THE FATE OF THE GENERAL CLAUSE IN A CROSS-CULTURAL SETTING: The
Tort Experience of Louisiana
Vernon Valentine Palmer1
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Abstract
This paper considers the fate of the general clause on delictual responsibility in the Louisiana
Civil Code and the interweaving of civil law and common law traditions in the Louisiana
experience. The original wording of Article 2294 enshrined the civilian principle: ‘Every act
whatever of man that causes damage to another obliges him by whose fault it occurred to
repair it.’ But patterns of legal reasoning became progressively Americanized from the
mid-nineteenth century onwards, and the general clause experienced progressive legislative
transformation. The author traces these developments and examines why, despite a civilian
revival in the closing years of the twentieth century, the cultural conditioning of the common
law tradition has ultimately prevented the general clause from surviving as the organizing
principle of Louisiana tort law.
Introduction
The subject of tort in a mixed jurisdiction is of the greatest interest to the comparative lawyer
and to those interested in the modern ius commune. The subject merits our attention for a
number of reasons.
First, it has long been maintained that the theory of delictual responsibility is perhaps
one of the branches of civil law which allows the most constructive comparisons to be made
between the different national laws. It is believed to be less influenced than family
organization or the law of ownership by local juridical traditions; the problems to be solved
are the same everywhere, and frequently the practical results are almost identical in every
country.2
Second, this writer believes that tort or delict is the area of private law where in nearly
all the mixed jurisdictions of the world, the greatest exchanges between the two laws and the
two legal cultures have taken place. Tort is the area par excellence of common-law
penetration, yet penetration not without a certain mystery. It is interesting to observe that a
vast transplant of substance can be accomplished without formal change of civilian principle.
Continental textual façades may continue though the interior furnishings are mostly English
1
Thomas Pickles Professor of Law, Tulane University.
E. Fabre Surveyer, ‘A Comparison of Delictual Responsibility in Law in the Countries Governed by a Code,’ 8
Tul. L. Rev. 53 (1933) (citing Jenks, who said there is no branch of study where the comparative method can
more profitably be used).
2
or American or even novel creations. It is also interesting that for some, there may be little
awareness of the transformation. Despite the depth of the change, some insiders may
vigorously deny it has occurred or means much; a more numerous group may openly
acknowledge and welcome part of it; but the majority of jurists may display their indifference
to the issue. These divergences are a reminder that the mixed jurisdiction presents a theater of
multiple reality in which different versions of the same play emerge from the highly variable
perceptions of the legal actors.
A third point of interest is that we could hardly ask for greater divergence of approach
than the choice between a French general clause and the English pigeon-hole system of tort.
We might expect that commitment to the one would exclude application of the other and
would produce considerably different results and reasoning patterns. This is only to say that
modern tort systems present two great alternatives. There may be liability whenever a person
causes damage to another; there may be liability only in certain typical situations. The
former, known as the principle of neminem laedere, is the solution of the French Code civil.
The latter, enacted in the German BGB, was the solution of Roman law and of traditional
common law. In both of these last mentioned systems, there was a list of actions that a
plaintiff could bring against the person who had injured him: in Roman law, actions for theft,
robbery, insult and damage wrongfully done; in English law, for trespass, assault, libel and so
forth. Yet, mixed jurisdictions are rarely known to follow straight paths. The example of
Louisiana shows that it is apparently possible to steer toward both these alternatives, that is, it
is possible judicially to receive a large quantity of Anglo-American substance under the
umbrella of a general clause, while making legislative changes to the general clause which
progressively make it restrictive.
Yet a fourth reason for our interest is that, though something momentous has
occurred, it may be difficult to account in any convincing way for the factors, the motives
and underlying reasons for the occurrence. As usual, we are better able to explain what has
happened than why it happened. If the real issue is the search for underlying causes, the
subject may prove to be somewhat humbling, for it may only lead to the vague and bland
conclusion that what has occurred must be attributed to the strength of legal culture subduing,
displacing and dominating objective legal materials taken from the civilian tradition. That
indeed will be my theme, though I confess that I have an inadequate grasp of the ephemeral
connection between culture and legal change.
In speaking of legal culture I am thinking of that invisible product of legal training and
practice, that ‘framework of intangibles’ which effortlessly and reflexively organizes our
thoughts, perceptions and reasoning. Culture is that which we lawyers are least aware of and
do not question, a natural expressive element like breathing out and breathing in. It is the one
feature of a legal system that cannot be borrowed, transplanted, or received. It flows from so
many elements that need to be collapsed and compressed to find its essence.3 This essay
The notion of legal culture, to quote Lawrence Friedman, refers to ‘the attitudes, values and opinions held in
society, with regard to the law, the legal system and its various parts.’ Law and Society: An Introduction, 76
(1977). The term may also characterize the ‘underlying traits of whole legal systems - its ruling ideas, its
flavour, its style.’ The Legal System: A Social Science Perspective 15 (1975). See also John Bell, ‘English Law
and French Law: Not So Different? Cambridge L.J. 69 (1995) (‘A specific way in which values, practices, and
concepts are integrated into the operation of legal institutions and the interpretation of legal texts.’); David
Nelken, Comparing Legal Cultures 15-17 (Dartmouth 1997); Van Hoecke and Warrington, ‘Legal Cultures,
Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law,’ 47 Int’l & Comp. L.Q. 495
(1998). See also Alan Watson, Failures of the Legal Imagination, 24 (Scottish Academic Press 1988), who
writes ‘ a living culture is not examined by those who live it.’ The articles of a Code, for example, can be
understood in form and substance ‘only if there is an inquiry into the cultural history behind them, and this
inquiry must often span centuries and countries.’
3
considers the evolution of a principle that was originally shaped by European natural law
thinkers and then transplanted overseas to be implemented by jurists and legislators by and
large possessed of an American legal culture. My subtheme then is the effect of the legal
unconscious upon the law of tort. Looking over Louisiana tort history, one is struck by the
influence of common-law thought and reasoning patterns. It is as if the system could not have
absorbed so vast a transplant without first being culturally conditioned to do so. I can only
account for the transculturation of the general clause by attributing this process to the
prehensile grip which a dominant culture wields over the positive law itself.
