FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-03898,
DIVISION "I-14" HONORABLE PIPER D. GRIFFIN, JUDGE.
E. MCAULIFFE, JR. FREDERICK A. MILLER & ASSOCIATES,
Counsel for Defendants/Appellees.
L. SHUSHAN JONATHAN M. SHUSHAN SIDNEY L. SHUSHAN, A.P.L.C.
Counsel for Plaintiff/Appellant.
composed of Chief Judge James F. McKay III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins.
F. MCKAY III CHIEF JUDGE.
negligence action, the plaintiff, Cynthia Dent, appeals the
district court's granting of an exception of prescription
in favor of the defendants, Genevieve Willis Dent and State
Farm Fire and Casualty Company, and the dismissal of her
claim. We affirm.
AND PROCEDURAL HISTORY
April 20, 2014, Cynthia Dent stepped into a hole covered by a
green outdoor carpet in the backyard of the home of Genevieve
Willis Dent, located at 1314 St. Roch Street in New Orleans.
This accident happened following Easter Sunday lunch.
the accident, Cynthia Dent saw a doctor on Tuesday, April 22,
2014. She presented at the doctor with complaints of a
swollen and painful big toe on her left foot; she also
thought she may have had a sprained ankle. The doctor took
x-rays and diagnosed her with a broken left foot.
April 23, 2015, Cynthia Dent filed a petition for damages
against Genevieve Willis Dent and her insurer, State Farm
Fire and Casualty Company. Following some discovery,
Genevieve Willis Dent and State Farm filed a peremptory
exception of prescription on March 31, 2016. A hearing on the
exception was held on May 27, 2016. On June 15, 2016, the
trial court issued a judgment and reasons for judgment
granting State Farm's exception of prescription. However,
this judgment was deficient because it failed to mention
Genevieve Willis Dent and because it failed to contain
decretal language. Therefore, counsel for the defendants
after consultation with counsel for plaintiff, filed a motion
to amend judgment by consent on June 23, 2016. Thereafter,
the trial court issued an amended judgment on July 22, 2016,
which granted the exception of prescription on behalf of both
defendants and dismissed the lawsuit. It is from this
judgment that Cynthia Dent now appeals.
reviewing a peremptory exception of prescription, an
appellate court will review the entire record to determine
whether the trial court's finding of fact was manifestly
erroneous. Davis v. Hibernia National Bank, 98-1164
(La.App. 4 Cir. 2/24/99), 732 So.2d 61. When evidence is
received on the trial of the peremptory exception of
prescription, the factual conclusions of the trial court are
reviewed by the appellate court under the manifest
error-clearly wrong standard as articulated in Stobart v.
State, Through DOTD, 617 So.2d 880 (La. 1993). If the
findings are reasonable in the light of the record reviewed
in its entirety, an appellate court may not reverse even
though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.
Carter v. Haygood, 2004-0646, p. 9 (La. 1/19/05),
892 So.2d 1261, 1267.
instant case, Cynthia Dent's claims for injury due to
negligence are delictual actions subject to the liberative
prescription of one year. La. C.C. art. 3492. Ordinarily,
"prescription commences when a plaintiff obtains actual
or constructive knowledge of facts indicating to a reasonable
person that he or she is the victim of a tort."
Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p. 10
(La. 1/20/05), 891 So.2d 1268, 1276 citing Campo v.
Correa, 2001-2707, p. 11 (La.6/21/02), 828 So.2d 502,
510. "A prescriptive period will begin to run even if
the injured party does not have actual knowledge of the facts
that would entitle him to bring a suit as long as there is
constructive knowledge of the same." Campo,
supra at p. 12, 828 So.2d at 510. An injured party
has constructive notice when he or she possesses information
sufficient to incite curiosity, excite attention, or put a
reasonable person on guard to call for inquiry, and includes
knowledge or notice of everything to which that inquiry might
lead. Id. The ultimate issue is the reasonableness
of the plaintiff's action or inaction in light of his
education, intelligence, and the nature of the
defendant's conduct. Id.; Bailey,
04-0620, 04-0647, 04-0684, p. 10, 891 So.2d at 1276.
case sub judice, since the plaintiff filed her first
lawsuit more than one year after her accident and injury, her
claims are prescribed on their face. See Dominion
Exploration, Inc. v. Waters, 2007-0386, 2007-0287
(La.App. 4 Cir. 11/14/07), 972 So.2d 350; Turner v.
Hidden Lake, LLC, 2014-0240 (La.App. 4 Cir. 3/4/15), 163
So.3d 66; writ denied, 2015-0641 (La. 5/22/15), 171