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Nizamutdinova v. Fraternity

Court of Appeals of Louisiana, Third Circuit

October 2, 2019

FARIDA SHAVKATOVA NIZAMUTDINOVA, THROUGH HER LEGAL REPRESENTATIVE RUPINDER JEET SINGH
v.
KAPPA SIGMA FRATERNITY, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2017-5360, DIVISION J HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE.

          Thomas Reginald Hightower, Jr. Patrick Wade Kee COUNSEL FOR: Defendant/Appellee - Camp Sledge as Agent for Kappa Sigma Fraternity and Camp Sledge

          Travis Q. Besline Mickey Stephens deLaup Mickey S. deLaup, APLC COUNSEL FOR: Defendant/Appellee - Manny Duhon as agent for Kappa Sigma Fraternity and Manny Duhon

          Bruce David Beach Keith Saverio Giardina Law Offices of Keith S. Giardina COUNSEL FOR: Defendant/Appellee - Alex Frederick as Agent for Kappa Sigma Fraternity and Alex Frederick

          Melvin Alan Eiden Rabalais & Hebert, LLC COUNSEL FOR: Defendants/Appellees - Kappa Sigma Fraternity, Kappa Sigma Fraternity-Epsilon-Chi Housing Corp., Kappa Sigma Fraternity- Epsilon-Chi Chapter, Kappa Sigma Frat and Kappa Sigma Frat- Epsilon-Chi Chapter, and Kappa Sigma Frat-Epsilon-Chi Housing Corp.

          J. Neale deGravelles Benjamin B. Treuting deGravelles, Palmintier, LLP Plaintiff/Appellant - Farida Shavkatova Nizamutdinova, Through Her Legal Representative Rupinder Jeet Singh

          Douglas E. Fierberg Jonathon N. Fazzola Fierberg Nat'l Law Group, PLLC COUNSEL FOR: Plaintiff/Appellant - Farida Shavkatova Nizamutdinova, Through Her Legal Representative Rupinder Jeet Singh

          Lauren Begneaud Caffery, Oubre, Campbell & Garrison, L.L.P. COUNSEL FOR: Defendant/Appellee - Imaan Ouedrago, Agent for Kappa Sigma and Imaan Ouedrago

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

          Thibodeaux, Chief Judge.

         Plaintiff, Farida Shavkatova Nizamutdinova, [1] filed a wrongful death and survival action arising out of the death of her son, Rustam Nizamutdinova, who was fatally struck by a car driven by Michael Gallagher, an allegedly severely sleep-deprived pledge of the Kappa Sigma Fraternity-Epsilon-Chi Chapter ("Epsilon-Chi") at the University of Louisiana at Lafayette ("ULL"). Named as defendants, among others, were Camp Sledge, Imaan Ouedrago, [2] Manny Duhon, and Alex Frederick, individually and in their official capacities as members of the Epsilon-Chi's Executive Board (collectively "Individual Defendants"); Epsilon-Chi; and Kappa Sigma Fraternity ("Kappa Sig"). In response, the Individual Defendants each filed peremptory exceptions of no cause of action.

         The trial court granted all four exceptions, outright dismissing Plaintiff's suit against Mr. Sledge, individually ("Sledge Judgment"). However, the trial court allowed Plaintiff seven days to amend her petition as to Mr. Ouedrago, Mr. Duhon, and Mr. Frederick. After Plaintiff timely amended her petition, the trial court, upon their motions, dismissed, with prejudice, Plaintiff's claims against Mr. Ouedrago ("Ouedrago Judgment"), Mr. Fredrick ("Fredrick Judgment"), and Mr. Duhon ("Duhon Judgment"), individually. It reasoned that no individual duty existed to Mr. Gallagher.

         Plaintiff separately appealed all four judgments. In docket number 18-886, Plaintiff appeals the Sledge Judgment, and in docket numbers 18-888, 19-80, and 19-82, Plaintiff appeals the Ouedrago Judgment, the Frederick Judgment, and the Duhon Judgment, respectively. All the appeals have been consolidated for briefing and argument purposes.

         Under our de novo review of the record, we find the trial court erred in dismissing Plaintiff's suit against Mr. Sledge without first allowing Plaintiff to amend her petition in accordance with La.Code Civ.P. art. 934. We further find that Plaintiff's amended petition alleges facts sufficient to state causes of action in negligence against the remaining Individual Defendants in their individual capacities. Accordingly, we reverse the judgments of the trial court.

         I.

         ISSUES

         Plaintiff raises the following issues for this court's review:

(1) whether the Trial Court erred in determining no "individual duty" existed, and no cause of action was stated, as to Defendant-Appellee Sledge.
(2) whether the Trial Court abused its discretion and/or committed manifest error when it dismissed, with prejudice, Plaintiff-Appellant's claims against Defendant-Appellee Sledge, individually, without first affording Plaintiff-Appellant an opportunity to amend pursuant to La.Code Civ.P. art. 934.
(3) whether the Trial Court erred in determining no "individual duty" existed, and no cause of action was stated, as to Defendant-Appellee Ouedrago.
(4) whether the Trial Court erred in determining no "individual duty" existed, and no cause of action was stated, as to Defendant-Appellee Duhon.
(5) whether the Trial Court erred in determining no "individual duty" existed, and no cause of action was stated, as to Defendant-Appellee Frederick.

         II.

         FACTS AND ...


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