
    Cherri L. MAHL v. Ed HIMEL, Ed Long, and Harry Lee, Individually and as Sheriff of the Parish of Jefferson.
    No. 93-CA-856.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 1995.
    Ronna M. Steele, Joseph H. Hart, IV, Steele Hart, L.L.P., Robert G. Harvey, Sr., New Orleans, for plaintiff-appellee-appellant.
    Franz Zibilich, Lee, Martiny & Caracci, Freeman R. Matthews, Metairie, for defendants-appellants.
    
      Gerald J. Nielsen, Metairie, amicus curiae. T. Allen Ussry, Metairie, for amicus curiae.
    Before KLIEBERT, C.J., and GRISBAUM, DUFRESNE, WICKER and GOTHARD, JJ.
   liGRISBAUM, Judge.

Defendants appeal the trial court’s judgment finding them hable for injuries plaintiff suffered when she was attacked by a police dog.

ISSUE

Whether the actions of a police officer in searching an apparent place of business (where a burglary is suspected) during the early hours of the morning with a police dog were negligent so as to render him hable for the injuries sustained by a person in the building who was attacked by the pohce dog.

FACTS

During the early morning hours of September 5, 1990, Deputy Edward Himel, Jr. was on routine patrol on Metairie Road when he observed the door to |2a building was open. He suspected a burglary and called for backup. Deputy Edward Long arrived at the scene with his K-9 unit, Flex, and proceeded to inspect the premises with Flex.

After a search of the first floor yielded no result, Deputy Long and Flex continued to the second floor. Unaware of plaintiffs presence on the second floor, Deputy Long unleashed Flex. Flex subsequently apprehended plaintiff, who was sleeping, by biting her leg.

On June 10, 1991, plaintiff filed suit for damages suffered as a result of her injury against Deputy Himel, Deputy Long and Harry Lee, individually, and as Sheriff of the Parish of Jefferson. A three day trial took place in February 1993 with a resulting judgment finding defendants liable for a total of $170,989.97. It is from this judgment defendants appeal. Plaintiff also answered the appeal seeking an increase in damages.

ANALYSIS

To support a finding of negligence, plaintiff must prove (1) defendants’ conduct was a substantial factor in bringing about her harm, (2) defendants owed a duty, (3) defendants breached their duty, and (4) the risk and harm caused was within the scope of protection afforded by the duty that was breached. Roberts v. Benoit, 605 So.2d 1032 (La.1991).

We now turn to determine whether plaintiff met her burden of proof. Whether a duty is owed is a legal question. A police officer has a duty to perform his function with due regard for the safety of all citizens who will be affected by his actions. His authority must at all times be exercised in a reasonable fashion Rand he must act as a reasonably prudent man under the circumstances. Justin v. City of New Orleans, 499 So.2d 629 (La.App. 4 Cir.1986), writ denied, 501 So.2d 232 (La.1987).

Whether defendants breached this duty is a question of fact. Nothing in the record suggests the officers were unreasonable in their conduct. Deputy Himel stopped to investigate 3234 Metairie Road because he noticed the door was open. Upon closer inspection, he saw “[t]he hasp was broken off from the casing of the door... .pieces of wood from the casing [were] on the ground ... in addition to a couple of screws ... on the ground right underneath the casing.” He also noticed a 2" x 4" piece of wood in the middle of the doorway, which appeared to have been used to pry or force the door open. Furthermore, Deputy Himel saw a small TV with the cord wrapped around it at the bottom of the stairs on the first floor. These things together caused Deputy Himel to suspect a burglary.

Deputy Long arrived at the scene shortly thereafter with his K-9 unit, Flex, and proceeded to inspect the premises under the belief a crime was being committed or had been committed, because the door was broken and open and the business was closed. Upon entering the first floor building with Flex on a leash, Deputy Long testified the place had the appearance of a business in that there were cans, paints and ladders around the room. Deputy Himel stated he never knew the area to be a place people lived because it was commercial in that it was composed of small business shops.

