AMY THREETON INDIVIDUALLY AND ON BEHALF OF HER DECEASED SON RICHARD THREETON JR v. PROGRESSIVE SECURITY INSURANCE COMPANY PARISH OF POINTE COUPEE AND THE SUCCESSION OF CHRISTOPHER SOILEAU (2025)

The plaintiff appeals a judgment sustaining the defendant's peremptory exception raising the objection of no cause of action and dismissing her wrongful death and survival action. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Amy Threeton, individually and on behalf of her deceased son, Richard L. Threeton, Jr., filed suit on March 4, 2021, arising from a single-vehicle accident that occurred on June 20, 2020. According to the petition, Mr. Threeton was a guest passenger in a truck that was driven by Christopher J. Soileau. Ms. Threeton alleged that after Mr. Soileau failed to stop at the intersection of Jack Torres Road and Louisiana Highway 411 in Pointe Coupee Parish, the truck struck a tree and burst into flames, killing all of the occupants. In her petition, Ms. Threeton named as defendants the Succession of Christopher J. Soileau and Progressive Security Insurance Company, Mr. Soileau's insurer, along with the Parish of Pointe Coupee (“the Parish”).

Ms. Threeton filed an amended petition to add Deville's Lawn Service II, LLC (“Deville's”) and its unnamed insurer and Entergy Louisiana, LLC (“Entergy”) as defendants. According to the amended petition, “growth” blocked or obscured the view of the stop sign at the intersection where the accident occurred. Ms. Threeton alleged that Deville's was liable due to its failure to cut and maintain the “growth” along the Parish's public roads as required by a contract (“the Contract”) Deville's entered into with the Parish. As to Entergy, Ms. Threeton alleged that it was negligent in failing to properly provide and maintain the lighting at the intersection.

Entergy and Deville's each filed a peremptory exception raising the objection of no cause of action. At the hearing on the exceptions, the district court stated that it was overruling the exceptions but also stated that it would allow Ms. Threeton to amend her petition to attach the Contract. The district court then signed a judgment overruling the peremptory exceptions raising the objection of no cause of action. Entergy filed an application for supervisory writs with this court. This court granted the writ with an order reversing the portion of the district court's judgment overruling Entergy's exception raising the objection of no cause of action, sustaining the exception, and dismissing Ms. Threeton's claims against Entergy.² Threeton v. Progressive Security Insurance Co., 2023-0465 (La. App. 1 Cir. 7/28/23), 2023 WL 4840265, *1 (unpublished writ action) (“Threeton I”).

Ms. Threeton unsuccessfully attempted to fax-file a second amended petition which is not in the record. The Clerk of the Eighteenth Judicial District informed this court that because Ms. Threeton fax-filed her second amended petition, but failed to file the original copy of the second amended petition as required by La. R.S. 13:850(B)(1), the Clerk did not include the second amended petition in the record. Because Ms. Threeton failed to comply with the procedures set forth in La. R.S. 13:850(B)(1), her fax-filed petition was without force or effect. See Petit-Blanc v. Charles, 2021-00094 (La. 4/20/21), 313 So.3d 1245, 1247.

Deville's then re-urged its peremptory exception raising the objection of no cause of action, asserting that the original, first, and second amended petitions did not state a cause of action. On January 9, 2024, the district court held a hearing on the exception.³ On February 13, 2024, the district court signed a judgment sustaining Deville's peremptory exception raising the objection of no cause of action and dismissing Ms. Threeton's claims against Deville's with prejudice.⁴ From this judgment, Ms. Threeton appeals.

DISCUSSION

As used in the context of the peremptory exception, a “cause of action” refers to the operative facts that give rise to a plaintiff's right to judicially assert an action against a defendant. Benoist v. Jackson National Life Insurance Co., 2022-0878 (La. App. 1 Cir. 4/14/23), 364 So.3d 1162, 1165. The peremptory exception raising the objection of no cause of action is used to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Benoist, 364 So.3d at 1165. The purpose of the exception raising the objection of no cause of action is not to determine whether the plaintiff will ultimately prevail at trial, but to only ascertain if a cause of action exists. Benoist, 364 So.3d at 1165-66.

