author: HALL, Judge.

text:
    CITY OF WEST MONROE, Plaintiff-Appellee, v. OUACHITA ASSOCIATION FOR RETARDED CHILDREN, INC. a/k/a Ouachita Association For Retarded Citizens, Defendant-Appellant.
    No. 14655.
    Court of Appeal of Louisiana, Second Circuit.
    July 20, 1981.

      McLeod, Verlander & Dollar by Robert P. McLeod and David E. Verlander, III, Monroe, for defendant-appellant.
    James A. Norris, Jr., West Monroe, for plaintiff-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The City of West Monroe filed suit seeking a judgment declaring that the defendant’s proposed use of property located in an R-l (one-family residence) district as a group home for mentally retarded adults is not a permitted use under the city zoning ordinance, and seeking an injunction. Defendant, Ouachita Association for Retarded Children, Inc. a/k/a Ouachita Association for Retarded Citizens, answered contending its proposed use constitutes use of the property as a one-family dwelling as defined in the zoning ordinance and praying for judgment recognizing its proposed use to be a permitted use of right. After trial on stipulated facts the district court found that defendant’s proposed use of the residential property was a special exception use which had to be approved by the City Planning Commission and by the Board of Adjustment because the group home did not constitute use as a one-family dwelling. From a judgment so declaring and granting an injunction restraining defendant from occupying or using the property as a group home for mentally retarded persons without prior administrative approval, the defendant-association appealed. We reverse and render judgment declaring the proposed use to be a use of right under the pertinent provisions of the zoning ordinance.

The joint stipulation of facts and exhibits attached thereto establish the following pertinent facts.

The property in question is zoned R-l: one-family residential district. The property immediately across the street from the subject property is zoned B-3: general business district. The subject property was formally occupied as a church, at least as recently as 1972. The property has been leased by the owner to the defendant. The property is physically an ordinary house with approximately 3,744 square feet of heated space, containing one kitchen, one dining room, one living room, six bedrooms, several bathrooms, and one laundry room with only the usual types of entrances and exits found in a home and is located on a lot 100 feet X 155 feet at the corner of Slack and North Third Streets in West Monroe.

The proposed use by the defendant of the property is as follows:

There will be six adult mildly to moderately mentally retarded residents, none with any severe behavioral or medical problems, on a permanent basis, and a married couple to serve as houseparents. There may be one or two other retarded residents on an occasional temporary basis. The retarded residents will be required to hold employment outside of the home.

The houseparents will live in- a master bedroom and have a private bath. The other residents will live in the remaining five bedrooms and share the remaining bathroom facilities.

The entrances, living room, dining room, kitchen, laundry and other such aspects of the house will be for common usage. There will be rules for household behavior and chores, which will be developed by the houseparents after discussion with the residents. The houseparents will see that the rules are followed and the chores done, much as in any home.

The home is required to be licensed by the State of Louisiana under LSA — R.S. 28:380, et seq., and is, or will be so licensed prior to use. The home will comply with all applicable guidelines and requirements of the State of Louisiana, Department of Health & Human Resources, Division of Mental Retardation, and of any branch or successor agencies thereto.

The occupants of the proposed home are neither mentally ill nor insane, nor are they physically ill in any way different from the general population; they are simply mentally retarded.

There has been substantial opposition voiced among some of the residents in the vicinity of the property to the location of the group home on the property.

An application was made by the defendant for planning commission approval and for board of adjustment approval as a special exception use after being advised by the zoning administrator that the proposed use could not be had without such approval. The applications were filed without benefit of consultation with legal counsel. The application was approved by the planning commission but was denied by the board of adjustment. No appeal was taken from the action of the board.

Subsequently, an attorney for the defendant advised the zoning administrator by letter of its position that the proposed use is as a single-family dwelling and is a permitted use of right under the ordinance, and that no approval by the planning commission or board of adjustment is necessary. The letter further advised the administrator that the association intended to proceed to make use of the property as a group home for mentally retarded adults in the manner described above. This suit by the city for a declaratory judgment and injunction ensued.

The mental retardation law, LSA — R.S. 28:380, et seq., authorizes the establishment of a comprehensive statewide plan for providing services to meet the needs of mentally retarded persons under the direction of the Office of Mental Retardation of the Department of Health & Human Resources. The statute provides for the establishment of residential facilities to be operated by the office or by licensed private persons, groups, or corporations, with funding provided in whole or in part by state, federal, or local funds or by private persons, groups, or organization. LSA — R.S. 28:383 contains the following statement of public policy:

“It is recognized that mental retardation is a handicapping condition and in itself does not pose a threat to the safety and security of the community and that the maximum feasible inclusion of the mentally retarded in the community life can be of benefit to both the mentally retarded and the community. It is further recognized that the use of least restrictive alternatives provide the mentally retarded with the greatest opportunity to participate in community life. Therefore, the department shall endeavor to develop and encourage the development of least restrictive alternatives to meet the needs of the department’s client population. The department shall further insure placement in the least restrictive alternative appropriate to the developmental needs of each individual.”

LSA — 28:390 provides in part:

“A. Every mentally retarded person in this state shall have the rights, benefits, and privileges guaranteed by the constitution and laws of the United States and the constitution and laws of the state of Louisiana. Every client shall enjoy the same rights as other citizens of the United States and Louisiana except when lawfully restricted. The rights of mentally retarded persons which are specifically enumerated in this Chapter are in addition to all other rights enjoyed by all citizens including the mentally retarded, and such listing of rights is neither exclusive or intended to infringe upon any rights which are guaranteed to the mentally retarded under the laws and constitutions of the United States and the state of Louisiana.
“B. Every mentally retarded person shall have the following rights:
“(1) To live in the least restrictive setting appropriate to his individual needs and abilities, including the right to live in a variety of living situations, such as the right to live alone, in a group home, with a family, and in a supervised, protective environment. . . . ”

The parties agree that a determination of this case depends on the interpretation of the applicable portions of the zoning ordinance of the City of West Monroe. As noted by the learned trial judge “there is no constitutional or other attack here upon the validity of the zoning ordinance. Neither is there any issue here which has any relation to the fears and other emotional reactions of the neighbors or to the benevolent, enlightened, caring motivations of defendant’s members and the programs under which they intend to function. Neither is this a legal contest between selfish property owners and neglected and needy handicapped citizens. Neither is the number of proponents and opponents of any consequence.” The sole legal issue presented by the parties to this litigation is whether under the zoning ordinance the defendant’s proposed use is a permitted use in an R-l, one-family residential district and, if so, whether it is a use of right or a special exception use.

The defendant-association contends that its proposed use is as a one-family dwelling, a permitted use of right in an R-l district, under the zoning ordinance which defines family as one or more persons living together as a single housekeeping unit which may include not more than four lodgers or boarders. The plaintiff-city contends that the proposed use is not as a one-family dwelling but is akin to a convalescent home or institution for children, or the aged, or a sanitarium, which are permitted special exception uses in an R-l district, requiring planning commission and board of adjustment approval. The city alternatively contends that the proposed use is as a rooming or boarding house or hotel, which is permitted only in a B-3 general business district.

' In carefully considered and well-articulated written reasons for judgment the trial court considered the ordinance as a whole and found that the intent was to provide for administrative examination before permitting use for nonrelated group residency and special care in R-l districts. The court found that the projected use by defendant has some characteristics comparable to a convalescent home, a boarding or rooming house, a sanitarium, and a residential facility for the aged or other persons whose physical or social or mental handicaps or limitations require supervision and special attention. The court concluded that the use is, therefore, in the nature of a public facility of a general institutional nature for providing both residential and personal care services to unrelated persons who cannot or are not getting such services at home or in governmental institutions; it is not necessary for resolution of this dispute to classify defendant’s use as falling precisely within or without one of the specific word definitions in the ordinance. The court held that the ordinance restricts such use in an R — 1 district, does not permit use by right status, and requires administrative review and permission.

While the trial court’s conclusion is reasonable and has considerable merit, we reach a contrary conclusion because we find that the proposed use by the association falls squarely within the plain and unambiguous language of the ordinance defining one-family dwelling residential use. We find it unnecessary to search for unexpressed intentions or to attempt to analogize the use proposed by defendant to other uses set forth in the ordinance.

