contributory negligence doctrine in Louisiana

2017The first Louisiana case that clearly adopted the doctrine of contributory negligence was Fleytas v. Pontchartrain Railroad Co., 18 La. 339 (1841), which was decided at a time when there was no organized body of civilian doctrine on the issue of comparative fault.

2002The first Louisiana case that clearly adopted the doctrine of contributory negligence was Fleytas v. Pontchartrain Railroad Co., 18 La. 339 (1841), which was decided at a time when there was no organized body of civilian doctrine on the issue of comparative fault.

1987Smolinski v. Taulli, 276 So.2d 286 (La.1973).

1983The party relying upon the contributory negligence defense has the burden of proving it. *385 Smolinski v. Taulli, 276 So.2d 286 (La.1973).

1985The Louisiana Supreme Court, in Dorry v. Lafleur, 399 So.2d 559 (La.1981), stated that the circumstances under which a plaintiff's contributory negligence should bar his recovery in a strict liability case should be developed on a case by case basis.

1982In Dorry v. Lafleur, 399 So.2d 559 (La.1981) the court observed: "Under what circumstances a plaintiff's contributory negligence should bar his recovery in a strict liability case should be developed on a case by case basis," and rejected contributory negligence as a legitimate defense to the claim in that particular case.

1985Specifically, did the legislators intend to continue the effect of jurisprudence which restricted the application of the contributory negligence doctrine, and allowed full recovery for injury to negligent pedestrians? ( Baumgartner v. State Farm Mutual Automobile Insurance Co., supra; Guilbeau v. Liberty Mutual Insurance Co., supra; Belshe v. Gant, 235 La. 17 , 102 So.2d 477 (1958)).

1985Specifically, did the legislators intend to continue the effect of jurisprudence which restricted the application of the contributory negligence doctrine, and allowed full recovery for injury to negligent pedestrians? ( Baumgartner v. State Farm Mutual Automobile Insurance Co., supra; Guilbeau v. Liberty Mutual Insurance Co., supra; Belshe v. Gant, 235 La. 17 , 102 So.2d 477 (1958)).

1982And since, in such case, a plaintiff's contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue." ( 356 So.2d 400, 406 ).

1980Co., 356 So.2d 400 (La. 1978), the court stated: The last clear chance doctrine was created to escape the harsh effects of the contributory negligence defense which operates, in its strict application, as an absolute bar to a plaintiff's recovery.

2024App. 1 Cir. 4/4/96), 674 So.2d 996 , 1004, writs denied, 96-1862, 96-1895, 96-1902 (La. 10/25/96), 681 So.2d 373 , 374, the Court discussed comparative fault and the last clear chance doctrine as follows: Prior to the adoption of comparative fault in Louisiana, the doctrine of last clear chance was created to escape the harsh effects of the contributory negligence defense which, in its strict application, operated as an absolute bar to a plaintiff's recovery.

2006Discussing our state's leading case on comparative fault, the court in Gibson v. State, DOTD, 95-1418 (La.App. 1st Cir.4/4/96), 674 So.2d 996 , 1004, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373 ,374 stated: Prior to the adoption of comparative fault in Louisiana, the doctrine of last clear chance was created to escape the harsh effects of the contributory negligence defense which, in its strict application, operated as an absolute bar to a plaintiff's recovery.

2024App. 1 Cir. 4/4/96), 674 So.2d 996 , 1004, writs denied, 96-1862, 96-1895, 96-1902 (La. 10/25/96), 681 So.2d 373 , 374, the Court discussed comparative fault and the last clear chance doctrine as follows: Prior to the adoption of comparative fault in Louisiana, the doctrine of last clear chance was created to escape the harsh effects of the contributory negligence defense which, in its strict application, operated as an absolute bar to a plaintiff's recovery.

2006Discussing our state's leading case on comparative fault, the court in Gibson v. State, DOTD, 95-1418 (La.App. 1st Cir.4/4/96), 674 So.2d 996 , 1004, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373 ,374 stated: Prior to the adoption of comparative fault in Louisiana, the doctrine of last clear chance was created to escape the harsh effects of the contributory negligence defense which, in its strict application, operated as an absolute bar to a plaintiff's recovery.

2017Bell, 462 So.2d at 169 .

2017Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La.1988); Bell, 462 So.2d at 170 .

2005Cole [ v. Celotex Corp. ], 599 So.2d 1058 [(La.1992)].

1997Cole, 599 So.2d 1058 .

