Ashley Carollo v. Tulane University

ASHLEY CAROLLO * NO. 2024-CA-0038

VERSUS *
COURT OF APPEAL
TULANE UNIVERSITY *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2023-01437, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Rachael D. Johnson
******
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge
Rachael D. Johnson)

Douglas M. Schmidt
Sylvia C. Cabiran
DOUG SCHMIDT, A.P.L.C.
335 City Park Avenue
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Rebecca Sha
Clerc Cooper
PHELPS DUNBAR LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130--6534

COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
January 9, 2025

RDJ Appellant, Ashley Carollo (“Ms. Carollo”), appeals the trial court’s October
RML
TGC 4, 2023 judgment granting Appellee’s, Tulane University’s (“Tulane”), exceptions

of prescription and no cause of action. For the following reasons, we affirm the

trial court’s ruling.

FACTS AND PROCEDURAL HISTORY

On January 9, 2021, Ms. Carollo attended swim practice as a member of

Tulane’s Swim and Dive team at the University of New Orleans Natatorium.

During practice, the assistant coach for the Swim and Dive team instructed Ms.

Carollo and other team members to perform a backstroke exercise that involved

landing on a yoga mat placed on the surface of the pool. Before performing this

exercise, Ms. Carollo expressed concern to her assistant coach, telling him that she

did not want to do the exercise. The assistant coach instructed Ms. Carollo to

perform the exercise anyway. Under the assistant coach’s instruction, Ms. Carollo

performed the exercise, which resulted in her body striking the yoga mat.

Immediately afterwards, Ms. Carollo told her assistant coach that she had severe

pain in her head, she did not feel right, and she was disoriented. The assistant

coach instructed Ms. Carollo and the swim team to continue practicing “swimming

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starts” over the next forty-five minutes. After practice, the team took a forty-five

minute bus ride back to Tulane’s campus. During that ride, Ms. Carollo said she

could barely keep her eyes open. Once she arrived back at Tulane’s campus, Ms.

Carollo went to the athletic trainer and reported the incident from practice. The

athletic trainer gave Ms. Carollo a concussion symptom checklist, which resulted

in her scoring thirty-nine points above her baseline with errors in balance. The

athletic trainer recommended that Ms. Carollo rest.

On January 12, 2021, Ms. Carollo was treated by Dr. Gregory Stewart (“Dr.

Stewart”) at the Tulane Institute for Sports Medicine. Dr. Stewart informed Ms.

Carollo that she had a concussion, but she could return to swim practice on January

13, 2021. After three weeks with no improvement, Dr. Stewart sent Ms. Carollo for

an MRI. When Ms. Carollo asked for an analysis of her MRI results, Dr. Stewart

stated that “You have a brain in there”, refused to discuss the results any further,

and then told her that she could return to practice. Ms. Carollo continued to

experience migraines and headaches throughout her 2021 spring semester at

Tulane. On July 30, 2021, Ms. Carollo suffered another head-related injury during

a swim meet when she was kicked in the head.

On August 5, 2021, Dr. Nicole Reams (“Dr. Reams”) of Northshore

University Health System, Department of Neurology in Glenview, Illinois,

examined Ms. Carollo. During her visit with Dr. Reams, Ms. Carollo complained

of constant headaches, head pressure, nausea with activity, car sickness, and

migraine headaches. Dr. Reams informed Ms. Carollo about the national standard

for concussion protocol and told her that Dr. Stewart did not provide an acceptable

standard of care when treating Ms. Carollo in January 2021. In August 2022, Ms.

Carollo filed a medical review panel request against Dr. Stewart, but the review

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was invalid and without effect because Ms. Carollo failed to remit the $100 filing

fee. Since October 2022, Ms. Carollo has been receiving treatment from the LA

Health Solutions Neurology facility.