Prior to unleashing Flex, Deputy Long called out his standard warning, “ ‘Jefferson Parish Sheriffs Office, come out or a K-9 dog will be used.’ ” Flex did not find anything or anyone, and Deputy Long put him back on his leash and proceeded to the second floor. At the top of the stairs, Deputy Long noticed a desk scattered with papers, which indicated to him that he was still searching a business. Deputy Long called out his warning again, prior to releasing Flex. Flex |4then apprehended plaintiff by biting her leg. Thereafter, it was determined plaintiff had been visiting the owner of the business, John Lapouble, when she fell asleep on the second floor. It was also determined it was plaintiff who had left the door of the business open, which caused Deputy Himel to stop and inspect the building in the first place.

During the entire search process, Deputy Long was no more than 10-15 feet behind Flex when Flex was not on his leash. Long-testified that if a place is inhabited, the dog is kept on his leash during the search. John Lapouble, the owner of the business, testified he occasionally stayed overnight at his business. However, we do not find any indication that the police officers should have known the building was inhabited. The building was located in a known commercial area and, once inside, there was still no indication the building might be inhabited after business hours.

The results of this case may have been different if the area was noticeably or readily ascertainable to be residential. However, this was not the case. Considering the circumstances, plaintiff offered no evidence to show the actions of Deputies Himel and Long were unreasonable. Plaintiff argues they should have used their lights, sirens and bullhorns to announce their presence. However, as Deputy Himel stated, the purpose is to catch the perpetrator, not scare him off. Furthermore, he was of the opinion that had the sirens been used it could have potentially made the situation worse.

CONCLUSION

We find the court was manifestly erroneous in finding defendants liable for plaintiffs injuries. The record clearly shows the actions of the officers were reasonable and, thus, could not be construed as negligent. Plaintiff never offered any alternative viable procedure that the officers could have followed, as opposed |5to the actions they took. Thus, we do not find plaintiff proved defendants breached their duty to act in a reasonable manner under the circumstances presented.

For the above reasons, the March 10,1993 judgment and the following March 15, 1993 amended judgment are hereby reversed.

REVERSED.

| iKLIEBERT, Chief Judge,

dissenting in part; concurring in part.

I agree with the majority opinion that a duty risk analysis must be utilized to determine liability on the part of defendants. However, I disagree with the majority’s decision to substitute their factual findings for those of the trial court. This violates the standard of appellate review set by our Supreme Court in Rosell v. ESCO, 549 So.2d 840, 844 (La.1980) which states as follows:

“It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong,’ and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

See also Quinones v. U.S.F. & G., 630 So.2d 1303 (La.1994); Healy v. National R.R. Corp. (Amtrak), 613 So.2d 1117 (La. App. 5th Cir.1993).

The majority opinion fails to articulate its record findings as to where the trial court was “clearly” wrong in making its factual determination. The majority opinion points to facts which establish the right of the police officers to investigate the premises and the proper means by which they approached and entered the building. However, the majority fails to articulate where the trial court was clearly wrong in finding the alleged warnings given by Deputy Long were reasonable.

The police have a duty to protect the public and to act reasonably in their investigations so as to expose the public to the least danger possible under the circumstances of the particular case. A finding of liability on defendants here will not mandate liability on a police authority simply because a police dog bit an individual. The facts and circumstances surrounding a particular incident must be considered and weighed against the interests of the police officer to protect himself from injury or death; the interest of the public to apprehend a criminal; and the interest of |2an individual to be free from the horror and pain of being attacked by a police dog.

The trial court was faced with two factual scenarios concerning the attack on plaintiff. Defendants maintain the search was conducted utilizing department policy. This “policy” included an oral warning prior to releasing the dog to search the premises. Plaintiff testified she did not hear the warning that a K-9 search was about to begin and, if such a warning was made, she would have heard it and responded. Finding an inadequate warning was issued, the trial court ruled for plaintiff.

Given the record before us, I disagree with substituting the majority’s factual findings for those of the trial court. The record does not establish that the trial court’s decision was clearly wrong. Accordingly, I would affirm the trial court judgment.

liGOTHARD, Judge,

concurring with reasons.

I concur in the majority’s holding that plaintiff failed to prove at trial that defendants breached their duty to act in a reasonable manner, and that therefore, defendants were not negligent in acting as they did. However, in her suit against defendants, plaintiff alleged both negligence and strict liability. The majority opinion fails to address strict liability. Because the trial court judgment does not reveal whether the trial court found defendants liable under negligence or strict liability, I believe that a proper review of this matter warrants discussion regarding strict liability.

