IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-30324
__________________________
THERESA J. FELTON,
Plaintiff-Appellant
versus
GREYHOUND LINES, INC.,
Defendant-Appellee
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Louisiana
___________________________________________________
March 17, 2003
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-appellant Theresa J. Felton (“Felton”) fell while
attempting to get off a bus belonging to defendant-appellee
Greyhound Lines, Inc. (“Greyhound”). She sued Greyhound in state
court for her resulting damages. Greyhound removed the case to
district court on grounds of diversity, after which the court
granted Greyhound’s motion for summary judgment and dismissed
Felton’s case. We reverse and remand.
I. Facts and Proceedings
Felton boarded a Greyhound bus in LaPlace, Louisiana to travel
to Shreveport, Louisiana. At about 6:00 p.m., the bus stopped in
Alexandria, Louisiana. The bus driver got off immediately and left
the vicinity of the bus. Felton, an elderly woman, then tried to
get off the bus by herself, but fell down the steps and broke her
hip. She underwent surgery on her hip and rehabilitation
afterwards. Felton initially testified in her deposition that she
fell from the bottom step, but later testified, inconsistently,
that she fell from the top step.
Felton sued Greyhound in Louisiana state court, alleging that
Greyhound was liable in negligence for failing to provide a stool
at the bottom of the steps and vicariously liable for the failure
of its driver to position himself at the exit to assist her.
Greyhound removed the case to the district court, and then filed a
motion for summary judgment. Relying largely on Cary v. New
Orleans Public Service, Inc.,1 the district court granted that
motion, holding that Greyhound neither had a duty to assist Felton,
nor could it have been the cause-in-fact of Felton’s injury because
she fell from the top step of the bus.
II. Analysis
A. Standard of Review
In reviewing the district court’s grant of summary judgment,
1
250 So.2d 92 (La. Ct. App. 4th Cir. 1971).
2
we apply the same standard used by that court.2 Summary judgment
is only proper if there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law.3 To
determine whether there are any material factual issues, we must
consult the applicable substantive law to define which issues are
material, and then consider the evidence relevant to those issues
in the light most favorable to the non-moving party.4
B. Subject-Matter Jurisdiction
As federal subject matter jurisdiction in this case is based
on diversity of citizenship, Louisiana tort law governs the
merits.5 Diversity jurisdiction requires (1) complete diversity of
the parties and (2) an amount-in-controversy that exceeds $75,000.
6
Complete diversity is obviously met here because Felton is a
citizen of Louisiana and Greyhound is a Delaware Corporation with
its principal place of business in Dallas, Texas. Presence of the
jurisdictional amount is less obvious.
Neither the parties nor the trial court questioned
2
Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th Cir.
1994).
3
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
4
Harper, 21 F.3d at 600.
5
28 U.S.C. § 1332 (2000).
6
28 U.S.C. § 1332(a) (2000).
3
jurisdiction, but we are required to do so on our own. Whether the
amount-in-controversy burden is met here is not completely clear,
but is still likely under these facts. The uncertainty arises
because Louisiana prohibits plaintiffs from claiming a specific
dollar amount of damages. In De Aguilar v. Boeing Company, we held
that “[w]hen the plaintiff’s complaint does not allege a specific
amount of damages, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy” is
adequate.7 To satisfy the preponderance standard, the removing
defendant may support federal jurisdiction either by establishing
that it is “facially apparent” that the claims probably exceed
$75,000 or by establishing the facts in controversy in the removal
petition or an accompanying affidavit to show that the amount-in-
controversy is met.8
Applying this standard in Luckett v. Delta Airlines, Inc., we
found that a complaint’s allegations of property damage, travel
expenses, emergency ambulance trip, six days in the hospital, pain
and suffering, humiliation, and a temporary inability to do
housework, (all because of heart failure after the airline lost her
luggage, which contained her heart medication), combined to meet
the jurisdictional requirement even though no amount of damages was
7
De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993).
8
Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir.
1999) (citation omitted).
