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Harper v. State

Court of Appeal of Louisiana,Fourth Circuit.
Sep 9, 2015
176 So. 3d 479 (La. Ct. App. 2015)

Opinion

No. 2014–CA–0110.

09-09-2015

Sharon HARPER and Michael Johnson Harper v. The STATE of Louisiana, through ITS DEPARTMENT OF HEALTH AND HOSPITALS; and The Department of Health and Hospitals.

Darleen M. Jacobs, Melvin J. Burmaster, Hunter Harris, IV, Jacobs, Sarrat, Lovelace, & Harris, New Orleans, LA, for Plaintiffs/Appellees, Sharon Harper, et al. Patricia Nalley Bowers, Marian T. Harrison, Bowers & Bowers, New Orleans, LA, for Defendants/Appellants, The State of Louisiana, through Its Department of Health and Hospitals, and the Department of Health and Hospitals.


Darleen M. Jacobs, Melvin J. Burmaster, Hunter Harris, IV, Jacobs, Sarrat, Lovelace, & Harris, New Orleans, LA, for Plaintiffs/Appellees, Sharon Harper, et al.

Patricia Nalley Bowers, Marian T. Harrison, Bowers & Bowers, New Orleans, LA, for Defendants/Appellants, The State of Louisiana, through Its Department of Health and Hospitals, and the Department of Health and Hospitals.

Opinion

TERRI F. LOVE, Judge.

This appeal arises from the illegal confinement of Willie Warren Harper following an acquittal of not guilty by reason of insanity for theft and a commitment to the custody of Louisiana Department of Health and Hospitals. Once released from custody, Mr. Harper filed a class action lawsuit seeking damages, but passed away. His children then filed suit against the State of Louisiana and the Louisiana Department of Health and Hospitals seeking damages individually and on behalf of their father. Mr. Harper's class action petition was dismissed. Following a jury trial, the Louisiana Department of Health and Hospitals was found one hundred percent liable for Mr. Harper's period of illegal confinement. The jury awarded $4,050,000.00 in damages to Mr. Harper's children on his behalf and individually.

The State and the Louisiana Department of Health and Hospitals assert that: 1) the jury erred in finding that the Louisiana Department of Health and Hospitals had the authority to release Mr. Harper without a court order, 2) the “trial court erred in refusing to reduce the jury verdict pursuant to the statutory cap in La. R.S. 13:5106”, 3) the trial court erred in denying the exception of no cause of action as to the civil rights claims because neither the State, nor its agencies constitute a “person,” 4) the jury committed manifest error “in failing to allocate fault to the Orleans Parish Criminal Court ... the Orleans Parish Sheriff's Office; and Willie Harper,” 5) the jury committed manifest error “in finding the DHH liable for the entire period of Mr. Harper's alleged illegal confinement,” and 6) the jury erred in awarding the plaintiffs individual damages because the jury found that the Louisiana Department of Health and Hospitals was not liable for Mr. Harper's death.

After our review, all five judges on the panel found that the trial court erred by denying the defendants' exception of no cause of action because the State and Louisiana Department of Health and Hospitals are not considered “persons” pursuant to § 1983. Four judges agreed that the Louisiana Department of Health and Hospitals did not possess the sole authority to release Mr. Harper without a court order. Four judges also found that the Louisiana Department of Health and Hospitals owed a duty to Mr. Harper and was liable for his wrongful detention. Three judges held that the children failed to meet their burden of proof sufficient for an award for loss of consortium. Accordingly, we find that the trial court abused its discretion by awarding the children $275,000.00 each for loss of consortium, pursuant to La. C.C. art. 2315, and vacate the awards. Four panel members agreed that the trial court erred by refusing to limit the damage awards to $500,000.00 because the statutory cap applied at the time of judicial demand. Accordingly, and in compliance with Parfait v. Transocean Offshore, Inc.,07–1816 (La.9/19/07), 964 So.2d 928, we affirm in part, reverse in part, and render a judgment in favor of the children for $500,000.00.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 30, 1984, Willie Warren Harper was arrested for theft and possession of stolen property listed as, “aluminum pressure bars and door frames from the Louisiana World Exposition in downtown New Orleans, Louisiana.” On June 28, 1984, after being found incompetent to stand trial, Mr. Harper was committed to the Feliciana Forensic Facility (“FFF”), a part of the Department of Health and Hospitals (“DHH”), to restore his competency. On May 6, 1985, FFF deemed Mr. Harper competent to stand trial and transferred him to the custody of the Orleans Parish Sheriff's Office (“OPSO”) on June 26, 1985. The criminal court judge conducted a bench trial on August 14, 1985, and found Mr. Harper not guilty by reason of insanity (“NGRI”).

Mr. Harper suffered from chronic paranoid schizophrenia.

On August 24, 1989, the criminal court judge found that Mr. Harper was not a danger to himself or others and that he should be released on the condition that the Orleans Inmate Treatment Service (“OITS”) locate a suitable halfway house for Mr. Harper and/or assist him in applying for welfare and social security. The criminal court judge requested an update by September 1, 1989. On December 29, 1989, the criminal court judge ordered that Mr. Harper be released when suitable living arrangements were made by Mr. Harper's counsel.

However, Mr. Harper remained in the custody of the OPSO until March 20, 1990, when he was transferred back to the custody of FFF. On January 7, 1992, the criminal court judge denied an FFF request to utilize excursion passes in furtherance of the deinstitutionalization of Mr. Harper. On June 27, 1994, the criminal court judge ordered that Mr. Harper be transferred within DHH to East Louisiana State Hospital (“ELSH”). Mr. Harper was moved to ELSH on December 6, 1994. On February 16, 1996, the criminal court judge signed an order permitting Mr. Harper to use family excursion passes. Subsequently, while on conditional release, Mr. Harper tested positive for cocaine usage on several of his visits with the after-care clinic.

On October 22, 1997, counsel for Mr. Harper filed an Emergency Application for a Writ of Habeas Corpus, which was granted on October 29, 1997. On December 3, 1997, the criminal court judge issued a judgment that recalled the original judgment as erroneous, but Mr. Harper remained unconditionally discharged.

Following Mr. Harper's release from custody, he filed a Class Action Petition for Certification and Damages stemming from his alleged illegal confinement and sought to have the petition certified as a class action. However, Mr. Harper passed away on November 14, 2003.Sharon Harper and Michael Johnson Harper, as Mr. Harper's children (collectively “Plaintiffs”), filed a Petition for Damages against the State of Louisiana, through DHH and DHH (collectively “Defendants”) after the death of their father.

Mr. Harper's class action petition was dismissed on February 17, 2006.

The Defendants filed a Motion for Partial Summary Judgment asserting that an award to the Plaintiffs would be subject to the application of the $500,000.00 statutory cap on damages, pursuant to La. R.S. 13:5106. The trial court granted the Defendants' Motion for Partial Summary Judgment and found that the $500,000.00 statutory cap applied.

Following a nine-day jury trial, the jury found that DHH possessed the authority to release Mr. Harper with or without a court order from August 14, 1985, through January 22, 1997. The jury found that DHH owed a duty to Mr. Harper to release him from custody and that DHH violated that duty. However, the jury found that no actions or inactions of the “Orleans Parish Criminal Court judges and staff, the Orleans Parish Criminal Clerk of Court and its staff, the Orleans Parish Sheriff's Office, State of Louisiana through DHH (OITS Program), Charles Foti, Jr., the Indigent Defender Attorneys and/or Willie Harper” constituted “an independent intervening cause” of Mr. Harper's alleged illegal confinement from August 14, 1985, through January 22, 1997. While the jury found that DHH was not liable for Mr. Harper's alleged wrongful death, DHH was found one hundred percent liable for his extended confinement. The jury awarded $4,050,000.00 in damages.The trial court entered a judgment on the jury verdict. The Defendants filed a Motion for Judgment Notwithstanding the Verdict or a New Trial and exceptions of no cause of action and no right of action regarding the 42 USC § 1983claims and the trial court's failure to apply the statutory cap based on law and the trial court's prior ruling that the statutory cap applied. The trial court denied all of the Defendants' requested relief. The Defendants' suspensive appeal followed.

Willie Harper:Wrongful Detention:Conscious pain and suffering:$500,000.00Mental anguish:$500,000.00Emotional stress and strain:$500,000.00Civil Rights Violation:Conscious pain and suffering:$500,000.00Mental anguish:$750,000.00Emotional stress and strain:$750,000.00Sharon Harper:Loss of love and affection:$75,000.00Loss of nurture and support:$50,000.00Loss of society:$50,000.00Mental anguish:$50,000.00Emotional stress and strain:$50,000.00Wrongful death of Willie Harper:$0.00Michael Harper:Loss of love and affection:$75,000.00Loss of nurture and support:$50,000.00Loss of society:$50,000.00Mental anguish:$50,000.00Emotional stress and strain:$50,000.00Wrongful death of Willie Harper:$0.00Total:$4,050,000.00

The Defendants contend that: 1) the jury erred in finding that DHH had the authority to release Mr. Harper without a court order, 2) the “trial court erred in refusing to reduce the jury verdict pursuant to the statutory cap in La. R.S. 13:5106,” 3) the trial court erred in denying the exception of no cause of action as to the civil rights claims because neither the State, nor its agencies constitute a “person,” 4) the jury committed manifest error “in failing to allocate fault to the Orleans Parish Criminal Court ... the Orleans Parish Sheriff's Office; and Willie Harper,” 5) the jury committed manifest error “in finding the DHH liable for the entire period of Mr. Harper's alleged illegal confinement,” and 6) the jury erred in awarding the Plaintiffs individual damages because the jury found that DHH was not liable for Mr. Harper's death.

STANDARD OF REVIEW

Factual findings are reviewed by appellate courts using the manifest error/clearly wrong standard of review. Hall v. Folger Coffee Co.,03–1734, p. 9 (La.4/14/04), 874 So.2d 90, 98. There are two prerequisites for reversing a factfinder's determination. Stobart v. State through Dep't of Transp. & Dev., 617 So.2d 880, 882 (La.1993). First, “[t]he appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court.” Id.Second, “the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).” Id.“[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one.” Id.

“Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Id.“However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the” appellate court “may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.”Id.“[W]here two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.” Id., 617 So.2d at 883. “The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently.” Detraz v. Lee,05–1263, p. 7 (La.1/17/07), 950 So.2d 557, 561.

Questions of law, on the other hand, are reviewed utilizing the de novostandard of review. Harold A. Asher, CPA, LLC v. Haik,12–0771, p. 5 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 724. When the law is erroneously applied by the trial court, the de novostandard of review is also used. Kevin Associates, L.L.C. v. Crawford,03–0211, p. 15 (La.1/30/04), 865 So.2d 34, 43.

TRIAL TESTIMONY

Sharon testified that Mr. Harper was her father and a professional singer. When she was a child, Mr. Harper would pick her up after school and take her to “play.” Sharon continued to see Mr. Harper after her parents' separation. While Sharon attended college, she and her father would speak occasionally, about once every three months. She visited Mr. Harper at FFF twice. Sharon testified that Mr. Harper would telephone about three times a week. Mr. Harper attended Sharon's wedding in 1996, and used some weekend excursion passes to visit.

Michael also testified that Mr. Harper was his father. Mr. Harper lived with him until he was eight or nine. While Mr. Harper was located at FFF, Michael testified that they would speak often. Michael visited his father there once and stated that Mr. Harper wrote him. Mr. Harper did not use weekend excursion passes to visit with Michael.

Retired judge, Miriam Waltzer,testified regarding Mr. Harper's criminal court proceedings. Judge Waltzer stated that nothing in the criminal court record indicated that Mr. Harper was a danger to himself or others and that Mr. Harper should have been released from custody after her judgment finding him NGRI. Judge Waltzer testified that she did not know why Mr. Harper's docket master was marked “closed” after his trial. There were no subsequent hearings listed in the docket master to determine whether Mr. Harper was a danger to himself or others. However, Judge Waltzer testified that she “would have held that hearing and [she] would have issued a judgment.” In regards to the judgment for that hearing, Judge Waltzer stated, “[w]here that thing went, I do not know.” Judge Waltzer examined docket master entries regarding various attempts to find Mr. Harper suitable housing for a conditional release from custody. Judge Waltzer stated that she “didn't want a headline in the newspaper that said that Judge Waltzer released somebody who was found on the street totally, you know, bereft of all humanity because he had been tossed out and he had nobody.”

