Shipley v. Lakeland Tours L.L.C. et al
ORDER AND REASONS that Defendants' 11 Motion to Dismiss is hereby DENIED. Signed by Judge Eldon E. Fallon on 10/23/2017. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAKELAND TOURS, LLC,
PROSIGHT SPECIALTY INSURANCE,
"JOHN DOE" INSURANCE CO.
& STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY
SECTION “L” (2)
ORDER AND REASONS
Before the Court is Defendants Lakeland Tours, LLC and ProSight Specialty Insurance’s
motion to dismiss. 1 Rec. Doc. 11. Plaintiff opposes the motion. Rec. Doc. 14. Having considered
the parties’ arguments, submissions, and applicable law, the Court now issues this Order and
This personal injury case arises from a passenger’s fall aboard a chartered bus. In the
afternoon of April 22, 2016, Plaintiff Renee Shipley was a passenger on one of Lakeland’s
chartered buses. Rec. Doc. 3. She was accompanying her grandson on a field trip from Saraland,
Alabama, to the Audubon Zoo in New Orleans, Louisiana. Two Lakeland buses were chartered
for the field trip. Id.
On the return journey, Ms. Shipley rode on the second, trailing bus. Id. At some point
during the return trip, Ms. Shipley left her seat to get something from the overhead compartment.
Id. at 3-4. Meanwhile, in attempt to catch up to the lead bus traveling towards the on-ramp to
This motion was initially filed in Section F of the Court before the Honorable Martin L.C. Feldman. On
September 29, 2017, Judge Feldman recused himself from the matter. This case and the instant motion were
subsequently reallotted to this Section by the Clerk of the Court. See Rec. Doc. 22.
Interstate 10 on Carrollton Avenue, the trailing bus allegedly traveled too fast for the traffic
conditions. Id. As the trailing bus approached the exit, a pickup truck driven by Steven Charles
cut in front of the bus to enter the gas station on the corner of Washington Avenue and Carrollton
Avenue. Id. To avoid colliding with the truck, the bus driver slammed on the brakes. Although
there was no collision, the sudden stop caused Ms. Shipley to fall. Ms. Shipley suffered a fractured
clavicle, injuries to her head and neck, and numerous contusions, for which Ms. Shipley received
immediate hospitalization and ongoing medical treatment. Id. at 4.
On April 21, 2017, Ms. Shipley sued Mr. Charles and his fictitious insurance company;
Lakeland; ProSight; and State Farm Automobile Insurance Company, which is Ms. Shipley’s
under/uninsured motorist insurer. Ms. Shipley alleges that the negligence of Mr. Charles and
Lakeland’s bus driver—for whom Lakeland is responsible through the doctrine of respondeat
superior—caused her injuries. Id. Defendant now seeks dismissal pursuant to Rule 12(b)(6).
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal
of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely
granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242,
247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009) (citing FED. R. CIV. P. 8). “[T]he pleading standard Rule 8
announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s] all well-pleaded facts as true
and view[s] all facts in the light most favorable to the plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v. Covington Cnty. Sch. Dist.
ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc)). But in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the complaint as true. Id. at 502-03
(citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted).
allegations must be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at
555 (citations and footnote omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.”). This is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679. “Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. at 678 (internal quotations omitted) (citing Twombly, 550
U.S. at 557). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’”,
thus, “requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district court ‘must consider the
complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th
Cir. 2011) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
On a Rule 12(b)(6) motion to dismiss, the Court considers whether the Plaintiff’s
Complaint satisfies the liberal pleading standard enunciated in Twombly and Iqbal. Defendants
Lakeland and ProSight move to dismiss the Plaintiff’s claim that the bus driver was negligent on
the ground that the Plaintiff’s allegations are legal conclusions insufficient to support a claim for
relief. Defendants contend that the Plaintiff’s allegations fail to state a claim for two reasons.
First, Defendants argue that Mr. Charles—and not the bus driver—is presumed to be negligent as
a motorist changing lanes. Second, Defendants submit that the bus driver cannot be found
negligent in stopping suddenly under the sudden emergency doctrine. The Court will address each
argument in turn.
Plaintiff claims that her injury was caused by the bus driver’s negligent conduct: traveling
too fast for the surrounding conditions. According to Plaintiff, the bus driver’s action of driving
too fast is a contributing cause to the sudden stop. To recover damages arising from negligent
conduct under Louisiana Civil Code article 2315, a plaintiff must prove five elements:
(1) the defendant had a duty to conform his or her conduct to a
specific standard of care; (2) the defendant failed to conform his or
her conduct to the appropriate standard of care; (3) the defendant’s
substandard conduct was a cause-in-fact of the plaintiff’s injuries;
(4) the defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries; and (5) actual damages.
Brewer v. J. B. Hunt Transp., Inc., 35 So. 3d 230, 240 (citing Pinsonneault v. Merchs. & Farmers
Bank & Trust Co., 816 So. 2d 270, 275-76)). If two or more parties caused the injury, “the degree
or percentage of fault of all persons causing or contributing to the injury . . . shall be determined,
regardless of whether the person is a party to the action or a nonparty.” La. Civ. Code art. 2323.
A court awards damages in proportion to the allocation of fault. See Brewer, 35 So. 3d at 244-45.
