Turner v. Hidden Lake, LLC of AL

163 So. 3d 66, 2014 La.App. 4 Cir. 0240, 2015 La. App. LEXIS 438, 2015 WL 926788
CourtLouisiana Court of Appeal
DecidedMarch 4, 2015
DocketNo. 2014-CA-0240
StatusPublished
Cited by4 cases

This text of 163 So. 3d 66 (Turner v. Hidden Lake, LLC of AL) 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
Turner v. Hidden Lake, LLC of AL, 163 So. 3d 66, 2014 La.App. 4 Cir. 0240, 2015 La. App. LEXIS 438, 2015 WL 926788 (La. Ct. App. 2015).

Opinions

JOY COSSICH LOBRANO, Judge.

LThe plaintiff, Darrell Turner, appeals the trial court’s October 23, 2013 judgmént 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.

|;>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, 2011 arose out of the same conduct, transaction, or occurrence as set forth in his original petition, and [68]*68resulted 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 [ 3separate 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 granting the exception of prescription:

(1) The original petition for damages interrupted prescription as of the date of the filing of the original petition for damages as the continuous leaky air conditioner breached the defendants’ duty owed, causing his continuous damages and injuries. Thus, prescription was interrupted and his October 1, 2011 claim has not prescribed.
(2) The cause of action asserted in his first supplemental and amending petition arises out of the conduct, transaction, or occurrence, i.e., the leaky air conditioning unit, as set ⅛ forth in the original petition. Thus, the first supplemental and amending petition relates back to the date of the filing of the original petition; therefore, the October 1, 2011 claim is not prescribed.

In Davis v. Hibernia Nat’l Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61, this court discussed the exception of prescription as follows:

An exception of prescription is a peremptory exception, which a defendant-may raise at any time, including on appeal or after the close of evidence, but prior to its submission after trial. LSA-C.C.P. arts. 927 Land 928(B). LSA-C.C.P. art. 929 provides when a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case. LSA-C.C.P. art. 931 allows the introduction of evidence at the trial of all peremptory exceptions, except the objection of no cause of action. The trial court is not bound to accept as true the allegations of plaintiffs petition in its trial of the peremptory exception. Bowers v. Orleans Parish School Bd., 95-2530 (La.App. 4 Cir. 5/29/96); 694 So.2d 967, 972. When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions. Id.

Id. at 2, 732 So.2d at 63.

Because evidence was introduced at the trial of the exception of prescription, we review the trial court’s ruling under the manifest error standard.

We find no merit in Turner’s argument that prescription in this case was interrupted in accordance with or by application of the continuing tort doctrine. “The continuing tort doctrine is a jurispru-dentially recognized exception to the general rules of prescription.” Watters v. [69]*69Dep’t of Social Services, 2008-977, p. 43 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1158. In Risin v. D.N.C. Investments, L.L.C., 2005-415 (La.App. 4 Cir. 12/7/05), 921 So.2d 133, this Court discussed the prescriptive period for delictual actions and the continuing tort doctrine as follows:

Generally, Louisiana jurisprudence requires that courts strictly construe prescriptive statutes against finding that the case has prescribed and in favor of maintaining the cause of action. Lima v. Schmidt, 595 So.2d 624, 629 (La.1992); Cichirillo v. Avondale Industries, 04-0131 (La.App. 4 Cir. 10/27/04), 888 So.2d 947, 950. Therefore, when a case is subject to two possible constructions, the court should adopt that construction which favors maintaining, rather than barring, the action. Id.
IsThe prescriptive period for delictual actions is one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. One of the exceptions to this rule is the jur-isprudentially recognized doctrine of continuing tort. The continuing tort exception only applies when continuous conduct causes continuing damages. Bustamento v. Tucker, 607 So.2d 532, 542 (La.1992).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
163 So. 3d 66, 2014 La.App. 4 Cir. 0240, 2015 La. App. LEXIS 438, 2015 WL 926788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-hidden-lake-llc-of-al-lactapp-2015.