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Bailey v. Khoury1/20/2005
. 3468. Persons against whom prescription runs
Prescription runs against all persons unless exception is established by legislation.
Art. 3468. Incompetents
Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation.
Applying the above provisions together, defendants argue that an unborn child who is later born alive is considered a natural person from the time of its conception, and that prescription runs against an unborn child prior to its birth, at least under some circumstances. Because Ms. Bailey is Jada's legal representative, and because Jada, who was born alive, is considered to have been a natural person from the time of her conception, defendants argue that, under the rules discussed above, prescription commenced on Ms. Bailey's claim on behalf of Jada when Ms. Bailey knew or should have known of the damage, the delict and the relationship between them, or by October 28, 1997.
In further support of their position, defendants argue that this court's decision in Malek v. Yekani-Fard, 422 So. 2d 1151 (La. 1982), stands for the proposition that prescription on a claim for in utero injuries to an unborn child begins before the child's birth. In Malek, this court allowed the mother of an illegitimate child to file suit to establish paternal filiation and obtain support prior to the child's birth. Id. The question of prescription was not raised in the Malek case. Further, the rights asserted in Malek were property rights, not personal rights, like the rights asserted by Ms. Bailey on behalf of Jada in this case
Defendants also point to this court's opinions in Danos v. St. Pierre, 402 So. 2d 633 (La. 1981) (on rehearing) and Adams v. Denny's, Inc., 464 So. 2d 876 (La. App. 4 Cir. 1985). In Danos, this court held on rehearing that parents may recover wrongful death damages from a tortfeasor whose negligence caused injury to their unborn child, subsequently born dead because of the injury. 402 So. 2d 633. In Adams, the court of appeal, applying Danos, found that a cause of action for an unborn child's wrongful death against its mother's employer was not subject to the exclusivity provisions of the workers' compensation statute. 464 So. 2d at 878. Close review of the Danos and Adams cases reveals however that they have no application to the salient issue in this case because nothing in either case indicates that suit was filed prior to the child's birth. Further, neither case stands for the proposition argued by defendants that prescription in a claim to recover damages arising from birth defects commences when the child's parent becomes aware of the existence and cause of the birth defects. In fact, both the Danos and Adams cases were apparently filed after the child was born dead.
Finally, defendants note the court's holding in In re Medical Review panel for the Claim of Derek Dede, 98-2248 (La. App. 4 Cir. 12/2/98), that the knowledge of the parent determines when prescription commences on a minor child's medical malpractice claim. Ultimately, defendants argue that Louisiana law contains absolutely no support for Ms. Bailey's argument that an unborn child should be treated differently from other natural persons for purposes of prescription.
Court of appeal opinion
In the case under consideration, the court of appeal disagreed with the defendants' arguments, concluding as follows:
Jada Nacaya Bailey is a natural person. Therefore, she enjoys the general legal capacity to have rights and duties. Although Jada has been considered a natural person from the moment of her conception and was able to acquire
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