Hebert v. Calcasieu Parish School Board
Hebert v. Calcasieu Parish School Board
Opinion of the Court
Calcasieu Parish School Board (School) seeks supervisory writs from the trial court’s judgment which denied its exception of prescription. We deny writs and remand the matter for further proceedings.
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This case involves Ms. Jamie Hebert’s young daughter, Taylor, who fell during recess while in the School’s care and custody. She was injured when her head struck a concrete pad. The accident occurred on September 27, 2001. Taylor’s initial injuries consisted of a hemorrhage or contusion and a nondisplaced skull fracture. Subsequently, she had some “infrequent episodes of unusual behavior such as bed wetting, some clumsiness and complaints of dizziness,” but neither Ms. Hebert nor any examining physician ever associated any of these problems with the accident or a head injury of any kind.
However, on March 7, 2003, an EEG revealed that Taylor had an epileptic lesion, allegedly from the September 27th fall at school.
Accordingly, Ms. Hebert, individually and as natural tutrix of her minor child, Taylor, filed suit against the School on April 10, 2003. The School filed an exception of prescription, which the trial court denied. Consequently, the School petitions this court to exercise our supervisory jurisdiction to overturn the trial court’s decision and grant the exception.
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Prescription
Louisiana Civil Code Article 3492, in pertinent part, provides:
Delictual actions are subject to a li-berative prescription of one year. This prescription commences to run from the day injury or damage is sustained.
l.qThe instant action is a negligence action, or tort, and, therefore, delictual.
The jurisprudential doctrine of contra non valentum agere nulla currit praescriptio recognizes that “in some circumstances, equity and justice require that the prescription ‘be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.’ ”
Nonetheless, at that time, Taylor’s hemorrhage had healed even before the hospital released her and Ms. Hebert testified that the physicians told her the non-displaced fracture would heal without any treatment. Thus, she actually had knowledge only of two injuries, both of which were temporary and seemingly minor. The epileptic lesion is a wholly separate injury that Ms. Hebert was unaware of until she received the EEG results.
We find our prior decision in Bourque v. Louisiana Health Systems Corporation
We find the instant case similar in that the epileptic lesion is a totally separate medical condition from a hemorrhage or non-displaced skull fracture. Accordingly, we agree with the trial court that Ms. Hebert’s inaction, or choice not to immediately file a law suit for Taylor’s minor injuries, was reasonable. She did not learn of Taylor’s epileptic lesion, a serious and permanent condition, until March 7, 2003. Thus, she timely filed her cause of action within one year of that date.
CONCLUSION
We find that Ms. Hebert’s choice to refrain from filing suit for Taylor’s initial diagnosis of minor injuries should not preclude her from filing suit for Taylor’s | Bepileptic lesion, which was unknown to her until March 7, 2003. Therefore, we deny to grant the School’s writ. We cast the costs of these proceedings on Calcasieu Parish School Board.
WRIT DENIED.
. Myers v. Dronet, 01-5 (La.App. 3 Cir. 6/22/01), 801 So.2d 1097.
. Lima v. Schmidt, 595 So.2d 624 (La. 1992).
. Touchet v. Baker Hughes, Inc., 98-749, p. 5 (La.App. 3 Cir. 2/3/99), 737 So.2d 821, 824 (quoting Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206).
. Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960.
. Id.
. Jordan v. Employee Transfer Corp., 509 So.2d 420 (La. 1987).
. Harvey v. Dixie Graphics, 593 So.2d 351, 354 (La. 1992) (citations omitted).
. 03-56 (La.App. 3 Cir. 4/30/03), 845 So.2d 584, writs denied, 03-1866, 857 So.2d 480, 03-1882 (La. 10/31/03), 857 So.2d 481.
. Id. at 588.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.