FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10745,
DIVISION "L" Honorable Kern A. Reese, Judge
Suzanne Montero Scott L. Sternberg Michael Finkelstein
Natalie K. Mitchell STERNBERG NACCARI & WHITE, LLC
COUNSEL FOR PLAINTIFF/APPELLANT
J. Angelle Brant J. Cacamo LOBMAN CARNAHAN BATT ANGELLE &
NADER COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Daniel L. Dysart, Judge Joy Cossich
Lobrano, Judge Tiffany G. Chase
TIFFANY G. CHASE JUDGE
Brown-Niang (hereinafter "Mrs. Niang") seeks review
of the trial court's February 8, 2019 judgment granting
the motion for partial summary judgment filed by Dryades YMCA
School of Commerce, Inc. (hereinafter "YMCA").
After consideration of the record before this Court, and the
applicable law, the trial court's dismissal of Mrs.
Niang's claim for loss of chance of survival is affirmed.
and Procedural History
March 2, 2017, Mouhamadou Moustapha Niang, Mrs. Niang's
husband, (hereinafter "Mr. Niang") collapsed while
playing basketball at the YMCA. Mrs. Niang, who is certified
in cardiac life support, was present and requested an
automated external defibrillator (hereinafter
"AED") to start resuscitation attempts. YMCA staff
informed Mrs. Niang that an AED machine was not available on
the premises. Mr. Niang was subsequently transported to
University Medical Center where he died on March 11, 2017 of
anoxic encephalopathy secondary to sudden cardiac arrest.
November 8, 2017, Mrs. Niang filed a petition for
damages against YMCA and its insurance company,
asserting survival and wrongful death claims pursuant to La.
C.C. art. 2315.1 and La. C.C. art. 2315.6. Mrs. Niang also
asserted a loss of chance of survival claim, alleging that
YMCA was negligent in failing to have an AED machine on the
premises as required by La. R.S. 40:1137.3.
December 17, 2018, YMCA filed a motion for partial summary
judgment arguing that Mrs. Niang's loss of chance of
survival claim should be dismissed because that cause of
action is not applicable in a non-medical malpractice case.
In opposition to the motion for partial summary judgment,
Mrs. Niang maintained that YMCA's motion was actually a
peremptory exception of no cause of action, presented as a
motion for summary judgment. She asserted that she presented a
valid cause of action and that YMCA's failure to have an
AED machine on the premises, as required by La. R.S.
40:1137.3, resulted in the loss of a chance of survival for
her husband. Mrs. Niang argued that the breach of the
statutory duty imposed on YMCA created a cause of action by
the person injured as a result of that breach. Thus, she
maintains that she has stated a cause of action because she
was alleging that the loss of chance of survival of her
husband was a direct result of YMCA's breach of its
statutory duty. Mrs. Niang rejected the assertion that a
cause of action for loss of chance of survival is limited to
medical malpractice cases.
hearing on the motion for partial summary judgment was held
on February 8, 2019. In providing reasons for its ruling, the
trial court stated:
And let me say this for the record so that it's clear,
obviously this body of law, this particular cause of action,
as it is being sought to be invoked, doesn't exist at
present in this state, pursuant to the Supreme Court's
ruling in … Smith versus State of Louisiana,
676 So.2d 543, 1996. And in that decision the Supreme Court
cited to the Oklahoma Supreme Court case of Hardy versus
South Western Bell Telephone Company, 910 [P.2d] 1024,
also a 1996 case.
But the language that is pertinent to me is the decision only
addresses damages in a medical malpractice case and does not
consider damages for loss of a chance of survival in cases
against other types of tortfeasors. That decision is left for
another day. Well that day has arrived .
judgment dated February 14, 2019, the trial court granted
YMCA's motion for partial summary judgment, dismissing
Mrs. Niang's loss of chance of survival claim. The trial
court's judgment also designated the judgment as a final
appealable judgment pursuant to La. C.C.P. art. 1915. This
matter currently before this Court presents a res
nova issue in Louisiana. As her sole assignment of
error, Mrs. Niang maintains that the trial court erred in
granting YMCA's motion for partial summary judgment,
finding that there is no cause of action ...