Louisiana Negligence Law: What is it?
Negligence law is a civil law that holds individuals or corporations accountable for harming others as a result of recklessness or carelessness. Negligence varies from pure negligence to gross negligence. It also includes comparative negligence. Each contains a different amount of liability. Negligence is a civil offense, not a criminal offense. However, it can result in injury and even death. The general definition of negligence contains the following aspects:
• A duty of care existed between the defendant and the plaintiff
• The defendant breached his or her duty
• The breach caused harm to the plaintiff
• The harm was foreseeable
Louisiana defines negligence a bit differently in its products liability code. Under Louisiana Civil Code § 2800.55 , the breach that occurred only talks about the harm being unsafe for reasonably anticipated use. Louisiana Civil Code § 2320 states the following:
Louisiana Civil Code § 2322 states the following:
Louisiana Civil Code § 2323 is interesting because it turns the fault determination into a percentage. It also goes a bit deeper than other states in the comparative negligence area. See, LA-CIV-CODE-ART-2323.1. It requires the use of 0 percent as a multiple of fault. In this way there is no such thing as 100% fault.
• 0-1% fault = no liability
• 2%-5% fault = liability for 2-5% fault
• 6%-9% fault = liability for 6-9% fault
• 10%-49% fault = liability for 10-49% fault
• 50%-99% fault = liability for 50-99% fault
• 100% fault = liability
An example of causation is given in Shermet v. Louisiana Power & Light Co., 477 So.2d 1158 (La.App. 5 Cir.1985). There the defendant was held liable when the plaintiff was injured while climbing a pole to retrieve a fishing line that became entangled in a power line.
What Makes Up the Elements of Louisiana Negligence?
The first element that has to be proven in a Louisiana negligence case is the duty that has to be proven. An example of a duty in Louisiana would be that an apartment owner has a duty to make sure that their apartments are not unreasonably dangerous. That it has working lights in the hallways, that the stairs are not broken, they don’t have holes, they are not slick and wet. If there’s a hole it has some warning sign to show there’s a hole there.
The next element that has to be shown in a Louisiana accident case is the breach of duty. Meaning the defendant that is being sued breached or violated the duty. If the defendants’ apartment building is unreasonably dangerous, well then the apartment complex has breached their duty.
The next element that has to be proven is causation meaning that the violation of the duty has to if fact be the cause of the accident. So if the apartment complex has no lighting and the lights are out and someone trips and falls and injures themselves, then that would be the actual cause of the fall.
The last element of a Louisiana negligence claim is damages. Does the plaintiff have any injury as a result of the negligence. Meaning did they suffer some sort of physical injury, groin strain, sprain, fracture of the leg or are the experiencing pain or suffering and have to go the hospital get examined. There has to be some sort of injury for them to be entitled to recover damages.
The basic elements of a Louisiana negligence case are these four elements: duty, breach of duty, cause of damages and damages itself.
Establishing Comparative Fault in Louisiana Negligence Cases
When assessing claims in Louisiana of injuries to persons and or property, Louisiana has adopted statutes that are known as comparative fault. Louisiana Civil Code Article 2323 provides the framework for adjudicating issues of fault, dividing the fault in negligence actions between the parties based on their degree of fault.
The Article provides that "[i]n any action for damages for injury, death, or loss, in which a person suffers injury, death, or loss through the fault of another, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of fault of each party causing or contributing to the injury, death, or loss."
Where there are multiple at-fault parties, Louisiana law requires that the determination of each party’s degree of fault must be made by the fact finder. The Louisiana Supreme Court explained that "[t]he issue of whether or not there is any fault attributable to a co-defendant is a question of fact for the jury or the trier of fact." Reed v. Wal-Mart Stores, Inc., 97-1174, (La. 3/4/98), 708 So. 2d 362, 366.
In Louisiana, a party found at fault who also suffered injury is allowed to recover damages, but courts will reduce that party’s damages by the percentage of their own fault. Louisiana thus follows "the pure system of comparative fault, which allows a plaintiff to recover if he is less than 100% at fault." Reed 708 So.2d at 366. Louisiana courts will impose the burden on those raising comparative fault to prove it.
Unlike certain other jurisdictions, Louisiana does not use the term "contributory negligence" in its comparative fault scheme. The Louisiana Supreme Court, in Jones v. Dravo Corp., 77 So.2d 13, 19 (La. 1954), explained that "the term ‘contributory negligence’ properly refers only to the doctrine of all-or-nothing (or contributory negligence in the strict sense)….We have now wholly rejected…that branch of the ‘all-or-nothing’ doctrine which denies a recovery to a partially negligent plaintiff."
In sum, Louisiana’s Article 2323 functions to reduce the recovery of damages in proportion to the degree of a party’s fault.
