"Negligence, under the law," the judge instructed the jury, "is conduct which creates unreasonable risk of foreseeable harm to others; it is the doing of some act which a reasonably prudent person would not do under like circumstances, or the failure to do something which a reasonably prudent person would do under the circumstances."
Let me put to you a hypothetical situation to test this definition, the lawyer might say. Lawyers love to pose hypothets; it's their way of getting even with the world for making them go through the ordeal of the first year of law school. In this hypothet, we have a couple in their early thirties; let's call them Roy and Sharon. They have been married several years. This is Roy's second marriage, Sharon's third. Lately they have been having their troubles. Roy has been drinking way too much and working way too little. He can earn a good living as a welder but his dad passed away a few months ago and he has been even more depressed than usual since.
On Friday the thirteenth there is a festival--a celebration of local culture--in town. Roy and Sharon go into town. Roy gets drunk and becomes very abusive toward Sharon. On the way home he slaps her around and threatens to drive their car off into a deep ditch along the road. Sharon is frightened. When they get home she goes to bed.
At 12:31 a.m. (the date is now Saturday the fourteenth) the local sheriff's department gets a call from Sharon. She wants a deputy to come out to their residence. Roy has taken a whole bottle of pills and is trying to kill himself. The dispatcher puts out the call as a "possible attempted suicide."
The first deputy, let's call him Budgy, arrives at Roy and Sharon's mobile home at 12:40 a.m., nine minutes later, a good response time for a rural sheriff's department. Budgy talks to Sharon. She is very upset. She tells him that Roy is drunk, that he has hit her and that she is afraid of him. Before she had gone to bed, Roy had told her he "wanted to end it all." A few minutes later, he had come into her bedroom, sat on her and forced her to watch while he swallowed an entire bottle of pills. Roy then proceeded to wash the pills down with a glass of milk, heat up a late supper in the microwave, eat and go to bed. Sharon had called the hospital, the pharmacist and Roy's mother, none of whom were very interested in coming to help, before she called the sheriff's office.
Sharon shows Budgy the empty pill bottle, which according to the label had contained Darvocet tablets. Budgy knows Darvocet is a prescription pain-killer dangerous in quantity. Budgy goes to the bedroom and finds Roy asleep or unconscious. He calls Roy's name and shakes him hard. Roy wakes up immediately. Budgy asks Roy if he has taken a bottle of pills. Roy says no, he has not. "I just took a couple of pills for infection because I have a bad cold," he says. "You're lying," Sharon says and shows him the empty bottle of Darvocet. Roy denies taking the pills and gets out of bed to show Budgy the bottle of cold pills he is taking.
A second deputy sheriff, Derek, arrives on the scene and takes part in the continuing questioning of Roy. The whole group goes to sit in the living room. They talk for about twenty-five minutes longer. Budgy and Derek repeatedly ask Roy if he took the bottle of pills. Is he trying to kill himself? Does he want to go to the hospital? Roy says no, no, no. He is not in any danger and does not need any help. Budgy tells him, straight out, "Why don't you let me take you to the hospital because, man, you're going to die." Roy replies, "No, I'm not. I'm going to live until I'm ninety-four years old."
Sharon has calmed down a lot while the deputies are talking with Roy, but she still insists that Roy took the pills. The deputies don't know who to believe. Budgy calls the dispatcher, a senior deputy named Pat, and tells him that Roy is "real cooperative" and "just looks drunk." He couldn't see that anything was wrong with Roy. Could they arrest him? Budgy and Pat decided they couldn't because he had committed no crime they knew of. They concluded there was nothing they could do to compel the man to go.
At 1:10 a.m. the deputies leave the scene. They tell Sharon to watch Roy and if there is any change in his condition she should "give us a call and we'll come back and help her out." Roy, good old boy that he is, thanks Budgy and Derek for coming and invites them to come back and drink coffee sometime.
After the deputies leave, Roy goes back to bed. "Whatever happens, happens," he tells Sharon. Sharon goes to turn off the electric blanket in the other bedroom. When she comes back, Roy is asleep. Sharon lies down beside him to keep watch, but in a few minutes, around 2:00 a.m., she falls asleep. When she wakes up three hours later, Roy is ice cold. Dead, she thinks. She runs screaming around the mobile home and starts calling people for help again. The first person on the scene is Budgy, who tells her Roy is dead.
A perfunctory post-mortem investigation is done. A blood test shows a blood alcohol level of .18, well above the presumptive level of being under the influence of alcohol, had Roy been driving rather than sleeping. A urine sample shows the presence of dextropropoxyphene, the active ingredient in Darvocet, though not how much. Sharon doesn't want an autopsy done, doesn't want Roy cut up. The coroner honors her request and pronounces Roy dead of respiratory depression due to a combination of ingestion of alcohol and dextropropoxyphene. The classification of death: suicide.
