Bernard Gibson v. Jalou Cash's, LLC, Cash Magic Winners, and Scottsdale Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2019 CA 1308
V

BERNARD GIBSON

VERSUS

JALOU CASH' S, LLC, CASH MAGIC WINNERS, AND SCOTTSDALE
INSURANCE COMPANY

L JUL, 1 7 2020
Judgment rendered:

On Appeal from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
No. 2017- 0002326, Div. " C"

The Honorable Robert H. Morrison, III, Judge Presiding

Lawrence Black Jones Attorneys for Plaintiff/Appellant
Stephen F. Armbruster Bernard Gibson
New Orleans, Louisiana

Scott Davis Attorney for Defendant/ Appellee
Metairie, Louisiana Jalou Cash, Cash Magic, Scottsdale
Insurance

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

HOLDRIDGE, J.

Plaintiff, Bernard Gibson, appeals a judgment sustaining a peremptory

exception raising the objection of prescription and granting a motion for summary

judgment in favor of defendants, Jalou Cash' s, LLC, Cash Magic Amite, LLC, and

Scottsdale Insurance Company (collectively " defendants"). We affirm.

BACKGROUND

On August 18, 2017, Mr. Gibson filed this lawsuit against defendants,

alleging that on or about August 19, 2016, he was a guest at Forest Gold Truck

Plaza &
Casino in Amite, Louisiana, when a large speaker fell from the ceiling
onto his head. He alleged that he sustained severe injuries to his neck, back, and

shoulders as a result of the incident and sought to recover damages from

defendants based on negligence and strict liability causes of action.
On April 9, 2019,
defendants filed a peremptory exception raising the

objection of prescription and a motion for summary judgment. In support of the

exception and the motion, defendants offered evidence showing that the subject

incident occurred on August 13, 2016, not on August 19, 2016, as alleged in Mr.

Gibson' s petition. In light of this evidence, defendants claimed that the lawsuit,

filed on August 18, 2017, more than one year after the date of the accident, had

prescribed.

Defendants supported the motion and exception with evidence of three

reports of the incident listing the date thereof as August 13, 2016. These

documents included both a handwritten and typed incident report compiled by

casino personnel, as well as a Weiser Security Services, Inc. report. Additionally,

defendants offered the deposition testimony of Mr. Gibson, a letter of

representation from Mr. Gibson' s attorney to Forest Gold Truck Plaza and Casino,

and two letters from Nationwide' s claims adjuster to Mr. Gibson' s attorney.

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In the representation letter, dated September 19, 2016, Mr. Gibson' s attorney
advised the casino that he was representing Mr. Gibson for an incident that

occurred at the casino on August 19, 2016. Mr. Gibson' s attorney requested that

the letter be forwarded to the company' s general liability carrier and asked that the

company contact the attorney or his office if it had any " information, questions, or
comments."

On October 25, 2016, a Nationwide claims representative sent a letter to Mr.

Gibson' s attorney acknowledging receipt of the letter of representation for Mr.

Gibson. The letter assigned Mr. Gibson a claim number and listed the date of loss

as " August 19, 2016." In the letter, Mr. Gibson' s attorney was advised that the

loss was under investigation, and he was asked to provide additional information

regarding the facts of the incident. The attorney was asked to make Mr. Gibson

available for a recorded statement and to provide details regarding Mr. Gibson' s

injuries and treating physician. The claims adjuster provided contact information

and requested that Mr. Gibson' s attorney contact her if he had any questions or

needed additional information.

On November 1, 2016, Nationwide' s claims representative sent another

letter to Mr. Gibson' s attorney advising that the policy contained Medical Payment

Coverage with a limit of $1, 000. 00 per claimant and that medical expenses must be

incurred by Mr. Gibson and reported to the insurer within one year of the date of

the accident. This Medical Payment Coverage was offered to Mr. Gibson, and his

attorney was asked whether Mr. Gibson was making a bodily injury claim. The

letter lists the date of the loss as " August 19, 2016."

