Opinion
NUMBER 2016 CA 0719
05-05-2017
SHAMEKIA AND CEON SAUCEBERRY, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, CEON SAUCEBERRY JR., TRE'VEON SAUCEBERRY AND JOURNE' SAUCEBERRY v. CRAIG WEBRE, IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE PARISH OF LAFOURCHE, THE LAFOURCHE PARISH SHERIFF'S OFFICE, DEPUTY DANNY TOUPS, ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY
Louis C. LaCour, Jr. Laurie Briggs Young New Orleans, Louisiana Attorneys for Appellants Defendants - Craig Webre, Lafourche Parish Sheriff's Office and Deputy Danny Toups Michael C. Palmintier Baton Rouge, Louisiana Attorney for Appellees Plaintiffs - Shamekia Sauceberry and Ceon Sauceberry, et al.
NOT DESIGNATED FOR PUBLICATION
Appealed from the 17th Judicial District Court In and for the Parish of Lafourche, Louisiana
Trial Court Number 118259 Honorable Walter I. Lanier, III, Judge Louis C. LaCour, Jr.
Laurie Briggs Young
New Orleans, Louisiana Attorneys for Appellants
Defendants - Craig Webre, Lafourche
Parish Sheriff's Office and Deputy
Danny Toups Michael C. Palmintier
Baton Rouge, Louisiana Attorney for Appellees
Plaintiffs - Shamekia Sauceberry and
Ceon Sauceberry, et al. BEFORE: GUIDRY, PETTIGREW, WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
The defendants/appellants, Craig Webre, in his capacity as the Sheriff of the Parish of Lafourche, the Lafourche Parish Sheriff's Office ("LPSO"), and Deputy Danny Toups appeal an April 6, 2016 judgment of the trial court in a personal injury action wherein the trial court found the defendants 90% at fault for damages sustained by the plaintiffs, and denied the defendants' claims of immunity under La. R.S. 9:2798.1. For the following reasons, we affirm the judgment of the trial court.
Factual and Procedural Background
This is the second appeal filed in connection with the underlying suit. See Sauceberry v. Webre, 2014-1556 (La. App. 1st Cir. 6/5/15), 2015 WL 3547745. The facts and procedural history relevant to the instant appeal are set forth below. In 2010, Mrs. Sauceberry was employed by Start Corporation as a domestic violence case manager. In August of 2010, LPSO employees offered a three-day Rape Aggression Defense ("RAD") self-defense course at Mrs. Sauceberry's workplace. Mrs. Sauceberry's position required that she obtain a certain number of training hours, and the RAD course was offered in connection with that requirement. The RAD self-defense class provided instruction and training in certain self-defense techniques and culminated in participant involvement in simulated abductions or attacks on the female participants by law enforcement personnel. The training involved direct physical contact between the law enforcement personnel and the female participants.
Before the RAD course began, Mrs. Sauceberry signed several forms provided by RAD, including a Registration/Release Form, a "Training Safety Precautions and Expectations" form, and a Wellness Information Form. The release form signed by Mrs. Sauceberry contains a provision stating the participant "will not participate in any aspect of the program she is uncomfortable with or considers unsafe." Further, the release form states "[t]hat should [the undersigned] choose to participate, [she] is aware of the physical nature and possible risks of injury incident to taking this practical course in self-defense." During the RAD course, Mrs. Sauceberry and her co-workers received instruction during the first two days on proper techniques to be utilized and were given the opportunity to perform drills using the techniques associated with stance, strikes, and kicks. During the drills, the participants worked in pairs using pads. On the third day, participants engaged in a series of exercises simulating attacks upon them by "aggressors," in which they were given the opportunity to deploy the defensive techniques they had learned.
