Legal Responses to Negligence Claims: Comparative Fault
Written by Kristin Lausten
A claim of negligence is among the most common types of lawsuits filed in Louisiana. Such claims include car accidents, claims against store owners and merchants, product liability, toxic torts, etc. In today’s article, we will look at one legal response to a negligence claim: comparative fault.
What is Comparative Fault?
In general, proving that someone was negligent in causing death, injury, or loss requires proof of four elements: duty, breach, causation, and actual death, injury, or property damage.
Comparative fault challenges the third element – causation. The doctrine of comparative fault allows a defendant to argue that the injury or loss had many causes – two, three and possibly more. Comparative fault asks the jury, or the judge if the case is tried as a bench trial, to assign a percentage of fault for each of the various causes.
Almost all states in the US have some form of comparative fault doctrine either created by case law or enacted by the state legislature. Louisiana has enacted a statute, La. Civ. Code § 2323. The statute reads in pertinent part:
“In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined … If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.”
The statute specifically excludes death, injury, or loss that is caused by an intentional tort. If the defendant is deemed to have acted intentionally, then there is no reduction in damages awarded even if the plaintiff was partly the cause of the death, injury, or loss.
How Comparative Fault Works: Real World Example
A good example of how comparative fault works in the real world is the case of Purvis v. Grant Parish School Board, 144 So. 3d 922 (La. Sup. Ct. 2014). In that case, the plaintiff was driving an automobile and the left front of her car collided with the left front of an oncoming school bus that was driving the opposite lane. The plaintiff sued claiming negligence by the School Board and the bus driver. The trial judge found, based on the evidence and testimony that was presented at trial, that both drivers were negligent — that is, both drivers were at fault and jointly caused the accident. The judge said that the plaintiff was 40% at fault and the school bus driver was 60% at fault. The judge then reduced the damages awarded to the plaintiff by 40%.
Contact an Experienced Louisiana Defense Lawyer
If you have been sued for negligence, you are going to need an experienced Louisiana defense attorney. Ms. Lausten has experience in defending negligence lawsuits, from simple slip and fall cases to complex toxic tort litigation. Ms. Lausten can be contacted at 504.377.6585 or via email at kristin@kristinlausten.com.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
Telephone: 504.377.6585
E-mail: kristin@kristinlausten.com
Web: www.kristinlausten.com
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.