No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931. The exception is triable solely on the face of the petition and any attached documents, with the well-pleaded allegations of fact accepted as true. See Agrifund, LLC v. Radar Ridge Planting Co., Inc., 2019-1528 (La. 11/25/19), 283 So.3d 492, 492 (per curiam); Carr v. Sanderson Farms, Inc., 2016-1064 (La. App. 1 Cir. 2/17/17), 215 So.3d 43 7, 440. Louisiana jurisprudence recognizes an exception to the rule against the admission of evidence to support or controvert an exception of no cause of action—when evidence is admitted without objection, it may be considered by the court as enlarging the pleadings. Brubaker v. Houma Police Department, 2023-1330 (La. App. 1 Cir. 10/16/24), 2024 WL 4500088, *5 (unpublished); Midland Funding LLC v. Welch, 2022-0823 (La. App. 1 Cir. 2/24/23), 361 So.3d 1022, 1027 n.5.

In reading a petition to determine whether a cause of action has been stated, it must be interpreted, if possible, to maintain the cause of action instead of dismissing the petition. Christian Schools, Inc. v. Louisiana High School Athletic Association, 2020-0762 (La. App. 1 Cir. 5/18/22), 342 So.3d 1068, 1074, writ denied, 2022-01015 (La. 10/12/22), 348 So.3d 78. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding a cause of action has been stated. Christian Schools, Inc., 342 So.3d at 1074. However, the petition must set forth material facts upon which the cause of action is based. See La. C.C.P. art. 891(A); Christian Schools, Inc., 342 So.3d at 1074. The correctness of conclusions of law is not conceded for the purposes of a ruling on an exception raising the objection of no cause of action. Christian Schools, Inc., 342 So.3d at 1075.

The burden of demonstrating that a petition fails to state a cause of action is on the mover. Benoist, 364 So.3d at 1166. Because the exception raises a question of law and the district court's decision is based only on the sufficiency of the petition, a judgment sustaining a peremptory exception raising the objection of no cause of action is reviewed by an appellate court de novo. Benoist, 364 So.3d at 1166.

The record in this case does not contain the second amended petition that Ms. Threeton unsuccessfully attempted to file. Because the second amended petition is not in the record, we are limited to the facts alleged in Ms. Threeton's first amended petition to determine if the district court properly sustained the exception raising the objection of no cause of action. However, at the hearing on the exception, Deville's offered, filed, and introduced into evidence its memorandum in support of its exception to which it attached the following: Ms. Threeton's original, first, and second amended petitions; the Contract; and the entire deposition of Nathan Cobb, the Parish's Director of Public Works and Utilities. Ms. Threeton did not object to the admission, and both parties discussed the Contract and the deposition during the hearing. Therefore, the court properly considered these exhibits as enlarging the pleadings. See Brubaker, 2024 WL 4500088 at *5 (unpublished); Midland Funding LLC, 361 So.3d at 1027 n.5. Thus, in reviewing whether the district court properly sustained the peremptory exception raising the objection of no cause of action, we will only consider the allegations in the first amended petition, the Contract, and Mr. Cobb's deposition. Although the second amended petition was offered and filed into evidence, because it was never properly filed in the record, we will not consider it as evidence enlarging the pleadings.

In her first amended petition, Ms. Threeton alleged that the Contract between Deville's and the Parish was executed on April 10, 2019, and covered the time period from April 15, 2019 until April 14, 2022. According to the petition, the Contract stated that Deville's “shall cut and maintain grass and other growth along the edges of all parish public roads situated within [the Parish] during the [C]ontract period.” Ms. Threeton alleged that at the time of the accident, Deville's was responsible for the maintenance of grass and other growth alongside Jack Torres Road, the parish public road where the accident occurred. In the first amended petition, she further alleged that “at the time of the incident, there was ‘growth’ on the side of Jack Torres [Road] ․ which blocked and/or obscured the view of the stop sign located at the intersection․” Ms. Threeton noted that, in her original petition, she alleged that the Parish “failed to properly maintain and/or reduce any obstructions which hinder traveling and a motorist's ability to properly view and/or observe signage.” She specifically alleged that Deville's was liable for the following, in pertinent part:

a) Failing to properly maintain Jack Torres Road at Louisiana Highway 411;

b) Failing to properly maintain and/or reduce any obstructions which hinder traveling and a motorist's ability to properly view and/observe signage;

c) Failing to abide by the requirements in [the Contract];

d) Failing to conform to the standard of care owed to motorists in [the Parish]. ․

