The opinion
.
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-568
KEVIN W. JONES, SR.
VERSUS
TOWN OF WOODWORTH AND DAVID SIKES
**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 240270
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE
**********
JOHN E. CONERY
JUDGE
**********
Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.
AFFIRMED. PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION
DENIED.
Edward Larvadain, Jr.
Edward Larvadain, Jr. Law Office
626 Eighth Street
Alexandria, Louisiana 71301
(318) 445-6717
COUNSEL FOR PLAINTIFF/APPELLANT:
Kevin W. Jones, Sr.
Randall B. Keiser, PLC (A.C.)
Matthew L. Nowlin
Faircloth, Melton & Keiser, LLC
105 Yorktown Drive
Alexandria, Louisiana 71303
(318) 619-7755
COUNSEL FOR DEFENDANTS/APPELLEES:
Town of Woodworth
David Sikes
CONERY, Judge.
In response to an order from this court, plaintiff, Kevin W. Jones, Jr., was
required to file an amended appeal brief. In response to the amended appeal brief,
the Town of Woodworth and Officer David Sikes (Defendants) then filed a
Peremptory Exception of No Cause of Action seeking to dismiss the remaining
issues on appeal, the alleged wrongful towing claim and attendant damages. For
the following reasons, we deny the Defendants’ Peremptory Exception of No
Cause of Action and affirm the trial court’s judgment granting the Defendants’
Motion for Involuntary Dismissal with prejudice of all Mr. Jones’ remaining
claims and demands against the Defendants at his cost.
FACTS AND PROCEDURAL HISTORY
In December 2009, Kevin Jones was travelling in his vehicle through the
Town of Woodworth when he stopped at a convenience store. Officer Sikes,
working for the Town’s police department, decided to run a random license plate
check on the vehicle and learned that its owner, Kevin Jones, had a suspended
driver’s license. Mr. Jones then drove his vehicle from the store’s parking lot onto
Highway 165 northbound. Officer Sikes at first passed up Mr. Jones’ vehicle, and
upon making an identification of Mr. Jones based on the driver’s license photo he
had as a result of the license check he had just run, Officer Sikes stopped Mr.
Jones’ vehicle on the northbound shoulder of Highway 165 just inside the city
limits of the Town of Woodworth. At the time of the traffic stop, Mr. Jones’
vehicle was parked just two feet off the fog-line, with Officer Sikes’ patrol vehicle
parked several feet behind with the emergency flashers on.
Upon confirming that the driver of the vehicle was in fact Kevin Jones and
that Mr. Jones’ license had been suspended, Officer Sikes issued a citation to Mr.
Jones for driving with a suspended license, unlawful use of a driver’s license, no
proof of insurance, and improper muffler/duel pipes. Mr. Jones was prevented
from driving his vehicle from the scene due to his license suspension and no proof
of insurance. Officer Sikes indicated on the tickets that traffic on the roadway was
“MEDIUM.” Two passengers in the vehicle were also prohibited from driving as
neither possessed a valid driver’s license. Because none of the occupants were
legally able to drive the Jones vehicle from the scene of the traffic stop, Officer
Sikes called a tow truck operator pursuant to state law,1 and the Jones vehicle was
towed by a neutral third-party towing company. Because Mr. Jones was insistent
on calling his brother and objected to his vehicle being towed by anyone, we find
that there was substantial compliance with La.R.S. 32:135(A).2
Mr. Jones filed a civil suit against the Town of Woodworth and Officer
Sikes claiming that the initial license plate check on his vehicle while it was
properly parked at a convenience store was an unconstitutional search and an
unconstitutional invasion of his privacy rights. Further, after the stop, Mr. Jones
claimed that Officer Sikes should have allowed Mr. Jones’ brother, who lived
several miles away in Alexandria, Louisiana, to come to the scene and take
1
Though not discussed by Defendants, La.R.S. 32:863.1(C)(1)(a) requires the vehicle to be
towed where there is no proof of insurance and provides, in pertinent part, “If the operator of a
motor vehicle is unable to show compliance with the provisions of this Part by displaying the
required document when requested to do so, the motor vehicle shall be impounded[.]”
