Devore v. Hobart Manufacturing Co.

Plaintiff Annie Devore, a school board employee who was injured on October 2, 1974 when boiling water spewed out of a double steamer in a school kitchen, and whose claim for damages against the steamer’s manufacturer prescribed for failure to sue in one year, contends in this litigation that she is entitled to recover from the Rapides Parish School Board and their Director of School Food Service, Mrs. Sybil T. Jones, because defendants negligently misadvised her and her lawyer that the manufacturer of the steamer was Cleveland Manufacturing Company, rather than Cleveland Range Company.

The trial court dismissed plaintiff’s petition on exception of no cause of action and the Court of Appeal affirmed. 359 So.2d 1108.

We recite the following chronology of asserted and/or conceded facts:

October 2, 1974 — Plaintiff’s accident and injury occurred.

July 30, 1975 — Plaintiff’s attorney wrote the school board requesting the name of the manufacturer of the steamer.

August 15,1975 — Sybil T. Jones, Director of School Food Service wrote plaintiff’s attorney advising that the manufacturer of the equipment was Cleveland Manufacturing Company of Cleveland, Ohio. Between August 15, 1975 and September 30, 1975 — Plaintiff’s attorney determined that Cleveland Manufacturing Company was not listed by the Secretary of State as a foreign corporation authorized to do and/or doing business in Louisiana (it was stipulated that Cleveland Range Company was likewise not listed); plaintiff’s attorney consulted the Secretary of State’s listing to determine the names and addresses of all corporations having names similar to Cleveland Manufacturing Company and discovered therein only Cleveland Consolidated, Inc.

September 30, 1975 — Suit was filed against Cleveland Consolidated, Inc., Hobart Manufacturing Company, a company the name of which plaintiff apparently gave her attorney, and Cleveland Manufacturing Company, the name furnished by Mrs. Jones.

October 1, 1975 — Anniversary date of the accident.

June 18, 1976 — Plaintiff by supplemental petition sued Cleveland Range Company and, in the alternative, defendants Rap-ides Parish School Board and Sybil T. Jones.

December 6, 1977 — An exception of prescription by Cleveland Range Company was maintained.

Plaintiff’s petition against Rapides Parish School Board and Mrs. Jones states:

“7.

On July 30, 1975, counsel for petitioners wrote a letter to the Rapides Parish School Board requesting information as to the manufacturer of the equipment alleged to have caused the aforesaid injuries to petitioner, ANNIE INEZ DE-VORE; defendant Rapides Parish School Board was at that time, and still is, the owner and custodian of the aforesaid equipment, and, in response to the aforesaid request by counsel for petitioners, the said Rapides Parish School Board through Mrs. Sybil T. Jones, Director of School Food Services, on August 15,1975, replied to counsel for petitioners, in writing, that the manufacturer of the equipment referenced above was ‘Cleveland Manufacturing Company of Cleveland, Ohio.’ Petitioners, relying on the representations made by the said Mrs. Jones filed this action against Cleveland Manufacturing Company.

8.

Defendant, Sybil T. Jones, at all times knew or should have known that the actual manufacturer of the aforesaid equipment was the Cleveland Range Company, and, for reasons unknown to petitioners, negligently misinformed petitioner’s counsel as to the proper manufacturer of the steamer. Said representations by Mrs. Jones were negligent, and said Rap-ides Parish School Board as employer of petitioner ANNIE INEZ DEVORE, and as owner and custodian of the steamer, had a duty to petitioners to properly apprise them of the name of the proper manufacturer of the said equipment and defendants, Rapides Parish School Board and/or Sybil T. Jones breached that duty; further petitioners had a right to rely upon said representations because of defendant School Board’s position as employer of petitioner, ANNIE INEZ DE-VORE, and as owner and custodian of the steamer.”

Neither fraud nor intentional misrepresentation was alleged in the petition; nor are these elements arguably present in the case.

Plaintiff in the trial court and in the Court of Appeal asserted that Article 2315 and Article 2316 of the Louisiana Civil Code support this cause of action for negligent misrepresentation. While they cited no Louisiana cases on point they did cite and argue as analogous support for their position Restatement (Second) of Torts, Section 552.

