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Cosey v. Flight Academy of New Orleans, LLC

Court of Appeals of Louisiana, Fourth Circuit

October 25, 2017

KHIRY COSEY ON BEHALFOF HER MINOR CHILDREN, CORBIN HILLIARD AND ALLYSSA HILLIARD, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REGINALD HILLIARD, JR; TIARA LIGGINS ON BEHALF OF HER MINOR CHILD, TAKHIREE HILLIARD, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REGINALD HILLIARD, JR., TUKEYA JARVIS INDIVIDUALLY AND ON BEHALF OF THOMAS HILLIARD, AND DOROTHY JARVIS
v.
FLIGHT ACADEMY OF NEW ORLEANS, LLC, JAZZ AVIATION, LLC, QBE INSURANCE CORPORATION, CHRISTIANSEN AVIATION, INC., ABC INSURANCE COMPANY, SIGNATURE FLIGHT SUPPORT CORPORATION, ALLIANZ GLOBAL CORPORATE & SPECIALTY SE, THE ESTATE OF JAMES BIONDO, AND DEF INSURANCE COMPANY

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-09317, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

          Roderick "Rico" Alvendia Jeanne K. Demarest Kurt A. Offner ALVENDIA, KELLY & DEMAREST, L.L.C., Cleo Fields THE FIELDS LAW FIRM, LLC, Ike Spears ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT

          Leo Raymond McAloon, III Megan A. Cambre GIEGER, LABORDE & LAPEROUSE, Cyril Gros Lowe, Jr. Wilson Elser Moskowitz Edelman & Dicker, LLP, Darrell K. Cherry DEUTSCH KERRIGAN, LLP COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew Woods, Judge Terrel J. Broussard, Pro Tempore

          Regina Bartholomew Woods, Judge.

         In this negligence case, Dorothy Jarvis, Tukeya Jarvis, and Thomas Hilliard (collectively, "Appellants") appeal the district court's grant of the peremptory exception of no cause of action as to their claim for bystander damages under La. C.C. art. 2315.6 filed by Defendant, the Estate of James Biondo ("Defendant"). Defendant filed the exception, along with dilatory exceptions of vagueness and ambiguity, as well as lack of procedural capacity, in response to Appellants' petition for damages, in which Appellants sought bystander damages. On appeal, Appellants assert that their petition sets forth a valid bystander claim for each of them. Because we find that Appellants' petition fails to state a cause of action for bystander relief, but that factual deficiencies in the petition warrant its amendment, we vacate, as to allow Appellants to amend their petition for damages, and remand for further proceedings.

         PROCEDURAL HISTORY

         On September 15, 2016, Appellants filed suit in Orleans Parish Civil District Court against various defendants based on Mr. Biondo's failure to properly inspect, operate, pilot, navigate, and/or take such reasonable action to prevent the airplane crash, as well as the infliction of mental anguish and emotional distress pursuant to La. C.C. art. 2315.6, commonly referred to as bystander damages.

         On November 24, 2016, Defendant filed peremptory exceptions of no cause of action and no right of action, and dilatory exceptions of vagueness and ambiguity, as well as lack of procedural capacity as to Appellants' claims pursuant to La. C.C. art. 2315.6. On January 20, 2016, the district court granted the exception of no cause of action and dismissed, with prejudice, all claims brought by Appellants. On January 30, 2017, the district court signed a Judgment on Exception and ordered all claims of Appellants dismissed with prejudice. In granting the exception of no cause of action, the district court dismissed as moot the exceptions of no right of action and vagueness. It is from this judgment that Appellants now appeal.

         FACTUAL BACKGROUND[1]

         On August 27, 2016, Briana Davis ("Ms. Davis") made a reservation for herself and her boyfriend, Reginald Hilliard, Jr. ("Decedent"), with Flight Academy of New Orleans, LLC and/or Jazz Aviation, LLC for a "Big Easy Lights at Night" aerial tour of the City of New Orleans. Later that same evening, Ms. Davis and Decedent departed the New Orleans Lakefront Airport for the aerial tour in a Cessna 172, which was piloted by James Biondo ("Mr. Biondo"). At the completion of the tour, as the plane was approaching the runway, the plane disappeared from the airport's radar and crashed into Lake Pontchartrain, sank underwater, and caused the eventual death of Decedent.

         Appellants allege that they came upon the scene of the subject crash of the Cessna 172 immediately after and witnessed the retrieval of the subject aircraft and the removal of Decedent.

         STANDARD OF REVIEW

         Questions of law are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine, 2010-1342, p. 4 (La. 3/15/11), 62 So.3d 36, 39. An exception of no cause of action raises a question of law; therefore, a district court's judgment relating to this exception is reviewed by the appellate court de novo. Ramey v. DeCaire, 2003-12999, p. 7 (La. 03/19/04), 869 So.2d 114, 118. "The pertinent question is whether, in the light most favorable to plaintiff and with every doubt ...


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