
    Mark J. LAMARTINIERE, et al., v. ALLSTATE INSURANCE COMPANY, et al.
    No. 91 CA 0275.
    Court of Appeal of Louisiana, First Circuit.
    April 10, 1992.
    Richard C. Macaluso, Hammond, for plaintiff-appellee.
    Houston T. Penn, Baton Rouge, for defendant-appellant State.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Defendants, the State of Louisiana, through the Office of the Fire Marshall and Deputy Fire Marshall, and Emerson Wilkerson, appeal a judgment in favor of plaintiffs, Mark J. Lamartiniere and Rita B. Lamartiniere in the amount of $2,500' for invasion of privacy.

The trial court made extensive factual findings in this ease, which are essentially undisputed, and which we adopt as our own.

In November of 1977, a fire destroyed the residence of plaintiffs, Mark and Rita Lamartiniere. At the time the fire occurred, plaintiffs were at a hunting camp some distance from their home. When they returned on Sunday of that weekend, they found their home seriously damaged by fire.
Emerson G. Wilkerson, who was employed at the time by the State Fire Marshall’s Office, was contacted subsequent to the fire by a deputy with the Tangipahoa Parish Sheriff’s Office, who stated that the Hammond Fire Department had requested his assistance in investigating the Lamartiniere fire. Wilkerson went to the site and made some investigation. He observed empty five-gallon plastic containers with an odor of gasoline and other substances in the vicinity of the Lamartiniere house, and felt that there had been some explosion of combustible materials. Wilkerson concluded that the fire was of incendiary origin.
Prior to the fire, the Lamartinieres had been attempting to sell this residence, and had it listed with a local real estate agent. Coincidentally, Wilkerson had himself been shopping for a new home, and on October 13, 1977, had inspected the Lamartiniere home as a potential purchaser. At that time, Wilkerson testified that he had observed that the house was well furnished, in fact, crowded with furniture, and that the house had many Spanish style furnishings. Also, the garage at that time had a number of items including motorcycles on this visit.
When he first inspected the remains of the home after the fire, Wilkerson observed that the foyer, hall and master bedroom were devoid of furniture, and that the garage was empty. He testified that the fire had started in the attic, and had not burned down to the floor level by the time it was put out, so that, in his opinion, it would not have consumed furnishings situated on the ground floor. Based on these observations, Wilkerson obviously harbored some suspicions that plaintiffs were responsible for the fire.
Subsequently, Wilkerson began working with Samuel Robertson, a claims adjuster for Allstate Insurance Company, which insured plaintiffs’ residence. Plaintiffs were advised that the fire was being investigated. There was also testimony that Robertson had plaintiffs’ permission to search for any “missing furniture[.”] Further in connection with the investigation and the fire claim, plaintiffs ultimately submitted a proof of loss form as to the contents of their dwelling. There was testimony that plaintiffs thought the proof of loss was to include everything they owned — not just what was lost in the fire. Plaintiffs also denied having moved any of the contents out of the house prior to the fire, although a second statement by plaintiffs modified this position to one stating that they had not moved any furnishings out of the house prior to the fire.
Based on their suspicions, Robertson and Wilkerson began checking with various storage warehouse facilities in the area. Ultimately, they located a “mini warehouse’ storage facility which had been rented by plaintiffs on October 10, 1977, approximately six weeks prior to the fire. This mini warehouse was locked, and only plaintiffs had keys to the locks. However, the attendant at the storage facility advised Wilkerson and Robertson that the adjacent warehouse was vacant, and supplied a stepladder. There was a narrow open space between the top of the wall separating the vacant warehouse from the warehouse rented by the Lamartinieres. Wilkerson climbed the stepladder and looked over the top of the wall. He stated that he observed some items such as pictures and trophies which he had previously seen in plaintiffs’ house when he visited it as a prospective buyer.
These observations were communicated to Deputy Bigner with the Tangipa-hoa Parish Sheriff’s Office who was apparently the local liaison in the investigation. Thereafter, Deputy Bigner obtained a search warrant for the mini warehouse.
Mrs. Lamartiniere testified that she received a call from Wilkerson and Bigner advising her that they had a warrant to search the mini warehouse. She went to the facility and opened the door for them. She had left word at the day care center where she was working for her husband to come to the storage center, and he arrived some time thereafter, during the course of the search. He was advised by the deputy sheriff to come to the courthouse for questioning, and he was thereafter charged with arson and placed in jail. This occurred on December 22, 1977. Lamartiniere’s brother-in-law posted his bond, and he was released from custody at some point thereafter. He and his wife testified that this thoroughly embarrassed and humiliated them, and disrupted their Christmas vacation.
Mr. Lamartiniere was employed by Union Carbide Corporation. When the search warrant was executed, some tools bearing an inscription “UCC” were discovered. Someone (apparently not Wilkerson or Robertson) contacted Union Carbide, which apparently concluded that the tools had been stolen. Mr. Lamarti-niere testified that he had purchased the tools at a “scrap sale” by which Union Carbide apparently sold old or unneeded equipment to employees, but Lamartini-ere had no proof of such purchase. He was thereafter discharged from his employment, according to a document admitted into evidence “... effective January 27,1978, because of the unauthorized possession of Union Carbide material with no satisfactory explanation.” Mr. Lamartiniere’s explanation for not relating the circumstances of the “scrap tool sale” to Union Carbide is that by this time he was being prosecuted criminally and had been advised by his attorney not to speak about the charges.
Plaintiffs instituted this suit on a number of bases. Allstate Insurance Company and Samuel Robertson were ultimately dismissed from the action, and the suit was maintained as against Emerson G. Wilkerson and the State of Louisiana through the Office of the State Fire Marshall. Although a number of grounds are alleged in the petition, plaintiffs’ primary contentions are that these defendants are answerable to them in damages under the theory of invasion of privacy, and further for damages for his loss of income due to his discharge from Union Carbide.
Criminal charges were filed against Mark J. Lamartiniere pursuant to the investigation and the evidence seized in the search of the mini warehouse. Ultimately, in those proceedings, a motion to suppress the evidence seized was upheld by the Louisiana Supreme Court (State v. Lamartiniere, 3[6]2 So.2d 526 (La.1978)).”