Ms. Carollo filed her initial petition for damages against Tulane on February

17, 2023, and an amended petition on June 19, 2023. Ms. Carollo alleged that she

sustained a traumatic brain injury along with spine and neck injuries. She asserted

that Tulane committed gross negligence and that Tulane breached their contract

pursuant to La. C.C. art. 2004. On May 17, 2023, Tulane filed exceptions of no

cause of action and prescription. Tulane asserted that Ms. Carollo’s gross

negligence claims were prescribed pursuant to La. C.C. art. 3492 and that she

cannot bring a breach of contract claim because she failed to allege any contractual

provision that Tulane breached. On October 4, 2023, the district judge granted the

exceptions of no cause of action and prescription, dismissing Ms. Carollo’s breach

of contract and gross negligence claims with prejudice. On October 13, 2023, Ms.

Carollo filed a motion for new trial; and on October 23, 2023, she filed a notice of

appeal.

On appeal, Ms. Carollo outlines five assignments of error: (1) the trial court

erred in finding that the Concussion Form was not a contract; (2) The trial court

erred in finding that because no term or condition under the contract was breached

by Tulane, there was no basis for a contract claim; (3) the trial court erred in failing

to see the difference between extinguishing obligations and creating obligations on

forming a contract; (4) the trial court erred in not applying contra non valentem;

and (5) the trial court erred in failing to consider the statute of limitations for

contracts.

JURISDICTION

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This Court has held that we “have a duty to determine, sua sponte, whether

the court has proper jurisdiction to consider the merits of an appeal filed in the

court.” Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr.-New Orleans,

18-0812, p. 2 (La. App. 4 Cir. 1/9/19), 263 So. 3d 449, 451-52 (citing Moon v. City

of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So. 3d 422,

425). La. C.C.P. art. 2087(D) provides that “[a]n order of appeal is premature if

granted before the court disposes of all timely filed motions for new trial or

judgment notwithstanding the verdict. The order becomes effective upon the denial

of such motions.” La. C.C.P. art. 2087(D) is further expounded in Merritt v. Dixon,

which states:

It is well settled in Louisiana law that an appeal taken
while a timely motion for a new trial is pending is
premature and subject to dismissal because the motion
suspends the operation of the final judgment being
appealed. Where the trial court does not rule on the
motion for new trial, the trial court is never divested of
original jurisdiction, and the appellate court lacks
jurisdiction to hear the appeal. Failure to raise the issue is
not sufficient to confer jurisdiction on this court. The
appellate court at any time and on its own motion, may
dismiss an appeal where there is no right to appeal.

97-0781, p. 2 (La. App. 4 Cir. 5/28/97), 695 So. 2d 1095, 1096 (internal citations
omitted).

In the case sub judice, Ms. Carollo filed a motion for new trial and ten days

later filed a notice of appeal. According to the record, the motion for new trial was

never denied or set for hearing, and it is unclear whether this motion is still

pending. Therefore, this Court is faced with determining whether we have

jurisdiction, as there is no disposition on the motion for new trial in the record.

During oral argument in this Court, counsel for Ms. Carollo affirmatively stated

that she “withdrew” her motion for new trial before filing her notice of appeal.

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When asked about the Appellant’s motion for new trial, Counsel for Tulane

confirmed that it was his understanding that the motion was withdrawn and/or

moot. Based on the representations of the parties, this Court will consider the filing

and signing of notice of appeal as a withdrawal and/or waiver of Ms. Carollo’s

motion for new trial. As such, this Court has jurisdiction over this matter and will

consider the merits of the appeal.

DISCUSSION

Exception of No Cause of Action

The standard of review for an exception of no cause of action is de novo.

Appellate courts review a judgment on an exception of no cause of action using the

de novo standard of review “because the exception raises a question of law and the

trial court’s decision is based only on the sufficiency of the petition.” Fink v.

