Frequently Asked Questions About Negligence

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What has to be shown in order to prove negligence?
What is the duty to use care?
What is reasonable care?
Are different people held to different standards of care?
What is causation?
What if I am partially at fault for my own injuries?
Is it considered negligence if someone violates a law?
What are some common defenses to negligence?
What is the Statute of Limitations for negligence claims?
What is the Burden of Proof?

What has to be shown in order to prove negligence?

In order for us to prove that a defendant was negligent, and therefore responsible for damages to you, we must show:

• the defendant had a duty to use reasonable care towards you
• the defendant breached that duty by acting unreasonably
• it was foreseeable that by acting unreasonably, defendant would cause injury to you
• the defendant's actions or inactions caused your injury

Once we prove that the defendant was negligent, you have the right to be compensated for your damages.

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What is the duty to use care?

Generally, a person owes everyone else with whom he comes in contact a general "duty of care." Normally, you don't have to worry about this duty - it is the same in all instances, the duty to behave with the care that would be shown by a reasonable person. But there are several situations in which courts hold that people owe one another less than this regular duty. The most important of these situations are: 1) one generally has no duty to take affirmative action to help another; and 2) one generally has no duty to avoid causing unintended mental suffering to another.

A person generally cannot be liable in tort solely on the grounds that she has failed to act. This means that if you see that another person is in danger, and you fail to render assistance (even though you could do so easily and safely), you are not liable for refusing to assist.

Example: Sam, passing by, sees Mike drowning in a pond. Sam could easily pull Mike to safety without risk to Sam, but instead, Sam walks on by. Sam is not liable to Mike for any harm sustained by Mike.

There are a number of commonly-recognized exceptions to the "no duty to act" rule. In the above example, if the danger or injury to Mike is due to Sam's own conduct, or to an instrument under Sam's control, Sam has the duty of assistance. Similarly, in the event Sam started to give Mike assistance, once Sam voluntarily begins to render assistance to Mike (even if he was under no legal obligation to do so), Sam must now proceed with reasonable care.

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What is reasonable care?

The key to determining whether someone is negligent is to define what constitutes "reasonable" care in any given set of circumstances. Since there is no clear definition of what is reasonable in any given situation, what is reasonable to one person may not be reasonable to another.

Courts often decide whether someone has exercised reasonable care by asking what a person of average intelligence and judgment would have done under similar circumstances. For example, a "reasonable" driver preparing to make a left hand turn across oncoming traffic would not do so without first checking to make sure that there was ample time to safely make the turn. It would be negligence if a driver failed to check to make sure there was time to make the turn, made the turn anyway, and caused an accident.

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Are different people held to different standards of care?

The level of reasonable care required varies, depending on whether you are an adult, child or professional.

Reasonable person standard - An adult is guilty of negligence if he or she fails to act the way a person of ordinary intelligence and judgment would have acted in similar circumstances.

Reasonable child standard - Both a child and his or her parents can be held liable for a child's wrongful conduct. Children, however, are not held to the same level of care as adults. A child's conduct is measured against what would be expected from a similar child of like age, intelligence and experience under similar circumstances. Because a child does not have the same mental capacity or life experience as an adult, the courts recognize that in some instances a child should not be held responsible for otherwise "negligent" behavior. For this reason, children of very young ages generally cannot be held liable for negligence. The judge will decide a child's capacity for negligence. If the child is deemed capable of negligence, then the issue of whether or not the child actually was negligent will be decided by a jury.

One major exception to the rule is that a minor will generally be held to an adult standard of reasonableness if the child is engaging in "adult" activities. For the most part, a child will only be held to this standard in situations in which the child is operating a motorized vehicle.

Professional community standard - Professionals (lawyers, doctors, architects, engineers, psychiatrists, etc.) are held to a higher standard of care due to their specialized training and experience. Professionals and individuals who practice "skilled trades" (plumbers, carpenters, electricians, beauticians, etc.) may be found to be negligent if they do not exercise the same degree of skill and knowledge normally exercised by other qualified and competent members of their professions working in their communities.

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What is causation?

