224 F. Supp. 477 | E.D. La. | 1963
On October 22, 1961, the suspended ceiling of the Nola Theatre, located in the City of New Orleans, fell thereby causing physical injuries to a number of the theatre’s patrons. Plaintiff, American Mutual Liability Insurance Company, is the legal and conventional subrogee of United Theatres, Inc., owner and operator of the theatre and is the assignee of the claimants who have been paid for the injuries sustained when the ceiling fell. It has filed this diversity action against defendants. The Nola Theatre was erected in 1941 by Lionel F. Favret, the predecessor of the defendant, Lionel F. Favret Company, Inc., as contractor, and Diboll Kessels and Associates, as architects. The building was accepted by the owner on October 9,1941.
Defendants have moved for summary judgment and dismissal for failure to state a claim. Movers contend that plaintiff’s action has prescribed un
This action sounds in tort, not in contract. Prescription and the date on which it begins to run are governed by Article 3537 unless it can be shown that some other article is applicable.
On a close reading of Article 2762, it is apparent that it does not apply here. The article is found in the LSA-Civil Code under the section entitled “Letting Out Labor Or Industry.” We hold that this article is determinative only of the liabilities of the contractor or architect to an owner and does not relate to claims of third persons. Planiol,
The question of whether or not the action brought in this suit is prescribed by ten years as set out in Article 3545 is therefore one of first impression. No Louisiana decisions are available which are decisive of this issue. We are therefore required under such circumstances to interpret the law of Louisiana. Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946); Akin v. Louisiana National Bank of Baton Rouge, 5 Cir., 1963, 322 F.2d 749. A review of the history of the codal article does not show that this article was intended to apply to the tort action of third persons. Planiol, Volume 2, Nos. 1909-1917, discusses this question of prescription only with regard to actions against a contractor or architect. Nowhere in this treatise does the author raise the issue of the prescription of an action by a third party against the contractor or architect for personal injuries. The treatise discusses Article 3545 in conjunction with Article 2762
Article 3470 of the LSA-Civil Code states “There are no other prescriptions than those established by this Code and the statutes of this State now in force.” In order for a party successfully to plead prescription as a bar to an action it must be shown that the prescription is clearly applicable to the particular case. Prescriptive statutes are strictly construed, and the facts of the case must bring the action clearly within the specific provisions of the law sought to be applied. United Carbon Co. v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956). As stated previously, this is a tort action and the prescriptive period therefor is one year from the date of the injury. Movers have failed to show clearly that Articles 2762 and/or 3545 are applicable to the case at bar. It is our opinion that these articles do not contemplate or set forth a prescriptive period for a tort action of third persons but rather control the relationship between the contractor or architect and the owner of a building.
The motions of the defendants for summary judgment and for dismissal for failure to state a claim are therefore denied.
. Planiol, Marcel (1853-1931), was the author of Traite Elementaire De Droit Civil. This work is considered an authority on the civil law. This noted commentator on the Code Napoleon has, since the publication of his treatise, been held in high esteem by the courts and bar both in France and in Louisiana. (See Preface to the 12th Edition of Traite Elementaire De Droit Civil.)
. Historically Articles 2762 and 3545 of the LSA-Civil Code are derived from Articles 1792 and 2270 of the Code Napoleon, respectively. The cited Louisiana codal articles are substantially similar to their original French sources.
Article 1792 of the Code Napoleon read as follows:
“If the edifice, built at a set price, perish in whole or in part by defect in its*479 construction, even by defect in tbe foundation the architect and the contractor are responsible therefore (sic) for ‘ten years.’ ”
Article 2270 of the Code Napoleon read as follows:
“After ten years, architects and contractors are discharged from the warranty of workmanship performed or directed by them by estimate.”
It is obvious that the original French Code articles were dealing with obligations between owner and contractor or architect.