2
Louisiana Revised Statute 32:1735(A) provides:
A. When a law enforcement officer determines that a motor vehicle must
be towed, the law enforcement officer shall give the owner or operator of the
motor vehicle the option to select a licensed towing company to tow his vehicle.
If the owner or operator of the motor vehicle is unable to select a licensed towing
company, chooses not to select a particular licensed towing company, or an
emergency situation requires the immediate removal of the vehicle, the next
available licensed towing company on the approved law enforcement rotation list
shall be called by the law enforcement officer to tow the vehicle.
2
possession of the Jones’ vehicle, instead of having the vehicle towed. He claimed
damages for wrongful seizure and towing of his vehicle.
The Defendants had initially filed a Motion for Summary Judgment, which
the trial court had granted, finding that the random license plate check while Mr.
Jones was parked at the convenience store was permissible. The trial court ruled
that Mr. Jones was properly cited for driving without a valid driver’s license, and
his vehicle was properly towed. An initial appeal in this case was heard by a panel
of this court in Jones v. Town of Woodworth, 12-1349 (La.App. 3 Cir. 12/26/13),
132 So.3d 422 (Jones I). The issue decided was whether an individual has a
legitimate privacy interest in his or her license plate such that a random license
plate check constitutes an unconstitutional search or seizure within the meaning of
the Fourth Amendment and the Louisiana Constitution Article 1,§ 5.
The Jones I panel affirmed the Summary Judgment as to the random check
of the license plate, but found that genuine issues of material fact precluded
complete affirmation of the trial court’s ruling granting Summary Judgment on the
unlawful towing issue and the alleged damages claimed by Mr. Jones from the loss
of his vehicle due to his alleged inability to pay the tickets, the towing and accrued
storage fees, as well as damages for his alleged loss of his job that left him unable
to provide for his family. See Jones I.
The Jones I panel determined that the affidavit in support of the Defendants’
Motion for Summary Judgment failed to disclose any facts regarding the location
of the vehicle in relation to the highway, or whether officer safety or traffic safety
issues necessitated the immediate removal of the Jones’ vehicle. More specifically,
the Jones I panel found that the affidavit of Officer Sikes submitted by the
Defendants in support of its motion was “silent regarding his decision to have
3
Jones’ vehicle towed” and remanded the case to the trial court for a trial on the
merits on the issue of unlawful towing and related damages. Jones I, 132 So.3d at
426. Mr. Jones did not lodge a writ with the supreme court in response to the
ruling in Jones I.
On remand, the trial court heard several Motions in Limine wherein the
Defendants attempted to narrow the remaining issues before the trial court. The
trial court decided that the only issue remaining to be heard at the trial on March 3,
2015, was Mr. Jones’ claim of wrongful towing and attendant damages. In its
written judgment on the Motions in Limine, dated March 2, 2015, the trial court
stated:
Defendant’s Second Motion in Limine is hereby GRANTED. The
Court finds that the Third Circuit’s ruling in Jones v. Town of
Woodworth, pp. 2012-1349 (La.App. 3 Cir. 12/26/13); 132 So.3d 422,
rehearing denied (3/19/14) on the issue of privacy expectation in a
license plate, and sufficient reasonable suspicion and/or probable
cause for the stop are final, and “law of the case.” As such, Plaintiff
will not be allowed to present any witnesses or exhibits on those two
issues. The only issue for trial which the Court will accept evidence is
whether Plaintiff can establish a claim for “wrongful towing” and
attendant damages.
The trial on the remaining issues of wrongful towing and damages
proceeded as scheduled on March 3, 2015. The testimony of Mr. Jones at trial
reflects that all charges stemming from the tickets issued by Officer Sikes were
waived, based on a hardship determination by the Mayor, who also functions as the
Magistrate of the Town of Woodworth.
As to the wrongful seizure of the vehicle issue, La.R.S.32:1735.1(A)
provides, “Any law enforcement agency may place a hold on a vehicle stored at a
licensed storage facility for up to fourteen days.” The hold on Mr. Jones’ vehicle
was released.
