312 So.3d 647
La. Ct. App.2020Background
- On July 21, 2017 Devan Smith (father of plaintiff’s children) was shot and killed outside plaintiff Keishonna Whitney Allen’s apartment at the Michaels Development property; plaintiff alleges negligent failure to provide adequate security.
- Allen filed suit on October 7, 2019 (more than one year after the shooting). Apartment Defendants filed exceptions, including prescription, on December 11, 2019.
- Allen amended her petition on February 11, 2020, alleging she first learned additional facts giving rise to a claim (intermittent security, history of similar crimes, and that defendants had assumed a security duty) during a meeting with attorneys on September 4, 2019.
- No evidence was introduced at the prescription hearing; the district court granted the peremptory exception of prescription on March 9, 2020 and dismissed the suit.
- On appeal the court accepted Allen’s pleaded facts as true, found the district court erred by treating the September 4 meeting as merely notice of legal rights (ignorance of law) and not as discovery of operative facts, and vacated and remanded for further proceedings (including an evidentiary hearing and opportunity to amend).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discovery rule (contra non valentem) suspended prescription | Allen: she did not know the facts supporting a claim until Sept. 4, 2019 meeting; prescription tolled until then | Defendants: meeting only informed her of legal rights; ignorance of law does not toll prescription | Appellate court: cannot resolve on pleadings alone; district court erred in ignoring pleaded factual allegations—vacated and remanded for evidentiary development |
| Whether the exception could be granted without evidentiary hearing or permitting amendment | Allen: petition alleges facts that, if true, defeat prescription and she should be allowed to amend and present evidence | Defendants: exception may be raised pretrial and decided before trial | Appellate court: where no evidence was introduced, the petition’s facts must be accepted; ordered remand for evidentiary hearing and allowed amendment opportunity |
Key Cases Cited
- Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984) (business may assume a duty to protect by hiring security and be liable for negligent performance)
- Denoux v. Vessel Mgmt. Servs., Inc., 983 So.2d 84 (La. 2008) (if no evidence at prescription hearing, court must accept petition allegations as true)
- Wilhike v. Polk, 999 So.2d 83 (La. App. 4 Cir. 2008) (describes discovery-rule category of contra non valentem and tolling when cause not reasonably knowable)
- Albe v. City of New Orleans, 150 So.3d 361 (La. App. 4 Cir. 2014) (distinguishes ignorance of facts from ignorance of law; mere ignorance of legal rights does not toll prescription)
- Scott v. Zaheri, 157 So.3d 779 (La. App. 4 Cir. 2014) (plaintiff should be allowed to amend petition where new allegations might overcome prescription)