Bryant, 01-0987, p. 4 (La. 11/28/01), 801 So. 2d 346, 349 (citing City of New

Orleans v. Board of Commissioners, 93-0690, p. 28 (La. 7/5/94), 64 So. 2d 237,

253). “A peremptory exception of no cause of action questions whether the law

extends a remedy against a defendant to anyone under the factual allegations of a

petition.” White v. New Orleans Ctr. for Creative Arts, 19-0213, 19-0214, p. 7 (La.

App. 4 Cir. 9/25/19), 281 So. 3d 813, 819. “An exception of no cause of action

tests ‘the legal sufficiency of the petition by determining whether the law affords a

remedy on the facts alleged in the pleading.’” Green v. Garcia-Victor, 17-0695, p.

4 (La. App. 4 Cir. 5/16/18), 248 So. 3d 449, 453 (quoting Moreno v. Entergy

Corp., 2010-2281, p. 3 (La. 2/18/11), 62 So.3d 704, 706) (internal quotation

omitted).

“In deciding an exception of no cause of action a court can consider only the

petition, any amendments to the petition, and any documents attached to the

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petition.” Green, 17-0695, p. 5, 248 So. 3d at 453 (quoting 2400 Canal, LLC v. Bd.

of Sup’rs of Louisiana State Univ. Agr. & Mech. Coll., 12-0220, p. 7 (La. App. 4

Cir. 11/7/12), 105 So. 3d 819, 825). “A court cannot consider assertions of fact

referred to by the various counsel in their briefs that are not pled in the petition.”

Id. “The grant of the exception of no cause of action is proper when, assuming all

well pleaded factual allegations of the petition and any annexed documents are

true, the plaintiff is not entitled to the relief he seeks as a matter of law.” Id. “[A]ny

doubt must be resolved in the plaintiffs’ favor.” Id. Nevertheless, the mere

conclusions of the plaintiff which are unsupported by facts do not set forth a cause

of action. Green, 17-0695, p. 5, 248 So.3d at 453-54 (citing 831 Bartholomew

Investments-A, L.L.C. v. Margulis, 08-0559, p. 10 (La. App. 4 Cir. 9/2/09), 20 So.

3d 532, 538).

Ms. Carollo argues that the district court erred in failing to recognize that

when she signed Tulane’s Concussion Education Form (“concussion form”) she

was in fact signing a contract not to sue Tulane for any injuries she might sustain

in the future. She argues that she could not negotiate the contract and she could not

refuse to sign because her scholarship depended on her participation on the swim

team. The district court declined to find that the concussion form is a contract

because it does not outline any obligations for Tulane to perform. As such, the

court sustained Tulane’s exception of no cause of action.

Ms. Carrollo asserts that a contract need not outline or name specific

obligations to be done by a party, it merely must extinguish obligations. The

concussion form states, in pertinent part:

By signing this form, I acknowledge that I am aware that
participation in intercollegiate Athletics at the institution
involves the risk of personal injury and may result in a

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head injury and/or concussion. I am also aware that if I
sustain a concussion, I am at an increased risk for serious
illness or injury, including death. I understand that if the
institution believes, in its reasonable judgment, that I
may have sustained a concussion or have concussion
symptoms the institution may require evaluation to
ensure my safety. After evaluation, the institution may
withhold me from practice and/or competition until the
signs and symptoms observed and reported are fully
resolved. I have had a full opportunity to ask questions
concerning concussions and discuss the risks associated
with participation in intercollegiate athletics at the
institution if I have a concussion and do not report it. I
have been provided with education on head injuries and
understand the importance of immediately reporting
symptoms of a head injury/concussion to my athletic
training staff. I understand that this release means that,
among other things, I am giving up my right to sue the
institution for any such losses, damages, injury, or costs
that I may incur.

Ms. Carollo argues that when she signed the concussion form, Tulane’s

obligation to provide a reasonable duty of care to her was extinguished. In

particular, she argues that Tulane extinguished its obligation to provide her with a

reasonable duty of care by having her give up her right to sue. This argument is

unpersuasive.

