Tryon Eastwood, Et Ux. v. Niblett's Bluff Park Commission

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-1401

TRYON EASTWOOD, ET UX.

VERSUS

NIBLETT’S BLUFF PARK COMMISSION, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2010-1921
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

James B. Doyle
P. O. Box 2142
Lake Charles, LA 70602
(337) 433-5999
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Tryon Eastwood
Rebecca Eastwood

Michael R. Sistrunk
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch
195 Greenbriar Blvd, Ste 200
Covington, LA 70433
(504) 831-0946
COUNSEL FOR DEFENDANTS/APPELLEES:
Niblett’s Bluff Park Commission
Southern Insurance Company

Christian D. Chesson
Attorney at Law
One Lakeshore Plaza, #1800
Lake Charles, LA 70629
(337) 436-5297
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Tryon Eastwood
Rebecca Eastwood

Charles D. Fadaol
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch
3445 N. Causeway, Suite 800
Metairie, LA 70002
(504) 368-4341
COUNSEL FOR DEFENDANTS/APPELLEES:
Niblett’s Bluff Park Commission
Southern Insurance Company

EZELL, Judge.

Tyron and Rebecca Eastwood appeal the decision of the trial court granting

an exception of no cause of action in favor of Nibblet’s Bluff Park Authority and

its insurer. For the following reasons, we affirm the decision of the trial court.

On April 30, 2009, Tyrone Eastwood was injured when he slipped and fell

on sediment deposited on a dock located in Nibblet’s Bluff Park, located on the

Sabine River. He and his wife filed the current lawsuit against the park. As part of

the Eastwoods’ second amended petition, they alleged that the accident fell under

maritime law. They claimed that the accident occurred on a “gangway” while in

the Sabine River. Nibblet’s Bluff filed an exception of no cause of action on the

maritime claims, which was granted by the trial court. The Eastwoods appeal that

decision.

On appeal, the Eastwoods assert one assignment of error, that the trial court

erred in granting the exception of no cause of action. We disagree.

The purpose of the exception of no cause of action is to test the legal

sufficiency of a pleading by determining if the law affords a remedy on the facts

alleged in the pleading. Pierrotti v. Johnson, 11-1317 (La.App. 1 Cir. 3/19/12), 91

So.3d 1056. To determine the issues raised by the exception, the well-pleaded facts

in the petition must be accepted as true. See Cardinale v. Stanga, 01-1443 (La.App.

1 Cir. 9/27/02), 835 So.2d 576, La.Code Civ.P. art. 854. However, Louisiana

retains a system of fact pleading; thus, a plaintiff’s mere conclusions unsupported

by facts will not set forth a cause of action. Scheffler v. Adams and Reese, LLP, 06-

1774 (La. 2/22/07), 950 So.2d 641. “An exception of no cause of action should be

granted only when it appears beyond doubt that the plaintiff can prove no set of

facts in support of any claim which would entitle him to relief.” Badeaux v.

Southwest Computer Bureau, Inc., 05-612, 05-719, p. 7 (La. 3/17/06), 929 So.2d

1211, 1217. All doubts are resolved in favor of sufficiency of the petition so as to

afford a litigant his day in court. Torbert Land Co., L.L.C. v. Montgomery, 09-

1955 (La.App. 1 Cir. 7/9/10), 42 So.3d 1132, writ denied, 10-2009 (La. 12/17/10),

51 So.3d 16.

On the face of the second amended petition, the Eastwoods tenuously plead

that they exited the boat via a “gangway,” carefully and purposely excluding

reference to the fact that the “gangway” involved was an ordinary, stationary dock

anchored on the land. To the contrary, a “gangway” is defined as:

“1: PASSAGEWAY; especially : a temporary way of planks 2a : either of the sides

of the upper deck of a ship b : the opening by which a ship is boarded.” Merriam-

Webster, n.d. Web. 28 Mar. 2014.

When ruling on an exception of no cause of action, a court may only

consider the four corners of the petition itself, and not extrinsic evidence. Taking

the petition with its loose claims that the accident occurred on a “gangway” at face

value, the district court’s judgment could be viewed as inherently erroneous. See

La.Code Civ.P. art. 931. However, when evidence on an exception of no cause of

action is presented and considered by the court without objection, as here, then

both sides are considered to have consented to the consideration of that evidence

and the pleadings are deemed expanded. Crosby v. Stinson, 33,628 (La.App. 2 Cir.

8/23/00), 766 So.2d 615; Giles v. Cain, 99-1201 (La.App. 1 Cir. 6/23/00), 762

So.2d 734; Byers v. Edmondson, 97-831 (La.App. 1 Cir. 5/15/98), 712 So.2d 681,

writ denied, 98-1596 (La. 10/9/98), 726 So.2d 29, cert. denied, 526 U.S. 1005, 119

S.Ct. 1143 (1999); Boykin v. Foster, 493 So.2d 731 (La.App. 2 Cir.1986); Borden

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v. West Carroll Parish Police Jury, 28,967 (La.App. 2 Cir. 12/11/96), 685 So.2d

454.

Here, at the hearing on the exception, counsel for the Eastwoods admitted

openly, freely, and frequently that the means of egress from the boat was not a

“gangway” as alleged in the petition, but a dock. This admission was made with

no objection. The trial court considered this admission, and we find that admission

to have expanded the pleadings to reference the “gangway” as a dock in the honest

sense in which it truly exists. Accordingly, we will review the trial court’s

decision based on the sufficiency of the Eastwoods’ petition as amended and as

enlarged.