Mr. Gibson testified in his deposition that on the evening of the accident, he

went to the casino with two friends. He stated that while he was playing one of the

machines, something fell from the ceiling and hit him on the head. Mr. Gibson

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testified that after the object fell from the ceiling and hit him, he was covered in a

white substance and was " in a daze."
Following the incident, Mr. Gibson was first

approached by a casino hostess, Candy, who took pictures and gave him a glass of

water.
Mr. Gibson recalled that Candy asked if he was alright, but he could not

remember what he told her. He also recalled that a security guard, who had been

standing near the machine where Mr. Gibson was playing, wrote up a report after

asking Mr. Gibson for his address and telephone number. Mr. Gibson recounted

that someone told him a speaker had fallen on him and inquired whether he wanted

an ambulance.
Mr. Gibson, who was wheel -chair bound and had a lengthy hospital

stay in the past, declined to go to the hospital. He testified that as soon as he came

to his " senses," he told his companions to take him out of the casino. Mr. Gibson' s

friends drove him home, where Mr. Gibson' s girlfriend also lived. When Mr.

Gibson awoke the next morning, he was sore and had a headache. Mr. Gibson first

sought medical treatment for injuries stemming from the accident on September 6,

2016. Mr. Gibson stated that no one from the casino tried to get in contact with

him following the incident.

For the purpose of the motion and exception, Mr. Gibson did not dispute that

the subject accident occurred on August 13, 2016, as established by defendants'

documentary evidence. Instead, in opposition to the motion for summary
judgment, Mr. Gibson argued that material issues of fact existed in this case,

precluding the entry of summary judgment in this case. According to Mr. Gibson,

these contested material facts include: whether defendants provided Mr. Gibson

with documentation that would confirm the correct date of the accident; whether

defendants telephoned Mr. Gibson to discuss the accident with him; whether the

defendants who compiled the evidence provided it to the insurance adjuster with

whom Mr. Gibson' s attorney communicated with about the accident; whether

defendants adequately responded to Mr. Gibson' s attorney' s request for

information about the accident; whether there was any impediment preventing

defendants from providing Mr. Gibson' s attorney with copies of reports and videos

relevant of the accident; whether defendants concealed true and important facts

about the occurrence of the accident from Mr. Gibson' s attorney; and whether

defendants misled Mr. Gibson' s attorney about the actual date of the accident. Mr.

Gibson urged that the doctrine of contra non valentem should be applied by the

court to suspend the running of prescription, insisting that defendants withheld

information that would have allowed him to timely file his lawsuit. Specifically,

Mr. Gibson focused on the fact that after his attorney wrote to defendants asking
for " information," the attorney received two responses indicating that the " date of

loss" was August 19, 2016, a date they knew was incorrect. Mr. Gibson argued

that despite his attorney' s request for information regarding the accident,

defendants remained silent about its true date and played on Mr. Gibson' s

uncertainty as to the date of the accident by inducing Mr. Gibson to believe

something they knew to be untrue. According to Mr. Gibson, it would be unfair to

permit defendants to profit from their concealment and refusal to disclose

information about the correct date of Mr. Gibson' s accident. Further, Mr. Gibson

submitted,
defendants would not be prejudiced by allowing the lawsuit to be

maintained, as they knew about the accident and had ample opportunity to view
reports and videos of the accident. No evidence was attached to Mr. Gibson' s

memorandum to support his opposition to the motion for summary judgment or to

controvert the prescription objection.

A hearing on the motion and exception was held, during which defendants

offered the entire record as evidence, including the exhibits attached to their

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motion for summary judgment.' Mr. Gibson did not offer any evidence at the

hearing to support his contra non valentem argument. The trial court found that

Mr. Gibson had not demonstrated that defendants concealed information or

mislead him. Based on the uncontroverted fact that the lawsuit was not filed

within one year of the date of the accident, the trial court sustained the prescription

objection.

