Lawsuits have limitations on when an individual can sue. These limitations are important so that people will not dread being sued for some things for their entire lives. It is also important because evidence will be fresher and readily available the sooner the lawsuit commences. However, these limitations also imply that those injured and lawyers need to act quickly and efficiently in order to get claims filed in timely manner.
In Louisiana, these limitations are known as liberative prescription. Their common-law counter-part is the statute of limitations. There are also two other types of prescription in Louisiana: acquisitive and prescription of nonuse. Acquisitive prescription is a means of getting ownership of property though possession for a period of time. For example, if you possess land for an uninterrupted period of ten years in good faith, hold it publicly and peacefully, and act as if you are the owner then you will eventually actually own the property. The common-law counter-part for this concept is adverse possession. The last type of prescription is the prescription of nonuse whereby your rights, other than ownership, can be extinguished if you do not use the property for a period of time. Usually that time frame is ten years as well.
The length of each liberative prescription is different depending on the type of case. For example, personal injury cases have a liberative prescription of one year. Therefore, the case must be brought within one year of the date of the accident or the court will not hear the case.
What happens when you cannot remember the exact date of your accident or the date is contested? That is exactly what happened in Baton Rouge in February 2012. A woman tripped on the way out of the pharmacy and suffered injuries to her left knee, breast, and side. She filed her complaint on August 21, 2003. She alleged that the accident occurred on August 22, 2002. However, the pharmacy that she was suing argued that the accident occurred on August 12, 2002.
The testimony and evidence was conflicting. She saw a doctor for her injuries sustained from the fall and his records indicated the date of the visit to be August 19, 2002. The pharmacy indicated that she picked up prescriptions on both August 12, 2002 and August 20, 2002. A man also entered an affidavit that stated he transported her to the emergency room on August 20, 2002. When there is a contested date, such as in this situation, the party that is arguing that the claimant is barred by the liberative prescription bears the burden of proof. Therefore, they have to present evidence that contradicts the date that the claiming party has presented.
The lower court found that the pharmacy met this burden and dismissed the case. The court of appeals, who usually defers to the lower court’s finding of facts, affirmed this judgment. This case highlights the need to recall and record dates of the injury accurately. Records such as hospital records, pharmacy pick-ups, appointments, and other dates should all be recorded carefully. Seeing a doctor after you think you have been seriously injured is probably the best thing you can do, not only for your health, but also to make complete records of the accident.
In addition, this case also highlights that you need to see an attorney right away if you have been injured. Although a year may seem like a long time to work on a case, gathering all the evidence and making the best argument possible for your case takes a lot of time and effort, so it is best to have as much time as possible to work on the case before the liberative prescription runs out.
Contact the Berniard Law Firm right away if you have been injured and we will be happy to discuss your options with you.