Article A, § 12-5005 of the zoning ordinance prohibits all uses of property except those uses allowed by the ordinance for the district in which the property is located. Article B, § 12-5012 of the ordinance deals with R-l, one-family residential districts. That section reads in pertinent part:

“These districts are composed mainly of areas containing one family dwellings and open areas where similar residential development seems likely to occur; few two (2) family and multiple-family dwellings are found in these areas. The district regulations are designed to protect the residential character of the areas by prohibiting all commercial activities; to encourage a suitable neighborhood environment for family life by including among the permitted uses such facilities as schools and churches, and to preserve the openness of the areas by requiring certain minimum yard and area standards to be met.
“(a) Permitted uses. In R-l districts only the following uses are permitted:
“(1) Uses by right. The uses listed below are permitted subject to the conditions specified: ...
“Dwelling, one family ...
“(2) Uses requiring planning approval. The uses listed below are permitted upon approval of the location and site plan thereof by the planning commission as being appropriate with regard to transportation and access, water supply, water disposal, fire and police protection, and other public facilities, as not causing undue traffic hazard, and as being in harmony with the orderly and appropriate development of the district in which the use is located: ...
“(3) Special exception uses. The uses listed below are subject to the same approval of location and site plan as uses requiring planning approval; in addition, these uses are declared to possess the characteristics of unique or special form that each specific use shall be considered an individual case and shall be subject to approval of the board of adjustment in accordance with the provisions of article G governing special exceptions: . ..
“Art gallery or museum
“Cemetery ...
“Convalescent home .. .
“Institution for children or the aged
“Hospital or sanitarium
“Nursery, day care or kindergar-ten_”

Article A, § 12-5006 of the ordinance contains the following definitions:

“Boarding house. A building, where, for compensation and by prearrangement, five (5) or more persons other than occasional or transient customers are provided with meals.”
“Dwelling unit. One (1) or more rooms in the same structure, connected together and constituting a separate, independent housekeeping unit for permanent residential occupancy and with facilities for sleeping and cooking.”
“Dwelling, one (1) family. A detached building containing one (1) dwelling unit and used exclusively by one (1) family.”
“Family. One (1) or more persons living together as a single housekeeping unit, which may include not more than four (4) lodgers or boarders.”
“Hotel. A building containing guest rooms in which lodging is provided, with or without meals, for compensation, and which is open to transient or permanent guests, or both, and where there is either no provision made for cooking in any guest room or provision made for cooking in not more than 25 percent of the guest rooms; the term includes ‘motel’.”
“Hospital. An institution providing health services, primarily for in-patients, and medical and surgical care of the sick or injured, including, as an integral part of the institution, such related facilities as laboratories, outpatient departments, training facilities, central service facilities, and staff offices.”
“Rooming house. A building, other than a hotel, where for compensation and by prearrangement, five (5) or more persons other than occasional or transient customers are provided with lodging.”

Interpretation of the zoning ordinance must begin with the well-recognized rule that zoning ordinances are in derogation of the rights of private ownership and, therefore, must be strictly construed in favor of the use proposed by the owner. Wright v. DeFatta, 244 La. 251, 152 So.2d 10 (1963); Carrere v. Orleans Club, 214 La. 303, 37 So.2d 715 (1948); City of Kenner v. Kenner Academy, 373 So.2d 197 (La.App. 4th Cir. 1979); Magness v. Caddo Parish Police Jury, 318 So.2d 117 (La.App. 2d Cir. 1975); Henderson v. Zoning Appeals Board of Jefferson Parish, 328 So.2d 175 (La.App. 4th Cir. 1975), cert. denied 331 So.2d 474 (1976); Smith v. City of Alexandria, 300 So.2d 561 (La.App. 3d Cir. 1974), writ denied 303 So.2d 186, 187; State ex rel. Time Saver Stores v. Board of Zon. Adj., 261 So.2d 273 (La.App. 4th Cir. 1972), writ refused 262 La. 311, 263 So.2d 47 (1972); Roberts v. Jefferson Parish Council, 235 So.2d 131 (La.App. 4th Cir. 1970), writ denied 256 La. 819, 239 So.2d 345 (1970).

In Magness, supra, this court made the following statement:

“... The principle is well established in this State that zoning ordinances are in derogation of the rights of private ownership and, as they curtail and limit the use of property, they are to be strictly construed in favor of the property owner or possessor. . . .”

Only those uses specified in the ordinance are permitted in an R-l district. There are three types of permitted uses: uses by right, uses requiring planning commission approval, and special exception uses requiring approval by the planning commission and by the board of adjustment. One of the permitted uses by right is “Dwelling, one family”. This term is defined by the ordinance as a detached building containing one dwelling unit and used exclusively by one family. Family is defined as one or more persons living together as a single housekeeping unit, which may include not more than four lodgers or boarders.

The building which the defendant purposes to use for the group home is a detached building containing one dwelling unit. It is to be used exclusively by one family as that term is defined in the ordinance (one or more persons living together as a single housekeeping unit), unless the persons who will be living together include more than four “lodgers or boarders.”

The provision that a family may include not more than four lodgers or boarders ties in with the definitions of boarding house and rooming house contained in the ordinance. Boarding house and rooming house are defined as buildings where, for compensation and by prearrangement, five or more persons other than occasional or transient customers are provided with meals or lodging. The effect of these related provisions is to prohibit the location of commercial boarding or rooming houses in a residential district and to allow their location only in a business or commercial district.

In Black’s Law Dictionary, 4th Edition, “boarder” is defined as:

“One who makes a special contract for food with or without lodging. Berkshire v. Woollen Co. v. Proctor, 7 Cush., Mass., 424; One who boards at a boarding house or school. Atlantic City v. Le Beck, 125 N.J.L. 373, 15 A.2d 653, 654. One who has food and lodging for an agreed price, usually under a contract intended to continue for a considerable period of time. Ullman v. State, 1 Tex.App. 220, 28 Am. Rep. 405.”

“Lodger” is defined as:

“An occupant who has mere use without actual or exclusive possession. Roberts v. Casey, 36 Cal.App.2d, Supp. 767, 93 P.2d 654, 657, 658, 659; Coggins v. Gregorio, C.C.A.N.M., 10th Cir., 97 F.2d 948, 951; Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947, 955, 957, 959.
“A tenant, with the right of exclusive possession of a part of a house, the landlord, by himself or an agent, retaining general dominion over the house itself, Wallsey v. Perkins, 7 Man. & G. 155; Pollock v. Landis, 36 Iowa 652; one obtaining room in residence hotel by special arrangement with proprietor at fixed rate for permanent stay and having merely use of room, Brams v. Briggs, 272 Mich. 38, 260 N.W. 785; one who has no interest in the realty but who occupies part of a tenement which is under the control of another, Edwards v. City of Los Angeles, 48 Cal.App.2d 62, 119 P.2d 370, 373; one who occupies hired apartment in another’s house; a tenant of part of another’s house, Smith v. Dorchester Hotel Co., 145 Wash. 344, 259 P. 1085, 1086; Dewar v. Minneapolis Lodge, No. 44, B. P. O. E., 155 Minn. 98, 192 N.W. 358, 359, 32 A.L.R. 1012; one who occupies room or portion of tenement under control or in occupancy of another and has no interest in real estate, Stone v. City of Los Angeles, 114 Cal.App. 192, 299 P. 838, 841.”

The occupants of the group home do not meet the definitions of lodger or boarder, nor does the group home constitute a boarding house or rooming house. Although the residents will eat and sleep in the home, they cannot be deemed to be an unrelated group of people occupying only a part or a portion of another’s house. The mentally retarded adults have common interests, common goals, common problems, and will be receiving some supervisory attention from the houseparent couple who will also reside in the home. They will not be mere lodgers or boarders, especially in the commercial context in which the terms are used in the ordinance. Rather, the persons residing in the group home constitute a single housekeeping unit composed of persons who are living and working together toward common goals and who will, as nearly as possible, emulate the lifestyle of the traditional family as we know it.

In defining one-family dwelling and family, the ordinance does not place any numerical restriction on the number of persons living together as a single housekeeping unit, nor does it require any relationship between the persons, biological or otherwise. The ordinance does limit the number of boarders or lodgers who may be accommodated in a one-family residence but as previously held that situation does not exist here.