On June 18, 2019, the trial court signed a judgment sustaining the objection

of prescription, granting the motion for summary judgment, and dismissing all of

Mr. Gibson' s claims against defendants with prejudice. This appeal, taken by Mr.

Gibson, followed.

DISCUSSION

Mr. Gibson' s delictual action is subject to a prescriptive period of one year.

This prescription commences to run from the day the injury or the damage is
sustained.
La. C. C. art. 3492; Mulkey v. Century Indemnity Company, 2019-

1551 ( La. App 1st Cir. 8/ 7/ 19), 281 So. 3d 717, 721, writs denied, 2019- 01534 ( La.

11/ 25/ 19), 283 So. 3d 495 and 2019- 01576 ( La. 11/ 25/ 19) So. 3d ( 2018

WL 6523175). In this case, the lawsuit was not prescribed on the face of the

petition, as Mr. Gibson alleged that the accident occurred on August 19, 2016, and

the lawsuit was filed within one year of that date. Since the petition had not

prescribed on its face, defendants bore the burden of proving that the lawsuit was
prescribed. Mulkey, 281 So. 3d at 721.

At the trial on the peremptory exception, evidence may be introduced to

support or controvert the exception when the grounds thereof do not appear from

1 We note that there are two completely different standards for an exception hearing as opposed
to a hearing on a motion for summary judgment. See La. C. C. P. arts. 931, 966. While evidence
may be introduced at a hearing on a peremptory exception raising the objection of prescription,
evidence may not be introduced at a hearing on a motion for summary judgment. The only
documents that may be considered by the court on a motion for summary judgment are those
documents properly attached to the motion or opposition. See La. C. C. P. art. 966 (13)( 2).
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the petition. La. C. C. P. art. 931; Mulkey, 281 So. 3d at 721. If evidence is

introduced on the peremptory exception, the trial court' s findings of fact are

reviewed under the manifest error -clearly wrong standard of review. Id. Pursuant

to this standard of review, if the findings are reasonable in light of the record

viewed in its entirety, an appellate court may not reverse, even if convinced that

had it been sitting as the trier of fact, it would have weighed the evidence

differently. Id.

Defendants introduced evidence demonstrating that the subject accident did

not occur on August 19, 2016, as alleged in the petition, but occurred on August

13, 2016. This evidence is uncontroverted. Therefore, defendants satisfied their

burden of proving that Mr. Gibson' s lawsuit was filed more than one year from the

date of the accident in which his injuries were sustained, falling outside the

prescriptive period of La. C. C. 3492.

Because the defendant offered evidence which established that the lawsuit

was filed outside the one- year prescriptive period, Mr. Gibson bore the burden of

proving with competent evidence that prescription was interrupted or suspended.

See Raborn v. Albea, 2013- 0633 ( La. App. 1st Cir. 4/ 16/ 14), 144 So. 3d 1066,

1071, writ denied, 2014- 1239 ( La. 9/ 26/ 14), 149 So. 3d 264. Mr. Gibson maintains

that prescription on his cause of action was suspended under the jurisprudential

doctrine known as contra non valentem non currit praescriptio, which means that

prescription does not run against a party unable to file suit. Jenkins v. Starns,

2011- 1170 ( La. 1/ 24/ 12), 85 So. 3d 612, 623. Courts have applied the suspensive

theory of contra non valentem in four circumstances. Mr. Gibson contends that the

third and fourth categories of contra non valentem may apply in this case to

suspend the running of prescription on his claim. In the third category, contra non

valentem has been applied when the defendant has done some act to prevent the

plaintiff from availing himself of his cause of action. In the fourth category, courts

have applied the doctrine to suspend the running of prescription when the cause of

action is not reasonably knowable by the plaintiff, even though his ignorance is not

induced by the defendant. See Jenkins, 85 So. 2d at 623.

