Louisiana’s Negligence Duty / Risk Analysis in a Nutshell

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?

If you have questions about Louisiana’s negligence duty/risk analysis, contact Scott Andrews, one of the experienced Baton Rouge, Louisiana personal injury lawyers at Dué, Guidry, Piedrahita & Andrews to schedule a free consultation.