The Court of Appeal determined that Louisiana law did not afford plaintiff a cause of action upon the recited facts and concluded that even if they were to hold pertinent in Louisiana the common law cause of action for negligent misrepresentation referred to and defined in the Restatement that plaintiff had not met the pecuniary interest test set forth therein. The Court of Appeal further discussed and found without merit the claim that Mrs. Jones’ letter was incident to a stipulation pour autri existing by virtue of the insurance contract between the Board, plaintiff’s employer, and its compensation insurer, and also a good Samaritan argument urging that even absent any duty to furnish correct information, the party who gratuitously undertakes a response to an information request assumes a duty of care. 359 So.2d at 1111.

We are in agreement with the trial and intermediate appellate courts’ conclusions set forth in White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2nd Cir. 1974) that Civil Code articles 2315 and 2316 . . afford a broad ambit of protection for persons damaged by intentional and negligent acts of others . . sufficient to encompass a cause of action for negligent misrepresentation. However, we are not required in the resolution of this case to determine fully the extent to which and the conditions under which our law affords a cause of action for such a tort. We find it sufficient to conclude that here plaintiff has not stated a cause of action against defendants.

We are not here concerned with fraudulent misrepresentation (see White v. Lamar Realty, Inc. supra and Restatement [Second] of Torts, Section 549, discussing damages for fraudulent misrepresentation). Nor do we have here negligent misrepresentation that results in physical harm (see Restatement [Second] of Torts, Section 311). Rather we have here a claim of negligent misrepresentation alleged to have caused pecuniary loss.

For plaintiff to prevail here our Louisiana law would require the existence of a legal duty on the part of the defendants to supply correct information. On the facts set forth in plaintiff’s petitions, no such legal duty appears to exist. And it is to the facts set forth in the petitions that we must direct our attention, for in passing upon an exception of no cause of action the correctness of well-pleaded factual allegations is conceded and the issue for determination is whether the face of the petition presents a case which legally entitles the plaintiff to the redress sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

Our inquiry must further focus on whether there was indeed an affirmative duty to insure that the information given was correct, for negligence is the breach of a legal duty, a sine qua non in a tort action such as this. See Callais v. All State Insurance Co., 334 So.2d 692 (La.1976) (on rehearing).

Plaintiff falls short of stating a cause of action. Under the facts alleged in the petitions and conceded by the parties, there was no duty on the part of defendants to give failproof information. There is merely established the existence of an employment relationship between plaintiff and defendant Board, the Board’s ownership and custody of the steamer alleged to have caused plaintiff’s injury, the attorney-client relationship between plaintiff and the attorney requesting the name of the equipment’s manufacturer, reliance by the plaintiff on the information given, and the fact that the name furnished was incorrect. There are no facts set forth which would in our view impose upon the employer-equipment custodian a duty to plaintiff or her attorney to exercise the care in supplying correct information which ultimately proved lacking. There is no allegation that the purpose of requesting the information was communicated in detail sufficient to apprise defendants of the high degree of reliance which plaintiff and her attorney would place on it, nor is there alleged defendants’ knowledge of the extent of reliance planned. It is not alleged that the information sought was within the defendants’ exclusive knowledge or control, nor asserted that plaintiff or her attorney was prohibited or prevented from personally inspecting the equipment or otherwise personally determining the manufacturer thereof.

It cannot be presumed that Jones or the School Board knew or should have known that plaintiff’s attorney would rely entirely upon the information furnished, make no independent investigation, forego discovery, fail to timely file against the proper defendant, and let prescription run. And the risk of plaintiff’s having a law suit prescribe if information given was incorrect was not alleged to be one which defendants could reasonably have been required to appreciate. That risk was and should have been much more obvious to plaintiff and her attorney than to defendants.

With respect to plaintiff’s good Samaritan and stipulation pour autri arguments the Court of Appeal did not err in its adverse resolutions. The arguments are without merit.

The courts below were correct. The exception of no cause of action was properly maintained.

Decree

Accordingly, the judgment of the Court of Appeal is affirmed. All costs are assessed against relators.

AFFIRMED.

TATE, J., dissents and assigns reasons.

MARCUS, J., concurs.

DENNIS, J., dissents.

Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

. Section 552 of Restatement (Second) of Torts provides:

“(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered

(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and

(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.”