Roy is dead, no doubt about it. The question is: who is at fault? Were the deputy sheriffs to blame in failing to care for him? Was police negligence responsible for Roy's death? If you were on the jury the judge was addressing, how would you vote?
Do you think the police were negligent in failing to act? Sharon Conner thought so. On February 9, 1984, less than a month after her husband's death, she filed a $1,810,000 civil suit against the Cameron Parish, Louisiana, Sheriff's Department.
J. B. Jones, Jr., the self-styled "old country lawyer" from Sweet Lake in Cameron Parish, thought so. He filed Sharon's suit for her. He would call the deputies' actions "gross, the most flagrant sort of negligence that ever occurred in this parish, because a man died because of their negligence. The answer to that (question) is clearly yes. And did it cause his death? Of course it caused his death."
Ken Katsaris thought so, too. A professional legal consultant and one-time Sheriff of Tallahassee, Florida, Katsaris would testify, as an expert witness for the plaintiff, that the deputies were indeed negligent, "almost a case of Keystone Cops," he said in his deposition. He testified that the deputies were ill-trained and that "they simply failed to do the appropriate thing because they didn't know what to do." The deputies, he said, "were presented with sufficient information and evidence in the totality of the events that occurred that night that in my opinion no deputy sheriff in Louisiana, much less I'd like to say anywhere in this country, should have walked away and left that circumstance unattended."
Those are pretty powerful words, and the plaintiff was able to make, at least on the surface, a pretty powerful case for the deputies' failure to act being responsible for Roy Conner's death. Between the time her suit was filed and the time it began to draw nigh to court early in 1985, her cause was further bolstered by her attorney's discovery of a relevant state statute, Louisiana R.S. 28:53. This law, part of the Mental Health Code, gives police the authority to take a person suffering from substance abuse into protective custody and to transport the person to a treatment facility for a medical evaluation. The peace officer's action must be based on "personal observation" and must satisfy a "reasonable grounds to believe" requirement that "the person is acting in a manner dangerous to himself or dangerous to others, is gravely disabled, and is in need of immediate hospitalization to protect such a person or others from harm." An officer acting under the law is immune from criminal or civil liability.
To the plaintiff's case, R.S. 28:53 meant that the two deputies were authorized to pick up Roy Conner and take him to the hospital, even though he did not want to go. The plaintiff would maintain that the deputies "by their own admission not only had reasonable grounds to believe Roy was a substance abuse victim but actually in truth did believe he had taken an overdose and would die."
Why would the deputies make such a terrible mistake? "Their failure to act was because of their lack of knowledge of the law," a memorandum in support of a motion for summary judgment states. The deputies were inadequately trained, were insufficiently guided by departmental procedures and policies, were incompetently supervised and were deficient in failing to call someone--the coroner or district attorney--who could give them correct legal advice on their powers in that situation. Their ignorance of the law, especially the Substance Abuse Law, was directly responsible for Roy Conner's death, the suit would claim, and Katsaris would support that claim in his deposition.
The sheriff's two attorneys, William M. Hudson III and William L. Goode of the Lafayette, Louisiana, law firm of Broadhurst, Brook, Mangham and Hardy, and the insurance company's attorney, Joseph W. Rausch of the New Orleans firm of Stassi and Rausch, had opposed the notion of police negligence from the start. In some of the preliminary responses to motions of the plaintiff, counsel pointed to Roy's assumption of risk for his own demise and to Sharon's contributory negligence in failing to do more (such as by staying awake and calling the deputies back to the scene) to prevent Roy's death. They also had problems with the legal conclusion the coroner had drawn, that Roy had died of a combination overdose of alcohol and drugs, since no autopsy was performed, and with the contention that Roy could have been saved had the deputies taken him to the hospital, since it was impossible to show how near death Roy actually was.
What defense counsel objected to most strongly was any notion that the deputies' decision not to take Roy into custody was a bad decision, based on ignorance, lack of training, poor judgment or any other deficiency. They argued just the opposite: that it was a proper decision supported by their observations at the scene.
This would be the key to their defense strategy: to show that the deputies made a reasonable decision under the circumstances. If the jury would accept that premise, there was no practical way the deputies or the sheriff's department could be held civilly liable.
