discovered peril doctrine in Louisiana

1967As was pointed out in Franicevich v. Lirette (La.App.) 124 So.2d 318, 320-321 (4th Cir.1960 — writs granted) : “Since the decision of the Supreme Court in Rottman v. Beverly, 183 La. 947 , 165 So. 153 , the courts of this State have uniformly applied what is referred to as the doctrine of discovered peril under which it has been held that there is liability in an automobile operator who, had he been on the alert, could have avoided striking a person who is in a position of peril of which that person is unaware or from which that person is unable to extricate himself.

1967As was pointed out in Franicevich v. Lirette (La.App.) 124 So.2d 318, 320-321 (4th Cir.1960 — writs granted) : “Since the decision of the Supreme Court in Rottman v. Beverly, 183 La. 947 , 165 So. 153 , the courts of this State have uniformly applied what is referred to as the doctrine of discovered peril under which it has been held that there is liability in an automobile operator who, had he been on the alert, could have avoided striking a person who is in a position of peril of which that person is unaware or from which that person is unable to extricate himself.

1949The doctrine of discovered peril made its appearance in Louisiana in the case of Rottman v. Beverly, 183 La. 947 , 165 So. 153 , 156, in which our Supreme Court said: "* * * if a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can. * * *" Shortly thereafter, in Jackson v. Cook, 189 La. 860 , 181 So. 195 ,

1949The doctrine of discovered peril made its appearance in Louisiana in the case of Rottman v. Beverly, 183 La. 947 , 165 So. 153 , 156, in which our Supreme Court said: "* * * if a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can. * * *" Shortly thereafter, in Jackson v. Cook, 189 La. 860 , 181 So. 195 ,

1975Thus, parking negligence could not be imputed to the innocent plaintiff in either case. [1] Depending upon the form of comparative negligence applied, plaintiff's recovery would be reduced (under pure comparative negligence) or entirely barred (under certain modified applications), if plaintiff is found to be more than 50% negligent. [2] Agreeing with the views expressed in Judge Beer's dissenting opinion on rehearing, I reiterate my statement in the concurring opinion in Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4th Cir. 1975) that "doctrinal tort writers are alm

1967And that doctrine has been extended by the decision in Jackson v. Cook, 189 La. 860 , 181 So. 195 , to include the situation in which the defendant does not actually discover the peril but should have done so, provided, of course, that at the time at which the peril should have been discovered there was an opportunity for the defendant to avoid the accident.” In reviewing, under certiorari, the Franicevich case, the Supreme Court ( 241 La. 466 , 129 So.2d 740 , 742 [1961]) noted no error in the statement of principles above quoted, but, in a statement with reference to the case of Jones v. Ame

1967And that doctrine has been extended by the decision in Jackson v. Cook, 189 La. 860 , 181 So. 195 , to include the situation in which the defendant does not actually discover the peril but should have done so, provided, of course, that at the time at which the peril should have been discovered there was an opportunity for the defendant to avoid the accident.” In reviewing, under certiorari, the Franicevich case, the Supreme Court ( 241 La. 466 , 129 So.2d 740 , 742 [1961]) noted no error in the statement of principles above quoted, but, in a statement with reference to the case of Jones v. Ame

1961In the case of Fontenot v. Freudenstein, La.App., 199 So. 677, 680 , the Court of Appeal had this to say about the doctrine of discovered peril: “But even the doctrine which has been established by those two cases [Rottman v. Beverly and Jackson v. Cook, both cited supra] requires that there must be something about the appearance or actions of the plaintiff to indicate that he is in peril and does not realize it.” In Jones v. American Mutual Liability Ins.

1961Co., La.App., 189 So. 169, 174 , the Court of Appeal correctly stated that “ * * if there was nothing about the plaintiff’s position or physical condition to indicate that he was in danger, it is immaterial whether defendant saw him or not.

1959The limitations of this rule are made clear in the following quotation from Myers v. Maricelli, La.App. 1951, 50 So.2d 312 , 316: “The doctrine of last clear chance imposes upon one discovering the peril of another, brought about by the negligence of the other, the duty of taking evei'y reasonable and prudent precaution to save the other from the consequences of his negligent acts.

1953Judge Hardy, the organ of this court, stated, La.App., 43 So.2d at page 920 : “ * * * clearly the time element at such instant would not admit of the application of the legal responsibility flowing from the discovered peril doctrine as against the defendant.” Cited also is Dupuy v. Veazey, La.App., 1953, 63 So.2d 756 .

1953Judge Hardy, the organ of this court, stated, La.App., 43 So.2d at page 920 : “ * * * clearly the time element at such instant would not admit of the application of the legal responsibility flowing from the discovered peril doctrine as against the defendant.” Cited also is Dupuy v. Veazey, La.App., 1953, 63 So.2d 756 .

1953Relying on our decision in Cassar v. Mansfield Lumber Co., Inc., 215 La. 533 , 41 So.2d 209 , counsel for Mrs. Herget say that she is entitled to recover, even if guilty of contributory negligence that continued to the moment of the accident, under the doctrine of discovered peril.

1953Relying on our decision in Cassar v. Mansfield Lumber Co., Inc., 215 La. 533 , 41 So.2d 209 , counsel for Mrs. Herget say that she is entitled to recover, even if guilty of contributory negligence that continued to the moment of the accident, under the doctrine of discovered peril.

1943Co., La.App., 8 So.2d 343 , 344, by Judge Taliaferro: "For all practical purposes this doctrine (the doctrine of discovered peril) is the same in scope and effect as the last clear chance doctrine." In order to justify the application of the discovered peril theory in this case, it would be necessary to definitely establish the fact that, perceiving the actual peril, the members of the train crew failed to exercise every possible means at their command to avoid injury to the person in peril.