Jenkins v. Lindsey

693 So. 2d 238, 1997 WL 188838
CourtLouisiana Court of Appeal
DecidedApril 16, 1997
Docket97-C-0492
StatusPublished
Cited by6 cases

This text of 693 So. 2d 238 (Jenkins v. Lindsey) 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
Jenkins v. Lindsey, 693 So. 2d 238, 1997 WL 188838 (La. Ct. App. 1997).

Opinion

693 So.2d 238 (1997)

G. Yvonne JENKINS
v.
Ronald LINDSEY, et al.

No. 97-C-0492.

Court of Appeal of Louisiana, Fourth Circuit.

April 16, 1997.

*239 Frederick R. Campbell, Geoffrey J. Orr, Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Metairie, for Relator.

Timothy G. Schafer, Schafer and Schafer, New Orleans, for Respondent.

Before BARRY, BYRNES and LANDRIEU, JJ.

BYRNES, Judge.

This suit was filed in Orleans Parish by plaintiff Yvonne Jenkins against alleged tortfeasor Ronald Lindsey and Lindsey's insurer, Allstate, relative to a motor vehicle accident which occurred on May 6, 1995 in Orleans Parish. In a first supplemental and amending petition plaintiff added USAA, her UM carrier. Subsequent to that petition, USAA brought a third party demand against relator, Wal-Mart Stores, Inc., alleging a second accident that occurred on March 4, 1996 inside a Wal-Mart store in Jefferson Parish in which plaintiff was struck by a string of shopping carts pushed by a Wal-Mart employee, aggravating plaintiff's previous injury. Wal-Mart filed an exception of no cause of action which was heard and denied in December of 1996.

Meanwhile, a second supplemental and amending petition was filed by the plaintiff and served upon Wal-Mart, which was aimed solely at Allstate for its alleged failure to negotiate a settlement. Wal-Mart was served with this petition, but was not named as a defendant. In a third supplemental and amending petition the plaintiff added Wal-Mart and Wal-Mart employee Perly Tate, for damages caused by the accident inside the Wal-Mart store on March 4, 1996.

Relators filed Exceptions of Improper Cumulation of Actions and Improper Venue to Plaintiff's Third Supplemental Petition and Exception of No Cause of Action To Plaintiff's Second Supplemental Petition[1] and Motion to Reurge Exception of No Cause of Action as to Third Party Demand. Perly Tate also filed exceptions of improper venue and improper cumulation of actions.

*240 Evidence was introduced to show that Perly Tate was a resident of Jefferson Parish, the Wal-Mart accident occurred there, and that Wal-Mart Stores, Inc. is a foreign corporation with its principal place of business in Jefferson Parish. The trial court granted the exceptions of venue.

Relator and Perly Tate argued that the cumulation of the claims arising out of the auto accident and the grocery cart accidents was improper because LSA-C.C.P. art. 463 requires that the venue be proper as to the actions cumulated and that there be a community of interest between the parties. The trial court granted the exceptions of improper cumulation of actions and dismissed plaintiff's third supplemental and amended petition without prejudice. Respondents have not sought writs from the trial court's judgment on these exceptions.

The trial court denied relator's exception of no cause of action as to USAA's third party demand and relator's exception of no cause of action as to plaintiff's second supplemental and amended petition. It is from the denial of these two exceptions of no cause of action that relator has applied to this court for supervisory writs.

After the trial court dismissed plaintiff's third supplemental and amending petition due to the improper venue and improper cumulation of actions, the only issue remaining for Wal-Mart is the exception of no cause of action relative to the third party demand filed by USAA, because Wal-Mart is not mentioned in the original, first or second supplemental petitions. USAA has filed an opposition to the writ which argues, among other things, that the writ was untimely filed. USAA correctly notes that Wal-Mart should have filed a motion for new trial or applied for supervisory writs when its exception of no cause of action to the third party demand was first denied in December of 1996. Rather, Wal-Mart re-urged that exception when it urged other exceptions. Although the writ application is thus untimely, this court may, on its own motion, grant an exception of no cause of action. La.C.C.P. art. 927(B). Therefore, consideration of relators' exception of no cause of action regarding USAA's third party claim against relators is proper because the maintaining of this exception will result in the dismissal of the relators from these Orleans Parish proceedings. Pape v. ODECO, Inc., 93-1005 (La.App. 4 Cir 9/21/94), 643 So.2d 229; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1239 (La.1993).