4
pled.9 By contrast, in Simon v. Wal-Mart Stores, Inc., we held
that damages comprising only an injured shoulder, bruises,
abrasions, unidentified medical expenses, and loss of consortium
did not meet the amount-in-controversy requirement.10 Finally, we
have reiterated that removal “cannot be based simply upon
conclusory allegations.”11
In this case, Greyhound’s Notice of Removal indicates that
Felton “suffered severe debilitating injuries including a
subtrochanteric fracture of the right hip requiring an open
reduction and an internal fixation with a 75 millimeter lag screw
and 140-degree six hole plate.” Greyhound also repeated from
Felton’s complaint that she was confined to a rehabilitation
hospital after surgery. Finally, Greyhound noted that Felton had
incurred “over $40,000 in medical bills relating to this incident.”
On the basis of these facts, Greyhound alleged that the amount in
controversy “reasonably exceeds $75,000.”
There is no indication when Felton’s counsel advised Greyhound
of the $40,000 in medical expenses, but it was likely after the
suit had been commenced. The accident occurred on February 18,
9
Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir.
1999).
10
193 F.3d at 851.
11
Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.
1995).
5
2000, and the complaint was filed on February 12, 2001, almost a
year later. Given this lapse in time, we can reasonably conclude
that the $40,000 figure includes the surgery undergone by Felton to
mend her hip as well as some of the costs of rehabilitation,
thereby making less certain the conclusion that plaintiff’s
expenses and equitable relief were greater than $75,000.
Nonetheless, in addition to compensation for a plaintiff’s
medical expenses and rehabilitation costs, his general and
equitable relief automatically includes damages for pain and
suffering.12 Although the question remains close, when all of these
items are calculated, it becomes more likely than not that the
amount-in-controversy will exceed $75,000. Thus, there is subject
matter jurisdiction here.
C. Existence of a Legal Duty
The law of negligence as it relates to common carriers is
fairly well-settled in Louisiana and was correctly stated by the
district court. Louisiana uses a duty/risk analysis, which
requires that four elements be proved: (1) cause-in-fact, (2)
existence of a legal duty, (3) breach of that duty, and (4) that
“the risk, and harm caused, [were] within the scope of protection
12
Wainwright v. Fontenot, 00-C-0492 (La. 10/17/00), 774 So. 2d
70, 74 (recognizing that general damages include pain and
suffering).
6
afforded by the duty breached.”13
In contrast to the basic duty of reasonable care ordinarily
required, however, the duty imposed on common carriers toward
passengers in Louisiana is “stringent”.14 Because of this
heightened duty to provide safe passage, the Louisiana Supreme
Court has created a significant procedural advantage for plaintiffs
by shifting the burden of proof to the common carrier defendant
once the passenger plaintiff shows an injury.15 In Galland v. New
Orleans Public Service, Inc., the court ruled that “the mere
showing of injury to a fare-paying passenger on a public conveyance
and his failure to reach his destination safely establishes a prima
facie case of negligence and imposes the burden on the carrier of
convincing by overcoming the prima facie case.”16 This means, as
Louisiana’s highest court went on to explain, that the common
carrier defendant has the burden to show either “that the incident
had not occurred, or that the defendant had exercised reasonable
care in discharging the plaintiff or that any negligence on its
13
Roberts v. Benoit, 605 So. 2d 1032, 1041 (La. 1991).
14
Amos v. St. Martin Parish Sch. Bd., 2000-808 (La. App. 3 Cir.
12/6/00), 773 So. 2d 300, 302.
15
Galland v. New Orleans Pub. Serv., Inc., 377 So. 2d 84, 85
(La. 1979); Casborn v. New Orleans Pub. Serv., Inc., 448 So. 2d
176, 179 (La. Ct. App. 4th Cir. 1984).
16
Galland, 377 So. 2d at 85.
