Clark v. CST Services, LLC et al
Filing
29
ORDER & REASONS. It is ORDERED that 7 Motion to Dismiss is GRANTED. Plaintiff's claims against Defendant Shirley Hester are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TRUDY CHAUVIN CLARK
CIVIL ACTION
VERSUS
NO: 16-10421
CST SERVICES, LLC, ET
AL.
SECTION: “J”(3)
ORDER & REASONS
Before the Court is a 12(b)(6) Motion to Dismiss Defendant
Shirley Hester (R. Doc. 7) filed by Defendants CST Services, LLC
(CST) and Shirley Hester, and an opposition thereto
filed by
Plaintiff (R. Doc. 13). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from injuries Plaintiff allegedly
suffered when she allegedly tripped and fell due to a “defective
mat/rug” at a convenience store owned and operated by CST. (R.
Doc. 1-1.) Plaintiff alleges that Defendants, including CST’s
employee, Ms. Shirley Hester, are at fault for her injuries. Id.
On
June
16,
2015,
Plaintiff
commenced
this
action
in
the
Seventeenth Judicial District Court for the Parish of LaFourche.
Id. On June 15, 2016, the suit was removed to this Court on the
basis of diversity jurisdiction. (R. Doc. 1.) On September 15,
2016, Defendants moved to dismiss the claims against Defendant
Hester under Federal Rule of Civil Procedure 12(b)(6). (R. Doc.
7.) In short, Defendants argue that Plaintiff’s complaint fails to
state a claim against Ms. Hester, as an employee of CST, under
Louisiana law. Defendants’ motion to dismiss is now before the
court on the briefs and without oral argument.
PARTIES’ ARGUMENTS
1.
Defendants’ Arguments
Defendants argue that Plaintiff’s complaint fails to state a claim
against Ms. Hester. (R. Doc. 7.) Defendants argue that Plaintiff
has not alleged, nor offered any factual support indicating, that
Ms. Hester owed Plaintiff a duty of care. Id. at 3. Further,
Defendants argue that Plaintiff has neither alleged nor provided
any factual support indicating that Ms. Hester breached a duty of
care through her own personal fault, as contrasted with technical
or vicarious fault. Id. Finally, Defendants argue that Plaintiff’s
theories of fault regarding Ms. Hester include only administrative
responsibilities, and as such, Plaintiff cannot recover against
Ms.
Hester.
Id.
For
these
reasons,
Defendants
argue
that
Plaintiff’s claims against Ms. Hester must be dismissed.
2.
Plaintiff’s Arguments
Plaintiff summarizes her argument as follows: “. . . [Ms.]
Hester ought to have kept a better lookout, and if she had done so
she would have had time after she saw the dangerous condition to
take proper precautions. . . . [Ms.] Hester failed to post signs
2
warning of the dangerous conditions on the floor/walking area of
CST and that Hester could have, but did not, warn [Plaintiff] about
the dangerous conditions.”
LEGAL STANDARD
Because jurisdiction is based on diversity of citizenship,
Louisiana substantive law and federal procedural law apply to these
state-law claims. See Ferguson v. Bank of N.Y. Mellon Corp., 802
F.3d
777,
780
(5th
Cir.
2015).
Under
Federal
Rule
of
Civil
Procedure 12(b)(6), “a claim may be dismissed when a plaintiff
fails to allege any set of facts in support of his claim which
would entitle him to relief.” Taylor v. Books A Million, Inc., 296
F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr. Pepper/Seven
Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must plead enough facts
to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the plaintiff pleads facts that allow the court to
“draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. A court must accept all well-pleaded
facts as true and must draw all reasonable inferences in favor of
the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232
(5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The
court
is
not,
however,
bound
3
to
accept
as
true
legal
conclusions couched as factual allegations. Iqbal, 556 U.S. at
678. “[C]onclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to
dismiss.” Taylor, 296 F.3d at 378.