To show that the deputies were acting properly, the defense attorneys needed expert advice of their own. Which was how I was recruited into the case in mid-April 1985, about four weeks before it was scheduled to go to trial. As a former civilian and military police officer and a criminal justice professor for thirteen years, I was originally recruited as a sort of all-purpose expert on police training, policies, procedures and practices. After a few days we saw training as such an important issue that we brought in another expert, Captain George Armbruster, the training and public information officer of the Lafayette Parish Sheriff's Department, to deal specifically with training- related matters. Thereafter Armbruster and I would work together to flesh out the legal defense of the deputy sheriffs; eventually we both would be needed to testify in court as to our expert opinions on the case.
Our work led us to research and discuss with the defense attorneys several important issues--the deputies' training, whether they acted in accord with departmental policies and procedures and by extension with accepted police practices elsewhere, the general police responsibility to an incapacitated person and the person's responsibility to himself, and ultimately the reasonableness of the deputies' failure to act, to take Roy Conner into protective custody, in this instance. Some of these issues were much more easily resolved than others.
We were able to establish early on that neither the deputies nor the department was in violation of the state's training standards. Louisiana law required 240 hours of basic police training, which neither deputy had completed. Budgy Precht had been employed full-time before the law took effect. He was exempt on a grandfather clause. Derek Aguillard was still within his first year of employment with the sheriff's office and would not be in violation of the law until that year was up.
Even if the deputies had attended the basic police academy, they would not have received any training in R.S. 28:53, the Substance Abuse Law. The law was not included as part of the mandatory curriculum for new police officers in the state. None of the regional police academies that we contacted covered the law among their optional hours, either. Thus deputies in Cameron Parish were no different from law enforcement officers elsewhere in the state; none of them had received any exposure to this potentially very useful statute through their basic training academy. The invisibility of R.S. 28:53 became more apparent as our research into departmental policies and procedures continued. I contacted executive and training officers of seven police and sheriffs' departments in southwestern Louisiana and of the Louisiana State Police. No one had heard of the Substance Abuse Law, no one had incorporated it into their own internal training programs, and no one had articulated policy or procedural guidelines around it. The law, which had been enacted in 1977 as part of a comprehensive revision of the Mental Health Code, was one of the best kept secrets of the entire repertoire of Louisiana police powers--a power so secret that not even the police knew they had it.
It was no real surprise then, that the Sheriff of Cameron Parish, James R. Savoie, known locally as "Sono," had no written policy in effect telling his deputies what to do with a substance abuse victim. The sheriff explained, however, that he did have an oral policy authorizing his deputies to take anyone who "wanted to go" to the hospital for treatment (implying voluntarily) or to take involuntarily anyone who constituted a hazard. "I tell them to use their own judgment," Sheriff Savoie said in his deposition. So far as the sheriff was concerned, the deputies were in compliance with his policies, and he could find no fault with their procedures.
When we compared the deputies' actions with police practices common in other jurisdictions, we also found little to criticize. Precht and Aguillard had made a fast response, they had spent thirty minutes at the scene, they had asked the right questions and they had exhibited due concern for the safety of Roy and Sharon Conner. It is hard to imagine police officers anywhere being more solicitous in their handling of a call of this sort.
To this point, dealing basically with the foundation on which the deputies' decision was based, the going had been fairly easy. When we began to get into the more abstract subject of the police responsibility to a possibly incapacitated person, however, our way became progressively more murky. We became embroiled in legal research, comparing related cases from Louisiana and other states with this one and trying to identify relevant principles. What do the police owe a person they are called upon to assist, and what does such a person owe himself?
A 1983 California case, Stout v. City of Portersville, found no police liability for failure to arrest an intoxicated person who was subsequently struck by a car. The plaintiff, who was injured while walking down the street drunk, claimed the injuries resulted from an officer's failure to take him into custody when earlier stopped and questioned about his intoxicated state and let go. The California appellate court rejected the idea that the police had a mandatory duty to take the man into custody, by ruling that the officer was not obligated to take a public inebriate into protective custody, even though a statute authorizes him to do so. He still has discretion as to whether to place the person in civil protective custody to be transported to a facility for treatment. A 1983 Louisiana case, more influential in terms of precedent, also dealt with police negligence and the incapacitated. In Abraham v. Maes, the appeals court found no negligence on the part of the police who booked a man as a public drunk when he later died from an internal head injury. Police had found the man in a dry cement area near the bottom of a canal with a liquor bottle beside him. He was incoherent, apparently from a state of extreme intoxication. The officers took him to jail and booked him for public drunkenness. He died in a hospital the next day of a massive intracerebral hemorrhage. The court determined that the officers were not negligent in taking the man to jail instead of a hospital after failing to diagnose a condition that only a "psychic layman" could have known existed. There had been no obvious physical injuries and the symptoms of the undisclosed skull fracture appeared to be related only to drunkenness. Another Louisiana case was even more pertinent in considering police duties. Larry Jude Ciko, the plaintiff in Ciko v. City of New Orleans, said police should have insisted that he receive medical treatment after a traffic accident in which his vehicle had struck three parked cars and a utility pole. Police agreed that Ciko was disoriented; he called himself a "disciple of God" and said nothing could harm him. The officers offered medical assistance to Ciko several times in front of witnesses. He refused assistance, was not taken into custody and was eventually dropped off at a restaurant by police so he could use the telephone. When he was found several hours later by a hitchhiker, he was severely injured and said he had either jumped or fallen from an overpass. The court first rejected any claim of police brutality or of negligence based on failure to care for a person in custody. It then turned to the issue of the police duty to obtain medical assistance for an accident victim. Ciko's attorney argued that if a policeman feels an accident victim is incapable of evaluating his need for assistance, that the policeman has a duty to substitute his judgement for that of the victim and compel him to receive medical treatment. It is not enough to merely offer to assist the victim.
