
    Joseph GADEL, Individually and on Behalf of His Minor Son, Peter Gadel v. PRUDENTIAL INSURANCE COMPANY, City of New Orleans, Dick Beebe and ABC Insurance Company and Hazel Acosta.
    No. CA 4832.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1986.
    Rehearing Denied July 16, 1986.
    
      Mark C. Surprenant, Donald C. Massey, New Orleans, for plaintiff-appellant.
    James S. Rees, III, Gerald J. Nielsen, and Wilkinson & Wilkinson, Hugh M. Wilkinson, Jr., New Orleans, for defendants-appellants.
    Before SCHOTT and BYRNES, JJ., and PRESTON H. HUFFT, J. Pro Tern.
   SCHOTT, Judge.

On June 3, 1985, appellant’s minor son, Peter Gadel was struck by a New Orleans Police Department patrol car as he was riding his bicycle across St. Claude Avenue in New Orleans. Mr. Gadel filed suit on behalf of his son against the city, its insurer, the officer driving the patrol car, Hazel Acosta and her automobile insurer. Acosta and her insurer filed an exception of no cause of action. From a judgment sustaining this exception and dismissing the suit as against Acosta and her insurer, plaintiff has appealed.

The claim against Mrs. Acosta was based on the following allegations:

IV.
Peter Gadel was on the median of St. Claude Avenue carefully waiting for traffic in the westbound lanes of St. Claude Avenue to clear so that he could cross those lanes of traffic. Hazel Acosta, while driving in the left-most westbound lane of St. Claude Avenue, brought her vehicle to a complete stop and signaled Peter Gadel and the two other boys he was with to cross the street as if it were safe.
V.
Relying on the signaling and assurances of Hazel Acosta, Peter Gadel began to cross St. Claude Avenue on his bicycle. Immediately after he crossed in front of Hazel Acosta’s stopped vehicle, the New Orleans Police Department vehicle driven by Dick Beebe struck Gadel at a high rate of speed.

In order to test the merits of an exception of no cause of action the factual allegations of the petition are accepted as true, along with inferences and implications which logically follow from the pleaded facts. According to these allegations, young Gadel was not struck by Acosta’s vehicle but by another vehicle after he safely passed Acosta. All Acosta could do for plaintiff was to signal him that it was safe to cross in front of her vehicle, but this did not make her the insurer of his safety after he passed her vehicle or relieve Gadel of his duty to determine if it was safe to continue across the street after he negotiated the only part of the street in which Acosta was involved. He could not logically take her signal to pass her vehicle to mean she was telling him to step blindly into the next lane and into the path of a speeding vehicle. As the driver of a vehicle who has stopped and allowed a pedestrian or bicyclist to pass in front of her she did not assume responsibility for the safety of that person as he continued past her car crossing the rest of the street. Miller v. New Orleans Public Service, 430 So.2d 1103 (La.App. 4th Cir. 1983); Shank v. Government Emp. Ins. Co., 390 So.2d 903 (La.App. 3rd Cir.1980), writs refused, 396 So.2d 901; Wille v. New Orleans Public Service, Inc., 320 So.2d 288 (La.App. 4th Cir.1975).

Accordingly the judgment appealed from is affirmed.

AFFIRMED.

BYRNES, J., dissents.

BYRNES, Judge,

dissenting.

I must respectfully dissent from the conclusion reached by the majority.

After quoting pleadings which clearly allege that a signal was given by defendant to plaintiff “to cross the street as if it were safe,” the majority somehow concludes that the signaling defendant “did not assume the responsibility for the safety of that person as he continued past her car crossing the rest of the street.” Yet that is precisely what the petition does allege. In my opinion, the majority has ignored the law and jurisprudence applicable to exceptions of no cause of action and confused the ultimate resolution of the merits of plaintiffs claim with the sufficiency of his petition to state a cause of action.

Because this case is before us on an exception of no cause of action, we must accept the factual allegations of the petition as true, and resolve any doubts as to the sufficiency of the petition to state a cause of action in favor of the plaintiff. Kizer v. Lilly, 471 So.2d 716 (La.1985).

Here, the petition alleges that Mrs. Acosta signaled to Peter Gadel that it was safe for him to cross the street. Accepting the allegations of the petition as true, it appears that Mrs. Acosta did more than simply yield the right of way to Peter Gadel— she affirmatively indicated to him that it was safe to cross the entire two lane street, not just the portion of the roadway in front of her car. By doing so, she assumed a duty to give a reasonably safe signal (i.e. one that would not lead the child into a moving car). The petition goes on to allege that Peter Gadel relied on Mrs. Acosta’s signal, started to cross the street and was struck by a police car. This in my opinion, is sufficient to state a cause of action for negligence and justify a trial on the merits. The three cases cited by the majority in support of its conclusion do not address the real issue in this case which is the sufficiency of the petition to state a cause of action. All three cases were appeals taken after a trial on the merits. In all three cases the court found no negligence on the part of the signaling driver. In each case this finding was based on the facts adduced at trial. None of these cases stand for the proposition that Louisiana does not recognize a cause of action for conduct such as Mrs. Acosta’s.

In Massingale v. Sibley, 449 So.2d 98 (La.App. 1st Cir.1984), the first circuit recognized that the interpretation of a hand signal similar to that given by Mrs. Acosta in this case is a factual issue. In my opinion, the petition in this case adequately raised this factual issue and the question should be resolved by a trial on the merits.

Regardless of whether appellant can prove the allegations of his petition at trial, I feel they were sufficient to state a cause of action and give him the opportunity present evidence in support of his claim. I would therefore reverse the ruling of the trial court.  