1^Plaintiffs, husband and wife, filed suit against New Orleans Aviation Board (NOAB) and Northwest Airlines, Inc. (Northwest) for injuries Mrs. Jensen allegedly sustained when she fell at the New Orleans International Airport. Because Northwest was erroneously named as a defendant, Mrs. Jensen amended her petition to substitute Southwest Airlines, Inc. (Southwest) for Northwest. Southwest filed a peremptory exception of prescription alleging that because the amended petition was filed more than one year after the accident, Mrs. Jensen’s claim had prescribеd. The trial court granted the exception and dismissed Southwest from the litigation. Because we find that the timely filed suit against NOAB did not interrupt prescription against Southwest, we affirm.
Facts and Procedural Background
Plaintiff/appellant, Mrs. Ameche Jensen, allegedly sustained injuries on October 25, 2008, when she fell оn Southwest Airline’s concourse at the New Orleans International Airport in Kenner, Jefferson Parish, Louisiana. Prior to embarking on her flight from Birmingham to New Orleans, Mrs. Jensen, a ^handicapped passenger, informed Southwest that she required wheelchair assistance. Her boarding passes also indicated that such assistance was required.
Wheelchair assistance was provided at each leg of her trip until she arrived at her final destination in Louisiana. Once she deplaned in Louisiana, Mrs. Jensen asserts that neither Southwеst nor airport personnel were present at the gate to provide wheelchair assistance nor were any announcements made for passengers who required such assistance. She, thereafter, proceeded to the baggage claim area when she suddenly and without warning fell and sustained injuries.
Mrs. Jensen, Southwest, and NOAB entered into a Consent Judgment on February 2, 2010, whereby the exception of improper venue was granted and the case was transferred to the 24th Judicial District Court in Jefferson Parish, Louisiana. Once the case was transferred, Southwest filed a peremptory exception of prescription, arguing that Mrs. Jensen’s tort claim prescribed because the |4amended petition was filed more than one year after the date of the accident. Mrs. Jensen argued, on the оther hand, that the timely filed suit against NOAB interrupted prescription against its solidary obligor, Southwest. She argued alternatively that her claim arose from a breach of contract and was therefore subject to a ten-year prescriptive period.
Thе trial court issued a judgment on July 19, 2010, granting the exception of prescription and dismissing Southwest Airlines from the suit. The judgment was certified as final.
Assignments of Error
Mrs. Jensen appeals the trial court’s judgment, assigning the following errors:
1. The trial court erred when it found that Southwest and NOAB were not solidary оbligors; and
2. The trial court erred when it failed to consider her alternative argument that her claim against Southwest was a breach of contract claim subject to ten-year liberative prescription.
Discussion
Second Assignment of Error
Because Mrs. Jensen’s second assignment of error will assist in the resolution of her first assignment of error, it is discussed first.
In her second assignment of error, Mrs. Jensen argues alternatively that her claim resounds in contract and is therefore subject to a ten-year liberative prescriptive period. Southwest disputes, howеver, that she has a claim for breach of contract in this case.
Our jurisprudence has consistently held that “an action against a common carrier for failure to carry a passenger without physical harm is a tort or quasi offense which prescribеs if suit is not brought thereon within one year of the saccident.” Bean v. Texas Inter’l Air
Mrs. Jensen cоntends that Southwest breached its specific obligation to provide her with wheelchair assistance and her action is therefore one that arises from a breach of contract as opposed to an action in tort. She attempts to distinguish hеr case from Sizeler v. Employers’ Liability Assurance Co.
Though Sizeler, supra and Flash, supra are factually different, we find that the same principle enunciated in those cases applies here. The contract of carriage between the plaintiffs and the defendants merely determines the duty the defendant owes and does not change the nature of the cаuse of action or the applicable prescriptive period. Bean, supra. Admittedly, Southwest had a specific duty to provide Mrs. Jensen with wheelchair assistance and failed to do so. That, however, does not change the nature of her cause of аction against them. As Southwest points out, to hold otherwise would lengthen the prescriptive period of any tort that might arise in conjunction with an ancillary service contract.