Judge Waltzer served as a trial court judge and an appellate court judge.

Dr. Edward Levy, the Plaintiffs' expert in psychiatry, examined Mr. Harper pursuant to orders from the criminal court judge and found him competent to stand trial in July 1985.

Dr. Ciro Juarez–Nunez, an expert in the field of psychiatry, worked as one of two treating psychiatrists for OITS. Dr. Juarez–Nunez testified that once someone was found NGRI, they would be placed in the State's custody. Once a person is committed, then he is under the legal care of DHH, but physically in the care of the OPSO.

Dr. Martha Wickett testified that she prepared the report on Mr. Harper in 1984, regarding his competency to stand trial. Dr. Wickett found that Mr. Harper was unable to assist his attorney and was unable to understand the seriousness of the charges against him. Accordingly, Dr. Wickett found that Mr. Harper was incompetent to stand trial. However, Dr. Wickett did not have any independent recollection of Mr. Harper.

Adrienne LaCour, a fact witness for the Plaintiffs and a former assistant district attorney, testified that once a defendant was determined to be NGRI, then a hearing would be conducted to determine whether the defendant could be released under supervision or kept in custody. Ms. LaCour testified that the record was unclear as to why Mr. Harper did not receive a follow-up hearing after he was found NGRI.

Emily Morrison testified that she worked with the State's counsel while researching trial court files. Ms. Morrison located a portion of Mr. Harper's court files in another criminal defendant's file.

Dr. Eleanor Krimerman, the Defendants' expert in the field of psychiatry, was appointed by the criminal court judge to examine Mr. Harper. Dr. Krimerman testified before the criminal court judge that Mr. Harper was competent to stand trial. Dr. Krimerman was appointed to examine Mr. Harper again in 1989, and found that he was not a danger to himself or others. Having found that Mr. Harper was not a danger to others, Dr. Krimerman recommended that Mr. Harper be released from custody and attend a mental health center for a least a year. Dr. Krimerman stated, in her report that “[h]e seemed delusional in that he talked about making hit records and” Mr. Harper “seemed rather confident that he could get a recording contract to sing after he got out of prison.” Dr. Krimerman testified that she was unaware of Mr. Harper's alleged previous singing career.She would not have labeled Mr. Harper as delusional based on those statements if she had known of his alleged singing career.

Counsel for the Plaintiffs asserted during the entire trial that Mr. Harper “was extremely successful in the music industry” prior to his confinement and sang with the Allen Toussaint band, Ernie K–Doe, vocals on “Working on the Chain Gang,” etc. However, no evidence of this was admitted into the record aside from testimony and a “Google” search conducted in front of the jury.

Larry Turner, a social worker and head of OITS, testified that the OPSO determined where people were housed, but that medication was provided through DHH. Mr. Turner worked for DHH from 1979 to 2006. Mr. Turner stated that a court order was necessary to release a prisoner. Mr. Turner testified that Judge Waltzer asked him to locate a group home placement for Mr. Harper, but that Mr. Harper did not meet the criteria of the group home chosen.

Mark Ott, a psychiatric social worker, was the administrator and CEO of the program at FFF. Mr. Ott testified that FFF was a legal program operated in the court system and that people entered and exited the program by court order.

Dr. Sarah DeLand, the Defendants' expert in general psychiatry and the specialty of forensic psychiatry, worked as the clinical director for the forensic after-care clinic that started to see Mr. Harper after his “standard conditional release” from ELSH. Mr. Harper visited the after-care clinic for “his psychiatric and mental health treatment as well as monitoring and supervision and reporting” prior to the granting of Mr. Harper's Writ of Habeas Corpus, which released him from DHH custody completely. Dr. DeLand diagnosed Mr. Harper with schizoaffective disorder. She testified that Mr. Harper tested positive for cocaine usage while under the care of the after-care clinic.

Dr. Richard Richoux, another defense expert in psychiatry and forensic psychiatry, testified that Mr. Harper was schizophrenic and occasionally psychotic. Dr. Richoux stated that the criminal court judge determined releases or transfers from the hospital or the usage of excursion passes. Dr. Richoux testified that FFF was not mandated to look for housing for prisoners.

Dr. John Thompson, Jr., the Defendants' final expert in general psychiatry and forensic psychiatry, worked in conjunction with the State Forensic Hospital beginning in 1993, and now functions as the head of FFF. Dr. Thompson, Jr. evaluated Mr. Harper. He subsequently held a review panel of Mr. Harper in April 1994, after reviewing his past medical records. Dr. Thompson, Jr. testified, from the records, that FFF made recommendations regarding Mr. Harper's condition and release to the criminal court judge, but never received any responses. On cross-examination, Dr. Thompson, Jr. was asked if the record contained any “green cards” certifying or serving as proof that the criminal court judges received FFF's correspondence. He replied that there were no “green cards” or certifications.

Clay Calhoun, the first director of Community Forensic Services for DHH and an attorney who worked with OITS on the waiting list, testified that he routinely experienced problems with criminal court judges failing to hold a “dangerousness” hearing after being found NGRI. Mr. Calhoun further stated that he had trouble getting paperwork from criminal court judges regarding NGRI hearings and the follow-up “dangerousness” hearings.

AUTHORITY TO RELEASE MR. HARPER

The Defendants contend that the jury erred as a matter of law in finding that DHH could release Mr. Harper without a criminal court order because numerous witnesses testified that a criminal court order for release was required.

La.C.Cr.P. art. 654provides that:

[w]hen a defendant is found not guilty by reason of insanity in any other felony case, the court shall remand him to the parish jail or to a private mental institution approved by the court and shall promptly hold a contradictory hearing at which the defendant shall have the burden of proof, to determine whether the defendant can be discharged or can be released on probation, without danger to others or to himself.

“When the superintendent of a mental institution is of the opinion that a person committed pursuant to Article 654can be discharged or can be released on probation, without danger to others or to himself, he shall recommend the discharge or release of the person in a report to a review panel....” La.C.Cr.P. art. 655(A). “After review, the panel shall make a recommendation to the court by which the person was committed as to the person's mental condition and whether he can be discharged, conditionally or unconditionally, or placed on probation, without being a danger to others or himself.” La.C.Cr.P. art. 655(A). “If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on probation, the court shall conduct a contradictory hearing following notice to the district attorney.” La.C.Cr.P. art. 655(A).

DHH contends that the criminal court judge was unresponsive to correspondence documenting compliance with the required procedures. However, the Plaintiffs assert that there is no proof in the record that the criminal court judge received the alleged correspondence. Further, the Plaintiffs contend that the judgments instructing DHH to release Mr. Harper constituted enough evidence for reasonable jurors to conclude that DHH possessed the authority to release Mr. Harper. We disagree.

The criminal court judge issued two judgments in 1989 finding that Mr. Harper was not a danger to himself or others and that he should be released with suitable living arrangements. Suitable living arrangements were required prior to Mr. Harper being released. The conditions were never met.

Mr. Turner, the former head of OITS, testified that a court order was required to discharge a prisoner. The criminal court judge asked that he find Mr. Harper a placement in a group home. Mr. Turner contacted one group home and was told that Mr. Harper did not meet the admittance criteria. Thereafter, Mr. Turner did not look for any other placements for Mr. Harper.

Mr. Ott testified that Mr. Harper could not be released without an order from the criminal court judge. Mr. Ott stated that “seven guys”were released from FFF based on Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992).Mr. Calhoun also testified that only a judge could release a prisoner.

The seven men included Mr. Foucha.

The Plaintiffs contend that Fouchamandated the release of Mr. Harper. However, we find Fouchadistinguishable in that the Fouchaplaintiff was not considered to be mentally ill. Foucha, 504 U.S. at 86, 112 S.Ct. at 1788.

Accordingly, given the overwhelming evidence and testimony presented at trial that only a criminal court order could release a prisoner and that the only orders issued in the case sub judicecontained conditions for release which were never met, we find that one reasonable conclusion could be reached by the jury. The jury could not have reasonably concluded that DHH possessed the sole authority to release Mr. Harper without a court order. Therefore, we find that DHH did not possess the sole authority to release Mr. Harper without a court order, and we reverse.

ALLOCATION OF FAULT

Defendants assert that the jury committed manifest error “in failing to allocate fault to any of the other entities that caused Mr. Harper's confinement” and for “finding DHH liable for the entire period of Mr. Harper's alleged illegal confinement.”

“When the district court has allowed both parties to present their experts before making its factual determinations, the factfinder's choice of alternative permissible views cannot be considered to be manifestly erroneous or clearly wrong.” Toston v. Pardon,03–1747, p. 12 (La.4/23/04), 874 So.2d 791, 800. “However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story,” we “may find manifest error even in a finding purportedly based on a credibility determination.” Id.“Whether a fact-finder determines a party to be one percent at fault, totally at fault, or somewhere in between, the manifest error rule applies.” Towns v. Georgia Cas. & Sur. Co., 459 So.2d 124, 126 (La.App. 2nd Cir.1984). “Different juries and jurors may often give dissimilar apportionment.” Id.

“[T]he allocation of fault is not an exact science, or the search for one precise ratio.” Riley v. Reliance Ins. Co.,97–0445, p. 6 (La.App. 4 Cir. 11/19/97), 703 So.2d 158, 163. “Rather, it is an acceptable range and any allocation by the jury within that range cannot be ‘clearly wrong.’ ” Id., quoting Clement v. Frey,95–1119, 95–1163, p. 7 (La.1/16/96), pp. 7–8, 666 So.2d 607, 610–11. “Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion.” Duncan v. Kansas City S. Ry. Co.,00–0066, p. 11 (La.10/30/00), 773 So.2d 670, 680–81.

During the nine days of trial, the jury was presented with lengthy testimony and voluminous record evidence. After hearing the testimony and reviewing the evidence, the jury concluded that DHH possessed the sole responsibility and authority to release Mr. Harper without a court order. As discussed above, we found that DHH did not possess the sole authority to release Mr. Harper without a court order.

Judge Waltzer testified that Mr. Harper's criminal court record did not indicate that he was a danger to himself or others, so he should have been released from custody following the finding of NGRI. Judge Waltzer did not know why Mr. Harper's file was marked “CLOSED” a little over ten days after he was found NGRI. Judge Waltzer stated that she would have held the secondary contradictory hearing to determine if Mr. Harper was a danger to himself or others. She opined that a notation of the hearing must be missing from the docket master. Judge Waltzer later ordered that Mr. Harper be released once suitable living arrangements were made. Mr. Harper's criminal court docket master sheet stopped in 1985, and resumed in 1989.

Dr. Juarez–Nunez testified that once a person was found NGRI, then he would have been in the State's custody. Dr. Juarez–Nunez also stated that once someone is committed, he is under the legal care of DHH.

The record reveals that criminal court did not hold a second contradictory hearing for Mr. Harper after he was found NGRI, pursuant to La.C.Cr.P. art. 654. In fact, the record demonstrates that criminal court marked Mr. Harper's file as “CLOSED” once he was found NGRI. While the medical records reflect that FFF routinely evaluated Mr. Harper's condition, the record did not contain proof that the FFF documents were received by the criminal court judge. Criminal court did not respond to these FFF documents. The criminal court records included two judgments rendered in 1989, which found that Mr. Harper should be released once certain requirements for living conditions were met because he was not a danger to himself or others. However, those conditions were not met, and the criminal court judge did not issue an order releasing Mr. Harper unconditionally.

Mr. Harper was transferred to the custody of the OPSO after he was found NGRI in 1985, until 1990, when he was transferred back to FFF. For these years the OPSO did not contact anyone regarding Mr. Harper's status.