During the simulated attack on the third day, Deputy Toups played the role of the assailant, and Lucy Morvant, another LPSO employee, acted as the "safety monitor" and provided verbal instruction to Mrs. Sauceberry as the simulation unfolded. A video of the simulation reveals that Deputy Toups approaches Mrs. Sauceberry from behind and places her in a bear hug. Mrs. Sauceberry breaks free of the bear hug, turns around, and Deputy Toups places her in a front bear hug. As instructed by Mrs. Morvant, Mrs. Sauceberry deploys a knee kick and is prompted by Mrs. Morvant to deploy another defensive technique. Mrs. Sauceberry struggles against Deputy Toups' bear hug and pushes against him, and Deputy Toups is heard saying, "You're not gonna push me, you're not gonna push me." Deputy Toups pushes against Mrs. Sauceberry with his body and Mrs. Sauceberry continues to push against Deputy Toups. As the two struggle against each other, Deputy Toups leans into Mrs. Sauceberry with his body, pushing Mrs. Sauceberry backwards, and his left hand moves from Mrs. Sauceberry's back onto her right arm. Mrs. Sauceberry goes down to her knees, and while Deputy Toups is over her and still holding on to Mrs. Sauceberry, a loud popping sound is heard. Mrs. Sauceberry declares that her arm is broken and the simulation stops. See Sauceberry, 2015 WL 3547745, 3. The entire simulation, up to the point where Mrs. Sauceberry declares that her arm is broken, lasts approximately 25 seconds. As a result of her injury, Mrs. Sauceberry underwent surgery to have 2 plates and 21 screws inserted in her right arm.
On August 10, 2011, the plaintiffs filed suit naming as defendants Sheriff Webre, the LPSO, Deputy Toups, and two unidentified insurance companies. The defendants and their insurer answered the lawsuit and raised several affirmative defenses, including discretionary immunity. Bridgefield Casualty Insurance Company, Inc. also intervened in the lawsuit, seeking repayment of all workers' compensation benefits paid to and on behalf of Mrs. Sauceberry as a result of her injury.
During a three-day bench trial, the trial court heard testimony regarding the incident from Mrs. Sauceberry, Deputy Toups and Mrs. Morvant. The video of the incident was entered into evidence as was other documentary evidence, including the RAD forms signed by Mrs. Sauceberry. The trial court rendered an initial judgment dismissing the plaintiffs' claims against the defendants with prejudice. In its reasons for judgment, the trial court found that Deputy Toups and Mrs. Morvant were not negligent in their efforts and actions in instructing, teaching, and acting out real life scenarios. The plaintiffs appealed the trial court's judgment dismissing their claims asserting that the trial court erred in failing to find a duty existed under the facts and circumstances of the case, as well as for failing to find that the plaintiffs presented sufficient evidence to show that the defendants had breached a duty to Mrs. Sauceberry. Sauceberry, 2015 WL 3547745, 3.
In an opinion rendered on June 5, 2015, this court concluded that the trial court committed manifest error in absolving the RAD officers from liability for causing Mrs. Sauceberry's injury. Sauceberry, 2015 WL 3547745, 3. Applying a duty/risk analysis, this court explained that while RAD's self-defense classes have a clear social value and a laudable purpose, it is undeniable that the direct physical contact engaged in between the trained law enforcement personnel and the participants exposes the participants to a heightened risk of injury. As such, this court found that "[a]t a minimum, the LPSO and its RAD instructors owed a duty to conduct the simulations in a manner that did not expose the participants to an unreasonable risk of harm." Id.
Additionally, this court found that the video of the simulation demonstrated that Deputy Toups displayed an unreasonable level of force and aggressiveness during the simulated attack on Mrs. Sauceberry that was clearly inappropriate. Such unnecessary force went well beyond the bounds of what could have been reasonably anticipated or expected by the students who agreed to participate in the simulations. Id. at 4. This court also found that the failure of Mrs. Morvant to stop the simulation when Deputy Toups began to forcefully struggle with and push Mrs. Sauceberry also breached LPSO's duty to conduct the simulations in a manner that did not present an unreasonable risk of harm to participants. Id. Finally, this court found that the RAD instructors' breach of duty caused Mrs. Sauceberry to sustain a broken arm as well as the resulting damages associated therewith. Id.
Based on the findings discussed above, this court's June 5, 2015 decision reversed the initial judgment of the trial court dismissing the plaintiffs' claims. This court remanded the matter to the trial court to rule on the following three issues: (1) the defendants' immunity defenses, (2) the intervention claim of the workers' compensation insurer, and (3) the plaintiffs' damage claim. Id.
On remand, the parties submitted briefs on the issues, and the trial court rendered a judgment on April 6, 2016, awarding the plaintiffs $174,584.00 in damages, and assigned fault to the parties as follows: 90% to LPSO, and 10% to Mrs. Sauceberry. The trial court also awarded $69,483.37 to the workers' compensation insurer in connection with its intervention claim. The trial court found that the discretionary immunity statute, La. R.S. 9:2798.1, was not applicable to this case and assigned all court costs to the defendants. The defendants now appeal.