To be sure, this is not an original theme, nor, I fear, will I deal with it as well as others
have done. But if I am gauging history correctly, my lack of originality takes nothing away
from the importance of the phenomenon. Certainly it may be a subject of some interest in
Maastricht at the Ius Commune Research School, under whose auspices this conference is
held. Clearly the resurrection of the ius commune in Europe must to a large extent depend
upon an understanding of the role of legal culture in shaping legal development.
1. Penetration and patterns in mixed jurisdictions
In a comprehensive study of the mixed jurisdictions of the world that I recently completed,4 I
was able to make general comparisons about the patterns of penetration and resistance of the
two laws within such systems.
Based on reports from seven countries, it appears that the field of obligations has been
the most affected or most penetrated area of the law, while in contrast property law has
proven the most unassailable area of civil law. There were important differences, however,
within the field of obligations itself: tort or delict generally received the greatest amount of
common-law influence; contract law usually received somewhat less but still a substantial
amount of influence; and quasi-contract was the least affected part of obligations. Thus la
responsabilité (delictual obligations) stands on one terminus as the most susceptible to
judicially initiated and propagated common law.5 In 1909 Judge E.D. Saunders stated in his
preface to the Louisiana Civil Code that it is ‘substantially true to say that the tort law of
Louisiana is a body of common-law rules and principles having practically no connection
with Roman, French, or Spanish laws.’ In 1937 four eminent scholars who were strong
partisans of the civil law, conceded that this assessment was essentially correct. They wrote,
‘The influence of common law in the development of delictual and quasi-delictual
responsibility in Louisiana has been very strong and any assertion to the contrary would not
be justified by the actual facts.’6 It is natural to ask how and why this happened. In
attempting an answer let me look first at the scheme of delictual liability found in the
4
See Vernon Valentine Palmer, ed., Mixed Jurisdictions Worldwide: The Third Legal Family, chap. I
(Cambridge University Press 2001).
5
The reader may notice that I am making no attempt to characterize the nature of the entire legal system of
Louisiana. To the contrary, I am aware that a mixed system looked at through the telescope of tort must seem
distorted to one who collects his or her impressions through the prism of property or indeed through any single
specialized subject like tort or property. Indeed I would suggest that all impressions gained through those
subjects may be true, and yet massively untrue when they alone are the basis for generalizations about the entire
system.
Daggett, Dainow, Hébert and McMahon, ‘Louisiana’s Legal System Reappraised,’ 12 Tul. L. Rev. 12,32 (1937)
(emphasis added).
6
Louisiana Civil Code in order to ask whether there is something of a structural nature that
may throw light upon the matter.
2. The Civil Code’s delictual structure
The original scheme of delict in the Louisiana Civil Code was once exceedingly slender and
sparse. Our successive Codes of 1808, 1825 and 1870 presented a framework of merely ten
provisions. My chief interest lies in following the career of Article 2294 (1825), a general
clause of merely twenty words which originally read as follows: ‘Every act whatever of man
that causes damage to another obliges him by whose fault it occurred to repair it.’7 This
formulation directly descends from the great natural law writers Grotius and Domat who,
according to Zweigert and Kötz, ‘believing that a legal order could be inferred from reason
alone, . . . were brave enough to go behind the traditional specific torts and seek out and
formulate a general principle of delictual liability.’8 This precept passed into the French Code
civil mainly through the influence of Jean Domat’s work Les loix civiles dans leur ordre
naturel (1689) and thereafter it was borrowed mot par mot by the Louisiana codifiers,
Edward Livingston, Pierre Derbigny and Louis Moreau-Lislet. The other nine provisions of
the delictual scheme included a few islands of strict liability taken from Roman sources (Art.
2321 on liability for animals included noxal surrender, Art. 2322 imposed liability on owners
of ruinous buildings), another article dealt in part with master/servant, parent/child liability
(this liability was expressly based on fault, however, and was not meant to be strict vicarious
liability), and an article establishing comparative fault as the basis for reducing the victim’s
recovery. In the past 150 years, this simple scheme has undergone massive surgery, as the
reader will shortly discover, but I will come to that development at a later point.
Now it is said that an obvious reason why it was easy for the judiciary to import so many
distinctively common-law doctrines into a field so seamlessly governed is that ‘the civil code
regulates the fields of conventional obligations, property, successions and family law with
much greater specificity than it covers delictual liability.’9 This could be called an argument
from ‘structural opportunity,’ but whether it is an adequate explanation merits further
examination. There is of course greater specificity in other areas of private civil law. The
civilian rules in a field such as property, for example, are not only more specific but are quite
often opposed to competing common-law rules. One might suppose that the differentness and
specificity of competing rules acts as a mechanism of resistance, a mechanism virtually
nonexistent in the field of delictual liability.10 Yet to say that the abstractness and brevity, the
A nearly identical provision was found in Art. 16 of Louisiana’s ‘Digest’ of 1808, except that Art. 16 had been
based upon the Projet du Gouvernement (1800), which contained an additional phrase qualifying the meaning of
‘fault’ (‘. . . even though the fault be not of the nature of those which expose to the penalties of simple or
correctional police.’). That qualification was not retained by the codifiers of the Code Napoléon (1804) and as a
result the shortened version found in the Code civil became the exact source for the general clause found in the
Louisiana Civil Code of 1825.
7
8
Zweigert and Kötz, Introduction to Comparative Law 616 (Weir transl. Oxford 2nd ed. 1998).
9
Kenneth Murchison, ‘Judicial Revival of Louisiana’s Civilian Tradition,’ 49 La. L. Rev. 1,21 (1988).
10
An interesting variation upon the structural argument can be seen in the views of a leading comparatist and
torts scholar, F.F. Stone. In his writings, Stone attempted to explain the sizable influence of common-law torts
in Louisiana on the ground that the judges regarded Art. 2315 as a legal gap in which positive law was silent,
and thus their continual recourse outside of the Code to foreign materials was their appeal to ‘equity’ under the
Civil Code’s Directory Provision, Art. 21. ‘It is fair to say,’ he wrote, ‘that the development of the Louisiana
prized elegance of the general clause in some sense invited common-law expansion seems to
rest upon a deeper assumption that such expansion is a normal tendency, a kind of law of
gravity in mixed jurisdictions which is bound to occur unless restrained by structural barriers.
