Opinion
24-C-356 24-C-390
12-30-2024
DEVIN TUCKER v. SEASIDE BEHAVIORAL CENTER, LLC v. DEVIN TUCKER v. SEASIDE BEHAVIORAL CENTER, LLC AND EAST JEFFERSON GENERAL HOSPITAL IN RE SEASIDE BEHAVIORAL CENTER, LLC
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SHAYNA BEEVERS MORVANT, DIVISION "M", NUMBER 829-149
Panel composed of Judges Marc E. Johnson, Scott U.Schlegel, and Timothy S. Marcel
SUSAN M. CHEHARDY CHIEF JUDGE FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST JOHN J. MOLAISON, JR. SCOTT U.SCHLEGEL TIMOTHY S. MARCEL JUDGES
WRIT DENIED
Relators, Seaside Behavioral Center, LLC ("Seaside") and East Jefferson General Hospital ("EJGH"), both seek review of the 24th Judicial District Court's May 29, 2024 judgment overruling their Peremptory Exceptions of No Cause of Action. Plaintiff and Respondent, Devon Tucker, filed a lawsuit for damages in 2022 alleging Seaside and EJGH were jointly, severally, and/or in solido liable and responsible for his injuries and damages sustained as a result of his fall from a third-floor window of Seaside Behavioral Center, a psychiatric facility located inside EJGH, in December 2020. Mr. Tucker is diagnosed with schizophrenia and bipolar disorder. He was midway through a mandatory psychiatric 10-day hold when the incident occurred.
LHEPA provides:
During a state of public health emergency, no health care provider shall be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.La R.S. 29:771 (B)(2)(c)(i). "Health care providers" are defined in LHEPA as: "a clinic, person, corporation, facility, or institution which provides health care or professional services by a physician, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, psychologist, or psychiatrist, and any officer, employee, or agent thereof acting in the course and scope of his service or employment." La. R.S. 29:762(4).
Seaside alleged in its memorandum in support of its exception that Mr. Tucker's Petition for Damages "does not specifically plead nor allege sufficient facts that any Defendant acted grossly negligent or committed an intentional tort, as required by the Louisiana Health Emergency Powers Act ("LHEPA"). Seaside argues that it cannot be held civilly liable, as a matter of law, as Mr. Tucker made no allegations that Seaside engaged in gross negligence or willful misconduct. EJGH also maintained in its supporting memorandum that Mr. Tucker failed to state a cause of action because his petition contains no allegations of gross negligence or willful conduct; therefore, the hospital is entitled to immunity under LHEPA.
Mr. Tucker's Opposition Response to Seaside's Peremptory Exception noted that Seaside never filed an answer although the case has been in litigation for nearly two years. He argued that LHEPA does not provide absolute immunity, and that the qualified immunity afforded under La. R.S. 29:771 (B)(2)(c)(i) is an affirmative defense "'that may only be raised as an affirmative defense in an answer to a petition'", citing Sebble on Behalf of Est. of Brown v. St. Luke's #2, LLC, 22-0620 (La.App. 4 Cir. 3/6/23), 358 So.3d 1030, 1044-45. Mr. Tucker contends that, because absolute immunity is not afforded under the statute, the petition by itself cannot be used to determine whether he has a cause of action. Further, Mr. Tucker argues that, at this point in the litigation, to allow Seaside to assert qualified immunity as an affirmative defense via an exception of no cause of action would be unduly prejudicial and a "trial by ambush." He avers that he was not required to specifically allege gross negligence since the "theory of the case" doctrine has been abolished. Last, if the district court found that his petition failed to state a cause of action, he averred that he should be allowed to amend his petition and remove the grounds of the objection pled by the peremptory exception under La. C.C.P. art. 934.
EJGH then filed a reply memorandum. It argued that it properly plead qualified immunity as an affirmative defense, citing Welch v. United Med. Healthwest-New Orleans, L.L.C., 21-684 (La.App. 5 Cir. 8/24/22), 348 So.3d 216, 222. EJGH further argued that that none of the facts plead would substantiate claims that EJGH's actions were grossly negligent or willful, and allowing Mr. Tucker to amend his petition would be a "vain and useless act."
Upon de novo review, we find that the district court did not err when it overruled Defendants' peremptory exceptions. See Scanlan v. MBF of Metairie, LLC, 21-323(La.App. 5 Cir. 3/23/22), 337 So.3d 562, 565. We find that Mr. Tucker's petition states a valid cause of action on its face. Whether the plaintiff can prove the allegations set forth in the petition is not determinative of the exception of no cause of action, and the court may not go beyond the petition to the merits of the case. Id.
Further, Defendants' argument that LHEPA provides them with qualified immunity against Mr. Tucker's claims goes to the merits of the case, which is an affirmative defense. "An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff's demand on its merits." Green, et al. v. Louisiana Military Department, et al., 24-219 (La.App. 5 Cir. 6/28/2024) (unpublished writ disposition), citing Woodlands Dev., L.L.C. v. Regions Bank, 12754 (La.App. 5 Cir. 5/28/14), 141 So.3d 357, 363, writ denied, 14-1732 (La. 11/7/14), 152 So.3d 179. In deciding an exception of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition." Welch, 348 So.3d at 221. "A court cannot consider assertions of fact referred to by the various counsel in their briefs that are not pled in the petition." Id. "No evidence is admissible on an exception of no cause of action and the exception must be overruled unless the allegations affirmatively establish that the plaintiff has no cause of action under all facts admissible under the pleadings and unless the allegations exclude every reasonable hypothesis of facts other than those showing the plaintiff cannot recover, as a matter of law, on any ground whatsoever." Bd. of Examiners of Certified Shorthand Reporters Through Juge v. Neyrey, 542 So.2d 56, 64 (La.App. 4th Cir. 1989), writ denied, 548 So.2d 1231 (La. 1989), citing Geist v. Martin Decker Corporation, 313 So.2d 1 (La.App. 1st Cir.1975).
Therefore, we agree with the district court's finding that a motion for summary judgment is the proper procedure for addressing Defendants' asserted affirmative defenses of qualified immunity. Even if the district court had chosen to consider the affirmative defenses of qualified immunity, which were improperly plead as peremptory exceptions of no cause of action, as motions for summary judgment pursuant to La. C.C.P. art. 1005 as we did in Welch, those motions for summary judgment would be denied because there was no evidence.
Accordingly, for the reasons set forth within, Defendants' writ applications are denied.
MEJ
SUS
TSM