Opinion
Civil Action No: 00-2095.
September 27, 2000
Before the court is the Motion to Dismiss filed by Defendant, National Railroad Passenger Corporation d/b/a Amtrak. Plaintiffs, JoAnn Mimmitt, et al, filed a memorandum in opposition. The motion, set for hearing on Wednesday, August 23, 2000, is before the court on briefs, without oral argument.
Having reviewed the memoranda of counsel and the applicable law, the court finds that the motion should be granted. In this matter, Plaintiffs allege that on or about February 8, 1995, JoAnn Mimmitt and her minor daughter, Anrielle Mimmitt, were subjected to sexual assaults and abuse on an Amtrak train by an unnamed passenger. Plaintiffs filed this suit years later in Louisiana state court on June 26, 2000, and Defendant subsequently timely removed the matter to this court. In their Motion to Dismiss, Defendant argues that Plaintiffs' claims are prescribed. The court agrees.
In their Petition, Plaintiffs allege as the cause of their damages the "gross and wanton negligence" of Defendant, including but not limited to:
(1) the failure to provide a safe environment in which their paying customers could be transported from one destination to another;
(2) the failure to provide adequate security on each train in order to prevent physical and verbal sexual harassment and battery;
(3) breach of the "contractual relationship with petitioners, who had purchased tickets, and the defendants, who benefitted monetarily, and failed to uphold their contractual duty to provide safe transportation for paying customers";
(4) failure to take proper precautions after being informed of the first offense, thereby not preventing further offenses; and
(5) conducting itself in a careless and reckless manner as to put petitioners at risk.
(Petition, ¶ IV).
In addition to asserting general "acts of negligence", Plaintiffs also seek damages which are traditionally awarded in tort, and not in contract. (Petition, ¶¶ V and VI).
Although plaintiffs make cursory allegations for breach of contract, they do not allege any specific contractual provision for which Amtrak warranted, guaranteed or assumed the duty to prevent the alleged intentional acts (sexual assault and abuse) of another passenger. Therefore, the Plaintiffs' claims of sexual assault and abuse are tort claims, which are subject to the one year prescriptive period of Louisiana Civil Code Article 3492.
Plaintiffs allege that the harm occurred on or about February 8, 1995. However, their Petition was filed years later on June 23, 2000. Therefore, their claims are clearly prescribed under Louisiana Civil Code Article 3492.
Further, while plaintiffs assert claims on behalf of their minor child, Anrielle Mimmitt, the longer prescriptive period for child abuse under Louisiana Civil Code Article 3496.1 and LSA-R.S. 9:2800.9 does not apply, because "abuse" as defined under under Louisiana Children's Code 603(1) does not apply. Article 603(1) defines "abuse" as:
Louisiana Civil Code Article 3496.1 provides in pertinent part:
An action against a person for abuse of a minor is subject to a liberative prescriptive period of three years. This prescription commences to run from the day that the minor attains majority, and this prescription, for all purposes, shall be suspended until the minor reaches the age of majority.
LSA-R.S. 9:2800.9 provides in pertinent part:
An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, is subject to a liberative prescriptive period often years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended until the minor reaches the age of majority.
(a) The infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child or any other person.
(b) The exploitation or overwork of a child by a parent or any other person.
(c) The involvement of the child in any sexual act with a parent or any other person, or the aiding or toleration by the parent or the caretaker of the child's sexual involvement with any other person or of the child's involvement in pornographic displays, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
Here, Plaintiffs have not alleged any acts of child abuse as described in 603(1)(b) or (c). With regard to 603(1)(a), plaintiffs also have not alleged that any employee of Amtrak subjected the minor child to sexual abuse or assault. Further, the Plaintiff s have not alleged that Amtrak assumed guardianship, custody, control, care or supervision of the minor child. Indeed, all of the alleged acts occurred while the mother had custody and control of the child.
The claims asserted on behalf of Anrielle Mimmitt would be claims for "abuse" if they were asserted against the unnamed passenger who allegedly committed the sexual assault.
Rather, the plaintiffs are alleging that Amtrak was negligent because Amtrak had some duty to prevent the sexual assault allegedly committed by a third person, i.e., an unnamed passenger, and Amtrak breached that duty. Thus, there is no allegation of Article 603(1) "abuse" against Amtrak, and the one year prescriptive period for negligence applies to the claims asserted on behalf of the minor child, Anrielle Mimmitt. Woods v. St. Charles Parish School Board, 750 So.2d 1168 (La.App. 5th Cir. 2000).
Accordingly;
IT IS ORDERED that Defendant's Motion to Dismiss be and is hereby GRANTED.