APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL
DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA,
DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION
''C'', NUMBER 778-527
composed of Judges Robert A. Chaisson, Hans J. Liljeberg, and
John J. Molaison, Jr.
New Orleans Louisiana Saints, L.L.C. ("the
Saints"), seeks review of the trial court's judgment
denying in part its exception of no cause of action. Finding
merit in defendant's arguments, we reverse the trial
court's judgment denying in part the exception of no
cause of action, sustain the exception of no cause of action
as to all claims, and dismiss plaintiff's lawsuit.
December 11, 2017, plaintiff/respondent, Lee Dragna, filed
this lawsuit against the Saints, seeking rescission of his
season ticket sale and other nonpecuniary damages. He
contends that at the September 17, 2017 home game between the
Saints and the New England Patriots, some Saints players, as
a "protest," refused to take the field until after
the National Anthem was played. Mr. Dragna asserts that when
these players entered the field after the National Anthem,
they passed directly in front of his seats and many fans
"booed" and "cursed" at the Saints
players. According to Mr. Dragna, he would not have purchased
his season tickets if he had known that Saints players would
use their games as a platform for protests, and he requested
rescission of the sale. Mr. Dragna also pleaded that he
purchased the tickets for entertainment and is entitled to
non-pecuniary damages for those losses.
January 19, 2018, Mr. Dragna filed a supplemental and
amending petition, adding claims of intentional infliction of
emotional distress, failure to warn of the potential
protests, and violation of his right as a member of a captive
audience to be protected from unwanted speech in the form of
Saints answered the lawsuit and thereafter, on May 1, 2018,
filed an exception of no cause of action, seeking dismissal
of all of Mr. Dragna's claims. After a hearing, the trial
court granted the exception of no cause of action in part as
to Mr. Dragna's claims for rescission of the sale of his
season tickets and dismissed this claim. However, the trial
court denied the exception of no cause of action in part,
finding that Mr. Dragna has sufficiently "listed a cause
of action under intentional infliction of emotional distress,
negligence, and a Captive Audience Doctrine."
writ application, the Saints seek review of the trial
court's denial in part of its exception of no cause of
action, asserting that the facts set forth in the petitions
are insufficient to state a cause of action under the tort
theories pleaded therein.
function of an exception of no cause of action is to test the
legal sufficiency of the petition to determine whether the
law affords a remedy on the facts alleged in the pleading.
Almerico v. Dale, 05-749 (La.App. 5 Cir. 3/28/06),
927 So.2d 586, 591. No evidence may be introduced to support
or controvert the objection that the petition fails to state
a cause of action. La. C.C.P. art. 931. In considering a
trial court's ruling on an exception of no cause of
action, all factual allegations must be accepted as true, and
the exception may be sustained only if no remedy is afforded
at law under the allegations asserted. Ulmer v.
Frisard, 97-5 (La.App. 5 Cir. 4/29/97), 694 So.2d 1046,
petition fails to state a cause of action, but may be amended
to cure the defect, the court shall grant plaintiff leave to
amend. La. C.C.P. art. 934; Badeaux v. Southwest Computer
Bureau, Inc., 05-612 c/w 05-719 (La. 3/17/06), 929 So.2d
1211, 1219. However, when the grounds of objection of no
cause of action cannot be removed, then the plaintiffs need
not be given an opportunity to amend. Id.;
Treasure Chest Casino, L.L.C. v. Parish of
Jefferson, 96-1010 (La.App. 1 Cir. 3/27/97), 691 So.2d
751, 755, writ denied, 97-1066 (La. 6/13/97), 695
order to recover for intentional infliction of emotional
distress, a plaintiff must show: 1) that the conduct of the
defendant was extreme and outrageous; 2) that the emotional
distress suffered by the plaintiff was severe; and 3) that
the defendant desired to inflict severe emotional distress or
knew that severe emotional distress would be certain or
substantially certain to result from his conduct.
Scamardo v. Dunaway, 94-545 (La.App. 5 Cir.
2/15/95), 650 So.2d 417, 419; White v. Monsanto, 585
So.2d 1205, 1209 (La. 1991).
review of the original and amended petitions reveals that Mr.
Dragna has failed to state a cause of action for intentional
infliction of emotional distress. Accepting the alleged facts
as true, the facts alleged do not satisfy the required
elements of this tort. Further, the facts pleaded in the
petitions do not state a valid cause of action for negligence
or "failure to warn," or a violation of the captive
audience doctrine. Mr. Dragna's claims, as stated in his
petitions, are simply not actionable. Based on the facts
alleged, we fail to see how Mr. Dragna can amend his petition
to state a valid cause of action.
we grant the writ application, sustain the exception of no
cause of action as to all claims, ...