USAA's third party claim against the applicant, Wal-Mart Stores, Inc., alleges that Jenkins was injured on March 4, 1996 at a Wal-Mart store when an unknown employee of the store pushing thirty grocery baskets, struck Ms. Jenkins with the baskets, knocking her to the ground. The third party petition goes on to allege that the Wal-Mart employee then intentionally struck plaintiff again. Paragraph ten of USAA's third party petition contains the allegation crucial to the outcome of this writ:

Thus in the alternative, and only in the event that this Honorable Court finds that Ronald A. Lindsey was guilty of negligence which contributed proximately to the plaintiff's injuries and continued medical problems, which is denied, then Wal Mart Stores, Inc. is liable to United Services Automobile Association for the amount which said defendant third party plaintiff may be cast on the main demand on G. Yvonne Jenkins which is attributable to the exacerbation of Ms. Jenkins' injuries due to the negligence of Wal Mart Stores, Inc. and its unknown employee. [Emphasis added.]

The law is clear that where an injury occurs through the negligent act of one party and is aggravated by a separate negligent act of another party, the original negligent party is only responsible for the damages caused by his own fault. Rebstock v. Cheramie, 95-1388 (La.App. 1st Cir. 2/23/96), 673 So.2d 618; Swan v. Vernon Mill. Company, 517 So.2d 1161, (La.App. 3d Cir.1987), writ denied, 521 So.2d 1171 (La.1988); Livaccari v. United Jewish Appeal, Inc., 126 So.2d 67 (La.App. 4th Cir.1961). The plaintiff has the burden of proving that the subsequent injuries were not the result of a separate, independent, and intervening act for which the defendant was in no way responsible. Swan, at 1163.

*241 As an exception to this rule, the original tortfeasor may be held liable for additional damages from improper medical treatment. Weber v. Charity Hosp. of Louisiana at New Orleans, 475 So.2d 1047 (La.1985). Medical treatment for injuries are the direct consequence of the injuries, and the theory is that the tortfeasor should bear the responsibility for the possibility such treatment will not be performed properly. Id. The medical treatment "would not have been necessary but for the original injury caused by the negligence." Id. at 1050. The grocery cart incident does not meet this "but for" causation standard, i.e., it cannot be said that the grocery carts would not have struck Jenkins "but for" the injuries she sustained in the automobile accident. To put it in more current duty-risk language, an ease of association exists between an injury and negligent medical treatment received in response to that injury, but there is no ease of association between an injury received in an automobile accident and an injury received from a grocery cart many months later.

Another exception was noted in Younger v. Marshall Industries, Inc., 618 So.2d 866 (La. 1993), cited by the respondent. In Younger

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Traci Sauce v. Jake Burke
Louisiana Court of Appeal, 2022
Row v. Pierremont Plaza, LLC
814 So. 2d 124 (Louisiana Court of Appeal, 2002)
LaBorde v. AMERICAN NAT. PROPERTY & CAS.
780 So. 2d 501 (Louisiana Court of Appeal, 2001)
Smith v. Shoney's, Inc.
745 So. 2d 223 (Louisiana Court of Appeal, 1999)
Guillie v. COMPREHENSIVE ADDICT. PROGRAM
735 So. 2d 775 (Louisiana Court of Appeal, 1999)
Broussard v. Campbell Wells Corp.
702 So. 2d 361 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
693 So. 2d 238, 1997 WL 188838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-lindsey-lactapp-1997.