Plaintiff's Inexcusable Delay In Conducting Discovery Leads To Dismissal
After shopping at Toys “R” Us, Nancy Monson decided to walk from the Toys “R” Us parking lot to a restaurant across the street. Walking to the restaurant, Ms. Monson stepped in a hole in a grassy area between the Toys “R” Us parking lot and the street and injured her leg. Ms. Monson sued Toys “R” Us, its insurer, the property owner, the property manager, and the Parish of Jefferson in the action Monson v. Travelers Prop. & Cas. Insur. Co., alleging that the defendants failed to maintain the property in a safe condition. After Toys “R” Us and the Parish of Jefferson were dismissed on summary judgment and more than a year after she filed her lawsuit, Ms. Monson added Acadian Landscapes of Louisiana, Inc. (“Acadian”), the landscape maintenance company hired by Toys “R” Us to maintain its premises, as a defendant. In response, Acadian filed an exception of prescription (Louisiana’s equivalent of a statute of limitations defense), arguing that Ms. Monson’s claims were filed after the one-year prescriptive period applicable to tort claims had lapsed and that her lawsuit against it was untimely. The trial court granted the exception, and Ms. Monson appealed.
On appeal, Ms. Monson argued that the original filing of her lawsuit had interrupted the prescriptive period as to Acadian, because it was jointly liable with Toys “R” Us, a timely sued defendant. In addition, she argued that the judicially created concept of contra non valentem agere nulla currit praescriptio (“contra non valentem”), which is Latin for, ‘prescription does not run against one who is unable to act,’ served to excuse her delay in suing Acadian. She argued, in relevant part, that her late addition of Acadian related back to the timely naming of Toys “R” Us and that Toys “R” Us had prevented her from timely learning the identity of the landscape maintenance company.
The court of appeal affirmed the dismissal, finding that only when a joint torfeasor is timely sued and remains in the case will the facially untimely addition of another joint tortfeasor be considered timely. Because the claims against Toys “R” Us had been dismissed, there was no joint tortfeasor remaining for Ms. Monson to use in applying relation back. Therefore, her claims against Acadian were untimely. The appellate court also rejected her argument that contra non valentem excused her untimely addition of Acadian. The appellate court noted that the record established that Toys “R” Us had not prevented Ms. Monson from timely discovering Acadian’s identity. Instead, she had not even begun her discovery efforts to learn the identity of the landscape maintenance company until after the one-year prescriptive period had already run. Moreover, the court noted that under the “discovery rule,” Ms. Monson was deemed to know everything that she could have learned through reasonable diligence. Finding her failure to learn the identity of Acadian before the prescriptive period had run was inexcusable, the appellate court held that Monson’s claims against Acadian were properly dismissed.
Take-Away: Defendants need to be vigilant in challenging their late addition to existing lawsuits; and the plaintiff bears the burden of proving that the late addition of a defendant was not due to her neglect.
