Robinson v. Allstate Ins. Co.

322 So.3d 381

Ashley ROBINSON, in Her Capacity as the Natural Tutrix of the Minor Children, Kaniyah Robinson and Kyson Robinson, Plaintiffs-Appellants

v.ALLSTATE INSURANCE COMPANY, Village of Dixie Inn, and Michael A. Chreene, Defendants-Appellees

No. 53,940-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered May 26, 2021

SCOTT, VICKNAIR, HAIR & CHECKI, LLC, By: Brad P. Scott, Ashley U. Schmidt, New Orleans, Kameron P. Whitmeyer, Counsel for Appellants, Ashley, Kaniyah and Kyson Robinson; and Vernita George

THOMAS, SOILEAU, JACKSON & COLE, LLP, By: Steven E. Soileau, Shreveport, Counsel for Appellee, Allstate Insurance Company

COOK, YANCEY, KING & GALLOWAY, By: James R. Sterritt, Shreveport, Gregg A. Wilkes, Shreveport, James Ashby Davis, Counsel for Appellees, Webster Parish Sheriff, Gary S. Sexton and Bayou, Dorcheat Warden John, Lewis

STAMEY & MILLER, L.L.C. By: Joseph B. Stamey, Natchitoches, Erica F. Durr, Counsel for Appellees, Village of Dixie Inn, and Michael A. Chreene

HUDSON, POTTS & BERNSTEIN, LLP, Monroe, By: Jay P. Adams, Counsel for Allstate, Insurance Company and Michael A. Chreene

Before PITMAN, STONE, and THOMPSON, JJ.

PITMAN, J.

Plaintiffs Ashley Robinson, in her capacity as the natural tutrix of the minor children, Kaniyah Robinson and Kyson Robinson; and Vernita George, mother of the deceased, Kenneth George; filed suit against Defendants Micheal A. Chreene;¹ Village of Dixie Inn ("the Village"); Allstate Insurance Company; John Lewis, Warden of the Bayou Dorcheat Correctional Center ("the Warden"); and Gary Sexton, Sheriff of Webster Parish ("the Sheriff"); alleging Defendants were liable for the wrongful death of Mr. George. The Warden and Sheriff filed a peremptory exception of no cause of action, which was sustained by the trial court, and they were dismissed with prejudice. No amendment of the petition was allowed. Plaintiffs appealed that judgment. For the following reasons, we affirm.

FACTS

Plaintiff Robinson alleged that on October 17, 2018, Mr. George, the father of the minor children, was riding on the tailgate of a truck driven by Chreene, an employee of the Village, on Highway 80 in Webster Parish. Chreene suddenly swerved, causing Mr. George to fall off the tailgate onto the roadway, suffering fatal injuries.

Robinson alleged that Chreene was responsible for Mr. George's death as a result of his negligence and because he forced Mr. George to ride on the tailgate of the truck instead of allowing him to ride in the cab. Robinson also alleged that Chreene was working in the course and scope of his employment with the Village at the time of the accident; and, thus, he and the Village were liable for his death. Robinson further alleged that Allstate provided a policy of liability insurance covering the vehicle owned and operated by Chreene on the date of the accident, also making it liable.

The petition was amended and Mr. George's mother, Vernita George, was added as a plaintiff in the event it was not proven that the minor children were Mr. George's children. Plaintiffs also added the Sheriff and the Warden as defendants in the suit. Plaintiffs alleged that at the time of the accident, Mr. George was an inmate at the Bayou Dorcheat Correctional Center and was under the Sheriff's and the Warden's custody and control, thus also making them responsible for Mr. George's death. The allegation states as follows:

The acts of fault, gross and wanton negligence, and lack of skill by the defendants, JOHN LEWIS and GARY SEXTON, which were the proximate cause of the death of KENNETH GEORGE, were as follows:

A. Requiring KENNETH GEORGE to assist and perform services for defendant, VILLAGE OF DIXIE INN;

B. Failing to supervise and protect (George) while assisting and performing services for defendant VILLAGE OF DIXIE INN.

C. Permitting and allowing defendant, MICHAEL A. CHREENE, to require (George) to be seated on the tailgate of the vehicle while it was in operation; and