On appeal, the defendants assert that the trial court erred in its refusal to find the defendants immune from liability under La. R.S. 9:2798.1. Alternatively, the defendants challenge the trial court's allocation of fault between the defendants and Mrs. Sauceberry. The defendants also challenge this court's previous liability determination as manifestly erroneous and contend that the law of the case doctrine does not command strict adherence to the June 5, 2015 decision.
LAW AND DISCUSSION
Law of the Case Doctrine
We first address the defendants' contention that this court's June 5, 2015 decision was manifestly erroneous; and as such, adherence is not required under the law of the case doctrine. Re-argument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. Louisiana Land & Exploration Co. v. Verdin, 95-2579 (La. App. 1st Cir. 9/27/96), 681 So.2d 63, 65, writ denied, 96-2629 (La. 12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997). The reasoning behind the law of the case doctrine is to avoid re-litigation of the same issue, to promote consistency of result in the same litigation, and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Jones v. McDonald's Corp., 97-2287 (La. App. 1st Cir. 11/6/98), 723 So.2d 492, 494, writ not considered, 98-3057 (La. 2/5/99), 737 So.2d 738, citing Louisiana Land & Exploration Co., 681 So.2d at 65.
After a thorough review of the evidence in the record, including the testimony of the parties at trial, the video simulation, and documentary evidence, we find no manifest or palpable error in this court's June 5, 2015 decision regarding the liability of the defendants. We further find that application of this court's earlier decision by the trial court on remand has not resulted in manifest injustice. No writs were taken to the Louisiana Supreme Court in connection with this court's previous decision. This issue is now final and the law of the case, and we will not review it in this second appeal. See State ex rel. Div. of Admin., Office of Risk Management v. National Union Fire Ins. Co. of Louisiana, 2013-0375 (La. App. 1st Cir. 1/8/14), 146 So.3d 556, 563.
Immunity Under La. R.S. 9:2798.1
The defendants assign error to the trial court's finding that the defendants are not immune from liability herein under La. R.S. 9:2798.1. Louisiana Revised Statutes 9:2798.1 grants the state and its political subdivisions immunity from liability arising from policymaking or discretionary acts, and provides in pertinent part as follows:
B. 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.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
The Louisiana Supreme Court has established a two-part test for courts to follow when determining whether immunity under La. R.S. 9:2798.1 applies. See Folwer v. Roberts, 556 So.2d 1, 15 (La. 1989) (on rehearing). A court must first determine whether a statute, regulation, or policy requires the government employee to follow a particular course of action. Id. at 15. If there is such a requirement, then there is no choice or discretion, and the immunity does not apply. Id. In those instances where discretion is involved, the court must then determine whether that discretion is the kind which is shielded by the exception, that is, one grounded in social, economic, or political policy. Id. The immunity statute does not protect governmental entities for operational decisions, but only confers immunity for decisions based on social, economic, or political concerns. See Chaney v. National R.R. Passenger Corp., 583 So.2d 926, 929 (La. App. 1st Cir. 1991). In other words, when the government acts negligently for reasons unrelated to public policy considerations it is liable to those it injures. See Fowler, 556 So.2d at 15.
The defendants suggest that Gregor v. Argenot Great Cent. Ins. Co., 2002-1138 (La. 5/20/03), 851 So.2d 959, not Fowler and its progeny, controls the determination of immunity herein. In particular, the defendants contend that Gregor holds that there is no distinction between policy-making and discretionary or operational acts; thus, a public employee is immune from liability in any instance where there is a choice involved in the predicate act. (Brief, 10) In Gregor, a plurality opinion described the statutory interpretation analysis in Fowler and its progeny as "flawed," on the basis that La. R.S. 9:2798.1 does not contain the language "grounded in social, economic or political policy," nor does it distinguish between operational acts and ministerial or policymaking acts. Gregor, 851 So.2d at 967. Yet, the plurality in Gregor ultimately went on to deny the governmental defendant's claim for immunity on the basis that the decision at issue therein "was not a decision grounded in social, economic, or political policy. It was operational negligence in enforcing the sanitary code." Id. at 968. The Gregor opinion then cites one of the cases previously identified as the progeny of Fowler, Archon v. Union Pacific Railroad, 94-2728 (La. 6/30/95), 657 So.2d 987, 996, for the proposition that the government is liable to those it injures through negligent acts unrelated to public policy. Simply put, the plurality in Gregor applied the two-part test established in Fowler when determining the issue of immunity under La. R.S. 9:2798.1. On the basis of this inconsistency in the Gregor decision, we do not interpret the plurality opinion as overruling the analysis contained in Fowler or its progeny. See Greene v. Succession of Alvarado, 2015-1960 (La. App. 1st Cir. 12/27/16), 2016 WL 7443262, 7 n.5; Herrera v. First Nat. Ins. Co. of America, 2015-1097, (La. App. 1st Cir. 6/3/16), 194 So.3d 807, 814 n.12, writ denied, 2016-1278 (La. 10/28/16), ___ So.3d ___; McIntosh v. McElveen, 2004-1041 (La. App. 3rd Cir. 2/2/05), 893 So.2d 986, 994 n.2, writ denied, 2005-0528 (La. 4/29/05), 901 So.2d 1069.