That assumption seems questionable.
We know from a glance at Quebec’s tort experience that rule structure did not play a
decisive role there (which is not to say it played no role at all). In Quebec’s case there is a
general clause that is virtually identical with the provisions of the French Civil Code and the
Louisiana Civil Code, and yet there has been almost no advance made by the English law of
torts.11 There is no accepted list of nominate wrongs, no doctrine of common employment, no
defense of contributory negligence. The most salient example of borrowing from the common
law - the action for wrongful death - has been recently abolished. According to J-L Baudouin,
the reason why there was no reception of common-law tort rules in Quebec is due to
language and culture. Unlike other mixed jurisdictions like Louisiana, he writes, the
preservation of the French language and culture allowed Quebec jurists to have direct access
to the jurisprudential and doctrinal literature of France, ‘making it totally unnecessary to
resort to common law to fill the gaps.’12 His argument therefore suggests that strong language
and culture (despite ‘structural opportunity’) have acted as bulwarks of the integrity of the
civil law of torts. This explanation, however, may not prove to be completely convincing if
we turn to yet a third example: Puerto Rico.
Certainly Puerto Rico is a deeply christianized Hispanic nation whose jurists have as
much access to European scholarship and literature as Quebec lawyers have. The Puerto
Rican Civil Code has a general clause virtually identical to those found in the Codes of Spain,
Quebec, France and Louisiana. Yet, despite the depth of Hispanic culture and language,
Puerto Rico’s tort law has become about as much Americanized as Louisiana’s. This to my
mind points to the pitfall of looking for universal explanations in terms of single factors,
whether that explanation is structural, institutional, linguistic or cultural. It could be that each
pattern of development is historically unique or at least the outcome of a unique mix of these
factors, or that we have not identified the most important factor. In this paper, I speculate that
legal culture (not general societal culture) is the most important factor influencing the pattern
of penetration and resistance.
I think it is important to realize that the general clause is more than just a capacious
unstructured receptacle, but one whose inner logic is easily misunderstood, if not reinvented
or subverted by minds trained in a different legal tradition or habituated to the dominant
policy arguments of a surrounding society. I am suggesting that an assimilation on this scale
cannot be simply a question of opportunity. The predispositions and ingrained attitudes of the
opportunist have been instrumental as well.
law of delictual responsibility in its formative period came principally through the use of Article 21. Such
reception as there has been of the common law, Roman, French and Spanish ideas stems from the use of Article
21.’ Unfortunately for the theory, however, few judges ever made conscious resort to this power, and it seems
strange to say that the drafters or later interpreters regarded the general clause in this fashion. Nevertheless,
Stone took the view that their authority to determine tort standards was ultimately grounded in this article. ‘Tort
Doctrine in Louisiana: The Concept of Fault,’ 27 Tul. L. Rev. 1,5 (1952). For a different conception of equitable
recourse in Louisiana, see Vernon Valentine Palmer, ‘The Many Guises of Equity in a Mixed Jurisdiction: A
Functional View of Equity in Louisiana,’ 69 Tul. L. Rev. 7 (1994).
See Reynauld Boult, ‘Aspects des rapports entre le Droit Civil et la “Common Law” dans la jurisprudence de
la Cour Suprême du Canada,’ 53 Can. B. Rev. 738 (1975); J.-L. Baudouin, La Responsabilité civile, Nos.
415-417, 336-340 (4th ed. 1994); Brierley and Macdonald, Quebec Civil Law (1993); P.B. Mignault, ‘L’Avenir
de notre droit civil, 1 R. du D. 56 (1922).
11
12
J.-L. Baudouin, ‘Quebec Report 2,’ in Palmer, Mixed Jurisdictions Worldwide, supra note 4, at pp. 355-356.
To those of Anglo-American legal culture, there is considerable mystery and puzzlement as
to what the general clause means. To the uninitiated it may seem sphinxlike and inscrutable.
It does not articulate a set of protected interests and perhaps at first sight does not set forth
any concept of unlawfulness.13 As the French jurist Jean Carbonnier once said, ‘It has the
knack of being everywhere’ (le don d’ubiquité),14 and that is both excellent and confusing.
There is no user manual, and insofar illumination from doctrinal writings is concerned,
Louisiana has not been blessed with an embarras de richesses.15 The general clause makes
liability depend upon four undefined notions (act, causation, fault and damage) and unless
one superimposes upon it a philosophy of protected interests which somehow limits these
open-textured notions, (indeed many French writers such as Toullier, Huc and Planiol did this
in the 19th and 20th centuries),16 it might suggest that all damage intentionally or negligently
caused is prima facie actionable. Indeed this expansive view became the French position in
the 20th century.17 It may be natural to recoil from the societal implications of this, and it may
be natural and convenient to turn to the set of protected interests supplied by the sister
system. Absent a conscious effort, the mixed-law jurist is unwittingly influenced by the
gravitational pull of the restrictive common-law categories of tort. My thesis is that the
mixed-jurisdiction mind instinctively seeks to narrow and reduce broad civilian tort principle
into smaller focussed liability categories. It will seek and find these limitations in doctrines
like the ‘fellow servant rule’, contributory negligence and proximate cause, the ‘duty
situation’ and the relational ‘duties of care’, the nominate English torts, or perhaps it will
13
That is only to say that the French way of explaining unlawfulness does not even appear at first sight. French
unlawfulness apparently emerges when four elements of liability coalesce, instead of when particular subjective
rights are infringed. Put another way, in Germany under BGB 823, unlawfulness is an a priori element, whereas
in France it is a result.
14
‘Le silence et la gloire,’ D. 1951 Chron. 119. 122.
15
To the contrary. There have only been two treatises written in Louisiana on the subject, and these have
emerged comparatively recently. These works are almost the direct antithesis of one another and represent two
competing visions. The first is that of a civilian purist, the second that of scholars with a common-law
orientation. See Ferdinand Stone, Louisiana Civil Law Treatise, vol. 12 (West 1977) and compare Maraist and
Galligan, Louisiana Tort Law (Michie 1996).
