Injuries and Illnesses Away from Work
When a person commits a "wrong" against another person that has criminal penalties attached to it, it is called a crime.
In the non-criminal realm of personal relations, when someone acts or fails to act in a manner contrary to what the law deems reasonable, and the act or failure to act damages another person in some way, we call the action or failure to act a "tort" (otherwise known as a "civil wrong"). The person who commits a tort is known as a "tortfeasor".
The cornerstone of tort law in Louisiana spans only 20 words:
"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."
Act and Failure to Act
The Louisiana Supreme Court "defined" the word "act" as the "affirmative action or performance, and an expression of will or purpose." This would eliminate one's body movements during sleep, when a person is obviously not consciously in control of those movements. For example, if, during a dream, a person kicks in his bed and hits his sleeping partner that results in injury, the person kicking would likely escape liability because his movements were not "acts" for which the law attaches liability. It would be grossly unfair to hold someone liable if, through no fault of his own, he did something that injured another person.
Although the relevant statute cited above uses the word "act", cases interpreting that statute have also attached liability to failures to act when the law deems someone should have acted. For example, suppose a ladder leaning against the edge of a house begins to fall as a result of a strong wind, without warning, blows it away and toward someone standing next to you. If you saw the ladder begin to fall toward that other person and you did nothing to protect him - even though you could have easily warned or moved the other person out of the way without harm to yourself - you would have a difficult time escaping some liability for injuries suffered by the person struck by the ladder.
With this background of the basis for tort law in Louisiana, one can then begin to examine how our State treats torts.
Tort Theory in Louisiana
The statute cited above provides the basic theory of tort liability. The cases interpreting that statute gave it "life" so that a theory could be applied to real-world scenarios.
In Louisiana, the courts have adopted the "duty risk analysis" when determining if someone should be held accountable for damages caused by his act or failure to act.
Under this element, the court asks whether the defendant has any obligation of care (to act or not act) at all to the plaintiff, considering the relationship and circumstances of the parties.
Whenever a person acts or fails to act in such a way that other people may be affected, that person can be said to have a "duty" (that is, to use care) to act or refrain from acting so that others are not injured by his action or inaction. The scope of a person’s duty to use care is a legal one - that is, it is one framed by the judge and not a jury.
But who are considered "others"? How best to "illustrate" the duty owed to others?
Write the word "duty" in the middle of a piece of paper and then draw a circle around that word. The line that is the circumference of that circle represents just how far a person's duty extends to "others". In other words, within the confines of that circle can be said to be those people to whom an actor owes a duty to use care - namely, "others". To those outside the circle, no duty is owed.
So how big is that circle? Only a judge may answer that question, as it is a "question of law" - one in which the presiding judge provides the answer - not the jury. And in answering that question, the judge must consider matters of policy and reasonable foreseeability. From a policy standpoint, courts cannot say that an actor owes a duty to every person who might be injured by the actor. The economic outcome of such a position would soon bankrupt society. From a foreseeability standpoint, the circle is drawn to encompass only those people that it was reasonable for the actor to have understood could have been harmed by his actions or inactions. If someone was unforeseeable to the person owing a duty, then no duty of care existed because, by definition, one does not owe a duty to "others" who was unforeseen.
Some examples of courts finding the absence of a duty owed by an actor:
- A store owed no duty to protect a customer who was injured by a group of children who, while misbehaving, threw open a bathroom door, striking the customer. The store would have had a duty to protect that customer, if it had known of the children’s continuing misbehavior and did nothing to prevent it. But in this instance, it was not reasonable to impose a duty on a store to protect store patrons from all unexpected actions of third persons (namelyl, the children).
- A patron at a fair was knocked down and injured by a boy running wildly through the fair without paying attention. The court said that the operator of the fair had taken steps to control the patrons by hiring 5 deputy sheriffs to patrol the fairgrounds, and it would have been unreasonable to expect the church that sponsored the fair to have a duty to have prevented all children from running around the fairgrounds. The church foresaw the possibility of children running about the fairgrounds - that is a reasonable expectation, and the church acted accordingly by hiring deputies to police the grounds to try to keep some order. But the court rightly ruled that the church could not prevent all children from running.
