Patrick Wise Gray v. New England College

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-354

PATRICK WISE GRAY

VERSUS

NEW ENGLAND COLLEGE, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20171313
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.

EZELL, J., concurs.

Patrick Wise Gray
Johnson Gray McNamara, LLC
P. O. Box 51165
Lafayette, LA 70505
(337) 412-6003
COUNSEL FOR PLAINTIFF/APPELLANT:
Patrick Wise Gray

Andrew J. Baer
Deutsch Kerrigan LLP
755 Magazine St
New Orleans, LA 70130
(504) 581-5141
COUNSEL FOR DEFENDANTS/APPELLEES:
New England College
Mark Mitch
Dan Freese

Jared A. Davidson
Taylor, Wllons, Politz & Duhe, APLC
1515 Poydras St, Ste 1900
New Orleans, LA 70112
(504) 525-9888
COUNSEL FOR DEFENDANTS/APPELLEES:
Rasier, LLC
Uber Technologies, Inc.

SAVOIE, Judge.

Plaintiff, Patrick Gray (“Mr. Gray”), appeals a judgment sustaining Uber

Technologies, Inc.’s (“Uber’s”) and Rasier, LLC’s (“Rasier’s”) exceptions of no

cause of action and dismissing Mr. Gray’s claims against them with prejudice. For

the following reasons, we affirm the trial court’s judgment with respect Rasier,

reverse the trial court’s ruling judgment in favor of Uber, and remand for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2017, Mr. Gray filed a Petition alleging that on the evening of

March 10, 2016, he hired an Uber driver to drive him home and inadvertently left

behind a large sum of money in the Uber driver’s vehicle. Mr. Gray further

alleged that later that evening, the same Uber driver transported several New

England College (“NEC”) students to a nightclub and that one of the students,

Anthony Boame (“Mr. Boame”), took Mr. Gray’s money after both Mr. Boame

and the Uber driver acknowledged to each other that the money did not belong to

them. Mr. Gray further alleged that he reported the incident to the police. Mr.

Gray named as Defendants Uber and Mr. Boame, as well as Mark Mitch and Dan

Freese, who are alleged employees of NEC.

Mr. Gray additionally asserted in his Petition that “Uber failed its duty to

train its drivers to protect Uber’s passengers and their property[,]” and “in its duty

to protect plaintiff and its possessions, in particular instruct its drivers that the

possession of its passengers should be protected and secured.” He also asserted

negligence claims against the other Defendants. Mr. Gray’s Petition seeks a

judgment “against the Defendants personally and/or in solido for the total

monetary and other losses or damages caused by Defendants, together with legal

interest and costs.”

On October 22, 2018, the trial court signed a Judgment on Rules sustaining

Uber’s exception of no cause of action and giving Mr. Gray thirty days to amend

his Petition.1

On November 26, 2018, Mr. Gray filed a First Amended and Supplemental

Petition wherein he added as additional Defendants NEC and Rasier, who is an

alleged subsidiary of Uber. Mr. Gray’s First Amended and Supplemental Petition

also provides additional factual detail concerning the March 10, 2016 incident,

stating that on that evening he and his wife had dinner with friends at a restaurant

in downtown Lafayette and decided to hire an Uber driver to bring then home,

rather than driving their own vehicle. According to Mr. Gray, he had $50,000.00

in a black pouch in his vehicle, and, rather than leaving it unattended overnight, he

brought it with him in the Uber vehicle, but inadvertently left it behind. Mr. Gray’s

First Amended and Supplemental Petition further states as follows:

6.

After returning home and immediately upon recalling that the
money had been left in the Uber, Plaintiff and his wife contacted the
Uber employee and asked him to search for the money. At some point
the Uber employee acknowledged that he had given a ride to students
from New England College whom he had knowingly allowed to take
the money. One of the students while exiting the vehicle,
acknowledged that the money was not his and asked the driver if it
belonged to him. The driver responded no, and allowed the student to
misappropriate the money.