4
Louisiana Revised Statutes 32:1735.1(B) provides that once the law
enforcement hold is lifted “the storage facility shall release the vehicle to its owner
upon payment by such owner of all towing and storage charges to the storage
facility[.]” Mr. Jones was unable to retrieve his vehicle from the towing company,
despite having a licensed driver available to drive the vehicle, due to his refusal
and/or inability to pay the towing and storage fees. The towing company was not a
party to this litigation and has no connection that appears in this record to the
Town of Woodworth or Officer Sikes. At trial, Mr. Jones failed to present any
evidence on the issue of whether his vehicle had been wrongfully held, and there
was no factual dispute that Mr. Jones failed to pay the towing and storage fees.
As to the wrongful towing issue, Mr. Jones presented evidence at trial that
he asked Officer Sikes that he be allowed to call his brother and sister-in-law, who
were shopping in Alexandria, Louisiana, to come to the scene and take possession
of his vehicle, thus obviating the necessity for towing. Officer Sikes was called
under cross examination and testified as to his reasons why he did not agree to Mr.
Jones’ proposal and why he called the towing company to tow the vehicle.
At the close of Mr. Jones’ case in chief, the Defendants moved for
Involuntary Dismissal pursuant to La.Code Civ.P art. 1672(B). The trial court
granted the Defendants’ Motion for Involuntary Dismissal in oral reasons stated on
the record and memorialized in the formal judgment signed March 11, 2015. The
trial court found, “The Court, being of the opinion that, after giving all allowable
inference to Plaintiff, no evidence was presented to establish that OFFICER
DAVID SIKES had any legal duty to call or allow any third parties to come to the
scene of this incident involving KEVIN W. JONES, SR.”
5
Mr. Jones filed a timely appeal of the trial court’s judgment, and in response
the Defendants filed a Motion to Strike Appellant’s Brief and Dismiss Appeal on
the basis Mr. Jones’ brief to this court failed to conform to the requirements of
Uniform Rules—Courts of Appeal, Rules 2-12.1-2-12.6. The Defendants’ Motion
to Strike Appellant’s Brief and Dismiss Appeal was granted on July 13, 2015, and
this court ordered Mr. Jones to file an amended appeal brief no later than August
14, 2015. As ordered by this court, Mr. Jones timely filed an amended appeal brief.
In response to Mr. Jones’ amended appeal brief, and in addition to the
Defendants’ Original Brief for Appellees Town of Woodworth and Officer David
Sikes, the Defendants filed a Peremptory Exception of No Cause of Action and a
brief in support thereof. The Defendants’ exception sought to dismiss Mr. Jones’
remaining claim of wrongful towing and attendant damages on the basis that in his
amended appeal brief, Mr. Jones admitted that Officer Sikes had the discretion to
make the determination of whether or not to tow the Jones’ vehicle or allow third
parties to come to the scene, thus vitiating his remaining claim of wrongful towing.
On September 10, 2015, this court denied Mr. Jones’ out of time request for
oral argument and also referred to the merits without oral argument the
Defendants’ Peremptory Exception of No Cause of Action.
ASSIGNMENT OF ERRORS
Mr. Jones asserts the following errors on appeal:
1) The trial judge erred in ruling that Officer Sikes did not owe a duty
to Jones to allow his brother to come to the scene of the stop and pick
up his vehicle.
2) The trial judge erred in failing to find that Police Officer Sikes was
clearly wrong and unnecessarily abused his authority and discretion as
a police officer when he had the vehicle of Jones needlessly towed
even though Jones’ brother had been called and available to come and
pick up the vehicle.
6
3) The trial judge erred in failing to find that where the vehicle of
Jones was stopped by Officer Sikes along U.S. 165, it was safely off
the highway and did not pose a safety hazard to the motoring public
and officer Sikes abused his discretion and authority as a police
officer by having the vehicle towed.
4) The trial judge erred in not finding that Officer Sikes abused his
authority and his discretion as a police officer when he unnecessarily
gave citations to Jones knowing that they should not have been given
to him.
5) The trial judge erred in not awarding damages to Jones in an
amount of at least $50,000.00 for his vehicle being unnecessarily
towed and subsequently lost, his loss of job, the suffering of his
family and his being unnecessarily embarrassed, vexed, humiliated
and berated by Officer Sikes acting under Color of Law as a police
officer.
