98-834 La.App. 3 Cir. 12/9/98, Vallier v. Louisiana Health Systems, Inc.
| Decision Date | 09 December 1998 |
| Citation | 722 So.2d 418 |
| Parties | 98-834 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Janice Barber, Lafayett, for Emma Vallier.
Nicholas Gachassin, Jr., Nicholas Gachassin, III, Lafayette, for Louisiana Health Systems d/b/a Lafayette General Medical Center.
Before COOKS, SAUNDERS and WOODARD, JJ.
[98-834 La.App. 3 Cir. 1] SAUNDERS, Judge.
Emma Vallier, plaintiff-appellant (hereinafter "Plaintiff"), appeals the lower court's rule in favor of an exception of no cause of action and summary judgment dismissing her claim for damages against Louisiana Health Systems, Inc. D/B/A Lafayette General Medical Center, D/B/A Lafayette General Hospital, defendant/appellee (hereinafter "Defendant"). Upon review, we reverse and remand.
On May 24, 1995, Plaintiff was being treated for epigastric abdominal pain and underwent a procedure called esophagogastroduodenoscopy when it was discovered that one of four tubs of Cidex solution used to disinfect instruments had been [98-834 La.App. 3 Cir. 2] Consequently, the prescribed disinfection process had not been properly completed and all patients treated with possibly contaminated instruments were notified and tested. Plaintiff did not contract any disease from the instruments, however, she brought suit seeking compensation for alleged emotional damages sustained from the fear of contracting an incurable or fatal disease. The trial court denied Plaintiff's claim finding that Plaintiff failed to state a cause of action and dismissed the case on a summary judgment rule.
"[W]here a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action should be denied." Ward v. Tenneco, 564 So.2d 814, 820 (La.App. 3 Cir.1990); Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151, 1162 (La.1988). Where an exception of no cause of action is made, evidence may not be introduced by any party to support or controvert the objection. La.Code Civ.P. art. 931. The exception of no cause of action tests the legal sufficiency of a petition by determining whether the law provides a legal remedy to the factual allegations, taken as true, that arise on the face of the petition. Everything on Wheels v. Subaru S., Inc., 616 So.2d 1234 (La.1993). Upon review of a sustained exception of no cause of action, the reviewer "should subject the case to de novo review because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition." City of New Orleans v. Board of Comm'rs, 93-0690 (La.7/5/94); 640 So.2d 237, 238.
Defendant argues that the fourth circuit case, Vallery v. Southern Baptist Hosp., 630 So.2d 861, 866 (La.App. 4 Cir.1993), sets the standard for determining when a claimant has established a cause of action sounding in negligent infliction of emotional [98-834 La.App. 3 Cir. 3] The court in Vallery recognized that "our Supreme Court limited recovery for negligent infliction of emotional distress"in the seminal case of Moresi v. State, Through Department of Wildlife & Fisheries, 567 So.2d 1081 (La.1990). In Moresi, the court reviewed circumstances under which recovery for emotional distress traditionally has been allowed--where the distress was accompanied by physical injury. Id. The Moresi court recognized, however, jurisprudential deviations, e.g. cases involving mishandled corpses and negligently transmitted telegraphic death messages. Id. In Moresi, the Louisiana Supreme Court embraced the opportunity to phrase the general test that establishes when such exceptions to the general requirement of physical injury are appropriate: "all these categories have in common the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." Id. at 1096. Despite this clear phraseology given by our supreme court, the court in Vallery felt it necessary to look outside of the local jurisprudential rule provided by Moresi, and instead look to federal law. Indeed, Vallery managed to delineate three categories of federal case law that addressed exposure to HIV where federal law did not provide a general rule regarding when claims for negligent infliction of emotional distress would be recognized in federal courts. The court in Vallery made for interesting, but unnecessary, analysis when a jurisdiction, such as ours, has been given a general rule by its highest court. Admittedly, this circuit has in two recent opinions used Vallery to guide our decisions in similar matters. In Boutin v. Oakwood Village Nursing Home, 96-1579 (La.App. 3 Cir. 4/2/97); 692 So.2d 1289, the trial court analogized a plaintiff's fear of contracting a bacterial infection to cases concerning fear of contracting HIV. In Boutin, we relied on Vallery to find that a cause of action exists only where a channel of infection is alleged. Id. In Stewart v. St. Francis Cabrini Hospital, 96-1167 (La.App. 3 Cir. 6/11/97); 698 So.2d 1, we again followed Vallery and found the [98-834 La.App. 3 Cir. 4] insufficient to state a cause where the petitioner failed to allege a channel of infection. In neither Boutin nor Stewart did we engage in an independent analysis of a negligent infliction of emotional distress; in neither case did we consider Moresi. We now consider the elements required to state a cause of action for negligent infliction of emotional distress under a general negligence analysis, guided not by the fourth circuit, but by the Louisiana Supreme Court.
II. Duty/Risk Analysis
Mental damages may be awarded in a legal malpractice case which sounds in tort. Henderson v. Domingue, 626 So.2d 555 (La.App. 3 Cir.1993), writ denied, 630 So.2d 799 (La.1994). "The duty-risk analysis is used to assist our courts in determining whether one may recover under La.Civ.Code art. 2315." Barrino v. East Baton Rouge School Bd., 96-1824 (La.App. 1 Cir. 6/20/97); 697 So.2d 27, 33, citing Entrevia v. Hood, 427 So.2d 1146 (La.1983). "In order to sustain a cause of action under La.Civ.Code arts. 2315 and 2316, the petition must adequately allege fault, causation and damage." Buxton v. Fireman's Fund Ins. Co., 422 So.2d 647, 650 (La.App. 3 Cir.1982), citing Pence v. Ketchum, 326 So.2d 831 (La.1976), overruled in part on other grounds, 373 So.2d 494 (La.1979); Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). Included in the concept of fault necessarily is negligence. Buxton, 422 So.2d 647. Negligent infliction of emotional distress is a cause of action based on La.Civ.Code art. 2315, which provides, in pertinent part, that "[e]very act whatever of man that causes damages to another obliges him by whose fault it happened to repair it." Walker v. Allen Parish Health Unit, 97-1007 (La.App. 3 Cir. 4/1/98); 711 So.2d 734. Recovery under Article 2315 requires a claimant to prove the duty-risk elements, including:
1) Proof that the alleged conduct was a cause in fact of the harm.
2) Establishing the duty owed to a plaintiff by a defendant.
[98-834 La.App. 3 Cir. 5] Proof of a defendant's breach of that duty.
4) Proof that the risk and harm caused were within the scope of protection afforded by defendant's duty.
Hence, Plaintiff must, at the pleading stage, allege the basic elements of a La.Civ.Code art. 2315 action when asserting a claim for negligent infliction of emotional distress. Discussing a...
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