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There is a one year prescriptive period for survival action claims in Louisiana. The right to recover survival action damages for injuries sustained by a deceased person prior to their death may be brought only by the following exclusive class of beneficiary (including by adoption):

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

There is a one year prescriptive period for wrongful death claims in Louisiana. If a person dies due to the fault of another, suit may be brought only by the following exclusive class of beneficiary (including by adoption) to recover wrongful death damages which they sustained as a result of the death:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

In any action (or claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability) 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 (including victim fault) 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, including but not limited to the provisions of R.S. 23:1032 (employer Worker’s Compensation immunity), or that the other person’s identity is not known or reasonably ascertainable (phantom tortfeasors).

If a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. If liability is not solidary then liability for damages caused by two or more persons shall be a joint and divisible obligation. 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 victim regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032 (employer Worker’s Compensation immunity), or that the other person’s identity is not known or reasonably ascertainable (phantom tortfeasors).

Generally, no person shall be liable for damages for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who is found to be in excess of 25% negligent as a contributing factor in causing his damages as a result of operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration was 0.08, or who was operating while he was under the influence of any controlled dangerous substance unless prescribed or provided by a health care provider.

As recognized by the Louisiana Supreme Court in Dumas v. State, DCRT, 2002-0563 (La. 10/15/02), 828 So.2d 530, 537, prior to the 1996 tort reform amendments to La. C.C. arts. 2323 and 2324(B), the policy behind Louisiana’s tort law was ensuring that innocent victims received full compensation for their injuries. With the 1996 amendments, the Louisiana Legislature shifted Louisiana’s policy so that each tortfeasor pays only for that portion of the damage he has caused and the tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of that other person. With the advent of this new policy, the right of contribution among solidary tortfeasors also disappeared since it is no longer necessary in light of the abolishment of solidarity. The Louisiana Legislature struck a new balance in favor of known, present and solvent tortfeasors instead of the previous priority that fully compensated injured victims.

The Louisiana Supreme Court, in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985), adopted the following factors (now known as the Watson factors) for determining the percentages of fault to be assigned to culpable tortfeasors, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger;

(2) how great a risk was created by the conduct;

Establishing negligence under Louisiana law is accomplished via the following five prong duty / risk analysis:

I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause in fact of the harm?

-It is irrelevant in determining cause in fact whether the defendant’s actions were lawful, unlawful, intentional, unintentional, negligent, or non-negligent. The inquiry is a neutral one, free of the entanglements of policy considerations – morality, culpability or responsibility-involved in the duty-risk analysis. Ask whether the defendant’s conduct was a necessary antecedent of the accident, that is, but for the defendant’s conduct, the incident probably would not have occurred.

-Is there a factual causal relationship between the defendant’s actions and the plaintiff’s injuries? Did defendant’s actions have something to do with the injury the plaintiff sustained? Did the defendant’s conduct appreciably enhance the chance of the accident occurring?

-Generally, cause in fact entails a “but for” inquiry: If the plaintiff probably would have not sustained the injuries but for the defendant’s conduct, such conduct is a cause in fact. But, when multiple causes are present, cause in fact is found to exist when the defendant’s conduct was a substantial factor in bringing about the plaintiff’s harm.

II. Did the defendant owe a duty to the plaintiff?

-Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law – statutory or jurisprudential – to support his or her claim?

III. Was the duty breached?

-Did the defendant fail to conform to the legally imposed duty?

IV. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

-Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. The scope of protection inquiry asks whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Although, the determination of legal cause involves a purely legal question, this legal determination depends on factual determinations of foreseeability and ease of association. The extent of protection owed by a defendant to a plaintiff is made on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms.

-Substandard conduct does not render the actor liable for all consequences spiraling outward until the end of time. Ask whether too much else intervened – time, space, people, and bizarreness?

-Ease of association: in determining whether there is a duty-risk relationship, the inquiry is how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced, or how easily does one associate the plaintiff’s complained of harm with the defendant’s conduct, or how easily the risk of harm can be associated with the rule which was breached. Is the purpose of the duty substantially related to the risk of harm?

-Although ease of ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone. Ease of association melds policy and foreseeability into one inquiry: Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant?

-Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character.

-Because legal cause analysis is so fact bound, other legal cause cases serve only as examples of the methodology and can only be analogized from when the facts bear a striking resemblance to the case to be decided.

V. Damages.

-Was the defendant’s culpable conduct a cause of the plaintiff’s harm?
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