16
All French authors of the first half of the 19 th century and many thereafter thought that Articles 1382 and 1383
of the French Civil Code contained the kind of solution which the German BGB adopted later in §§823-826.
The French articles were originally understood by the doctrine as applying to interference with ‘absolute rights’
of the victim or to statutory standards of conduct protecting victims’ rights. See Zachariae, Droit civil français,
no. 444 (stating that harmful acts are not delicts unless they are ‘illicite’, ‘c’est a dire qu’il ait porté atteinte à un
droit appartenant à autrui.’. See also Aubry and Rau, Le droit civil français, vol. VI, §§117, 119, 120; Laurent,
Principes de droit civil, vol. XX, §404. See also Christian von Bar, The Common European Law of Torts, §14,
p. 22 (OUP 1998).
This rights-based position was fundamentally restated by Planiol, who drew up ‘a table’ of legal
obligations protected by Art. 1382. He defined fault as the breach of a ‘pre-existing obligation’ and wrote that
Art. 1382 did not mean ‘any act whatsoever’ but only an act illegitimate in character. Planiol, Traité élémentaire
de droit civil, §863, vol. II, pt. I (La. Law Inst. transl. 12th ed. 1939).
17
Thus the same text now sustains a more expansive liability in which harm not only to rights but to almost any
legal interest is unlawful. In commenting on this development in France, Zweigert and Kötz remark that ‘it is of
no importance what particular legal interest has been prejudicially affected; a person who by mere negligence
causes pure economic loss is in principle liable for it.’ Introduction to Comparative Law, vol. II, p. 32 (Weir
transl. 2nd ed. 1987). See also Bernard Rudden’s remark that ‘they (the French) seem to have no fear at all of ‘a
liability in an indeterminate amount for an indeterminate time to an indeterminate class.’ Consequently, very
few control devices are used to limit the number of plaintiffs or the types of compensable harm.’ Torticles, 6/7
Tul. Civ. L. Forum 105, 106 (1991-92).
seek shelter in the use of pre-codification ‘understandings’ as a measure of a codified
provision’s ‘intended’ reach. This mindset resists the logic of open-ended syllogistic
development, preferring a cautious, pragmatic case by case expansion of liability. A general
clause in these surroundings was not destined to be an exercise in detached reason but in
large measure it became the self-portrait of a dominant culture.
3. The institutional surroundings: The architects of the mixed system
Louisiana’s mixed system was founded at the start of the 19th century and it is now nearly
200 years old. For a long time, control over the evolution of tort rules has been the province
of the judge, the legislator playing a more passive role. This is almost the necessary
consequence of a general clause that initially left so much room for judicial maneuvering. We
shall see, however, that this institutional relationship has changed considerably in modern
times, and that the initiatives of the courts have been increasingly challenged and overruled
by the legislature. Nevertheless, during the 19th century the judiciary clearly was undisputed
master of the general clause and it initiated the pattern of adopting common-law tort
concepts, terms, and causes of action and of fitting these behind its façade.
There are a number of factors that enhanced and advanced their role as architects of
the reception. From the beginning, Louisiana judges perceived themselves to be law-creators
and policy-makers.18 This self-perception is almost standard among mixed-jurisdiction judges
worldwide. The office of the Louisiana judge was essentially based upon the common-law
model. Rather than young recruits from a judicial college, mixed-jurisdiction magistrates are
typically known for greater life experience, political contacts and professional achievement.
They tend to possess well-developed egos, independence of mind and other qualities of
law-builders. These qualities, which might be almost viewed as deficiencies in a proper
civilian judge, were apparent in the emigré judges who mounted the bench at the founding of
the system. The first six judges who served on Louisiana’s Territorial Superior Court in the
years 1804-1813 have been aptly described as ‘strangers in a strange land.’19 All had held
judicial or legislative office in a common-law state before coming to Louisiana. None was
endowed with formal civil-law training though this was not to prevent some from becoming
authoritative exponents of the civil law. Most of the later judges also came to the bench with
a common-law education overlaid with the mixed-jurisdiction experience.20
Their task was magnified by the absence of law faculties, established chairs and a
developed body of legal literature. These typical accessories of the civil law took
considerable time to develop. The first law faculty, later renamed the Tulane Law School,
For details, see Symeon Symeonides, ‘The Louisiana Judge: Judge, Statesman, Politician,’ in Vernon Palmer,
ed., Louisiana: Microcosm of a Mixed Jurisdiction, 98-99 (Carolina Academic Press 1999); Albert Tate, ‘The
Role of the Judge in Mixed Jurisdictions,’ 20 Loy. L. Rev. 231 (1974). For a comparative survey, see Palmer,
Mixed Jurisdictions Worldwide, supra note 4, chap. I.
18
As Robert Fischer calls them in ‘The Louisiana Supreme Court, 1812-1846,’ 1 Tul. Civ. L. Forum 1 (issue 4)
(1973).
19
20
F.F. Stone stressed that the early justices were not exclusively motivated by common-law influence but had
been exposed to a range of European influences and currents of thought. For example, Justice Martin had
translated Pothier into English, Justices Eustis and Simon had studied law at the Hague and Brussels,
respectively. Justice Slidell had been educated at Yale and in Spain. ‘These men were proud of their heritage
from Europe. They were aware of but not over-impressed by the common law.’ Stone, ‘Tort Doctrine in
Louisiana,’ supra note 10, at pp. 7-8. In my view, however, whatever degree of cosmopolitanism existed among
the early justices, this outlook was essentially lost during the second half of the 19 th century.
was organized in 1847 but no native treatise on Louisiana tort law would be written until the
late 20th century.21
The lack of universities undoubtedly favored the careers of judges and advocates who
had received common-law training, and legal doctrine was in effect something that the judges
themselves wrote down in the pages of the reports. Autodidacts of necessity, the Louisiana
judges of the 19th century often seemed to understand the civil law by translating,
reconceptualizing and reordering it into parallel ideas familiar to them. At times they filtered
Gaius and Pothier by the alembic of Coke and Blackstone, at other times they conveniently
mixed common-law and civil-law sources together declaring them to be ‘the same.’22 In this
process they were continually tempted to refer to Anglo-American cases and treatises, and
even made such treatises fixed bar examination materials. This quest for broad equivalency
of legal ideas inevitably gave an approximative value or even a translated quality to the civil
law itself. We cannot divorce their conception of civil law from the office they assumed, their
personal histories, and legal training.
