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Niang v. Dryades Ymca School of Commerce, Inc.

Court of Appeals of Louisiana, Fourth Circuit

December 4, 2019

ALENDRA NIANG
v.
DRYADES YMCA SCHOOL OF COMMERCE, INC. AND XYZ INSURANCE CO.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10745, DIVISION "L" Honorable Kern A. Reese, Judge

          M. Suzanne Montero Scott L. Sternberg Michael Finkelstein Natalie K. Mitchell STERNBERG NACCARI & WHITE, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Sidney J. Angelle Brant J. Cacamo LOBMAN CARNAHAN BATT ANGELLE & NADER COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          TIFFANY G. CHASE JUDGE

         Alendra 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.

         Facts and Procedural History

         On 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.

         On November 8, 2017, Mrs. Niang filed a petition for damages[1] 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.[2]

         On 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.[3] 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.

         A 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 [].

         By 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 appeal followed.

         Discussion

         The 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 ...


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