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 defen dant-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 diversi ty, 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 travel1 250 So.2d 92 (La. Ct. App. 4th Cir. 1971).

2 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 C ary 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,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 we apply the same standard used b y that court. 2 Summary judgment

is only proper if ther e 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 f actual 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 questioned7 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 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 spe cific

dollar amount of damages. In D e Aguilar v. Boeing Company

, we held

that “[w]hen the plaintiff’s complaint does not allege a specific

amount of damage s, the removing defendant must prove by a

preponderance of t he 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-incontroversy is met. 8

Applying this standard in Luckett v. Delta Airlines, Inc.

, we

found t hat 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, w hich contained her heart medication), combined to meet

the jurisdictional requirement even though no amount of damages was9 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 pled. 9 By contrast, in S imon 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 indica tes that

Felton “suffered severe debilitating injuries including a

sub trochanteric 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

F elton’s complaint that she was confined to a rehabili tation

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 expe nses, but it was likely after the

suit had been commenced. The accident occurred on February 18,12 Wainwright v. Fontenot

, 00-C-0492 (La. 10/17/00), 774 So. 2d

70, 74 (recognizing that general damages include pain and

suffering).

6 2000, and the complaint was filed on Februar y 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 r ehabilitation,

thereby making less certain the conclusion that pla intiff’s

expenses and equitable relief were greater than $75,000.

Nonetheless, in addition to compensation for a pla intiff’s

medical expenses and rehabilitation costs, his general and

equitable relief automatically inclu des 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 protection13 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); C asborn 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 afforded by the duty breached.” 13

In contrast to the basic dut y of reasonable care ordinarily

required, however, the duty imposed on common carriers toward

passengers in Louisian a is “stringent”. 1 4 Because of this

heightened duty to provide safe passage, the Louisiana S upreme

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 G alland v. New

Orleans Public Service, Inc.

, the co urt 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

convi ncing by overcoming the prima facie case.” 1 6 This means, as

Louisiana’s highest court went on to explain, that t he common

carrier defendant has the burden to show either “that the incident

had not occurred, or that the defe ndant had exercised reasonable

care in discharging the plaintiff or that any negligence on its17 Id. at 85-86.

18 Crear v. Nat’l Fire & Marine Ins. Co.

, 469 So. 2d 329, 334

(La. Ct. App. 2d Cir. 1985); C asborn

, 448 So. 2d at 178 (stating

that the “law does not today make the common carrier absolutely

liable for its passengers’ accidental injuries”).

8 part was not the legal cause of the plaintiff’s mishap.” 17 It is

also well-sett led, 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

b reached 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 th e 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 common19 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 Orlea ns 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 carr ier duty. 1 9 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 inv estigating 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 , the24 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 plaintiff was injured when she fell while attempting to step to the

ground from the bottom step of the bus. Because the record in C ary

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 defe ndant carrier was held to

have met its burden of rebutting the presum ption of negligence. 2 4

Thus, although the plaintiff had put for th a prima facie case of

negligence by show ing injury, the court found that the defendant

had exculpated itself through the additional evidence it submitted.

Cary merely stands for the proposition, however, t hat 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 “per ceive[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

a ssistance. 26 On the strength of C ary

, the district court here

found that there was no authority for the proposition that the27 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 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 t o 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 f or 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 C ary

, 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 C ary

, although Felton28 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 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.” 2 9 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

.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 appeara nce of the passenger that makes it

apparent that the passenger has [physical or age-rel ated]

limitations.”).

13 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. C ary

itself suggested that if the plaintiff had requested help, the

driver would have had the duty to assist her. 3 0 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 leavi ng 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 existence32 99-12 (La. App. 3 Cir. 7/21/99), 738 So. 2d 172, 186.

33 S ee 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 t he 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 A lthough 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 cont ractor; G raham v.

14 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 P insonneault 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 tha t, at a minimum, Greyhound’s rules

confirm the finding of a duty in this instance. 34 In sum, theAmoco 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. L eSuer 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 saf ety manual and a duty when the risk from which an

injury occurs differs from the risk that a safety manual is aimed

at mitigating. S ee 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 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 depart ure 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

o ccurrence 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 onl y if the

defendant common carrier were able to show that no genuine issue of16

material fact exists as to whether it acted in accordance with this

elevated standard of care, whether its actions were the cause-infact 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 bec ome 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 dut y 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 fail ure 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 o f Greyhound. Under our d e 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 ex culpate itself from even the17

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

f ell 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 F elton could attempt to step off the bus. Greyhound does18

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 a ssist 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 th emselves at the door and assist passengers in boarding

and alighting, and shall caution them with the words, ‘Please watch

your step.’” Such langua ge is obviously aimed at preventing

passengers from stumbling down the steps of the bus, which is19

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 passengerwitnesses 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 o vercome the fact that the driver was

unavailable to help, but it is also possible that Greyhound could

met its evidentiary burden to show that, regardles s of Felton’s

fall, neither it nor its driver was negligent.

In sum, the evidence offered at the summary ju dgment 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 an20

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.