DISCUSSION
Louisiana law sets forth the circumstances under which a
corporate employee can be held individually liable for injuries to
third persons. Under Louisiana law, a store manager or employee
may be personally liable for a customer’s injury on store premises
only if (1) the employer owes a duty of care to the customer; (2)
the employer delegated that duty to the employee; (3) and the
employee breached this duty through his own personal fault and
lack of ordinary care. Moore v. Manns, 732 F.3d 454, 456-57 (5th
Cir. 2013) (citing Canter v. Koehring Co., 283 So. 2d 716, 721
(La. 1973), superseded on other grounds by statute, La. Rev. Stat.
§ 23:1032)). However, personal liability cannot be imposed upon
the
employee
simply
because
of
his
“general
administrative
responsibility.” Canter, 283 So. 2d at 721. The employee “must
have a personal duty towards the injured plaintiff, breach of which
specifically caused the plaintiff's damages.” Id. Accordingly, in
order to state a cause of action against Ms. Hester, it must be
plausible on the face of Plaintiff’s complaint that CST owed a
duty of care to Plaintiff, that CST delegated that duty to Ms.
Hester, and that Ms. Hester breached this duty through her own
4
personal fault and lack of ordinary care. See Moore, 732 F.3d at
456-57; Canter, 2005 WL 1831092 at *2.
Plaintiff’s complaint states that Ms. Hester was aware of the
dangerous condition, or should have been aware of the dangerous
condition,
and
breached
a
duty
to
discover,
remedy,
or
warn
Plaintiff of such danger, and is therefore personally liable to
Plaintiff for the damages she sustained. (R. Doc. 1-1 at 3.)
Further, Plaintiff alleges that Ms. Hester was in close proximity
to the allegedly dangerous condition and had ample time to warn
Plaintiff
Plaintiff’s
or
take
corrective
complaint
action.
includes
a
Id.
boilerplate
at
3-4.
list
of
Finally,
alleged
negligent acts committed by Ms. Hester, including the following:
a.
Failure to maintain a safe and clean premises;
b.
Failure to warn petitioner of the condition on the
premises of CST Services, LLC;
c.
Failure to correct the condition in the defendant
area in spite of previous knowledge, and/or constructive
knowledge, thereof;
d.
Failure to post signs warning of the dangerous
conditions on the floor/walking area of CST Services,
LLC, d/b/a VALERO;
e.
Failure to initiate, maintain and follow an
adequate system of maintenance to prevent the incident
at issue;
f.
Failure to initiate, maintain and follow an
adequate inspection procedure to detect the unsafe area,
which caused the incident, which is the subject of the
this litigation, and to alert all businesses within its
building operating with its consent within its building,
of the proper procedures, warnings, and actions to take
when a dangerous conditions is present, seen, or should
have been seen;
g.
Placing and failing to maintain an inherently and
defective rug/mat that is defective and is placed in
such a manner that is dangerous;
5
h.
Any and all other acts of negligence, which will be
proven at the trial of this matter.
Plaintiff argues that these allegations are sufficient to state a
claim against Ms. Hester for her personal liability. (R. Doc. 13.)
Several courts have found allegations similar to those posed
by Plaintiff insufficient to support personal liability on the
part of a store manager or employee and concluded that the store
manager or employee was improperly joined to defeat diversity. For
example, in Giles v. Wal-Mart Louisiana LLC, a plaintiff sued WalMart and the store manager for personal injuries she allegedly
sustained when she slipped and fell in a hole in the Wal-Mart
parking lot. No. 16-2413, 2016 WL 2825778, at *1 (E.D. La. May 13,
2016). 1 The plaintiff alleged the manager was liable for a list of
negligent acts such as failing to supervise his employees, failing
to provide signage warning of the alleged hazard, and failing to
discover and correct the dangerous condition. Id. at *3. This Court
concluded that the plaintiff’s allegations against the manager
were
insufficient
to
trigger
personal
liability,
because
the
plaintiff did not allege that the manager owed her a personal,
independent duty, that Wal-Mart ever delegated any of its duties
to protect the safety of the Plaintiff to the manager, nor that
1
Although Giles addressed a motion to remand for improper joinder, this Court
noted that in addressing motions for improper joinder courts should conduct “a
rule 12(b)(6)-type analysis” and determine whether the complaint states a claim
under state law. Giles, 2016 WL 2825778, at *2 (citing Smallwood v. Ill. Cent.