The trial court found as a matter of law plaintiffs were entitled to recover only for the initial “peeking” over the wall. Because Wilkerson merely turned over the information to the Tangipahoa Sheriffs Office and because the Sheriff’s department made its own inspection of the mini warehouse, peeking over the connecting wall before obtaining a search warrant and arresting Lamartiniere, the trial court reasoned that the Sheriff’s involvement was a superseding intervening cause. Consequently, the trial court held the defendants liable for the initial peeking over the wall and not for the ultimate results for which plaintiffs claim damages. Specifically, the trial court refused to award plaintiffs for damages resulting from Mark Larmartini-ere’s arrest, such as loss of income and damage to their reputation.

Plaintiffs did not appeal the judgment or file an answer to the appeal taken by defendant. Therefore, this aspect of the judgment is final. LSA-C.C.P. art. 2133; Succession of Brown, 468 So.2d 794 (La.App. 1st Cir.1985).

In Moresi v. Dept. of Wildlife & Fisheries, 567 So.2d 1081, 1093 (La.1990), the supreme court stated that damages are awardable to an individual for injuries or loss caused by this type of privacy invasion. 567 So.2d at 1093. In Slocum v. Sears Roebuck & Co., 542 So.2d 777 (La.App. 3 Cir.1989), the Third Circuit Court of Appeal held that in an invasion of privacy suit plaintiff must show actual damages. The court in Slocum, at page 779, quoted with approval United Pentecostal Church v. Interstate Surplus Underwriters, 368 So.2d 1104, at page 1109:

Fault alone does not produce recovery. It is the fault which causes some damage that produces recovery or reparation for the damage under CC 2315. When this cause in fact element is not proved, even though the negligence or fault is proved, recovery of damages is not allowed.

See also, Martin v. New Orleans Public Service, 590 So.2d 118 (La.App. 5th Cir.1991), where the fifth circuit held that in a malicious prosecution case plaintiff must show actual damages. The record contains no evidence that plaintiffs suffered damages from Wilkerson “peeking” over the wall of the mini warehouse.

Accordingly, based on the foregoing reasons, the decision of the trial court casting Wilkerson with damages is reversed, and the judgment against him and the State of Louisiana is dismissed with prejudice at plaintiffs’ costs.

REVERSED AND RENDERED.

LANIER, J., concurs in the result and assigns reasons.

LANIER, Judge,

concurring.

I concur in the result. The defendants have a valid qualified immunity defense.

The Louisiana Constitution of 1974 became effective at twelve o’clock midnight on December 13, 1974. La. Const, of 1974, art. XIV, § 35. The operative facts of this case took place on December 14, 1977.

In State v. Lamartiniere, 362 So.2d 526, 528-529 (La.1978), a five judge majority of the Louisiana Supreme Court used the following rationale to hold that Mark Lamarti-niere’s privacy rights had been violated:

Justice Harlan’s test is helpful in determining the extent of this defendant’s expectation of privacy. It is clear that the defendant had an actual, subjective expectation of privacy in the contents of his storage unit. The unit had no windows and no one could gain access without first obtaining the key from the defendant. The owners of the Tangi Store All testified that they represent to the prospective lessees that the units are not open to the public. And, though the unit did have the one foot ventilation space which opened into the next unit, the defendant would not be unreasonable in believing that no one would scale the twelve foot wall in order to see the contents of the unit.
We also find that the defendant’s expectation of privacy is of a type which society at large would recognize as being reasonable. Most people would believe their property to be safe from uninvited view when that property is stored in a locked storage unit with no exterior openings, and only a one foot ventilation space twelve feet above the floor.
A citizen may have a reasonable expectation of privacy in an area which is not impervious to all possible invasion, cf. Katz v. United States [389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ], supra; State v. Fearn [345 So.2d 468 (La.1977) ], supra. When that expectation is determined reasonable, the Fourth Amendment protects against intrusion through gymnastics such as those involved in the present case. Accordingly, we find that the defendant’s rights, protected under both the federal and state constitutions, were violated by the unwarranted invasion occasioned through the efforts of Wilkinson [sic] and Robertson. Further, without the information gained through that intrusion, the affidavit submitted for the search warrant fails to establish probable cause to search.
(Emphasis added)