The Contract stated that “[t]his work shall be in accord with [the Parish's] specifications” and that Deville's “shall perform the work (“cuttings”) four (4) times per year during the contract period.” The Contract required Deville's to provide sufficient equipment, including at a minimum three tractors, two mowers, and one side boom, and the work included cutting both sides of ditches where applicable. Additionally the Contract provided that the Parish's Director of Public Works or his designee would observe and inspect Deville's work and that the work would be performed to the Parish's satisfaction. Furthermore, the Contract stated that the Director of Public Works “will decide all questions which may arise as to the quality or acceptability of work performed, including manner of performance and rate of progress.”

The Contract also contained safety, insurance, and indemnification provisions. The safety provision stated that the work exposed the general public to hazards and that Deville's “shall conduct its operations in a manner such that the safety and convenience of the public shall be paramount.” The Contract stated that the Parish provided Deville's with guidelines to follow. According to the Contract, if the Parish determined the minimum safety standards were not being met, it reserved the right to stop Deville's from working or order any piece of equipment to be taken off the project. The “Insurance/Damage” provision required Deville's to have public liability and worker's compensation insurance. It further stated that Deville's “shall be responsible for any damage to private or public property caused by its operations.” The Contract required Deville's to indemnify the Parish and its officers, agents, and employees from any claim to any party or third person, including those claims for tort or breach of contract by reason of “any act, omission, operation or work of” Deville's, its agents, and employees.

In his deposition, Mr. Cobb testified that the Parish was responsible for signage on parish roads and for trimming trees so that street signs were visible. When asked about if it would be Deville's responsibility if the vegetation on the side of a roadway became too excessive, Mr. Cobb testified that it would be the Parish's responsibility to fix. He further testified that the Parish would direct Deville's to address it.

On appeal, Ms. Threeton contends that she set forth a cause of action against Deville's for negligence pursuant to La. C.C. arts. 2315 and 2316 and for strict liability under La. C.C. art. 2317. She contends that as the entity responsible for maintaining “growth” on the side of parish roads under the Contract, Deville's was liable for its alleged failure to remove the vegetation blocking the road signage at the intersection where the accident took place. She argues that Deville's had custody of the growth and signage under La. C.C. art. 2317.

Louisiana Civil Code article 2315(A) provides, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Louisiana Civil Code article 2316 states, “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” Louisiana Civil Code article 2317 states, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act ․ of the things which we have in our custody. This, however, is to be understood with the following modifications.” Thus, we will also consider La. C.C. art. 2317.1, which provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In determining whether liability exists under the traditional duty/risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of duty element); and, (5) proof of actual damages (the damages element). Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 3 59 So.3d 467, 473. Additionally, a claim under La. C.C. art. 2317.1 requires proof that the defendant had actual or constructive knowledge of the defect. Farrell, 359 So.3d at 473. If a plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Dickson-Bruno v. Mandeville Marketplace Investors NO, LLC, 2023-1328 (La. App. 1 Cir. 12/27/24), __So.3d __, __.

Whether a claim arises in negligence under La. C.C. art. 2315 or in strict liability under La. C.C. art. 2317.1, the plaintiff bears the burden of showing that: (1) the defendant had custody of the thing that caused the plaintiff's injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the defendant had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiff's injuries. Jones v. State, 2023-1236 (La. App. 1 Cir. 11/4/24), 2024 WL 4661803, *3 (unpublished).