The Supreme Court has made it clear that the doctrine of contra non

valentem applies only in " exceptional circumstances." Marin v. Exxon Mobil

Corp., 2009- 2368 ( La. 10/ 19/ 10), 48 So. 3d 234, 245. In Marin, the court stated

that " this principle will not exempt the plaintiff' s claim from the running of

prescription if his ignorance is attributable to his own willfulness or neglect; that

is, a plaintiff will be deemed to know what he could by reasonable diligence have

learned." Thus, the fourth category of contra non valentem will not exempt the

plaintiff' s claim from the running of prescription if his ignorance is attributable to

his own willfulness or neglect. Marin, 48 So. 3d at 246. Since it has been

established that the plaintiff' s accident occurred on August 13, 2016, the issue

becomes whether or not the plaintiff could have learned of the date of his accident

by reasonable diligence.

Mr. Gibson failed to offer evidence demonstrating that his cause of action

was not reasonably knowable to him on August 13, 2016. Mr. Gibson was

accompanied at the casino with two friends when a speaker fell from the ceiling

and hit him in the head. The cause of Mr. Gibson' s injuries and damages were

immediately known to Mr. Gibson at the time of the accident. While Mr. Gibson

may have been momentarily " dazed" by the accident, he recalled providing

information to casino employees and that one of the employees appeared to be

writing a report of the incident. Mr. Gibson could have easily ascertained the

correct date of the accident by requesting a copy of the incident report. Further, he

could have questioned his friends or his fiance to ascertain the actual date of the

accident. In short, Mr. Gibson failed to show that his disability, age, or temporary

impairment from being hit by the speaker played any part in the untimely filing of

his lawsuit. Therefore, the trial court' s conclusion that the fourth category of

contra non valentem did not apply under the circumstances of this case is entirely

reasonable and is not manifestly erroneous.

In order for the third category of contra non valentem to apply, a plaintiff

must demonstrate that: ( 1) the defendant engaged in conduct which rises to the

level of concealment, misrepresentation, fraud or ill practices; ( 2) the defendant' s

actions effectually prevented the plaintiff from pursuing a cause of action; and ( 3)

the plaintiff must have been reasonable in his inaction. Marin, 48 So. 3d at 252.

Mr. Gibson offered no evidence to show that defendants did anything to

prevent him from availing himself of his cause of action. The initial letter sent by

plaintiff' s attorney to the defendant listed the accident date as August 19, 2016.

No evidence was introduced by Mr. Gibson as to why he did not know that the

actual date was August 13, 2016. Subsequent letters sent by the insurance

company referenced the date August 19, 2016, in accordance with the plaintiff' s

attorney' s initial letter. The evidence shows that Mr. Gibson was aware a report

was being prepared shortly after the incident by the casino, but there is no evidence

demonstrating that Mr. Gibson or his attorney requested that report or any other

evidence that may have been compiled in connection with his claim from the

casino or the insurer. There are requests from the claims adjuster for additional

information surrounding the incident and medical evidence regarding the nature of

Mr. Gibson' s injuries; however, there is no evidence showing that Mr. Gibson' s

attorney provided this evidence. In the absence of any evidence introduced by the

plaintiff from which one could reasonably conclude that defendants misled Mr.

Gibson regarding the actual date of the accident, the trial court did not manifestly

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err in refusing to apply the third category of contra non valentem to suspend the

running of prescription on Mr. Gibson' s lawsuit.

For these reasons, we conclude that the trial court properly sustained the

peremptory exception raising the objection of prescription. As we have resolved

the matter before us on the prescription objection, we pretermit any discussion of

the entry of summary judgment in favor of defendants.

CONCLUSION

For the foregoing reasons, the judgment sustaining the peremptory exception

raising the objection of prescription and dismissing this lawsuit with prejudice is

affirmed. All costs of this appeal are assessed to appellant, Bernard Gibson.

AFFIRMED.

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