In looking over the biographies of the 73 justices of the Supreme Court during the
first century of its existence (1804-1914) a striking picture emerges. Only four justices appear
to have had any formal civil-law training. The majority must have been in Judge Matthew’s
position, of whom it has been said ‘He learned the civil law after ascending the bench.’ At
least thirty-one justices came from outside of Louisiana and another seven emigrated from
Europe. Only twenty were Louisiana native sons, and none ascended the bench until 1846.
Down to 1860 only four locally born justices had served.23 They gave to Louisiana civil law a
‘different look’ than civil law has on the continent24 and indeed they could hardly bring to the
general clause the same legislative piety that the Cour de Cassation brought to Article 1382
after the Revolution. They experienced no difficulty attaching a highly typecast set of
actionable wrongs to a principle pitched at a far higher level of rationality and abstraction.
We shall see that, when they were of a mind or strongly disagreed with the Code rule, they
would simply ignore it and apply common law instead.25
4. Things fall apart: The principle cannot hold26
21
By contrast, American tort treatises made their appearance as early as 1859 and faute de mieux they were
quickly relied upon by the Louisiana judges. Citations to American writers like Cooley, Wharton, Shearman and
Redfield became commonplace in decisions of the second half of the century. G. Edw. White has said that ‘the
emergence of torts as an independent branch of law came strikingly late in American legal history.’ (Tort Law in
America, OUP 1980), and though Holmes in 1871 (reviewing Charles Addison’s book) made his celebrated
remark that ‘torts is not a proper subject for a law book,’ still these treatises were historically well-timed to have
maximum effect upon Louisiana development.
22
For examples, see Delaney v. Rochereau & Co. 34 La. Ann. 1123 (1882); Poirier v. Carroll 35 La. Ann. 699
(1883).
For biographical details of the early Louisiana judges, see William Kernan Dart, ‘The Justices of the Supreme
Court,’ 133 La., pp. xxxiv et seq.
23
24
P.G. Stein, ‘Roman Law, Common Law and Civil Law,’ 66 Tul. L. Rev. 1591, 1603 (1992).
25
See above, at notes 19 and 22-24 and accompanying text, a discussion of the reception of contributory
negligence and master/servant rules which flew in the face of plain provisions of the Civil Code.
26
With apology and analogy to William Butler Yeats’ Second Coming:
Turning and turning in the widening gyre
The falcon cannot hear the falconer,
In 1851, merely a generation after the adoption of the Civil Code, the implementation of the
general clause reached a crisis. This is clear enough as an historical observation, but one
should not assume that contemporary lawyers were necessarily aware of the turning point.
Before 1850, reasoning and conclusions reached under the general clause were; often
enough framed in a somewhat syllogistic style wherein the terms of the provision served as
the major premise for a deductive solution.27 And frequently decisions of the Cour de
Cassation were cited and accepted as guides to tort solutions in Louisiana.28 Common-law
incursion was not particularly noticeable, though there was one notable exception. In 1841
the Supreme Court adopted the doctrine of contributory negligence and thus precluded
recovery under the general clause where there was any fault on plaintiff’s side.29 This must
have been a particularly disquieting sign to those of purist bent, since the Code explicitly
provided for comparative fault in Article 2323 (1870), and yet the Court pretended not to
see.30 Nevertheless, in other respects the auguries for the general clause did not seem
unfavorable. For instance the attempt to introduce common-law rules into the field of
defamation was beaten back by the entire Court in 1840 in the case of Miller v. Holstein.31
With Martin J. dissenting (but not over common-law rules), Bullard J. refused to be led by
technical rules flowing from the distinction between libel and slander. ‘I am by no means
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction; while the worst
Are full of passionate conviction.
Surely some revelation is at hand;
Surely the Second Coming is at hand.
27
An interesting illustration of the tendency was the case of Smith v. Berwick 12 Rob. 20 (1845), where the court
apparently faced for the first time whether a debtor who leaves the jurisdiction with his property in order to
avoid his creditors has committed a tort. Framing the issue in terms of Arts. 2294, 2295 (1825), the court
decided that though there was no criminal wrongdoing, it was morally wrong and thus a fault for a debtor to
abscond with his property to the injury of his creditors and a creditor injured by the act would be entitled to
damages (pp. 25-26). For another example of this methodological tendency, see Miller v. Holstein, below note
31 and accompanying text.
28
Research discloses that from 1817 to 1860 there were perhaps at least 55 cases in which these decisions of
France’s highest court were presented in argument or discussed in the court’s opinion. This practice continued
after 1860 but became increasingly rare, particularly rare during the period 1920-1960.
29
See Lesseps v. Pontchartrain Railroad Co. 17 La. 361 (1841); Fleytas v. Pontchartrain Railroad Co. 18 La.
339 (1841); Myers v. Perry 1 La. Ann. 372, 374 (1846); Murphy v. Diamond 3 La. Ann. 441 (1848); Reese &
Seger v. Steamer Mary Foley 6 La. Ann. 71 (1851); Kellogg v. Steamboat T.D. Hine 19 La. Ann 304 (1867). On
the reception of the doctrine, see Haywood Hillyer, ‘Comparative Negligence in Louisiana,’ 11 Tul. L. Rev. 112,
115-116 (1936); Wex Malone, ‘Comparative Negligence: Louisiana’s Forgotten Heritage,’ 6 La. L. Rev. 125
(1945).
