Bock v. Harmon

526 So. 2d 292, 1988 WL 45684
CourtLouisiana Court of Appeal
DecidedMay 11, 1988
Docket87-328
StatusPublished
Cited by21 cases

This text of 526 So. 2d 292 (Bock v. Harmon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bock v. Harmon, 526 So. 2d 292, 1988 WL 45684 (La. Ct. App. 1988).

Opinion

526 So.2d 292 (1988)

Mary Ann Knight Harmon BOCK and Alfred E. Harmon, Jr., Plaintiffs-Appellants,
v.
Alfred E. HARMON, Defendant-Appellee.

No. 87-328.

Court of Appeal of Louisiana, Third Circuit.

May 11, 1988.

*293 Joseph P. Anderson, Jr., Slidell, for plaintiffs-appellants.

Thomas D. Curtis, Juneau, Hill, Judice, Hill & Adley, P.C., John K. Hill, Jr., Pugh & Boudreaux, Charles J. Boudreaux, Sr., Lafayette, for defendant-appellee.

Before FORET, STOKER and DOUCET, JJ.

DOUCET, Judge.

Plaintiff, Alfred E. Harmon, Jr., (Fred), appeals from a judgment sustaining a plea of prescription raised by defendant, Dr. Alfred E. Harmon, plaintiff's father.

The disturbing allegations in this action by Fred, his sister, Mary C. Harmon, and their mother, Mary Ann Knight Harmon Bock, involve numerous acts of sexual abuse by Dr. Harmon against Fred and Mary and their brother and sister. Over a period of about six years, from approximately December 15, 1977, to August 22, 1983, Dr. Harmon allegedly gave his children drugs and alcohol, committed various sexual acts upon them, in private and in front of each other, and enticed them into performing numerous sexual acts upon him and each other.

Fred, born December 7, 1965, and Mrs. Bock, individually and as natural tutrix and on behalf of Mary, born June 15, 1969, filed this suit on June 11, 1986, seeking damages from Dr. Harmon. Dr. Harmon, who was absent from the state, was represented by court-appointed counsel. He raised an exception of prescription as to the claims of all parties. Plaintiffs subsequently added as defendants Northern Insurance Company of New York (Northern) and St. Paul Fire and Marine Insurance Company (St. Paul).

The exception of prescription as to Mary, a minor when suit was filed, was overruled. This ruling has not been appealed. As to the other exceptions, counsel for Dr. Harmon argued that on the face of the pleadings the suit had prescribed. Mrs. Bock, who was divorced from Dr. Harmon in 1971, sought damages for loss of consortium, service, and society of her children. Defendant argued that Mrs. Bock knew of the acts of sexual abuse as early as Spring 1983 when Fred and Mary's brother and sister made a complaint to officials of the Department of Health and Human Resources (DHHR) detailing the incidences of abuse. Therefore, it was submitted that prescription began to run as to Mrs. Bock at least as early as then. The trial court agreed and sustained Dr. Harmon's exception of prescription as to Mrs. Bock. She *294 has not appealed this ruling. However, defendants Northern and St. Paul have raised on appeal exceptions of prescription as to Mrs. Bock and Fred. Prescription can be raised on appeal. La.C.C.P. art. 2163. Therefore, we will examine the issue of prescription as it applies to Mrs. Bock.

Defendant also argued that Fred had one year from attaining the age of majority to institute suit. He turned 18 on December 7, 1983, continued to live with his father until October 1985, and thereafter moved to Hammond to live near his mother and sister. He argued that only after his father was arrested by federal authorities in February 1986, did he realize his father was not above the law and was answerable for his actions. Fred presented expert testimony from a psychiatrist to support his claims but the trial judge sustained defendant's exception of prescription.

La.C.C. art. 3492 provides a one-year liberative prescriptive period within which a delictual action must be brought. Prescription commences to run not necessarily on the date the injury occurs or the damage is sustained, but from the date the affected individual knows or should know of the injury or damage sustained. Dixon v. Roque, 503 So.2d 659 (La.App. 3rd Cir. 1987); Lynch v. Foster, 376 So.2d 342 (La. App. 3rd Cir.1979), writ denied, 378 So.2d 433 (La.1979).

Unquestionably Mrs. Bock's children were adversely affected by their father's abuse before Spring 1983. It is possible however, that she did not become aware of the years of abuse until two of her children complained to the DHHR. At this time, the two complaining siblings fully discussed with Mrs. Bock the abuse involving all of the children. At least as far back as Spring 1983, Mrs. Bock knew of her damages and should have instituted an action within one year. She did not and at the time this suit was filed in June 1986, her cause of action had prescribed. We will sustain the exceptions of prescription raised on appeal by defendants Northern and St. Paul as to the claim of Mrs. Bock.

Examining the issue of prescription as to Fred's claim we first recognize that prescription was suspended between Fred and Dr. Harmon until he attained age 18, the age of majority, on December 7, 1983. La.C.C. art. 3469; La.C.C. art. 29. Ordinarily, he would have had until December 7, 1984, to bring an action against his father for damages sustained by him as a result of the sexual abuse. Suit was not filed until June 1986, and on the face of the pleadings, Fred's cause of action had prescribed. In such a case the plaintiff bears the burden of establishing that prescription had not begun to run, or was interrupted or suspended. Andrus v. Patton, 394 So.2d 714 (La.App. 3rd Cir.1981); Steel v. Aetna Life and Casualty, 304 So.2d 861 (La.App. 3rd Cir.1974).

Plaintiff seeks to avail himself of the equitable doctrine of contra non valentum agere nulla currit praescriptio. This Latin phrase, taken literally, means that prescription does not run against one unable to act. Fred argues that the testimony of Dr. Richard P. Strobach, a psychiatrist, establishes that the abuse inflicted upon him by his father rendered him incapable of taking action earlier. Dr. Strobach examined Fred on one occasion in April 1986, shortly before this suit was filed. Fred also made a follow-up visit to him in October 1986. Dr. Strobach testified by deposition, taken after trial of the exception and filed in the record for review by the trial judge before rendering his decision on the exception.

The doctor felt that prior to February 1986, Fred was prevented from taking legal action against his father because: (1) of the fear that his drug use would be revealed, together with a fear of embarrassment about the sexual abuse; (2) the effect of Fred's ingestion, at the behest of his father of drugs and alcohol on his ability to recall the events that transpired; (3) Fred's use of avoidance and suppression measures to deal with the abuse inflicted upon him and his siblings by their father; and (4) his subjective belief that his father was omnipotent and that any action he took would be useless.

*295 After reaching the age of majority on December 7, 1983, Fred continued to live with his father in Crowley. He attended one-half semester at USL then began working. He did not move out of the house until October 1985, when he moved to Hammond where his mother and at least one sister resided. The acts of abuse ended in August 1983. Fred testified that he remained in his father's home in part because he made it "comfortable" for him to stay there—his father only charged him $100 per month for rent compared to $250 he would have had to pay elsewhere.

Fred testified that he began to open up about the abuse after his father was arrested by Federal authorities in February 1986, for an offense involving the sending of pornography through the U.S. Mail. Dr. Strobach felt that this was the turning point—not when the abuse stopped or when Fred moved out of his father's home. Once his father was arrested, Fred realized that he was not omnipotent or above the law.

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526 So. 2d 292, 1988 WL 45684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bock-v-harmon-lactapp-1988.