Opinion
CIVIL ACTION NO: 00-2112, SECTION: "C"
October 9, 2000
ORDER AND REASONS
Ryan C. Wallis, a second year law student at Tulane Law School, assisted in the research and preparation of this decision.
This matter comes before the Court on Rule 12(b)(6) Motion/Alternatively Rule 56 Motion for Summary Judgment filed by Jake's Body Shop, Inc., Carlo J. Vicari and Continental Insurance Company. Having considered the record, the memoranda of counsel and the law the Court has determined that the motion should be denied for the following reasons.
Plaintiffs David and Mary Jiron were the parents of Nickolas Jiron ("Nick"), a 19 year old man from New Mexico who came to Louisiana to take courses in underwater welding. Nick was a passenger in a car that was involved in an accident on I-12 near Goodbee, Louisiana at approximately 11:30 p.m. on August 27, 1999. Police arrested the driver, who failed a sobriety test. Police also called Jake's Body Shop to tow the car, and asked the wrecker to bring Nick to a place where he could telephone someone to pick him up. Carlo Vicari, who drove the tow truck dispatched to the accident, assented to the request.
According to the complaint, Vicari dropped Nick off at a closed "Quick Stop" convenience store in Goodbee, Louisiana, where Nick apparently used the payphone to attempt to make transportation arrangements. Tragically, Nick was robbed and murdered outside the Quick Stop not long thereafter, while waiting for a ride. His body was discovered by a cab driver summoned by Nick at approximately 1:30 a.m. on August 28, 1999.
DISCUSSION
Defendants assert that the Complaint fails to state a claim for which relief can be granted because Plaintiffs failed to allege a duty to Nick that Defendants breached. Specifically, Defendants assert that they did not owe a duty to Nick 1) to wait with him until he safely boarded a taxi, nor 2) to deliver him to a place where he could safely make travel arrangements.
Whether a duty is owed is a question of law. See Posecai v. Wal-Mart Stores. Inc., 752 So.2d 762, 766 (La. 1999), citing Peterson v. Gibraltar Sav. Loan, 733 So.2d 1198, 1204 (La. 1999), Mundy v. Dep't of Health Human Resources, 620 So.2d 811, 813 (La. 1993), and Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La. 1993). The determination of whether a duty exists under certain circumstances requires policy based decision that takes into account:
various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff's harm and the defendant's conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant's activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.Meany v. Meany, 639 So.2d 229, 233 (La. 1994), citing Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La. 1988); William E. Crow, The Anatomy of a Tort, 22 Loy.L.Rev. 903 (1976).
Defendants submit that the question of duty in this case should be analogized to the circumstances and standards under which business owners have a duty to protect customers from the criminal acts of third parties. Those standards were set forth in Posecai and involves balancing, specifically, the costs of the precautions (e.g. hiring security officers, installing security devices) with the foreseeability that a crime may occur on the premises of the business. See Posecai, 752 So.2d at 768.
The determination of whether or not Vicari owed Nick a duty to deliver him to a reasonably safe place is more simple. Vicari owed the duty as a general principle of tort law stated in Section 324 of the Second Restatement of Torts because he had voluntarily made Nick's safety dependent on his behavior:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting form his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.
RESTATEMENT (SECOND) OF TORTS § 324 (1999)
Prosser and Keaton on Torts acknowledges that one bears no duty to assist a person one finds in peril but, once taking control of a helpless person, "it is another thing entirely to eject him into the danger of a street or railroad yard; and if he is injured there will be liability."See W. Page Keeton, et al, Prosser and Keaton on Torts, § 56 at p. 378 (5th ed. 1984). This duty is more readily found when, as a result of one's actions, the danger to the needful person is increased or one prevents the rendering of aid to the needful person by others. See Prosser and Keaton on Torts, § 56 at p. 381.
The seminal Louisiana case on this duty is Marsalis v. LaSalle, 94 So.2d 120 (La.App. Orleans 1957). The defendant there was found liable in Marsalis because the defendants failed to keep their promise to plaintiff to keep their cat contained and under observation for signs of rabies after the cat bit the plaintiff. See Marsalis, 4 So.2d at 122, 123. The court found that the defendant had shouldered the duty to contain the cat because the defendant promised to contain the cat, and the plaintiff relied on the defendant to provide for her safety rather than pursuing a legal action to seize it. See Marsalis, 94 So.2d at 122. The Marsalis court held that the defendants assumed a duty toward the plaintiff to keep the cat under observation, as one who "voluntarily [undertook] to care for or afford relief or assistance to an injured or distressed person. See Marsalis, 94 So.2d at 126.
A similar duty was assumed by Vicari toward Nick. Vicari assumed a duty when he assented to take Nick to a place to call for a ride, and took him from the relative safety of the care of the police. At that point Nick began to rely on Vicari to use reasonable judgment in selecting a place from which he could safely use a telephone and await a ride.
Defendants compare the instant matter to Townley v. City of Iowa, 702 So.2d 323 (La.App. 3 Cir. 1997). Townley involved the duty of officers toward a man who was killed in an accident after while crossing a highway at night. See Townley, 702 So.2d at 325. The officers found the decedent drunk on the ground outside a bar. See id. While the officer on the scene entered the bar to learn the identity of the decedent, and to find someone to take him home, the decedent unexpectedly got up and drove away. See id. Later, he stopped the car, and attempted to cross a highway, at which point he was struck by a car and killed. See id.
The Townley court held that no special relationship had arisen between the officer and the decedent which would confer a duty specific to that individual. See Townley, 702 So.2d at 328. The court held that the requisite "one-to-one relationship" necessary had not arisen, and the only duty the officers owed to the decedent was the duty they owed to the general public as police officers. See id.
The instant matter is distinguishable from Townley. The plaintiffs inTownley had the added burden of showing that the officers owed a duty to decedent that was not absorbed by their public duty as police officers, which is not owed by the plaintiffs in the instant case. Further, even if it were owed here, it might have been fulfilled by the greater reliance present in the relationship between Vicari and Nick than existed in the relationship between the officers and the decedent in Townley. InTownley, the decedent frustrated the officers' attempt to provide for his safety by fleeing before a one-to-one reliance relationship could develop.
In sum, Vicari's duty to Nick is adequately alleged in the Complaint and adequately supported by the law for purposes of a motion to dismiss. The defendants have not challenged the other elements of the plaintiffs' cause of action, which are adequately plead in the Complaint. To ultimately answer the question whether Vicari breached the duty owed to Nick, a trier of fact will consider facts before the court pertaining to the safety of the Quick Stop, including whether the bar across the street from the Quick Stop was open, whether Nick was noticeably intoxicated. The Court agrees with the plaintiffs that an insufficient opportunity has been allowed to consider this motion on summary judgment at this time.See Fed.R.Civ. p 56.
Accordingly,
IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss/ Alternatively Rule 56 Motion for Summary Judgment filed by Jake's Body Shop, Inc., Carlo J. Vicari and Continental Insurance Company is DENIED.