1981And since, in such case, a plaintiff's contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue. 8 It must be noted, however, that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault." (Emphasis ours.) This Court, in Widcamp v. State Farm Mutual Automobile Insurance Company, 381 So.2d 937 (La.App. 3 Cir. 1980), expanded Baumgartner's holding to cases where the pedestrian is struck in some other area besides the cross

1980Co., 381 So.2d 937 (La.App. 3 Cir. 1980), this Court applied the Baumgartner rationale to a situation involving an eight-year-old pedestrian who was not in a marked crosswalk when struck by an approaching vehicle.

1999On appeal in the present case, the court of appeal noted that Gautreaux had overruled the Spinks case relied upon by the trial court in the contributory negligence analysis. 96-0626 (La.App. 1 Cir. 9/23/97) ; 701 So.2d 243 .

1999On appeal in the present case, the court of appeal noted that Gautreaux had overruled the Spinks case relied upon by the trial court in the contributory negligence analysis. 96-0626 (La.App. 1 Cir. 9/23/97) ; 701 So.2d 243 .

1999The act eliminated the doctrine of contributory negligence. [3] Also see, Williams v. A.C. & S. Inc. et al., 700 F.Supp. 309 (M.D.La.1988) wherein a federal court judge considered the case of a plaintiff who alleged his injuries resulted from the manufacture and distribution of asbestos products.

1998Id.

1990Boyer, supra, states that while the plaintiff is required to prove the domestic animal causing injury created some unreasonable risk of harm, the plaintiff need not [go further? and] "establish that the animal was inherently dangerous or that it committed an aggressive act [in order to recover]." 553 So.2d at 828 .

1990Boyer, supra, states that while the plaintiff is required to prove the domestic animal causing injury created some unreasonable risk of harm, the plaintiff need not [go further? and] "establish that the animal was inherently dangerous or that it committed an aggressive act [in order to recover]." 553 So.2d at 828 .

1989CONTRIBUTORY NEGLIGENCE This issue is controlled by the decision in Boyer v. Johnson, supra. That court in effect applied the Child Labor Law to preclude the violating employer from pleading the minor's contributory negligence.

1985The majority disregards the language in Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599 , 250 So.2d 754 (1971), which states that "[a] manufacturer of a product which involves a risk of injury to the user is liable to every person... who without fault on his part, sustains an injury caused by a defect in design...." (Emphasis added.) I decline to depart from the well-established jurisprudence of this state that has recognized the doctrine of contributory negligence, and further disagree with the majority's contention that comparative fault existed in Louisiana prior to the

1985The majority disregards the language in Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599 , 250 So.2d 754 (1971), which states that "[a] manufacturer of a product which involves a risk of injury to the user is liable to every person... who without fault on his part, sustains an injury caused by a defect in design...." (Emphasis added.) I decline to depart from the well-established jurisprudence of this state that has recognized the doctrine of contributory negligence, and further disagree with the majority's contention that comparative fault existed in Louisiana prior to the

1980Justice Dixon writing for the majority in Baumgartner (footnote 8, page 406) took the opportunity to express the court's "disapproval of a concept first introduced into Louisiana jurisprudence by the court in Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 (1952)." That concept, now looked upon by the court with disfavor, was quoted from American Jurisprudence in the Bergeron case.

1980Justice Dixon writing for the majority in Baumgartner (footnote 8, page 406) took the opportunity to express the court's "disapproval of a concept first introduced into Louisiana jurisprudence by the court in Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 (1952)." That concept, now looked upon by the court with disfavor, was quoted from American Jurisprudence in the Bergeron case.

1969Although Michael was of sufficient age to be barred from recovery by the doctrine of contributory negligence, Lynch v. Knoop, 118 La. 611 , 43 So. 252 , 8 L.R.A., N.S., 480 (1907), we find the trial court correctly held that this 9 year old boy did what could be expected of any 9 year old boy who could easily climb the fence to go to the cage to feed the chimpanzee.

1969Although Michael was of sufficient age to be barred from recovery by the doctrine of contributory negligence, Lynch v. Knoop, 118 La. 611 , 43 So. 252 , 8 L.R.A., N.S., 480 (1907), we find the trial court correctly held that this 9 year old boy did what could be expected of any 9 year old boy who could easily climb the fence to go to the cage to feed the chimpanzee.

1957See Johnson v. Butterworth, 180 La. 586 , 157 So. 121 ; Iglesias v. Campbell, La.App., 175 So. 145 ; Jamison v. State, La.App., 7 So.2d 373 ; Brown v. Wade, La.App., 145 So. 790 ; Palermo v. Orleans Ice Mfg.

1957See Johnson v. Butterworth, 180 La. 586 , 157 So. 121 ; Iglesias v. Campbell, La.App., 175 So. 145 ; Jamison v. State, La.App., 7 So.2d 373 ; Brown v. Wade, La.App., 145 So. 790 ; Palermo v. Orleans Ice Mfg.