The defendants have timely raised the affirmative defense of discretionary immunity in their answer. As with other affirmative defenses, the defendant who pleads immunity bears the burden of proving it. See Prestenbach v. Sentry Ins. Co., 340 So.2d 1331, 1334 (La. 1976). The defendants contend that Deputy Toups' decisions during the simulation were discretionary and required "instantaneous judgment and decision." The defendants outline a sequence of events leading up to Mrs. Sauceberry sustaining her injury to illustrate the "split-second decision-making" required of Deputy Toups. Examples of such include: beginning the rear bear hug, attempting a front bear hug after Mrs. Sauceberry spun around, resisting Mrs. Sauceberry's pushing, and trying to hold Mrs. Sauceberry to prevent her from falling. The defendants assert and Deputy Toups testified that his decisions made during the simulation were aimed toward the particular goal of providing the participant with a realistic idea or feeling of being attacked. The defendants also suggest that the physical contact exercises, such as the simulation herein, involve an unavoidable element of uncertainty that can only be managed through the use of discretionary choices.
A claim of discretionary immunity under La. R.S. 9:2798.1 is an affirmative defense. See La. C.C.P. art. 1005; Molina v. City of New Orleans, 2001-1411 (La. App. 4th Cir. 10/2/02), 830 So.2d 994, 1001, writ denied, 2003-0156 (La. 3/28/03), 840 So.2d 573; see also Mouton v. Hebert's Superette, Inc., 2010-787 (La. App. 3rd Cir. 12/8/10), 53 So.3d 561, 563-564; Rogers v. State, ex rel. Dept. of Public Safety and Corrections, 2007-1060 (La. App. 3rd Cir. 1/30/08), 974 So.2d 919, 923, writ denied, 2008-0504 (La. 4/25/08), 978 So.2d 367. In this appeal, the plaintiffs assert that the defendants failed to timely raise the issue of immunity at the trial on this matter. The plaintiffs' assertion is not supported by the record, as the defendants raised immunity in their answer to the petition as an affirmative defense, and immunity was again referenced as a contention of the defendants in the pre-trial order. The trial court's initial judgment finding no liability on the part of the defendants precluded consideration of the issue of immunity at that time. Following remand by this court, the issue was considered by and ruled upon by the trial court and is now properly before this court on review.
In its reasons for judgment, the trial court noted that the LPSO's decision to institute the RAD course was immune under La. R.S. 9:2798.1. However, once this decision was made, the LPSO employees were required to execute and operate the course in an appropriate manner. We agree. There is no suggestion that the LPSO was required by a statute, regulation, or policy to provide the RAD training course. As such, the decision of the LPSO to offer the RAD course to citizens is undoubtedly a discretionary policy decision and within the ambit of La. R.S. 9:2798.1. See Fowler, 556 So.2d at 15. However, the decisions of the RAD instructors during the simulation, which are the focus of the instant suit and the basis for the finding of liability herein, were operational decisions and are distinguishable from the policy decision of LPSO to offer the course. See Chaney, 583 So.2d at 930. The discretionary decisions of Deputy Toups highlighted by the defendants, as well the decisions of Mrs. Morvant, even if accepted as true, were not made by weighing social policy. Rather, these decisions were directly related to the goal of conducting a realistic simulation and were operational in nature. We find no error in the trial court's determination that the defendants' negligent conduct at issue herein is not protected by La. R.S. 9:2798.1.