7
part was not the legal cause of the plaintiff’s mishap.”17 It is
also well-settled, however, that a common carrier is not the
insurer of its passengers’ safety.18
Galland instructs that the duty of the common carrier is so
high that any showing of injury that occurs while the passenger is
entering, traveling on, or getting off a bus creates a presumptive
case of negligence. Galland indicates further that the defendant
must offer evidence to rebut the presumption that its behavior
breached this duty of care. The onus on the defendant is not so
much to disprove the duty, but to show that, as a common carrier,
it acted with sufficient care in spite of the occurrence of the
injury. Thus, whether a particular set of facts violates this
heightened duty or remains outside the ambit of common carrier
liability altogether depends on the discrete facts and
circumstances of the case and the extent of the exculpatory
evidence produced by the defendant.
For instance, a Louisiana court ruled that the presence of,
and failure to warn of, water tracked into the bus by passengers on
a rainy day was not sufficient to breach the stringent common
17
Id. at 85-86.
18
Crear v. Nat’l Fire & Marine Ins. Co., 469 So. 2d 329, 334
(La. Ct. App. 2d Cir. 1985); Casborn, 448 So. 2d at 178 (stating
that the “law does not today make the common carrier absolutely
liable for its passengers’ accidental injuries”).
8
carrier duty.19 In contrast, a loose radiator screen that was
dislodged by the impact of another automobile and hit a passenger
was sufficient to constitute negligence on the part of the bus
company.20 The same Louisiana court found that a bus company
defendant had adequately exculpated itself when it adduced
testimony from investigating police officers and bus company
personnel that the allegedly offending steps at issue were not
defective.21 Similarly, investigation and photographs of bus steps
alleged to be defective were enough to rebut the prima facie case
of negligence brought by the plaintiff.22
The district court in this case relied principally on Cary v.
New Orleans Public Service, Inc. (finding it “strikingly similar”
to this one) to conclude that Greyhound had no duty either to place
a footstool at the bottom of the steps or to position a driver
there to assist passengers in getting off the bus.23 In Cary, the
19
Casborn, 448 So. 2d at 178.
20
Favorite v. Reg’l Transit Auth., 552 So. 2d 487, 489 (La. Ct.
App. 4th Cir. 1989).
21
Whitehead v. New Orleans Pub. Serv., Inc., 442 So. 2d 802,
803 (La. Ct. App. 4th Cir. 1983); Walton v. New Orleans Pub. Serv.,
Inc., 413 So. 2d 527, 528 (La. Ct. App. 4th Cir. 1982) (relying on
the testimony of the bus driver and the claims investigator to
exculpate defendant common carrier).
22
Duplessis v. New Orleans Pub. Serv. Inc., 396 So. 2d 449,
449-50 (La. Ct. App. 4th Cir. 1981).
23
Cary v. New Orleans Pub. Serv., Inc., 250 So. 2d 92, 93 (La.
Ct. App. 4th Cir. 1971).
9
plaintiff was injured when she fell while attempting to step to the
ground from the bottom step of the bus. Because the record in Cary
showed that (1) no one else fell while exiting the bus, (2) there
were no irregularities in the pavement, and (3) the plaintiff
failed to request assistance, the defendant carrier was held to
have met its burden of rebutting the presumption of negligence.24
Thus, although the plaintiff had put forth a prima facie case of
negligence by showing injury, the court found that the defendant
had exculpated itself through the additional evidence it submitted.
Cary merely stands for the proposition, however, that a bus
driver has no duty to assist a passenger to get off a bus when
there is no obstacle in the passenger’s way and that passenger does
not request help. As the court itself stated, because the
plaintiff had not requested assistance, it “perceive[d] no duty
under the circumstances on the part of the defendant to aid her.”25
The court also suggested that the company could not have had a duty
because the passenger had no obvious manifestation of needing
assistance.26 On the strength of Cary, the district court here
found that there was no authority for the proposition that the
24
Id. at 93-94.
25
Id. at 94.
26
Id. (stating that plaintiff showed no physical disability
despite advanced age and that there were no other reasons for the
bus driver “to suspect that plaintiff might need special assistance
in descending the steps prior to her fall”).
10
heightened duty of a common carrier included the more specific duty
of providing a step stool or having a driver at the door to assist
passengers.
