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Breithaupt v. Sellers - 390 So. 2d 870 (La. 1980)

Rule:

Even assuming that a plaintiff was negligent in failing to wear "hunter orange," as required by La. Rev. Stat. Ann. § 56:143, plaintiff's conduct could not constitute contributory negligence unless such negligence also was a legal cause of his accident. The threshold inquiry in the determination of legal cause is whether the act was a substantial factor in causing the injury.

Facts:

Plaintiff Robert Breithaupt, who had himself been hunting deer, was shot in the left thigh by another hunter. Breithaupt filed this tort action against defendant Luke Sellers, alleging that Sellers was the man who shot him.  Trial court decided in favor of Luke Sellers. The Circuit Court of Appeal affirmed the decision of the trial court. Both the trial court and the appellate court reasoned that, inasmuch as La. Rev. Stat. Ann. § 56:143 required hunters to wear fluorescent material known as "hunter orange," the victim of a hunting accident was barred from recovering for his injuries because Breithaupt was a hunter who was not wearing hunter orange. His contributory negligence barred his recovery. Breithaupt sought further appellate review of the order of the Third Circuit Court of Appeal.

Issue:

Was the victim guilty of contributory negligence in sustaining his injury?

Answer:

No.

Conclusion:

The Supreme Court of Louisiana could not accept the appellate court's conclusion that the victim was contributorily negligent as a matter of law. Even assuming that the victim was negligent in failing to wear hunter orange, his conduct could not constitute contributory negligence unless such negligence was also a legal cause of his accident. The appellate court assumed that the other hunter acted reasonably, which was the most difficult factual issue presented. A motion for directed verdict was appropriate only if reasonable men could not have disagreed on the issue of contributory negligence. If Breithaupt's story is believed, then the jury might be willing to infer that, since plaintiff could discern Sellers' facial features, Sellers should have been able to detect that plaintiff was a man and not a deer. The jury might have been willing to believe that Sellers fired without adequately looking at his target and that the accident would have happened regardless of whether Breithaupt wore "hunter orange." However, the Court held that whether Breithaupt's conduct contributed to his injury was a factual issue for jury. The Court reversed the Court of Appeals and remanded to the trial court for a new trial.

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