Alvarez v. Se. Commercial Cleaning, LLC

• Decision Date: 26 February 2014
• Docket Number: No. 13–CA–657.,13–CA–657.
• Parties: Irma ALVAREZ v. SOUTHEAST COMMERCIAL CLEANING, LLC d/b/a South Florida Cleaning Systems, Louisiana–I Gaming, A Louisiana Partnership in Commendam, Boomtown, L.L.C. of Delaware, Pinnacle Entertainment, Inc. of Delaware, Louisiana Gaming Enterprises, Inc. and Tudor Insurance.
• Court: Court of Appeal of Louisiana — District of US

136 So.3d 329

Irma ALVAREZ
v.
SOUTHEAST COMMERCIAL CLEANING, LLC d/b/a South Florida Cleaning Systems, Louisiana–I Gaming, A Louisiana Partnership in Commendam, Boomtown, L.L.C. of Delaware, Pinnacle Entertainment, Inc. of Delaware, Louisiana Gaming Enterprises, Inc. and Tudor Insurance.

No. 13–CA–657.

Court of Appeal of Louisiana,
Fifth Circuit.

Feb. 26, 2014.

[136 So.3d 331]

Ivan A. Orihuela, Attorney at Law, Kenner, Louisiana, for Plaintiff/Appellant, (Irma Alvarez).

Ethan N. Penn, Amanda H. Aucoin, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees, (Southeast Commercial Cleaning, LLC and Tudor Insurance Company).

Robert H. Murphy, Jeffrey A. Raines, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee, (Louisiana–I Gaming, A Louisiana Partnership in Commendam, Boomtown, LLC of Delaware, and Pinnacle Entertainment, Inc. of Delaware).

Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.

JUDE G. GRAVOIS, Judge.

Plaintiff, Irma Alvarez, has appealed the trial court's grant of defendants' exceptions of prescription in her slip-and-fall tort suit. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 31, 2012, plaintiff filed a petition for damages which alleged that on January 31, 2011, she slipped and fell at the Boomtown Casino (“Boomtown”) located in Harvey, Jefferson Parish, Louisiana, “as a result of a dangerous condition on the premises, namely a wet floor, causing her personal injuries and other damages.” Named as defendants in plaintiff's petition are: 1) Louisiana–I Gaming, A Louisiana Partnership in Commendam, Boomtown, LLC of Delaware, and Pinnacle Entertainment, Inc. of Delaware (collectively, “the Boomtown defendants”); 2) Louisiana Gaming Enterprises, Inc. (“Louisiana Gaming”); ¹ and 3) Southeast Commercial Cleaning, LLC d/b/a South Florida Cleaning System (“Southeast”), and its insurer, Tudor Insurance Company (“Tudor”).

On October 19, 2012, the Boomtown defendants filed an exception of prescription, alleging in their accompanying memorandum that they had evidence that plaintiff's accident actually occurred on January 30, 2011. They concluded that plaintiff's claim filed on January 31, 2012, one year and one day after her accident, was accordingly prescribed.

On October 23, 2012, Southeast and Tudor filed a similar exception of prescription, alleging in their accompanying memorandum that they had documentary evidence and certified medical records that showed that the slip and fall alleged in plaintiff's petition actually occurred on January 30, 2011, and therefore plaintiff's petition for damages filed on January 31, 2012 was prescribed.

On December 6, 2012, the trial court held a hearing on defendants' prescription exceptions. At the hearing, the Boomtown defendants argued that the incident report prepared by a Boomtown Casino security officer, Tommie Williams, shows that plaintiff's accident occurred on January 30, 2011. They also submitted a video of plaintiff's accident which indicates that the accident occurred on January 30, 2011 at 9:25 p.m. Additionally, they submitted a

[136 So.3d 332]

certified copy of plaintiff's medical records from Ochsner Medical Center which indicate that plaintiff presented to the hospital on January 30, 2011 at 10:39 p.m. complaining of right leg and right arm pain and that she had tripped and fell. The Boomtown defendants argued that this evidence established that plaintiff's accident had in fact occurred on January 30, 2011, and that plaintiff's suit, filed one year and one day after the accident occurred, was prescribed.