R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)). Accordingly, its analysis is
persuasive and pertinent in this case.
6
the manager ever acted unreasonably. Id. at *4. Rather, the court
found it to be “a classic case of attempting to place liability
upon an employee ‘simply because of his general administrative
responsibility for performance of some function of employment.’”
Id. (quoting Rushing v. Wal-Mart Stores, Inc., No. 15-269, 2015 WL
1565064, *4 (E.D. La. Apr. 8, 2015)); see also Carter v. Wal-Mart
Stores, Inc., No. 04-0072, 2005 WL 1831092, at *3 (W.D. La. July
28, 2005)).
Similarly,
in
Robinson
v.
Wal-Mart
Stores,
Inc.,
the
plaintiff sued a Wal-Mart store and its general manager after she
slipped and fell while shopping in the store. No. 15-6871, 2016 WL
1572078, at *1 (E.D. La. Apr. 19, 2016). After the case was removed
to federal court, the plaintiff filed a motion to remand. Id. The
court denied the motion to remand, concluding that the manager was
improperly joined, because the plaintiff failed to allege that the
manager
owed
a
personal,
independent
duty
to
store
patrons,
delegated to him by Wal-Mart, which he breached through personal,
rather than technical or administrative, fault. Id. at *3.
In contrast, in Lounsbury v. Winn-Dixie Louisiana, Inc., the
plaintiff was looking at various pie fillings when a store employee
walked up behind him and squatted by his feet. No. 95-2544, 1995
WL 626211, at *1 (E.D. La. Oct. 20, 1995). As the plaintiff made
his selection, he tripped and fell backwards over the squatting
employee. Id. The court held that the plaintiff stated a claim
7
against
the
employee
because
the
plaintiff
alleged
that
the
employee “breached his duty to him by obstructing his passage and
negligently tripping him.” Id. at *2. There, the alleged negligence
did not arise out of a “general administrative responsibility,”
but from a personal duty the employee owed to the plaintiff. Id.
The allegations in Plaintiff’s petition are more analogous to
those in Giles and Robinson than to those in Lounsbury. Plaintiff’s
complaint does not alleged that Ms. Hester owed her a personal,
independent duty, the breach of which caused her to slip and fall.
Nor has Plaintiff alleged that CST ever delegated the duties which
it owed to third party patrons as a merchant under Louisiana law,
nor
that
Ms.
Hester
acted
unreasonably.
Instead,
Plaintiff
generally alleges that Ms. Hester failed to manage and maintain
the building, failed to properly inspect and discover the alleged
dangerous condition, and failed to provide signage about the
alleged dangerous condition. These assignments do not state a claim
for individual liability against Ms. Hester. See Giles, 2016 WL
2825778, at *4. Plaintiff’s allegation that Ms. Hester “knew or in
the
exercise
of
reasonable
care,
should
have
known
of”
the
allegedly dangerous condition on the premises is a conclusory
allegation that the Court is not required to accept, and it does
not amount to an allegation that Ms. Hester personally knew of the
allegedly dangerous mat/rug. Id.
8
In
sum,
a
review
of
Plaintiff’s
petition
reveals
no
allegations that CST ever delegated its duty of care of Plaintiff
to Ms. Hester, nor that Ms. Hester ever acted unreasonably. This
is “a classic case of attempting to place liability upon an
employee
‘simply
because
of
his
general
administrative
responsibility for performance of some function of employment.’”
Giles, 2016 WL 2825778, at *4; Rushing, 2015 WL 1565064, at *4. In
conclusion, under such circumstances, Plaintiff cannot recover
against Ms. Hester under Louisiana law and her claims against Ms.
Hester must be dismissed.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (R.
Doc. 7) is GRANTED. Plaintiff’s claims against Defendant Shirley
Hester are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 4th day of November, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
9
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