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Turner v. Hidden Lake, LLC

Court of Appeal of Louisiana, Fourth Circuit

March 4, 2015

DARRELL TURNER
v.
HIDDEN LAKE, LLC OF AL AND LIBERTY SURPLUS INSURANCE CORPORATION

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2013-00372, DIVISION " G-11" . Honorable Robin M. Giarrusso, Judge.

Lillie E. Joyce, Warren A. Forstall, Jr., LAW OFFICES OF WARREN A. FORSTALL, JR., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

David K. Groome, Jr., DEUTSCH, KERRIGAN & STILES, L.L.P., New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLEES.

(Court composed of Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano). TOBIAS, J., CONCURS IN PART AND DISSENTS IN PART.

OPINION

Page 67

Joy Cossich Lobrano, Judge.

[2014-0240 La.App. 4 Cir. 1] The plaintiff, Darrell Turner, appeals the trial court's October 23, 2013 judgment granting the peremptory exception of prescription filed by the defendants, Hidden Lake, LLC of AL (" Hidden Lake" ) and Liberty Surplus Insurance Corporation (" Liberty" ), as to Turner's first supplemental and amending petition for damages. The trial court dismissed Turner's claims related to an alleged fall occurring on October 1, 2011 that were asserted in the first supplemental and amending petition.

On July 20, 2012, Turner filed a petition for damages in the First City Court of the City of New Orleans, naming as defendants Hidden Lake and Liberty. In the petition, he alleged that on August 14, 2011, he slipped and fell because of water that was leaking from an air conditioning window unit in the kitchen of his apartment in the Hidden Lake Apartments complex in New Orleans that is owned by Hidden Lake and insured by Liberty. Turner alleged that the leaking air conditioning unit was a defective condition that created an unreasonable risk of harm, and that Hidden Lake, as the owner of the building and air conditioning unit, failed to timely correct this problem and/or warn him of the risks, thus resulting in a fall that caused him serious injuries and damages.

[2014-0240 La.App. 4 Cir. 2] On December 28, 2012, Turner filed a first supplemental and amending petition for damages that reiterated his allegations about his August 14, 2011 fall, and added a new allegation that he had suffered another fall on October 1, 2011 as a result of the same leaking air conditioning unit that had caused the earlier fall. He further alleged that the air conditioning unit had leaked water continually since his first fall, and that this defective condition had created an unreasonable risk of harm that the owner of the building had failed to timely correct. Turner also alleged that he had suffered additional injuries as a result of the second fall as well as an aggravation of his injuries from the first fall. Because the damages alleged from both accidents exceeded the jurisdictional limits of First City Court, the case was transferred to the Civil District Court for the Parish of Orleans.

On June 25, 2013, Hidden Lake and Liberty filed a peremptory exception of prescription to the first supplemental and amending petition for damages, asserting that Turner's claims as to the October 1, 2011 fall, which were alleged for the first time on December 28, 2012, had prescribed. Turner opposed the exception, arguing that the damages he allegedly sustained on October 1, 201l arose out of the same conduct, transaction, or occurrence as set forth in his original petition, and

Page 68

resulted in continuous damages and continuous injuries to him. He argued that his original petition sufficiently alleged a continuing tort, i.e., the continuous leaking air conditioning unit; thus, the allegations of the December 28, 2012 first supplemental and amending petition relate back to the timely filed original petition. In reply, Hidden Lake and Liberty argued that Turner had alleged two [2014-0240 La.App. 4 Cir. 3] separate events, i.e., a fall on August 14, 2011 and a second fall on October 1, 2011, and had not alleged facts establishing a continuing tort as required under Louisiana's continuing tort doctrine.

At the hearing of the exception, the parties introduced evidence: pleadings, Turner's deposition, and other documentary evidence. The trial court granted the exception of prescription as to Turner's first supplemental and amending petition, and dismissed Turner's claims relating to the alleged fall of October 1, 2011. This timely appeal followed.

On appeal, Turner presents the following arguments in support of his assignment of error, arguing that the trial court erred in ...


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