Further, the Orleans Indigent Defender Program(“OIDP”) was responsible for representing Mr. Harper. However, the OIDP did not file a motion on Mr. Harper's behalf to ensure that he received the second contradictory hearing to determine if he was a danger to himself or others. OIDP also failed to file pleadings to check on Mr. Harper's status from 1985 to 1989, while he was in the custody of the OPSO. The criminal court judge also ordered OIDP to find Mr. Harper a suitable place to live. However, like OITS and the criminal court, OIDP failed to do so.

Following Hurricane Katrina, OIDP became known as Orleans Public Defenders or OPD.

From the evidence presented, it is clear that DHH, OPSO, criminal court, and OIDP all contributed to Mr. Harper's wrongful confinement. Therefore, we find that the jury committed manifest error in concluding that DHH was solely liable for the entire time period of Mr. Harper's confinement. Pursuant to case law, we must raise and lower the fault apportionment to percentages which were within the trial court's discretion. Criminal court failed to hold the hearing for Mr. Harper regarding whether he was dangerous to himself or others and marked his file “CLOSED.” Accordingly, we find that criminal court be apportioned thirty percent fault for Mr. Harper's wrongful confinement. OIDP failed to file motions and pleadings on behalf of their client for years. As such, we find that it is twenty percent liable. The OPSO held Mr. Harper from 1985 to 1990 without checking his status with criminal court or DHH. Therefore, the OPSO is allotted fifteen percent fault. DHH is then attributed with the remaining thirty-five percent liability for Mr. Harper's wrongful confinement. We reverse, and reapportion fault as described above.

While the fourth judge holding DHH liable found only DHH liable, four judges, a majority of the panel, find DHH liable, at least in part, for Mr. Harper's unlawful detainment. See Parfait v. Transocean Offshore, Inc.,07–1816 (La.9/19/07), 964 So.2d 928.

INDIVIDUAL DAMAGES

Defendants contend that [t]he jury erred in awarding Sharon Harper and Michael Harper damages individually because the jury found that DHH did not cause Mr. Harper's death. The jury awarded separate awards to both Sharon and Michael as follows:

Loss of love and affection:

$75,000.00

Loss of nurture and support:

$50,000.00

Loss of society:

$50,000.00

Mental anguish:

$50,000.00

Emotional stress and strain:

$50,000.00

Total:

$275,000.00

“Although both actions arise from a common tort, survival and wrongful death actions are separate and distinct.” Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). “Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses.” Id.

“The right to recover all damages for” a person's injuries, damage to “his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of” the person's children. La. C.C. art. 2315.1. “The survival action comes into existence simultaneously with the tort, permits recovery only for the damages suffered by the victim from the time of injury to the moment of death, and is transmitted to the victim's beneficiaries upon his death.” Boullt v. State Farm Mut. Auto. Ins. Co.,99–0942 (La.10/19/99), 752 So.2d 739, 743–44.

“If a person dies due to the fault of another, suit may be brought by the” children “to recover damages which they sustained as a result of the death.” La. C.C. art. 2315.2. “[T]he wrongful death action arises only if and when the victim dies and compensates the beneficiaries for their own individual injuries that occur at the moment of the victim's death and thereafter.” Boullt,99–0942, 752 So.2d at 744.

The jury found that DHH was not responsible for Mr. Harper's death. Therefore, Plaintiffs are not entitled to wrongful death damages. However, Plaintiffs assert that La. C.C. art. 2315(B)supports the jury's individual damage awards to Sharon and Michael for loss of consortium. La. C.C. art. 2315(B)provides:

B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.

Plaintiffs sought relief pursuant to La. C.C. art. 2315, et seq.in their Petition for Damages filed in 2003. “The new provision for consortium damages in Article 2315does not state that recovery of such damages is restricted to wrongful death cases.” Ferguson v. Burkett, 454 So.2d 413, 416 (La.App. 3rd Cir.1984). Therefore, Plaintiffs' assertion has merit.

Mr. Harper was released in 1997. Plaintiffs had one year from that date to file suit based on loss of consortium to avoid prescription. La. C.C. art. 3492. Plaintiffs' Petition for Damages was filed in 2003. Thus, their claims for loss of consortium should be prescribed. However, “[t]he court may not supply the objection of prescription, which shall be specially pleaded.” La. C.C.P. art. 927. Therefore, as no party alleged that loss of consortium damages were prescribed, we must determine whether the jury abused its discretion by awarding Sharon and Michael each $275,000.00 for loss of consortium.

“A loss of consortium award is a fact-specific determination, to be decided case-by-case.” Turner v. Lyons,03–0186, p. 12 (La.App. 4 Cir. 1/28/04), 867 So.2d 13, 21. “[T]he initial inquiry is whether the award for the particular injuries and their effects, under the particular circumstances, on the particular injured person is a clear abuse of the ‘much discretion’ vested in the judge or jury.” Id.,03–0186, p. 9, 867 So.2d at 20. “[A]n award for loss of consortium is properly made where there has been some measurable or compensable loss, such as loss of love and affection, society and companionship, right of performance of material services, right of support,aid and assistance, and felicity.” Id.,03–0186, p. 13, 867 So.2d at 22, quoting Armstrong v. Fireman's Fund Ins. Co., 558 So.2d 646 (La.App. 1st Cir.1990). “[W]hen the award, in either direction, is beyond that which a reasonable trier of fact could assess for effects of a particular injury to a particular plaintiff under particular circumstances, should an appellate court increase or reduce award.” Id.,03–0186, p. 9, 867 So.2d at 20. “Upon finding an abuse of discretion, the award can only be raised (lowered) to the highest (lowest) point, which is reasonably within the discretion of the trial court.” Id.

Sharon testified that she would wait for her father to “come home” when she was “a little girl” and that he would “always pick” her “up and play with” her. Sharon stated that Mr. Harper would schedule to take her places after her parents' separation. While in college, Sharon would speak to Mr. Harper occasionally, about once every three months, and then “periodically” after she relocated back to New Orleans. Mr. Harper “very seldom” sent her money. Sharon testified that she could “[u]sually ... get in touch with him through relatives.” Sharon stated that her father disappeared around 1984, and she eventually discovered that he was in a mental facility around 1994 or 1995. Sharon visited Mr. Harper twice while he was detained at FFF and he telephoned her about three times a week. Mr. Harper utilized an excursion pass to attend her wedding in 1996.

Michael stated that he remembered his father as a “sweet man” that lived with him until he was about eight or nine years old. After his parents separated, Michael testified that Mr. Harper continued to “come around” and that Mr. Harper introduced him to his older sister, Sharon. Mr. Harper “wasn't there when [he] was in high school.” Michael graduated from high school in 1985. During the years Michael was in college at Delgado he made no attempts to find his father and relied upon Sharon to find Mr. Harper. Michael stated that Mr. Harper “would call [him] maybe like a lot” or “like every weekend” while confined. Mr. Harper allegedly sent him a $300 check once. Michael visited his father once “like right before he got out” and stated that Mr. Harper wrote him. Neither Sharon nor Michael continuously remained in contact with their father before or after his confinement.

“[W]hile ‘every personal injury tends to decrease the parties' overall happiness,’ it is the plaintiff who carries the burden of proving a definite loss on each element of damages.” Gradnigo v. Louisiana Farm Bureau Cas. Ins. Co.,08–1198, p. 15 (La.App. 3 Cir. 3/4/09), 6 So.3d 367, 377, quoting Finley v. Bass, 478 So.2d 608, 614 (La.App. 2nd Cir.1985). “ ‘Ordinarily, the parent's duty to provide largely disappears when the child attains majority, unless the child is still in school, less than nineteen years old, and dependent.’ ” Turner,03–0186, p. 13, 867 So.2d at 22; quoting Sebastien, et al. v. McKay, M.D., et al.,94–203, p. 6 (La.App. 3 Cir. 11/23/94), 649 So.2d 711, 715.

“An award for loss of consortium is only proper where there has been some measurable or compensable loss.” Leckelt v. Eunice Superette, Inc., 555 So.2d 11, 13 (La.App. 3rd Cir.1989). After reviewing Sharon and Michael's scant testimony, we find that insufficient evidence exists to sustain an award for the loss of consortium, in that a measurable or compensable loss was not proven. See Johnmeyer v. Creel, 499 So.2d 571, 576 (La.App. 2nd Cir.1986). Sharon and Michael did not garner any financial support from their father and were essentially estranged from him with limited contact and communication. That limited contact and communication was not impaired during Mr. Harper's confinement. Accordingly, we find that the Plaintiffs failed to prove they suffered a measureable and compensable loss and that the jury erred by awarding $275,000.00 each to Sharon and Michael for loss of consortium. Therefore, we reverse, and vacate the awards.

NO CAUSE OF ACTION

The Defendants aver that the trial court erred in denying their peremptory exception of no cause of action regarding civil rights violations because the State and its agencies are not categorized as “persons” pursuant to 42 U.S.C. § 1983.

“The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision.” La. C.C.P. art. 928(B). “The purpose of an exception of no cause of action is to determine the sufficiency in law of the pleading setting forth the claim or demand.” Bd. of Examiners of Certified Shorthand Reporters Through Juge v. Neyrey, 542 So.2d 56, 64 (La.App. 4th Cir.1989).

Two requirements must be met to state a cause of action pursuant to § 1983. Neyrey, 542 So.2d at 66. “First, the conduct complained of must have been committed by a person acting under color of state law, and second, this conduct must have deprived the plaintiff of rights, privileges and immunities secured by the United States Constitution or laws of the United States.” Id.This Court held that “States and arms of state government are not persons who may be sued under” § 1983. Id. See also Richard v. Bd. of Sup'rs of Louisiana State Univ. & A & M Coll.,06–0927, pp. 19–21 (La.App. 1 Cir. 3/28/07), 960 So.2d 953, 965–66; Varnado v. Dep't of Employment & Training,95–0787, p. 8 (La.App. 1 Cir. 6/28/96), 687 So.2d 1013, 1022; Louisiana Farms v. Louisiana Dep't of Wildlife & Fisheries,95–845, p. 9 (La.App. 3 Cir. 10/9/96), 685 So.2d 1086, 1092; LaBauve v. State, 618 So.2d 1187, 1191 (La.App. 3rd Cir.1993). “[S]tate agency' means any board, commission, department, agency, special district, authority, or other entity of the state.” La. R.S. 13:5102(A).

Because a State and its agencies are not considered “persons” pursuant to § 1983, we find that the trial court committed legal error by denying the Defendants' exception of no cause of action.

However, this Court found that the United States Supreme Court impliedthat 1983 immunity could be waived. Sommer v. State, Dep't of Transp. & Dev.,97–1929, p. 22 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 937. (Emphasis added). Thus, Plaintiffs contend that § 1983immunity can be waived. Having addressed the above statutory question and found that the Plaintiffs did not possess a cause of action against the Defendants pursuant to § 1983, we need not reach the issue of this potential defense to a valid § 1983claim. We note that the Defendants plead the defense of “qualified immunity and/or the doctrine of privilege.” Additionally, Sommerdid not expressly overrule the previously cited vast amount of jurisprudence of Louisiana or the United States Supreme Court in Will v. Michigan Dep't of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989), which found that a state was not a “person” pursuant to § 1983.

Further, the Plaintiffs contend that the State may be liable for the tort actions of employees, but that the claim “must be predicated upon ‘gross negligence’ amounting to ‘conscious indifference’ and there must be a pattern or practice of constitutional violations supporting the theory of gross negligence.”Price v. Louisiana

Dep't of Transp. & Dev., 608 So.2d 203, 209 (La.App. 4th Cir.1992). Plaintiffs also aver that the jury “had ample grounds to determine that DHH was both ‘consciously indifferent’ to Harper's situation and engaged in a pattern and practice of constitutional violations in detaining Harper.” However, the issues of gross negligence or conscious indifference were not placed before the jury by the trial court. Therefore, we vacate the jury's $2,000,000.00 award for civil rights damages, as the trial court should have granted the exception of no cause of action because the State and state agencies are not considered “persons” pursuant to § 1983.