The court did not agree. It said:
The police do not have the authority to force anyone, even those who are visibly injured, to receive medical treatment. Louisiana law gives all persons over the age of 18 the right to refuse medical treatment as to their own person. La. R.S. 40:1299.56. Moreover, under a duty risk tort analysis we cannot say the police owed a duty to the appellant beyond the offer of medical assistance. In determining whether the police owed Ciko a duty to do more than offer assistance we must balance the interest of the individual to refuse treatment against the public's interest in seeing that those in need of medical assistance will receive it. An individual may choose to decline medical treatment for a variety of reasons. While the appellant in this case may have seemed disoriented this should not give the police the right or the duty to substitute their judgment for that of the injured person. To do so would violate the individual's right to refuse treatment which is protected by law. Moreover, the imposition of such a duty would allow, and in fact require the police to restrain an individual based solely on the officers' subjective evaluation of that individual's mental state, a burden we are not willing to place on society or the police department. This does not mean the police owe no duty to accident victims to offer them medical assistance. However we feel the police in this case adequately discharged that duty by their repeated offers of assistance. The appellant asked to be taken to a telephone, presumably to obtain assistance on his own or to contact a member of his family. Viewing the totality of the circumstances we cannot say the police were negligent in their handling of this case.
The Ciko case puts the burden of self-protection on the citizen rather than on the police. An earlier Louisiana case, Lee v. Peerless Insurance Company, had made much the same point: "Only when an individual is incapable of self- protection are others legally responsible for his safety." To hold otherwise would put the police in an untenable situation--assuming all sorts of diagnostic powers they do not possess. Most private citizens would likely not want the police playing guessing games with their mental or physical health, trying to decide if the citizen might be in danger. Self-preservation has to come into play somewhere. "The law presumes that the instinct of self- preservation will cause a person to exercise due care and to avoid exposing himself unnecessarily to harm," another Louisiana case put it.
Put another way, the police could not sensibly have imposed on them an absolute legal duty to provide for the safety of persons with whom they come in contact. There are too many unknowables in each situation to grant such a general power or to expect such a general response. It comes down to police discretion or judgment in a specific situation: proper police action is not predetermined but is based upon a careful review of specific circumstances.
From our legal research, defense counsel developed the basic line of reasoning they would argue in the Conner case: the deputies were not negligent in failing to save Roy Conner's life because they did not believe the situation was life-threatening. Based on their personal observations at the scene, what the deputies themselves saw and heard, they simply did not have enough information to justify taking Roy Conner into protective custody.
In deciding what to do with Roy, the deputies had to consider strongly conflicting evidence. On the one hand was Sharon Conner, upset and persistent in accusing Roy of taking the drug overdose, and an empty bottle of Darvocet (with a prescription date of 1982 on it). On the other was Roy, drunk but alert and talkative, denying everything, acting as if everything were fine and rejecting all offers of assistance.
Was this suicide attempt or a domestic disturbance? What they had here was a perfectly contradictory and basically "unknowable" situation: they had to take one person's word or the other. If Sharon Conner had not been around, if the police had simply answered a trouble call at the Conner residence and found Roy and his empty pill bottle, and Roy had put on his same act, there is no doubt what would have happened. Roy would have died, even Ken Katsaris agreed with that hypothet in his deposition.
What the two deputies did, as they talked with the Conners at the scene, was to gradually discount Sharon's story of what had happened before they arrived, in favor of what they could see: Roy Conner acting as if he expected to live to be ninety-four years old. Was this the manner of a man trying to kill himself? The deputies finally decided that no, it was not, and that no basis existed to take Roy into involuntary protective custody.
