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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 15 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 6th day of February, 2004, are as follows: BY VICTORY, J.: 2003-C -1133 GABRIEL OUBRE v. AZMI ESLAIH, REASSURANCE OF NEW YORK, NIGHTHAWK CAB COMPANY, MARC WILLIAMS AND ALLSTATE INSURANCE COMPANY C/W MELANIE ESLAIH, WIFE OF/AND AZMI ESLAIH v. MARC D. WILLIAMS, ALLSTATE INSURANCE COMPANY AND LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT C/W MARTIN MONGRUE v. AZMI ESLAIH, REASSURANCE OF NEW YORK, NIGHTHAWK CAB COMPANY, MARC WILLIAMS AND ALLSTATE INSURANCE COMPANY (Parish of Orleans) For the reasons stated herein, the judgments of the trial court and court of appeal are reversed, and suit against the City of New Orleans is dismissed with prejudice. REVERSED. KIMBALL, J., dissents and assigns reasons.

02/06/04

SUPREME COURT OF LOUISIANA
NO. 03-C-1133 GABRIEL OUBRE versus AZMI ESLAIH, REASSURANCE OF NEW YORK, NIGHTHAWK CAB COMPANY, MARC WILLIAMS AND ALLSTATE INSURANCE COMPANY consolidated with MELANIE ESLAIH, WIFE OF/AND AZMI ESLAIH versus MARC D. WILLIAMS, ALLSTATE INSURANCE COMPANY, AND LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT consolidated with MARTIN MONGRUE versus AZMI ESLAIH, REASSURANCE OF NEW YORK, NIGHTHAWK CAB COMPANY, MARC WILLIAMS AND ALLSTATE INSURANCE COMPANY ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS VICTORY, J. We granted the City of New Orleans= writ application to determine whether the trial court=s finding of liability on the part of the New Orleans Police Department (ANOPD@) in this case was manifestly erroneous. After reviewing the facts and the applicable law, we find that the plaintiff failed to present evidence that the NOPD was aware of a dangerous traffic situation which would have given rise to an affirmative duty to see that motorists were not subjected to unreasonable risks of harm. Thus, we reverse the judgments of the lower courts.

FACTS AND PROCEDURAL HISTORY At around midnight on November 3, 1995, the plaintiff, Azmi Eslaih (AEslaih@), was traveling westbound on I-10 approaching the Westbank Expressway/South Claiborne Avenue exit, when the taxi cab he was driving stalled over the elevated portion of the interstate. At this point of the interstate, the Westbank Expressway/South Claiborne Avenue exit goes off to the left and the I10 veers to the right continuing towards Baton Rouge. Eslaih's cab initially stalled at the point where the two roads split and the rear of his car was in the lane of traffic going towards Baton Rouge. He then pushed his car across several lanes of traffic to the emergency lane on the left-hand side of the Westbank Expressway/South Claiborne exit. The weather conditions were rainy and the road was wet. Eslaih managed to position his car entirely in the emergency lane but facing east-bound, towards the oncoming traffic. He put on his flashing lights and attempted to restart his engine with no success. After approximately 45 minutes, he flagged down another cab driver who drove Eslaih home to Metairie. While at home, Eslaih ate a snack and called AAA to request a tow truck. AAA reported that they would be there in one hour. Eslaih then drove his wife=s van back to the

scene to wait for the tow truck and to retrieve some items out of his cab. He arrived at approximately 2:00 a.m. and parked his van in the emergency lane three feet in front of his cab, so that the trunk of the cab was facing the back of his van. He then stood between the two vehicles and began loading things from his cab into his van. At approximately 3:00 a.m., an automobile driven by Marc Williams, proceeding west on I-10, struck the stalled taxicab, pinning Eslaih between it and the van. As a result of the accident, Eslaih suffered severe injuries. Eslaih sued Williams, Allstate Insurance, and the State of Louisiana, DOTD. Four years later, after his new attorney noticed prior deposition testimony wherein 2

Eslaih stated he saw a NOPD cruiser pass the scene without rendering assistance, he added AAA and the City of New Orleans as additional defendants. AAA was dismissed on summary judgment, the State was voluntarily dismissed, and Eslaih settled with Williams and Allstate, leaving the City as the only defendant at trial. Eslaih alleged that the City was liable for his accident because, while at the scene of the accident, he saw two NOPD cruisers drive past the scene without rendering assistance. At trial, Eslaih testified about seeing two police cruisers passing his broken down cab in the emergency lane as follows: Q. What did you do as you as you were waiting there? A. First I start trying to look at my car and see if I can start it, try many times until the battery went down when I kept trying. So after that, I just, you know, sit on the side of the road and wait. Q. Did you see any vehicles pass by at the time? A. Yeah. Vehicle was passing by. Q. There was traffic on the road; is that right? A. That was traffic. Q. Did you see any law enforcement vehicles pass you by? A. Yeah, saw police car. Q. Could you tell us what kind of police car that you saw pass by? A. New Orleans police. Q. NOPD marked cruiser, is that correct? A. Yeah. Q. And are you familiar with the NOPD marked cruisers? A. Yeah, been driving a cab in the New Orleans and in the French Quarter all the time. I see them all over. 3

Q. So you're able to distinguish the NOPD cruisers from other law enforcement vehicles; is that correct? A. Yes. Q. Did that cruiser stop? A. No. Q. What was

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