Louisiana has enacted new laws addressing the burden of proof and limitation on damages in personal injury claims. These enactments not only affect claims arising on land but also may extend to claims arising on fixed structures in state waters and on the Outer Continental Shelf, where state law has been applied as surrogate federal law. Among the notable new legislative actions are the enactment of Code of Evidence Article 306.1, the amendment of Civil Code Article 2323(A), and the enactment of Civil Code Article 2323(D).

The newly enacted Code of Evidence Article 306.1 is meant to overrule the long-held evidentiary standard of Housley v. Cerise, 579 So.2d 973 (La. 1991), otherwise known as the Housley Presumption. Under the rule of Housley, a claimant’s personal injury was presumed to have resulted from the accident in controversy so long as the claimant could prove that the injury in question did not exist prior to the accident’s occurrence. This was widely considered to be a liberal standard, highly favoring plaintiffs engaged in litigation. Now, Art. 306.1 does away with this presumption, as it expressly states that “the lack of a prior history of an illness, injury, or condition shall not create a presumption that an illness, injury, or condition was caused by the act that is the subject of the claim.” Of note is the fact that the updated provisions of Art. 306.1 will not be applied to presently ongoing matters. It is to have “prospective application only” and therefore will apply exclusively to causes of action arising after it goes into effect. Nonetheless, Art. 306.1 will create a more onerous burden of proof for claimants in personal injury actions brought under Louisiana state law, much to the benefit of defendants in the same.

The changes to Civil Code Article 2323 center on state law theories of comparative fault. Prior to the signing of this new legislation, Civ. Code Art. 2323(A)(1) provided that a claimant found to have suffered injury, death, or loss partially due to his own negligence would see his recoverable damages reduced in proportion to the “degree or percentage of negligence attributable” to the claimant. This language has been removed from the statute entirely. Instead, Civ. Code Art. 2323(A)(2)(a) will now provide that a claimant found to be at least 51% responsible for his own injury will not be entitled to recovery of any related damages whatsoever. The sentiment of the rule as it was previously written is preserved in altered form in Civ. Code Art. 2323 (A)(2)(b), however, which now reads that a claimant found to be less than 51% responsible for his injuries will see his recoverable damages reduced in proportion “to the degree or percentage of negligence attributable” to the claimant. In addition to its amendments to Civ. Code Art. 2323(A), the legislature has added a Civ. Code Art. 2323(D), which provides that “[i]n cases where the issue of comparative fault is submitted to the jury, the jury shall be instructed on the effect of this Article.” This is to say that juries tasked with assigning percentages of fault to each party will receive instruction outlining the new ramifications of Civ. Code Art. 2323.