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Freeman v. Tate6/4/2003
houlder was sloped and only two to two and a half feet wide, not nearly wide enough for a vehicle to park completely off the road.
The majority states that "Thomas admitted that he saw the lights on the patrol car as he approached." Thomas did testify as such in his deposition, however the police report reflects that Thomas stated "he did not see the EPSO (Evangeline Parish Sheriffs Office) unit nor the blue and red overhead lights. He stated he attempted to avoid colliding with the pedestrian, but could not avoid the collision." (Emphasis mine)
Thomas also testified in his deposition that he "blanked out" and awoke to find his foot was "gassing" the accellerator. However, Deputy Tate testified he heard "wheels squeeling like he was applying brakes, and at that point, I could tell, you know, that he wasn't stopping, or he was having problems stopping."
Despite Thomas' statements as memorialized in the police report, Thomas stated in his deposition that he did not discuss the accident that night with anyone, including the police. Thomas also stated in the police report that "he attempted to avoid colliding with the pedestrian" but stated in his deposition that he did not even realize he had struck anyone until he was told so later. Thomas also asserted he saw only "blue" lights; the officers said the lights were blue and red. At the scene, Thomas told Deputy Ortego he saw no lights, but at his deposition stated he saw the tail lights of the police unit even though the police report indicates this was impossible because of the unit's position at the time of the accident.
One of the deputies, by his own admission, thought "visibility" was so hampered, that he feared the young men "might have got hit by a car." With this admitted "fear" and knowledge of the diminished visibility conditions, the officers nevertheless elected to park their unit and conduct the investigatory stop in a manner that significantly contributed to the danger they already knew existed: That the young men "might get hit by a car." Now, the young men were not on the shoulder, where they might, through haste, have avoided the danger. They were forced to remain in the actual lanes of travel - one in each lane - and to remain in the path of danger held by the deputies, who both admitted at the time the car approached each of them was being patted down and restrained against the vehicle. Although the deputy holding Nathan Freeman could see the car approaching and made good his escape when alerted by Frederick Freeman, Nathan was still up against the police unit with his back to the approaching danger. This prevented Nathan from moving and changing position. Nathan could do nothing to see or escape the danger. A serious question does exist concerning whether the deputies method of placing the two men at greater risk constituted "gross negligence."
After reviewing the depositions and police report, I find at a minimum, there were questions of material fact which should have precluded summary judgment. Further, Thomas credibility and that of the officers vis-a-vis Thomas is seriously at issue. Therefore, I would reverse the trial court's grant of summary judgment on both the immunity question and the gross negligence question.
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