7.

Inasmuch as Uber was a depositary/bailee and common carrier,
Uber owed the highest degree of care to protect Plaintiff’s person and

1
We note that the parties designated only certain portions of the record for purposes of
this appeal and that Defendants’ exceptions do not appear in the record.

2

property. That duty would include protecting it from theft and
allowing it to be taken from the Uber vehicle by a third party.

....

9.

It is common knowledge that items are frequently left in
taxis . . . and other common carriers. . . . and appropriation or theft of
lost property is a known risk that every common carrier has a duty to
protect against. Uber has a policy for dealing with “lost” property for
the benefit of its passengers. That policy, industry custom (and
common sense) should have protected Plaintiff’s property under these
facts. All carriers have such policies and duties which do not end
until the property is secured and returned . . . .

....

11.

Here, the driver was asked if the pouch containing the money
belonged to the driver. This question would have informed any
reasonable driver, and invariably one who has been properly trained,
to retrieve the lost property as it was not owned by the current
passenger and had to be the property of a prior passenger. The driver
was negligent both inherently and through improper hiring and
training practices by Uber.

....
14.

Immediately after learning that the property had been taken
from the Uber, the Plaintiff contacted the Lafayette Police. . . . [A]n
investigation into what the police termed “theft of lost property” was
begun by the police. A copy of the initial police report and NEC
investigative file are attached as Exhibit B. . . .

15.

As indicated, the police investigation revealed that the money
was taken by NEC students and based upon the Uber employee’s
description of the person Uber allowed to commit the crime, Lafayette
City Police identified Anthony Boame, NEC was contacted and
ultimately questioned Anthony Boame and others. NEC was
described [as] uncooperative in the investigation.

3

16.

. . . . Uber’s sole revenue source is from charges that it arranges
for its drivers. Uber charges customers for the transportation services
it provides, without consulting the drivers as to rates. Uber selects
routes. . . . Uber controls the customer contact information. Uber
requires that drivers accept ride requests while working . . . . Uber
dictates how drivers dress, when and how to contact passengers, what
radio stations they can play . . . . Uber retains the right to terminate
drivers at will. . . . Accordingly, Uber’s liable under the doctrine of
respondent superior for the actions of its drivers.

....
20.

The incident was reported to the police, and based upon the
information provided by the police to Plaintiff, Boame denied that he
took the money. NEC’s representatives were informed of the incident,
and that NEC students were involved. NEC asked Boame and the
students if they knew anything about the money. They denied
knowledge of it. . . .

The documents contained in Exhibit B 2 , attached to Mr. Gray’s First

Amended and Supplemental Petition, each contain slightly differing statements

concerning the interaction between the NEC students and the Uber driver. The

Lafayette Police Department report states that, according to the Uber driver, as the

group of students was exiting his vehicle, a male

handed him the black bag and asked [the driver] “is this yours[?]”
[The driver] stated he replied “no, is it yours[?]” [The driver] then
stated the black male stated “I think it is” and exited the vehicle with
the bag in hand.

....

It should also be noted that the victim stated [the driver] denied ever
seeing the bag when he called and asked him to look inside the
vehicle for it. . . . [The driver] later told this officer he observed a
black male exiting the vehicle with the bag in hand. . . .

2
The parties agreed that the factual allegations stated in the documents attached as
Exhibit B were incorporated by reference into the First Amended and Supplemental Petition.

4

Exhibit B also contains a copy of a purported report prepared by Bill

Christiano with NEC. It states that Detective Perry with the Lafayette Police

Department had contacted NEC regarding the incident and that Detective Perry

“narrated the following[:]”

On Thursday, 03-10-16, sometime in the evening, an UBER driver
picked up a fare – man and woman – and transported them to a
location in Lafayette, Louisiana.

