Chase Bergeron v. Usaa Property and Casualty Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-183

CHASE BERGERON

VERSUS

USAA PROPERTY AND CASUALTY INSURANCE COMPANY,
LAFAYETTE CONSOLIDATED GOVERNMENT AND
SAMANTHA OVERTON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2020-3679
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

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SYLVIA R. COOKS
CHIEF JUDGE
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Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles
G. Fitzgerald, Judges.

AFFIRMED.

David D. Benoit
Justin R. Cantu
420 Berard Street
P.O. Box 877
Breaux Bridge, LA 70517
(337) 332-6666
COUNSEL FOR PLAINTIFF/APPELLANT:
Chase Bergeron

Bryan D. Scofield
James T. Rivera
Jessica W. Marchand
Scofield & Rivera, LLC
100 E. Vermilion, Suite 301
P.O. Box 4422
Lafayette, LA 70501
(337) 235-5353
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette City-Parish Consolidated Government

COOKS, Chief Judge.

Plaintiff appeals the trial court’s grant of Defendant’s Exception of No Cause

of Action, dismissing Plaintiff’s claims against Defendant. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 3, 2019, Plaintiff, Chase Bergeron, exited a bus operated by

Lafayette City-Parish Consolidated Government (hereafter LCG) at a bus stop

located on West Willow Street in Lafayette. Plaintiff lived in an apartment complex

across the street from the bus stop. As he was attempting to cross Willow Street en

route to his apartment complex, Plaintiff was struck by a vehicle owned by Samantha

Overton and insured by USAA Property and Casualty Insurance Company (USAA).

Plaintiff suffered significant injuries from the incident to his head, right arm, left

elbow and a broken right leg.

Plaintiff initially filed suit against Samantha Overton, USAA and LCG.

Plaintiff then filed a First Supplemental and Amending petition noting it was Danyel

Overton, and not Samantha Overton, who was driving the vehicle that struck him

when he was crossing Willow Street. The claims against Overton and USAA were

eventually settled and dismissed. That left only Plaintiff’s claims against LCG.

In his petition, Plaintiff stated that LCG, “as the governmental entity

responsible for placement of city bus stops, is solidarily bound with defendants for

any damages due.” Plaintiff maintained the bus stop he exited was a few feet from

a ditch and the nearest crosswalk was one half mile away from the bus stop. Plaintiff

further maintained in his petition:

In addition, the injuries suffered by Petitioner were due to the
negligence and/or strict liability of Lafayette Consolidated
Government, in the following non-exclusive particulars.

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a) In negligently placing a bus stop in an area that affords no safe
passage across a busy thoroughfare to a large residential
complex on the other side.

b) In not having a cross walk within a reasonable distance of the
bus stop.

c) Negligent design of the bus stop in possible violation of
applicable codes and/or guidelines.

d) In placing the bus stop immediately adjacent to a ditch.

In response, LCG filed an Exception of No Cause of Action on October 2, 2020,

with a memorandum in support of its position. LCG maintained once Plaintiff

disembarked the bus it no longer owed any duty to him in crossing the street. LCG

noted it was not disputed that Plaintiff had disembarked from the bus and was in a

lane of traffic when he was struck by the vehicle. Plaintiff opposed the no cause of

action exception filed by LCG, with accompanying memorandum.

A hearing on the exception was held on December 7, 2020. After argument

from counsel, the trial court found in favor of LCG and sustained the exception of

no cause of action. The trial court found LCG “owed no duty to the passenger once

they disembark.” This appeal followed. Plaintiff asserts the trial court erred in

granting LCG’s exception of no cause of action and in denying Plaintiff the

opportunity to supplement and amend his petition to assert additional causes of

action.

ANALYSIS

The 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. Everything on Wheels Subaru,

Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). No evidence may be

introduced to support or controvert an exception of no cause of action. La.Code

Civ.P. art. 931. Consequently, the court reviews the petition and accepts well-

pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-
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2882 (La. 5/15/01), 785 So.2d 803; Everything on Wheels Subaru, 616 So.2d 1234.

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. Montalvo v. Sondes, 93-2813

(La.5/23/94), 637 So.2d 127.

Louisiana has a system of fact pleading; therefore, it is not necessary for a

plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716

(La.1985). However, the mere conclusions of the plaintiff unsupported by facts does

not set forth a cause of action. Montalvo, 637 So.2d 127.

The burden of demonstrating that the petition states no cause of action is upon

the mover. City of New Orleans v. Bd. of Com’rs of Orleans Levee Dist., 93-690,

(La. 7/5/94), 640 So.2d 237. In reviewing the judgment of the district court relating

to an exception of no cause of action, appellate courts should conduct a de novo

review because the exception raises a question of law and the lower court’s decision

is to be based solely on the sufficiency of the petition. Fink v. Bryant, 01-987 (La.