30
Most observers agree that this was no accidental blind spot but indeed a case of judges preferring their own
policy to that of the Code. Albert Tate, ‘The Role of the Judge in Mixed Jurisdictions,’ pp. 27-28 in Joseph
Dainow, ed., The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions (LSU 1974);
Jean-Louis Baudouin, ‘The Impact of the Common Law on the Civilian System of Louisiana and Quebec,’, p. 9
in Dainow, ibid. See also the development in 1852 when two justices accepted the doctrine of common
employment as a bar to a worker’s claim against his employer for work-related injuries. Camp v. Church
Wardens of Church of St. Louis 7 La. Ann. 321 (1852) (per Rost J and King J).
31
16 La. 389 (1st hearing), 395 (rehearing) (1840).
prepared to adopt from the common law the distinction between words which are actionable
in themselves and words which are not.’ In a concurring opinion, Garland J. urged a rather
holistic view of general clause’s interpretation. ‘. . . [W]e have a law broad enough to cover
every case. . . . Every act that causes damage, creates responsibility, and where the extent of
that responsibility is not defined, or the law is silent, we must proceed under the 21st Article
[the directory provision on ‘equity’] of the Code, and decide according to natural law and
reason, or received usage.’ We know from later events, however, that this was the last
occasion on which resistance to the common law of defamation would be successfully made
in the name of the general clause.
Another doctrinal development points to the 1850s as a kind of watershed. Before
mid-century, master/servant liability was reasoned according to the letter of the law.
Decisions held that the master was not to be held liable unless he himself was at fault for his
servant’s misdeed. This was in keeping with the concluding clause of Article 2299 which, in
contrast to common law, did not impose true vicarious liability.32 It was clear as early as
1830 that the Louisiana judges were unhappy with this rule and thought it misguided;33
nevertheless, the center held until mid-century. Both general clause and master/servant rule
were kept compatible and consistent. Liability under both was based upon the fault principle.
In the second half of the century, however, the concluding clause of the article would be
simply ignored to the point of being ‘construed out of the text,’ since as the justices said ‘it
practically nullifies the liability of the master.’34 The striking result is that today Louisiana
has strict vicarious liability purely on the basis of this contra legem interpretation. It is not
my purpose to draw further conclusions from this historical episode other than to note again
the mid-century divide and the boldness with which the Louisiana judiciary nullified the
legislative will.
How much of this may have a sociological basis is not clear, but Louisiana society
was changing rapidly at this time. Even though at the time of statehood the French-speaking
Creoles comprised perhaps 95 percent of the population, by 1824, only 12 years afterwards,
the Creole and American populations were already judged to be roughly equal. The change
was due to an influx of American settlers into the western part of the state and also it may be
attributed to the sudden annexation of the Florida parishes at the time of statehood (which
alone added 15-20 thousand American residents). A linguistic turning point for New Orleans
was reached in the period 1830-1840 when the white population tripled (from 20 thousand to
60 thousand) upon the arrival of German and Irish immigrants who identified with the
American elements in the city. Louisiana, always in the past a French melting pot, was now
an American melting pot. The effects were felt politically. By the 1845 state constitutional
convention, the Americans controlled both houses of the legislature and outnumbered the
Creole delegates by three to one. In 1864 a constitutional convention called for the use of
English only in the public schools. To these roots may be traced the progressive unfamiliarity
32
Article 2399 (1825), now Article 2320 (1870), retains the fault principle in the italicized clause shown below:
‘Masters and employers are answerable for the damage occasioned by their servants and overseers, in the
exercise of the functions in which they are employed . . . In the above cases, responsibility only attaches, when
the masters or employers . . . might have prevented the act which caused the damage, and have not done it.’
See Ware v. Canal 15 La. 171 (1840), where it was said that the Code’s requirement ‘will do away entirely
with everything like responsibility in the master or employer, for it will seldom happen that the latter can
prevent the act which causes the damage. This may be, and we believe is, true; but our duty is to apply the law
when its letter is clear . . .’
33
34
The interesting history of the vicissitudes of Article 2320 (1870) is recounted with considerable candor in
Weaver v. W.L. Goulden Logging Co. 40 So. 798 (1906).
of Louisiana judges with the French language.35
To understand the breakdown after 1850, it is also important to realize that the general
clause had not been seriously tested before then. Tort claims had been straightforward and
simple in the early years. All actions for civil wrongs were directly brought by the victim
against the wrongdoer, and not by or against anyone else. It has been called ‘an amazing fact’
that down to 1851 no suit was litigated involving an action for the recovery of damages
resulting from the wrongful death of another.36 Other parties who might be damaged, such as
the victim’s heirs or his dependents, were kept waiting in the wings and the first claim of the
kind would not be asserted until 1851. Perhaps the absence of claims was due partly to
economics, partly to technology, for Louisiana’s economy was heavily agricultural, largely
unmechanized and slave-based. The machine age came comparatively late and perhaps never
completely. Even so, an important change began to occur in the 1820s and 1830s in the form
of a transportation revolution. The arrival of the steamboat and the railroad brought with
them an accident rate previously unknown to antebellum Louisiana. Particularly it was the
mounting fatalities caused by the railroads which brought the first wrongful death questions
before the courts.37
The first claims raised two distinct issues that have been frequently confused,
particularly by Louisiana judges and legislators. One question was simply whether the
deceased victim’s own claim for injuries was transmissible to his heirs (anglicé ‘survived’ to
his heirs) or whether the claim died with the person under the maxim actio personalis moritur
cum persona. This question was not really new or doubtful from a civilian standpoint, but it
became problematic when civil- and common-law sources were carelessly blended and
confused. Had the scheme of the Civil Code had been considered, the question might have
been resolved with ease. The great majority of civil-law countries, without any direct
assistance from code or statute, have permitted transmissibility simply on the basis of general
principles of succession law.38 In other words, the transmissibility of a tort claim to heirs did
35
On the importance of these demographic and linguistic shifts for the legal system, see Vernon Valentine
Palmer, ‘Two Worlds in One: The Genesis of Louisiana’s Mixed Legal System, 1803-1812,’ in Palmer,
Louisiana, supra note 18, pp. 23-39, and Roger K. Ward, ‘The Death of the French Language in Louisiana
Law,’ in ibid. at pp. 41-60.
