Martin Macklin, Rosa Macklin, Elizabeth Macklin and Mary Macklin, Individually and On Behalf of Her Minor Son, Patrick Macklin VS Peter Businelle and ABC Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 1025 MARTIN MACKLIN ROSA MACKLIN ELIZABETH MACKLIN AND MARY MACKLIN INDIVIDUALLY AND ON BEHALF OF HER MINOR SON PATRICK MACKLIN VERSUS PETER BUSINELLE AND ABC INSURANCE COMPANY Judgment Rendered JUN 8 2012 Appealed from the Sixteenth Judicial District Court In and for the Parish of St Mary State of Louisiana Suit Number 120808 Honorable John E Conery Presiding Blaine J Barrilleaux Counsel for PlaintiffsAppellants Lafayette LA Martin Macklin Elizabeth Macklin Rosa Macklin Mary Macklin Stephen S Kreller individually and on behalf of Patrick New Orleans LA Macklin Scott LaBarre Metairie LA R Todd Musgrave Counsel for DefendantsAppellees Lisa A McLachlan Peter Businelle and Western World Theresa S Anderson Insurance Company New Orleans LA Lambert J Hassinger Jr New Orleans LA BEFORE W KUHN AND GUIDRY JJ LE HIPP GUIDRY J Martin Macklin Rosa Macklin Elizabeth Macklin and Mary Macklin individually and on behalf of her minor son Patrick Macklin appeal from a judgment of the trial court sustaining an exception of no cause of action and dismissing their claims against defendants Peter Businelle and Western World Insurance Company with prejudice For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY In October of 2008 Martin Macklin was living in a mobile home in Lonely Oak Trailer Park in Bayou Vista Louisiana Macklin eased the premises for the mobile home from Businelle who owned the trailer park Businelle was also s Macklin personal friend On October 18 2008 Businelle entered the mobile home occupied by Macklin and found him non responsive on the bathroom floor with a knot on his head and slumped over the bathtub Businelle then left the mobile home leaving Mackin in the same position in which he found him and went to work Businelle attempted to call Mackin on his cell phone at 12 p 00 m to check on him and later that afternoon he returned to the mobile home Macklin was still non responsive on the bathroom floor but he was in a different position Businelle dragged Macklin into the living room and dripped cold water on his face and then called a mutual friend to advise the friend of Macklin condition s The mutual friend upon arriving at the mobile home called 911 Thereafter Macklin his wife and his children filed a petition for damages naming Businelle defendants and his insurer Western World Insurance Company as In their petition the plaintiffs asserted that Macklin had suffered a stroke and is now permanently disabled and that but for Businelle snegligence he would be in better health today The defendants thereafter filed a dilatory exception raising the objection of lack of procedural capacity and a peremptory exception raising the objections of no right of action and no cause of action 2 The plaintiffs after obtaining leave of court filed a first supplemental and amending petition However following a hearing on the exceptions the trial court sustained the peremptory exception of no cause of action and gave the plaintiffs thirty days from the date of the hearing to amend their petition to state a cause of action Thereafter the plaintiffs filed a second supplemental and amending petition The defendants responded by filing another exception raising the objection of no cause of action Following a hearing on January 7 2011 the trial court signed a judgment sustaining the defendants exception of no cause of action as to the allegations contained in the plaintiffs petition for damages first supplemental and amending petition for damages and second supplemental and amending petition for damages and dismissing their claims against the defendants with prejudice The plaintiffs now appeal from this judgment DISCUSSION The peremptory exception raising the objection of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading Fink v Bryant 01 0987 p 3 La 11 801 So 2d 346 348 349 01 28 The function of the objection of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition Fink 01 0987 at pp 3 4 801 So 2d at 348 No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action Fink 01 0987 at p 3 801 So 2d at 349 The exception is triable on the face of the petition and for purposes of determining the issues raised in the exception the wellpleaded facts in the petition must be accepted as true Fink 01 0987 at p 4 801 So 2d at 349 A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any 3 claim Fin 01 0987 at p 4 801 So 2d at 349 Any doubts are resolved in favor k of the sufficiency of the petition Van Hoose v Gravois 11 0976 p 6 La App 1st Cir 7 70 So 3d 1017 1021 11 Appellate review of a trial court ruling on an exception of no cause of s action is de novo because the exception raises a question of law and the trial s court decision is based only on the sufficiency of the petition City of Denham Springs v Perkins 08 1937 p 12 La App 1st Cir 3 1 So 3d 311 321 09 27 0 322 writ denied 09 0871 La 5 8 So 3d 568 09 13 A review of the plaintiffs petitions shows that their claims