STATUTORY CAP

The Defendants assert that the trial court erred as a matter of law in failing to reduce the jury awards pursuant to La. R.S. 13:5106.

The history of the statutory cap follows:

In 1985, the legislature passed Act No. 452 which amended La. R.S. 13:5106to establish a $500,000 limitation on general damages in suits against the state, a state agency, or political subdivision. In Chamberlain v. State, Through DOTD, 624 So.2d 874 (La.1993), the Louisiana Supreme Court declared the statute to be unconstitutional, finding that it conflicted with Article XII, Section 10(A) of the Louisiana Constitution. In 1995, the legislature passed Act 1328 which proposed the amendment of Article XII, Section 10(C) of the Constitutionto allow the legislature to “limit or provide the extent of liability of the state, a state agency, or a political subdivision in all cases.” Act 1328 was approved by the people of this state and became effective November 23, 1995.

In conjunction with Act 1328, the legislature enacted Act 828 which amended La.R.S. 13:5106(B)(1)to limit the recovery of general damages to “the limit of liability in effect at the time of judicial demand.” As of the effective date of the amendment, the limit of liability was $750,000. Thereafter, the limit of liability would be established on January 1 of each year by the Commissioner of Financial Institutions. In 1996, La. R.S. 13:5106(B)(1)was amended again to re-institute a fixed limit of liability of $500,000 on general damages. See Act 63 of 1996.

Castille v. State ex rel. Dep't of Transp. & Dev.,99–1334, pp. 1–2 (La.App. 3 Cir. 2/2/00), 758 So.2d 823, 824–25. The phrase: “at the time of judicial demand” was no longer necessary because the amount of the statutory cap was now a fixed limit of liability. Id.,99–1334, p. 5, 758 So.2d at 826–27. La. R.S. 13:5106(B)(1)now provides that:

B. (1) The total liability of the state and political subdivisions for all damages for personal injury to any one person, including all claims and derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings, and loss of future earnings, as provided in this Section, shall not exceed five hundred thousand dollars, regardless of the number of suits filed or claims made for the personal injury to that person.

The Plaintiffs contend that Mr. Harper's right to sue arose in 1985, and that his right to recover monetary damages without a statutory cap vested prior to the enactment of the statutory cap. This argument lacks merit. Jurisprudence dictates that the date of judicial demand determines whether the statutory cap applies. See Brown v. Louisiana Indem. Co.,96–1393, p. 3 (La.App. 3 Cir. 4/23/97), 693 So.2d 270, 272. See also Lewis v. State,96–1586, p. 6 (La.App. 1 Cir. 12/20/96), 685 So.2d 640, 643; Farley v. State Through Dep't of Transp. & Dev.,96–0538, 960539 p. 5 (La.App. 1 Cir. 9/27/96), 680 So.2d 750, 753; Holt v. State Through Dep't of Transp. & Dev.,28,183, p. 15 (La.App. 2 Cir. 4/3/96), 671 So.2d 1164, 1174; Begnaud v. Dep't of Transp. & Dev.,95–714, 95–715, p. 19 (La.App. 5 Cir. 2/14/96), 679 So.2d 113.

The date of judicial demand in the case sub judicewas December 5, 2003, when the Plaintiffs filed their petition while the statutory capwas effective. Additionally, the trial court found that the statutory cap applied when it granted the Defendants' Motion for Partial Summary Judgment on the issue.However, the trial court failed to apply that ruling when entering the jury's verdict.Given that the Plaintiffs filed their petition on December 5, 2003, when the statutory cap pursuant to La. R.S. 13:5106was effective, we find that the trial court erred by refusing to limit the Plaintiffs' damage awards to $500,000.00. Accordingly, we reverse, and apply the statutory cap to the final damage awards.

The statutory cap has been $500,000.00 since the 1996 Legislative session.

Plaintiffs did not seek supervisory review of this judgment.

The trial court denied the Defendants' Motion for Judgment Notwithstanding the Verdict or a New Trial based on the trial court's failure to apply the statutory cap pursuant to the law and the trial court's prior ruling.

DECREE

For the above-mentioned reasons, we find that DHH did not possess the sole authority to release Mr. Harper without a court order, and reverse. The evidence demonstrated that DHH was responsible for Mr. Harper's confinement. The jury abused its discretion by awarding Sharon and Michael $275,000.00 for loss of consortium because they failed to present proof of a measurable loss. Accordingly, we vacate the awards for civil rights violations and Sharon and Michael's individual damages. The trial court erred by denying Defendants' exception of no cause of action because the State and DHH are not considered “persons” pursuant to § 1983. Lastly, the trial court erred by refusing to limit the Plaintiffs' damage awards to $500,000.00, pursuant to the statutory cap. We affirmed the $1,500,000.00 in damages awarded on behalf of Mr. Harper's wrongful detention. DHH's thirty-five percent of liability equals $525,000.00. Once reduced in compliance with the statutory cap, $500,000.00 is awarded. Consistent with our findings, we affirm in part, reverse in part, and render.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED

DYSART, J., concurs in part and dissents in part.

LANDRIEU, J., concurs in part and dissents in part.

LOBRANO, J., concurs in part, dissents in part, and assigns reasons.

DYSART, J., concurs in part and dissents in part.

I agree with the majority's finding that the plaintiffs have not established a claim for civil rights damages under 42 U.S.C. § 1983and therefore, the trial court erred in denying the exception of no cause of action filed by the State of Louisiana and the Department of Health and Human Resources (“DHH”). I also agree with the majority that the plaintiffs failed to establish that they suffered any loss of consortium and as such, they are not entitled to an award for those damages. Finally, I agree with the majority's finding that the DHH did not have authority to release Mr. Harper without a court order expressly ordering the unconditional release of Mr. Harper.

While I agree with the majority that fault may lie with some of the parties, I do not believe the record demonstrates any liability on the part of the DHH for the damages alleged to have been incurred as a result of Willie Harper's detainment. While the majority assigns thirty-five percent liability to the DHH for Mr. Harper's “wrongful confinement,” the basis of that liability is unclear. In my view, the plaintiffs failed to establish a legal basis for their claims against the DHH, as explained herein.

Once a person has been found not guilty of a non-capital crime by reason of insanity, it is the trial court which determines the immediate disposition of that person. La.C.Cr.P. art. 654provides that “the court shallremand him to the parish jail or to a private mental institution approved by the court and shall promptly hold a contradictory hearing at which the defendant shall have the burden of proof, to determine whether the defendant can be discharged or can be released on probation, without danger to others or to himself.” (Emphasis added).

Thereafter, whether that person may be subsequently released is determined by La.C.Cr.P. art. 655, which sets forth the exclusivemanner by which that person may be released. Article 655provides, in pertinent part, as follows:

A. When the superintendent of a mental institution is of the opinion that a person committed pursuant to Article 654can be discharged or can be released on probation, without danger to others or to himself, he shall recommend the discharge or release of the person in a report to a review panel comprised of the person's treating physician, the clinical director of the facility to which the person is committed, and a physician or psychologist who served on the sanity commission which recommended commitment of the person.... The panel shall review all reports received promptly. After review, the panel shall make a recommendation to the court by which the person was committed as to the person's mental condition and whether he can be discharged, conditionally or unconditionally, or placed on probation, without being a danger to others or himself. If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on probation, the court shall conduct a contradictory hearing following notice to the district attorney.(Emphasis added).

Under La.C.Cr.P. art. 657, the trial court is to consider the reports submitted under Article 655and either “continue the commitment or hold a contradictory hearing to determine whether the committed person is no longer mentally ill ... and can be discharged, or can be released on probation, without danger to others or to himself....” After the hearing has been conducted, “and upon filing written findings of fact and conclusions of law, the courtmay order the committed person discharged, released on probation subject to specified conditions for a fixed or an indeterminate period, or recommitted to the state mental institution.” (Emphasis added). Id.

As comment (a) of the official comments to Article 657indicates, “[t]his article provides flexibility in release procedures, to cope with circumstances of individual cases, by allowing the court to act on

the basis of the application and reports filed,or to order a full hearing to determine the propriety of the requested release.” (Emphasis added). Thus, it is the trial court'sobligation to determine whether a person who had been committed after a guilty by reason of insanity (“NGRI”) finding may be released. There is no statutory provision whereby the DHH may release a person on its own determination. Nor is there any jurisprudential authority allowing the DHH the discretion to make the call as to whether a person may be released.

While the majority points to two judgments which found Mr. Harper to not be a danger to himself or others, neitherof those judgments ordered his unconditional release. Rather, and as Judge Waltzer testified, the judgments stated that Mr. Harper should be released only if suitable living arrangements could be found. At other times, psychiatrists testified at hearings before the trial court that, while Mr. Harper was not a danger, he was in need of supervision. The docket master following those hearings reflects that Mr. Harper's attorney was “to inform the Court as to the availability of a responsible person or relative” who could supervise Mr. Harper.

I find no authority, statutory or otherwise, which places the responsibility on the DHH to have located suitable living arrangements for Mr. Harper.

Similarly, I find no authority for the principle that the DHH is obligated to request hearings to determine whether a person found NGRI should be released pursuant to Article 655or move for a court order allowing the release of such person. Rather, Article 655indicates that, when the superintendent of a mental institution believes that the person is not a danger to himself or others, the superintendent is to “recommend the discharge or release of the person in a report to a review panel.” La.C.Cr.P. art. 655. The panel is then to “make a recommendation to the court.” Id.It is the trial court's responsibility to proceed thereafter. To hold otherwise would be to create an advocacy duty on the part of the DHH—to effectively make the DHH the “lawyer” for those persons in its custody—a result which is unsupported by our jurisprudence or statutory scheme.

In the instant matter, the record is replete with examples of review panel recommendations, evaluations and assessments of Mr. Harper, all of which were provided to the trial court. At no time did those recommendations, evaluations and assessments result in a hearing after which the trial court issued written findings of fact and conclusions of law, whereby the court “order[ed] that [Mr. Harper] be discharged, released on probation subject to specified conditions for a fixed or an indeterminate period, or recommitted to the state mental institution” pursuant to Article 657.

It should also be noted that Article 655permits “[a] person committed pursuant to Article 654[to] make application to the review panel for discharge or for release on probation.” Certainly, the lawyer of a person found NGRI may likewise seek for that person's discharge or release and our jurisprudence reflects many examples of cases in which either a person or his counsel moved for his release or for other considerations. See, e.g., State v. Perez, 563 So.2d 841, 841 (La.1990); State v. Smith,00–0907 (La.App. 4 Cir. 1/17/01), 779 So.2d 52; State v. Watson,00–2185 (La.App. 4 Cir. 1/17/01), 779 So.2d 46; State v. Breland, 495 So.2d 366, 367 (La.App. 3rd Cir.1986); State v. Boulmay, 498 So.2d 213, 214 La.App. 1st Cir.1986); State v. Stewart, 467 So.2d 1324, 1325 (La.App. 5th Cir.1985); State v. Rambin, 427 So.2d 1248, 1250 (La.App. 2nd Cir.1983).

In fact, in this case, in 1989, the Orleans Indigent Defender's office, on Mr. Harper's behalf, sought to have Mr. Harper evaluated to determine whether he could be released.

As stated previously, I agree with the majority's finding that civil rights damages are precluded as a matter of law.

Harper was arrested pursuant to La. R.S. 14:67for the theft of aluminum pressure bars valued at $4,200.00.

For these reasons, I do not find that the DHH has any liability for the alleged unlawful confinement of Mr. Harper and I would reverse the jury's award against the DHH altogether.

LANDRIEU, J., concurs in part and dissents in part.

