STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
21-183
CHASE BERGERON
VERSUS
USAA PROPERTY AND CASUALTY INSURANCE COMPANY, LAFAYETTE CONSOLIDATED GOVERNMENT AND SAMANTHA OVERTON
************ APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 2020-3679 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE
************ SYLVIA R. COOKS CHIEF JUDGE ************
Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles G. Fitzgerald, Judges.
AFFIRMED.
David D. Benoit Justin R. Cantu 420 Berard Street P.O. Box 877 Breaux Bridge, LA 70517 (337) 332-6666 COUNSEL FOR PLAINTIFF/APPELLANT: Chase Bergeron
Bryan D. Scofield James T. Rivera Jessica W. Marchand Scofield & Rivera, LLC 100 E. Vermilion, Suite 301 P.O. Box 4422 Lafayette, LA 70501 (337) 235-5353 COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City-Parish Consolidated Government COOKS, Chief Judge.
Plaintiff appeals the trial court’s grant of Defendant’s Exception of No Cause
of Action, dismissing Plaintiff’s claims against Defendant. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On October 3, 2019, Plaintiff, Chase Bergeron, exited a bus operated by
Lafayette City-Parish Consolidated Government (hereafter LCG) at a bus stop
located on West Willow Street in Lafayette. Plaintiff lived in an apartment complex
across the street from the bus stop. As he was attempting to cross Willow Street en
route to his apartment complex, Plaintiff was struck by a vehicle owned by Samantha
Overton and insured by USAA Property and Casualty Insurance Company (USAA).
Plaintiff suffered significant injuries from the incident to his head, right arm, left
elbow and a broken right leg.
Plaintiff initially filed suit against Samantha Overton, USAA and LCG.
Plaintiff then filed a First Supplemental and Amending petition noting it was Danyel
Overton, and not Samantha Overton, who was driving the vehicle that struck him
when he was crossing Willow Street. The claims against Overton and USAA were
eventually settled and dismissed. That left only Plaintiff’s claims against LCG.
In his petition, Plaintiff stated that LCG, “as the governmental entity
responsible for placement of city bus stops, is solidarily bound with defendants for
any damages due.” Plaintiff maintained the bus stop he exited was a few feet from
a ditch and the nearest crosswalk was one half mile away from the bus stop. Plaintiff
further maintained in his petition:
In addition, the injuries suffered by Petitioner were due to the negligence and/or strict liability of Lafayette Consolidated Government, in the following non-exclusive particulars.
2 a) In negligently placing a bus stop in an area that affords no safe passage across a busy thoroughfare to a large residential complex on the other side.
b) In not having a cross walk within a reasonable distance of the bus stop.
c) Negligent design of the bus stop in possible violation of applicable codes and/or guidelines.
d) In placing the bus stop immediately adjacent to a ditch.
In response, LCG filed an Exception of No Cause of Action on October 2, 2020,
with a memorandum in support of its position. LCG maintained once Plaintiff
disembarked the bus it no longer owed any duty to him in crossing the street. LCG
noted it was not disputed that Plaintiff had disembarked from the bus and was in a
lane of traffic when he was struck by the vehicle. Plaintiff opposed the no cause of
action exception filed by LCG, with accompanying memorandum.
A hearing on the exception was held on December 7, 2020. After argument
from counsel, the trial court found in favor of LCG and sustained the exception of
no cause of action. The trial court found LCG “owed no duty to the passenger once
they disembark.” This appeal followed. Plaintiff asserts the trial court erred in
granting LCG’s exception of no cause of action and in denying Plaintiff the
opportunity to supplement and amend his petition to assert additional causes of
action.
ANALYSIS
The function of the peremptory exception of no cause of action is to test the
legal sufficiency of the petition, which is done by determining whether the law
affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru,
Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). No evidence may be
introduced to support or controvert an exception of no cause of action. La.Code
Civ.P. art. 931. Consequently, the court reviews the petition and accepts well-
pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00- 3 2882 (La. 5/15/01), 785 So.2d 803; Everything on Wheels Subaru, 616 So.2d 1234.
