Effect of Summary Judgment Dismissal on Comparative Fault

As you may know, Louisiana is a “pure comparative” jurisdiction, meaning that even an immune NON-PARTY can be assessed fault, reducing the percentage of fault of 
other defendants.
However, what happens if there is summary judgment and one of the parties (or even a non-party) is deemed NOT at fault?
This post is to clarify some concerns regarding Act 690 of 2010, which amended Article 966 of the Code of Civil Procedure dealing with summary judgment and the application of comparative fault. The courts have not yet addressed this amendment and there was some discussion of whether the amendment could prevail if in conflict with the substantive comparative fault statute La. C.C. art. 2323; however, a close reading of the amendment demonstrates that there is likely no conflict.
The important portion of the amendment adds the following language to La. Civ. P. art. 966:
(F) When the court determines in accordance with the provisions of this Article, that a party or non party is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or non party may not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non party nor shall the issue be submitted to the jury. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005.
As the amendment states, it is not the fact that a party is dismissed on summary judgment, but the reason that the summary judgment is granted, which removes them from consideration in the allocation of fault.

If the summary judgment is due to the fact that “a party or non party is not negligent, not at fault, or did not cause” the harm that is the subject of the suit, then there can be no evidence presented as to or consideration of that entity’s action when allocating fault, whether by judge or jury. Although, a technical consideration, such as immunity* ,arguably absolves the actor from “fault,” the bracketing of the word in the amendment by the word “negligent” and the phrase “did not cause” is more likely indicative of the word “fault” being meant in a practical sense as contributing to the circumstances that caused the harm. This is further supported by the statement that this amendment will not apply in cases of summary judgment based on an affirmative defense.
By this reading, there seems to be no conflict between the amendment and the language of La. C.C. art. 2323 which reads, in part:
(A)   In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined . . . regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.
In sum, if a person or entity obtains a summary judgment based on the fact that they did not cause or contribute to the subject loss, no evidence as to their action or inaction may be presented at trial and none may be considered in the allocation of fault. If, however, a summary judgment is based on a procedural mechanism or affirmative defense, then it appears that the party or non party can still be considered in the fault allocation.
This may have been obvious to you, but apparently there was enough confusion over this issue that the legislature had to amend the procedural statute.
*Note: R.S. 23:1032 is the worker’s compensation employer immunity statute.
Special thanks to Chris Baker for researching this issue for clarification.
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