I concur in the opinion of the majority insofar as it finds that the plaintiffs have not established a cause of action for civil rights damages under 42 U.S.C. § 1983and that therefore, the trial court erred by denying the exception of no cause of action filed by DHH. I also concur in the majority's finding as to the application of the statutory cap on damages against the State defendants pursuant to Louisiana Revised Statute 13:5106. On these issues, I agree with the reasoning and conclusions of the majority, and join in reversing the judgment of the trial court.

Appellants raise four additional issues: 1) whether the jury erred in finding that DHH had the authority to release Mr. Harper without a court order; 2) whether the jury committed manifest error in failing to allocate fault to other parties; 3) whether the jury committed manifest error “in finding DHH liable for the entire period of Mr. Harper's alleged illegal confinement;” and 4) whether the jury erred in awarding individual damages to Mr. Harper's children in light of its finding that the actions of the State defendants did not cause Mr. Harper's death. On the first three of these, I concur with the majority but deviate from the majority on the award of separate damages for loss of consortium.

I will address each of these additional four issues in turn but first discuss the jury interrogatories, which I believe resulted in the jury rendering an inconsistent verdict. The jury was presented with a set of interrogatories that were both confusing and inaccurate. Individual questions were poorly articulated in light of the facts and applicable law, the questions did not follow the proper duty/risk analysis, and the instructions throughout the interrogatories failed to properly direct the jury through its deliberative process. This resulted in the jury returning answers that were inconsistent with each other and made it impossible for the trial court to “enter judgment in conformity with the jury's answers to these special questions andaccording to applicable law.” See, La. C.C.P. art. 1812D (emphasis supplied). Pursuant to Code of Civil Procedure article 1813E, the inconsistencies in the jury's responses required the trial court to either “return the jury for further consideration of its answers or ... order a new trial.” See Banks v. Children's Hospital,13–1481, pp. 10–13 (La.App. 4 Cir. 12/17/14), 156 So.3d 1263, 1270–72.

The record before us reflects an emotionally-charged trial on the merits. Counsel for the plaintiffs expressed justifiable frustration with the manner in which Mr. Harper was “lost in the system,” and counsel for the State understandably was troubled by the lack of clarity as to whose duty it was, at various points during Mr. Harper's confinement, to determine when and whether to release Mr. Harper. At the close of a difficult trial, counsel and the court engaged in lengthy discussions, outside the presence of the jury, regarding both the jury charges and jury interrogatories. It is unclear from the record whether there was ultimate agreement on these issues, but neither party specifically raises the charges or interrogatories as assignments of error. In my view, however, the errors in the jury interrogatories are inextricably linked to the assignments of error raised by the defendants on appeal.

In its recitation of the facts, the majority correctly notes that Mr. Harper was found not guilty by reason of insanity in August of 1985. The majority then jumps to 1989, as did the plaintiffs in their presentation of the evidence. It is undisputed that Mr. Harper was housed at Orleans Parish Prison and in the physical custody of the Orleans Parish Sheriff (OPSO) during this four-year time period. It is also undisputed that DHH operated a program housed in OPP that was called the Orleans Inmate Treatment Services Program (OITS), which was designed to provide mental health treatment for inmates. Plaintiffs contend that Mr. Harper was in OITS and therefore was the responsibility of DHH for these four years; conversely, the defense contends he was in the care of OPSO. This crucial issue was never resolved in the trial court.

On August 24, 1989, the trial court rendered judgment, which stated the court's finding that Mr. Harper was not a danger to himself or to others and authorized his release on the condition that OITS “find a halfway house for the defendant and/or apply for welfare and social security.” DHH, the operator of OITS, did not challenge this responsibility. In a December 29, 1989 judgment, the trial court ordered Mr. Harper “to be released once suitable living arrangements can be made by his attorney.” Despite these orders, Mr. Harper remained in OPSO until 1990, when he was transferred to the Feliciana Forensic Facility. Later, in 1992, Feliciana Forensic Facility requested that the court allow weekend excursion passes in furtherance of its efforts to deinstitutionalize Mr. Harper. This request was denied. Mr. Harper was ultimately released in 1997.

These facts, which are properly recited by the majority, are reiterated here to illustrate the multiple errors in the jury interrogatories, which I believe led to the errors raised on appeal. The first five interrogatories the jury was asked to consider and their answers to these are as follows:

1. Did the State of Louisiana through DHH (OITS Program) or Orleans Parish Sheriff's Office have any control over the release of inmates during the period August 14, 1985 through January 22, 1997?

YES ____ X ____ No __________

(Note: If your answer is “Yes,” proceed to Question 2; if your answer is “No,” proceed to Question 2.)

2. Did DHH have the authority to release Willie Harper without a court order during the period August 14, 1985 through January 22, 1997?

YES ____ X ____ No __________

(Note: If your answer is “Yes,” proceed to Question 3; if your answer is “No,” proceed to Question 3.)

3. Did DHH have the authority to release Willie Harper with a court order during the period August 14, 1985 through January 22, 1997?

YES ____ X ____ No __________

(Note: If your answer is “Yes,” proceed to Question 4; if your answer is “No,” proceed to Question 4.)

4. Did the State of Louisiana through DHH (OITS Program) or Orleans Parish Sheriff's Office have a duty during the period August 14, 1985 through January 22, 1997 to release Willie Harper from custody?

YES ____ X ____ No __________

(Note: If your answer is “Yes,” proceed to Question 5; if your answer is “No,” proceed to Question 8.)

5. Did the State of Louisiana through DHH (OITS Program) or Orleans Parish Sheriff's Office breach a duty during the period August 14, 1985 through January 22, 1997 to Willie Harper by not releasing him from custody?

YES ____ X ____ No __________

(Note: If your answer is “Yes,” proceed to Question 6; if your answer is “No,” proceed to Question 8.)

Each of these questions defines Mr. Harper's alleged “illegal” confinement as being between August of 1985 (his NGRI finding) and January of 1997 (his final release from custody). The first interrogatory asks whether two separate legal entities had anycontrol over the release of inmates during this entire time period. This question is irrelevant to the duty, if any, that each defendant owed to Mr. Harper specifically. Interrogatories two and three are directed to the duty of DHH (not OPSO), and interrogatories four and five then return to the duty of DHH orOPSO.

First and foremost, the question of duty is a legal one not ordinarily presented to the jury for its consideration, as discussed more fully below. Second, the interrogatories set Mr. Harper's period of “illegal” confinement from the date of his NGRI verdict until his release and ask whether DHH or OPSO had a duty to release him during this period. Pretermitting the question of whether the jury should have been afforded an opportunity to decide whether Mr. Harper was “illegally” confined at all, and if so, for how long, the questions do not distinguish between the time periods when Mr. Harper was in the custody of DHH and those when he was in the custody of OPSO, even though the record is void of any evidence that Mr. Harper was in OPSO custody after the first four years of his confinement. Third, DHH and OPSO are separate legal entities. It was error for the jury to not have been asked about the fault of each of these entities separately, whether Mr. Harper sustained any damages, and, if so, each entity's respective degree of fault, expressed in percentages. La. C.C.P. art. 1812.

Jury interrogatory six and the jury's answer to it are as follows:

6. Did the actions and/or inactions of the Orleans Parish Criminal Court judges and staff, the Orleans Parish Criminal Clerk of Court and its staff, the Orleans Parish Sheriff's Office, State of Louisiana through DHH (OITS Program), Charles Foti, Jr., the Indigent Defender Attorneys and/or Willie Harper constitute an independent intervening cause of Willie Harper's alleged injury during the period August 14, 1985 through January 22, 1997?

YES __________ No __ X ____

(Note: If your answer is “Yes,” proceed to Question 7; if your answer is “No,” proceed to Question 8.)

This interrogatory directs the jury to determine whether the actions of several entities “constitute[d] an independent intervening cause of Willie Harper's allegedinjury during the period August 14, 1985 through January 22, 1997.” (Emphasis added) The jury answered “No” to this interrogatory and was, therefore instructed to skip interrogatory seven and proceed to number eight.

There are two significant errors here. First, at this point in its deliberations, the jury had not yet determined whether Mr. Harper had sustained an injury at all. Additionally, both DHH and OPSO were included in interrogatory six, even though the jury had already determined that they each owed a duty to Mr. Harper that they breached. Interrogatory seven listed all of these entities mentioned in interrogatory six and directed the jury to state the percentage of fault it would allocate to each. However, because the jury had answered “No” to number six, it skipped interrogatory number seven, as directed. The result is that the jury failed to allocate fault among any of the entities, particularly among DHH and OPSO.

Lastly, the jury interrogatory instructions directed the jury to skip interrogatories twelve, thirteen, and fourteen and proceed to fifteen if it had answered “No” to interrogatory eleven. Interrogatory eleven is similar to six, which asked whether the actions of certain entities “constituted an independent intervening cause of Willie Harper's alleged injury” during his period of confinement. Interrogatory eleven asked whether the actions of these same entities “constitute[d] an independent, intervening cause of Willie Harper's detainment” during the same time period. Interrogatory twelve was designed, as was seven, to have the jury allocate fault pursuant to Civil Code article 2323. Because the jury had answered “No” to interrogatory eleven, it proceeded to interrogatory fifteen as directed. This incorrect direction caused the jury to skip questions thirteen and fourteen:

13. Was DHH exercising or performing, or failing to exercise or perform policy making or discretionary acts within the course and scope of their lawful powers and duties

YES __________ No __________

(Note: If your answer is “Yes,” proceed to Question 14; if your answer is “No,” proceed to Question 15.)

14. Do you find that the defendant's wrongful acts violated Willie Harper's civil rights

YES __________ No __________

(Note: If your answer is “Yes,” proceed to Question 15; if your answer is “No,” proceed to Question 15.)

Despite having skipped interrogatory fourteen, however, the jury went on to award civil rights damages.1

In my opinion, these errors in the interrogatories presented to the jury undoubtedly affected the verdict, and, in the absence of other reversible legal error, require de novoreview on appeal. See, Niklaus v. Bellina,96–2411, p. 7 (La.App. 4 Cir. 5/21/97), 696 So.2d 120, 124; Banks v. Children's Hospital, supra,at 13, 156 So.3d at 1272; Ferrell v. Fireman's Fund Ins. Co.,94–1252, p. 7 (La.2/20/95), 650 So.2d 742, 747; Gonzales v. Xerox, 254 La. 182, 320 So.2d 163, 165 (1975).

Louisiana Code of Criminal Procedure article 654 et seq. ,sets forth the statutory scheme for the care and supervision of those citizens charged with a crime and found not guilty by reason of insanity. A review of the laws in other States indicates that the Louisiana statutory scheme is similar to most: the State agency responsible for the care of persons criminally charged and found not guilty by reason of insanity may not release that inmate from custody without a court order authorizing it to do so. This issue is a legal one that should have been decided by the trial court and not presented to the jury for its consideration. Applying a standard of de novoreview, I concur with the majority's reversal of the jury's finding that DHH had the authority to release Mr. Harper without a court order.

The four states that do not require court authorization are Indiana, Massachusetts, Michigan and Oregon,

Feliciana Forensic Facility is a Louisiana state mental health hospital, which was created pursuant to La. R.S. 28:25.1. FFF is a budgetary unit of DHH. SeeOp. Atty. Gen. No. 93–302, April 26, 1993. See alsoLa. R.S. 28:21.

I do not reach the issue of whether the quantum of damages should be reviewed de novoor under the manifestly erroneous standard because the application of the statutory cap renders the issue moot.