Although the issue presented by this case is res nova in Louisiana the courts of several other states have dealt with similar situations under zoning ordinances containing similar provisions. Where municipal ordinances have defined family simply as a single housekeeping unit, state courts have generally refused to read into the ordinance any requirement that the members of the household be related. Similarly, the courts have generally rejected contentions that residents of a group home are boarders or lodgers or that such a home is a boarding house or rooming house. See: Township of Washington v. Central Bergen Community Mental Health Center, Inc., 156 N.J.Super. 388, 383 A.2d 1194 (1978) (transitional residence for five female dischargees of mental health institutions deemed to be a single family dwelling where “family” was defined as “any number of individuals living together as a single housekeeping unit and using certain rooms and housekeeping facilities in common.”; Oliver v. Zoning Commission of the Town of Chester, 31 Conn.Sup. 197, 326 A.2d 841 (1974) (group home for nine employable mentally retarded adults with a houseparent couple held to be a single family dwelling where family was defined as “one or more persons occupying the premises as a single housekeeping unit, as distinguished from a group occupying a boarding house, lodging house, club, fraternity, or hotel.”); Carroll v. City of Miami Beach, 198 So.2d 643 (Fla.Dist.Ct. of App.1967) (Mother Superior and small group of novices deemed to constitute a family where family is defined as “one or more persons occupying premises and living as a single housekeeping unit, as distinguished from a group occupying a boarding house, a lodging house, or hotel, as herein defined.”); Application of Laporte, 2 App.Div.2d 710, 152 N.Y.S.2d 916 (1956) (60 student members of a religious order held to constitute a family for purposes of a zoning ordinance which defined family as “one or more persons occupying a dwelling unit as a single, non-profit housekeeping unit.”); Missionaries of Our Lady of La Salette v. Village of Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627 (1954) (three priests and two lay brothers of a religious organization deemed to constitute a family where family is defined in the zoning ordinance as “. .. one or more individuals living, sleeping, cooking or eating on premises as a single housekeeping unit.”); Robertson v. Western Baptist Hospital, 267 S.W.2d 395 (Ky.App.1954) (use of a house located in a one-family zone as a residence for 20 nurses held to be a permitted use where family was defined as “one or more persons living as a single housekeeping unit, as distinguished from a group occupying a hotel, club, fraternity or sorority house.”).

The decisions in the cases cited above relied on the well-organized principle that zoning ordinances are to be strictly construed in favor of the use proposed by the owner, which principle also forms an important basis for our decision in this case. The persons who will occupy the association’s group home will be living together as a single housekeeping unit; therefore, the proposed use of the property is a use by right under the zoning ordinance of the City of West Monroe and, as such, does not require the approval of the city planning commission or the board of adjustment.

The judgment of the district court is reversed and set aside. It is ordered, adjudged, decreed, and declared that the proposed use by the Ouachita Association for Retarded Children, Inc. a/k/a Ouachita Association for Retarded Citizens, of the property at 401 Slack Street, West Monroe, Louisiana, as a group home for mentally retarded adults as described in this opinion is a one-family dwelling use and a permitted use of right under the zoning ordinance of the City of West Monroe. Costs of the appeal are assessed to the plaintiff-appellee.

Reversed and rendered.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Gaston LEVESQUE and Myrtle Levesque v. Milton R. SABA.
    No. 11698.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 1981.

      Kronlage, Dittmann & Maselli, New Orleans, Joseph Maselli, Jr., New Orleans, for Gaston Levesque, et al., plaintiff-appellee.
    Raymond S. Childress, Metairie, for Milton R. Saba, defendant-appellant.
    Thomas E. Loehn, New Orleans, for First of Georgia Underwriters Insurance Co., third party defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiffs, Mr. and Mrs. Gaston Levesque, filed this wrongful death and survival suit against defendant, Milton R. Saba, for damages resulting from defendant’s fatal shooting of their son on December 30, 1976.

Defendant answered, denying liability to plaintiffs, and filed a third party demand against the New Orleans Police Department and the City of New Orleans, alleging negligence of the police department in failing to locate the body of plaintiff’s son in time to save his life. Defendant also filed a third party demand against First of Georgia Underwriter’s Insurance Company, his home owner’s liability insurer. Thereafter, plaintiffs added First of Georgia and the City of New Orleans as defendants.

The matter was tried to a jury, which found the defendant had used undue force in shooting the decedent. Judgment was rendered in favor of plaintiffs and against the defendant, Saba, in the amounts of $50,000 ($25,000 each) for loss of love and affection of their son, $3,500 for reimbursement of funeral expenses, and $5,000 for pain and suffering sustained by decedent prior to his death. In response to specific written interrogatories, the jury found defendant had intentionally shot decedent, thus excluding coverage under the policy, and judgment was rendered in favor of the original and third party defendant, First of Georgia. In addition, a directed verdict was granted by the judge in favor of the City of New Orleans and the New Orleans Police Department, dismissing those original and third party defendants.

The defendant, Saba, has appealed. In this court he contends: (1) The trial court erred in finding he had “used undue force in defending himself against the attack of the decedent” and in finding his actions “were ‘intentional’ within the scope of the insurance policy issued to him” by First of Georgia; and, alternatively, (2) the award is excessive.

The record reflects the only eye witnesses to the shooting were defendant and decedent. Defendant testified:

He and decedent were shareholders in a corporation which owned a trailer park in Kenner, Louisiana. Serious disputes arose between them, foreclosure was filed by the holder of the mortgage on the trailer park, and the corporation was judicially dissolved. He received a telephone call from decedent, requesting that he meet decedent on December 30, 1976 in order to sign documents to completely wind up the liquidation. The intended meeting place was decedent’s place of employment at the office of the Small Business Administration in a New Orleans building known as the Plaza Towers. He met decedent in the Small Business Administration’s office on the 17th floor of the building and, for reasons not explained, the two proceeded in the elevator to the 19th floor, which he later learned was totally vacant.

As he and decedent exited the elevator on the 19th floor, decedent threatened to kill him and struck 'him several times. The first blow struck by decedent temporarily blinded him. He drew a pistol, which he had brought with him because he feared decedent, and shot three times in the direction from which the blows were coming. When he regained his eyesight, he saw decedent lying wounded on the floor, told decedent to ask God’s forgiveness, and pushed the down button on the elevator to seek help.

He found himself in the lobby of the Plaza Tower without access to a telephone. He did not know why he did not stop at decedent’s office on the 17th floor but, because his automobile was just outside the building, he got into it in order to reach a telephone at a service station near the office building. However, when he arrived at the anticipated location of the service station, it was no longer there.

At that moment he realized he was only a short distance from the office of an attorney who represented him in a personal injury suit, so he proceeded immediately to his attorney’s office. He spoke to his attorney’s associate, and an anonymous telephone call was placed by the attorney’s secretary to the New Orleans Police Department informing it that a shooting had taken place in the Plaza Tower office building. The telephone call was placed no more than five minutes after the shooting, but the exact location of the shooting was not given the police. When he left the 19th floor of the Plaza Tower decedent was conscious and in pain.

He was deathly afraid of the decedent, and that was the reason he brought the gun with him when he went to the Plaza Tower. He knew decedent lifted weights as a hobby, and was physically strong. Decedent had beaten him on at least one occasion, and had threatened bodily harm to the mortgage holder who foreclosed on the trailer park.

Plaintiffs offered the testimony of Joseph Miceli, a detective of the Homicide Division of the New Orleans Police Department who investigated the shooting. Miceli testified:

The first notification to the police department of a shooting at the Plaza Tower was received by the Police Department at 10:33 a. m., and was anonymous. Police went to the building, but because they were not given a definite location for the shooting, they did not discover decedent’s body. At 1 p. m. that day Miceli was instructed to go to the office of defendant’s attorney to investigate the shooting. He and the attorney went to the Plaza Tower building and eventually discovered decedent’s body at 1:45 p. m. on the 19th floor.

He saw defendant on the same day between 2:30 and 3 o’clock in the afternoon. At that time defendant appeared to be nervous, but the only indication that he had been in a fight was a bruise on the inside of his lip. No other cuts or abrasions were visible to him, and the mug shot taken by the police on that day and introduced into evidence likewise indicates no evidence of trauma to defendant.

He did not observe powder burns on decedent’s clothing and, based on his experience gained in investigating approximately 800 shooting deaths in nine years, a gun would have to be about 3 feet from the shooting victim to leave power burns on his clothing.

Defendant corroborated his testimony that he was beaten by decedent with the testimony of Gertrude Parker, a resident of the trailer park formerly owned by defendant and decedent. She testified defendant attempted to collect rent from her, and at that time decedent ran up to defendant and began striking him about the back in a forceful manner. Defendant did not attempt to fight back, but merely pleaded with decedent to refrain from hitting him and discuss the matter like gentlemen.

Defendant also called James A. Malinda, holder of the mortgage on the trailer park formerly owned by decedent and defendant. Malinda testified the mortgage payments were overdue, and he referred the matter to his attorney to institute foreclosure proceedings. Thereafter decedent telephoned him, called him and his wife vile names, and threatened both their lives if Malinda did not stop the foreclosure. He also testified that at the trial of those proceedings the decedent grabbed him in the restroom and threatened to kill him.