The issue at the trial of the exception is whether, on the face of the petition, the
plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813
(La.5/23/94), 637 So.2d 127.
Louisiana has a system of fact pleading; therefore, it is not necessary for a
plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716
(La.1985). However, the mere conclusions of the plaintiff unsupported by facts does
not set forth a cause of action. Montalvo, 637 So.2d 127.
The burden of demonstrating that the petition states no cause of action is upon
the mover. City of New Orleans v. Bd. of Com’rs of Orleans Levee Dist., 93-690,
(La. 7/5/94), 640 So.2d 237. In reviewing the judgment of the district court relating
to an exception of no cause of action, appellate courts should conduct a de novo
review because the exception raises a question of law and the lower court’s decision
is to be based solely on the sufficiency of the petition. Fink v. Bryant, 01-987 (La.
11/28/01), 801 So.2d 346. The pertinent question is whether, in the light most
favorable to plaintiff and with every doubt resolved in plaintiff’s behalf, the petition
states any valid cause of action for relief. City of New Orleans, 640 So.2d 237.
Key in our inquiry is whether the defendant in this case owed Plaintiff a duty.
That inquiry is whether Plaintiff has any statutory or jurisprudential law to support
his claim that defendant owed him a duty under the facts of the particular case.
In his petition, Plaintiff claimed the duty owed by LCG included “exercis[ing]
the highest degree of vigilance, care and precaution for the safety of those whom
they transport.” However, it was acknowledged by Plaintiff in his petition that the
accident occurred while “attempting to cross the street,” minutes after the bus had
dropped Plaintiff off and departed the scene. In Teer v. Continental Trailways, Inc.,
341 So.2d 1306, 1308 (La.App. 3 Cir. 1977), this court held as follows:
4 [O]nce a passenger freely disembarks at his chosen destination free from harm, his status as passenger, and the public carrier’s contract to transport for hire, cease. At that point the public carrier only owes such person the duty of ordinary care--it is under no duty to warn the former passenger of ‘a danger which is apparent, obvious, and known to every person in good mind and sense’ (Deason v. Greyhound Corp., 106 So.2d 348 (La.App. 1 Cir., 1958), nor to personally transport, convey, or assist the former passenger in crossing a street or highway. Matte v. Continental Trailways, Inc., 278 So.2d 60 (La. 1973) and cases cited therein; Wille v. New Orleans Public Service, Inc., 320 So.2d 288 (La.App. 4 Cir., 1975); Deason v. Greyhound Corp., supra.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
21-183
CHASE BERGERON
VERSUS
USAA PROPERTY AND CASUALTY INSURANCE COMPANY, LAFAYETTE CONSOLIDATED GOVERNMENT AND SAMANTHA OVERTON
************ APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 2020-3679 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE
************ SYLVIA R. COOKS CHIEF JUDGE ************
Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles G. Fitzgerald, Judges.
AFFIRMED.
David D. Benoit Justin R. Cantu 420 Berard Street P.O. Box 877 Breaux Bridge, LA 70517 (337) 332-6666 COUNSEL FOR PLAINTIFF/APPELLANT: Chase Bergeron
Bryan D. Scofield James T. Rivera Jessica W. Marchand Scofield & Rivera, LLC 100 E. Vermilion, Suite 301 P.O. Box 4422 Lafayette, LA 70501 (337) 235-5353 COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City-Parish Consolidated Government COOKS, Chief Judge.
Plaintiff appeals the trial court’s grant of Defendant’s Exception of No Cause
of Action, dismissing Plaintiff’s claims against Defendant. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On October 3, 2019, Plaintiff, Chase Bergeron, exited a bus operated by
Lafayette City-Parish Consolidated Government (hereafter LCG) at a bus stop
located on West Willow Street in Lafayette. Plaintiff lived in an apartment complex
across the street from the bus stop. As he was attempting to cross Willow Street en
route to his apartment complex, Plaintiff was struck by a vehicle owned by Samantha
Overton and insured by USAA Property and Casualty Insurance Company (USAA).
Plaintiff suffered significant injuries from the incident to his head, right arm, left
elbow and a broken right leg.