In order for a person who is negligent to be liable to you for damages suffered from an accident, it must be proven that the negligence actually caused your injury. The negligent person's action or inaction can be the sole cause or your injury or one of a number of causes.

Example: Suppose a truck is speeding too fast along the road when it suddenly approaches a car left abandoned in the middle of the road. To avoid a collision, the driver of the truck attempts to apply the brakes. A local mechanic recently repaired the brakes, but forgot to change the old, worn out brake pads. As a result, the brakes fail and the truck barrels into the parked car, which in turn collides with you as you try to cross the street in an area that is not a designated crosswalk. The resulting injury you received had many causes, including the trucker's negligent driving, the negligent repair of the truck's brakes, the car negligently left in the middle of the road, and your own failure to cross the street in a safe manner.

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What if I am partially at fault for my own injuries?

Comparative Negligence

In the above example, the judge or jury determines the degree of the each party's negligence and apportions to each party a portion of the total damages you suffered.based on each party's percentage of fault for causing your injury. This process is called "comparative negligence", and is the method by which damages are awarded in Louisiana. In "pure" comparative negligence, the award of damages awarded to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, no matter what the ratio. For instance, if you are 30 percent at fault for an accident, you could recover 70 percent of your damages. If you are 70 percent at fault for an accident, you could recover only 30 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying you 30% of your total damages, apportioned between them in proportion to the amount of fault assigned to them.

Joint and Divisable Liability

As a general rule, Louisiana holds two or more defendants who are responsible for intentionally or willfully causing an injury in solido liable. This is analogous to other state's' laws of "joint and several liability," where each defendant is held individually liable for the full amount of damages. Touchard v. Williams, 617 So. 2d 885 (1993). This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages assigned to the defendants as a group. If the actions of the joint defendants' areis not willful or intentional, then they will be held in "joint and divisable" liability, meaning that each defendant is only liable for the percentage of fault that is attributed to him by the jury. L.A. C.C. Art. 2324.

Example: An altercation occurs at a bar, in which two defendants A and B are arguing next to each other. A pushes B who falls into another bar patron, who in turn falls upon P, the plaintiff who is injured. A is held 30% at fault, B 20% at fault, P 20% at fault for not getting out of the way of the altercation she knew of, and the bar owner, B, is held 30% at fault for not stopping the altercation. A and B are further held solidarily liable for 80% of the damages, meaning that as joint tortfeasors, each is responsible for the full amount of damages not attributable to the plaintiff P, 80%. P could choose to collect all of her damages from A or B, but not both, pursuant to the law of solidary liability. The bar owner, B, is held in divisable liability for 30% of the damages. P may not collect more than 30% of the damages from B, since B's liability is joint and divisable. Johnston v. Fontana, 610 So. 2d 1119 (1992).

As a further illustration, suppose there were only two tortfeasors - A who intentionally struck P, and B, who failed to stop the altercation. In that situation where there is only one intentional tortfeasor and one merely negligent tortfeasor, A would be solidarily liable for the full amount of the damages not attributable to the plaintiff. P could collect the full amount of damages from A. Johnston v. Fontana, 610 So. 2d 1119 (1992).

In the first example above, however, A and B have what is known as a right to contribution. This means that if either A or B pays more than his "pro rata" share of the damages, he may collect the overpayment from the other. Dumas v. State, 828 So.2d 530 (2002). When there are two joint intentional tortfeasors, each has a pro rata share of 50%; for three joint intentional tortfeasors, each has a pro rata share of 33%, etc. Catalano v. Walgreen's Corp., 511 So.2d 863 (1987). For instance, if all defendants are assessed damages of $50,000 in the situation above, and the plaintiff collects the full amount from A, A could sue for contribution from B for the amount of $25,000, the difference between his actual payment and his 50% solidary liability. Note that for solidary liability, the right to contribution amount is determined not by the allocated fault, but by the pro rata fraction. Louisiana law also does not provide for a "right to contribution" in an unintentional act situation, because by definition, a joint defendant will not be held liable for more than his share of fault. So, using the example above, A or B cannot seek contribution from B, because B is not held in solidary liability with A and B. Also, in the second illustration, A would not be able to sue for contribution from B, since B is still not held in solidary liability with A.

