic stop that began the encounter. The issue

turned on whether there was a violation of Mississippi traffic law. All other claims

were dismissed. We find that this case does not stand for the proposition that

officers confronted with an armed, barricaded, and suicidal individual have a duty

to save the life of the suicidal individual which trumps their duty to others at risk.

Finally, Simon cites Gray v City of Detroit, 399 F.3d 612 (6th Cir. 2005),

where the decedent committed suicide while in a police cell at a hospital. Since

Gray committed suicide while in police custody, Gray is distinguishable from the

facts in the present case as Ted was not in custody at the time of his suicide.

Thus, Simon‟s assignment of error is without merit.

DECREE

The judgment rendered by the trial court is affirmed. All costs of this appeal

are assessed against Marti Elizabeth Simon, on behalf of her minor children, Haley

Nel Richard and Haven Gage Richard.

AFFIRMED.

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