Plaintiff initially filed suit against Samantha Overton, USAA and LCG.
Plaintiff then filed a First Supplemental and Amending petition noting it was Danyel
Overton, and not Samantha Overton, who was driving the vehicle that struck him
when he was crossing Willow Street. The claims against Overton and USAA were
eventually settled and dismissed. That left only Plaintiff’s claims against LCG.
In his petition, Plaintiff stated that LCG, “as the governmental entity
responsible for placement of city bus stops, is solidarily bound with defendants for
any damages due.” Plaintiff maintained the bus stop he exited was a few feet from
a ditch and the nearest crosswalk was one half mile away from the bus stop. Plaintiff
further maintained in his petition:
In addition, the injuries suffered by Petitioner were due to the negligence and/or strict liability of Lafayette Consolidated Government, in the following non-exclusive particulars.
2 a) In negligently placing a bus stop in an area that affords no safe passage across a busy thoroughfare to a large residential complex on the other side.
b) In not having a cross walk within a reasonable distance of the bus stop.
c) Negligent design of the bus stop in possible violation of applicable codes and/or guidelines.
d) In placing the bus stop immediately adjacent to a ditch.
In response, LCG filed an Exception of No Cause of Action on October 2, 2020,
with a memorandum in support of its position. LCG maintained once Plaintiff
disembarked the bus it no longer owed any duty to him in crossing the street. LCG
noted it was not disputed that Plaintiff had disembarked from the bus and was in a
lane of traffic when he was struck by the vehicle. Plaintiff opposed the no cause of
action exception filed by LCG, with accompanying memorandum.
A hearing on the exception was held on December 7, 2020. After argument
from counsel, the trial court found in favor of LCG and sustained the exception of
no cause of action. The trial court found LCG “owed no duty to the passenger once
they disembark.” This appeal followed. Plaintiff asserts the trial court erred in
granting LCG’s exception of no cause of action and in denying Plaintiff the
opportunity to supplement and amend his petition to assert additional causes of
action.
ANALYSIS
The function of the peremptory exception of no cause of action is to test the
legal sufficiency of the petition, which is done by determining whether the law
affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru,
Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). No evidence may be
introduced to support or controvert an exception of no cause of action. La.Code
Civ.P. art. 931. Consequently, the court reviews the petition and accepts well-
pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00- 3 2882 (La. 5/15/01), 785 So.2d 803; Everything on Wheels Subaru, 616 So.2d 1234.
The issue at the trial of the exception is whether, on the face of the petition, the
plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813
(La.5/23/94), 637 So.2d 127.
Louisiana has a system of fact pleading; therefore, it is not necessary for a
plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716
(La.1985). However, the mere conclusions of the plaintiff unsupported by facts does
not set forth a cause of action. Montalvo, 637 So.2d 127.
The burden of demonstrating that the petition states no cause of action is upon
the mover. City of New Orleans v. Bd. of Com’rs of Orleans Levee Dist., 93-690,
(La. 7/5/94), 640 So.2d 237. In reviewing the judgment of the district court relating
to an exception of no cause of action, appellate courts should conduct a de novo
review because the exception raises a question of law and the lower court’s decision
is to be based solely on the sufficiency of the petition. Fink v. Bryant, 01-987 (La.
11/28/01), 801 So.2d 346. The pertinent question is whether, in the light most
favorable to plaintiff and with every doubt resolved in plaintiff’s behalf, the petition
states any valid cause of action for relief. City of New Orleans, 640 So.2d 237.
Key in our inquiry is whether the defendant in this case owed Plaintiff a duty.
That inquiry is whether Plaintiff has any statutory or jurisprudential law to support
his claim that defendant owed him a duty under the facts of the particular case.
