Bouton v. Allstate Ins. Co.
491 So. 2d 56 · Louisiana Court of Appeal · 1986
Facts
On Halloween 1981, three boys went trick-or-treating. One boy, dressed in military fatigues and holding a plastic gun, approached Robert Bouton's door. Bouton, frightened, armed himself, reopened the door, and shot and killed the boy after seeing a flash of light. Bouton sued the boys' insurers, alleging tortious conduct caused him damages.
Issue
Did the trick-or-treaters' actions constitute an assault or negligence, given the Halloween context, such that the plaintiff could recover for damages resulting from his subsequent shooting of one of the boys? Specifically, could a reasonable person have had a reasonable apprehension of battery or could the boys have reasonably anticipated the tragic outcome?
Holding
The court affirmed the trial court's decision, finding that the boys' actions did not constitute assault or negligence. A reasonable person would not have been apprehensive of a battery on Halloween, and the boys' duty did not encompass protection against the risk that led to the plaintiff's injuries.
Rule
For assault, there must be an intentional act causing a reasonable person to have a reasonable apprehension of battery, which is not met by Halloween trick-or-treating. For negligence, the defendant's duty must encompass protection against the particular injury, and the risk must be reasonably anticipated, which is modified by the societal norms of Halloween.
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