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Dent v. Dent

Court of Appeals of Louisiana, Fourth Circuit

May 31, 2017



          JOHN E. MCAULIFFE, JR. FREDERICK A. MILLER & ASSOCIATES, Counsel for Defendants/Appellees.

          SIDNEY L. SHUSHAN JONATHAN M. SHUSHAN SIDNEY L. SHUSHAN, A.P.L.C. Counsel for Plaintiff/Appellant.

          Court composed of Chief Judge James F. McKay III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins.


         In this 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.


         On 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.

         Following 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.

         On 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.


         In 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.

         In the 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.

         In the 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 ...

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