Comparative Fault, Solidary Liability, Immunities

Question 1

Comparative Fault

Answer 1

• The Code requires the fact-finder to allocate a percentage of fault to each responsible party, regardless of whether the party is present in the lawsuit, immune or insolvent. Each party is then responsible only for its allotted share.
• To determine each party’s allotted share, apply the Watson factors:
  (1) Whether the conduct resulted from inadvertence or involved an awareness of the danger
  (2) How great was the risk of the conduct
  (3) The utility of the conduct
  (4) The capacities of the actors (superior?)
  (5) Extenuating circumstances which might require the actor proceed in haste
  (6) The relationship between the fault/negligent conduct and the harm to the Plaintiff

Question 2

Comparative Fault - Script

Answer 2

• In addition to the above negligence analysis, it is important to note that Louisiana recognizes the doctrine of comparative fault.
• Louisiana has a true comparative fault statute – the fault of all parties is to be compared (including parties, nonparties, immune actors, etc.).
• A plaintiff’s recovery is reduced by the amount of her negligence whatever amount her negligence is determined to be.

Finally, courts will consider Watson Factors – the factors to be considered when assigning fault:
(1) Whether the conduct resulted from inadvertence or involved an awareness of the danger
(2) How great was the risk of the conduct
(3) The utility of the conduct
(4) The capacities of the actors (superior?)
(5) Extenuating circumstances which might require the actor proceed in haste
(6) The relationship between the fault/negligent conduct and the harm to the Plaintiff

Question 3

Solidary (Joint and Several) Liability

Answer 3

Louisiana has effectively eliminated solidary/joint and several liability. The major exception is that a vicariously responsible employer is liable in solido with its employee.

Question 4

Seatbelts and Alcohol

Answer 4

Seat Belts: Failure to properly use seatbelts is admissible into evidence to establish comparative fault.

Alcohol: A plaintiff who is operating a motorized vehicle, with a blood alcohol concentration of .08, and is found to be in excess of 25% may not recover for any damages.

Question 5

Immunities - Generally

Answer 5

(1) Workers’ Comp Immunity
(2) Sovereign Immunity (Government)
(3) Family Immunity
(4) Recreational Land Immunity
(5) Rescuers Immunity

Question 6

Worker’s Compensation

Answer 6

• When you see an employee trying to recover against an employer write this:
  “The Workers’ Compensation Act provides an exclusive remedy for the employee against his employer or co-employee where the terms of the statute are met. The compromise allows the injured employee to recover damages pursuant to the statute, but the employer and the co-employee will be immune from civil tort lawsuits, except for intentional acts.”
• Always look for some intentional tort for the injured employee to get out from under the WC immunity.

Question 7

Worker’s Compensation Requirements

Answer 7

• To fall within the WC recovery scheme, there are three requirements:
  (1) An employment relationship
  
  • Payroll employer
  • Borrowing employer
  • Statutory employer (unique to WC)
    (2) Nature of the Injury (not the same as course/scope)
  • Arise out of employment
  • In the course of employment
    (3) A compensable injury

Question 8

Exceptions to Worker’s Compensation

Answer 8

(1) Horseplay: an accidental injury that occurred while the injured employee was engaged in horseplay will not be considered as having arisen out of employment.

(2) Personal disputes unrelated to employment: an accidental injury that arose out of a dispute with another person or employee over matters unrelated to the injured employee’s employment is not covered by workers’ compensation.

(3) Intentional acts: the exclusive remedy rule does not apply to intentional acts. An employee may recover both in tort and worker’s compensation for damage arising out of his employer’s intentional act.
- However, to prevent double recovery, the employee’s tort damages are offset against workers’ compensation benefits.

Question 9

Sovereign Immunity

Answer 9

• Sovereign immunity must be discussed whenever the defendant is a governmental entity. The primary features are:
  (1) Generally, the sovereign is immune
  (2) LA has waived the immunity for tort liability
  (3) Jury trials are prohibited unless the government waives the prohibition
  (4) General damages are capped at $500K
  (5) Discretionary acts or policies are immune

Public Duty Doctrine: in order to prove public entity liability for a thing, the plaintiff must establish:
(1) Custody or ownership of the defective thing by a public entity
(2) The defect created an unreasonable risk of harm
(3) That the public entity had actual or constructive knowledge or notice of the defect
(4) That the public entity failed to take corrective action within a reasonable time
(5) Causation

Question 10

Family Immunities

Answer 10

Spouses may not sue each other and children may not sue parents. Parents may, however, sue children. However, the immunity exists only as long as the status exists and the prescriptive period begins to run when the status is terminated.

Question 11

Recreational Land Immunity

Answer 11

Applies to undeveloped land used for noncommercial recreational purposes.

Question 12

Rescuer Immunity

Answer 12

Amateur rescuers at an emergency scene are immune from negligence