LAW AND DISCUSSION
Jurisdiction
The Defendants correctly state that La.Code Civ.P. art. 2163 allows this
court to rule on the Defendants’ Peremptory Exception of No Cause of Action filed
for the first time in this court. Louisiana Code of Civil Procedure Article 2163
provides, in pertinent part, “The appellate court may consider the peremptory
exception filed for the first time in that court, if pleaded prior to a submission of
the case for decision, and if proof of the ground of the exception appears in the
record.” (Emphasis added.)
It is within this court’s discretion to defer ruling on the Defendants’
Peremptory Exception of No Cause of Action and proceed with its review of Mr.
Jones’ appeal. The trial court’s ruling came after hearing all evidence introduced
by Mr. Jones. Based on the procedural posture of this case, this court exercises its
discretion to rule on the merits of the appeal and denies the Defendants’
Peremptory Exception of No Cause of Action.
7
Standard of Review - Involuntary Dismissal
At the close of Mr. Jones’ case in chief, the trial court granted the
Defendants’ Motion for Involuntary Dismissal pursuant to La.Code Civ.P. art.
1672(B), which provides, in pertinent part:
In an action tried by the court without a jury, after the plaintiff has
completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the
ground that upon the facts and law, the plaintiff has shown no right to
relief. The court may then determine the facts and render judgment
against the plaintiff and in favor of the moving party or may decline to
render any judgment until the close of all evidence.
(Emphasis added.)
Unlike the procedure in a Motion for Summary Judgment, in a Motion for
Involuntary Dismissal, the trial court hears all of the plaintiff’s evidence and makes
factual findings. After applying the law to the facts presented by the plaintiff, the
court then makes a ruling that the plaintiff has shown “no right to relief.” See
La.Code Civ.P. art. 1672(B).
As reiterated in Biagas v. St. Landry Parish Sheriff Office, 13-642 (La.App.
3 Cir. 12/11/13), 132 So.3d 971, writ denied, 14-73 (La. 3/14/14), 137 So.3d 15,
the trial court’s determination to grant a Motion for Involuntary Dismissal is
subject to a manifest standard of review. In Biagas, 132 So.3d at 974, the court
stated:
Thus, the trial court must consider the evidence presented by the
plaintiff and, if the trial court determines that that evidence is
insufficient to establish the plaintiff’s case by a preponderance of the
evidence, dismissal is appropriate. Vintage Wings & Things, LLC v.
Toce & Daiy, LLC, 04-706 (La.App. 3 Cir. 11/10/04), 886 So.2d 652.
The appellate court reviews the trial court’s grant of a motion for
involuntary dismissal under the manifest error standard of review. Id.
8
We, therefore, review the trial court’s ruling on the Motion for Involuntary
Dismissal pursuant to La.Code Civ.P. art. 1672(B) using the manifest error
standard.
Law of the Case
Through counsel, Mr. Jones continues to attempt to argue in brief that the
initial stop of his vehicle was unconstitutional. As we indicated earlier in this
opinion, that issue was decided in Jones I and is now the “law of the case.”
In Arceneaux v. Amstar Corp., 10-2329, p. 14 (La. 7/1/11), 66 So.3d 438,
448, the supreme court succinctly discussed the policy and principles applicable to
the law of the case doctrine and stated:
The law of the case refers to a policy by which the court will
not reconsider prior rulings in the same case. Day v. Campbell-
Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105
(1971).
The law of the case principle relates to (a) the
binding force of trial court rulings during later stages of
the trial, (b) the conclusive effects of appellate rulings at
trial on remand, and (c) the rule that an appellate court
will ordinarily not reconsider its own rulings of law on a
subsequent appeal. Among reasons assigned for
application of the policy are: the avoidance of indefinite
relitigation of the same issue; the desirability of
consistency of the result in the same litigation; and the
efficiency, and the essential fairness to both sides, of
affording a single opportunity for the argument and
decision of the matter at issue.
Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 84
(La.1973). However, even when applicable, the law of the case is
discretionary and should not be applied in cases of palpable error or
where application would result in injustice. Id.
As previously indicated, the trial court clearly stated prior to trial on March
3, 2015, that the only issue remaining before it was the wrongful towing issue and
attendant damages. Finding the prior ruling of this court in Jones I to be a final
9
judgment, we will apply the law of the case doctrine to all claims of Mr. Jones
dismissed on Summary Judgment in Jones I. Thus, we will limit our review to
whether the trial court was manifestly erroneous in its decision to grant the Motion
for Involuntary Dismissal on Mr. Jones’ sole remaining claim of wrongful towing
and alleged attendant damages. See Koonce v. Dousay, 06-1498 (La.App. 3 Cir.
3/7/07), 952 So.2d 893. We have previously chosen to deny the Defendants’
Peremptory Exception of No Cause of Action, choosing instead to rule on the
merits of the appeal as factual issues were presented at the trial.
Assignment of Error One
Mr. Jones claims the trial court “erred in ruling that Officer Sikes did not
owe a duty to Jones to allow his brother to come to the scene of the stop and pick
up his vehicle.” The trial court, in both its oral reasons for ruling and in the formal
judgment of March 11, 2015, found that Officer Sikes had no “legal duty to call or
allow any third parties to come to the scene of this incident involving KEVIN W.
JONES, SR.”
The Town of Woodworth and Officer Sikes had also plead in their “Answer
To Plaintiff’s Petition for Damages,” the affirmative defense of qualified immunity
pursuant to La.R.S. 9:2798.1, La.R.S. 9:2800-2800.52, and La.R.S. 9:2792.4.
However, we need not determine the qualified immunity of the Defendants and
choose instead to base our analysis on the issue of whether the trial court
committed manifest error in granting the Defendants’ Motion for Involuntary
Dismissal on the basis that no legal duty was owed to Mr. Jones by Officer Sikes
based on the evidence introduced by the plaintiff.
We were faced with a similar issue in Dupre & Son Floor Covering, Inc. v.
City of Iota, 09-1183 (La.App. 3 Cir. 5/5/10), 36 So.3d 1117. That case involved
10
the police officers’ alleged failure to impound a vehicle. In Dupre, a statutory duty
was created pursuant to La.R.S. 32:863.1(A)(1). 3 The statute requires police
officers to impound a vehicle when the driver is unable to present proof of
insurance.4 The police officers failed to impound the vehicle and nine days later
the vehicle was involved in a traffic accident. A panel of our court decided to
review the case on appeal under a duty/risk analysis pursuant to La.Civ.Code art.
2315, rather than apply the analysis applicable to statutory qualified immunity.
The panel found that the police officers breached their duty by failing to impound
the vehicle, but the breach was neither the legal cause nor a substantial factor in
causing the accident. See Dupre, 36 So.3d 1117.
In this case, Officer Sikes had issued a citation to Mr. Jones for failure to
furnish proper proof of insurance. The statute mandates that he impound the
vehicle in such a circumstance, and he had a legal duty to do so. Had he failed to
order the vehicle towed and impounded pursuant to the statute, he and the Town of
Woodworth could have been sued for breach of that statutory duty, as in Dupre. The
statute at issue mandates that upon issuing a citation for no proper proof of
insurance “the motor vehicle shall be impounded.” La.R.S.32:863.1(C)(1)(a)
Officer Sikes followed his duty and certainly did not breach it.
3
Louisiana Revised Statutes 32:863.1(A) states, in pertinent part:
A. No owner . . . of a self-propelled motor vehicle registered in this state . . . shall
operate or allow the operation of such a vehicle upon any public road, street, or
highway in this state unless there is contained within the vehicle one of the
following document evidencing that the motor vehicle is in compliance with . . .
(1) A certificate of insurance.
4
Louisiana Revised Statutes 32:863.1(C)(1)(a) requires the vehicle to be towed where there is no
proof of insurance and provides, in pertinent part, “ If the operator of a motor vehicle is unable to
show compliance with the provisions of this Part by displaying the required document when
requested to do so, the motor vehicle shall be impounded[.]”