H.C. Voss, ‘The Recovery of Damages for Wrongful Death at Common Law, at Civil Law, and in Louisiana,’
6 Tul. L. Rev. 201, 218 (1932).
36
37
By 1840 New Orleans was the fourth largest city in the United States. The first steamboats on the Mississippi
arrived in New Orleans in 1812 and ushered in a more advanced and more dangerous means of navigation. A
railroad construction boom began in the 1830s when the first steam locomotive arrived from England and was
put into service on the streets of New Orleans by the Pontchartrain Railroad. A number of other lines such as the
New Orleans and Carrollton Railroad were incorporated and the switch from horse and mule drawn carriages to
steam engines became general. Accidental fires and deaths from boiler explosions, cars jumping rails, collisions
with livestock, and smokestacks spewing sparks became increasingly frequent and received considerable
coverage and criticism in press and pamphlet. See C.R. Calvert, ‘The Pontchartrain Railroad: The Birth of the
Rail Road in the Mississippi Valley,’ Louisiana Advertiser, May 18, 1830. J.L. Guilbeau, The St. Charles Street
Car, or the New Orleans and Carrollton Railroad, 1-2, 18 (Guilbeau 1975); see also, Louis Hennick and E.H.
Charlton, Street Railways of Louisiana (Pelican 1979) and Martin Siegel, New Orleans: A Chronological and
Documentary History 1539-1970, 11-16 (Oceana 1975). To the present writer it is apparent from dipping into
the law reports that the number of steamboat and railroad accidents rose significantly from 1840 on. See the
cases in note 29.
On the link between the advent of the machine age and the introduction of wrongful death statutes in
England and the United States, see Wex Malone, ‘The Genesis of Wrongful Death,’ 17 Stan. L. Rev. 1043
(1965). See also H. Alston Johnson III, ‘Death on the Callais Coach: The Mystery of Louisiana Wrongful Death
and Survival Actions,’ 37 La. L. Rev. 1 (1976).
38
Under this reasoning the decedent’s tort claim forms part of his estate which is transmitted to his successors by
testate, intestate or irregular succession. Under CC Art. 939 (1825), the right of action was transmitted whether
not rest upon an interpretation of the general clause, but rather upon its interrelationship
within the third book of the Civil Code. The question was also relatively simple as a matter of
policy because the heir only took over the claim of the direct victim, and therefore it did not
enlarge the ambit of tort liability.
A second question, however, was more difficult since it did enlarge liability and did
call for an analysis of the general clause. Could the direct victim’s spouse, children and
perhaps other economic dependents maintain an action in their own right against the
tortfeasor for the economic support they would lose due to the death of the breadwinner? This
type of claim would not derive through the victim’s estate, but purportedly arose
independently in their favor under the literal terms of the general clause. If it were an original
question today their claim might be called a form of ‘pure economic loss’ which typically
remains unrecoverable (absent a special statute) in English, German-influenced and
Scandinavian systems, but in the French and French-influenced systems, such a loss is in
principle recoverable.39
In a landmark case concerning negligent homicide, the Supreme Court gave a fateful
interpretation to the general clause whose consequences reverberate still today. In Hubgh v.
New Orleans and Carrollton Railroad Co.,40 the Court held that where the victim of a
quasi-offense had been killed, there was no dependent’s action for wrongful death and loss of
support cognizable under Article 2294 (1825) and that by implication no claim derived from
the victim ‘survived’ to his heirs.41
Plaintiff’s husband was employed by the defendant to manage a locomotive steam
engine and he was killed by the explosion of a boiler that was negligently maintained by the
defendant railroad and/or one of its servants. The widow claimed that she and her minor
children were damaged by the loss of her husband’s economic support. The dependent’s
action had been recently recognized in England under Lord Campbell’s Act (1846) but no
similar statute existed in Louisiana. Plaintiff argued, however, that no special statute was
necessary. Article 2294 of the Civil Code required nothing more than to allege that the
defendant was at fault in causing her provider’s death and that she and her children had
suffered damage. The case was argued exhaustively, indeed it received two audiences, and
the Court issued two separate opinions rejecting the action.42
or not litiscontestation had been reached before the victim’s death. See also CCP Art. 21 (1825). There has been
no change of principle in the current Code. See CC Arts. 871-72 (revised 1982) and CCP Art. 426 (1960). Thus
the traditional common-law view that tort claims in general are strictly personal and do not pass through the
injurer’s or the victim’s estate has always run counter to the Civil Codes and the Codes of Civil Procedure. As
John Shaw correctly says, ‘In the twin Codes of 1825 the redactors took every precaution to preclude
subsequent jurisprudential recognition of the common-law rules of survival and abatement of actions.’ John
Shaw, ‘Abatement of Actions in Louisiana,’ 15 La. L. Rev. 722, 726 (1955). McGregor notes that most systems,
outside of the common law, have needed no direct assistance from code or statute in recognizing the ‘survivor’s’
claim, and have not established categories of beneficiaries or survivors that are different than those established
by the normal rules of heirship. See Harvey McGregor, ‘Personal Injury and Death,’ chap. 9, sec. 194, vol. XI
International Encyclopedia of Comparative Law (Tübingen 1971- ).
39
See M. Bussani and V.V. Palmer, eds., The Frontiers of Liability: Pure Economic Loss in Europe, chap. I
(Cambridge University Press 2001).
40
6 La. Ann. 495 (1851).
Although the decision strictly involved only the viability of the dependent’s action, it has been taken as
deciding that all actions for damages died with the person injured, and that no action would lie for damages for
the death of a free person. Vaughan v. Dalton-Land Lumber Co. 43 So. 926, 927 (1907).