Allocation of Fault
Finally, we consider the defendants' challenge of the trial court's allocation of fault amongst the parties. Louisiana Civil Code article 2323(A) provides in pertinent part:
In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined. ... If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
In negligence cases, Louisiana courts have adopted a duty-risk analysis to determine whether liability exists under the facts of a particular case. However, when a defendant claims that a plaintiff is comparatively at fault in causing his damages, the defendant bears the burden of showing not only the plaintiff's fault, but the percentage thereof. Bourg v. Cajun Cutters, Inc., 2014-0210 (La. App. 1st Cir. 5/7/15), 174 So.3d 56, 62, writs denied, 2015-1253 (La. 4/4/16), 190 So.3d 1205; 2015-1306 (La. 4/4/16), 190 So.3d 1201. The trier of fact is owed some deference in allocation of fault, since the finding of percentages of fault is a factual determination. Duncan v. Kansas City Southern Railway Co., 2000-0066 (La. 10/30/00), 773 So.2d 670, 680, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Thus, a trier of fact's allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. Aymami v. St. Tammany Parish Hosp. Service Dist. No. 1, 2013-1034 (La. App. 1st Cir. 5/7/14), 145 So. 3d 439, 447.
As to the allocation of fault, the trier of fact is bound to consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether 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 superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Id.
The trial court assigned 90% fault to LPSO and 10% to Mrs. Sauceberry. In its reasons for judgment, the trial court explained its allocation as follows:
When looking at the totality of the circumstances, some percentage of fault must be given to both sides. Mrs. Sauceberry signed a release form that explained to her the possible risk associated with the class and she freely volunteered to participate in the simulation. She failed to follow the instructions of Ms. Morvant and failed to use the proper technique taught to her throughout the course. On the other hand, the Sheriff's office put on the program. They were the instructors and knew that they were dealing with a student that had never tried these techniques before and would probably not get them right the first time.
The defendants contend that Mrs. Sauceberry should be allocated equal fault for the injuries she sustained. In support of their position, the defendants contend that Mrs. Sauceberry was fully informed about the physical nature of the simulation. Moreover, the defendants stress that Mrs. Sauceberry had the opportunity to decline to participate in the simulation, but chose to participate willingly. Finally, defendants argue that Mrs. Sauceberry was also fully aware that she had the option of stopping the simulation at any time once it was underway.
As noted above, one of the factors that may be considered when determining comparative fault is whether the victim's decision involved an awareness of the danger. See Watson, 469 So.2d at 974. The trial court apparently found that Mrs. Sauceberry's signature on the release and participation in the simulation evidenced some limited degree of awareness on her part. Although we may have found differently based on the unforeseeable and unexpected negligence of the RAD instructors, we cannot say that the trial court's assessment was manifestly erroneous.
The plaintiffs assert in their appellee brief that Mrs. Sauceberry should be assessed with no fault. However, plaintiffs' failure to file an answer to the appeal precludes consideration of this argument. See La. C.C.P. art. 2133. --------
The release form signed by Mrs. Sauceberry contains provisions stating that the participant "will not participate in any aspect of the program she is uncomfortable with or considers unsafe[,]" and that the participant "is aware of the physical nature and possible risks of injury incident to taking this practical course in self defense." Mrs. Sauceberry acknowledged signing the release and other forms. However, there was sufficient evidence to find that any awareness Mrs. Sauceberry may have had of the possible risk inherent in a self-defense class must be tempered by the unreasonable level of force and aggressiveness that was exhibited by Deputy Toups. Such a finding is supported by Mrs. Sauceberry's testimony that the training she received the first two days gave her no reason to believe that her participation in the simulation was a dangerous or unreasonable activity. Regarding the issue of voluntary participation, the trial court heard conflicting testimony from Mrs. Morvant and Mrs. Sauceberry regarding whether Mrs. Sauceberry was informed that participation in the simulation was voluntary, and presumably found Mrs. Morvant's testimony more credible on that topic.
The defendants additionally argue that the trial court's allocation of fault failed to take into account Mrs. Sauceberry's failure to halt the simulation once underway and "just" walk away when she felt it exceeded her physical limitations. In essence, the defendants argue that Mrs. Sauceberry was in an equal position to the RAD instructors to determine whether the simulation was unreasonably dangerous and to stop it. Considering the evidence presented to the trial court regarding the relative capacities and experience of the parties herein, we find no merit in this position. See Watson, 469 So.2d at 974.
There was sufficient evidence presented at trial to support a finding that the RAD instructors were in a superior position to determine whether the simulation should have been halted and that they failed to do so. The evidence clearly demonstrated a discrepancy in experience and training between Mrs. Sauceberry and the RAD instructors. Mrs. Morvant testified that she had been a RAD instructor since 1996, was named the state director for the RAD program in 1998, and attends annual national RAD conferences. Deputy Toups testified that he became a RAD instructor in 2001, and that he had attended four national RAD conferences. In contrast, Mrs. Sauceberry's self-defense training was limited to participation in a week-long martial arts class at her church when she was "small."
