Louisiana Personal Injury Lawyer Blog
You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.
In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:
In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …
Therefore, the fault of all persons who contributed to the injury must be accounted for by the judge or jury and in every accident, the allocation of fault must total 100% amongst the parties.
An example of comparative negligence can be seen in Williams v. Asbestos Defendants, a recent case out of Orleans Parish. In 2009, Mr. Williams passed away from asbestos-related lung cancer and other complications. Before his death, Mr. Williams and his wife filed a claim for damages alleging that Mr. Williams was exposed to various sources of asbestos at his workplace between 1980 and 1998. The Williams’ filed their claim against Dow Chemical Company, Entergy Louisiana, LLC, General Electric Company, Shell Oil Company, and Union Carbide Corporation among others.
The trial court, in this case, found that the exposures allegedly caused by the various Defendants could not be separated in order to apply comparative negligence principles and, further, that “due to the nature of asbestos-related disease, th[e] court [found] that the damages caused by any one defendant [could not] be separated from the entire harm that the plaintiffs allegedly suffered.” However, the Louisiana Fourth Circuit Court of Appeals held that the law of comparative negligence does apply here and that after weighing the testimony presented at trial, such as the length of time Mr. Williams was alleged exposed by each defendant, the jury would be able to determine how to divide Mr. Williams’ injuries so that fault may be apportioned.
According to Watson v. State Farm, a Louisiana Supreme Court case, the jury will have to consider several factors in assessing and allocating fault amongst the parties in Mr. Williams’ case. These factors include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.
Comparative negligence is an important legal doctrine and it is important to seek legal representation even if you think that you are partly at fault for your injuries. Facts are especially important in cases of comparative negligence because when the victim is partly responsible for his or her own injuries, a defendant is less likely to fully compensate the victim. As such, the manner in which all of the facts and evidence is presented is very important in trial and appellate court proceedings and to assure fault is apportioned fairly among the parties. Not having the legal representation that you deserve may lead to an unfavorable ruling.
At the Berniard Law Firm, our attorneys are experienced in handling complex comparative fault issues and are here to protect your rights.