La. C.C. art. 1906 defines a contract as, “[a]n agreement by two or more

parties whereby obligations are created, modified, or extinguished.” Further, the

elements for a valid contract are “(1) the capacity to contract; (2) mutual consent;

(3) a certain object; and (4) lawful cause.” Fairbanks v. Tulane Univ., 98-1228, p.

4 (La. App. 4 Cir. 3/31/99), 731 So.2d 983, 986. “The essential elements of a

breach of contract claim are the existence of a contract, the party’s breach thereof,

and resulting damages.” 1100 South Jefferson Davis Parkway, LLC v. Williams,

14-1326, p. 5 (La. App. 4 Cir. 5/20/15), 165 So. 3d 1211, 1216 (citing Favrot v.

Favrot, 10-0986, pp. 14-15 (La. App. 4 Cir. 2/9/11), 68 So. 3d 1099, 1108-09).

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After reviewing the record, we find that the concussion form does not meet

the requirements of a valid contract. The concussion form outlines the potential

risks of participating in the sport and that Tulane will evaluate the student if they

suspect the student has sustained a concussion. The form provides that Tulane can

withhold the student if the student shows signs of a concussion. The form also has

the student acknowledge the she has been educated about concussion protocol and

that she is giving up her right to sue for any losses, damages, injuries, or costs

related to a concussion injury. The concussion form does not outline any

obligations either created, modified, or extinguished. Ms. Carollo asserts that

giving up her right to sue is the extinguishing obligation that forms a contract.

However, she fails to show how or where this obligation is established. We find

that the district court did not err when it found that the concussion form is not a

contract and sustained Tulane’s exception of no cause of action.

Exception of Prescription

An exception of prescription is a peremptory exception, which serves to

“have the plaintiff's action declared legally nonexistent, or barred by effect of law,

and hence this exception tends to dismiss or defeat the action.” La. Code Civ. Proc.

art. 923. A trial court’s factual findings are generally reviewed under the

manifestly erroneous-clearly wrong standard of review when evidence is

introduced on a prescription exception. Wells Fargo Fin. Louisiana, Inc. v.

Galloway, 17-0413, p. 8 (La. App. 4 Cir. 11/15/17), 231 So. 3d 793, 800 (citation

omitted). “When evidence is introduced but the case involves no dispute regarding

material facts, only the determination of a legal issue, an appellate court must

review the issue de novo, giving no deference to the trial court’s legal

determination.” Id. The defendant asserting a peremptory exception of prescription

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bears the burden of proof; however, when a plaintiff’s claim is prescribed on the

face of the petition, the burden shifts to the plaintiff to establish that his or her

claim has not prescribed.” Id., p. 9, 231 So.3d at 800. The only evidence offered at

the hearing was the concussion form, which was not offered to support or rebut the

prescription arguments. Therefore, we apply a de novo standard of review.

“The nature of a cause of action must be determined before it can be decided

which prescriptive term is applicable. The character of an action disclosed in the

pleadings determines the prescriptive period applicable to that action.” Albe v. City

of New Orleans, 14-0186, p. 8 (La. App. 4 Cir. 9/17/14), 150 So. 3d 361, 367

(internal citations omitted). In her petition, Ms. Carollo is seeking damages for

injuries she sustained related to the swimming starts she was instructed to perform.

The causes of action outlined in her petition and amending petition are delictual

and subject to a one year prescriptive period. La. C.C. art. 3492.1 Therefore, Ms.

Carollo’s claims are prescribed on its face. In an attempt to persuade the court that

her claims are not prescribed, Ms. Carollo asserts that her claims are contractual

and there is a ten-year prescriptive period for a breach of contract claim outlined in

La. C.C. art. 3499.2 After finding that Ms. Carollo does not have a cause of action

for breach of contract, the district court sustained Tulane’s exception of

prescription finding that Ms. Carollo is asserting tort claims that should have been

brought within the one-year prescriptive period outlined in La. C.C. art. 3492.