The plaintiff's attorney emphasized how worried the deputies were that they might be doing the wrong thing--that they had called the dispatcher for advice and been told that no legal arrest was possible, and that Deputy Precht had told Deputy Aguillard to stay close by on patrol the rest of the night, in case Sharon Conner should call for help again. Defense counsel pointed out that these were the prudent actions of cautious men who wanted to be sure they had done all they could. They recognized, in making their discretionary decision, that they could be wrong, and they wanted to be prepared to remedy their error later if they had the opportunity. Such is often the case when police make dispositional choices in complicated circumstances; they can't know how it will turn out, they worry, and if it turns out bad, they feel bad. They would be emotionally less than human if they did not.
The decision that Precht and Aguillard made was one that any law enforcement officer could have made and most would have made, Ken Katsaris' expert opinion notwithstanding. In the survey that we conducted of the policies and practices of the eight other nearby law enforcement agencies, we posed the hypothet based on the Conner facts and asked, "What would you have expected your people to do?" None of the police officials said they would have expected their personnel to take Roy Conner into protective custody.
Captain Armbruster, in his deposition and his remarks to plaintiff and defense counsel, summed up the opinion these officials shared: you have to balance police duties and citizens' rights. The right of the police to take someone into custody is based on a narrow set of circumstances which, as far as the police were concerned, did not exist in this case. To the police, Roy Conner was another "Fur Festival drunk." They did not think that it was proper to drag him out his own house in the middle of the night on the possibility that his life might be in danger. To the people of South Louisiana, police have no right to act that way; they would not long tolerate a public agency that did such things.
The Substance Abuse Law, even with the legal immunity it provides, would not justify presumptuous police action based on possibilities. An officer gathers as much information as he can and he makes a decision he has to live with. Budgy Precht told Sheriff Savoie, several months later, that even had he known of the Substance Abuse Law, he would still have handled the case the same way. Of course he was sorry that Roy died, but that did not mean he made a wrong decision. He had done the best he could based on his appreciation of the situation. The Conner case finally went to trial in Cameron Parish on May 13, 1985, before a twelve-person jury. Testimony lasted five days. The judge, Ward Fontenot, stripped the plaintiff's counsel of some of his legal ammunition before testimony began by instructing him not to get into the details of the Substance Abuse Law in his questioning. That was a matter, the judge said, for the judge's instruction at the end of the trial and for the jury to consider in deliberation.
As is often the case in civil suits of this sort, where attorneys make extensive use of depositions in pre-trial discovery, the facts and issues were pretty well established before trial began. The trial itself produced no real surprises, no Perry Mason-like reversals.
In the end twelve good citizens of Cameron Parish were left to decide the question of negligence. In his instructions to the jury, Judge Fontenot reviewed the responsibility of the sheriff to properly instruct and train his deputies and the responsibility of the deputies to assist a helpless victim. He said: "In the case of an intoxicated or drugged individual, a police officer is required to use a higher degree of care in guarding for such a person's safety and protection than is expected in the case of someone who has control of his physical and mental faculties and is able to protect himself. Being intoxicated or drugged did not put Mr. Conner beyond the protection of the law." He also said: "Because a competent person may refuse medical treatment, the authority of a peace officer to take a person into protective custody only applies when, by personal observation, he determines that the subject lacks the mental capacity to refuse and is a fit subject for involuntary admission."
Judge Fontenot explained to the jury as well the concept of contributory negligence which the defense had emphasized at trial: Sharon Conner's own responsibility for the death of her husband.
While J. B. Jones in his closing remarks was labeling the deputies' performance a clear "breach of duty," defense counsel were describing their actions as proper and humane. The deputies had done fine; it was Sharon Conner, they said, who "had turned off the lights and gone to bed." Did anyone on the jury truly believe that the deputies had walked away and left Roy Conner to die?
Apparently not. The jury took only 26 minutes to return a unanimous verdict: no negligence on the part of the sheriff or his deputies, no damages for the plaintiff. Several members of the jury later told the defense attorneys they could not understand why the suit was ever filed in the first place. The claim looked too frivolous to be worth anything.
The plaintiff's attorney, who by this time had invested several thousand dollars of his own money in court costs and expert witnesses' fees in pursuit of what he had initially called a "million dollar case," did not agree with the jurors. He appealed to the Third Circuit Court of Appeals and lost, then appealed to the Louisiana Supreme Court, which declined to hear the case, thereby affirming the trial court verdict.