The record shows that after Harper was found not guilty by reason of insanity, he was remanded to OPP. La.C.Cr.P. art. 654provides, in part, “When a defendant is found not guilty by reason of insanity in any other felony case, the court shall remand him to the parish jail or to a private mental institution ...” Plaintiffs/Appellees maintain that Harper was in the legal custody of DHH during this time period; however, I find that Harper was in the legal custody of OPSO at OPP. “Legal custody of a prisoner can only be transferred by some type of court action.” Jacoby v. State, 434 So.2d 570, 574 (La.App. 1 Cir.1983). Criminal Court did not have the authority at this time in the proceedings, after the August 14, 1985 trial, to place Harper in the legal custody of DHH and commit him to a state mental institution, such as FFF, without a finding that Harper was dangerous to himself or others. La.C.Cr.P. art. 654provides, in part, “If the court determines that the defendant cannot be released without danger to others or to himself, it shall order him committed to a proper state mental institution or to a private mental institution ...” During this period, DHH, through Orleans Inmate Treatment Service, was providing care and treatment to Harper at OPP. According to the trial testimony of Larry Turner, mental health services to OPP inmates were provided by the Orleans Inmate Treatment Service, in accordance with the federal consent decree applicable during the relevant time period. See alsoLa. R.S. 28:25.1(C)(1)(a)(ii); La. R.S. 28:25.1(C)(2)(b); Advocacy Center for the Elderly and Disabled v. DHH,731 F.Supp.2d 603 (E.D.La.2010). I do not find any liability on the part of DHH during this time period when Harper was confined at OPP. Plaintiffs/Appellees failed to prove that DHH breached its duty to provide adequate and reasonable medical care and treatment to Harper or that any actions or inactions of DHH contributed to Harper being confined at OPP from August 14, 1985 to March 20, 1990.

I find, nonetheless, sufficient facts in the record to support the existence of a duty on the part of DHH as to Mr. Harper and a breach of that duty. While I agree with Judge Dysart that the statutory scheme for the care and supervision of citizens found not guilty of a non-capital crime by reason of insanity places no duty upon DHH to secure a defendant's release from custody, I find that under the particular circumstances of this case, DHH had a legal duty to Mr. Harper, which duty was breached.

The evidence shows that while Mr. Harper was housed at OPP, DHH participated in Mr. Harper's care through its OITS program at OPP. Dr. Ciro Juarez–Nunez, one of the two treating psychiatrists for OITS, testified that he wrote a letter in December 1989 to Judge Waltzer of the Criminal District Court regarding an evaluation he performed as to Mr. Harper's competency. The letter stated that Mr. Harper had been evaluated for competency at the OITS Center at OPP and had demonstrated his functional capacity to understand the proceedings against him and to assist in his defense. As noted by the majority, Dr. Juarez–Nunez testified that once someone is found not guilty by reason of insanity, that person is placed in the custody of the State, through DHH, even though the person is housed in OPP.

Mr. Larry Turner, the manager of the OITS program for a period of time during Mr. Harper's confinement, testified that OITS was a DHH program. He testified that mentally ill prisoners in the OITS program received medication through DHH. After a determination in August 1989 that Mr. Harper was not a danger to himself or others, Judge Waltzer rendered judgment authorizing his release, conditioned upon OITS finding a halfway house for Mr. Harper and/or assisting him in applying for benefits. Those conditions were imposed by the trial court because Mr. Harper was without a place to live and had no apparent means of supporting himself. Mr. Turner acknowledged in his testimony that the trial court asked him to find Mr. Harper a place in a group home. In response to Judge Waltzer's judgment, Mr. Turner made only a minimal effort to find a halfway house for Mr. Harper. He testified that he looked into one group home for possible placement of Mr. Harper and was told by that home that Mr. Harper did not meet its criteria for placement. Mr. Turner made no further efforts to find suitable housing for Mr. Harper, and no one with DHH attempted to contact Mr. Harper's adult children or any other members of his family to find out if they could help. When asked at trial whether he had taken any further action after the group home he contacted had indicated that it could not accommodate Mr. Harper, Mr. Turner replied: “That wasn't my purview.”

The record supports the finding that DHH had at least shared responsibility for Mr. Harper during his time at OPP (1985–1989) through the DHH program, OITS. During this time period, Mr. Harper was under its direct care, and at no time did anyone with OITS make any effort to bring Mr. Harper to the attention of the trial court or make any effort toward his deinstitutionalization, despite the lack of any evidence that he was a danger to himself or others. From 1990 until his release in 1997, Mr. Harper was in the sole care of DHH. For the reasons stated by Judge Lobrano in her concurrence, I find that DHH breached its duty to Mr. Harper from 1990 to 1997 by failing to fulfill the conditions of his release as ordered by the court. I concur with the majority that DHH is thirty-five percent (35%) at fault for the damages sustained by Mr. Harper.

I further concur with the majority in its findings of comparative fault on the part of OPSO, the Orleans Indigent Defender Program and the Criminal District Court. From 1985–1989, Mr. Harper was in the physical custody of OPSO. Yet there is nothing in the record to suggest that OPSO was aware than Mr. Harper was in its facility and nothing to indicate that OIDP, charged with the representation of Mr. Harper, did anything to secure for him the hearing to which he was entitled. It is inhumane for a person, especially one found to be mentally disabled, to be in custody for four years without having been sentenced. I also concur with the majority that the Criminal District Court was negligent in closing Mr. Harper's case record before his case was properly and completely adjudicated. The criminal justice system is comprised of many different entities, each with its own duties and responsibilities for those arrested, from the time of arrest to final adjudication, sentencing and release. All must work together to ensure that the rights of these citizens are protected and that their treatment and/or sentencing comports with the oath elected and non-elected officials take: to uphold the laws of the State of Louisiana, to uphold and defend the Constitution of the State of Louisiana and the Constitution of the United States, and to “faithfully discharge and perform” all of the duties of the office for which the official has responsibility. I concur in the majority's allocation of fault to these entities.

Finally, I dissent from the majority's finding that the record is void of sufficient evidence to support a loss of consortium award to Mr. Harper's children. After Mr. Harper and his former wife separated when their children were minors, the contact the children had with their father gradually became less frequent. The evidence of Mr. Harper's mental evaluations shows that his mental illness impacted his relationship with his children.

Although Sharon was a young adult and Michael was a teenager when Mr. Harper was initially sent to OPP, both were adults in 1989 when the Criminal Court judge authorized Mr. Harper to be released on the condition that OITS locate suitable housing for him and/or assist him in applying for benefits. As noted above, Mr. Turner, of OITS, testified that that he contacted one group home to try to place Mr. Harper, but made no other efforts after that group home determined that Mr. Harper did not meet the criteria to live there. There is no evidence that Mr. Turner or anyone else in the criminal justice system attempted to contact either of Mr. Harper's adult children in the quest to find suitable housing for him. When questioned at trial as to whether he asked Mr. Harper if he had any relatives with whom he could live, Mr. Turner replied, “I've never seen Willie Harper.” Many years went by before Sharon and Michael learned that their father was in the Feliciana Forensic Facility. Michael testified that he did not learn that fact until around 1995, and Sharon testified that “years and years” had passed by the time she found out.

As a result of not being contacted and given the opportunity to help their father when he was in need of housing in 1989, and then not learning that their father was in Feliciana Forensic Facility until approximately 1995, Sharon and Michael were deprived of the chance to have a closer relationship with their father as adults. Accordingly, while I find excessive the jury's award of $275,000.00 each to Sharon and Michael for loss of consortium, I disagree with the majority that Sharon and Michael failed to prove that they suffered any measurable and compensable loss. I would award Sharon and Michael each the sum of $25,000.00 for loss of consortium, reduced by the percentage of fault not attributable to DHH and subject to the statutory cap on damages pursuant to La. R.S. 13:5106.

LOBRANO, J., concurs in part, dissents in part, and assigns reasons.

I concur with the majority's findings and reasoning that the Plaintiffs/Appellees, Sharon and Michael Harper, the children of Willie Warren Harper (“Harper”), do not have a cause of action for deprivation of civil rights under 42 U.S.C. § 1983, and the trial court erred by denying the exception of no cause of action filed by the State of Louisiana through its Department of Health and Hospitals (“DHH”). I concur in the majority's finding and reasoning that La. R.S. 13:5106places a statutory cap on damages against DHH and that the Plaintiffs/Appellees failed to prove their wrongful death claim.

However, I disagree with the majority as to the standard of review in this case with respect to liability of DHH. I find that legal errors in the jury interrogatories affected the verdict on liability requiring a de novoreview on appeal. Accordingly, I reviewed this record de novo,and I find that the Plaintiffs/Appellees proved by a preponderance of the evidence at the jury trial in this matter that, due to the negligence of DHH, Harper was wrongfully confined as an insanity acquittee while in the custody, care, and treatment of DHH from March 20, 1990 to January 22, 1997. I do not find any fault on the part of the Orleans Parish Sheriff's Office (“OPSO”), the Orleans Indigent Defender Program “OIDP”), or the judges or staff of the Orleans Parish Criminal District Court (“Criminal Court”) for Harper's wrongful confinement from March 20, 1990 to January 22, 1997.

With respect to damages, I disagree with the majority's finding that the Plaintiffs/Appellees failed to establish that they suffered any loss of consortium. I find that the Plaintiffs/Appellees proved that they suffered a measurable and compensable loss of love, affection, society, happiness, and companionship. However, I would reduce the amount awarded by the jury. I find that damages for loss of consortium should be in the amount of $25,000.00 to each Plaintiff/Appellee and damages for the wrongful detention of Harper should be in the amount of $900,000.00. I would limit the damage award to $500,000.00 in compliance with the statutory cap provided in La. R.S. 13:5106.

Statement of Facts

The testimony and exhibits in this case showed that Harper's periods of confinement as a result of his arrest on March 30, 19841were as follows:

(1) From March 30, 1984 to June 28, 1984, Harper was in the custody of the OPSO at Orleans Parish Prison (“OPP”);

(2) Criminal Court ordered Harper in the custody, care, and treatment of DHH on June 28, 1984, Harper was admitted to Feliciana Forensic Facility (“FFF”)2to restore his competency on January 23, 1985, and Harper was brought to trial on August 14, 1985;(3) From August 14, 1985 to March 20, 1990, Harper, as an insanity acquittee, was in the custody of OPSO at OPP and was under the care and treatment of DHH;3

(4) From March 20, 1990 to January 22, 1997, Harper, as an insanity acquittee, was in the custody of DHH at FFF and East Louisiana State Hospital (“ELSH”)and was in the process of being deinstitutionalized and conditionally released after the Criminal Court found in 1989 that Harper should be released from confinement because he was not dangerous to himself or others.

East Louisiana State Hospital is designated under Louisiana law as a hospital for persons with mental illness and addictive disorders. SeeLa. R.S. 28:21.

The following detailed chronology is helpful:

March 30, 1984 Harper was arrested for theft.

April 13, 1984 Harper was arraigned before Judge Miriam Waltzer at Criminal Court. Court appointed Maurice Hattier of OIDP to represent Harper. Attorney Hattier represented Harper at arraignment. Harper pleaded not guilty and not guilty by reason of insanity (“NGRI”).

April 16, 1984 Judge Waltzer appointed Drs. Krimerman and Wickett to examine Harper and determine his mental status.

April 27, 1984 Drs. Wickett and Cox reported that Harper was not competent to proceed to trial or to assist in his defense and that at the time of the alleged offense Harper was psychotic and unable to distinguish right from wrong.

June 28, 1984 Judge Waltzer issued a judgment ordering that Harper be in the custody, care, and treatment of DHH to restore to competency.

January 23, 1985 Harper was admitted to FFF.

February 11, 1985 FFF admission assessment examination noted that Harper was fifty years old and served in the military as a cook. FFF discharge

recommendation was that he be referred to the aftercare coordinator and participate in “family counseling through the parish mental health center.”

May 6, 1985 FFF advised Judge Waltzer that Harper was competent to stand trial.

June 4, 1985 Judge Waltzer issued a writ of habeas corpus to have Harper brought to court for reexamination by physicians.

June 27, 1985 Judge Waltzer appointed Drs. Levy and Krimerman to examine Harper and determine competency to stand trial. Dr. Krimerman advised that when Harper is released he should regularly attend a mental health clinic, apply for disability benefits if he cannot secure employment, and find housing near his sister.

July 23, 1985 Dr. Levy advised the court that Harper was competent to stand trial.

August 14, 1985 Bench trial was held before Judge Waltzer. Drs. Levy and Krimerman testified that Harper was competent to stand trial, but at the time the crime was committed Harper was unable to distinguish right from wrong. Harper was found NGRI. Harper was transferred to OPP following trial.