Moreover, particular statutes and judicial doctrine govern liability for motor vehicle
accidents. Louisiana Revised Statutes §§ 32:79 and 32:104 create a presumption of negligence for
the motorist that causes an accident when changing lanes without first ascertaining if the
movement can be made with reasonable safety. See id. at 241. Nevertheless, the favored motorist
may still be assessed with comparative fault if her negligent actions contributed to the cause of the
accident. Matherne v. Lorraine, 888 So. 2d 244, 246 (2004). “[O]nce the presumption of
negligence attaches to the defendant, the ordinary rules of comparative negligence apply and, thus,
a plaintiff’s damage award may be reduced by the degree that he was comparatively at fault.” Id.
In this case, the Plaintiff avers that the bus driver’s conduct of driving too fast is a
contributing factor to her injuries. The Complaint describes the bus driver attempting to catch up
to the lead bus. It further articulates how this conduct breached a duty by “travelling too fast for
the traffic conditions around [the bus driver], failing to observe ordinary care and caution
commensurate with the circumstances.” These allegations, when viewed as a whole, support a
reasonable inference that the bus driver’s negligence caused the sudden stop—at least in part. See
Iqbal, 556 U.S. at 678; Funk, 631 F.3d at 783 (quoting Tellabs, Inc., 551 U.S. at 332)). This
plausible allegation is sufficient to survive a Rule 12(b)(6) challenge for failure to state a claim.
Sudden Emergency Doctrine
Defendants Lakeland and ProSight argue that the bus driver cannot be found negligent
because of the sudden emergency doctrine. Defendants state that Mr. Charles alone created the
emergency and the need for an immediate stop.
Generally, the sudden emergency doctrine absolves a driver of liability or reduces the
driver’s allocation of fault – if it can be shown that the driver’s actions were prudent given the
hazardous condition created by another driver. Compare Covington v. La. Transit Co., 07-827,
980 So. 2d 11, 14-15 (2008) (affirming summary judgment in favor of bus company and holding
public carrier not liable for a passenger’s fall when the bus stopped short to avoid a collision, an
emergency caused solely by the other vehicle, and where the bus driver was not negligent), with
State Farm Mut. Auto. Ins. Co. v. LeRouge, 995 So. 2d 1262, 1275-76 (2008) (amending the trial
court’s finding of no liability on the ground that the emergency doctrine did not wholly absolve a
party from liability when the party’s negligence partially caused the emergency). As the Louisiana
Supreme Court instructs:
One who suddenly finds himself in a position of imminent peril,
without sufficient time to consider and weigh all the circumstances
or best means that may be adopted to avoid an impending danger, is
not guilty of negligence if he fails to adopt what subsequently and
upon reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own
Hickman v. S. Pac. Transport Co., 262 So. 2d 385, 389 (La. 1972) (emphasis added).
Plaintiff alleges that the bus was traveling too fast for the surrounding traffic conditions in
attempt to catch up to the lead bus. Plaintiff also alleges that Mr. Charles cut in front of the bus,
causing the bus driver to slam on the brakes and sending Ms. Shipley hurtling forward to sustain
Nevertheless, Lakeland and ProSight challenge the sufficiency of Plaintiff’s negligence
allegations against them, suggesting that Mr. Charles’s presumed negligence exonerates Lakeland
and ProSight from liability. This argument lacks merit. The Plaintiff concedes and indeed alleges
that Mr. Charles is liable for Ms. Shipley’s injuries. Nonetheless, Mr. Charles’s negligence does
not preclude a finding of negligence for the bus driver. Even when a motorist is presumed to be
negligent for causing an accident, a favored motorist may share liability in proportion to the
favored motorist’s allocated fault. See Matherne, 888 So. 2d at 246.
In the same vein, Lakeland and ProSight contend that the sudden emergency doctrine
relieves the bus driver from all liability in her manner of braking, since Mr. Charles—not the bus
driver—caused the emergency. Because the Plaintiff’s allegations explicitly state that Mr. Charles
caused the sudden stop, Lakeland and ProSight argue that the allegations are conclusory because
they do not support a theory of causation on the part of the bus driver. The Court disagrees.
Here, Plaintiff not only alleges that Mr. Charles’s actions caused the bus to stop short, but
also refers to the bus driver’s speed as a contributing factor. The Complaint claims that “[w]hile
attempting to catch up to the lead bus, upon information and belief, a blue pickup truck operated
by Defendant Steven Charles cut in front of the bus on which Plaintiff was a passenger to enter the
gas station on the corner of Washington Avenue and Carrolton [sic] Avenue. This action by
Defendant Steven Charles caused the bus driver of the passenger’s bus to have to slam on the
brakes to avoid colliding with the blue pickup truck.” Compl. at ¶ 10. The Complaint further
articulates how this conduct breached a duty by “travelling too fast for the traffic conditions around
[the bus driver], failing to observe ordinary care and caution commensurate with the
On a motion to dismiss, the Court views all well-pleaded facts in the light most favorable
to the Plaintiff. Whether Plaintiff can actually prove how fast the bus was traveling—and causation
for her injury—is not a matter for the Court to consider at this pleadings stage. The sudden
emergency doctrine does not relieve a party from liability when the party’s negligence contributed
to the emergency. See LeRouge, 995 So. 2d at 1275. Accordingly, considering the facts alleged
in the Complaint, the Court finds that Plaintiff has made sufficient pleadings plausible on its face
to survive a Rule 12(b)(6) motion.
Based on the foregoing reasons, accordingly,
IT IS ORDERED that the Defendants’ motion to dismiss (Rec. Doc. 11) is hereby
New Orleans, Louisiana, this 23rd day of October, 2017.
ELDON E. FALLON
United States District Judge
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