Opinion
No. 01-0943
January 16, 2002.
I dissent for the following two reasons.
STATE'S DUTY TO BRING THE LAWSUIT
First, in this instance, the state had the duty to bring the lawsuit on Wall's behalf. Prescription does not run in favor of the one who has the duty to bring the lawsuit. The conduct occurred while Wall was in the custody of the state. The state had an obligation to bring the cause of action on Wall's behalf while she was in state custody. In its analysis, the majority discusses the Bouterie case and the legislature's amendment to La. Code Civ.P. art. 683, and they determine the ruling of the case which suspended prescription has no application to this case. Bouterie v. Crane, 616 So.2d 657 (La. 1993). I respectfully submit that this analysis is flawed. The majority misinterprets the reasoning of the case and the legislative intent in amending the statute.
In Bouterie, the minor's natural father was absent, her mother had lost legal custody of the minor, her aunt had physical custody of the minor, and the state had legal custody of the minor. There was confusion in the law as to who was the proper party to enforce the litigious rights of the minor. The supreme court recognized that La. Code Civ.P. art. 683 was a statutory deficient law which did not provide the minor with a proper plaintiff to represent her. At the time, the court recognized, "LSA-C.C.P. art. 683, which mandates that an un-emancipated minor lacks the procedural capacity to sue, presumes the un-emancipated minor is under the 'parental authority' of both natural parents or of one parent who is natural tutor/tutrix, or is before a court which appoints a tutor to safeguard his or her legal rights." Id. at 662. The statute simply did not address a situation where physical custody was awarded to one person and legal custody was awarded to the state. The court recognized that it was prejudicial for custody to be split in this manner leaving a minor without a party clearly responsible under the law to preserve and enforce the rights of the minor.
Following the lead of the supreme court, the legislature subsequently amended La. Code Civ.P. art. 683 by adding paragraph D to the statute which states in part, ". . . an attorney appointed by the court having jurisdiction over an un-emancipated minor who is in the legal custody of the Department of Social Services is the proper plaintiff to sue to enforce a right of an un-emancipated minor. . . ." Accordingly, when a minor is in the legal custody of the Department of Social Services, this department is the proper party to enforce and protect the litigious rights of the minor. As such, the legislative intent in amending the statute stood for the proposition that custody could not be split as it had in the previous case leaving a minor without protection of their rights. The state is now clearly charged by law with the ultimate responsibility for enforcing the rights of a minor in state custody.
In the current case, the state was responsible for bringing an action on behalf on Wall. She was in its custody when the injury occurred continuing for ten months after the injury. It would be unconscionable for the state to benefit by allowing the prescriptive period to lapse to avoid liability. This would be analogous to a father molesting his minor child who is in his custody and then causing the child to lose her rights because the father is protecting himself. This would be unconscionable. Similarly, it is unconscionable for the Wall's action to be dismissed because the state did institute an action against itself in a timely fashion.
Bouterie applies the maxim that one can not be allowed to profit from his own wrong doing. " Nemo ex dolo suo proprio relevetur, aut auxilium capiat." This principle, while heretofore only cited in English, is well recognized in Louisiana Law.
With equal profundity and eloquence Chief Justice Monroe of the Louisiana Supreme Court in 1916 stated: "No law was ever enacted which contemplated the defeat of its purpose by fraud, and no court was ever organized which would knowingly permit a litigant to profit by his own wrong," concurring in Hyman v. Hibernia Bank Trust Co., 139 La. 411, 71 So. 598, 606 (La. 1916). Hyman in general and the concurring opinion of Chief Justice Monroe in particular are cited to this day for the contra non valentem exception to prescription. See Plaquemines Parish Com'n. Council v. Delta Development, 502 So.2d 1034 (La. 1987).
Evans v. Canadianoxy Offshore Production, 98-835, p. 7 (La.App. 3Cir. 12/9/98); 730 So.2d 466, 469.
In the present case, we are allowing prescription to run in favor of the state. In effect, we are allowing the state to benefit from its own inaction and violating the teaching of our Roman ancestor, of Justice Monroe and of Judge Yelverton who quotes Justice Monroe in Evans. The doctrine of contra non valentem which prevents the running of prescription in favor of the state should be used in this instance.
LEGISLATIVE EXCEPTIONS FOR MINORS
Second, the one year liberative prescriptive period for delictual actions begins to run from the date that the injury or damage is sustained. La.Civ. Code art. 3492. However, the legislature has established two exceptions to the one year prescriptive period for minors in cases of sexual abuse.
First, La.R.S. 9:2800.9 provides in pertinent part:
An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring is subject to a liberative prescriptive period of ten years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended for all purposes until the minor reaches the age of majority. Abuse has the same meaning as provided in Louisiana Children's Code Article 603(1). This prescriptive period shall be subject to any exception of peremption provided by law.
(Emphasis added.)
Further, Louisiana Children's Code Article 603(1)(c) defines abuse as, "[t]he involvement of the child in any sexual act with a parent or any other person, or the aiding or toleration by the parent or the caretaker of the child's sexual involvement with any other person . . ."
Second, La.C.C. art 3496.1 provides the following:
An action against a person for abuse of a minor is subject to a liberative prescriptive period of three years. This prescription commences to run from the date the minor attains majority, and this prescription, for all purposes, shall be suspended until the minor reaches the age of majority. This prescriptive period shall be subject to any exception of peremption provided by law.
(Emphasis added.)
Both of these exceptions suspend prescription until the minor reaches the age of majority. As such, Wall's mother instituted the action on Wall's behalf in a timely manner. The petition was filed when Wall was sixteen. According to the above statutes, prescription on the action did not commence until she reached the age of majority. In fact, Wall had plenty time to institute such an action.
In Dugas v. Durr, we held that an action for inadequate supervision allowing a teenager to be raped is governed by 3496.1 and a 3 year prescription is applicable. I cannot distinguish this case from the one before us and suggest that it is controlling. Dugas v. Durr, 96-744 (La.App. 3Cir. 3/6/98); 707 So.2d 1368.
For all of these reasons, I dissent. Wall's action was filed in a timely manner, and her claim is not barred by prescription.