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Dumas v. State12/19/2001
aph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability. (Emphasis added). Art. 2324.
Liability as solidary or joint and divisible obligation
(B) If liability is not solidary pursuant to Paragraph A (intentional or willful act), then liability for damages caused by two or more persons shall be joint and divisible obligations. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury , death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.
The state contends that the amendments to these two articles have eliminated solidary liability in negligence cases (but not intentional tort cases) and done away with the action for contribution, even though La. Civil Code Articles 1804 and 1805 provide for contribution among solidary obligations arising from offenses and quasi-offenses by making the solidary co-obligors a third party defendants. Indeed, the language of article 2323 appears to require a determination of the percentage of fault of all joint tortfeasors in any action for damages and article 2324 states that the liability of joint tortfeasors shall not be solidary.
Weber was decided after the enactment of comparative fault. Lambert was decided after the 1987 amendments reducing solidary liability. We find that the 1996 amendments to articles 2323 and 2324 do not change the rule of Weber and Lambert. When the duty breached by a tortfeasor includes the risk that a plaintiff's injuries might be worsened by subsequent medical treatment, the tortfeasor is liable for 100% of the damages. This rule is based upon legal cause. When a tort victim takes reasonable steps to secure medical treatment, the original tortfeasor may also be liable for subsequent medical malpractice. That a tort victim will seek medical care when injured and thus, be subject to further risk and damages is foreseeable and easily associated with the original injury . This is not a divisible obligation. There is no additional percentage of fault by the medical care provider to quantify.
Conclusion
For these reasons, we affirm the ruling of the trial court granting the motion to strike filed by plaintiffs. Our ruling does not prohibit the state from filing a third-party demand for contribution from the appropriate parties as authorized by Louisiana Civil Code Articles 1804 and 1805.
AFFIRMED.
CARAWAY, J., dissents with written reasons.
CARAWAY, J., dissenting.
I respectfully dissent to the majority's ruling.
The first observation I would make about this case is that separate injuries occurred to Mr. Dumas on two different occasions. This permits apportionment of damages. Damages for which the State may be completely responsible occurred before the alleged act of medical malpractice. The damages, beginning with the act of medical malpractice, can be attributable to two tortfeasors.
The Weber and Lambert rulings are couched in the language of solidary obligations between joint tortfeasors. Weber says that two tortfeasors may be solidarily liable for those damages which a plaintiff may compel either to pay, even though other elements of damages (such as the pain and suffering of the bicycle ac
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