Girtley v. ACE American Insurance Co.

182 So. 3d 351, 15 La.App. 5 Cir. 397, 2015 La. App. LEXIS 2486, 2015 WL 8525363
CourtLouisiana Court of Appeal
DecidedDecember 9, 2015
DocketNo. 15-CA-397
StatusPublished
Cited by4 cases

This text of 182 So. 3d 351 (Girtley v. ACE American Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Girtley v. ACE American Insurance Co., 182 So. 3d 351, 15 La.App. 5 Cir. 397, 2015 La. App. LEXIS 2486, 2015 WL 8525363 (La. Ct. App. 2015).

Opinion

MARC E. JOHNSON, Judge.

|2In this tort suit, Plaintiff appeals a judgment maintaining' Defendant’s exceptions of no cause of action and no right of action. For the following reasons, we' affirm.

FACTS & PROCEDURAL HISTORY

In August 2014, Plaintiff, Eric Girtley, filed suit for personal injuries he allegedly sustained when he was struck by a vehicle while he was trying to cross Loyola Blvd. in Kenner at its intersection with 31st St. in his wheelchair. Plaintiff alleged that the street light near the intersection was not functioning at the time of the accident. As such, Plaintiff named Entergy Louisiana, LLC (“Éntórgy”) as a defendant, asserting that it failed to properly inspect and maintain the street light, |swhich it was contractually -obligated to: do, and that its failure created an unreasonable risk of harm which was a proximate cause of the accident.1

In February 2015, Entergy filed peremptory exceptions of no cause of action and no right of action. Entergy asserted that Plaintiff had no cause of action because (1) it did not owe any duty to Plaintiff' to ' continuously operate streetlights, and (2) there was no privity of- contract between Plaintiff and Entergy. It further claimed that Plaintiff did not have a right of action because he was not a party to the contract and did not Rave any interest in any contractual agreement between Enter-gy and Jefferson Parish. On April 15, 2015, after a hearing, the trial court maintained Entergy’s exceptions of no cause of action and no right of action and dismissed Plaintiffs, claims against Entergy with prejudice. Plaintiff appeals this judgment.

ISSUE

On appeal, Plaintiff argues that the trial court erred in maintaining Entergy’s exceptions of no cause of action and no right of action.-' He contends the trial court erred in finding that Entergy did not have a legal duty to maintain and replace defective street lights, despite Entergy’s written contract with Jefferson Parish to do so. Plaintiff maintains that Jefferson Parish delegated its duty to maintain and replace the street lights to Entergy through a written contract and in exchange for consideration paid to Entergy. Plaintiff asserts that the contract between Entergy and Jefferson Parish was for the safety and welfare of the citizens of Jefferson Parish; thus, the contract contained a stipulation pour autrui, which gave the citizens of Jefferson Parish the right to bring an individual suit against Entergy for its negligence in failing to properly maintain the street lights.

14LAW & ANALYSIS

The Louisiana Supreme Court has explained the criteria for deciding an exception of no cause of action as follows:

A. cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff’s right to judicially assert the action against the defendant. [354]*354The 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.
No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition2 and accepts well-pleaded allegations of fact as true. 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. [Internal citation omitted.]

Wright v. La. Power & Light, 06-1181 (La.3/9/07); 951 So.2d 1058, 1068-69. Mere conclusions of the plaintiff in his petition unsupported by facts do not set forth a cause of action. Id. at 1069.

The ruling on an exception of no cause of action is subject to a de novo review, because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Id. at 1069. The reviewing court is to determine “whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief.” Id.

The sole allegations that pertain to En-tergy in Plaintiffs petition are as follows:

V.
That the street light located at the or near the aforesaid accident, was not properly functioning and failed to properly illuminate the area where said collision occurred.
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That the aforesaid accident sued on herein was the fault of and proximately caused by Defendant, Entergy Louisiana, LLC, in the following, non-exclusive, respects:
(a) By failing to properly inspect the non-working street light at the subject location that failed to illuminate the subject area of the collision that it was contractually obligated to inspect;
(b) By failing to properly maintain the street light at the subject location that failed to illuminate the subject area of the collision that it was contractually obligated to maintain;
(c) By having notice of the defective streetlight [sic] and failing to repair it;
•(d) Any other acts of negligence that created an unreasonable risk of harm which were the cause of the accident sued upon which are discovered between the filing of this petition and the trial of this matter.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. The inquiry is whether the plaintiff has any law, statutory, jurisprudential, or arising from general principles of fault, to support his claim. Laguerre v. Mendez, 08-784 (La.App. 5 Cir. 2/25/09); 9 So.3d 896, 898. In the absence of duty, there can be no liability. Shafouk Nor El Din Hamza v. Bourgeois, 493 So.2d 112, 116 (La.App. 5th Cir.1986), writ denied, 497 So.2d 1013 (La.1986).

In Shafouk, supra, this court stated that there is no statutory, jurisprudential or general principle of fault that supports a [355]*355cause of action for negligence against a power company for its failure to provide street lighting. In so stating, we noted that there is no authority that requires a power company to provide street lighting as part of its general “public utility service.” Id. at 117.

In Shafouk, this court found that the plaintiff failed to state a cause of action in negligence against the power company, LP & L, for failing to provide adequate street lighting along a roadway and in failing to maintain those lights already installed. The plaintiff, an Egyptian citizen, was struck and killed by a vehicle and a wrongful death action was filed on his behalf, alleging that LP & L was negligent for its failure to provide and maintain adequate street lighting in the area of the accident. We found that the plaintiff failed to allege any facts that would have established a legal relationship between the plaintiff and LP & L such that LP & L could be liable under a duty-risk analysis. We specifically stated that the failure of LP & L to provide adequate street lighting was’at most the deprivation of a benefit, not the violation of a duty.

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182 So. 3d 351, 15 La.App. 5 Cir. 397, 2015 La. App. LEXIS 2486, 2015 WL 8525363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/girtley-v-ace-american-insurance-co-lactapp-2015.