11
In Rando v. Anco Insulations, Inc. 08-1163, pp. 26-27 (La. 5/22/09), 16
So.3d 1065, 1086, the five elements applicable to a duty/risk analysis were
delineated by the supreme court:
[I]n order for liability to attach under a duty/risk analysis, a plaintiff
must prove five separate elements: (1) the defendant had a duty to
conform his or her conduct to a specific standard of care (the duty
element); (2) the defendant failed to conform his or her conduct to the
appropriate standard (the breach of duty element); (3) the defendant’s
substandard conduct was a cause-in-fact of the plaintiff’s injuries (the
cause-in-fact element); (4) the defendant’s substandard conduct was a
legal cause of the plaintiff’s injuries (the scope of liability or scope of
protection element); and, (5) actual damages (the damages element).
....
A threshold issue in any negligence action is whether the
defendant owed the plaintiff a duty. Whether a duty is owed is a
question of law. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.
3/10/06), 923 So.2d 627, 632-33. Elaborating further, we stated:
Whether a duty is owed is a question of law. In deciding
whether to impose a duty in a particular case, the court
must make a policy decision in light of the unique facts
and circumstances presented. The inquiry is whether the
plaintiff has any law (statutory, jurisprudential, or arising
from general principles of fault) to support the claim that
the defendant owed him a duty.
Mr. Jones claims the vehicle was insured, but that the insurance was in his
mother’s name even though the vehicle was registered in his name. It could be
argued that under the circumstances, there was sufficient proof of insurance and
that Officer Sikes nevertheless owed him a duty to allow third parties unknown to
the officer to come to the scene of the traffic stop and remove Mr. Jones’ vehicle in
lieu of towing. At trial, however, Mr. Jones failed to show that Officer Sikes had
either a “statutory or jurisprudential” duty to allow a third party to come to the
scene and take possession of the vehicle. See Rando, 16 So.3d at 1086. Mr. Jones
further admitted in his sworn testimony, “he had no evidence to show that Officer
12
Sikes did not have the authority to have the vehicle towed.” Likewise, there is no
evidence in the record to show that Officer Sikes had knowledge that the vehicle,
and Mr. Jones’ operation thereof, was in fact insured. Mr. Jones was, in effect, an
unlicensed driver who failed to furnish proof of insurance for his operation of the
vehicle.
Moreover, the question of a duty owed by Officer Sikes to Mr. Jones to
allow third parties unknown to the officer to come to the scene of the traffic stop
was seemingly answered by a panel of this court in the case of Simon v. Theriot,
13-562 (La.App. 3 Cir. 12/11/13), 127 So.3d 1057. Simon, on behalf of her minor
children, filed a petition for damages against the sheriff and his deputies
(Defendants) when her ex-husband committed suicide in his vehicle after it was
stopped and surrounded by deputies. The deputies were responding to a complaint
filed by the decedent’s then girlfriend and her mother. Simon claimed the
Defendants were negligent in failing to allow third parties to come to the scene of
the parked vehicle to assist in the negotiations and were thus responsible for her
ex-husband’s death.
The panel in Simon affirmed the trial court’s ruling dismissing Simon’s
claims against the Defendants for failure to state a cause of action, which does not
allow the presentation of evidence, but is determined solely on the facts as alleged
in the petition. See La.Code Civ.P. art. 931. The panel in Simon, 127 So.3d
at1061, stated in affirming the trial court:
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
13
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.
In this case, Mr. Jones was afforded the opportunity to present all of his
evidence at a bench trial and still was unable to provide the court with any facts,
jurisprudential, or statutory authority sufficient to establish that a duty was owed
by Officer Sikes to Mr. Jones to call a third party to come to the scene of this
traffic stop to take possession of his vehicle. Mr. Jones was unable to provide the
factual basis necessary to establish a duty “arising from general principles of
fault.” Rando, 16 So.3d at 1086.
The supreme court in Hardy v. Bowie, 99-2821, p. 12 (La. 9/8/99), 744
So.2d 606, 614, discussed the duty owed by a police officer under the duty/risk
analysis and stated:
Generally, 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.” Prattini v. Whorton, 326 So.2d 576 (La.App. 4 th
Cir.1976); Justin v. City of New Orleans Through Morial, 499 So.2d
629, 631 (La.App. 4th Cir.1986), writ denied, 501 So.2d 232 (La.1987).