June 19, 1989 DHH's June 19, 1989 letter notes that Harper is on the waiting list for FFF and that FFF was operating under a federal consent decree and must show that they are “expediting admissions as much as possible.”

June 28, 1989 Harper's attorney, Brenda Brown, filed Motion for ReAppointment of Sanity Commission and Petition and Order for Writ of Habeas Corpus Ad Testificandum which stated that Harper was at FFF. Drs. Cox and Krimerman were appointed and hearing was set by Judge Waltzer to determine if Harper could be released.

July 21, 1989 Hearing was held before Judge Waltzer. Harper's attorney, Brenda Brown, appeared and waived presence of Harper. Dr. Krimerman testified that Harper is not dangerous to himself or others, not clearly psychotic but has the potential for this condition, and recommended that, if released, Harper attend a mental health center for at least one year so his condition can be observed. Criminal docket master stated that Harper's attorney is to inform the Court as to the availability of a responsible person or relative.

August 11, 1989 Hearing was held before Judge Waltzer. Attorney Brown appeared and waived presence of Harper. Dr. Cox testified that Harper is not dangerous to himself or others, that Harper is a chronic schizophreniac, and that Harper would be in need of supervision.

Court found Harper not dangerous to himself or others and ordered Harper's attorney “to attempt to secure a responsible relative or friend to supervise or be responsible for” Harper, and to contact Catholic Charities.

August 24, 1989 Judge Waltzer issued a judgment finding that Harper is not a danger to himself or others, ordered Harper's release and ordered that DHH's Orleans Inmate Treatment Service (“OITS”) find a halfway house for Harper and/or apply for welfare and social security.

August 25, 1989 OITS performs an assessment on Harper in response to the August 24, 1989 court judgment.

September 25, 1989 Judge Waltzer indicated that she would look into possible placement for Harper.

December 28, 1989 Hearing was held before Judge Waltzer. Harper was present and represented by Attorney John Ruskin. Drs. Cox and Guillaume testified that Harper was not a danger to himself and/or others and recommended his release.

December 29, 1989 Judge Waltzer issued a judgment ordering Harper to be released and ordering Harper's attorney to find suitable living arrangements for Harper.

March 5, 1990 Larry Turner, manager of OITS and employee of DHH, informed the court that DHH's Region I, Division of Mental Health, Community Support Program, determined that Harper could not be placed in a group home because he “does not meet the criteria of being chronically mentally ill.”

March 20, 1990 Harper was transferred from OPP to FFF to facilitate Harper's deinstitutionalization and conditional release.

March 23, 1990 FFF assessment report notes that Harper is to be “released back into society, preferably into a halfway house” and that he is to be “monitored by a community mental health center and become part of the deinstitutionalization program” at FFF.

June 7, 1990 Judge Waltzer noted in the court's minutes that Harper “is awaiting release.” Criminal docket master indicated that Harper's file was closed.

May 18, 1992 U.S. Supreme Court rendered decision in Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992).

June 19, 1992 FFF Review Panel recommended Harper for probationary release with conditions of continued medication, drug screens, mental health follow up and living arrangements with family.

June 29, 1992 Letter was forwarded to Judge Morris Reedenclosing the Review Panel report.

On the correspondence, Judge Waltzer's name is crossed out, and Judge Morris Reed's name is handwritten, as Judge Waltzer no longer presided over the division assigned to Harper's criminal case.

April 21, 1994 FFF Review Panel opined that Harper did not present an unreasonable risk of harm to himself or others and should be transferred to a less restrictive civil hospital, such as ELSH. Review Panel report and proposed order were sent to Judge Reed.

June 27, 1994 Judge Reed signed order transferring Harper from FFF to ELSH.

October 12, 1994 FFF received signed order transferring Harper to ELSH.

December 6, 1994 Harper was transferred to ELSH.

October 12, 1995 ELSH Review Panel found Harper in remission and not a danger to himself or others and recommended deinstitutionalization program.

February 16, 1996 Judge Reed signed order for deinstitutionalization program and allowed family excursion passes.

December 11, 1996 ELSH psychiatrists Drs. Richoux and Graham sent correspondence to Judge Julian Parker notifying that Harper had completed deinstitutionalization program and

recommending a contradictory hearing to consider conditional release.

January 21, 1997 Hearing was held before Judge Parker. Judge Parker ordered the release of Harper to his sister, Audrey Gabriel.

January 22, 1997 ELSH released Harper to live with sister. Harper is monitored by DHH's Forensic Aftercare Clinic (“FAC”) for continued medication, drug screens, and mental health treatment.

May 16, 1997 Harper, through counsel, filed a Class Action Petition for Certiorari and Damages alleging that his detention from the 1985 NGRI finding through his release in February 1997 was unconstitutional and illegal because he was neither a danger to himself nor to others and should have been released upon his NGRI finding.

September 23, 1997 FAC recommended higher level of care through inpatient admission to St. Charles Parish Hospital on the basis of September 22, 1997 blood tests positive for cocaine and negative for antipsychotic medication.

September 25, 1997 Harper was arrested for conditional release violation.

October 22, 1997 Harper, through counsel, filed Emergency Application for Writ of Habeas Corpus.

October 28, 1997 Rule to show cause hearing was held before Judge Charles Elloie. Harper appeared and was represented by counsel. Probation was terminated.

October 29, 1997 Judge Elloie issued written order for unconditional discharge from Department of Corrections and Public Safety and DHH. Harper was released.

December 3, 1997 Judge Elloie recalled October 1997 order and issued new order but Harper remained unconditionally released.

November 14, 2003 Harper died due to liver cancer.

December 5, 2003 Plaintiffs/Appellees filed a petition for damages, asserting a survival action and wrongful death action.

February 17, 2006 Judge Carolyn Gill–Jefferson dismissed with prejudice DHH from the class action filed by Harper in 1997.

May 20, 2013—Jury trial was held before Judge Nadine Ramsey.

June 3, 2013

Liability of DHH

I disagree with the majority as to the standard of review in this case with respect to liability. I find that the trial court's submission of confusing and misleading interrogatories to the jury affected the jury's findings with respect to liability of DHH and constituted reversible legal error that triggers de novoreview. I agree with the partial dissent of Judge Landrieu that the “jury was presented with a set of interrogatories that were both confusing and inaccurate, ... did not follow the proper duty/risk analysis ... and resulted in the jury returning answers that were inconsistent with each other and made it impossible for the trial court to ‘enter judgment in conformity with the jury's answers to these special questions andaccording to applicable law.’ See, La. C.C.P. art 1812D (emphasis supplied).”

In Banks v. Children's Hospital,13–1481, p. 13 (La.App. 4 Cir. 12/17/14), 156 So.3d 1263, 1272, this court stated:

Generally, a jury's factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong.

Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). However, where, as here, legal error has interdicted the fact finding process, the manifest error standard no longer applies and, if the record is complete, the appellate court should make its own de novoreview of the record. Evans v. Lungrin,97–0541, pp. 6–7 (La.2/6/98), 708 So.2d 731, 735; Lam v. State Farm Mut. Auto. Ins. Co.,05–1139, p. 3 (La.11/29/06), 946 So.2d 133, 135; Ullah, Inc. v. Lafayette Ins. Co.,2009–1566, p. 17 (La.App. 4 Cir. 12/17/10), 54 So.3d 1193, 1203. Applying de novoreview, the appellate court independently views the record, without granting any deference to the trial court's findings, to determine the preponderance of the evidence. Ferrell, supra,94–1252, p. 7, 650 So.2d at 747; Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 165 (1975). This court has previously held that the trial court's submission to the jury of “a verdict sheet which either confuses or misleads the jury,” may constitute reversible legal error that triggers de novoreview. Niklaus v. Bellina,96–2411, p. 7 (La.App. 4 Cir. 5/21/97), 696 So.2d 120, 124. Where, however, the legal error does not affect all the jury's findings, the appellate court should confine its de novoreview to only those findings that have been interdicted by the error. Picou v. Ferrara, 483 So.2d 915, 918 (La.1986); Lam, supra,2005–1139, p. 3 (La.11/29/06), 946 So.2d at 135–36.

Accordingly, I reviewed the record de novoto determine whether the Plaintiffs/Appellees proved their case by a preponderance of the evidence that DHH was liable for their father's wrongful confinement.

Plaintiffs'/Appellees' claims against DHH sound in negligence and are subject to a duty/risk analysis. Under the duty/risk analysis, the plaintiff must satisfy the following elements to prove negligence; the plaintiff must prove that: 1) the conduct in question was the cause-in-fact of the resulting harm, 2) the defendant owed a duty of care to the plaintiff, 3) the defendant breached that requisite duty and 4) the risk of harm was within the scope of protection afforded by the duty breached. Faulkner v. McCarty Corp.,2002–1337, p. 4 (La.App. 4 Cir. 6/11/03), 853 So.2d 24, 28(citing Pitre v. Louisiana Tech University,95–1466 (La.5/10/96), 673 So.2d 585).

The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law. Hanks v. Entergy Corp.,2006–477 (La.12/18/06), 944 So.2d 564, 579. Governmental agencies may be subjected to the imposition of duties by legislation, ordinance or rule of law, the breach of which may result in liability for damages to those injured by a risk contemplated by that duty.Cormier v. T.H.E. Ins. Co.,98–2208, p. 7 (La.9/8/99), 745 So.2d 1, 8. The court's role is to determine whether there is any jurisprudential or statutory rule, or policy reason why, under the facts and circumstances of the case, the state would owe a duty to compensate plaintiff for his injuries. Id.

I find that DHH had a duty to follow the orders of the Criminal Court and to secure appropriate housing for Harper to facilitate his deinstitutionalization and release.DHH breached this duty by failing to promptly obtain suitable living arrangements for Harper and by failing to use whatever reasonable measures necessary to facilitate Harper's expedited deinstitutionalization. I find that DHH's actions and/or inactions were the sole cause for Harper's confinement for over seven (7) years after Harper was found not dangerous to himself or the community.

I do not find that these actions and/or inactions of DHH were policymaking or discretionary acts which would implicate the immunity provision set forth in La. R.S. 9:2798.1.

I find that Judge Waltzer's August 24, 1989 and December 29, 1989 judgments read in conjunction with La.C.Cr.P. art. 654released Harper from confinement and gave DHH specific instructions to find suitable living arrangements for Harper in a reasonable period of time. After Judge Waltzer found that Harper was not a danger to himself or to others, La.C.Cr.P. art. 654provided the court with two options with respect to his release: (1) order Harper's discharge or (2) order Harper's “release on probation subject to specified conditions for a fixed or indeterminate period.” Art. 654further states that the court shall assign “written findings of fact and conclusions of law; however, the assignment of reasons shall not delay the implementation of judgment.La.C.Cr.P art. 654(emphasis added).

La.C.Cr.P. art. 654reads in pertinent part:

... If the court determines that the defendant can be discharged or released on probation without danger to others or to himself, the court shall either order his discharge, or order his release on probation subject to specified conditions for a fixed or an indeterminate period. The court shall assign written findings of fact and conclusions of law; however, the assignment of reasons shall not delay the implementation of judgment.


DHH was solely responsible for fulfilling the condition of release and was in the unique position to accomplish this task. The record reflects Judge Waltzer's concern that she did not want Harper to be “tossed out” onto the street. At the trial of this lawsuit, Judge Waltzer testified that she “was frightened that he would be just lying on the street” or “found on the street totally, you know, bereft of all humanity ...” According to Judge Waltzer's testimony, DHH should have fulfilled this condition within a couple of months.

The Louisiana legislature has declared by statute that the public policy in treating a patient in a state mental hospital shall be, in pertinent part:

(2) That any involuntary treatment or evaluation be accomplished in a setting which is medically appropriate, most likely to facilitate proper care and treatment that will return the patient to the community as soon as possible,and is the least restrictive of the patient's liberty.

...

(5) That individual rights of patients be safeguarded.