A joint tortfeasor is liable for all damages arising out of the occurrence, including pain and suffering. L.A. C.C. Art. 2324.

Example: A plaintiff's surviving relatives file a suit for wrongful death against 21 defendants for exposure to asbestos products. On the day the trial starts, four of the defendants settle with the plaintiff's survivors. The remaining defendants, if found liable for the damages, will only have to pay their apportioned share of the damages each. Also, the percentage of fault of the settling parties will be taken into account, and the final award adjusted for the negligence of the settling parties, even though the settling parties will not have to pay any damages beyond the previous settlement. Berlier v. A. P. Green Indus., 815 So. 2d 39 (2002).

Respondeat Superior

If an employee commits a tort during the "scope of his employment," his employer will be liable (jointly with the employer). This is the rule of respondeat superior. L.A. C.C. Art. 2320. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner that the work is carried in. Independent contractors generally do not fall under respondeat superior liability unless the employer retains the right to control the manner in which the contractor performs the work. Morgan v. ABC Mfr., 710 So. 2d 1077 (1998)

Example: A worker is injured on the job in a fight that he did not start with a co-worker. The worker may sue the employer under respondeat superior because the co-worker was a "servant" to the employer, and thus the employer is liable for the damages the co-worker caused in the scope of employment while he was on the job. Quebedeaux v. Dow Chem. Co., 820 So. 2d 542 (2002).

Alternative Liability/Acting in Concert Liability

As a special circumstance of joint and divisable liability, sometimes the actions of two or more defendants combine in such a way that it is nearly impossible for the plaintiff to identify which defendant's action caused the plaintiff's injury. An example of this would be if two hunters in the woods fired towards an animal, but one of the bullets struck the animal while the other bullet hit a bystander. Without knowing which bullet was fired by which hunter, the plaintiff would be unable to establish the liability of either hunter. To remedy this, some states, including North Carolina, recognize "alternative liability" or "concert of action," where the actions of multiple negligent defendants result in an injury and the plaintiff can't prove whose act caused the injury. McMillan v. Mahoney, 99 N.C. App. 448, 393 S.E.2d 298 (1990).

Example: A motorist comes upon a truck stranded in a ditch on the side of the road. The motorist assists the truck driver to extricate the truck and then look out for traffic as the truck driver moves the truck back onto the road. A car coming from behind collides with the truck. The assisting motorist will be held liable with the truck driver because they were engaged in a "concert of action" in getting the truck out and back on the road. Bates v. Lagars, 193 So. 2d 375 (1967).

Joint Enterprise Liability

A "joint enterprise" may arise in negligence actions, where the negligence of one main actor is imputed to the other actors and results in imputed contributory negligence. It often arises in auto accident cases, where the negligence of the driver is imputed to the passenger (either to allow the occupant of a second car to recover against the passenger, or to prevent the passenger from recovering against the negligent driver of the other car under the doctrine of imputed contributory negligence.)

Example: A minor son is driving in a car owned by his father, with his mother along as a passenger. They get into an accident due to the negligent actions of the son. The son's negligence will not be imputed to the mother just because she is the son's parent, unless it could be shown that this was a joint enterprise, where the mother was in control of the son's actions during the drive. Gaspard v. Le Maire, 245 La. 239 (1963).

Market Share Liability

In cases involving many defendants who produce the same or identical-looking products, courts in some states have held defendants liable under "market share" liability. This arises when several manufacturers produce a product that plaintiff's can't separately identify as coming from a particular manufacturer. For example, when plaintiffs several years took a miscarriage-preventing pharmaceutical that had an indistinct shape and label, courts in other states held that the manufacturers could be held liable to the percentage of market share they occupied on a nationwide basis at the time of injury, because the courts saw a need for accountability from the manufacturers, and the lack of identifying marks on the drug should not be a bar. Louisiana, however, does not recognize market share liability as a cause of action, so it is not available for class action lawsuits. Gould v. Housing Authority of New Orleans, 595 So. 2d 1238 (1992).