The absence of precedent to support these particular
manifestations of the carrier’s duty, however, does not equate with
the absence of duty. The case law is clear that common carriers
maintain a stringent and heightened duty to care for their
passengers. Once injury is demonstrated, the burden is on the
defendant carrier to show that, irrespective of the occurrence of
an injury, the carrier had exercised reasonable care. Although
the Cary court couched its conclusion in terms of the bus company’s
legal duty, Galland and subsequent Louisiana cases have indicated
that the carrier’s burden is to show that it acted in a way that
meets its heightened duty rather than to attempt to restrict the
scope of legal duty.27
Even at a factual level, this case is distinguishable from
Cary. True, the record here, as in Cary, suggests that others had
alighted without difficulty and that there was nothing obstructive
on the ground outside the bus, as Felton herself indicated; but the
similarities end there. In contrast to Cary, although Felton
27
See, e.g.,Casborn, 448 So. 2d at 179 (finding that the common
carrier “bears the burden of proof that the injury was not a result
of the carrier’s breach”); Whitehead, 442 So. 2d at 803 (finding
that the carrier had exculpated itself from prima facie liability
because it produced evidence showing that the bus steps were not
defective).
11
testified that the ground next to the exit was concrete, the
summary judgment record does not reflect the precise conditions of
the aisle or steps of the bus.28
In addition, the record in this case reflects that Felton had
no opportunity to ask the driver for assistance because he had
exited and departed the area as soon as he parked the bus at the
stop in Alexandria. If ultimately proved, this latter fact will
further distinguish Felton’s case from Cary, and will support her
assertion that the driver violated a provision of his safety
manual. Thus, even if it were proved that Felton fell from the top
step of the bus, and that there were no unsafe conditions of the
ground below, Greyhound “has the burden of proving that not even
the slightest evidence of negligence existed.”29 The allegation
that the driver left his post in violation of Greyhound’s own
manual and was thus unavailable to be asked for assistance by
Felton, an obviously elderly passenger who was likely to need
assistance, indicates potential driver negligence, even under Cary.
28
Although counsel specifically asked Felton if she stepped on
something or if something got in the way, and she responded
negatively, she followed up her negative answer with a description
of the ground outside the bus. In answering counsel’s question
about obstructions, she stated “No. It looked like it was concrete
allover that-a-way, and the bus, you know, stopped on the side
there.” This answer suggests that Felton thought counsel was
asking about the pavement outside the bus, not the condition of the
steps of the bus.
29
Favorite, 552 So. 2d at 489.
12
Although the general heightened duty of common carriers should
be adequate to apply to all situations in which injury occurs,
there is specific precedent, contrary to the conclusion of the
district court, that bolsters the finding of a duty here. First,
Louisiana decisions demonstrate that this heightened duty includes
the duty to assist particular passengers, either when the passenger
requests help or when it should be evident to the bus driver from
the passenger’s appearance that he requires assistance. Cary
itself suggested that if the plaintiff had requested help, the
driver would have had the duty to assist her.30 And, if the
appearance of the passenger makes it apparent that he is physically
limited, failing to help can constitute negligence.31 The driver’s
allegedly hasty departure would make it impossible for Felton to
request assistance; and her physical appearance of advanced age or
infirmity might well have been sufficient to put the driver on
notice that she would likely need help leaving the bus, had he
stayed around long enough to allow observation.
Second, although by itself neither the presence nor absence of
a safety manual provision can establish or preclude the existence
30
See Cary, 250 So. 2d at 94.
31
See Willis v. Reg’l Transit Auth., 95-CA-2350 (La. App. 4
Cir. 3/27/96), 672 So. 2d 1013, 1015 (finding no duty for a bus
driver to wait until a passenger is seated “unless there is
something about the appearance of the passenger that makes it
apparent that the passenger has [physical or age-related]
limitations.”).
13
of a legal duty, Louisiana case law suggests that the presence of
a safety provision can confirm a duty. Neither the parties nor our
own research have revealed common carrier cases that implicate
safety manual violations. Nonetheless, in Pinsonneault v.