- The owner of a utility pole who had placed it far away from the road in compliance with state and federal regulations, had no duty to a passenger in a car who was injured when the driver of that car negligently left the roadway, traveled across a ditch, and then struck the pole. The court, in determining the duty owed by the utility pole's owner, was able to rely on state and federal regulations when it concluded that compliace with those regulations established the pole owner's duty.
- A driver who was speeding through fog and rear-ended another vehicle did not owe a duty to those injured in another rear-end collision that occurred approximately three miles behind the first accident, simply because the first accident caused a three mile backup of vehicles. Although no one disputed that, but for the first accident, the second accident may not have occurred, the distance between the two accidents coupled with the second rear-ending driver's failure to drive safely, put that second accident outside of the duty owed by the driver who caused the first accident.
Breach of Duty - Negligence
One may act in such a way that causes harm to another, and the injured person may be within that "circle" of people to whom a duty is owed. But if the actor’s conduct did not fall short of the standard of care and come within the scope set by law, then no liability attaches.
The standard of care can be set by statute or by case law analyzing preceding similar acts.
Negligence can be defined as the violation of a duty owed by the actor to the victim. Put another way, a person acts negligently when his act or failure to act falls short of what a reasonable person would have done under the same circumstances.
In a recent case by the Louisiana Supreme Court, the court held: "Defendant’s conduct need not be the sole cause of the harm but it must be a necessary antecedent. Stated another way, if plaintiff can show that more probably than not he would not have suffered damage, absent defendant’s wrongful conduct, he has carried his burden of proving causation in fact."
How far can causation go? The late Justice Tate defined causation-in-fact as "every act leading to an event which is the subject matter of litigation cannot be said to be a cause in fact. However, where such antecedent act supports a conclusion that, more probably than not, it was a necessary ingredient of the ultimate event, it then constitutes a cause in fact."
Consider my favorite hypothetical regarding "causation": John works at a plant five miles away from his home. To get to the plant, John must traverse a railroad crossing. One morning, the bell in John’s alarm clock breaks due to faulty workmanship and fails to make a sufficiently loud noise to wake him in time to shower and eat before leaving for work. By chance, John wakes up around 30 minutes later, giving him just enough time to put on his clothes and race to work. But as John is now driving to work 30 minutes later than usual, his trip across the railroad crossing will coincide with the passing of a train that passes that way every morning at that later time. While driving over the speed limit to get to work on time, John misses seeing the red flashing lights at the railroad crossing, and as he crosses the rails, the passing train strikes and kills John. Under this scenario, was the breaking of the alarm clock a cause in fact of the accident?
Using the "but for" analysis (with all other factors being the same as every day for John), the answer would be yes - but for the alarm not functioning properly, John would likely have awakened in time to shower, eat, get dressed, and drive to work in his customary fashion, and he would have crossed the rails long before the morning train would pass that crossing. Yet, the crash between John and the train are simply too tenuous to say that the broken alarm clock was the legal cause of John’s death. In addition, other factors have since come into play: John’s speeding and John’s failure to see the warning lights signaling the oncoming train.
The final element of a tort claim is damages. Even if all of the elements above occurred, but the plaintiff suffered no damages, his claim will be dismissed. Louisiana does not permit recovery by someone who suffered no loss as the result of another person’s negligence.
For example, suppose you rear-end another driver and the only damage suffered by the other driver is property damage: a dented rubber bumper. But while waiting for the police to arrive, and as a result of a new composite material in the bumper, the dent slowly begins to disappear as the dent "pushes out" on its own and returns to the same condition as before the accident. In such a case, no one will deny that the person you struck from behind was someone to whom you owed a duty to not rear-end, nor will anyone deny that you were negligent in failing to prevent your vehicle from rear-ending the car in front of you. But if you were sued by the other driver, given the facts of this limited scenario, what could a court award the other driver by way of damages? Nothing. And the reason for that is simple: without damages, one cannot win a tort suit.