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Is it considered negligence if someone violates a law?

Violation of a Statute

In some circumstances, proof that an individual violated a statute or law is enough to prove that the individual is negligent. Under the doctrine of "negligence per se", an individual is negligent if he or she violates a legislative statute, regulation or ordinance and causes an injury or loss.

Example: Suppose an ordinance prohibits people from making U-turns at a particular intersection. If an individual makes an illegal U-turn and injures someone while making the turn, the person who made the illegal turn can automatically be held responsible for the injuries, regardless of whether they used reasonable care when making the U-turn. The fact that they violated the ordinace makes them negligent per se.

The doctrine of negligence per se applies only if the accident is the type of accident the statute or ordinance was designed to prevent and the injured party is within the class of people that the statute or ordinance was meant to protect.

Example: A U-turn law is normally enacted to protect other drivers passing through the intersection. If a driver passing through the intersection is injured by someone making an illegal U-turn, the doctrine of negligence per se is applicable.

In certain situations an individual's violation of a statute or ordinance is excusable in certain circumstances. For the most part, these permissible excuses include physical circumstances beyond the individual's control, sudden emergency situations not created by the individual, and/or situations in which compliance with the law would create a greater danger to those involved than would a violation of the law.

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What are some common defenses to negligence?

Assumption of Risk

If you participate in activities that you know are risky or dangerous, and are injured as a result, it may be determined that you "assumed the risk" of injury associated with that activity. For example, a skier who knowingly skis down a steep mountain containing large moguls assumes the risk of harm inherent in such an activity. His claim for damages would most likely fail, unless his injury resulted from a condition unrelated to those for which he was fully able to appreciate and assess the risk. For example, the skier may have realized that skiing can be hazardous and have a full understanding of the dangers. However, he would not have anticipated that a ski-lift cable would break and fall in his path, causing him to fall and get injured. Assumption of risk does not protect the defendant in this type of situation.

Open and Obvious Danger

Another defense which is similar to assumption of risk arises when you engage in an activity that poses an open and obvious danger. Whereas assumption of risk focuses on an array of dangers that are inherently possible, open and obvious conditions deal with one's knowledge of a specific known threat. For example, suppose you enter your neighbor's yard knowing that it contains an angry pit bull, and despite the posted warning, "Danger, attack dog, do not enter. Your neighbor could use the open and obvious danger defense to argue that you clearly understood the danger of being bitten by the dog but decided to enter the property nonetheless.

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What is the Statute of Limitations for negligence claims?

As with all lawsuits, a statute of limitations restricts the time in which you can file a lawsuit for negligence. In Louisiana, the statute of limitations for negligence is one years. L.A. CC art. 3536. If you miss the deadline, you have no legal recourse. If you are injured, it is essential that you contact an attorney immediately so as be sure to preserve all of your legal rights before they are barred by law.

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Burden of Proof

The burden of proof in all negligence claims, including automobile accident claims, is on the plaintiff. This means that the plaintiff must go forward first with the evidence at the trial and must present evidence from which a fact finder (judge or jury) could reasonably conclude that the defendant was negligent, that the defendant's negligence proximately caused the accident and that the plaintiff's injuries are causally related to the accident. The standard which plaintiffs are held to in civil cases, including automobile accident cases, is called the "preponderance of the evidence " standard. It is much less strict than the standard in criminal cases of proof "beyond a reasonable doubt." The "preponderance of the evidence" standard has been defined to mean that the evidence presented by plaintiffs must be more likely to be true or accurate than not true. In essence this means that plaintiff's evidence must convince a fact-finder mind more than 50% that the facts alleged by the plaintiff are true.

This can be illustrated for juries by comparing it to the scale of justice. If one party's evidence is placed on one side of the scale and the other party's evidence is placed on the other side of the scale, the slightest tipping in favor of the party bearing the burden of proof on an issue means that that party has prevailed on the particular issue. If the scale remains evenly balanced, then the party who bears the burden of proof on an issue has failed to sustain the burden. Each party who has the burden of proof on a particular issue, in order to prevail on that issue, must sustain their burden of proof based upon a "preponderance of the evidence".

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