STRICT LIABILITY

Initially, it must be noted that the matter before us is res nova, in that it is not a case where an individual’s pet caused injuries to an innocent third party. This case involves the use of a police dog to search the scene of a possible crime in progress — a dark, unfamiliar and seemingly uninhabited business. Flex, the dog in question, was used only after several warnings were called out and unanswered. Moreover, Flex, as a police dog, is trained to use a certain amount of force to apprehend suspects.

Lin Louisiana, strict liability is founded on LSA-C.C. art. 2317, which provides:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
Art. 2321. Damage caused by animals
The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.

To prove liability under article 2317, plaintiff need not allege negligence, but must show: (1) the thing which caused the damage was in the care and custody of the defendant; (2) the thing had a vice or defect that created an unreasonable risk of injury to another; and (3) the defect caused the injury. 2304 Manhattan Blvd. Partnership v. Louisiana Power & Light Co., 643 So.2d 1282, 1285 (La.App. 5 Cir.1994) (citations omitted).

To recover under article 2321, plaintiff must prove the following facts by a preponderance of the evidence: (1) that the dog was owned by the defendant, (2) that the dog created an unreasonable risk of harm to the plaintiff, and (3) that the dog’s behavior contributed to the plaintiffs harm. The risk of harm created by a dog’s behavior is unreasonable if the magnitude of the risk outweighs the utility [sof the dog’s behavior. Marchand v. York, 624 So.2d 440, 442 (La.App. 5 Cir.1993), writ denied, 629 So.2d 1180 (La.1993).

In Boyer v. Seal, 553 So.2d 827 (La.1989), the Louisiana Supreme Court held that the criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interests, a weighing of the risks and gravity of harm, and a consideration of individual and societal rights and obligations. The principle that the person who has the guardianship and enjoyment of an animal should bear the cost of damage caused through the risks it creates is balanced by the policy that a guardian should not be responsible for protecting against all risks. Thus, animal cases are not exempt from the unreasonable risk requirement imposed in other strict liability cases. Smith v. Roan, 605 So.2d 10,11 (La.App. 2 Cir.1992), citing Boyer, supra.

The judicial process involved in deciding whether a risk is unreasonable under strict liability is similar to that employed in determining whether a risk is unreasonable in a traditional negligence problem, and in deciding the scope of duty or legal cause under the duty/risk analysis. Lynch v. Hanover Ins. Co., 611 So.2d 121, 123 (La.App. 5 Cir. 1992), writ denied, 613 So.2d 996 (La.1993) (citations omitted).

In order to properly address the issue of strict liability, and whether or not the defendants created or maintained an unreasonable risk of harm to plaintiff, a review of what was known to the deputies prior to instituting the search is imperative. The undisputed testimony and evidence in the record shows that at the time Deputy Himel noticed the opened front door at 3234 Metairie Road, it was approximately 1:00 a.m., the building was clearly marked as a business, and |4the front door showed signs of forced entry. The deputies had more than enough objective evidence to believe that a burglary was in progress. Further, testimony revealed that the business showed no signs of habitation, was dark, and was unfamiliar to either deputy. Therefore, at the time of the incident, the utility in using Flex to help search the premises was very high. At the same time, the risk that Flex would apprehend an innocent third party was very low, especially considering that Deputy Long gave several warnings before releasing Flex, and, once the search was underway, there was nothing inside to lead Deputy Long to believe that innocent persons were inhabiting the business.

After a thorough review of the record, I cannot find any evidence that the defendants created or maintained an unreasonable risk of harm to plaintiff by utilizing Flex to help search the business. Therefore, I believe that not only were the defendants not negligent in acting as they did, they also cannot be found strictly hable for plaintiffs injuries.

For these reasons, I agree that the trial court judgment should be reversed. 
      
      . Judgment was rendered March 10, 1993 and amended March 15, 1993. The amended judgment increased the amount of damages for past and future medical costs from $10,961.39 to $30,989.97. Other damages include $5,000 for residual scarring, $10,000 for post traumatic stress disorder, $125,000 for past and future pain and suffering, $3,100 for expert witness fees and costs and interests.
     
      
      . In fact, John Lapouble, the owner of the business, testified at trial that the front door showed signs of forced entry because he had broken in to his business four or five times prior to the incident when he forgot his key at home.
     
      
      . Indeed, they would have been derelict in their duties had they not investigated further.
     