From Contributory Negligence to Comparative Fault: A Remedy for Negligent Plaintiffs in Louisiana

Picture this unlikely scenario: An intoxicated motorist is driving his vehicle at speeds well in excess of the speed limit (let’s say, he’s traveling at 100 mph in a 35 mph zone). As the unsafe motorist approaches a downtown intersection, a jay-walking pedestrian begins to cross the street when it is clearly not her turn (the brilliant-orange “don’t walk” hand is flashing and unmistakable). She has her face buried in the daily newspaper and is wearing headphones, unaware of what’s happening around her. What happens next, as you might have expected, is that the speeding, drunken motorist collides with the inattentive pedestrian, causing her significant injuries and tens of thousands of dollars in hospital bills.

This hypothetical accident was intended to illustrate the legal problem of the “foolhardy” plaintiff–the individual who suffers an injury at the hands of another, though her inattentive, negligent behavior also has contributed to the damage. In layman’s terms, both the motorist and the pedestrian are at fault here. The driver should understand that operating a vehicle at high rates of speed while intoxicated is unsafe and endangers the public. Similarly, the pedestrian should know that she must obey traffic signals and should pay attention to her surroundings as she crosses the street. Thus, both the motorist and the pedestrian have a “duty” to act as a reasonably responsible driver and pedestrian respectively. Under this scenario, however, where both actors to this dramatic collision have breached their duties to act reasonably, causing this accident, who is responsible? Is the pedestrian permitted to recover damages (money) despite having negligently contributed to this accident and her resulting injuries?

Prior to 1980, Louisiana followed the traditional common-law approach to solving the issue of the “foolhardy plaintiff”–a plaintiff whose negligence contributed to his injury. This common-law approach was known as contributory negligence and operated as a total bar to recovery in a negligence action. While it sounds unduly restrictive of a plaintiffs’ ability to bring and maintain actions for injuries they suffered, this comparative negligence regime required more than just showing that the plaintiff contributed in some way to the injury–instead, the plaintiff had to be legally negligent. They must have had a standard of care (a duty), which, when breached, caused and contributed to their injury and was within the scope of foreseeable risk.

Louisiana courts limited the rigidity of this comparative negligence regime in a few different ways. One way the courts restricted this harsh doctrine was that they shifted the plaintiff’s standard of care based on the particular qualities of that plaintiff. For instance, the blind plaintiff was held to the standard of a “reasonable blind person,” rather than a reasonable person with vision. Adopting these shifting standards kept the standard of care even across the board, which limited how much the comparative negligence regime was applied. A second way courts limited the application of this doctrine was by requiring defendants to demonstrate that plaintiff’s injuries were the proximate cause of his (plaintiff’s) breach of his standard of care. Thus, even if the plaintiff was inattentive or foolish, he wouldn’t be barred from recovery unless his inattentiveness or foolishness was a breach of the standard of care he owed, and this breach was the proximate cause of his injury. A third way the courts limited the application of this doctrine was through the “last clear chance” approach, which imposed liability on the defendant who had the last opportunity to avoid injuring the negligent plaintiff.

After a series of revisions to Civil Code Article 2323, which is the modern codification of Louisiana’s comparative fault regime, the prior doctrine of contributory negligence in Louisiana was eliminated. Under this new article “the fault of all responsible persons should be compared, whether they are parties or not.” That’s right–all parties, including all actors involved in the incident, actors who are immune from liability, and even “phantom tortfeasors” who contributed to the injury but whose identities are unknown. All of the requirements prior to the revisions still apply (shifting standards of care; both the plaintiff and defendant, as well as any other actors must be legally negligent), but instead of precluding negligent plaintiffs from recovering, the modern comparative fault regime simply reduces a plaintiff’s recovery by the amount in which his negligence contributed to his injury.

It goes like this: Plaintiff files a petition against defendant alleging that the defendant’s negligent conduct caused the plaintiff’s injuries. In his answer to this petition, the defendant will allege (via affirmative defense) that the plaintiff’s own negligence caused his injuries. At trial, evidence will be presented and arguments made. Finally, the ultimate question of “fault” will be handed over to the jury who, in their deliberations, will allocate fault to each party. The jury may return a finding that the defendant was 100% at fault for plaintiff’s injuries, that the defendant and plaintiff were each 50% at fault, or that the plaintiff was 100% at fault. The jury isn’t limited to these three options, but instead, they may apportion fault however they see fit (37.5%, 84%, etc.). This is comparative fault at work. No longer does the plaintiff’s legal negligence preclude him from recovering for injuries suffered at the hands of another.

As recent as May 29, 2014, the First Circuit Court of Appeals located in Baton Rouge gave credence to this new system of apportioning fault. This case, Harbin v. Ward, involved a plaintiff who rear-ended a school bus that stopped in traffic just after being involved in an accident with a third party, Ms. Ward. The injured plaintiff filed suit against Ms. Ward alleging that Ms. Ward’s negligence caused her to collide with the school bus. Due to Ms. Ward’s accident with the school bus, the plaintiff alleged that she didn’t have enough time to stop her vehicle before slamming into the back of the school bus, causing her injury.

Louisiana law establishes a rebuttable presumption that a “following motorist who strikes a preceding motorist from the rear has breached the standard of conduct prescribed by law and is therefore liable for the accident.” Because the plaintiff in this case rear-ended the school bus, her negligence was presumed. Despite this presumption of negligence, the trial court found Ms. Ward (the first individual to collide with the school bus) 100% at fault. Specifically, the trial court held that the plaintiff’s presumption of negligence was overcome by showing that the defendant’s actions gave the plaintiff “little or no time to respond to the hazardous condition.” However, on appeal, the First Circuit found that the plaintiff “breached the duties owed by a following motorist by not keeping a proper lookout for the traffic ahead of her and failing to maintain a safe distance from the bus. For that reason, the First Circuit found the plaintiff liable for 25% of her injuries and reduced her recovery accordingly.

Harbin v. Ward goes to show that Louisiana, by legislation and culture, has completely abandoned the old common-law rule of contributory negligence. In its place, Civil Code Article 2323 strikes a balance between this prior rule which operated as a total bar to a plaintiff’s recovery, and a rule which doesn’t consider the plaintiff’s contribution to his injuries at all. The old contributory negligence regime discouraged many plaintiffs from pursuing their claims due to the potential that their recovery would be completely precluded because they may not have been 100% free of fault. As illustrated by Harbin, this is no longer the case, and “foolhardy” plaintiffs need not fear that their injuries will go uncompensated.

Contact Information