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Salaiman v. Louisiana Casino Cruises11/8/2002
defense to recovery in the event that child is injured in an automobile collision. Paragraph F does this by precluding the introduction of evidence on restraint use in two ways. First, it precludes a defendant from raising the child's failure to be restrained in a safety device as evidence of the child's comparative negligence. Secondly, it precludes the admission of evidence on the issue of negligence. We believe the legislature added this provision to prevent a defendant from raising the issue of someone else's negligence (i.e., the parent) for failing to secure the child in a safety seat in order to reduce the child's recovery.
At a minimum, for a court to construe paragraph F to provide tort immunity to a defendant for the defendant's failure to properly secure a child in a safety seat, the legislative grant of such immunity would have to be express. There are numerous instances of express legislative grants of statutory immunity to individuals under certain circumstances contained in Title 9 of the Revised Statutes. In granting immunity from liability, the legislature has employed phrases such as "shall not be held liable for damages", or "shall not be individually liable to any person." See, e.g., La. R.S. 9:2800:10 (no person shall be liable for damages for injury , death, or loss sustained by a perpetrator of a felony offense during the commission of the offense or while fleeing the scene of the offense); La. R.S. 9:2792 (a director, trustee of any public, charitable or nonprofit hospital "shall not be individually liable to any person" that receives benefits from the hospital for any act or omission to act by any employee of the hospital); La. R.S. 9:2793 (no person who in good faith gratuitously renders emergency care "shall be liable for any civil damages" as a result of any act or omission in rendering the care or services).
Similarly, in extending statutory immunity, the legislature has also employed the phrase " o person shall have a cause of action against." See, e.g., La. R.S. 9:2793.1 (no person shall have a cause of action against a public entity for damage to property at the site of a crime). In other instances, the legislature has extended immunity from liability by mandating that, no duty of care is owed by certain individuals under certain circumstances. See La. R.S. 9:2791 (an owner, lessee or occupant of property used primarily for non-commercial recreational purposes owes no duty of care to keep such premises safe for entry or use by others).
On the other hand, paragraph F of La. R.S. 32:295 does not contain an express grant of statutory immunity shielding a defendant from damages caused by his failure to secure a child in a safety restraint device. Further, because the purpose of the law is to protect children, we are bound to read paragraph F in a way that will best accomplish that purpose. Therefore, we hold that paragraph F contains two evidentiary restrictions barring a defendant from introducing evidence that the child-victim was not in a child restraint device during a vehicular accident through the fault of the child or another as a means to reduce the child's recovery. However, it does not immunize a defendant from liability arising from the defendant's failure to properly secure a child in a vehicle.
For these reasons, we conclude that the trial court erred in granting the motion to strike and in rendering summary judgment to defendants. Accordingly, the judgment appealed from is reversed. This case is remanded to the trial court to conduct proceedings consistent with this opinion. All costs of this appeal are assessed to appellants.
REVERSED; REMANDED.
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