Defendant also called Kerry Cuccia, an attorney appointed by the court as liquidator of the corporation owned by defendant and decedent. Cuccia testified he met with both men personally. In response to a direct question, he stated that while defendant never made threats in his presence against the decedent, decedent “in a manner of speaking,” made threats against defendant. These threats were in the form of “I am going to get even for this,” or “I am going to get him for this.” Cuccia testified he related these threats to defendant and advised defendant to stay away from decedent because of the anger he displayed. On cross examination, Cuccia stated he did not interpret decedent’s statements as threats to kill defendant, but anticipated possible physical violence in view of decedent’s anger and physically imposing stature.

Finally, it should be mentioned that defendant admitted pleading guilty to manslaughter after having been charged with first degree murder in the shooting of decedent. He explained his decision to plead guilty to a lesser charge by the fact that, at the time of his plea, he had spent 46 days and nights in Parish Prison under intolerable circumstances. He testified the prison was dirty, aggravated his sinus condition, and caused him to lose weight. He was advised by his attorney that the charge could result in life imprisonment if found guilty, and decided to plead guilty to the lesser charge approximately 14 days after it was offered when he learned he would be released immediately from prison on probation.

In Louisiana, a plaintiff cannot recover damages for battery if he is at fault in provoking the difficulty in which he is injured. However, in a physical altercation, an aggressor may become a victim if the original victim resorts to excessive violence and unnecessary force to repel the original assault.

In general, the peculiar facts and circumstances of each case determine whether the force used to repel the aggression was necessary and reasonable. Also generally, one is not justified in using a dangerous weapon in self defense if the attacking party is not armed but only commits battery with his fists or in some manner not inherently dangerous to life. However, resort to dangerous weapons to repel an attack may be justifiable in exceptional cases when the fear of danger of the person attacked is genuine and founded on facts likely to produce similar emotions in reasonable men. Under this rule it is only necessary that the actor have grounds which would lead a reasonable man to believe force is necessary, and that he actually so believes. All facts and circumstances must be taken into account to determine the reasonableness of the actor’s belief, but detached reflections or a pause for consideration cannot be demanded under circumstances which by their nature require split second decisions. Various factors relied upon by the courts to determine the reasonableness of the actions of the party being attacked are the character and reputation of the attacker, the belligerence of the attacker, a large difference in size and strength between the parties, an overt act by the attacker, threats of serious bodily harm, and the impossibility of a peaceful retreat.

In this court, defendant basically argues we should substitute our decision for that of the jury. However, a reviewing court must give substantial weight to the conclusions of the trier of fact, and is obliged not to disturb reasonable evaluations of credibility and reasonable inferences of fact, even if other evaluations and inferences are also reasonable. Here, there are enough inconsistencies in the record to justify the jury holding that defendant used excessive force in shooting the decedent.

Defendant testified he feared the decedent, yet he voluntarily went to the decedent’s office at the latter’s request. In addition, he chose to arm himself with a gun. The reason for the trip to the 19th floor also is unexplained, and the jury could well have questioned defendant’s motive in going to another floor. Likewise, defendant’s story leaves room for doubt when he testified that decedent’s first blow rendered him “temporarily blind” but he was nevertheless able to draw his pistol, fire three shots, and strike decedent with each shot. As no powder burns or marks were left on decedent’s clothing, the jury could well have inferred decedent withdrew or was not within sufficient proximity to inflict harm on defendant. Moreover, the absence of marks or evidence of a beating (except for a bruised inner lip) also could lead the jury to conclude defendant was not under serious attack or that excessive force had been used. Disparity in time between the actual shooting and when defendant’s attorney helped the police discover the body could have led the jury to conclude defendant’s primary concern was with his legal defense and not with attempting to save the life of his attacker. Finally, we mention the obvious, that one of a jury’s primary functions is to be a judge of credibility, and here this jury reasonably did not accept some of the pertinent parts of defendant’s testimony.

Under all of the circumstances presented by the evidence, we conclude the jury did not commit error in holding in favor of plaintiffs and against the defendant, and in the absence of manifest error, we cannot disturb the jury’s finding.

Next, defendant complains the award of $58,500 against him is excessive. As we have said, the award consisted of $25,000 each as damages to Mr. and Mrs. Levesque for the loss of their son, $3,500 for funeral expenses, and $5,000 for pain and suffering by the decedent prior to his death.

In replying to this defendant argument plaintiffs rely on the Supreme Court case of Reck v. Stevens which, in pertinent part, stated the role of the appellate review of trial court damage awards as follows:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries, see Coco at 341 So.2d 334.
However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).”

Under Reck the initial determination is whether the trial court abused its great discretion in awarding damages to a particular plaintiff under the circumstances of the case, and only after such a determination is made may a reviewing court resort to the mass of similar cases in the jurisprudence to determine an appropriate award.

We conclude the jury did not abuse its discretion by awarding $25,000 to each of decedent’s parents. The evidence indicates decedent was the oldest of plaintiffs’ five children. He was an honor student at Jesuit High School in New Orleans, and received an appointment to the United States Military Academy. Although he established a separate residence during his college days, he always lived within a two mile radius of his family. He was an integral part of a close-knit family, and organized and participated in most of the family gatherings. On the day he was shot he was scheduled to go on a family trip.

He did not support his parents, but he provided spending money for his brothers and sisters. He also gave his parents household appliances and money which allowed them to travel to Hawaii, British Columbia and Mexico and back. The decedent’s father testified he wakes úp at night thinking about the things his son did for him and the good times they had together. Decedent’s mother stated that as the first and oldest child, he was special and the person she called upon for emotional support in times of crisis, particularly when her husband would have heart attacks. These facts show a large amount of love, affection, and interdependence between plaintiffs and their deceased son. We cannot say the jury abused its discretion by awarding his parents $25,000 each for the loss suffered by his wrongful death.

Likewise, we find the jury’s award of $5,000 for the decedent’s pain and suffering prior to his death was not excessive. As previously stated, defendant admitted decedent was alive and conscious at the time defendant left him on the 19th floor of the Plaza Tower office building. The testimony of the assistant coroner who performed decedent’s autopsy establishes decedent internally bled to death. He estimated decedent lived approximately one-half hour after the shooting. Plaintiffs called a thoracic surgeon who testified decedent probably lived about an hour after the shooting, since no major blood vessels had been destroyed by any of the three bullets. This award will not be disturbed.

We do find error in the award for funeral expenses. That award was for $3,500, and the record is totally devoid of any evidence regarding funeral expenses or bills.

The final issue for our determination is whether the jury committed error by failing to cast First of Georgia in judgment.

The exclusionary language relied upon by this insurer declines coverage “to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” The insured in this situation is the defendant, who argues this provision is vague and uncertain, with the result that it must be interpreted against the insurance company. However, defendant does not explain how the wording of the policy exclusion is vague and uncertain.

On the contrary, interrogatories were submitted to the jury to answer in the case, one of which requested a determination of whether (1) defendant shot decedent intentionally, or (2) defendant expected to cause decedent bodily harm. The answer to this interrogatory was in the affirmative.

In this regard it is argued the jury was incorrect because testimony of the assistant coroner and thoracic surgeon established that while the shooting was a cause of decedent’s death, it was secondary to the negligence of defendant by fleeing the scene and failing to properly summon medical help. The medical evidence indicated that decedent survived at least one-half hour after the shooting, and since no major arteries were hit by any of the bullets, that decedent’s life could have been saved had he been given prompt medical attention. The medical procedure could have been done within 2 minutes in an emergency room or by paramedics at the scene of the shooting. Consequently, it is contended the death was caused by defendant’s negligence and did not come under the exclusionary clause of the insurance policy.

In response to a direct question, the defendant expressly testified that when he fired three shots in the direction from which the blows were coming at him, he expected to hit the decedent. Under these circumstances, we hold the language of the exclusionary clause of the policy is clear and unambiguous. The jury held defendant used excessive force in defending himself (if in fact his actions were defensive), and the fact situation before the court fits within the terms of the exclusionary language of the policy. The jury did not commit error by exonerating First of Georgia.

For the reasons assigned, the judgment appealed from is amended by reducing the total amount awarded from $58,500 to $55,-000, and, as thus amended, the judgment appealed from is affirmed. The defendant is cast for all costs.

AMENDED AND AFFIRMED.

      . Tripoli v. Gurry, 253 La. 473, 218 So.2d 563.