D. Failing to safeguard (George) from danger.

The Sheriff and the Warden filed a peremptory exception of no cause of action, stating that all claims against them should be dismissed since Plaintiffs had no cause of action against them under La. R.S. 15:708(H). Further, they claimed that the petition failed to set forth facts that show a duty to Plaintiffs that was breached by them or that intentional or grossly negligent conduct by them caused Plaintiffs any damage. The Sheriff and the Warden pointed out that on the date of the accident, Mr. George was outside of the detention facility working for the Village and that Plaintiffs alleged Chreene was at fault in the operation of the pickup truck while George was seated on the tailgate. They claimed that the petition failed to allege how the Sheriff or the Warden was in any way personally involved in causing the accident and that it did not allege any acts or conduct attributable to them that caused Mr. George's death. They claimed that under the facts as stated in the petition, they did not have a duty to prevent Mr. George from doing what he did. They also alleged that under La. R.S. 15:708(H), Plaintiffs must set forth facts that show their alleged injury was "caused by the intentional or grossly negligent act or omission of the sheriff or ... deputy." They asserted that the facts required by the statute do not exist in this case and have not been alleged.

The trial court heard the matter on December 9, 2019, and granted the peremptory exception of no cause of action, finding Plaintiffs’ petition and amended petition insufficient to state a cause against the Sheriff and the Warden. It noted that although there are times when a litigant is given the chance to amend the petition after an exception is granted, Plaintiffs failed to assert any supplemental facts supportive of their allegations in the amended petition against the Sheriff and the Warden. Without any support for the trial court to rely upon in its discretion to order an amended pleading, "it would fly in the face of judicial efficiency to order amendment to support claims where no such support has been indicated." It found that the sustaining of the exception without ordering an amended petition neither defeated Plaintiffs’ case, nor prejudiced their cause of action against other named defendants; therefore, amendment was unwarranted. Plaintiffs’ claims against the Sheriff and the Warden were dismissed with prejudice.

Although Plaintiffs originally sought writs with this court on the judgment, the judgment complained of was a final and appealable judgment, and the matter was remanded for perfection as an appeal.

DISCUSSION

No Cause of Action

Plaintiffs argue that the trial court erred in sustaining the exception of no cause of action based on the alleged immunity from liability for injuries to prisoners found in La. R.S. 15:708. They claim this immunity from liability is limited in nature and that causes of action by injured prisoners are permitted when their harm or injury was caused by the intentional or grossly negligent acts of the sheriff or public authority. They also argue that the statute does not preclude suit by the prisoner's family members in the event of the inmate's wrongful death.

Plaintiffs further claim that this statute only limits the claims of "prisoners" and does not address the claims of third parties such as the prisoner's survivors in a wrongful death action who might bring claims against a sheriff or public authority that arise out of a prisoner's participation in such a labor program. They argue that Mr. George was not participating in any of the authorized inmate labor programs described in the statute at the time of his accident. They also argue that through a deposition of a deputy, they discovered facts after the dismissal of the Sheriff and the Warden from the suit that would show there was no record of a Work Program Agreement for Inmate Services signed by Mr. George and, thus, no record that he was voluntarily performing services for the state. Further, Plaintiffs assert that Mr. George was not eligible for work release at the time of his death. Although Plaintiffs agree that this evidence was not available prior to the dismissal on the objection of no cause of action, they argue that this is proof that the sustaining of the exception was premature, especially when allegations of gross negligence were made in their pleadings.

Plaintiffs also assert that the allegations of intentional or grossly negligent acts or omission on the part of the Sheriff or the Warden under La. R.S. 15:708 were those committed by Chreene, the employee of the municipality for whom he and Mr. George were working. They claim that Chreene violated the law in requiring Mr. George to ride on the tailgate, citing La. R.S. 32:284(B), which states that no person shall be allowed to ride on running boards, fenders, tail gates or rear racks of motor vehicles while moving upon a highway of this state. They argue that these allegations of gross negligence are imputable to the Sheriff and the Warden and preclude a determination on an exception of no cause of action wherein all allegations of fact must be accepted as true.

In response, the Sheriff and the Warden argue that their exception of no cause of action showed that Plaintiffs failed to plead any facts whatsoever against them, that Plaintiffs only made conclusory allegations that were insufficient to state a cause of action and, lastly, that Plaintiffs’ allegations are not sufficient to overcome the Sheriff's and the Warden's immunity under La. R.S. 15:708. They contend that Plaintiffs cannot overcome the fundamental flaw in their claims against them because there are simply no facts to implicate them in any wrongdoing.

The Sheriff and the Warden argue that without specific facts, Plaintiffs’ conclusory allegations are not sufficient to state a claim because they had no duty to protect Mr. George from what occurred. He was outside of the prison facility working for the...