Lucarelli et al v. D V A Renal Healthcare Inc

Filing 80

RULING re 64 REPORT AND RECOMMENDATION re 52 MOTION to Dismiss Complaint filed by D V A Renal Healthcare Inc & 77 REPORT AND RECOMMENDATION re 65 MOTION to Dismiss Second Amended Complaint and To Strike Certain Allegations Therein filed by D V A Renal Healthcare Inc. Signed by Judge Robert G James on 2/2/09. (crt,DickersonSld, D)

3 U~ ~ ISTRICT ~ ISIANA SD asTERN DISTRICT

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RECEIVED

UNITED STATES DISTRICT COURT

B 0 2 2009
RO~M(}HEMWELLI

B~\~5~UTY

MONROE DIVISION CiVIL ACTION NO. 08-040 6

CAROL LUCARELLI EX REL. MAGGIELEAN TAYLOR, ET AL. VERSUS DVA RENAL HEALTHCARE INC., ET AL.

JUDGE ROBERT G. JAMES MAG. JUDGE KAREN L. HAYES

RULING Pending before the Court is Defendant DVA Renal }-Iealthcare, ~nc,'s ("DRH") motions to dismiss Plaintiffs' amended complaint and, in the alternative, to strike certain allegations [Doe. Nos. 52 and 65]. Magistrate Judge Karen L. Hayes issued two Report and Recommendations [Doe. Nos. 64 & 77], recommending that the motions be granted in part and denied in part. DRH and Plaintiffs filed written objections with this Court [Doc. Nos. 66, 78, & 79]. For the following reasons, the Court ADOPTS the Reports and Recommendations of the Magistrate Judge, except for the analysis regarding the claim for negligent undertaking. I. LAW ANI) ANALYSIS This is a negligence action brought by Plaintiffs, the heirs of Maggielean Taylor, against her dialysis provider, DRH. Maggielean Taylor died in 2005, allegedly as a result ofcomplications from her dialysis treatment. DRH contends inter alto that Plaintiffs have failed to state a claim for negligent undertaking because Plaintiffs did not allege (I) that DRH's failure to exercise reasonable care increased the risk ofharm to the decedent, (2) that DRH undertook to perform a duty owed to the decedent by someone else, and (3) that the decedent relied upon DRH's undertaking of that duty.

To state a claim for negligent undertalcing, the plaintiff must allege that (1) the defendant "undert[ook] to render services, (2) to another, (3) which the defendant should [have] recognize[d] as necessary for the protection of a third person." Bujol v. Entergy Sen's., No. 03-C-0492 c/w No. 03-C-0502 (La. 05/25/04); 922 So.2d 1113, 1129 (citing RESTATEMENT (SECOND) OF Towrs 324A). Magistrate Judge Hayes declined to dismiss Plaintiffs' claim for negligent undertaldng because "discovery will be needed to clarify what services, if any, [DRH] undertook on behalf of another for the protection of plaintiffs' decedent." [Doe. No. 77, p. 10] (emphasis added). A defendant may only be held liable for negligent undertaking if it "undertakes to render services.
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to another,.. which the defendant should recognize as necessary for the protection
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of a third person." Bujol, 922 So.2d at 1129 (emphasis added); see also Id. generally (noting that a parent corporation could be held liable for assuming a duty to provide for the safety of the employees ofits subsidiary); see also Herbertv. Rapides Parish Police Jury, No. 06-C-2001 e/wNo. 06-C-2164 (La. 04/11/07); 974 So.2d 635, 643 (holding the state department oftransportation liable for assuming the parish police jury's duty to construct and maintain a safe bridge) (citing Bufol, 922 So.2d at 1128--29), reh'g denied, 974 So. 2d 635. In this case, Plaintiffs have not alleged that DRH undertook to provide dialysis services to another entity for the protection of that entity's dialysis patients. Plaintiffs have, therefore, failed to state a claim for negligent undertaking against DRH, and DRH's motion to dismiss on this basis

H.

CONCLUSION For the foregoing reasons, the Court ADOPTS the Reports and Recommendations of the
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Magistrate Judge, except for the analysis and recommendation regarding the claim for negligent undertaking. MONROE, LOUTSIANIA, this ____day of February, 2009.

ROBERT u,JA~e I UNTTED STATES 1JT~TRICT UDGE J

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