Laughlin v. Breaux

• Decision Date: 14 October 1987
• Docket Number: No. 86CA1085,86CA1085
• Citation: 515 So.2d 480
• Parties: Christine Price LAUGHLIN v. Craig BREAUX.
• Court: Court of Appeal of Louisiana — District of US

Page 480

515 So.2d 480

Christine Price LAUGHLIN v. Craig BREAUX.

No. 86CA1085.

Court of Appeal of Louisiana,

First Circuit.

Oct. 14, 1987.

Kim A. Gandy, New Orleans, for plaintiff and appellee--Christine laughlin.

William H. Dunckelman, Houma, for defendant and appellant--Craig Breaux.

Before GROVER L. COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

SAVOIE, Judge.

This case is a tort action filed by Christine Price Laughlin (Plaintiff) against Craig Breaux (Defendant). Plaintiff sought to recover damages from Defendant, her former boyfriend, for his alleged physical and verbal abuse of Plaintiff.

Trial was held on January 6, 7, and 8, 1986. The jury rendered a verdict in favor of Plaintiff, awarding her $10,000 for past and future medical expenses, $40,000 for physical pain and suffering, and $100,000 for mental anguish. Pursuant to Defendant's motion for remittitur, the judge reduced the jury's award to $57,297, of which $50,000 represents general damages and $7,297 represents medical expenses. Defendant has appealed this judgment and Plaintiff has answered the appeal.

Defendant has raised two assignments of error: (1) the trial court erred in allowing the jury to hear testimony concerning certain incidents of alleged abuse which the judge later ruled were prescribed; and (2) the trial court erred in awarding the Plaintiff damages, and the damages award was excessive. The Plaintiff has answered the appeal, raising as error the trial court's ruling that certain incidents of alleged abuse were prescribed, the trial court's granting a remittitur, and the trial court's assessment of costs and award of expert witness fees.

PRESCRIPTION

In Plaintiff's petition, filed on March 28, 1985, she alleged that Defendant had beaten, raped, or verbally abused her on the following dates: December 23, 1982; Mardi Gras, 1983; Summer, 1983; November, 1983; Mardi Gras, 1984; June 2, 1984; June 9, 1984; June 16, 1984; August 25 and 28, 1984; September 16, 1984; December 7, 1984; and February 27, 1985. Plaintiff further alleged that the list of dates was not exclusive. Defendant filed a peremptory exception of prescription as to all incidents ocurring one year prior to suit being filed under LSA-C.C. art. 3492. After a hearing, the court dismissed the exception "subject to the matter being brought before the court at the time of trial."

At trial, after Plaintiff and Defendant presented their evidence, Defendant reurged the exception of prescription. The trial judge sustained the exception. The judge instructed the jury in his charge that "the claim for damages in this suit, should damages be awarded, can be assessed only for the injuries occurring within one year of the filing of this suit. This action was filed by Plaintiff on March 28, 1985. Therefore, the appropriate time period commences March 28, 1984. Not before." During deliberations, the trial judge received this question from the foreperson of the jury: "Can we please have dates and incidents which allegedly occurred between March 28, 1984 and March, 1985?" The court, after hearing argument from both counsel, denied the foreperson's request. Attorneys for both Plaintiff and Defendant suggested this course of action.

Plaintiff contends the doctrine of contra non valentum is applicable to those incidents occurring prior to March 28, 1984. Because Plaintiff was suffering from Battered Woman's Syndrome, she contends she was unable to file suit. Plaintiff's treating psychologist, Dr. Clarence Bergeron, testified that Plaintiff possessed the characteristics of Battered Woman's Syndrome, one of which is learned helplessness. Learned helplessness was explained as "once one receives a great amount of punishment, they [sic] tend to stop responding. What that means clinically would be passivity, a minor amount of depression, or inability to do things for oneself [sic], or expectancy that others would do things for her." Plaintiff contends that this learned helplessness prevented her from filing suit. We find that this symptom is not, of itself, sufficient to interrupt prescription under contra non valentum.

The doctrine of contra non valentum is applicable when a defendant's tortious conduct produces a mental and physical incapacity in a plaintiff, rendering him unable to file suit; during the time of the incapacity, prescription does not run. Corsey v. State Department of Corrections, 375 So.2d 1319 (La.1979). The evidence in the case before us shows that Defendant's conduct did not produce such an incapacity in Plaintiff that she was unable to file suit.