Later that same night, around 2200 hrs, the same UBER driver picked
up five black males and two black females at a Lafayette residence. . . .
The fares, whom Det. Perry assumed to be NEC students, were
transported to a local club. . . . As the students were leaving the
vehicle, one of the students. . . showed the UBER driver a bag found
in the back seat of the vehicle and asked if it belonged to him. The
driver said it didn’t. The student then said it must belong to someone
in his group and left the vehicle with the bag in his possession.

....

Det. Perry told me that, based on what the UBER driver said, the NEC
students kept the bag of money found in the vehicle.

Mr. Christiano’s report further states that the NEC students involved all

denied the existence of the black bag and knew nothing about it. In addition,

Exhibit B contains a purported copy of email correspondence from Mark Mitch, an

NEC employee, to Mr. Christiano, stating that he talked to the students

individually and as a group and “none of them had any inkling of a response about

finding any kind of bag in the car. My sense is that none of the students would

ever consider keeping a bag found in a car regardless of the contents.”

In addition, a copy of a Criminal Subpoena Duces Tecum to New England

College Campus Safety’s Director, Bill Christiano, included with Exhibit B states:

contact was made with the Uber diver who advised he had picked up
several college students . . . after he transported the victim. He
advised a black male . . . had shown him the black pouch asking if it
was his. The driver advised he thought it may be one of the

5

female[’]s in the vehicle with the male. The male then looked in the
pouch and said it must be and left with the pouch.

I went to [the address of where the Uber driver picked up the students]
and made contact with the manager who informed me that Professor
Mark Mitch had rent[ed] the apartments for himself and his students
from New England College. . . . The school refused to provide
[Anthony Boame’s] information.

On December 16, 2010, the trial court rendered a Judgment on Rules

sustaining Uber’s and Rasier’s exceptions of no cause action and dismissed Mr.

Gray’s claims against them. The Judgment states:

This court finds that the plaintiff’s First Amended and
Supplemental Petition fails to allege facts that suggest UTI’s [Uber’s]
alleged driver knew one of its passengers intended to steal from
another of its passengers; fails to allege that Uber Technologies, Inc.
had a duty to protect plaintiff from the theft of lost property when a
criminal act was conducted by another passenger; fails to allege facts
to support the existence of a contract of deposit; and, fails to allege
facts that support the conclusion that Rasier, LLC engaged in tortious
conduct.

Similarly, the trial judge stated in his oral reasons for ruling:

The plaintiff’s first amended and supplemental petition alleges
no facts to suggest . . . that UTI’s driver knew one of its passengers
intended to steal from another one its passengers. Thus, UTI did not
have a duty to protect the plaintiff from theft of lost property when
that criminal act was conducted by another passenger. Secondly, this
petition alleges no facts that supports the existence of a contract of
deposit; thirdly, alleges no facts that supports [sic] the conclusion that
Rasier, LLC engaged in tortious conduct.

Mr. Gray appeals the trial court’s judgment and asserts the following as

assignments of error:

1. The trial court erred when it misapplied the presumption in favor
of maintaining a cause of action.

2. The trial court committed error when it found that under no set of
circumstances arising from the facts could the Uber driver be
found to owe a duty to protect the property of its riders.

3. The trial court committed error when it concluded that the Uber
driver could not have acted to determine who the money actually

6

belonged to when he knew, in fact, that the person who was in
possession of the money was not the owner.

4. The trial court committed error when it concluded that there was a
conflict in the pleadings because a version of the events in an
attachment created confusion about ownership of money. Under
the law, if another version of the events is possible under the
pleadings, the no cause of action exception must be overruled.

5. The trial court effectively weighed evidence rather than giving
deference to the pleadings.

ANALYSIS

We first note that Mr. Gray’s brief to this court fails to address the trial

court’s ruling with respect to Defendant Rasier, and no appellee brief was filed by

Rasier. We therefore deem this issue as abandoned. Uniform Rules—Courts of

Appeal Rule 2-12.4. Accordingly, we affirm the trial court’s ruling with respect to

Defendant Rasier.