11/28/01), 801 So.2d 346. The pertinent question is whether, in the light most

favorable to plaintiff and with every doubt resolved in plaintiff’s behalf, the petition

states any valid cause of action for relief. City of New Orleans, 640 So.2d 237.

Key in our inquiry is whether the defendant in this case owed Plaintiff a duty.

That inquiry is whether Plaintiff has any statutory or jurisprudential law to support

his claim that defendant owed him a duty under the facts of the particular case.

In his petition, Plaintiff claimed the duty owed by LCG included “exercis[ing]

the highest degree of vigilance, care and precaution for the safety of those whom

they transport.” However, it was acknowledged by Plaintiff in his petition that the

accident occurred while “attempting to cross the street,” minutes after the bus had

dropped Plaintiff off and departed the scene. In Teer v. Continental Trailways, Inc.,

341 So.2d 1306, 1308 (La.App. 3 Cir. 1977), this court held as follows:

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[O]nce a passenger freely disembarks at his chosen destination free
from harm, his status as passenger, and the public carrier’s contract to
transport for hire, cease. At that point the public carrier only owes such
person the duty of ordinary care--it is under no duty to warn the former
passenger of ‘a danger which is apparent, obvious, and known to every
person in good mind and sense’ (Deason v. Greyhound Corp., 106
So.2d 348 (La.App. 1 Cir., 1958), nor to personally transport, convey,
or assist the former passenger in crossing a street or highway. Matte v.
Continental Trailways, Inc., 278 So.2d 60 (La. 1973) and cases cited
therein; Wille v. New Orleans Public Service, Inc., 320 So.2d 288
(La.App. 4 Cir., 1975); Deason v. Greyhound Corp., supra.

In Teer, the plaintiff disembarked the bus at night, in an unlighted area of a busy

highway. The plaintiff in Teer was struck by a vehicle while attempting to cross the

highway. This court in Teer affirmed summary judgment in the bus company’s

favor, finding it breached no duty owed to the plaintiff and dismissed the case.

Similarly, in Ricks v. City of Monroe, 44,811 (La.App. 2 Cir. 12/9/09), 26

So.3d 858, writ denied, 10-391 (La.5/28/10), 36 So.3d 247, the plaintiff’s daughter

was hit by a car after exiting a city bus and eventually died from her injuries. She

was struck by a vehicle while attempting to cross a five-lane thoroughfare to get to

a restaurant across the street from the bus stop. As here, the bus stop was located in

the middle of a block and there was no crosswalk. The plaintiff in Ricks argued the

city was “negligent in selecting the location of the bus stop where the accident

occurred.” Id. at 860. In affirming the trial court’s grant of summary judgment, the

Ricks court found it was the plaintiff’s “conduct [that was] the cause of her injury,

not the placement of the bus stop” and the bus stop’s location had nothing to do with

her decision. In this case, the trial court relied upon the decision in Ricks. We find

no error in that decision.

Although Plaintiff makes allegations that the bus stop was negligently

designed, it is uncontroverted that Plaintiff’s injuries occurred in the travel lane of

the road after he safely disembarked the bus. As Defendant notes, no facts were pled

as to how or why the design of the bus stop could have caused Plaintiff’s injuries.

As the decisions in both Teer and Ricks noted, it was the respective plaintiffs’

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decisions to cross the road, despite oncoming traffic, that caused the plaintiffs’

injuries.

Plaintiff has not set forth or identified any applicable codes or statutes which

require that a crosswalk be near a bus stop, which in turn may create a legal duty on

Defendant’s part herein. Further, Plaintiff’s argument that there was a ditch near the

bus stop does nothing to support a claim that Defendant breached a duty owed to

him. He made no allegation that the ditch impeded his exit from the bus stop or

contributed in any way to his subsequent injuries.

Lastly, Plaintiff alleges the trial court erred in denying Plaintiff the

opportunity to supplement and amend his petition. The law provides a trial court is

vested with discretion when deciding whether to allow amendment of the petition

after it sustains a peremptory exception and it is not required to allow such

amendment when to do so would be a vain and useless act. Broussard v. F.A.

Richard & Assocs., Inc., 99-10 (La.App. 3 Cir. 5/5/99), 740 So.2d 156, writ denied,

99-1048 (La. 6/4/99), 744 So.2d 625. “[Louisiana Code of Civil Procedure] Article

934 does not require that the plaintiff be provided the opportunity to speculate on

unwarranted facts merely for the purpose of defeating the exception. The right to

amend one’s petition is qualified by the restriction that the objections to the petition

be curable.” Id. at 160 (citation omitted). Defendant notes, despite having over a

year and a half, Plaintiff has not cited a case, statute or regulation suggesting that

LCG owed him a duty, breached any duty owed to him or that such breaches caused

his injuries. Thus, we find the trial court did not abuse its discretion in denying

Plaintiff’s request to amend his petition.

DECREE

For the above reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed to plaintiff-appellant, Chase Bergeron.

AFFIRMED.

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