Called "punitive damages" in other states, Louisiana permits a special category of damages ("exemplary damages") available to an injured person, in addition to the usual categories of damages, in very limited circumstances:
- Exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.
- Exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton and reckless disregard for the rights and safety of the person through an act of pornography involving juveniles.
- Exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton and reckless disregard for the rights and safety of the person through criminal sexual activity which occurred when the victim was seventeen years old or younger, regardless of whether the defendant was prosecuted for his or her acts. The provisions of this Article shall be applicable only to the perpetrator of the criminal sexual activity.
- Exemplary damages may be awarded upon proof that the sale or distribution of an illegal controlled substance or participation in the marketing of an illegal controlled substance was in wanton or reckless disregard for the rights, health, and safety of others.
Survival and Wrongful Death Actions
If a person is killed in an accident, does his claim for damages go away? Not only is the answer "no", but the death gives rise to another cause of action - one for wrongful death.
The survival action, which may be brought by a limited group of people established by the Legislature, is an action brought on behalf of the dead person and seeks damages that the dead person suffered between the accident and his death. Although a morbid way of evaluating a survival action, it is "best" for the defendant who is liable for the death that the injured person die sooner rather than later, and in an unconscious state rather than a conscious one. The longer and the more pain the injured person suffered before dying, the more damages his heirs will be able to claim. An example of this difference in the amount of damages would be a person who dies three weeks after an explosion during which time he was in agony caused by third degree burns over his entire body versus a person who is killed instantly when a load of pipe falls from a truck and crushes him.
The wrongful death action, also brought by the same limited group of people, is an action that still arises from the death of another person, but this type of suit is brought by a defined group of people who suffered damage to them as a result of another's death. The same theory of the amount of damages applied in survival actions is almost the same for wrongful death actions: the longer and the more pain an injured person suffers before finally dying, the more damages his heirs are likely to recover for the pain and suffering they experience as a result of the injured person’s suffering prior to death.
Responsibility for Others and Things
Louisiana law provides that we are responsible, not only for the damage occasioned by our own action or inaction, but also for that damage caused by persons for whom we are answerable and for that damage caused by things we have in our custody, subject to certain conditions.
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that the owner/custodian knew, or in the exercise of reasonable care, should have known, of the ruin, vice, or defect that caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the owner/custodian failed to exercise such reasonable care.
A father and the mother are responsible for the damage occasioned by their minor child who resides with them or who has been placed by them under the care of other persons, reserving to them recourse against those persons. However, the father and mother are not responsible for the damage occasioned by their minor child who has been emancipated by marriage, by judgment of full emancipation, or by judgment of limited emancipation that expressly relieves the parents of liability for damages occasioned by their minor child. The same responsibility attaches to the tutors of minors.
Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed. Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence. In these cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, but did not do so.
The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew, or in the exercise of reasonable care, should have known that his animal's behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person's provocation of the dog.
The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect that caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
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, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, or that the other person's identity is not known or reasonably ascertainable (otherwise known as the "phantom driver" in auto accident cases - it refers to a person who causes an accident in whole or in part and who leaves the scene and no one can determine the identity of that person).
If a person suffers injury, death, or loss as the result partly of his own negligence (that is, if his own acts contributed to his injury, death, or loss) 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 only time that comparative law does not apply is when a person suffers injury, death, or loss as a result partly of his own negligence, but also as a result of the fault of another person or persons who acted with the intent to cause injury, death, or loss to the suffering party. In such a case of an intentional act to injure another person, the injured person’s contributory negligence to his own injury is not taken into account.