Merchants & Farmers Bank & Trust Co., a Louisiana court of appeal
considered whether a bank had a duty to protect customers from
assault.32 Instead of simply relying on a presumed general duty to
protect, the court found the existence of such a duty based on the
bank’s own written plan to protect its patrons while they were
doing business at the bank.33 Similarly, those provisions in
Greyhound’s manual that require drivers to assist passengers appear
to be aimed at the same purpose as the bank’s safety rules, i.e.,
to protect business invitees from injury or harm. In short,
Pinsonneault indicates that, at a minimum, Greyhound’s rules
confirm the finding of a duty in this instance.34 In sum, the
32
99-12 (La. App. 3 Cir. 7/21/99), 738 So. 2d 172, 186.
33
See id. Another purpose of the bank’s safety procedures
apparently was to comply with provisions of the Federal Deposit
Insurance Corporation Regulations. This additional purpose,
however, was not emphasized by the court in its finding of duty,
nor did it appear to be the primary reason for the bank’s security
program. Id. As a result, whether the relevant Greyhound safety
manual provisions respond to similar regulations (a question that
might be answered at trial) is immaterial to the support these
provisions give to the finding of a duty here.
34
Although we generally have rejected the contention that
safety manual provisions create some duty of care, most of those
cases addressed whether a company’s internal safety manual applies
to a separate contract with an independent contractor; Graham v.
14
absence of duty in Cary was limited, as the court itself explained,
to the particular circumstances of that case. This case differs
because (1) it is not clear that the aisle and steps were free from
obstruction, (2) the driver’s precipitous departure deprived Felton
of the opportunity to ask him for assistance, (3) the driver’s
precipitous departure also deprived him of an opportunity to
observe Felton’s condition, and (4) the driver allegedly violated
a safety manual provision. As a result, this case falls squarely
within the heightened duty of common carries to transport and
discharge their passengers safely. The Louisiana Supreme Court has
indicated that this duty applies broadly and is invoked by the
occurrence of an injury. It is further supported by the duty to
help those who request it or are in obvious need of it, as well as
by Greyhound’s own safety rules. Thus, having confirmed a duty in
this instance, summary judgment would be appropriate only if the
defendant common carrier were able to show that no genuine issue of
Amoco Oil Co., 21 F.3d 643, 647-48 (5th Cir. 1994); or whether
operational safety provisions extended to federal government
contracts with independent contractors or business invitees under
the Federal Tort Claims Act. LeSuer v. United States, 617 F.2d
1197, 1199 (5th Cir. 1980); Market Ins. Co. v. United States, 415
F.2d 459, 463-64 (5th Cir. 1969). We also have rejected the link
between a safety manual and a duty when the risk from which an
injury occurs differs from the risk that a safety manual is aimed
at mitigating. See Ellison v. Conoco, Inc., 950 F.2d 1196, 1205
(5th Cir. 1992). In contrast, here there appears to be an
alignment of risks, which distinguishes this case and perhaps
further supports the connection between a safety manual provision
and a legal duty.
15
material fact exists as to whether it acted in accordance with this
elevated standard of care, whether its actions were the cause-in-
fact of Felton’s injury, and whether they were the proximate cause
of that injury.
D. Remaining Elements of Duty-Risk Analysis
Given the existence of the common carrier’s duty in this case,
the relevant questions become whether the driver breached this
heightened duty, and whether that breach was the cause-in-fact and
proximate cause of the plaintiff’s injuries. The district court’s
ruling on the element of duty precluded consideration of the
element of breach. The court also found, as a matter of fact, on
the basis of deposition testimony, that Felton fell from the top
step, and thus concluded that Greyhound’s failure to provide
assistance could not be the cause-in-fact of her injuries. The
making of any factual finding at the summary judgment phase of a
case can be problematic, particularly when, as here, the witness’s
testimony on that point is inconsistent.
