Jensen v. City of New Orleans ex rel. New Orleans Aviation Board

64 So. 3d 298, 10 La.App. 5 Cir. 917, 2011 La. App. LEXIS 385, 2011 WL 1135290
CourtLouisiana Court of Appeal
DecidedMarch 29, 2011
DocketNo. 10-CA-917
StatusPublished
Cited by5 cases

This text of 64 So. 3d 298 (Jensen v. City of New Orleans ex rel. New Orleans Aviation Board) 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
Jensen v. City of New Orleans ex rel. New Orleans Aviation Board, 64 So. 3d 298, 10 La.App. 5 Cir. 917, 2011 La. App. LEXIS 385, 2011 WL 1135290 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

1^Plaintiffs, husband and wife, filed suit against New Orleans Aviation Board (NOAB) and Northwest Airlines, Inc. (Northwest) for injuries Mrs. Jensen allegedly sustained when she fell at the New Orleans International Airport. Because Northwest was erroneously named as a defendant, Mrs. Jensen amended her petition to substitute Southwest Airlines, Inc. (Southwest) for Northwest. Southwest filed a peremptory exception of prescription alleging that because the amended petition was filed more than one year after the accident, Mrs. Jensen’s claim had prescribed. The trial court granted the exception and dismissed Southwest from the litigation. Because we find that the timely filed suit against NOAB did not interrupt prescription against Southwest, we affirm.

Facts and Procedural Background

Plaintiff/appellant, Mrs. Ameche Jensen, allegedly sustained injuries on October 25, 2008, when she fell on Southwest Airline’s concourse at the New Orleans International Airport in Kenner, Jefferson Parish, Louisiana. Prior to embarking on her flight from Birmingham to New Orleans, Mrs. Jensen, a ^handicapped passenger, informed Southwest that she required wheelchair assistance. Her boarding passes also indicated that such assistance was required.

Wheelchair assistance was provided at each leg of her trip until she arrived at her final destination in Louisiana. Once she deplaned in Louisiana, Mrs. Jensen asserts that neither Southwest nor airport personnel were present at the gate to provide wheelchair assistance nor were any announcements made for passengers who required such assistance. She, thereafter, proceeded to the baggage claim area when she suddenly and without warning fell and sustained injuries. [300]*300Mrs. Jensen filed suit on October 28, 2009, against NOAB and Northwest1 in the Civil District Court in Orleans Parish. Northwest filed a declinatory exception of improper venue, alleging that it was a foreign corporation and venue was proper where its primary business office was located — East Baton Rouge Parish — or where its principal place of business was located — Jefferson Parish.2 Mrs. Jensen amended her petition on December 22, 2009, to substitute Southwest for Northwest, which had been erroneously named as a defendant. The amended petition was also filed in the Civil District Court of Orleans Parish. Southwest filed a declina-tory exception of improper venue on January 27, 2010, adopting the exception and supporting memorandum Northwest had previously filed.

Mrs. Jensen, Southwest, and NOAB entered into a Consent Judgment on February 2, 2010, whereby the exception of improper venue was granted and the case was transferred to the 24th Judicial District Court in Jefferson Parish, Louisiana. Once the case was transferred, Southwest filed a peremptory exception of prescription, arguing that Mrs. Jensen’s tort claim prescribed because the |4amended petition was filed more than one year after the date of the accident. Mrs. Jensen argued, on the other hand, that the timely filed suit against NOAB interrupted prescription against its solidary obligor, Southwest. She argued alternatively that her claim arose from a breach of contract and was therefore subject to a ten-year prescriptive period.

The trial court issued a judgment on July 19, 2010, granting the exception of prescription and dismissing Southwest Airlines from the suit. The judgment was certified as final.

Assignments of Error

Mrs. Jensen appeals the trial court’s judgment, assigning the following errors:
1. The trial court erred when it found that Southwest and NOAB were not solidary obligors; and
2. The trial court erred when it failed to consider her alternative argument that her claim against Southwest was a breach of contract claim subject to ten-year liberative prescription.

Discussion

Second Assignment of Error

Because Mrs. Jensen’s second assignment of error will assist in the resolution of her first assignment of error, it is discussed first.

In her second assignment of error, Mrs. Jensen argues alternatively that her claim resounds in contract and is therefore subject to a ten-year liberative prescriptive period. Southwest disputes, however, that she has a claim for breach of contract in this case.

Our jurisprudence has consistently held that “an action against a common carrier for failure to carry a passenger without physical harm is a tort or quasi offense which prescribes if suit is not brought thereon within one year of the saccident.” Bean v. Texas Inter’l Air[301]*301lines, Inc., 805 So.2d 558, 554 (La.App. 4 Cir.1975), unit denied, 309 So.2d 347 (La. 1975). The common carrier doctrine applies in all circumstances where a passenger suffers an injury when boarding, traveling aboard, or disembarking a common carrier’s vehicle. Amos v. St. Martin Parish Sch. Bd., 00-808, p. 3 (La.App. 3 Cir. 12/6/00), 773 So.2d 300, 302.

Mrs. Jensen contends that Southwest breached its specific obligation to provide her with wheelchair assistance and her action is therefore one that arises from a breach of contract as opposed to an action in tort. She attempts to distinguish her case from Sizeler v. Employers’ Liability Assurance Co. 102 So.2d 326 (La.App.Orleans 1958) and Flash v. Continental Airlines, Inc., 07-1522, 2008 WL 451061 (W.D.La.1/25/08), (unpublished), cases cited by Southwest, by stating that in those cases, the plaintiffs did not actually suffer from a breach of contract because their injuries occurred while the contract was being performed (ie. they were injured during transportation). It is Mrs. Jensen’s contention, however, that in this case, her contract specifically stated that wheelchair assistance would be provided throughout the entirety of her trip and because it was not, a breach occurred.

Though Sizeler, supra and Flash, supra are factually different, we find that the same principle enunciated in those cases applies here. The contract of carriage between the plaintiffs and the defendants merely determines the duty the defendant owes and does not change the nature of the cause of action or the applicable prescriptive period. Bean, supra. Admittedly, Southwest had a specific duty to provide Mrs. Jensen with wheelchair assistance and failed to do so. That, however, does not change the nature of her cause of action against them. As Southwest points out, to hold otherwise would lengthen the prescriptive period of any tort that might arise in conjunction with an ancillary service contract.

IfiWe, therefore, find that Mrs. Jensen’s claim arises in tort and is subject to a one-year liberative prescriptive period. Mrs. Jensen may overcome prescription, however, by showing that NOAB and Southwest are solidary obligors.

First Assignment of Error

In her first assignment of error, Mrs. Jensen argues that her claim against Southwest has not prescribed because suit was timely filed against NOAB, its soli-dary obligor.

On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931.

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64 So. 3d 298, 10 La.App. 5 Cir. 917, 2011 La. App. LEXIS 385, 2011 WL 1135290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jensen-v-city-of-new-orleans-ex-rel-new-orleans-aviation-board-lactapp-2011.