Favorite v. Alton Ochsner Medical Foundation
Decision Date | 13 December 1988 |
Docket Number | No. 88-CA-0036,88-CA-0036 |
Citation | 537 So.2d 722 |
Parties | Patricia Favorite, Wife of/and Eric FAVORITE, Individually and as the Natural Tutrix of the Minor Child, Parish Farran Favorite v. ALTON OCHSNER MEDICAL FOUNDATION, Jeffrey Cerreta, Dr. Gregory Valainis, Nurse Jane Doe and ABC Needle Manufacturing Company. 537 So.2d 722 |
Court | Court of Appeal of Louisiana — District of US |
Joseph F. La Hatte, Jr., New Orleans, for plaintiffs.
Perry R. Staub, Jr., Monroe & Lemann, New Orleans, for defendants.
Before WARD, WILLIAMS and ARMSTRONG, JJ.
Plaintiffs, Patricia and Eric Favorite, in their individual capacities and as natural tutrixes of their minor child, Paris Farran Favorite, instituted this tort action against defendants Alton Ochsner Medical Foundation (Ochsner), Dr. Gregory Valainis, Nurse Jane Doe, ABC Needle Manufacturing Company, and Jeffery Cerreta. Plaintiffs sought damages for losses sustained as the result of Patricia Favorite being accidently stuck by an exposed hypodermic needle which had been left lying on the meal tray of Mr. Cerreta, an Ochsner patient who had tested positive for the presence of HTLV (III) strain, commonly referred to as the AIDS virus. Ochsner and Dr. Valainis filed exceptions of improper venue, no cause of action, and lis pendens. 1 The trial court sustained the exceptions of no cause of action and dismissed plaintiff's suit as to those two defendants. Plaintiffs now appeal.
The facts as briefly set forth in plaintiffs' petition show that on or about June 4, 1986, plaintiff, Patricia Favorite, was employed in her capacity as a dietician for Ochsner. As she was removing a meal tray from the room of an AIDS patient, Mr. Cerreta, she was stuck in the hand by an unsheathed hypodermic needle which lay concealed under some papers on the tray. As a result Mrs. Favorite claims that she has tested positive for the presence of the "HTLV III AIDS strain." Since plaintiff alleged that she received injuries while in the course and scope of her employment, her exclusive remedy lay with the "Louisiana Worker's Compensation Law" unless, under La.R.S. 23:1032, she could show that the injury resulted from an intentional act on the part of Ochsner or one of its employees. Defendants' exceptions of no cause of action are directed to the question of the intentional act.
The trial court apparently chose to dispose of the matter on the exception of no cause of action. There is no evidence to indicate that the court considered the exception of improper venue. The judgment, containing brief reasons therefor, refers only to the issue of plaintiffs' cause of action. We feel the trial court should have considered and ruled on the exception of improper venue first. If it found that the action had been properly brought in Orleans Parish then it could have considered the exception of no cause of action.
Prior to 1983 if a defendant filed a peremptory exception of no cause of action at the same time he filed a declinatory exception of improper venue, he made a general appearance and thereby waived his objection as to venue. Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc., 346 So.2d 743 (La.App. 1st Cir.1977); Polmer v. Spencer, 256 So.2d 766 (La.App. 1st Cir.1971).
In 1983 La.C.C.P. arts. 7 and 928 were amended to allow a defendant to file his declinatory, dilatory, and peremptory exceptions together. The filing of a peremptory exception of no cause of action together with a declinatory exception of improper venue no longer constitutes a general appearance. However, when these two exceptions are filed together, the proper procedure would be to address the "procedural" exception of improper venue first. Prior to the 1983 amendments to these Code of Civil Procedure articles, if the defendant wished to raise both of these exceptions it was necessary to file the exception of improper venue first. It was contemplated that the court would rule on this exception and if the action was found to have been filed in the correct parish, defendant could then raise a peremptory exception of no cause of action.
The 1983 amendments were merely intended to simplify pleading by allowing a defendant to file all of his exceptions together in one pleading. The amendments were not intended to alter what appears to be the logical sequence of addressing the exceptions. Once a defendant properly raises an exception of improper venue he has placed venue at issue and it should always be resolved before the court rules on an exception of no cause of action.
Because we feel the trial court should have decided whether this action had been filed in the proper parish before it decided whether plaintiffs' petition set forth a lawful cause of action, we will vacate the judgment of the trial court and remand the matter to the trial court. We take this action because if it is later necessary to transfer the suit, we do not feel that the transferee court should be bound by a decision of a co-equal court from another parish.
For the reasons assigned we vacate the...
To continue reading
Request your trial-
Green v. Alaska Nat. Ins. Co.
...the exception of no cause of action. The Fourth Circuit had this very issue before it in the case of Favorite, et al. v. Alton Ochsner Medical Foundation, 537 So.2d 722 (La.App. 4 Cir.1988). In this case "Ochsner and Dr. Valains filed exceptions of improper venue, no cause of action, and li......
-
Curole v. Ochsner Clinic, L.L.C.
...trial court made a ruling only on the exception of improper venue and transferred the case to Jefferson Parish. See Favorite v. Ochsner, 537 So.2d 722 (La.App. 4th Cir.1988). In her Reasons for Judgment, the trial judge's reference to Dr. Quinlan's potential liability was a necessary coroll......
-
Brown v. Chesson
...of citation and service—before reaching his peremptory exception—prescription. See Favorite v. Alton Ochsner Med. Found. , 537 So.2d 722, 723 (La. App. 4th Cir. 1988) (observing that the "logical sequence" of addressing exceptions is to first address the declinatory exception—there, venue—a......
-
Tran v. Drinkable Air, Inc.
...before or at the same time. See Bennett v. Giarrusso , 583 So.2d 607, 609 (La. App. 4 Cir. 1991) ; Favorite v. Alton Ochsner Medical Foundation , 537 So.2d 722, 723 (La. App. 4 Cir. 1988), In re Cooper , 57 So. 2d 775, 776 (La. App. 1 Cir. 1952). In Bennett , 583 So.2d at 609, the Fourth Ci......