Daily Development for
Monday, May 15, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDOWNER'S LIABILITY; INJURY FROM CRIMINAL ACTS OF THIRD PARTIES; COMPARATIVE FAULT: Louisiana Supreme Court rules that comparative fault principles will not apply to reduce damages payable by apartment complex manager whose negligence contributed to damages caused by intentional tortious attack by criminal third party Veazey v. Elmwood Plantation Associates, Ltd., 646 So.2d 866 (La. 1994). Plaintiff was raped in her apartment. The trial court found that plaintiff was without fault. Defendant apartment manager was found to have been at fault in a number of particulars in misleading the plaintiff as to the safety history of the complex and in providing inadequate security in general. Obviously, however, the rapist was a substantial causative factor in plaintiff's injuries. The questions addressed by the court was whether, under Louisiana's comparative fault statute, it was appropriate to apportion liability between the rapist and the complex manager, so as to reduce the proportion of damages payable by the manager.

Held: Although it is possible to read the Louisiana comparative damages statute in such a way as to permit apportionment, the legisluture intended to give the courts some discretion as to when to apportion. As a matter of public policy, there should be no apportionment here, where the apartment manager's negligence created conditions that led to a criminal attack.

The Louisiana court cited three bases for its conclusion:

1) A negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.

2) Negligent tortfeasors should not be allowed to benefit at the expense of an innocent tort victim when the result would be to reduce incentive of parties with responsibility to protect against criminal attacks (sounds like the first item - but the court saw a difference - ed).

3) Intentional torts are fundamentally different from negligent torts, and consequently it often is inappropriate to compare fault in the two cases.

The court expressed no opinion about what might happen in the event that the victim was found to partially responsible. There were three dissenters and a concurrence.

Comment: This case is a very important holding on an issue that is of particular signifiance in the criminal attack cases, but has broader application. There have been few opinions of state high appeals courts on the issue. For an interesting case discussing similar issues, see Pamela B. v. Hayden, 31 Cal. Rptr. 2d 568 (Cal. Ct. App. 1994), which is now before the California Supreme Court.

The Louisiana court, by making a special policy interpretation of the statute that gives it leeway to make different interpretations in other contexts, may be "dodging the bullet" of harsh interpretations leading to untenable results. In Pamela B., for example, the court found the defendant apartment operator 95% liable and the rapist only 4% liabile (an accomplice to the rapist got the other 1%.) The court necessarily reversed that conclusion, but under the Louisiana, view, such tortured analysis would not be necessary in cases like this.

Consider how the analogous principles might apply in another "pattern" problem confronting real estate lawyers today: A real estate seller fraudulently misrepresents the character of the property for sale. A broker, with a duty of care to convey accurate information to the buyer, negligently fails to detect the fraud. The buyer suffers significant damages and sues both, but the seller is "judgment proof." Is the broker liable for 100% of the damages under a comparative fault statute?

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