1 La. C.C. art. 3492 states, in pertinent part, “[d]elictual actions are subject to a liberative

prescription of one year.” On July 1, 2024, La. C.C. art. 3492 was repealed in its entirety by Act
No. 423, H.B. No. 315, § 2 and replaced with La C.C. art. 3493.11, which states in pertinent part,
“[d]elictual actions are subject to a liberative prescription of two years.” According to § 3 of Act
423, La C.C. art. 3493.11 is applied prospectively and applies to delictual actions arising after
the effective date of this act. Due to the delictual happening previous to this act, the one year
prescriptive period still applies.
2 La. C.C. art. 3499 states: “Unless otherwise provided by legislation, a personal action is subject

to a liberative prescription of ten years.”

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The latest possible date that Ms. Carollo could bring her tort claim was the

date that she “had actual or constructive knowledge of facts indicating to a

reasonable person that he or she is the victim of a tort.” Dent v. Dent, 16-1010, p. 3

(La. App. 4 Cir. 5/31/17), 221 So. 3d 194, 196 (Internal quotations omitted)

(quoting Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p. 10 (La. 1/20/05), 891

So. 2d 1268, 1276). According to the petition, Ms. Carollo discovered the full

extent of her concussion-related injuries on August 5, 2021, but did not file suit

until February 17, 2023, which is beyond the one-year prescriptive period outlined

in La. C.C. art. 3492. We find that the district court properly sustained the

exception of prescription.

Contra non Valentem

In an effort to keep her cause of action viable, Ms. Carollo argues that the

doctrine of contra non valentem should apply.

The doctrine of contra non valentem provides that
prescription does not run against one who is ignorant of
the facts upon which their cause of action is based and
applies an exception to the statutory prescriptive period
where in fact and for good cause a plaintiff is unable to
exercise his cause of action when it accrues.

Eastin v. Entergy Corp., 03-1030, p. 6 (La. 2/6/04), 865 So. 2d 49, 55.

Ms. Carollo argues that this Court should apply the doctrine of contra non

valentem to suspend prescription because she was unable to bring her action for

various reasons. Contra non valentem has a high burden of proof and only applies

when there are exceptional circumstances. Marin v. Exxon Mobil Corp., 09-2368,

p. 13 (La. 10/19/10), 48 So. 3d 234, 245 (internal citations omitted). The Louisiana

Supreme Court has recognized the following four instances when contra non

valentem applies and prescription does not run:

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(1) Where there was some legal cause which prevented
the courts or their officers from taking cognizance of or
acting on the plaintiff's action; (2) Where there was some
condition coupled with a contract or connected with the
proceedings which prevented the creditor [plaintiff] from
suing or acting; (3) Where the debtor [defendant] himself
has done some act effectually to prevent the creditor
[plaintiff] from availing himself of his cause of action;
and (4) Where the cause of action is not known or
reasonably knowable by the plaintiff, even though his
ignorance is not induced by the defendant. (This principle
will not except 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.)

Chaney v. State Dep't of Health, 432 So. 2d 256, 259 (La. 1983)

Ms. Carollo asserts that the second category of contra non valentem applies

as there was in fact a condition coupled with a contract which prevented her from

suing. Ms. Carollo claims that her not being able to sue Tulane is the condition

coupled with her contract with Tulane that prevented her from acting. First, this

court has already established Ms. Carollo did not have a contract with Tulane

based on her signing the concussion form. Assuming arguendo that there was a

contract between her and Tulane, the “condition” that Ms. Carollo asserts is the

cause of her inability to sue is not the type of condition contemplated by the

Louisiana Supreme Court in Chaney.

The conditions courts typically consider when applying the second category

of contra non valentem are physical, mental, or a procedural status that prevents a

person from initiating litigation. In Bouterie v. Crane the Louisiana Supreme Court

found that contra non valentem applied where a minor was in the custody of the

Department of Health and Human Resources (“DHHR”) and it was unclear who

was responsible for the preservation and enforcement of her right to sue. 616 So.

