 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Boland v. Kleinpeter6/21/2002
violence" for purposes of the two-year prescriptive period set forth in La. Civ. Code art. 3493.10.
DISCUSSION
La. R.S. 14:2(3) defines "crime of violence" as (1) an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, or (2) an offense that involves the possession or use of a dangerous weapon. For plaintiffs to prevail, they must show their allegations against the Futrells fit within this definition.
In finding the provisions of La. Civ. Code art. 3493.10 applied, the court of appeal concluded that "the allegations that Futrell took dangerous weapons, two large knives, belonging to plaintiffs and hid them are sufficient to bring the cause of action against the Futrells within the purview of article 3493.10." The error in the court of appeal's reasoning is that the mere fact that knives were involved do not necessarily mean plaintiffs' damages were sustained as a result of an act defined as a "crime of violence" for purposes of La. Civ. Code art. 3493.10. Admittedly, La. R.S. 14:2(13), which La. Civ. Code art. 3493.10 references for the definition of "crime of violence," includes an "offense that involves possession or use of a dangerous weapon."
However, "dangerous weapon" is defined in La. R.S. 14:2(3) as "any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." [emphasis added].
In the instant case, the knives were hidden in flower beds and under a bed at the Futrell home. Assuming for sake of argument that Lauren's involvement in J.D.'s act of hiding the knives constituted a crime, the fact remains that Lauren never used the knives in a manner calculated or likely to produce death or great bodily harm. Likewise, Lauren's actions do not involve an element of use, attempted use, or threatened use of physical force against the person or property of another, nor a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Based on the allegations of fact in plaintiffs' petition, there is no scenario under which Lauren's actions could be considered a "crime of violence" for purposes of La. Civ. Code art. 3493.10. Hence, the two-year prescriptive period set forth in La. Civ. Code art. 3493.10 cannot save plaintiffs' claim against the Futrells.
In sum, we find that the claim against the Futrells for conversion of the knives is prescribed, as it was set forth for the first time in the amended petition, which was filed some seventeen months after the claim arose. The court of appeal erred in reversing the district court's judgment granting the Futrells' exception of prescription on this basis. Accordingly, we will reverse the judgment of the court of appeal, and reinstate the judgment of the district court.
DECREE
For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the district court granting the exception of prescription filed by Michael and Eloise Futrell is reinstated. All costs in this court are assessed against plaintiffs.
Page 1 2 3 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|