ARTICLE: Louisiana Fourth Circuit Vacates District Court's Dismissal on Prescription Grounds & Remands the Case

Louisiana Advocates, February 2021, Vol. XXXVI, No. 2, pp. 15-17

Copyright Louisiana Association for Justice. Used with Permission.

Louisiana Fourth Circuit Vacates District Court’s Dismissal on Prescription Grounds & Remands the Case

I appealed the district court’s dismissal of my client’s inadequate security case on prescription grounds.  On appeal, the Louisiana Fourth Circuit vacated the district court’s dismissal and remanded the facially-prescribed case (1) for plaintiff to have an opportunity to amend her petition to plead additional facts showing the applicability of contra non valentum and (2) for an evidentiary hearing to see if contra non valentum suspended the running of prescription.[1]  This case is a crucial reminder to always assess prescription on a case-by-case basis, since application of contra non valentum is a fact-based inquiry.

Prescription and Its Exceptions

Although most facially prescribed cases are time barred, there are exceptions to this rule.  In fact, three theories can allow a plaintiff to show that prescription has not run on a facially prescribed case: suspension, interruption, or renunciation.[2] 

Contra Non Valentum

One way to suspend prescription is through the equitable principle known as contra non valentem non currit praescriptio (“contra non valentum”).[3]  Louisiana courts use contra non valentum—a jurisprudential exception to the prescriptive period—“to mitigate the occasional harshness of prescriptive statutes.”[4]  Contra non valentum is the principle that “no one is required to exercise a right when it is impossible for him or her to do so.”[5] 

There are four categories of contra non valentum: (1) where there was some legal cause preventing courts from acknowledging or acting on the plaintiff’s action, (2) where there was some condition coupled with either a contract or the proceedings which prevents the creditor from suing, (3) where the debtor himself has prevented the creditor from bringing the cause of action, or (4) where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.[6] 

Contra Non Valentum’s Discovery Rule

The fourth category—also known as the Discovery Rule—states that prescription commences on the date the injured party discovers facts upon which she has actual or constructive knowledge of a particular cause of action against a particular defendant.[7]  A court must determine when a plaintiff has actual or constructive knowledge of facts that indicate to a reasonable person that she is the victim of a specific tort caused by a specific defendant.[8]

In constructive knowledge cases, the Louisiana Supreme Court has stated that determining whether a plaintiff had constructive knowledge focuses on the “reasonableness” of that particular plaintiff’s action or inaction in light of his or her (1) education, (2) intelligence, and (3) the nature of the defendant’s conduct.[9]

In my case, a man was shot and killed at an apartment complex.  I argued that contra non valentum applied since my client only had an 11th grade education and because the defendants mocked her and dismissed her when she raised security issues to them, leading her to believe that there was nothing that could be done.  More than a year after the shooting, the client learned facts—for the first time—involving an extensive history of other crime at the apartment complex, among other things.  The client then filed suit within one year of learning those facts. 

Although the trial court dismissed the case, the fourth circuit vacated that ruling and remanded for further consideration of the facts.  The fourth circuit correctly emphasized the fact-specific nature of the Discovery Rule and stated that either there should be an evidentiary hearing to assess these facts and/or that the plaintiff should amend to plead additional facts. 

Analysis & Conclusion

The takeaway is that not every facially prescribed case has actually prescribed.  Although it will be an uphill battle (if the case is facially prescribed the plaintiff bears the burden of showing an exception applies), with the proper facts an exception such as the Discovery Rule may apply.  Before you turn away a case on prescription grounds, remember to ask a potential client about information that could allow you to argue an exception applies.  In the context of the discovery rule, remember that actual or constructive notice is both case-specific and defendant-specific.  Thus, even if a plaintiff has knowledge about one cause of action against one defendant (e.g., a tort claim against a motorist who rear-ends her), if she reasonably does not discover other facts about other claims/defendants until prescription has run, she may still have a claim against them.  For example, if she later learns that the person who rear-ended her did so because of a glitch in a stop light, then that claim could still be viable (depending on how reasonable it was that she did not discover it sooner).  The key is to ask the right questions to see if an exception can apply.  Depending on the facts, it may well be worth the uphill battle.

[1] Allen v. The Michaels Development Company I, LP et al., 2020-CA-0330 (La. App. 4 Cir. 2020).

[2] Wimberly v. Gatch, 635 So. 2d 206, 211 (La. 1994). 

[3] Id. 

[4] Prevo v. State ex rel. Dep’t of Pub. Safety & Corr. Div. of Prob. & Parole, 2015-0823 (La. 11/20/15), 187 So.3d 395, 398; Carter v. Haygood, 04–0646 (La. 1/19/05), 892 So.2d 1261. 

[5] Prevo, 2015-0823 (La. 11/20/15), 187 So. 3d at 398; see also Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992). 

[6] Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. 10/19/10). 

[7] See, e.g., Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987) (emphasis added). 

[8] Campo v. Correa, 01–2707 (La.6/21/02); 828 So.2d 502, 510. 

[9]   Marin v. Exxon Mobil Corp., 09-2368 (La. 10/19/10), 48 So.3d 234, 246. 

By Casey C. DeReus

Casey C. DeReus is a member of the American Bar Association’s Disaster Legal Service’s team. She is an associate at Baer Law LLC, and her primary areas of practice are negligent security, trucking casualty, rideshare motor vehicle collisions, and wrongful death and survival action cases. cdereus@baerlawllc.com