Answering a Fool According to His Folly: Ruminations on Comparative Fault Thirty Years On

• Author: Frank L. Maraist; H. Alston Johnson III; Thomas C. Galligan, Jr.; William R. Corbett
• Pages: 1105-1144

Nolan J. Edwards Professor of Law and Holt B. Harrison Professor of Law, Louisiana State University Paul M. Hebert Law Center; Adjunct Professor of Law, Louisiana State University, Hebert Law Center; President and Professor of Humanities, Colby-Sawyer College, New London, New Hampshire; Frank L. Maraist Professor of Law, Louisiana State University Paul M. Hebert Law Center.

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Answer a fool according to his folly, lest he be wise in his own eyes. ¹

Introduction

Tort law does not always heed biblical admonitions, but it generally has adhered to this one whether the fool, for purposes of litigation, appears as a plaintiff or a defendant. In this piece, our primary focus will be on the faulty plaintiff except insofar as the defendant's level of fault might affect the recovery of the faulty plaintiff. From the early development of intentional torts to the modern applications of negligence and strict or absolute liability, tort law generally has often denied recovery to the victim whose conduct was not merely negligent but foolhardy-whether that foolhardiness was expressed as recklessness, wantonness, or willfulness. Traditional intentional tort law denied recovery to the victim who consented to the intentionally harmful conduct of the tortfeasor. With the advent of negligence in the nineteenth century, the law generally denied any recovery for the foolhardy victim of the negligent acts of another, but it went further under contributory negligence and denied recovery to the merely negligent plaintiff whose fault did not rise to the level of foolhardiness. In addition, the traditional negligence rule was that a victim who assumed the Page 1106 risk-one who voluntarily encountered a known risk-was denied any recovery through application of the defense of assumption of the risk. Conveniently, but misleadingly, what constituted contributory negligence often overlapped with what courts called assumption of the risk. Because the result-no recovery for the victim-was the same in either case, the overlap did not matter.

As noted, in most cases, the foolhardy plaintiff also was deemed contributorily negligent, a conclusion that the plaintiff had failed to act reasonably under the circumstances for his or her own protection. Such contributory negligence, like assumption of the risk, was an affirmative defense that denied the victim any recovery. In the twentieth century, usually by legislative action, most states abandoned contributory negligence as an affirmative defense ² and now allow the victim, who failed to act as a reasonable person to protect his or her safety, to recover some of the damages from the tortfeasor under a form of comparative fault, either of the so-called "pure" variety or in some modified form. Thus, in most cases the foolhardy victim theoretically could recover some damages under the theory of comparative fault, although he would be barred from any recovery for the same conduct by application of the other theory-assumption of the risk.

After the advent of comparative fault, some jurisdictions have retained all or some part of assumption of the risk as an affirmative (and complete) defense, either by legislation or by jurisprudential rule. Others, like Louisiana, have recognized that in most instances the same conduct that is contributory negligence is also properly called "secondary" or "implied" assumption of the risk, and, logically, because the legislature has said that a plaintiff's conduct that contributes to the harm only reduces recovery, it would be improper to apply assumption of the risk generally to bar all recovery. Notwithstanding the demise of contributory negligence as a bar to recovery and the rise of comparative fault, courts and legislatures adhere to the belief that there is some conduct that is worse than comparative fault. A tort victim's conduct may not be merely the failure to act as a prudent person for his own safety, but may be so foolhardy that, some would argue, the law should not allow any recovery at all. But such an arguable policy-so appealing in its simplicity-brings with it knotty questions regarding how to implement it without drifting back to a bar to recovery by the merely negligent plaintiff under theories of negligence or strict liability. Page 1107

The Louisiana legislature addressed this problem in 1979, for effect in 1980, adopting pure comparative negligence as the rule to govern recovery by a "faulty" plaintiff. It thereby eschewed modified comparative fault regimes that other states had adopted, such as the "equal to" comparative negligence approach (when the plaintiff's fault equals that of the defendant or defendants, there is no recovery at all) or the "greater than" approach (same result when the plaintiff's fault is greater than that of the defendant or defendants). ³ At the same time, the legislature did not address the jurisprudential defense of assumption of the risk. ⁴ Later, the Louisiana Supreme Court promptly concluded that in the area in which conduct could be considered both contributory negligence and secondary or implied assumption of the risk, the latter defense is subsumed into the new comparative fault rules. The court, however, has recognized two situations in which conduct falls within traditional assumption of the risk principles but does not overlap with the conduct that customarily is considered contributory negligence. One, of course, is express assumption of the risk by contract. The effect of express assumption of the risk in Louisiana is governed by the Louisiana Civil Code. ⁵

The other situation is the one in which the victim voluntarily encounters a known risk that is "obvious to all comers," sometimes also referred to as an "open and obvious risk." Attending a hockey game and sitting in seats higher than the protective barrier around the rink is probably conduct that will be construed as voluntarily encountering the risk of being struck by an errant puck. The same may be said of sitting down the third-base line at a baseball game, beyond the protective fencing, with respect to the risk of being hit by a foul ball. In pre-comparative fault days, the plaintiff who complained of being struck by an errant puck or ball would very likely have been barred from recovery, and whether his conduct was called "contributory negligence" or "assumption of the risk" was largely immaterial. Barring recovery on the basis of the plaintiff's conduct often made it unnecessary for the court to delve Page 1108 into the knotty question of the duty owed by the defendant to the plaintiff. Regardless of whether the basis was plaintiff conduct or lack of defendant duty, the result was the same: the plaintiff recovered nothing. Now, it might be more appropriate to say that the defendant either had no duty to protect against the risk that occurred or did not breach any duty that was owed.

The cases described in the preceding paragraph are not really the same as the claim of a "foolhardy" plaintiff, although perhaps persons who choose seats at an athletic event without considering the potentially injurious consequences of their choices could be described by some as foolhardy, even though this seems to strain the plain meaning of the word. Are there instances in a pure comparative fault scheme in which a plaintiff's conduct can be the basis of a total bar to recovery rather than merely a diminution of the amount of recovery? And if so, how is the court to conduct its analysis?

This has been an uneven effort at best in the thirty years since the enactment of pure comparative negligence in Louisiana. Some of the effort has been judicial in nature, and some of it has been legislative. For their part, the courts have struggled with the task of defining what conduct falls within the "no recovery" category as opposed to the "diminished recovery" category and in formulating a theory of law that is just, easy to understand, and useful in predicting future outcomes in litigation. Generally speaking, conduct that is not merely contributing negligence subject to comparative fault principles, but rather is foolhardiness or other conduct that could arguably justify denial of any recovery, may be addressed by concluding that: (1) the defendant did not owe a duty to protect the plaintiff from this harm; or (2) the defendant's conduct was not unreasonable in light of the plaintiff's conduct; or (3) the defendant's conduct, if otherwise wrongful, was not the legal or proximate cause of the plaintiff's damages. The extent to which the courts are willing to construct a body of law that essentially circumvents the principle of pure comparative negligence effective in 1980, by concluding either that there should be a total bar to recovery based on the plaintiff's conduct or perhaps that there should be a full recovery despite the plaintiff's conduct, is a major part of our discussion in this Article. There is certainly an argument to be made that the legislature created an overarching pure comparative fault regime and that, except where provided by statute, the courts should not bar the recovery of a faulty plaintiff, but merely reduce that recovery. The strength of the argument derives from the legislature's express statement in Page 1109 Civil Code article 2323, and that interpretation is consistent with the Louisiana Civil Code and with the legal positivist tradition. ⁶

The courts have not been alone in crafting circumventions of comparative fault. Since the...