against Businelle and Western World Insurance Company sound in negligence In resolving negligence cases Louisiana employs a dutyrisk analysis whereby a plaintiff must establish 1 the defendant had a duty to conform his conduct to a specific standard the duty element 2 the defendant failed to conform his conduct to the appropriate standard the breach of duty element 3 the defendant substandard s conduct was a cause infact of the injuries the cause infact element 4 the s defendant substandard conduct was a legal cause of the injuries the scope of liability or scope of protection element and 5 proof of actual damages the damages element McIntyre v St Tammany Parish Sheriff 02 0700 p 7 La App 1st Cir 3 844 So 2d 304 309 03 28 The existence of a duty owed by Businelle to Macklin is essential for plaintiffs to have a claim for a remedy under the law and thus to have a cause of action See Lanza Enterprises Inc v Continental Insurance Company 129 So 2d 91 94 La App 3rd Cir 1961 Whether a legal duty is owed by one party to another depends upon the facts and circumstances of the case and the relationship of the parties Terrell v Wallace 98 2595 p 4 La App 1st Cir 12 747 So 2d 748 750 writ 99 28 denied 000297 La 3 758 So 2d 158 Duty constitutes a question of law 00 24 Terrell 98 2595 at p 4 747 So 2d at 750 The plaintiffs assert in the instant case that Businelle as Macklin landlord s had a duty to provide aid or assistance to Macklin his tenant after letting himself into the mobile home and finding Macklin in obvious physical distress on the floor This court has stated that i is widely recognized in the field of tort law t that the courts do not impose a general duty to come to the aid of one who is in peril that is one will not be held legally liable for his inaction even though his assistance could have saved the injured party Strickland v Ambassador Insurance Company 422 So 2d 1207 1209 La App 1st Cir 1982 However there is a legally recognized duty to render assistance in situations where the plaintiffs peril or injury is due to negligence on the part of the defendant or in situations where one begins rescue and thereby discourages others from aiding the injured party Strickland 422 So 2d at 1209 The courts will also find a duty to aid where there is a special relationship between the parties For example the courts have found the following relationships to give rise to a duty carrier and passenger innkeeper and guest shopkeeper and business visitor jailer and prisoner and school and pupil Strickland 422 So 2d at 1209 Further other special relationships have been found when examining the duty to control or warn against criminal actions of a third person See La C art 2702 These relationships include in addition to those already stated parent and child employer and employee restaurateur and patron and teacher and pupil Terrell 98 2595 at p 5 747 So 2d at 750 However this court has specifically found that landowners do not have a special relationship with those who live on their premises Terrell 98 2595 at p 5 747 So 2d at 750 Accordingly applying the law of this Circuit as detailed above to the facts as alleged in the plaintiffs petitions we find that Businelle as the owner ofthe mobile home park from which Macklin rented the space upon which his trailer was located did not have a special relationship with Macklin 5 The plaintiffs assert that the special relationships recognized by the jurisprudence are not exclusive and that the Restatement Second of Torts and jurisprudence from other jurisdictions indicates that the landlordtenant relationship is a special relationship for purposes of imposing a duty on the landlord to render assistance However such authority is not binding on this court in rendering its decision See Unlimited Ilorizons L v Parish of East Baton C Rouge 99 0889 p 7 La App 1 st Cir 5 761 So 2d 753 758 Rather we 00 12 are bound by the law as adopted by this Circuit Further we disagree with plaintiffs assertion that this Circuit has recognized a duty to provide aid or rescue where a person can do so without danger to himself or others In Wicker v Harmony Corporation 00 0231 p 6 La App 1st Cir 3784 So 2d 660 665 666 writ denied 01 1726 La 9798 01 28 01 28 So 2d 115 this court stated that Louisiana should not follow the common law American Rule but should follow other civil law countries in establishing a duty to rescue A person who observes a person in obvious peril should be required to render assistance when he can do so without personal risk However this language was clearly dicta as this court subsequently held that because we have found that Harmony contractually assumed a duty in this case it is not necessary for the Court to adopt a Duty to Rescue doctrine at this time Wicker 000231 at p 7 784 So 2d at 666 Likewise though this court again recognized in Beach v Pointe Coupee Electric Membership Corporation 04 2255 P 4 La App 1st Cir 11 917 05 16 So 2d 556 558 writ denied 06 0165 La 5 930 So 2d 21 that under 06 26 most civil law traditions when a person without danger to himself or others can Plaintiffs also cite this court to Miller v McDonald sCorp 