Statute of Limitations for Louisiana Negligence Claims
The statute of limitations for a negligence claim in Louisiana is one year. In other words, an injured party has a full calendar year from the date of the accident to file a lawsuit. This one year period is provided for in La. R.S. 9:5642. "Unless otherwise provided by law, a person who has been injured through the fault of another may not bring an action for damages against that other person more than one year from the date of injury or damage to property. As amended by Acts 2003, No. 173, § 1, eff. Jan. 1, 2004." In some cases this time period can be extended. Under La. C.C. art. 3492, the statute of limitations for a civil action is one year for delictual actions and it provides that: "The time within which a civil action or proceeding may be instituted and prosecuted is subject to the following provisions: (1) Delictual actions are subject to a liberative prescription of one year. (2) Actions on personal debts and obligations are subject to a liberative prescription of ten years. (3) Actions on immovable property and actions for the reduction or annulment of partitions are subject to a liberative prescription of the nature of an action in rem, in accordance with their rank in the order of accrual. (4) Actions to open, scire facias, or annul a succession and to claim an inheritance are subject to a liberative prescription of three years from the date of death of the decedent. (5) Actions for the annulment of judgments of possession and for the partition of the succession are subject to a liberative prescription of five years." In Suire v. Lafayette City-Parish Consolidated Government, 04-1459, (La., 2005), the Louisiana Supreme Court held that the one year statute of limitations is subject to "rule of contra non valentem," however, courts must strictly construe the exceptions to the running of the liberative prescription cause of action set forth in Civil Code article 3467. In sum, the rule provides that, "The running of prescription is suspended, interrupted, or interrupted and suspended as follows: (1) When the enforcement of the right is effectively unavailable; (2) During the pendency of a suspension of prescription, including but not limited to such suspensions which result from filing suit; (3) When the defendant is outside the state, and is absent from the state continually and without interruption for four months or longer after the cause of action accrues; (4) When the plaintiff is unable to commence suit before the prescription period runs, due to a legal impediment that precludes the plaintiff from exercising the right; and (5) When the plaintiff is within the scope of a class certification order prior to the expiration of prescription." There are many other exceptions and the Louisiana Supreme Court has issued many opinions that support these exceptions.
Defenses to Louisiana Negligence Claims
Negligence law in Louisiana provides several defenses for defendants in a negligence action. These defenses are raised in order to mitigate and limit liability. These defenses are sometimes confused with exceptions, such as res judicata, prescription (a/k/a "ancient history"), and peremption. These exceptions also serve to preclude actions in tort. Defenses, however, are based on the facts and not on the law. When a defendant or defendants raise defenses, they are proclaiming that even if the facts are correct, the plaintiffs’ claims must still fail.
One common defense to a negligence action is the defense of assumption of risk, codified as La. C.C. art. 2323: The defense of assumption of risk entails that the plaintiff assumed a risk of harm from the defendant’s conduct and the harm is a result of this risk. Assumption of risk is more concisely explained as "returning the ball, getting back into the game." This is usually seen at sports venues because, at a baseball game, soccer game, or football game, the defendants’ are the owners or managers and operators of the facility and the plaintiff has made a decision to attend the game or sporting event of their own free will. For example, a plaintiff could go to a baseball game and sit behind home plate. If a foul ball were to come back over the screen separating the field and the seating area and it strikes a plaintiff in the head , many plaintiffs assume the risk of being hit by foul balls when they buy a ticket and attend the game. On the opposite side of the aisle, you could have a plaintiff who is going from one venue of a racetrack to another venue of a racetrack, like the paddock area. The plaintiff could slip and fall on an uneven pavement surface and his/her back could be injured. The plaintiff assumes the risk of a slip by walking when they are traversing the various areas at a racetrack. Courts have made a determination that the plaintiff assumes the risk of danger by choosing to spend their money to participate in various activities that the plaintiff knows have an element of risk attached to them.
The next negligence defense is comparative negligence, codified as La. R.S. 9:2800.1: This defense operates under the theory that the actions of the plaintiff contributed to the harm suffered by the plaintiff. Comparative negligence allows a party’s damages to be reduced in proportion to the degree that a plaintiff has been at fault. A defendant may bring in allegations that certain actions of the plaintiff may have caused the incident or situation and these alleged wrongdoings must be related to the injury itself. Generally, defendants argue comparative negligence when the plaintiff has fallen and is injured on the premises of the defendant’s establishment, such as a grocery store or a school.
Case Examples of Louisiana Negligence Law
Two cases that illustrate different aspects of Louisiana’s laws of negligence are Evans v. Louisiana Farm Bureau Casualty Insurance Co., and Corsey v. State of Louisiana Department of Public Safety and Corrections.
In Evans, the plaintiff was denied uninsured motorist benefits as a result of his not wearing a seatbelt when he was hit by an uninsured driver who fled the scene. Relying on La. Rev. Stat. 32:295.1, the Louisiana Supreme Court, held that "where a fleeing, unidentified, uninsured motorist strikes the vehicle of an insured, causing grievous injuries, goes undetected and subsequently rear-ends or side-sweeps the vehicle a second time" the plaintiff would not be denied recovery for his medical expenses as a result of his seat belt non-use.