The existence of a duty is a question of law. Farrell, 359 So.3d at 473. The court's inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principals of fault) to support the claim that the defendant owed her a duty. Farrell, 359 So.3d at 473. While Ms. Threeton alleged that Deville's failed to properly reduce any obstructions which would impede a motorist's view of signage, she also alleged that the Parish failed to do so. The jurisprudence and statutes provide a duty for the parish to maintain its public roadways in a reasonably safe condition and remedy conditions that make the roadways unsafe. See Naquin v. State Farm Automobile Insurance Co., 2020-1062 (La. App. 1 Cir. 4/16/21), 323 So.3d 418, 421, writ denied, 2021-00829 (La. 10/5/21), 325 So.3d 380; Hebert v. Rapides Parish Police Jury, 2006-2001 (La. 4/11/07), 974 So.2d 63 5, 643; Nicholes v. St. Helena Parish Police Jury, 604 So.2d 1023, 1027 (La. App. 1 Cir.), writ denied, 605 So.2d 1378 (La. 1992). The construction, maintenance, and operation of the parish roads and their appurtenances are under the administration of each parish governing authority. Hudspeth v. Allstate Insurance Co., 2009-0120 (La. App. 1 Cir. 7/17/09), 2009 WL 2136713, *5. Local, municipal, and parish authorities are responsible for placing and maintaining traffic control devices upon roadways within their jurisdiction. La. R.S. 32:235(B); Sharpley v. City of Baton Rouge, 1995-0574 (La. App. 1 Cir. 11/9/95), 665 So.2d 21, 23. However, there is no corresponding statutory or jurisprudential authority for a duty owed to the traveling public by Deville's in its role as a contractor with the Parish to maintain “growth” affecting the sign at the intersection.⁵ This court has held that in situations where work is being performed on state highways by a contractor, DOTD may not contract away its responsibility to the general public to maintain the highways in a reasonably safe condition, regardless of its agreement with the contractor. Crawford v. Diamond B. Construction, L.L.C., 2009-0226 (La. App. 1 Cir. 9/11/09), 2009 WL 3162061, *3 (unpublished), writs denied, 2009-2219,2009-2325 (La. 12/18/09), 23 So.3d 948; Ratliff v. State ex rel. Department of Transportation and Development, 2002-0733 (La. App. 1 Cir. 3/28/03), 844 So.2d 926, 935-36, writ denied, 2003-1739 (La. 10/10/03), 855 So.2d 350. In this case, the facts as alleged in Ms. Threeton's petition provide no statutory or jurisprudential basis for a duty owed to Ms. Threeton or her son by Deville's to maintain the growth that allegedly impeded the view of the stop sign.⁶ Therefore, the only remaining possible source of such a duty is the Contract between the Parish and Deville's.

In considering whether Ms. Threeton set forth a cause of action arising from the Contract, we initially note that, as she alleged in the petition, the Contract was between the Parish and Deville's. No action for breach of contract may lie in the absence of privity of contract between the parties, and neither Ms. Threeton nor her son were parties to the Contract. See Pearl River Basin Land and Development Co. v. State ex rel. Governor's Office of Homeland Security and Emergency Preparedness, 2009-0084 (La. App. 1 Cir. 10/27/09), 29 So.3d 589, 592. Therefore, in order to recover pursuant to the contract, Ms. Threeton must allege facts that would support a finding of a stipulation pour autrui, which is where a contracting party stipulates a benefit for a third person called a third-party beneficiary. See La. C.C. art. 1978. In determining whether contracting parties have provided a benefit for a third party, the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear because a stipulation pour autrui is never presumed. See Landco Construction, LLC v. Precision Construction & Maintenance, LLC, 2019-0403 (La. App. 1 Cir. 11/15/19), 290 So.3d 1185, 1193, writ denied, 2019-01977 (La. 2/10/20), 292 So.3d 67; Paul v. Louisiana State Employees’ Group Benefit Program, 1999-0897 (La. App. 1 Cir. 5/12/00), 762 So.2d 136, 140. Additionally, to establish a stipulation pour autrui, the third-party relationship must form the consideration for a condition of the contract, and the benefit may not be merely incidental to the contract. Landco Construction, 290 So.3d at 1193. The Louisiana Supreme Court has held that while citizens may benefit from municipal contracts, it does not necessarily follow that a stipulation pour autrui exists in their favor. Long v. City of Shreveport, 151 La. 423, 428, 91 So. 825, 827 (1921); Albe v. City of New Orleans, 2012-0073 (La. App. 4 Cir. 7/5/12), 97 So.3d 583, 589, writ denied, 2012-1813 (La. 11/2/12), 99 So.3d 678.