“His authority must at all times be exercised in a reasonable fashion
and he must act as a reasonably prudent man under the
circumstances.” Id. Officers are held to choosing a course of action
which is reasonable under the circumstances. Mathieu [v. Imperial
Toy Corp., 94-952 (La. 1/30/1995), 646 So.2d 318, 325].
Therefore, Officer Sikes would be “held to choosing a course of action
which is reasonable under the circumstances.” Id. Officer Sikes executed the
traffic stop on Mr. Jones’ vehicle after confirming that he was driving with a
suspended license, and, according to a criminal records check he had ordered to
ensure officer safety, Mr. Jones had a violent criminal history. After the stop,
Officer Sikes further learned that the two passengers in Mr. Jones’ vehicle also did
not possess valid driver’s licenses and were therefore unable to lawfully operate
14
the Jones’ vehicle. Additionally, Officer Sikes testified at trial that the Jones’
vehicle was parked on the shoulder of the highway, just two feet off the fog-line,
and that his patrol car was parked behind Mr. Jones’ vehicle with the emergency
lights on. Officer Sikes noted that he could not leave Mr. Jones’ vehicle
unattended at the scene of the stop without endangering public safety.
It is undisputed that Mr. Jones did request that he be allowed to remain with
the vehicle while his brother and sister-in-law drove from Alexandria, Louisiana,
to the scene of the traffic stop and retrieve the vehicle. Officer Sikes testified that
he has over twenty years’ experience making traffic stops, including accidents
involving vehicles parked on the shoulder of the road. He further testified that he
did not allow Mr. Jones’ brother to come to the scene because of his training,
which prohibited allowing a non-neutral third party to be called to the scene based
on concern for officer safety.
Additionally, Mr. Jones’ brother was not the owner of the vehicle, and thus,
there was a potential for further liability if there was a subsequent accident during
his trip in the Jones’ vehicle back to Alexandria, Louisiana. In addition, there was
no valid proof of insurance. Further, the Jones’ vehicle was parked close to the fog
line. Officer Sikes could not safely stand by and wait for a third party unknown to
him to come to the scene, nor could he leave the vehicle on the scene unattended
by his unit, which had engaged emergency flashers to warn oncoming drivers.
Based on all the circumstances of the traffic stop, the trial court correctly
determined that Officer Sikes acted reasonably under the circumstances in having
the Jones’ vehicle towed because of safety concerns both for the motoring public
and for the officer. We further find that Officer Sikes had a legal obligation to do
so based on his issuing a ticket for no proof of insurance, which triggered his legal
15
obligation to have the vehicle towed pursuant to La.R.S.32:863.1(C)(1)(a). In
granting the Defendants’ Motion for Involuntary Dismissal, the trial court
considered the evidence presented by the plaintiff and found that Mr. Jones had
“no right to relief.” See La.Code Civ.P art. 1672(B).
After a thorough review of the record, we agree and find that the trial court’s
ruling was not manifestly erroneous. We affirm the trial court’s judgment granting
the Defendants’ Motion for Involuntary Dismissal of Mr. Jones’ sole remaining
claim against the Town of Woodworth and Officer David Sikes with prejudice at
his cost.
As we have affirmed the trial court’s ruling that no duty was owed to Mr.
Jones by Officer Sikes based on his only remaining claim of wrongful towing, we
pretermit any further discussion of Mr. Jones’ remaining assignments of error,
including the remaining assignments of error seeking damages related to the
wrongful towing.
CONCLUSION
For the foregoing reasons, the trial court’s March 11, 2015 judgment
dismissing the claims of Kevin W. Jones, Jr. against the Town of Woodworth and
David Sikes is affirmed. The Town of Woodworth and David Sikes’ Peremptory
Exception of No Cause of Action is denied. All costs on appeal are assessed to
Kevin W. Jones, Jr.
AFFIRMED. PEREMPTORY EXCEPTION OF NO CAUSE OF
ACTION DENIED.
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