In Corsey, the plaintiff was injured when the car he was driving was struck head-on, when the car the plaintiff was driving drifted over the center line of a two-lane highway. The trial court awarded 280,000 to the plaintiff, finding that the defendant state police had properly installed and maintained a guardrail, which was a sufficient barrier to deter plaintiff’s vehicle from crossing the yellow line. The appellate court upheld the decision, holding that the state police only had a duty to exercise reasonable care in evaluating the need for installation of the guardrail, but had no duty to rear-end vehicles as they cross the yellow line at a speed of 60 miles per hour.
In both of these cases, the courts relied on La. C.C. 2322. This is the Louisiana’s comparative fault statute. The statute provides that damages shall not be reduced in proportion to the degree of fault by either party, rather the amount of reduction of each party’s damages shall be determined by the fact finder within the framework of the total damages awarded. As written, if the plaintiff is at fault, but the defendant is also at fault in exposing the incident to risk, it does not matter whether the plaintiff contributed to the incident.
These two cases are interesting because they both concern the defenses available in a case based upon negligence. However, Evans clearly has a tendency to expand the state’s liability. In contrast Corsey creates a bright line rule that does not allow a person’s alleged negligence (in this case speeding) to establish liability on the part of the state.
The How Negligence Law Affects a Personal Injury Case
To recover for personal injury in Louisiana one must prove by a preponderance of the evidence (more likely true than not) the negligence of another. Louisiana stands alone in its adoption of the Code Napoleon and applies it in both civil and criminal matters. The law is found in Title 9 of the Civil Code. La. C.C. 2315 establishes that "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. C.C. 2320 provides for vicarious liability, as a general rule, for parents and employers for the negligence of their children and employees respectively. La. C.C. 2322 governs responsibility for animals. La. C.C. 2323 governs comparative fault or damages among claimants. La. C.C. 2325 governs damages for personal injuries and wrongful death.
There are three elements of every personal injury case. These elements are: (1) duty, (2) breach of duty (that is negligence), and (3) damages (causation). Personal injury cases usually fall under general tort law, which is custodial negligence or negligence per se.
General tort law is governed by the "reasonable person" standard of care. To establish a prima facie case of negligence, one must prove that the defendant owed a duty to the plaintiff, or to the public at large, to exercise reasonable care in a given situation, that the defendant breached this duty, and that the breach caused the plaintiff to suffer some injury or other damage. That is causation. The "reasonable person" standard varies from case to case depending on the specific circumstances. An example would be that the duty of care for an emergency room physician may differ from the duty owed by a simple minor surgery facility because the patient does not have access to complete records on the physician’s practice and reputation prior to seeking medical treatment.
In Louisiana, negligence per se is governed by La. R.S. 9:2800.1 through .6. A claim for negligence per se is brought when the injury is the result of the violation of a statute or regulation. A plaintiff bringing a claim under this theory does not need to prove that the defendant acted unreasonably. If the plaintiff can show that the defendant violated a statute or regulation, and the injury suffered was the type proscribed by the statute, the plaintiff has met his burden in establishing negligence. The burden then shifts to the defendant to prove that the injury was caused by something other than the violation of the statute.
Pure negligence per se requires proof of the following five factors: (1) the statute or regulation of which defendant has been accused of violating must be designed to protect a class of persons which includes the plaintiff (specific class protection), (2) the statute or regulation must be intended to prevent the type of harm which occurred in this case (specific harm protection), (3) the plaintiff must be within the class of persons intended to be protected by the statute or regulation (plaintiff within class or protection), (4) the plaintiff’s injuries must be of the type intended to be prevented by the statute or regulation (injury within specific type), and (5) direct violation of the statute or regulation caused the injuries complained of by the plaintiff (direct violation must have caused the damages complained of). Pitre v. Opelousas General Hospital, 673 So.2d 585 (La. 1996). However, in cases involving personal injuries, Louisiana does not require a plaintiff to prove all five factors. Instead, the issue becomes whether the statute or regulation’s purpose includes protection of the injured party and what harm should be prevented.
Hiring a Lawyer For a Louisiana Negligence Case
It is very important to find skilled legal assistance in dealing with a negligence claim in Louisiana. A qualified attorney will know the ins and outs of Louisiana’s negligence statutes and case law and will be able to advise you on what your next steps should be if you are bringing or defending against a negligence claim. An experienced attorney will be able to work within the system to help you to meet all deadlines, file against the proper parties and ensure that your case is handled in a proper way. Hiring an attorney on your negligence matter may seem like a big expense at first, but it can save you a lot of money in the long run by ensuring that you get the recovery you deserve or they obtain the necessary evidence to support your case . There are many places to look for an attorney when you are facing a negligence claim. One way is a simple internet search for your local area or the area where the injury occurred. This will usually display several potential options that you can then review and narrow down. Another option is to get recommendations from your friends and family on the type of attorney you might need. You could also check out the Louisiana Bar Association’s recommendation of lawyers based on their expertise. Once you have completed these various searches, go through and make a decision about which lawyer is the best fit for you.