Considering the allegations in Ms. Threeton's first amended petition as true and also considering the Contract, we find she failed to state a cause of action for a stipulation pour autrui, as the Contract Deville's entered into did not manifest a clear intention to benefit Ms. Threeton or her son. See Landco Construction, 290 So.3d at 1193. The provisions that Ms. Threeton relies on to establish a stipulation pour autrui, specifically the safety, insurance, and indemnification provisions, fail to do so. Those provisions concern claims arising while Deville's was actively performing its contract as Deville's was required to safely complete its work as a lawn care service.⁷ Therefore, Ms. Threeton has not set forth a cause of action for breach of contract.⁸ Accordingly, the peremptory exception raising the objection of no cause of action filed by Deville's was properly sustained.⁹

CONCLUSION

For the foregoing reasons, the February 13, 2024 judgment of the district court sustaining the peremptory exception raising the objection of no cause of action and dismissing the claims of Amy Threeton, individually and on behalf of her deceased son, Richard L. Threeton, Jr., against Deville's Lawn Service II, LLC, with prejudice is affirmed. Costs of this appeal are to be paid by Amy Threeton.

AFFIRMED.

FOOTNOTES

2.   The matter was remanded to the district court with instructions to allow Ms. Threeton to amend her petition to remove the grounds of the objection if possible. Threeton I, 2023 WL 4840265 at * 1. When Ms. Threeton failed to amend her petition, Entergy moved for a judgment of dismissal with prejudice, which the district court granted on November 22, 2023.

3.   Deville's entitled its pleading, in pertinent part, as a re-urged peremptory exception or, in the alternative, a motion for summary judgment. The district court did not rule upon the motion for summary judgment, and it is not at issue on this appeal.

4.   Deville's is the last remaining defendant in the suit because Progressive and the Succession of Mr. Soileau and the Parish were dismissed with prejudice from the suit pursuant to joint motions of the parties. The Parish also dismissed its cross claim it had filed against Deville's seeking indemnification if it was found liable to Ms. Threeton.

5.   In the part of this court's writ action reversing the district court's denial of Entergy's peremptory exception raising the objection of no cause of action concerning Ms. Threeton's negligence and strict liability claims, this court stated:There is no authority to support a cause of action for negligence against Entergy Louisiana, LLC, for its failure to provide street lighting, because Entergy Louisiana, LLC, is not required to provide street lighting as part of its general “public utility service,” and without a duty there can be no liability. Burdis v. Lafourche Parish Police Jury, 542 So.2d 117, 119 (La. App. 1st Cir. 1989).Threeton I, 2023 WL 4840265 at *1.

6.   We also note that Ms. Threeton did not allege that Deville's was the owner or custodian of the stop sign at the intersection.

7.   Because the words of the contract are clear, we may not consider the deposition testimony to determine the parties’ intent. See La. C.C. art. 2046; Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012-2055 (La. 3/9/13), 112 So.3d 187, 192. Alternatively, even if the deposition testimony is considered, it does not establish that Deville's assumed any duty owed by the Parish, nor could it as a matter of law.

8.   In the part of this court's writ action reversing the district court's denial of Entergy's peremptory exception raising the objection of no cause of action concerning Ms. Threeton's contractual claims, this court stated:We further find no basis for strict liability under La. Civ. Code art. 2317 because plaintiff ․ has not alleged any facts showing a contractual relationship existed between Entergy Louisiana, LLC and the decedent, her son, such that Entergy Louisiana, LLC would have a contractual obligation to provide street lighting to him. Shafouk Nor El Din Hamza v. Bourgeois, 493 So.2d 112, 116-17 (La. App. 5 Cir.), writ denied, 497 So.2d 1013 (La. 1986). We also find no facts in the petition to support a cause of action in contract because the decedent was not a party to this contract, nor has plaintiff alleged facts that would support the finding of a stipulation pour autrui. Burdis, 542 So.2d at 118-19.Threeton I, 2023 WL 4840265 at *1.

9.   Ms. Threeton did not request an opportunity to amend her petition pursuant to La. C.C.P. art. 934 to cure any deficiencies; therefore, that issue is waived. See Ratcliff Recovery Services, LLC v. City Place Investors, LLC, 2024-0679 (La. App. 1 Cir. 12/27/24), __So.3d __, __.

STROMBERG, J.

Calloway, J., concurs in the result