The law on docks and maritime liability is well established.

In Victory Carriers, Inc. v. Law, 404 U.S. 202, 207, 92 S.Ct. 418, 422,
30 L.Ed.2d 383 (1971), the Supreme Court observed that, traditionally,
“[t]he gangplank has served as a rough dividing line between the state
and maritime regimes.” Piers and docks are deemed extensions of
land, id., 404 U.S. at 206-07, 92 S.Ct. at 422, while the means of
access between a dock and a vessel is considered an “appurtenance”
of the vessel. Romero Reyes v. Marine Enterprises, Inc., 494 F.2d 866
(1st Cir.1974).

It is well-established that maritime law encompasses the
gangway. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed.
1633 (1935); Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425,
87 L.Ed. 471 (1943); Southern Pacific Co. v. Jensen, 244 U.S. 205, 37
S.Ct. 524, 61 L.Ed. 1086 (1917); Tullis v. Fidelity & Cas. Co., 397
F.2d 22 (5th Cir.1968); O’Keeffe v. Atlantic Stevedoring Co., 354 F.2d
48 (5th Cir.1965).

It is also well-established that a vessel owner has a
“fundamental duty” to provide its crew members with a reasonably
safe means of boarding and departing from the vessel. Massey v.
Williams-McWilliams, Inc., 414 F.2d 675, 679 (5th Cir.1969), cert.
denied, 396 U.S. 1037, 90 S.Ct. 682, 24 L.Ed.2d 681 (1970); Superior
Oil Co. v. Trahan, 322 F.2d 234, 235 (5th Cir.1963). The question
posed in the present case is whether a dock owner has a similar duty
to crew members of a vessel using its facility.

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The vessel owner’s duty to provide a reasonably safe means of
access arises from the doctrine of “seaworthiness.” Under general
maritime law, a vessel owner has “an absolute nondelegable duty to
provide a seaworthy vessel” to crew members. Brister v. A.W.I. Inc.,
946 F.2d 350, 355 (5th Cir.1991). Unseaworthiness is “predicated
without regard to fault or the use of due care.” Id., quoting Lee v.
Pacific Far East Line, Inc., 566 F.2d 65, 67 (9th Cir.1977). It is well-
settled, however, that the doctrine of “seaworthiness” is not applicable
to a dock owner who does not occupy the position of owner or
operator of the vessel. Daniels v. Florida Power & Light Company,
317 F.2d 41, 44 (5th Cir.), cert. denied, 375 U.S. 832, 84 S.Ct. 78, 11
L.Ed.2d 63 (1963); Baker v. Raymond International, Inc., 656 F.2d
173, 181 (5th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2256,
72 L.Ed.2d 861 (1982).

Absent a maritime status between the parties, a dock owner’s
duty to crew members of a vessel using the dock is defined by the
application of state law, not maritime law. Wiper v. Great Lakes
Engineering Works, 340 F.2d 727, 730 (6th Cir.), cert. denied, 382
U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965). In the present case, there
was no maritime status between [the dockowner] and [the seaman].
Louisiana law defines the duty [the dockowner] owes an invitee such
as [plaintiff] as the duty to provide a wharf or dock which is
reasonably safe. Sons v. New Amsterdam Casualty Company, 186
So.2d 375, 376 (La.Ct.App. 4th Cir.1966)

Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332-33 (5th Cir. 1993),

cert. denied, 511 U.S. 1019, 114 S.Ct. 1400 (1994) (first alteration in original).

Furthermore,

In Rodrigue v. Aetna Casualty & Surety Company, 395 U.S. 352, 89
S.Ct. 1835, 23 L.Ed.2d 360 (1969) the United States Supreme Court
held that admiralty jurisdiction has not been construed to extend to
accidents on piers, jetties, bridges or even ramps or railways running
into the sea. The court followed earlier cases including the circuit
court case of Hastings v. Mann, 340 F.2d 910 (4th Cir.1965),
certiorari denied, 380 U.S. 963, 85 S.Ct. 1106, 14 L.Ed.2d 153 (1965).
The Hastings case involved facts virtually the same as those in the
case before us. There the plaintiff slipped and fell on a ramp at a small
marina designed for launching small boats in Pamlico Sound, North
Carolina. Admiralty jurisdiction did not apply in that case.

Broussard v. Dep’t of Transp. & Dev., State of La., 539 So.2d 824, 831-32 (La.

App. 3 Cir. 1989).

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The slip and fall accident here clearly occurred on a dock, which is not

subject to maritime law, as noted above. “The only duty, established by Louisiana

law in this case, is to provide a dock which is reasonably safe.” Florida Fuels, Inc.,

6 F.3d at 334.

The amended petition also alleges that the dock was built in contravention of

33 U.S.C. 403, but the petition states no facts alleging that the dock was built in

any manner obstructing the navigability of the Sabine river or that the dock

extended beyond established harbor lines. We can find no error in the trial court’s

granting of the exception of no cause of action.

For the above reasons, we hereby affirm the decision of the trial court.

Costs of this appeal are hereby assessed against the Eastwoods.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2-16.3.

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