We need not establish each of these elements ourselves to
conclude that the district court improvidently granted summary
judgment in favor of Greyhound. Under our de novo review, three
factors cause us to disfavor summary judgment in this case. First,
Felton’s showing of an injury makes it incumbent on the defendant
common carrier, Greyhound, to exculpate itself from even the
16
slightest negligence. Second, the summary judgment posture of this
case signals that all factual issues must be viewed in the light
most favorable to Felton as the nonmovant. Third, the remaining
elements of this tort claim are factual in character, and thus
normally subject to consideration by a fact-finder: The presence
of unresolved issues of material fact make the grant of summary
judgment inappropriate.
The trial court concluded that Felton fell from the top step
of the bus despite Felton’s ambiguous testimony. Although the
trial court may ultimately be proved correct, the record is not yet
clear. Felton testified inconsistently in her deposition that she
fell from the top and bottom steps. Her statement that she fell
from the top step appears to clarify her position on the issue, but
her initial remark still leaves some ambiguity. Her testimony
about the state of the aisle and steps is also unclear. Indeed,
the only fact conclusively determined by her deposition testimony
is that there was nothing irregular about the ground at the bottom
of the steps; and such evidence alone does not preclude the
possibility that there was an obstruction on the bus floor or steps
themselves, or that her age and condition were such that assistance
was required, regardless of the condition of the aisle and steps.
Finally, Felton alleges that the bus driver vanished from the scene
before Felton could attempt to step off the bus. Greyhound does
17
nothing to disprove this allegation, or to indicate that, despite
her advanced age, there was nothing about Felton’s appearance that
should have prompted the driver to offer to assist her had he
remained at his station.
Furthermore, even if Felton fell from the top step rather than
the bottom step, a question that witnesses might have been able to
clear up at trial, that fact alone does not preclude the finding of
cause-in-fact. A driver stationed at the exit could have cautioned
her to be careful, as his safety rules commanded, could have
extended a steadying hand, and could even have helped break her
fall and thereby prevented such serious injury.
Finally, the existence of the safety rules themselves indicate
that Felton’s accident was foreseeable to Greyhound and the bus
driver. A written rule requiring a driver to stand at the door of
the bus to help passengers get off would preclude any argument on
Greyhound’s part that this type of accident was outside the scope
of foreseeable risks. Indeed, the safety manual provision at issue
is squarely applicable to the risk that eventually led to Felton’s
injury. The Greyhound Rule Book provides that “Drivers will
station themselves at the door and assist passengers in boarding
and alighting, and shall caution them with the words, ‘Please watch
your step.’” Such language is obviously aimed at preventing
passengers from stumbling down the steps of the bus, which is
18
exactly what Felton did, regardless of whether she fell from the
top step or the bottom one.
The record at summary judgment fails to answer these questions,
leaving several issues of material fact to be determined at trial.
The record states that Felton planned to call the driver to the
stand. Although he was deposed, nothing in the record indicates
that he discussed his behavior once he parked the bus in Alexandria.
Felton also intended to call eye witnesses to the accident to shed
more light on the details. Greyhound planned to submit its incident
report from the accident and to call the driver and any passenger-
witnesses to testify. All of these parties and exhibits would have
provided a much clearer and more complete picture -- likely a
definitive one —— of the material facts surrounding Felton’s injury.
It is at least conceivable that all available testimony would still
have been insufficient to overcome the fact that the driver was
unavailable to help, but it is also possible that Greyhound could
met its evidentiary burden to show that, regardless of Felton’s
fall, neither it nor its driver was negligent.
In sum, the evidence offered at the summary judgment stage
fails to meet Greyhound’s burden of proving that it was free of all
negligence, even slight. There are still unresolved factual issues,
such as the condition of the bus aisle and steps, whether Ms. Felton
had obviously noticeable impairments, and whether the driver had an
19
opportunity to observe her before leaving the bus, to name just a
few that would help determine whether Greyhound was indeed negligent
and thus liable, or had met its heightened duty of care and thus was
not liable.
III. Conclusion
For the foregoing reasons, the summary judgment in favor of
Greyhound is reversed and this case is remanded to the district
court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
20