In his petition, Plaintiff claimed the duty owed by LCG included “exercis[ing]
the highest degree of vigilance, care and precaution for the safety of those whom
they transport.” However, it was acknowledged by Plaintiff in his petition that the
accident occurred while “attempting to cross the street,” minutes after the bus had
dropped Plaintiff off and departed the scene. In Teer v. Continental Trailways, Inc.,
341 So.2d 1306, 1308 (La.App. 3 Cir. 1977), this court held as follows:
4 [O]nce a passenger freely disembarks at his chosen destination free from harm, his status as passenger, and the public carrier’s contract to transport for hire, cease. At that point the public carrier only owes such person the duty of ordinary care--it is under no duty to warn the former passenger of ‘a danger which is apparent, obvious, and known to every person in good mind and sense’ (Deason v. Greyhound Corp., 106 So.2d 348 (La.App. 1 Cir., 1958), nor to personally transport, convey, or assist the former passenger in crossing a street or highway. Matte v. Continental Trailways, Inc., 278 So.2d 60 (La. 1973) and cases cited therein; Wille v. New Orleans Public Service, Inc., 320 So.2d 288 (La.App. 4 Cir., 1975); Deason v. Greyhound Corp., supra.
In Teer, the plaintiff disembarked the bus at night, in an unlighted area of a busy
highway. The plaintiff in Teer was struck by a vehicle while attempting to cross the
highway. This court in Teer affirmed summary judgment in the bus company’s
favor, finding it breached no duty owed to the plaintiff and dismissed the case.
Similarly, in Ricks v. City of Monroe, 44,811 (La.App. 2 Cir. 12/9/09), 26
So.3d 858, writ denied, 10-391 (La.5/28/10), 36 So.3d 247, the plaintiff’s daughter
was hit by a car after exiting a city bus and eventually died from her injuries. She
was struck by a vehicle while attempting to cross a five-lane thoroughfare to get to
a restaurant across the street from the bus stop. As here, the bus stop was located in
the middle of a block and there was no crosswalk. The plaintiff in Ricks argued the
city was “negligent in selecting the location of the bus stop where the accident
occurred.” Id. at 860. In affirming the trial court’s grant of summary judgment, the
Ricks court found it was the plaintiff’s “conduct [that was] the cause of her injury,
not the placement of the bus stop” and the bus stop’s location had nothing to do with
her decision. In this case, the trial court relied upon the decision in Ricks. We find
no error in that decision.
Although Plaintiff makes allegations that the bus stop was negligently
designed, it is uncontroverted that Plaintiff’s injuries occurred in the travel lane of
the road after he safely disembarked the bus. As Defendant notes, no facts were pled
as to how or why the design of the bus stop could have caused Plaintiff’s injuries.
As the decisions in both Teer and Ricks noted, it was the respective plaintiffs’
5 decisions to cross the road, despite oncoming traffic, that caused the plaintiffs’
injuries.
Plaintiff has not set forth or identified any applicable codes or statutes which
require that a crosswalk be near a bus stop, which in turn may create a legal duty on
Defendant’s part herein. Further, Plaintiff’s argument that there was a ditch near the
bus stop does nothing to support a claim that Defendant breached a duty owed to
him. He made no allegation that the ditch impeded his exit from the bus stop or
contributed in any way to his subsequent injuries.
Lastly, Plaintiff alleges the trial court erred in denying Plaintiff the
opportunity to supplement and amend his petition. The law provides a trial court is
vested with discretion when deciding whether to allow amendment of the petition
after it sustains a peremptory exception and it is not required to allow such
amendment when to do so would be a vain and useless act. Broussard v. F.A.
Richard & Assocs., Inc., 99-10 (La.App. 3 Cir. 5/5/99), 740 So.2d 156, writ denied,
99-1048 (La. 6/4/99), 744 So.2d 625. “[Louisiana Code of Civil Procedure] Article
934 does not require that the plaintiff be provided the opportunity to speculate on
unwarranted facts merely for the purpose of defeating the exception. The right to
amend one’s petition is qualified by the restriction that the objections to the petition
be curable.” Id. at 160 (citation omitted). Defendant notes, despite having over a
year and a half, Plaintiff has not cited a case, statute or regulation suggesting that
LCG owed him a duty, breached any duty owed to him or that such breaches caused
his injuries. Thus, we find the trial court did not abuse its discretion in denying
Plaintiff’s request to amend his petition.
DECREE
For the above reasons, the judgment of the trial court is affirmed. Costs of
this appeal are assessed to plaintiff-appellant, Chase Bergeron.