Lola Bowie v. Rapides Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1369

LOLA BOWIE, ET AL.

VERSUS

RAPIDES PARISH SCHOOL BOARD, ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 206,506
HONORABLE WILLIAM ROSS FOOTE, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

**********

Court composed of Billie Colombaro Woodard, Oswald A. Decuir, and Billy Howard
Ezell, Judges.

REVERSED AND REMANDED.

Kay Hilgerson Michiels
Laura N. Sylvester
Walker, Passman & Michiels
P. O. Box 13020
Alexandria, LA 71315-3020
(318) 445-4516
Counsel for Defendant/Appellee:
Rapides Parish School Board

Malcolm X. Larvadain
Edward Larvadain, Jr. & Associates
626 8th Street
Alexandria, LA 71301
(318) 445-3533
Counsel for Plaintiff/Appellant:
Lola Bowie

DECUIR, Judge.

This is an appeal from a grant of an exception of prescription extinguishing a

claim of inadequate supervision arising out of the sexual abuse of a minor.

FACTS

In November of 2000, D.T. was a mentally impaired thirteen-year-old student

at Alexandria Junior High. On or about November 3, 2000, a sexual act occurred

between D.T. and a fellow student. The act was confirmed by medical tests on

November 22, 2000. On November 6, 2001, Lola Bowie filed suit individually and

on behalf of D.T. against the Rapides Parish School Board.

The school board filed an exception of prescription alleging the action was

prescribed by the liberative prescription of one year set forth in La.Civ.Code art. 3492.

The trial court granted the exception and dismissed Bowie’s claims with prejudice.

Bowie lodged this appeal.

PRESCRIPTION

Bowie assigns as error the trial court’s decision that La.Civ.Code. art. 3492

provides the applicable prescriptive period of one year. Bowie contends that the trial

court should have applied the three-year prescriptive period provided in La.Civ.Code.

art. 3496.1. We agree.

Prescription runs against all persons, including minors, unless exception is

established by legislation. La.Civ.Code. arts. 3467 and 3468. Delictual actions are

generally subject to a liberative prescription of one year, commencing from the day

injury or damage is sustained. La.Civ.Code. art. 3492. However, the legislature has

established a number of exceptions to the general one-year prescriptive period, among

them La.Civ.Code. art. 3496.1. That article provides:

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 day 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.

The term “abuse” is not defined in the article. However, in Dugas v. Durr, 96-

744 (La.App. 3 Cir. 3/6/98), 707 So. 2d 1368, writ denied, 98-910 (La. 5/15/98), 719

So.2d 464, this court adopted the definition of “abuse” set forth in La.Ch.Code. art.

603(1) for purposes of La.Civ.Code. art. 3496.1. There we found that a claim of

“inadequate supervision” resulting in sexual abuse was subject to the three-year

prescriptive period of La.Civ.Code. art. 3496.1.

Louisiana Children’s Code Article 603(1) provides a definition of “abuse” for

purposes of determining whether a minor is a “child in need of care”:

(1) “Abuse” means any one of the following acts which seriously
endanger the physical, mental, or emotional health and safety of the
child:

(a) The infliction, attempted infliction, or, as a result of
inadequate supervision, the allowance of the infliction or attempted
infliction of physical or mental iniury upon the child by a parent or
any other person.

(b) The exploitation or overwork of a child by a parent or
other person.

(c) The 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 or of the child’s involvement in pornographic displays, or
any other involvement of a child in sexual activity constituting a
crime under the laws of this state.

(Emphasis ours.)

The school board protests that application of La.Civ.Code art. 3496.1 to this case

treats the board as if it were a sexual perpetrator. Bowie does not claim that the

school board or its employees abused D.T. through any type of physical contact.

However, Bowie claims the school board did commit an “abuse of a minor,” as

defined by La.Ch.Code art. 603, by inadequately supervising D.T. while she was left

in its care at Alexandria Junior High.

2

In Dugas we said:

La.Ch.Code art. 603 contains three different definitions of “abuse.” The
first deals with abuse of a minor through physical or mental injury; the
second deals with “[t]he exploitation or overwork of a child by a parent or
any other person”; and the final definition pertains to the involvement of
the minor in sexual acts. As pointed out by Breaux in his brief, the only
definition containing a reference to “inadequate supervision” is the one
involving physical and mental abuse. The allegations are clear that Angel
suffered sexual abuse. Breaux contends that La.Ch.Code art. 603(1)(a)
is inapplicable in this case because La.Ch.Code art. 603(1)(c) governs
sexual abuse, and it does not proscribe abuse as a result of “inadequate
supervision.”

Prescription statutes are to be strictly construed against prescription and
in favor of the obligations sought to be extinguished by them. Wimberly
v. Gatch, 93-2361 (La.4/11/94); 635 So.2d 206; Bouterie v. Crane, 616
So.2d 657 (La.1993). Breaux’s reading of the statute is overly narrow and
robs the provision of its proper context. It is primarily a statute defining
abuse. The fact that abuse is sexual does not diminish the fact that it is
physical and likely mental abuse as well. Moreover, the inclusion of
La.Ch.Code art. 603(1)(c) does not require reducing the protection
provided by La.Ch.Code art. 603(1)(a). In fact, we find that La.Ch.Code
art. 603(1)(c) broadens the definition of abuse by including participation
in pornographic displays which might not actually encompass physical or
mental abuse.

Dugas, 707 So.2d at 1371-72.

Thus, in Dugas we recognized that the three-year liberative prescription of

La.Civ.Code art. 3496.1 is applicable to an inadequate supervision claim.

The school board attempts to distinguish Dugas on the grounds that it involved

an overnight sleep-over situation. We do not find this distinction persuasive. The fact

that the school board was not responsible for the overnight supervision of D.T. may

lessen its exposure to risk but it in no way reduces its responsibility to provide

adequate supervision. Nor are we persuaded that the nature of the relationship

between D.T. and the school board is so different than the relationship in Dugas as to

remove the school board from the purview of the statute.

Accordingly, we find the trial court erred in applying the one-year liberative

prescription of La.Civ.Code art. 3492. The three-year prescriptive period of

La.Civ.Code art. 3496.1 is applicable to this case.

3

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the

case remanded for trial on the merits. All costs of these proceedings in the amount of

$1,035.74 are taxed to appellee, Rapides Parish School Board.

REVERSED AND REMANDED.

4