      . Willis v. Willis, La.App., 287 So.2d 642.

      . See Willis v. Willis, Id.

      . Brasseaux v. Girouard, La.App., 269 So.2d 590.

      . McCullough v. McAnelly, La.App., 248 So.2d 7.

      . Babineaux v. Pernie Bailey Drilling Company, La.App., 335 So.2d 747.

      . Mullins v. Pence, La.App., 290 So.2d 803.

      . Arceneaux v. Domingue, La., 365 So.2d 1330; Canter v. Koehring Company, La., 283 So.2d 716.

      . La., 373 So.2d 498, 501.

      . They also raised a nephew from the age of 8.

      . He was unable to accept this appointment because of a physical problem with his hand.

      . See Walker v. St. Paul Ins. Companies, La. App., 343 So.2d 251; Meaux v. Wiley, La.App., 325 So.2d 655.

      . Plaintiffs cite Walker v. St. Paul Ins. Companies, La.App., 339 So.2d 441, which awarded $2,000 for the pain and suffering of a decedent who lived approximately 15 minutes. On remand (343 So.2d 251) that award was increased to $5,000.

      .See Walker v. St. Paul Ins. Companies, supra, notes 12 and 13; Temple v. Liberty Mutual Insurance Co., La.App., 336 So.2d 299.

      . See Horde v. Foucha, La.App., 396 So.2d 441.


text:
    Bruce Edward MAYER and Dorothy Mae Mayer v. BLUE CROSS INSURANCE COMPANY, INC., United States Fidelity and Guaranty Company, Valentine Sugars, Inc., John Doe One Through John Doe One Hundred.
    No. 11735.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 1981.

      Ernest Lee Caulfield, New Orleans, for plaintiff s-appellants.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, and Terry Freiberger, New Orleans, for defendants-appellees.
    John L. Dorsey, New Orleans, amicus curiae.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiffs, Bruce Edward Mayer and Dorothy Mae Mayer, filed this suit against defendants, Blue Cross Insurance Company, Inc., Valentine Sugars, Inc., United States Fidelity and Guaranty Company, Valentine Sugars’ liability insurer, and various unnamed officers, shareholders, corporations, and other persons who may be liable to plaintiffs, to recover damages sustained by Bruce Edward Mayer in an explosion and fire which occurred on the premises of Valentine Sugars, his employer, on February 8, 1979. The petition alleges numerous acts of negligence and omission on behalf of defendants, asserts the explosion and fire were caused by the negligence of the defendant, Valentine Sugars, and further alleges the acts and omissions of defendant and its executive officers “were of such a nature as to meet any requirements of Louisiana law relative to an intentional tort.”

Defendant, United States Fidelity, filed exceptions of no cause or right of action based on the argument that the sole remedy of an employee for injuries sustained during the course and scope of his employment and caused by the negligent acts of his employer is under the Louisiana Workmen’s Compensation Statute, and that simply alleging this defendant’s negligence was the equivalent of an intentional tort constituted a mere conclusion of fact in violation of the requirements of Louisiana fact pleading.

Prior to the hearing on the exceptions, plaintiffs amended their petition to allege defendant, Valentine Sugars, was in the business of manufacturing phenolic resin, which produces an excessive amount of highly volatile dust, a dust subject to explosion, that it knew of the accumulation of dust, but failed to clean or otherwise take proper measures to filter or dispose of the dust, and allowed the machinery in the plant to become worn to the extent it caused friction and sparks to ignite the volatile dust. These actions or omissions, according to the amendment, were known by the defendant to be forbidden by local, state, and federal safety regulations.

The trial judge maintained defendant’s exception of no cause of action, and dismissed plaintiffs’ suit. Plaintiffs have appealed.

Plaintiffs concede that under R.S. 23:1032 an employee’s sole remedy against his employer for negligent injuries incurred by him in the course and scope of his employment is under the Louisiana Workmen’s Compensation Statute. However, they argue these defendants are liable to plaintiffs under that portion of R.S. 23:1032 which reads as follows:

“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.” LSA-R.S. 23:1032.

Plaintiffs’ argument may be summarized as follows: Defendant Valentine Sugars’ acts and omissions were so obvious and created such extreme hazards they surpassed mere gross negligence or willful and wanton behavior, and actually constituted intentional harm to the plaintiff.

Our jurisprudence on the meaning of the word “intentional” is sparse. One case which attempted to specifically define the term is Rambin v. Wood, in which the court adopted the definition contained in Restatement of Torts 2d., Section 8A: “. .. to denote that the actor desires to. cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

A similar explanation .of an intentional tort was given in the case of Monk v. Veillon, an assault and battery case in which a bouncer shot a bar patron. In Monk plaintiff sought to have the shooting found unintentional in order to bring the incident within coverage of an insurance policy. With regard to this argument, the court stated (at page 380):

“... . Our analysis of the record, and apparently that of the trial court, is that Chaisson, when he pulled his pistol and fired in the direction of the plaintiff, a mere eight feet away, must have entertained a desire to bring about the result which followed and should have believed that the result was substantially certain to follow.”

Relying on Monk, defendants argue both elements must be alleged to state a cause of action under Louisiana law, and the Restatement of Torts as adopted in Rambin is basically incorrect in that it improperly sets forth the two elements in the disjunctive rather than the conjunctive.

While we do not agree with defendants’ conclusion regarding the holding in Rambin, our disagreement becomes immaterial in view of the most recent and definitive decision discussing the meaning of “intent”, Bazley v. Tortorich, in which the court adopted the disjunctive definition contained in the Restatement. We are required to follow Bazley, a case handed down by the Supreme Court of Louisiana which reversed a decision of this court.

In Bazley plaintiff was struck and injured by a passing automobile while mounting the back of a Jefferson Parish garbage truck in the course and scope of his employment. He alleged the accident resulted from his co-employee’s intentional acts in operating a garbage truck without a working horn, disregarding mechanical and electrical standards, failing to keep a proper lookout or see what he should have seen, and failing to stop in a safe place and warn plaintiff of danger. Plaintiff did not allege facts showing his co-employee desired the consequences of his acts or believed they were substantially certain to follow.

The Bazley plaintiff argued an “intentional act” was identical to a “voluntary act” so that an injured employee may sue in tort for any voluntary act setting in motion events leading to his injury even if the resulting injury did not appear likely or was not apparent to the actor. The court (at page 482) rejected this argument as follows:

“.. . The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App.1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3d Cir. 1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir. 1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir.) writ denied 386 So.2d 359 (La.1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App. 1st Cir. 1979), cert. denied 382 So.2d 164 (La.1980); Frazier v. Woodward, 378 So.2d 209 (La.App. 4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir.1979); Guidry v. Aetna Casualty & Surety Company 359 So.2d 637 (La.App. 1st Cir.) writ denied, 362 So.2d 578 (La.1978). Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A, Comment; Prosser, supra, § 8.” (Emphasis ours).

It should be noted that in Bazley the Supreme Court pointed out that most states imposing statutory or common law penalties for intentional misconduct “... have required a commission of a genuine intentional tort and have refused to stretch liability to include negligence, recklessness, or constructive intent.”

We conclude in this case that plaintiffs’ petition, as amended prior to the hearing on the exception, fails to allege facts sufficient to show the defendant Valentine Sugars either “desired to bring about the physical results” of its alleged acts and omissions or “believed they were substantially certain to follow” from such acts and omissions. The allegation in the petition that defendant’s acts or omissions were of such a nature as to meet the requirements of our law relative to an intentional tort is a mere conclusion of law and does not comply with the Louisiana requirement for fact pleading. As such, it does not state a cause of action for an intentional tort.

However, the judgment does not afford plaintiffs an opportunity to amend their petition. Amendment after a peremptory exception is maintained is covered by Article 934 of the Louisiana Code of Civil Procedure as follows:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.” LSA-C.C.P. Art. 934.

There is a possibility that plaintiffs may be able to remove the objection to their exception of no cause of action, especially with regard to the question of whether Valentine Sugars believed the physical results were substantially certain to follow its alleged acts and omissions. Consequently, we will remand to afford plaintiffs an opportunity to amend their petition, if they can do so in good faith and in accordance with this opinion. Accordingly, we affirm that part of the judgment which sustains the exception of no cause of action.

For the reasons assigned, the judgment appealed from is affirmed. However, the case is remanded to the trial court for the purpose of allowing plaintiffs an opportunity to amend their petition within a delay allowed by that court.

AFFIRMED AND REMANDED.