The evidence also supports a finding that Mrs. Sauceberry's limited experience would have made it extremely difficult for her to understand what was occurring during the simulation, much less have the ability to effectively stop it. The participants were verbally instructed by Mrs. Morvant on the scenarios that would be simulated on days two and three and shown a video of RAD instructors performing simulation scenarios; however, no live demonstration by the instructors was presented for the participants. Mrs. Morvant testified that on the day of the simulation, the participants had the opportunity to watch the simulations of the other participants. However, Mrs. Sauceberry testified that the participants were lined up by the RAD instructors in a hallway adjacent to the room where the simulations were being conducted, and thus unable to see the on-going simulations. Mrs. Sauceberry further testified that she did not anticipate that she would be grabbed, pushed, or have her escape route blocked during the simulation.
Finally, the evidence demonstrates that the RAD instructors' failure to follow their own practices and procedures despite their training and experience contributed significantly to the damages incurred. Mrs. Morvant acknowledged that RAD instructors have a responsibility to stop a simulation when the instruction is not being performed properly, and agreed that participants are expected to make mistakes. Mrs. Morvant testified that the participants were discouraged from pushing because it is an ineffective defense, and that she carries a whistle to blow when pushing arises. Mrs. Morvant acknowledged that it was improper for an instructor to push a participant. In fact, Mrs. Morvant testified that she trained Deputy Toups not to push participants. Further, Mrs. Morvant admitted that an instructor should not grab the arm of a participant pushing him, as occurred herein, but should stop the simulation and start over again. These considerations are particularly relevant when viewed in light of Mrs. Morvant's admission that she witnessed Mrs. Sauceberry turn around and begin pushing Deputy Toups after being placed in the initial bear hug, instead of utilizing the techniques taught during training. Despite witnessing Mrs. Sauceberry's pushing and inability to properly employ the RAD techniques, Mrs. Morvant testified that "instead of just blowing the whistle and shutting it down," she decided to instruct Mrs. Sauceberry to engage a technique. When asked why she did not stop the simulation, Mrs. Morvant responded that Mrs. Sauceberry was injured before she could do so.
The record herein supports a finding that based on their extensive training, experience, and knowledge, the RAD instructors were in a superior position to guard against the injury sustained by the inexperienced Mrs. Sauceberry during the 25 second simulation, but failed to do so. Particularly, where Deputy Toups displayed an unreasonable level of force and aggressiveness that Mrs. Sauceberry could not have reasonably anticipated. Accordingly, we find the trial court's placement of the greater amount of fault on the defendants for the accident is supported by the evidence and presents no manifest error.
CONCLUSION
For the above reasons, we affirm the April 6, 2016 judgment of the trial court. The costs of this appeal in the amount of $5,145.51 are assessed to defendants/appellants, Craig Webre, in his capacity as the Sheriff of the Parish of Lafourche, the Lafourche Parish Sheriff's Office, and Deputy Danny Toups, in accordance with La. R.S. 13:5112.
AFFIRMED. CRAIN, J., dissenting.
As correctly noted by the majority, the "law of the case" doctrine does not apply in cases of palpable error. Having reviewed the video of the subject incident, I believe the trial court's original judgment, which found no liability on the part of the defendants, was amply supported by the record, and this court's previous decision reversing that judgment was palpable error. The trial court's original judgment was based upon its interpretation of the video of the incident, as well as testimony from Deputies Toups and Morvant establishing that Deputy Toups was not pushing Sauceberry during the simulation. Rather, Deputy Toups was exerting only enough force to maintain his balance and allow Sauceberry an opportunity, while being coached by Deputy Morvant, to utilize the techniques taught in the course. The entire incident was very brief, lasting only 12 seconds from the first physical contact until the injury. And the actual mechanics or cause of the injury is indeterminable. While the video may be subject to different interpretations, the trial court's interpretation was not unreasonable, particularly given the testimony of the officers involved. For this reason, I would not apply "law of the case" doctrine. Based upon my de novo review of the record, and for the reasons expressed by the trial court in support of its original judgment, I would reverse the allocation of fault in the subject judgment and would find no liability on the part of the defendants. HOLDRIDGE, J., concurs.
I respectfully concur with majority opinion in light of this court's previous opinion in this case, Sauceberry v. Webre, 2014-1556 (La. App. 1 Cir. 6/5/15), 2015 WL 3547745, which I am constrained to follow.