Article by Thomas C. Galligan, Jr.
“Let the Jury Decide! A Plea for the Proper Allocation of Decision Making Authority in Louisiana Negligence Cases” calls for the Louisiana Supreme Court to revamp its duty/risk mode of analysis in negligence cases and adopt the Restatement (Third) of Torts: Liability for Physical and Economic Harm approach to the allocation of decision making authority between judge and jury. Under the duty/risk method as originally articulated by Dean Leon Green and Professor Wex Malone the issues of duty and scope of duty or risk were decisions for the judge based on the application of policy factors such as” the administrative factor, the ethical or moral factor, the economic factor, the prophylactic or preventive factor, and the justice factor, including the capacity to bear the loss. But the reality is that in most garden variety negligence cases, courts do not decide based upon policy but rather the issue is a fact specific issue of fairness. Despite what the courts have said this has been the reality. Consequently, in reality scope of duty or risk issues (what others call proximate or legal cause) are mixed questions of fact and law, not legal questions. Continuing to even hint that such scope questions are legal questions confuses the role of the court and Louisiana tort law. Thus, let the jury—or judge as factfinder—decide scope of duty or risk. The piece discusses the genesis of the Duty-Risk method, discusses leading Louisiana decision applying it, explains that the courts have been inconsistent, and proposes the above noted reform.
About the Author
Thomas C. Galligan, Jr. LSU Interim President, Professor of Law, Louisiana State University Paul M. Hebert Law Center, Dodson & Hooks Endowed Chair in Maritime Law, and James Huntington and Patricia Kleinpeter Odom Professor of Law
Citation
94 Tul. L. Rev. 769 (2020)