Although the majority based their decision on the federal and state constitutions, they primarily relied on the United States Constitution’s Fourth Amendment. The majority did not assert the Louisiana Constitution afforded greater rights to Lamartini-ere under the facts. Justices Sanders and Marcus dissented from this rationale. In his dissenting opinion, Justice Marcus observed as follows:

The disputed evidence in the instant case was located in a rental unit where a space of approximately one foot existed between the side walls and the ceiling opening leading into adjoining rental units. In my view, the facts of this case do not warrant the conclusion that defendant had a justifiable expectation of privacy in the area where the evidence was located. Accordingly, the fourth amendment is not applicable in this case. Lamartiniere, 362 So.2d at 530.

Lamartiniere subsequently filed civil suits for damages against Wilkerson in state and federal court. The federal district court held that Lamartiniere did not have a valid claim against the defendants under 42 U.S.C. §§ 1983, 1985 and 1986 with the following rationale:

An issue which would have to be resolved before defendant would be liable under 42 U.S.C. § 1983 is whether defendant’s “search” of the storage unit violated plaintiff’s rights under the Fourth Amendment. However, because we conclude that in any event defendant has a valid qualified immunity defense, we need not decide whether the search itself was illegal. We simply note that there are several decisions in this circuit which appear to be inconsistent with the Louisiana Supreme Court’s holding on the Fourth Amendment issue. See, e.g., U.S. v. Jackson, 588 F.2d 1046 (5th Cir.1979) cert. denied, [442 U.S. 941] 99 S.Ct. 2882 [61 L.Ed.2d 310] (listening through crack at bottom of connecting motel room door did not violate Fourth Amendment); Gil v. Beto, 440 F.2d 666 (5th Cir.1971) (peering through partially opened Venetian blinds into defendant’s motel room was not illegal search). Those decisions rely on the general proposition that police officers who are in a place where they are lawfully entitled to be, and merely observe what is in plain view, do not violate Fourth Amendment rights. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) (per curiam). We also note that the storage shed in this case is even less akin to a person’s private dwelling than are the motel rooms in the cases cited. The court noted in Jackson, supra, that the extent of privacy which one may reasonably expect in a motel room is far less than in one’s home. In a ranking of places in terms of degree of expectation of privacy, one unit among many in a public storage facility must be near the bottom.
Wilkerson believed in good faith that he was not violating plaintiff’s constitutional rights. The following quote from his testimony indicates his purpose and state of mind:
[When] I climbed to the top of that stepladder on Mr. Faucette’s [the owner of the storage business] property and was able to see in that compartment without ever touching it in no [sic] way, I did not, at that time, think that I was violating any law.
Two justices of the Louisiana Supreme Court agreed, and as shown by the Fifth Circuit decisions cited above, Wilkerson may have been correct in his belief that his actions did not violate the U.S. Constitution.
Not every search which is ultimately declared illegal by a court gives rise to a damage action under § 1983 and the other civil rights statutes. “The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious ... deci-sionmaker from exercising his judgment, independently, forcefully, and in a manner best serving the long-term [public] interest.” Wood v. Strickland, 420 U.S. [308] at 319-320, 95 S.Ct. [992] at 999-1000 [43 L.Ed.2d 214]. “[A] police officer [or a fire marshal] is not charged with predicting the future course of constitutional law." Pierson v. Ray, 386 U.S. [547] at 557, 87 S.Ct. [1213] at 1219 [18 L.Ed.2d 288].
If defendant violated plaintiff’s Fourth Amendment rights at all, he certainly did not act “with such disregard of the [plaintiff’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1001.
(Emphasis added)

See Defendants’ Exhibit #44.

In Moresi v. State, Department of Wildlife & Fisheries, 567 So.2d 1081, 1094 (La.1990), appears the following:

Accordingly, we believe that a qualified immunity is justified in an action against state officers or persons acting under color of state law for damages caused by a violation of Article I, § 5 of the Louisiana Constitution. Consequently, a plaintiff’s allegation and proof of conduct under color of state law that deprived him or her of a right secured by Article I, § 5 may not always assure the plaintiff of recovery. If the defendant shows that the state constitutional right alleged to have been violated was not clearly established, the defendant is entitled to qualified immunity.

Under the above circumstances, the constitutional right in question was not clearly established and Wilkerson had qualified immunity.  