Note: As an aside, although the Legislature and the courts have talked of apportioning degrees of negligence, I believe this is not accurate. When one views a person's act or inaction, that person is either 100% negligent or 0% negligent. The key question the courts should ask and focus on is the degree or percentage of causation between the negligent act/inaction and the damages.
Liability of More than One Tortfeasor
When an accident occurs as a result of more than one person, liability for damages caused by two or more persons shall be a joint and divisible obligation. This means that a joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, or that the other person's identity is not known or reasonably ascertainable.
On the other hand, as mentioned above, when two or more people conspire to intentionally or willfully injure another person, each conspirator is answerable, in solido, with each conspirator, for 100% of the damage caused by such act. This means that the injured person may sue any one of the conspirators for the whole amount of his loss, and it would then be up to the individual conspirators to "fight" amongst themselves in seeking contribution for their "share" of the conspiracy. And no amount of "victim fault" would be at issue if that victim was intentionally injured by the hands of other tortfeasors.
A basic discussion of tort law in Louisiana would be lacking without also a discussion of automobile insurance law - something we encounter every time we renew our insurance policies on our vehicles and every time an accident involving those vehicles occurs.
Bodily Injury and Property Insurance
Louisiana requires all vehicle owners to have an automobile bodily injury/property damage policy before permitting them to lawfully drive. On January 1, 2010, the minimum financial responsibility limits for automobile insurance increased from $10,000 bodily injury liability per person, $20,000 bodily injury liability total for two or more persons, and $10,000 property damage liability (known as a "10/20/10" policy) to the then-newly legislatively mandated level of $15,000 bodily injury liability per person, $30,000 bodily injury liability total for two or more persons, and $25,000 property damage liability (now known as a "15/30/25" policy).
When one buys auto liability insurance, one is not buying insurance to pay for injuries he may have suffered as a result of an accident. He is buying insurance to make sure that if he negligently injures another person, he does not have to personally pay that other person’s damages - his liability insurance will pay those damages (provided, of course, he, the tortfeasor, purchased sufficient coverage). Note that the amounts of coverage mentioned above are minimum amounts of liability insurance required by law - a driver is free to purchase higher amounts.
Thus, when you hear the phrase "liability insurance", you should think of insurance that pays on your behalf if you are liable for the accident and damages suffered by another person.
Uninsured/Underinsured Motorist Insurance
The other major type of auto insurance distinct from liability insurance is "uninsured/underinsured motorist" insurance. This type of insurance policy (known as "UM") is, in a way, the "opposite" of the auto liability insurance policy discussed above. A UM policy pays the damages the buyer of the policy suffers in the event the person liable for the accident either does not have, or does not have enough, liability insurance coverage to pay for the damages to the person with the UM policy. It is called "uninsured/underinsured" because the purchaser of a UM policy may be injured and sustain damages that exceed the policy limits of the person responsible for the accident. In that case, the UM policy will come into play and pay the difference between the the value of the damages paid by the tortfeasor’s policy and the value of the damages suffered by the person who is not at fault.
Some unscrupulous "money managers" have given seminars encouraging people to "drop their UM" because, they say, "if you are injured in an accident and you have major medical insurance, then your medical insurance policy will pay your medical bills and thus a UM policy would be simply duplicating coverage for which you are already covered by your medical insurance." This represents a gross misunderstanding of even basic insurance law, and the dropping of UM coverage could result in an injured person failing to recover for all of his damages. Medical insurance does, indeed, pay for medical bills, regardless of who or what caused them. But medical insurance policies do not pay for damages such as pain & suffering, past and future lost wages, loss of earning capacity, loss of consortium, and the value of the actual disability one might suffer - all categories of damages that most UM policies cover. If you eliminate UM coverage in an effort to be economical, you could find yourself with a host of damage categories for which no one may be available to pay when the law gives you a clear right to recover compensation for such damages.
Thus, when you hear the phrase "UM coverage", you should think of insurance that, although purchased by you, will pay you if you are NOT liable for the accident and the person who is liable either does not have insurance or does not have enough insurance to pay for your damages.