      . Blue Cross filed a motion for summary judgment on the ground its policy provided only medical insurance coverage and excluded injuries covered by the Louisiana Workmen’s Corn-pensation Statute. Blue Cross is not involved in this appeal.

      . R.S. 23:1021, et seq.

      . Cases other than those mentioned in this opinion are referred to in Bazley v. Tortorich, La., 397 So.2d 475.

      . La.App., 355 So.2d 561.

      . La.App., 312 So.2d 377.

      . Supra, note 3.


text:
    Mrs. Katherine Craig TOMPKINS, Individually and as Administratrix of the Estate of Her Deceased Husband, Archie John Tompkins, Jr., and as Natural Tutrix of Their Minor Son, Archie Tompkins, III v. KENNER POLICE DEPARTMENT, North River Insurance Company and Marie Smith.
    No. 11830.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 1981.

      David Band, Jr., New Orleans, for plaintiff-appellant.
    Henderson, Hanemann & Morris, Philip E. Henderson, Houma, for defendants-ap-pellees.
    Béfore SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit individually, as administratrix of the estate of her deceased husband, and as tutrix of their minor son, for damages against the Police Department of the City of Kenner, North River Insurance Company, the department’s liability insurer, and Marie Smith, the driver of an automobile involved in a collision in which plaintiff’s husband was killed. The suit is based on the alleged failure of an investigating Kenner police officer to notice the body of her husband on the side of the road and summon medical assistance for him in order to prevent his death. The petition also alleges the police department did not properly train its patrolmen to make appropriate accident investigations.

The Kenner Police Department and North River Insurance Company responded with a peremptory exception of no cause of action, based on the premise that the duty owed by a police officer to thoroughly investigate an accident and the duty of a municipal police department to appropriately train its police officers are duties which are not owed to individual members of the public but only to the community at large, so that a breach of these duties will not support a private cause of action against the police department.

Following oral argument, the trial judge maintained defendants’ exception, but afforded plaintiff an opportunity to amend. After plaintiff amended, an identical exception was maintained by the trial judge, and plaintiff’s case was dismissed. Plaintiff has appealed.

A peremptory exception of no cause of action addresses itself to the legal sufficiency of the petition, and it is triable on the face of the papers. All well pleaded allegations of fact must be accepted as true, and if these allegations set forth a cause of action on any part of the demand, the exception must be overruled. It has been held that when a court can reasonably do so, it should maintain a petition and afford the litigant an opportunity to present his evidence.

Plaintiff’s petition alleges: Her husband died in an accident in which an automobile wrongfully executed a left turn into the path of an on-coming motorcycle on which he was a passenger. The force of the impact caused the decedent to be thrown 100 feet into a weeded area on the side of the road. A police officer employed by the City of Kenner investigated the accident shortly after it occurred. The officer arrived on the scene at 8:25 p. m., and called for an ambulance. He then spoke to several witnesses, including the operator of the motorcycle, made measurements for the accident report, and departed the scene at 8:30 p. m., approximately five minutes after his arrival. The officer failed to discover there had been a passenger on the motorcycle and failed to discover plaintiff’s husband, who was lying alive, but badly hurt, only a few feet away in a vacant lot.

Approximately two hours after the accident, plaintiff learned of the accident and proceeded with others to the scene, where they discovered plaintiff’s husband. He was weak from loss of blood, and declared dead on arrival by hospital emergency room physicians at 11:45 p. m.

Plaintiff amended her petition to specifically allege the operator of the motorcycle could see her husband on the side of the road from his position and told the Kenner police officer either to “get my friend” or to “attend to Archie”. The amended petition further alleges the decedent at that time was moaning and rustling in the grass in an apparent attempt to crawl back to the highway, the driver of the motorcycle made this fact known or attempted to make it known to the officer to no avail, and the officer failed to see what he should have seen.

We are obliged to take these alleged facts as true for the purposes of defendant’s exception. In so doing, we hold the petition states a cause of action against the Kenner Police Department and its insurer.

The exception is based on the decision of this court in Dufrene v. Guarino, in which we held the negligent inspection of a private business, a cocktail lounge, would not render the City of New Orleans liable to patrons subsequently injured in a fire at that establishment, even if the city conceivably could have prevented the fire by an adequate inspection. The Dufrene language relied upon by defendants reads as follows:

“Now, with sovereign immunity a thing of the past, it is important to precisely define the limit of the State’s tort liability. Is the City liable if an injury occurs because of inadequate fire or police protection? In Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968), the court held the city was not liable for an injury that possibly could have been prevented by police protection. The circumstances are as compelling as those in Serpas [La.App., 59 So.2d 492]. A young lady was blinded and scarred by an ex-suitor who had previously threatened her on several occasions hired someone to throw acid in her face. Although her prior complaints to police about danger from this source were substantiated, the court denied recovery. Its opinion pointed out:
“It is necessary immediately to distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises, such as are involved in the operation of rapid transit systems, hospitals, and places of public assembly. Once sovereign immunity was abolished by statute the extension of liability on ordinary principles of tort law logically followed. To be equally distinguished are certain activities of government which provide services and facilities for the use of the public, such as highways, public buildings and the like, in the performance of which the municipality or the State may be liable under ordinary principles of tort law. The ground for liability is the provision of the services or facilities for the direct use by members of the public.
‘In contrast, this case involves the provision of a governmental service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers. (See, e. g., Messineo v. City of Amsterdam, 17 N.Y.2d 523, 267 N.Y.S.2d 905, 215 N.E.2d 163; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138-139, 256 N.Y.S.2d 595, 596-598, 204 N.E.2d 635, 636-637; Steitz v. City of Beacon, 295 N.Y. 51, 56, 64 N.E.2d 704, 706, 163 A.L.R. 342, 18 McQuillin, Municipal Corporations [3d ed.], §§ 53.79-53.80.) The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed. * * *’

This factor was considered by the trial judge and in his well-reasoned written opinion he stated:

‘The resolution of the issue posed by these exceptions involves ultimately a police determination properly based on a consideration of the competing benefits sought by each side. The victims point to causation in fact, their very real loss, and the general good to be accomplished by holding public authority responsible in damages for their failure to enforce protective regulations. The agencies rightfully point to the immeasurable and inevitably enormous impact on the public fisc if all agencies are held responsible. The agencies persuasively argue that to impose liability in damages for the failure to enforce regulations might compel the government, by economic necessity, to repeal such regulations and thereby deprive the public of their benefits.
* # * « * * » ?»

The foregoing quotation would seem to support defendants’ position. However, this court (at page 1100) also made the following statement:

“The cases cited by plaintiff in which the City has been held liable for the torts of its agents all involve factual situations where there is a duty owed to the individual. For example, in Prattini v. Whorton, 326 So.2d 576 (La.App. 4th Cir. 1976), the City was held liable for the negligent act of its police officer agent in directing a bus to move in traffic when it should have been obvious that such a maneuver would cause it to collide with plaintiff’s car. As plaintiff points out, directing traffic is a duty carried on for the public good; however, at this moment, the policeman also was obligated to conduct himself in such a way that he did not inflict damage to the property of the individual involved. The motorist was under the explicit direction of the police officer who had the apparent authority to exact his compliance. There was a one-to-one relationship between the city officer and the individual motorist when the injury occurred.”

We do not doubt a local government cannot be held liable in cases of failure to enforce a protective regulation when the injuries resulting therefrom are not readily foreseeable and a substantial time passes between the negligent actions and the injuries sustained by a plaintiff. However, in enforcement of a governmental regulation which, through closeness in proximity or time, results in a one-to-one relationship between the police officer and the injured party, the police officer ceases to act only for the public good and at that moment becomes obligated to the individual to conduct himself in such a way as not to cause him unnecessary injury.

Defendants conceive of hypothetical cases in which a municipality would be liable in damages to persons who are mugged, raped, robbed, or burglarized for failure to have appropriate police patrols at the site of the crime. Such hypothetical examples, however, are based on the failure of a police department to possess clairvoyant powers and anticipate commissions of crimes in advance. These are not the facts in the case now before us.

On the contrary, according to the allegations of the petition, the police officer was at the scene of the accident, was told by the injured driver of the motorcycle to attend to his friend at the side of the road, proceeded to investigate the accident, and took no measures whatever to render or obtain medical help for the injured passenger, who eventually died from lack of medical treatment. These facts clearly establish a sufficient closeness in both proximity and time as to create a one-to-one relationship between the officer and the injured party, and the officer’s failure to act properly under these facts would render the city liable for his inattention and negligence.