With respect to Mr. Gray’s appeal of the judgment in favor of Defendant

Uber, we first note the Louisiana Supreme Court’s discussion of peremptory

exceptions of no cause of action in City of New Orleans v. Board of Directors of

Louisiana State Museum, 98-1170, pp. 9-10 (La. 3/2/99), 739 So.2d 748, 755-56

(internal citations omitted):

The purpose of the peremptory exception of no cause of action
is to determine the sufficiency in law of the petition. The burden of
showing that the plaintiff has stated no cause of action is upon the
exceptor. The public policy behind the burden is to afford the party
his day in court to present his evidence. The exception is triable on
the face of the papers, and for the purpose of determining the issues
raised by the exception, the court must presume that all well-pleaded
facts in the petition are true. All reasonable inferences are made in
favor of the nonmoving party in determining whether the law affords
any remedy to the plaintiff. A court of appeal reviews de novo a
lower court’s ruling sustaining an exception of no cause of action
because the exception raises a question of law and because the lower
court's decision is generally based only on the sufficiency of the
petition. The question is whether, in the light most favorable to the
plaintiff, the petition states any valid cause of action for relief.

7

....

An exception of no cause of action is likely to be granted only
in the unusual case in which the plaintiff includes allegations that
show on the face of the petition that there is some insurmountable bar
to relief. Thus, dismissal is justified only when the allegations of the
petition itself clearly show that the plaintiff does not have a cause of
action, or when its allegations show the existence of an affirmative
defense that appears clearly on the face of the pleadings. A court
appropriately sustains the peremptory exception of no cause of action
only when, conceding the correctness of the well-pleaded facts, the
plaintiff has not stated a claim for which he can receive legal remedy
under the applicable substantive law.

Taking the well-pleaded facts in Mr. Gray’s First Amended and

Supplemental Petition as true, and in considering the petition in the light most

favorable to Mr. Gray, we find that Mr. Gray has stated a cause of action against

Uber. While the factual allegations differ to some extent regarding the specific

interactions between the Uber driver and Mr. Boame, the facts, as alleged, indicate

that the Uber driver knew that the black pouch alleged to contain Mr. Gray’s

money did not belong to the passenger (Mr. Boame) who ultimately left the Uber

vehicle with the pouch. The well-pleaded facts reasonably support a claim that the

Uber driver was negligent in allowing Mr. Boame to take Mr. Gray’s black pouch

under the circumstances and that Uber is liable for the driver’s negligence.

Uber suggests on appeal that its exception should be maintained because it

cannot be liable for the criminal actions of its passengers when there are no

allegations that the criminal actions were foreseeable. It also argues that it owed

no duty “to prevent the theft of Plaintiff’s pouch.” It appears from the trial court’s

judgment and oral reasons for ruling that it agreed with this argument.

However, we note that the issue presented by Mr. Gray’s petition is whether,

under the circumstances, the Uber driver was negligent when he allowed Mr.

Boame to leave the vehicle with property that did not belong to Mr. Boame. We

8

further find no support for Uber’s suggestion that, under no circumstances can

Uber and/or Uber drivers be imposed with a duty to protect property that its

customers leave behind in Uber vehicles. Rather, Mr. Gray’s First Amended and

Supplemental Petition sufficiently states facts supporting a negligence claim

against Uber. Whether, and to what extent, Uber and/or the Uber driver were

actually negligent under the circumstances should be determined on the merits, not

in connection with an exception of no cause of action. Therefore, we reverse the

trial court’s judgment sustaining Uber’s exception of no cause of action and

dismissing Mr. Gray’s claims against it and remand the matter for further

proceedings.

DECREE

For the reasons stated above, we affirm the trial court’s judgment in favor of

Defendant Rasier, reverse the trial court’s judgment granting Uber’s exception of

no cause of action, and remand the matter for further proceedings. Costs of this

appeal are assessed to Defendant Uber.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

9