IfiWe, therefore, find that Mrs. Jensen’s claim arises in tort and is subject to a one-year liberative prescriptive period. Mrs. Jensen may overcome prescription, however, by showing that NOAB and Southwest are solidary obligors.
First Assignment of Error
In her first assignment of error, Mrs. Jensen argues that her claim against Southwest has not prescribed because suit was timely filed against NOAB, its soli-dary obligor.
On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereоf do not appear from the petition. La. C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Waguespack v. Judge, 04-0137, p. 4 (La.App. 5 Cir. 6/29/04),
In this case, the record is void of any evidence introducеd at trial. We must therefore determine the exceptions on the facts alleged in the petition. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id.
In this case, the amended petition was filed on December 22, 2009, and states that Mrs. Jensen’s accident occurred on or
Mrs. Jensen argues that because NOAB and Southwest are solidary obli-gors, the timely filed suit against NOAB interrupted prescription against Southwest. See La. C.C.P. аrt. 3503. To support her position, she relies on Green v. TACA International Airlines, (La.1974),
Mrs. Jensen urges this Court to rely on Green to find NOAB and Southwest soli-dary obligors. Green, however, is markedly different from the facts of the present сase. In Green, the Supreme Court found that both TACA and NOAB’s breach involved a defect in the premise — namely the worn away paint on the safety ground installation. Here, no such defect is alleged.
|sMrs. Jensen points to paragraph ten
1. Negligence in failing to provide wheelchair assistance as requested;
2. Failing to act reasonably under the circumstances to avoid an unreasonable risk of harm to invitees such as Mrs. Jensen;
3. Failing to assist wheelchair рassengers in the concourse; and
4. Any and all other acts of negligence or breach of safety standards which may be brought out at trial of this case.
We are unable to say that paragraph ten alleges solidarity between NOAB and Southwest. Obligations arе solidary when each obligor is liable for the whole performance. La. C.C. art. 1794. Paragraph ten and the facts contained throughout the petition fail to allege that NOAB and Southwest are independently responsible for the whole performance, namely providing Mrs. Jensen with wheelchair assistance. In fact, other than naming Southwest as a co-defendant, Southwest’s obligation, if any, to Mrs. Jensen is not mentioned anywhere in the
The petition makes it clear that the obligаtion owed to Mrs. Jensen by Southwest arose from Southwest’s status as a common carrier. Southwest was obligated to ensure that Mrs. Jensen disembarked the plane without injury. Amos, supra. As Southwest points out, however, NOAB is not a common carrier and was therefore not obligated to provide Mrs. Jensen with such services.
Because Mrs. Jensen has failed to show that NOAB was independently responsible for providing her -with a wheelchair, she did not meet her burden of proving that solidarity existed between NOAB and Southwest. If the plaintiffs Rbasis for claiming interruption оf prescription is sol-idary liability between the parties, then the plaintiff bears the burden of proving that solidary relationship. Younger v. Marshall
Mrs. Jensen also cites Hoefly v. Government Employees Insurance Co.,
Conclusion
Mrs. Jensen has failed to meet her burden of proving that NOAB and Southwest are solidary obligors such that the timely filed suit against NOAB in Orleans Parish interrupted prescription against Southwest. We, therefore, find that Mrs. Jensen’s claim against Southwest has prescribed.
Accordingly, the judgment appealed from is affirmed.
AFFIRMED
Notes
. Northwest Airlines was erroneously named in the suit.
. La. C.C.P. art. 42 provides that the general rule of venue is that an action against "[a] foreign corporation or foreign limited liability company licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.”
. La. C.C. 3492 provides: Delictual actions are subject to a liberative prescription of one year. The prescription commences to run from the day injury or damage is sustained.
. Although Mrs. Jensen’s brief states paragraph nine, the allegations contained therein are actually found in paragraph ten of the amended petition. The reference to paragraph nine in her brief refers to the original petition filed in the Civil District Court of Orleans Parish.