La. Civ. Code Ann. art. 2323 clearly requires that the fault of every person responsible for a plaintiff's injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.
The victim was riding a bicycle in a park when he allegedly hit a pothole in the park road. As a result of the alleged accident, the victim sustained a large laceration to his forehead and scalp. The victim was transported to a hospital where he received medical treatment for his wounds. Subsequently, the victim died. Plaintiffs alleged that the pothole presented an unreasonable risk of harm, that the State had both constructive and actual knowledge of the defect, and that the State's failure to cure the defect or warn of its presence was the cause of the victim's death. The State filed an amended answer alleging as an affirmative defense that the death of the victim resulted solely from the medical negligence of physicians and staff at the hospital. The trial court determined that because the original tortfeasor, the State, was liable for 100 percent of the damages, there was no additional percentage of fault by the hospital to quantify. In the wrongful death and survival action to recover damages sustained when the victim was injured in a bicycle accident and subsequently died while being treated for his injuries in a hospital, the supreme court granted writ of certiorari to the district court and the Court of Appeal, Second Circuit, Parish of Morehouse (Louisiana), to consider whether the lower courts properly granted plaintiffs' motion to strike defendant State's amended answer.
Did the 1996 amendments to La. C.C. arts. 2323 and 2324(B) allow the initial tortfeasor to present, as an affirmative defense, evidence relating to alleged malpractice on the part of the health care providers?
The supreme court found that the clear language of La. Civ. Code Ann. arts. 2323, 2324(B), led to the conclusion that the State had to be allowed to put on evidence related to the hospital's alleged fault as part of its defense. The supreme court reversed the lower courts' judgments and remanded the case to the district court for further proceedings.