The facts alleged in the petition are even clearer than those in the case of Adamski v. Burdell, in which this court held the City of New Orleans liable for the inadequate placing of one-way signs on a street resulting in a driver of a vehicle sustaining injuries when he unknowingly proceeded in the wrong direction on the one-way street.

Since we conclude the well pleaded facts of the petition allege the violation of a duty owed to a specific individual, and not merely violation of a duty owed to the general public, we conclude the trial judge committed error by maintaining defendants’ exception of no cause of action.

For the reasons assigned, the judgment appealed from is reversed, the exception of no cause of action is overruled, and this case is remanded to the trial court for further proceedings in accordance with law and the views herein expressed; assessment of costs to await a final determination.

REVERSED AND REMANDED.

      . Haskins v. Clary, La., 346 So.2d 193; Pence v. Ketchum, La., 326 So.2d 831; Hero Lands Company v. Texaco, Inc., La., 310 So.2d 93.

      . Pence v. Ketchum, supra, note 1.

      . See cases in note 1, supra.

      . La.App., 343 So.2d 1097.

      . Ibid., 1099.

      .See also Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968), in which the court refused to award damages to a woman blinded and scarred when an ex-suit- or who had previously threatened her on several occasions hired someone to throw acid in her face. Although her prior complaints to the police about the danger from her boy friend were substantiated, the court denied recovery. This is another example of a police department’s being expected to possess psychic powers.

      . La.App., 363 So.2d 1316.

      . See also Prattini v. Whorton, 326 So.2d 576 (La.App. 4th Cir. 1976).


author: DOMENGEAUX, Judge.

text:
    Albert A. BROUSSARD, et al., Plaintiff-Appellant, v. John Harry BROUSSARD, Defendant-Appellee.
    No. 7915.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.
    Lucius Hornsby, Jr., Lafayette, for plaintiff-appellant.
    J. Nathan Stansbury, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   DOMENGEAUX, Judge.

Doris Menard and Joseph Chagois (hereinafter referred to as appellants) appeal from a judgment dismissing their suit on exceptions of vagueness and of no cause of action.

This suit was originally filed by Albert Broussard, Joseph Winters and the appellants, against the defendant, John Harry Broussard, alleging that he “made statements which were detrimental to the employer-employee relationship between the plaintiffs and their employer” (the Vermilion Parish Police Jury), which caused the plaintiffs to be “discriminatorily terminated from their work...” Subsequently, Winters was dismissed from the suit on his own motion.

In response to the petition, the defendant filed exceptions of vagueness and no cause of action, which the trial court sustained, dismissing the plaintiffs’ suit. Albert Broussard appealed the judgment to this court which reversed the dismissal of the plaintiffs’ suit and remanded the case to the trial court to give the plaintiff the opportunity to amend his petition so as to state a cause of action and remove the vagueness. Broussard v. Broussard, 381 So.2d 942 (La.App. 3rd Cir. 1980). This court also held that due to the fact that appellants did not appeal, that decision only affected the rights of Albert Broussard, and not the rights of the appellants.

The appellants argue that they did not immediately appeal the decision with Albert Broussard because, due to an oversight, they were not named in the judgment which maintained the defendant’s exceptions. The appellants obtained another judgment specifically naming the appellants and maintaining the defendant’s exceptions of no cause of action and vagueness and dismissing their suit. The judgment was signed on April 23, 1980 and the appellants obtained an order for this appeal on May 7, 1980.

Because the facts and issues involved in this appeal are identical to those presented to this court in Broussard v. Broussard, supra, the parties have stipulated to be bound by the decision of this court in that appeal.

For the above reasons, the judgment of. the trial court dismissing the plaintiffs’ suit is reversed and remanded for further proceedings consistent with the views of this court expressed in Broussard v. Broussard, supra.

REVERSED AND REMANDED.


text:
    Kenneth W. CARPENTER, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY, et al., Defendants, State of Louisiana, through the Department of Transportation and Development, Defendant-Appellee.
    No. 8247.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.

      Charles F. Wagner, Pineville, for plaintiff-appellant.
    R. Randall Roche, Baton Rouge, Paul Henry Kidd, Monroe, for defendant-appel-lee.
    Before DOMENGEAUX, GUIDRY, and CUTRER, Judges.
   DOMENGEAUX, Judge.

This is a personal injury case. Plaintiff, Kenneth W. Carpenter, seeks damages as a result of an automobile collision which occurred on an icy bridge. The accident was between a vehicle which plaintiff owned and was driving, and one owned and being driven by Mrs. Clara Andrews, one of the defendants herein. Several other parties were named as defendants, however, because of a settlement made with certain defendants, and an exception being maintained as to another, the only defendant remaining in this appeal is the State of Louisiana, Through the Department of Transportation and Development (the Department). The plaintiff has appealed from a decision of the trial court in favor of the Department. We affirm.

The issue on appeal is whether or not the trial court erred in concluding that the accident was not caused by the negligence of the Department.

On January 18, 1978, Mrs. Clara Andrews was driving toward Monroe after attending a seminar conducted in Baton Rouge. She left Baton Rouge about 1:00 P.M. and drove continuously and without interruption until about 5:30 P.M., when she reached the Little River Bridge situated on U. S. 165, about 3 miles south of its intersection with U. S. 84 in LaSalle Parish. The weather was very cold. It had been raining in the area and freezing conditions prevailed. At about 3:00 P.M. a Highway Department crew spread lightweight clay aggregate on the bridge because ice had formed on the bridge deck. It continued to rain thereafter and by 5:30 P.M. the aggregate had been covered over by newly formed ice. Mrs. Andrews approached the bridge in the northbound lane at a speed of approximately 30 miles per hour. Once on the bridge, she lost control of her automobile and skidded into the southbound lane of traffic. The plaintiff, Kenneth W. Carpenter, was driving in the southbound lane and collided with Mrs. Andrews’ vehicle near the north end of the bridge, sustaining serious personal injuries.

The plaintiff contends that the Highway Department was negligent in failing to open the “Ice on Bridge” signs prior to the accident. The evidence on this issue is conflicting. As shown hereafter, though, the trial judge professed his belief in one witness who said the signs were open. Notwithstanding this, the trial court nevertheless concluded that any failure to open the signs would not have been a cause in fact of the accident because Mrs. Andrews testified that she would not have slowed down had the signs been open, for she was already traveling slow on account of the inclement weather. The trial judge stated:

“Mrs. Andrews testified that she drove slowly on the bridge and that she had been driving slow all the way from Baton Rouge. Considering the time lapse and distance covered, her testimony is highly creditable and it is uncontroverted. She also candidly stated that she probably would not have slowed down more had she seen the sign, seemingly because she was already going so slow. This appears reasonable considering her awareness of prevailing weather. She had not encountered ice previously but apparently she was taking no chances under the circumstances.”

Generally, it is the duty of the Department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary and reasonable care. U. S. F. & G. Co. v. State, Department of Highways, 339 So.2d 780 (La.1976); Coleman v. Houp, 319 So.2d 831 (La.App. 3rd Cir. 1975). However, the Department is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from defects in such highways. U. S. F. & G. Co. v. State, Department of Highways, supra; Barnes v. Liberty Mutual Insurance Company, 350 So.2d 288 (La.App. 3rd Cir. 1977), writ refused 352 So.2d 238 (La.1977); Mauthe v. Gibson, 367 So.2d 1280 (La.App. 3rd Cir. 1979).

The trial court concluded that even if the signs were not open, such omission was not causally connected with the accident. Liability does not attach unless the conduct complained of bears a causal connection in fact to the occurrence of the accident. Cause in fact is purely a factual inquiry which poses the “but for” test, meaning but for the defendant’s action the accident would not have occurred. Craig v. Burch, 228 So.2d 723 (La.App. 1st Cir. 1969); Stewart v. Gibson Products Company of Natchitoches Parish, La., 300 So.2d 870 (La.App. 3rd Cir. 1974); See also: Pelloat v. State, Department of Highways, 198 So.2d 674 (La.App. 1st Cir. 1967).

The trial judge based his conclusion on Mrs. Andrews’ testimony that she would not have slowed down even if she had seen an “Ice on Bridge” sign, because obviously she was going slow then. He also concluded from the facts that the Department had taken some action to remedy the traction problem presented by the ice by spreading aggregate on the bridge only two and one-half hours before the accident. Additionally, the trial judge professed his belief in the credibility of Mr. Finley, the LaSalle Parish Department maintenance supervisor, who said that the “Ice on Bridge” sign was open, — ... “because it seems to me that he was the only witness who testified and who was at the scene who was concerned about the signs on the evening of the accident.”