Southeast and Tudor contended at the hearing that the only relevant inquiry for determination by the trial court at the hearing was the date of the accident. They argued that the hospital records which indicate that plaintiff was treated on January 30, 2011 establish that plaintiff's accident actually occurred on that date, which makes the filing of her petition for damages one day too late.

In response, plaintiff argued at the hearing that prescription statutes are to be strictly construed against prescription and in favor of maintaining the action. Plaintiff pointed out that because her petition for damages alleges that the accident occurred on January 31, 2011 and her suit was filed on January 31, 2012, the suit is not prescribed on its face. In support of her position that the accident occurred on January 31, 2011, plaintiff submitted a copy of a letter from Tudor which states that the date of the accident was January 31, 2011. Plaintiff argued that this indicates that Tudor investigated the claim and determined that January 31, 2011 was the date of the accident. Plaintiff also submitted certified medical records from Advanced Medical Center of Gretna where plaintiff received follow-up care and those records state the date of the accident as being January 31, 2011. Plaintiff argued that because there is conflicting evidence, pursuant to the rules of strict construction in favor of maintaining the action, the court was required to rule in favor of maintaining plaintiff's suit.

Plaintiff further argued at the hearing that the doctrine of contra non valentem applied in her case because she was not actually diagnosed with an injury until January 31, 2011. She argued that she did not have the opportunity to investigate the accident until after January 31, 2011 to determine if defendants were in fact responsible for her slip and fall.

At the hearing, plaintiff objected to the admissibility of the Boomtown incident report, arguing that although an affidavit of Jeannine Richert was attached to the report to establish its authenticity, it was Tommie Williams, and not Ms. Richert, who had personal knowledge of the accident; thus the report was inadmissible because Ms. Richert could not properly authenticate the report. Plaintiff also objected to the admissibility of the video of the accident because she allegedly had not been previously provided with a copy of the video. Plaintiff also requested an opportunity to amend her petition in the event that the court would grant defendants' exceptions.

Following argument by the parties, the trial court overruled plaintiff's objections and allowed introduction of all evidence submitted by defendants. At the conclusion of the hearing, the trial court granted the exceptions of prescription, stating that the incident report, surveillance video, and emergency room records clearly show that plaintiff's accident occurred on January 30, 2011, and accordingly, the one-year liberative prescriptive period within which plaintiff had to file suit in this case ended on January 30, 2012; plaintiff's suit filed on January 31, 2012 was thus prescribed. This timely appeal followed.

LAW AND DISCUSSION

Prescription is a peremptory exception which is provided for in

[136 So.3d 333]

La. C.C.P. art. 927. Evidence in support or contravention of this exception may be introduced if the grounds thereof are not apparent from the petition. La. C.C.P. art. 931. If evidence is introduced in support or contravention of the exception, the ruling on the exception of prescription is reviewed by an appellate court under the manifest error standard of review. Dugas v. Bayou Teche Water Works, 10–1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826, 829–30. If no evidence is introduced, the appellate court's role is to determine whether the trial court's ruling was legally correct. Id. at 830. Generally, the burden of proof lies on the party pleading the exception of prescription. Id. It is only when petition is prescribed on its face that the burden shifts to the plaintiff to show that the action has not prescribed. Id.

At the hearing on the exceptions in the present case, evidence was introduced by all of the parties. Accordingly, our review of the trial court's ruling herein will be under the manifest error standard of review.

Delictual actions are subject to a liberative prescription of one year, commencing from the day the injury or damage is sustained. La. C.C. art. 3492. In computing a prescriptive period, the day that marks the commencement of prescription is not counted and prescription accrues upon the expiration of the last day of the prescriptive period. La. C.C. art. 3454.² When the prescriptive period is one year, prescription accrues on the last day of the year that corresponds with the date of the commencement of prescription. La. C.C. art. 3456. A petition in a tort action filed one year and one day after the date of the accident is prescribed. Bourg v. Woods, 09–628 (La.App. 5 Cir. 1/26/10), 31 So.3d 1123.

ASSIGNMENT OF ERROR NUMBER ONE Evidence introduced and applicable law supports finding that trial court erred in sustaining defendants' exceptions of prescription.

In her appellate brief, plaintiff raises the same arguments presented to the trial court. First, she argues that there is evidence in the record to show that the accident occurred on January 31, 2011. In support of this position, she refers to excerpts in the Ochsner medical records. She points out...