La. R.S. 28:50(emphasis added).

The Mental Health Law in Chapter 1 of Louisiana Revised Statute Title 28 and other mental health statutes set forth the required standard of care as to the treatment of mental health patients at FFF and ELSH and duties of DHH and its budgetary units, such as FFF and Metropolitan Human Service District (“MHSD”). See e.g. La. R.S. 28:171; La. R.S. 28:25.1(C)(1)(a)(ii); La. R.S. 28:206; La. R.S. 36:251; La. R.S. 36:254(A)(10); La. R.S. 40:2013; La. R.S. 36:254(I)(1)(providing that MHSD is responsible for the “operation and management of community-based mental health” in Orleans Parish); see alsoLa. R.S. 28:206(establishing a duty on DHH “to promote the establishment of a continuum of care to house emotionally and behaviorally disturbed children and adults. The continuum of care may include but not limited to group homes and supportive housing services, programs, and facilities.”). Title XXI of the Louisiana Code of Criminal Procedure sets forth the procedure by which a “person acquitted of a crime or misdemeanor by reason of insanity or mental defect may be committed ...” La. R.S. 28:59; La. R.S. 28:58; see also La.C.Cr.P. art. 658(B)(2)(providing for DHH's duty to provide for “community treatment and monitoring” of insanity acquittees released into the community).

In Davis v. Puryear,95–1637, p. 17 (La.App. 4 Cir. 5/1/96), 673 So.2d 1298, 1307, this court stated:

But the purposes of committing a person to a mental health hospital are wholly different from incarceration in a jail or a prison. Admission to a mental health hospital in general is, of course, usually for the purpose of treatment.

When a person is or should be committed to a mental hospital because the person is a danger to others, then the very purpose of the actual or needed commitment is the prevention of harm to others .... the purposes of commitment to a mental health hospital: to care for the committed person and to prevent the committed person from hurting himself or herself or others.

In Jones v. Gaines,43,049, p. 11 (La.App. 2 Cir. 3/5/08), 978 So.2d 522, 528, the court noted:

The Louisiana legislature defined the policy of the Mental Health Law indicating that the facility is to provide care to the mental patient in the least restrictive manner possible and protect the patient's rights ... There is an interest in detaining dangerous persons, but the statute indicates that the facility has a duty to the mentally ill to protect their rights and liberties. Though the rights of the patient and the protection of the public present a competing interest in some cases, the mental health facility's duty should be first to the patient to ensure proper treatment and proper confinement periods. Because the patient in many circumstances cannot speak for himself and surrenders himself to the mental health facility and his care provider, the facility is often in the unique position of providing the only protection available to the patient ...

Louisiana law provides for the confinement of an insanity acquittee on the theory that proper therapeutic treatment in custody, together with effective deinstitutionalization and aftercare treatment, will provide for the safety of the insanity acquittee and the community. Confinement of Harper would be justified only if Harper had received proper services at FFF and effective aftercare treatment and deinstitutionalization program. To find otherwise would in effect allow for the indeterminate commitment and confinement of an insanity acquittee because DHH cannot fulfill its duty pursuant to court orders and/or pursuant to its statutory duties as the state mental health entity to “provide health and medical services for the uninsured and medically indigent citizens of Louisiana” and services for persons with mental illness.

La. R.S. 36:251; seefootnote 7.

I agree with the other panel members that Judge Waltzer's orders to release Harper placed a condition on his release and that the condition was not met. I part ways in that I find DHH had the duty to fulfill that condition of release in a reasonable period of time and breached that duty causing Harper to be wrongfully confined from at least March 20, 1990 until his release to his sister on January 22, 1997.

I further find Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)instructive in this matter. In Foucha,the U.S. Supreme Court found that continued confinement of an insanity acquittee, after the hospital review committee had reported no evidence of mental illness, and recommended conditional discharge, violated due process. The Court explained:

We held, however, that “(t)he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,” [citation omitted]; i.e.,the acquittee may be held as long as he is

both mentally ill and dangerous, but no longer. We relied on O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), which held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, “it could not constitutionally continue after that basis no longer existed.” Id.,at 575, 95 S.Ct., at 2493. In the summary of our holdings in our opinion we stated that “the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.” Jones,463 U.S., at 368, 370, 103 S.Ct., at 3052, 3053. The court below was in error in characterizing the above language from Jonesas merely an interpretation of the pertinent statutory law in the District of Columbia and as having no constitutional significance. In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court's hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis. O'Connor, supra, 422 U.S., at 574–575, 95 S.Ct., at 2493–2494.

Here, Judge Waltzer found in her 1989 orders of release that Harper was not dangerous to himself or others and that he should be released. In fact, Harper was never found to be dangerous at any time. I find Fouchadefinitively required the immediate release of Harper. DHH's argument that it was unable to facilitate the prompt deinstitutionalization of Harper is without merit.DHH failed to use reasonable care to seek suitable living arrangements for Harper and to secure his release from confinement.

The United States Supreme Court in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)found that a patient involuntarily committed to a Florida state mental hospital for care, maintenance, and treatment cannot be confined by the state merely to ensure him “a living standard superior to that” which he had in the private community. The Court stated that “the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But ... while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom ...”
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In summary, the Plaintiffs/Appellees met their burden under a duty/risk analysis. For the reasons discussed herein, I find DHH liable for the negligent wrongful confinement of Harper.

Damages

I do not find that legal error affected the jury's findings concerning the amount of damages awarded to the Plaintiffs/Appellees in the amount of $1.5 million for the wrongful detention of Harper and in the amount of $275,000.00 to each Plaintiff/Appellee for loss of consortium under La. C.C. art 2315. Thus, I will review the jury's factual findings as to damages under a manifest error or clearly wrong standard of review. See Banks,2013–1481, pp. 12–13, 156 So.3d at 1272(“Generally, a jury's factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong ... Where, however, the legal error does not affect all the jury's findings, the appellate court should confine its de novoreview to only those findings that have been interdicted by the error [citations omitted]”).

In Norfleet v. Lifeguard Transp. Ser., Inc.,2005–0501, pp. 4–5 (La.App. 4 Cir. 5/17/06), 934 So.2d 846, 851–52, this court stated:

Appellate courts review factual findings of the trial court or jury using the “manifest error” or “clearly wrong” standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court developed a two-part test for reviewing and reversing the factfinder's determinations. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). This bifurcated test states: 1) the reviewing court must find that the trial court's findings have no reasonable factual basis and 2) the record shows that the findings are wrong (manifestly erroneous). Mart, 505 So.2d at 1127. The reviewing court must view the record in its totality to determine if the factfinder was clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The appellate court must determine if the factfinder's decision was a reasonable one. Id.This rationale stems from the fact that the trial court has “better capacity to evaluate live witnesses.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). “[W]here two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883. The majority of the issues presented in the case sub judiceare factual questions and will be reviewed using the above standard.

As discussed herein, I find that Harper was wrongfully confined in DHH custody from March 20, 1990 to January 22, 1997, and accordingly, that a jury award of damages attributed prior to 1990 is manifest error. Giving due deference to the jury's factual findings as to damages, I would reduce the jury award for wrongful confinement to $900,000.00.

I disagree with the majority's holding that the Plaintiffs/Appellees failed to establish that they suffered any loss of consortium. In Turner v. Lyons,03–0186, p. 12 (La.App. 4 Cir. 1/28/04), 867 So.2d 13, 21–22, this court stated:

A loss of consortium award is a fact-specific determination, to be decided case-by-case and is disturbed only if there is a clear showing of an abuse of discretion. Rudd v. Atlas Processing Refinery,26,048 (La.App. 2 Cir. 9/21/94), 644 So.2d 402, 411; Johnson v. Wal–Mart Stores, Inc., 616 So.2d 817 (La.App. 2nd Cir.1993). If an abuse of discretion is found, it is incumbent upon this court to determine the greatest or least amount that the fact finder could have reasonably awarded, and either raise or lower the award to that extent. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

However, before a trial court award of damages can be questioned as excessive or inadequate, the reviewing court must look first, not to prior awards, but to the individual circumstances of the instant case. Coco v. Winston Industries, Incorporated, 341 So.2d 332 (La.1977). Thus we must examine the facts of this case and, in particular, the circumstances of the relationship of each child with the decedent. Emphasis added. Watkins v. Bethley, 662 So.2d 839 (La.App. 2 Cir. 11/1/95). In Thonn v. Cook,2003–0763 (La.App. 4 Cir. 12/10/03), 863 So.2d 628, the Fourth Circuit, held:

Loss of consortium claims generally have the following seven items: (1) loss of love and affection; (2) loss of society and companionship; (3) impairment of sexual relations; (4) loss of performance or material services; (5) loss of financial support; (6) loss of aid and assistance; and (7) loss of fidelity. Campbell v. Webster Parish Police Jury,36,391 (La.App. 2 Cir. 09/18/02), 828 So.2d 170.

To be compensable, it is not necessary that a loss of consortium claim include

damages from each category. Gunn v. Robertson,01–347 (La.App. 5 Cir. 11/14/01), 801 So.2d 555, 565; Seagers v. Pailet,95–52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700. However, the plaintiff has the burden of proving definite loss. Quinn v. Wal–Mart Stores, Inc.,34,280 (La.App. 2 Cir. 12/6/00), 774 So.2d 1093. Although claims for consortium are usually made by minor children, La. C.C. articles 2315, 2315.1and 2315.2offer relief without regard to the majority or minority of the parties so aggrieved. Moreover, precedent exists for the award of loss of consortium to adult children. Sebastien, et al. v. McKay, M.D., et al.,94–203 (La.App. 3 Cir. 11/23/94), 649 So.2d 711.

The majority cites to an estrangement between Harper and his children throughout the period surrounding his incarceration and commitment as a basis for precluding damages for loss of consortium. I cannot agree. The trial testimony reveals that Sharon and Michael Harper were 22 and 16 years old, respectively, at the time of Harper's arrest in 1984. Neither of the children knew their father's whereabouts following the arrest until 1994 or 1995 when Sharon learned that Harper was in FFF. Both Sharon and Michael Harper resumed communication with their father thereafter. Considering that this litigation arises from an insanity acquittee's confinement, I cannot overlook the connection between the confinement and the estrangement from family; thus, I part ways with the majority on this issue.

Nevertheless, as Harper did not provide any significant financial support to Plaintiffs/Appellees, I find that the jury erred in awarding $275,000.00 to each Plaintiff/Appellee for loss of consortium. The Louisiana Supreme Court has held that, where manifest error is found, it is incumbent upon this court to determine the greatest or least amount that the fact finder could have reasonably awarded, and either raise or lower the award to that extent. See Youn, 623 So.2d at 1260. Accordingly, I would reduce the jury awards to each Plaintiff/Appellee for loss of consortium from $275,000.00 to $25,000.00. Compare Turner, supra, with Rivet v. State, Through Department of Transportation, 434 So.2d 436 (La.App. 3 Cir.1983); Estate of King v. Aetna Cas. Surety Co., 427 So.2d 902 (La.App. 3 Cir.1983); LeJeune v. Allstate, Ins. Co., 373 So.2d 212 (La.App. 3 Cir.1979); Brodtmann v. Duke,96–0257 (La.App. 4 Cir. 2/11/98), 708 So.2d 447.

While I would not further reduce the jury award for any comparative fault, I reiterate that I concur with the majority that the statutory cap set forth in La. R.S. 13:5106applies. Thus, by operation of the statutory cap, I would limit the Plaintiffs'/Appellees' damage award to $500,000.00.


Summaries of

Harper v. State

Court of Appeal of Louisiana,Fourth Circuit.
Sep 9, 2015
176 So. 3d 479 (La. Ct. App. 2015)
Case details for

Harper v. State

Case Details

Full title:Sharon HARPER and Michael Johnson Harper v. The STATE of Louisiana…

Court:Court of Appeal of Louisiana,Fourth Circuit.

Date published: Sep 9, 2015

Citations

176 So. 3d 479 (La. Ct. App. 2015)

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