Factual determinations of the trial court will not be disturbed on appeal unless the record reveals the trial court’s decision is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Our review of the entire record indicates that the decision of the trial court is not manifestly erroneous .or clearly wrong. The plaintiff failed to prove by a preponderance of the evidence any negligence on the part of the Department which was a cause in fact of the accident.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . Mrs. Clara Andrews, the tortfeasor in this case, was an employee of the Monroe City School Board, which was made a party defendant herein. Mrs. Andrews, her husband, and their liability insurer, Travelers Insurance Company, also made defendants, settled with plaintiff for the sum of $25,000.00. Mr. and Mrs. Andrews and Travelers were consequently dismissed from this suit. Subsequently, on August 27, 1980, as shown in the court minutes, an exception of no cause of action, filed on behalf of the School Board was sustained, and plaintiffs cause of action against the Board was dismissed.
      Plaintiff-appellant, in a supplemental brief, now contends that the trial court erred in dismissing the Board from this suit. This supplemental brief was obviously filed because the Louisiana Supreme Court has now handed down the case of Sampay v. Morton Salt Company, 395 So.2d 326 (La.1981), which overruled its prior decision in Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960). Williams dealt with the solidary liability of employer and employee. Sampay held that the release of the employee (with reservation by plaintiff of rights) does not release the employer.
      There is no signed judgment in the record concerning the sustaining of the School Board’s exception. A judgment sustaining an exception is a final judgment. LSA-C.C.P. Articles 1841 and 1915; Fussell v. Fireman’s Fund Insurance Company, 225 So.2d 727 (La.App. 1st Cir. 1969). As final judgments, those sustaining exceptions must be signed before they may be appealed. LSA-C.C.P. Art. 1911; Davis v. Clemmons, 205 So.2d 143 (La.App. 1st Cir. 1967); Georgia-Pacific Corporation v. Jim Walter Corporation, 178 So.2d 794, 796 (La.App. 3rd Cir. 1965). A minute entry is not sufficient to satisfy the requirement that an appeal may only be taken from a signed judgment. Peoples’ Enterprise, Inc. v. Landry, 288 So.2d 701 (La.App. 3rd Cir. 1974); Louisiana Fuel Supply Company v. Gunter, 230 So.2d 660 (La.App. 2nd Cir. 1970); Gay v. Gay, 193 So.2d 537 (La.App. 3rd Cir. 1967). For these reasons alone, the action of the trial judge sustaining the exception is not before this court because no judgment appears in the record.
      Additionally, the matter is not before us because the plaintiff did not intend to appeal that unsigned judgment. Plaintiffs appeal is restricted to the judgment of the district court dated November 6, 1980, after trial on the merits, the only purpose of which was to relieve the Department of Transportation and Development from liability in this case. By specifically and categorically referring to the judgment rendered on November 6, 1980, the plaintiff has indicated that he is appealing only that particular judgment. There must be some certainty and definiteness as to which judgment is being appealed. Roche v. Big Moose Oilfield Truck Services, Inc., 371 So.2d 1374 (La.App. 3rd Cir. 1979), modified on other grounds, 381 So.2d 396 (La. 1980). See also: In re: Guardian Homestead Association, 199 La. 216, 5 So.2d 750 (1942); In re: Liberty Homestead Association, 198 La. 1068, 5 So.2d 353 (1941); Pichon v. Pichon Land Company, 174 La. 77, 139 So. 764 (1932).
      Although an inadvertent error as to which judgment is being appealed will not necessarily invalidate an appeal, (see Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967); Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968); and Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (1969)) there is no such inadvertency involved in the appeal at hand.


author: GUIDRY, Judge.

text:
    James L. SIMON, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, Paul L. Macri, Pitre & McBride Jewelers, Defendants-Appellees.
    No. 8263.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.

      Privat & Regan, Thomas K. Regan, Crowley, for plaintiff-appellant.
    Onebane, Donohue, Bernard, Torian, Diaz, McNamara & Abell, Dennis L. Doise, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

The plaintiff, James L. Simon, filed suit to recover damages for personal injuries he received in an automobile collision. Named as defendants were Paul L. Macri, the driver of the other vehicle; Pitre & McBride Jewelers, Maori’s employer; and, Commercial Union Insurance Company, the insurer of Maori’s employer. The parties stipulated to Maori’s negligence being the cause-in-fact of the accident and to the liability insurance coverage of Commercial Union Insurance Company. The trial judge awarded plaintiff $1,671.61 in damages, which included an award of $1,000.00 for general damages. Plaintiff appeals. We affirm.

The sole issue on appeal is the sufficiency of the award made for general damages.

On April 28, 1978, a Friday, around 11:00 P.M., plaintiff was driving his 1975 Toyota station wagon home after getting off work as a campus police officer at the University of Southwestern Louisiana. He was struck head-on by the defendant driving a 1977 Oldsmobile Toronado. The collision occurred near the intersection of University Street and Cameron Street in Lafayette, Louisiana.

The plaintiff testified that following the accident he remembered turning on his flashing signals and walking toward the rear of his car. He remembers being dizzy and disoriented. Several minutes after the accident, he lost consciousness and was transported by ambulance to Our Lady of Lourdes Hospital' in Lafayette.

At the hospital, x-rays of plaintiff’s head ■ and left elbow were made which proved to be negative. He regained consciousness and after remaining in the hospital under observation for several hours he was released. His parents took him to their home in Crowley, Louisiana, where his mother, a licensed practical nurse, monitored his condition every hour for the rest of the night according to instructions given by the hospital staff.

The following Monday plaintiff went to see his family doctor, Dr. Thomas L. McNeely, Jr., complaining of a stiff back, pain in his left shoulder and severe headaches. Dr. McNeely found evidence of tenderness in the regions complained of and concluded that plaintiff suffered a strain of the left shoulder, a strain of the lower dorsal spine and contusions of the above areas. An x-ray of the dorsal spine was negative except for scoliosis indicating the possibility of muscle spasm. There was no objective evidence of pronounced swelling, bruises or muscle spasm.

Two days later, May 3, 1978, plaintiff returned to Dr. McNeely still complaining of severe headaches and pain in the dorsal region of his back. Dr. McNeely administered physical therapy to the tender areas of plaintiff’s lower back and prescribed an analgesic and muscle relaxant to help relieve his pain.

The plaintiff continued to suffer severe headaches and returned to Dr. McNeely on May 5, 1978. Dr. McNeely advised him to continue taking his medication and to return five days later for another examination.

On May 10, 1978, some 12 days post accident, plaintiff returned to Dr. McNeely and reported that he was feeling better as the severity and duration of the headaches he was experiencing had begun to diminish. This was the last time he saw Dr. McNeely concerning his injuries arising out of the collision. Dr. McNeely did remember the plaintiff informing him on a subsequent occasion that the headaches persisted for two weeks after the above visit.

Dr. McNeely classified the injury to plaintiff’s lower back as a mild strain which would cause plaintiff pain from two to four weeks after his last visit. He testified that hopefully the headaches would not last any longer than the time period mentioned above but that it was not unusual for post-traumatic headaches to last for many months. Dr. McNeely testified the plaintiff had no prior medical history of back or head injuries.

The plaintiff testified he suffered severe headaches for two weeks after the accident. During this period he was unable to read, watch television or do any chores around the house requiring exertion. Engaging in any of the above activities served only to increase the severity of the headaches he was suffering. His wife testified to his inability to undertake any activities during this period.

Two weeks after the accident, plaintiff returned to work as a campus police officer at the University of Southwestern Louisiana. He continued to suffer headaches and was assigned light duty. During the first two weeks of his return to work he was unable to work a full day due to the recurring headaches. Despite the pain he was experiencing, plaintiff testified that he refused to stop working because he needed the money to pay the expenses of the upcoming birth of his child. Plaintiff testified that gradually the frequency of the headaches diminished, stopping completely some two or three months after the accident. At the time of trial, he was no longer experiencing any pain from the injuries he received in the collision.

Appellate review of general damage awards is limited to a determination of whether or not the trial court abused its much discretion. That is to say, an abuse of trial court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages. Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978) and cases therein cited.

In the instant case the trial court awarded plaintiff $1,000.00 in general damages. Although we consider the amount awarded to be very conservative we cannot conclude that it is less than the lowest amount which could be awarded based upon a reasonable evaluation of the evidence in the record. Having found no clear abuse of discretion by the trial court the judgment appealed from will be affirmed.

AFFIRMED.

      . “General damages” are defined in Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974) as “... those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or lifestyle which cannot really be measured definitively in terms of money.”