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Freeman v. Tate6/4/2003
s negligence or reckless disregard for the safety of others, as an approaching vehicle could have seen the lights of the patrol car and could have proceeded with appropriate caution. Even Thomas admitted that he saw the lights on the patrol car as he approached.
This accident was caused solely by the actions of Daniel Thomas. As noted above, Thomas saw the lights of the deputies' car as he approached them on the road. However, Thomas testified in his deposition that he "blanked out" or fell asleep after seeing the lights. Thomas testified that he awoke to find his "foot was gassing" the accelerator and that he had slid off of the road. Thomas stated that he did not try to swerve to avoid the patrol car but that he drifted off the road because he was asleep or blacked out. He said his only chance to avoid the cruiser was to "stay on the side of the ditch." Thomas did not even know that he had struck Freeman until he was told afterwards. Clearly this accident was caused by Thomas's drunk driving , not the actions of the deputies. Accordingly, we find that there is no genuine issue of material fact in this case.
The decision of the trial court is affirmed. Costs of this appeal are assessed against the appellant, Mr. Freeman.
AFFIRMED.
COOKS, Dissenting.
The majority proposes to affirm the trial court's grant of summary judgment finding there was no genuine issue of fact that the deputies met the requirements of La.R.S. 32:24 and their conduct did not constitute gross negligence. I disagree.
I find serious questions arise as to whether the officers were in "pursuit of an actual or suspected violator of the law" as R.S. 32:24 states. Deputy Tate stated he was driving Deputy Ortego home when they ran across the two black men walking on the side of the road. Deputy Ortego stated neither of the men were stopped because they were engaged in any criminal activity. There also is no indication that the two men bore any resemblance to the escapee other than the color of their skin. The depositions do not provide any indication if there was any description of the escapee issued by the authorities. Such a question certainly pertains to the issue of whether the police were "in the pursuit of an actual or suspected violator of the law," or whether there declarations are merely pretextual.
As to the question of gross negligence, I find this issue cannot be properly addressed via summary judgment. There are numerous questions of fact precluding summary judgment. The majority concludes there is no question that the positioning of the police car did not constitute gross negligence. I note there was a dispute as to the visibility conditions that evening. Daniel Thomas testified in his deposition that it was a "clear night." Deputy Tate recalled it was "misty." Deputy Ortego remembered it as being "foggy" and stated he was concerned that, because of the fog, the two men "might have got hit by a car." I also point to the police report prepared by Deputy Ortego. In the drawing it shows Deputy Ortego and Frederick Freeman were standing to the right of the parked police unit and in the other lane of travel. Clearly, the presence of Deputy Ortego and Frederick Freeman in the other lane could have prevented an oncoming vehicle from using that lane to avoid the parked police unit. Although Thomas stated in his deposition that he "blanked out" or fell asleep after seeing the police lights, Thomas' deposition testimony is riddled with inconsistencies. Thomas stated numerous times in his deposition that the police unit "wasn't on the road" and was "off the road completely." This is contradicted by both Deputy Tate and Ortego, as well as the police report. The s
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