439 So 2d 561 La App 1st Cir writ not considered 442 So 2d 462 La 1983 and Smith v Orkin Exterminating Company Inc 540 So 2d 363 La App 1 st Cir 1989 However both of these cases involved the duty owed by a business owner to its visitor which is a recognized special relationship giving rise to a duty to render aid and a duty to protect against the acts of third parties 6 provide aid or rescue to another in distress he has a duty to do so this language was also dicta as the issue before the court was whether a principal had a duty to warn Phis court in reversing summary judgment in favor of the principal stated that a person who observes that another is in obvious peril has the slight duty to warn of known imminent dangers when he can do so without personal risk Beach 04 2255 at pp 4 5 917 So 2d at 558 Accordingly neither of these cases adopted a Duty to Rescue and we reject the plaintiffs argument to the contrary See Cook v Kendrick 41 p 11 n La App 2nd Cir 5 931 So 2d 061 1 06 19 420 428 n I writ denied 061853 La 10 939 So 2d 1284 noting that the 06 27 Louisiana First Circuit Court of Appeal has tiptoed close to imposing a duty to rescue Further we disagree with the plaintiffs characterization of the Louisiana Supreme Court decision in Potter v First Federal Savings and Loan Association s of Scotlandville 615 So 2d 318 324 325 La 1993 In Potter the court stated that La C art 2702 does not preclude a lessee tort action against a lessor for s injuries he sustained from intervening acts of a third person when the lessor s negligence or breach of other tort duties was a cause in fact and legal cause of the s lessee injuries 615 So 2d at 324 325 However in that case the court reversed summary judgment finding that genuine issues of material fact existed as to whether a dangerous condition was created from inadequate lighting ifrom the e s defendant negligent conduct See Potter 615 So 2d at 326 Accordingly the s court decision in that case reinforces existing law regarding a lessor duty rather s than expands it as argued by the plaintiffs Finally plaintiffs argue in the alternative that Businelle assumed a duty of providing aid by entering the mobile home to check on Macklin However as Prior to 2004 the substance of La C art 2702 was found in La C art 2703 we refer to the current Civil Code article in this report for ease of reference VA However noted in Strickland such a duty exists only when a person begins rescue and thereby discourages others from aiding the injured party 422 So 2d at 1209 In this case plaintiffs assert that Businelle entered the mobile home in the morning to check on Macklin and upon his return to the mobile home later in the day he attempted to render aid and called for assistance Plaintiffs have not asserted that Busnielle after the second entrance when he began to render aid to Macklin discouraged others from aiding Businelle Rather the facts as alleged in the petitions are exactly to the contrary Further the facts as alleged do not support that Businelle otherwise voluntarily assumed a duty to rescue or render assistance when he entered the mobile home on the morning of October 18 2008 See Moore v Safeway Inc 95 1 La App 1st Cir 11 700 So 2d 831 846 writs 552 96 22 denied 97 2921 97 3000 La 2 709 So 2d 735 744 finding that if a 98 6 person undertakes a task which he has no duty to perform he must perform the task in a reasonable and prudent manner and that a negligent breach of a duty that has been voluntarily assumed may create civil liability Accordingly from our review of the record we find that plaintiffs have failed to allege facts sufficient to establish that the defendants owed a duty to aid Macklin and likewise we find no error in the trial court judgment sustaining the s exception raising the objection of no cause of action and dismissing the plaintiffs claim with prejudice CONCLUSION For the foregoing reasons we affirm the judgment of the trial court All costs of this appeal are assessed to the plaintiffs Martin Macklin Rosa Macklin Elizabeth Macklin and Mary Macklin individually and on behalf of her minor son Patrick Macklin AFFIRMED N MARTIN MACKLIN ET AL FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA PETER BUSINELLE AND ABC INSURANCE COMPANY KUUHN NO 2011 CA 1025 J concurring In asserting that this Circuit has recognized a duty to provide aid or rescue where a person can do so without danger to himself or others plaintiffs rely on language from the plurality opinion in Wicker v Harmony Corporation 000231 La App I st Cir 3 784 So 2d 660 665 writ denied 01 1726 La 01 28 01 28 9 798 So 2d 115 However this language was nothing more than dicta as this court subsequently held that because we have found that Harmony contractually assumed a duty in this case it is not necessary for the Court to adopt a Duty to Rescue doctrine at this time Wicker 784 So 2d at 666 The language relied upon by plaintiffs is also of little precedential weight for the additional reason that it was taken from a plurality opinion with only one judge signing unconditionally and two judges concurring
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