As pointed out by the trial judge in his oral reasons given when he sustained Defendant's exception of prescription, during the time of the alleged abuse, the testimony showed that Plaintiff was running her own business; that Plaintiff had discussed the situation with Defendant with various friends; that Plaintiff had called the police based on an altercation she had had with Defendant; that Plaintiff saw a psychologist on April 12, 1984, in order to deal with Defendant; that Plaintiff called a counselor at the YMCA to seek advise about Defendant on March 13, 1984. Furthermore, Plaintiff was not living with Defendant, nor was she married to him, circumstances which may have caused her to refrain from taking any legal action.

Nor do we find any merit to Plaintiff's contentions that Defendant's actions constituted a continuing tort. The principle of a continuing tort only applies when continuous conduct causes continuing damages. South Central Bell Telephone Co. v. Texaco Inc., 418 So.2d 531 (La.1982) In this action each incident of battery and of assault is separate, and gives rise to a separate cause of action. See Bouton v. Allstate Insurance Co., 491 So.2d 56 (La.App. 1st Cir.1986). Thus, the conduct of Defendant is not continuous. Prescription runs from the date damages are sustained; damages are sustained from the date the injury is inflicted if they are immediately apparent to the victim, even though the extent of the damages may not be known. Home Insurance Co. v. Highway Insurance Underwriters, 52 So.2d 449 (La.App. 1st Cir.1951). In this action, Plaintiff testified as to several different incidents of abuse by Defendant. After the abuse, she was physically bruised and sore, and emotionally upset. These injuries were immediately apparent. Prescription runs from this time, even though several different incidents of abuse may have combined to produce Plaintiff's Battered Woman's Syndrome. For these reasons, we find that the trial judge was correct in ruling that Plaintiff's cause of action for any incidents occurring prior to March 28, 1984 had prescribed.

We must now examine whether it was error for the jury to hear evidence dealing with those incidents of abuse occurring prior to March 28, 1984.

Most of the testimony of Plaintiff's witnesses concerned incidents prior to March 28, 1984. Janice Cates, Plaintiff's friend, testified that Defendant verbally abused Plaintiff at the Houma Bowl in the summer of 1983 and grabbed Plaintiff's arm on that occasion. Ms. Cates also testified to a similar incident at the bar Yesterday's in the fall of 1983. Nancy Ledet, a neighbor of Plaintiff's, testified that Plaintiff told her about an incident in December, 1983, when Defendant allegedly raped Plaintiff after a Saints game. She also testified as to an incident during Mardi Gras of 1983 where Plaintiff called the police from Ms. Ledet's house because Defendant would not leave the Plaintiff's home. Archie Eskind, another neighbor, testified that he witnessed Defendant kicking Plaintiff in her backyard while she was lying on the ground. Eskind testified that this happened in 1983. Catherine Dubois, Plaintiff's close friend, testified that Plaintiff had told her about the alleged rape which occurred after the Saints game in 1983. Janet Price, Plaintiff's mother, testified that Plaintiff related to her instances of abuse occurring in February, 1983, in December, 1983, and in December, 1982. None of these witnesses testified as to any abuse occurring after March 28, 1984. Jo Karen Nelson, coordinator of the YMCA Family Violence Program, testified that on March 13, 1984, Plaintiff called the YMCA on the phone and said she was being threatened over the phone by Defendant. Gordon Voison, a counsellor at the Terrebonne Parish Mental Health Center, as with the previous witnesses, did not testify as to any specific instances of abuse occurring after March 28, 1984. Dr. Mary Capps, a sociologist who had interviewed Plaintiff, did not testify as to abuse occurring after March 28, 1984.

Four witnesses testified concerning instances of abuse taking place after March 28, 1984: the Plaintiff; the Defendant when called under cross-examination; James Smith, Plaintiff's friend; and Dr. Clarence Bergeron, Plaintiff's psychologist. James Smith testified that he saw Plaintiff on February 28, 1985, and that she had "bruised marks on both cheeks of [sic] her eyes and she had a mark on her hand--a handmark on her wrist." Mr. Smith testified that when he asked Plaintiff how she became bruised, she told him that the Defendant beat her up. Plaintiff's testimony concerned a rape on December 23, 1982, some physical abuse during Mardi Gras in 1983, the verbal abuse at Houma Bowl and Yesterday's in 1983, the rape after the Saints' game in 1983, and the physical abuse during Mardi Gras, 1984. Plaintiff testified that in June 1984, Defendant pushed her around at Plaintiff's florist's shop when she refused to have sex with him. She also said that on June 16, 1984, Defendant forced her to have sex with him. She testified that after this there were other incidents where Defendant pushed her around. She described an incident on February 27, 1985 where Defendant twisted her arm behind her back, resulting in a sprained arm. Defendant when called on cross-examination was only questioned about one incident occurring after March 28, 1984. Defendant was asked...