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2d 657, 662 (La. 1993). The Supreme Court found that “equity demands the

harshness of prescription should be suspended in this suit for damages for the

sexual abuse of a minor through the period she was in the legal custody of

DHHR”. Id. In Held v. State Farm Ins. Co., the Louisiana First Circuit Court of

Appeal found that the second category of contra non valentem applied when

“[p]laintiff’s post-traumatic stress disorder prevented her from acting until she

knew she was completely innocent and her father was solely responsible.” 610 So.

2d 1017, 1020 (La. App. 1 Cir. 1992). Unlike the plaintiffs in the aforementioned

cases, Ms. Carollo cannot point to any physical, mental, or procedural condition

that prevented her from investigating her tort claims and filing suit against Tulane.

Ms. Carollo argues that the third category of contra non valentem applies

because Tulane coerced her into signing the concussion form and the form

prevented her from even considering filing a lawsuit within the prescription period.

She also asserts that Tulane concealed, by ill practices or misrepresentation, that

gross negligence was an exception to the contract. This argument is unpersuasive.

The third category of contra non valentem only applies when the following

occurs: (1) the defendant engages in conduct which rises to the level of

concealment, misrepresentation, fraud or ill practice, (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 or her inaction. Marin v. Exxon Mobil

Corp., 09-2368, p. 24 (La. 10/19/10), 48 So. 3d 234, 252 (internal citations

omitted). In Albe, the Appellant was the class representative in a class action

against the city and the contractor who installed traffic cameras. 14-0186, p. 1, 150

So. 3d at 363. The Appellant was issued delinquency notices for failing to pay

fines and was threatened with jail time. Id. at p. 1, 150 So. 3d at 363-64. She

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argued that the third category of contra non valentem was applicable because

threats of possible jail time constituted fraud and prevented her from timely filing

her suit. Id. at p. 10, 150 So. 3d at 368. This Court found her argument

unpersuasive. The Court found that Appellant failed to show that Appellee did

anything to prevent Appellant from pursuing her cause of action. Id. We apply the

same reasoning here.

Although Ms. Carollo asserts that Tulane concealed the fact that gross

negligence was a possible cause of action, there is nothing she can point to that

supports her assertion that Tulane concealed any information. Had Ms. Carollo

performed her own due diligence, she would have known that the she could bring

her tort claim within the one-year prescriptive period. In Chaney, the Louisiana

Supreme Court stated that contra non valentem does not protect the Plaintiff from

ignorance of the law and that appears to be the case here. 432 So. 2d at 259. This

Court has previously held that “ignorance of specific facts giving rise to a legal

claim can prevent the running of prescription in certain circumstances, ignorance

of the law does not.” Albe, 14-0186, p. 14, 150 So. 3d at 370 (citing Lieber v. State,

Department of Transportation & Development, 28,745, p. 12 (La. App. 2 Cir.

10/30/96); 682 So. 2d 1257, 1262). In Albe, Appellant asserted that Appellee

prevented her from timely filing because she was given false information regarding

the consequences of filing. 14-0186, pp. 1-2, 150 So. 3d at 364. However, this

information did not pertain to the material facts that gave rise to her tort claim. Id.

at pp. 13-14, 150 So. 3d at 370. This Court determined contra non valentem did not

apply because the Appellant could have asserted her tort claim had there been

reasonable diligence on her part and thus, Appellant’s tort claim was prescribed.

Similarly, Ms. Carollo knew the extent of her injuries on August 5, 2021, but did

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not file suit until February 17, 2023. Ms. Carollo knew about her concussion

related injuries but did not perform her due diligence within the prescriptive period

to determine whether she could file suit. We find that the third category of contra

non valentem does not apply.

DECREE

For the foregoing reasons, we affirm the district court’s October 4, 2023

judgment granting Tulane’s exceptions of prescription and no cause of action.

AFFIRMED

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