41
42
In the first opinion of the Court, Justice Pierre Rost (1757-1868) (a Parisian by birth who, prior to becoming a
Louisiana jurist, received his legal training in Natchez, Mississippi, under Joseph Davis, the brother of Jefferson
The opinion on rehearing by Chief Justice George Eustis,43 immediately placed the
general clause in an historical context that made its text somewhat beside the point. A
singular feature of the opinion is that it never argues with the proposition that dependents’
loss fitted the literal meaning of ‘damage caused to another’; indeed, the Court seemed to
confess and avoid the exegetical task by resorting to an appeal to history. Justice Eustis
simply gauged the meaning of the provision by the yardstick of pre-Code limits on delictual
liability. His argument was that the enactment of Article 2294 was not meant to enlarge or
surpass those limits. Whatever the positive law might say abstractly must be understood in its
historical setting. The comprehensive terms of Article 2294 were not new in 1808 or in 1825,
he said, and they were never intended to make new law. An equivalent formula already
existed in the Siete Partidas, in Domat and elsewhere. ‘The article was inserted in the Code of
1809 at a time when Spanish laws were in force. It was put and retained to this time in the
Code, not for the purpose of making any change in the law, but because it was a principle
which was in its proper place in a code’.44 That is why, he argued, the novelty of the claim
was its own negative. No action of the kind had been tried before in Louisiana. ‘The singular
fact remains unexplained, that up to the present no such right of action has been asserted.
There can have been one cause for this; and that is, the universal conviction of the bench and
bar that no such action could be maintained.’
While he agreed that ‘all right-minded men must acknowledge’ as a matter of natural
justice that such a loss ought to be indemnified, Justice Eustis found that under the law of
Rome, Spain and England the rule was that no price could be placed upon the life of a free
man and therefore the death of a free person had never given rise to an action in damages,
either for himself or for others. The ‘idea’ behind a dependent’s action had been proposed in
the 17th century by Hugo Grotius, but in the Court’s view Grotius only treated this indemnity
as a matter of gift or liberality on the tortfeasor’s part, ‘an affair of conscience rather than an
obligation of strict duty.’45 Far from being an authoritative reflection of the civil law of his
Davis) rejected the claim on the broad ground that plaintiff’s economic interest in the life of another was not
protected by the principles of common law or civil law. He did not attempt to parse the general clause, but said
it was to be read in light of a philosophical limitation: ‘On general principles, the only private rights which laws
recognize, and which constitutions are established to protect, are the rights of persons and the rights of property.
The plaintiff and her children, in this case, do not complain of wrongs to their own persons, and it cannot be
pretended that they had any rights of property in their husband or father. It appears to us, therefore, that without
a special statute authorizing such actions they cannot be maintained. . . .[I]t is settled that those actions do not
exist at common law.’ To plaintiff’s argument that the French commentators, as well as two decisions of the
Cour de Cassation, recognized such damage actions, he replied, ‘Great as our deference is for that enlightened
tribunal, we are unable to adopt their conclusions.’ Justice Rost also objected to the claim on the narrower
ground that an action against the defendant employer for the negligence of one employee toward another was
barred by the doctrine of common employment, as laid down in the English case of Priestley v. Fowler 3 M&W
1. (His tenacious defense of this doctrine continued in Camp v. Church Warden of Church of St. Louis 7 La.
Ann. 321, 327-28 (1852).) For Rost’s biographical details, see A Dictionary of Louisiana Biography, vol. II,
(La. Hist. Assn 1988).
43
George Eustis (1796-1858) was born in Boston and graduated from Harvard College. He briefly studied law at
the Hague before emigrating to Louisiana. His legal education principally came from an apprenticeship at the
bar in New Orleans. He was described as a ‘ripe scholar and a good linguist.’ For biographical details see
Dictionary of American Biography, vol. III (Scribner 1958).
44
Page 511. In delving into pre-Code Spanish law, the Court apparently ignored the great repealing statute of
1828, which abolished ‘all the civil laws which were in force before the promulgation of the civil code lately
promulgated;’ La. Acts 1828, no. 83, sec. 25.
45
That Justice Eustis may have misunderstood or mistranslated Grotius in the relevant passage of De Bellis ac
Pacis (sec. 13, chap. 17) was strongly maintained by counsel in the subsequent case of Virginie Hermann v.
New Orleans and Carrollton R.R. Co. 11 La. Ann. 5,6 (1856). Grotius’ Inleiding to Roman-Dutch law, in which
day, the Dutch jurist was simply declaring principles of natural law taken from ‘the writings
of philosophers, poets, historians and orators of antiquity.’ As to the argument that the
jurisprudence of the Cour de Cassation permitted the action under an identical provision, this
was true but inconsequential since the legal system of France was ‘materially different’ in
relation to homicide claims. France combined in one proceeding the action of the public
prosecutor with that of the partie civile.
Looking back more than a century later, Justice Barham said that the Hubgh decision rested
upon an erroneous premise. ‘The court erred in using common law to support its decision and
improperly rejected the interpretation by the Cour de Cassation of France under the identical
provision. . .’46 But neither he nor other supportive justices on the Court could reverse this
deeply entrenched precedent, though at another point, they made a concerted effort.47
Helmuth Voss also strongly criticized the decision. ‘Without question, the decision in the
Hubgh case was legislation - not interpretation.’48 This last criticism, however, if it does not
overstate the case, shows little realism about the nature of the judicial process in many mixed
jurisdictions. The Court’s opinion needs to be seen and appreciated as an interpretation of the
provision, an interpretation that is not atypical in a cross-cultural context. It was of course not
a flexible, analogical, civilian interpretation of the general clause. Plainly it was an
uncooperative interpretation which refused to sever the Code from the prior laws and refused
to reason from abstract words. The Court saw the general clause against the background of a
droit commun composed of Roman, Spanish and English sources which were unfavorable to
the claim and which, it believed, remained law in Louisiana unless expressly modified by
legislation. Amazingly the Court was in many ways still suggesting that the prior laws had
not been repealed by the Civil Code of 1825, despite the pains taken by the legislature in the
Great Repealing Act of 1828 to eliminate recourse to them.49 The general clause was not a
new beginning but only a template covering the old droit commun. Its façade said so little
that it appeared like a blank. It did not expressly authorize a wrongful death or survivor
action, any more than it spoke about an action for defamation. Defamation, however, needed
no special authorization because it was a recognized tort of both common law and pre-Code
Spanish law,50 whereas wrongful death was not. The Court approached the text with the
robust mentalité of mixed-law judges and thereby set the stage for ‘a fateful journey by the
Louisiana judiciary and lawmakers along the path of specific statutory authorization of such
he clearly referred to the wrongdoer’s legal duty to pay an indemnity to the victim’s dependants, was not cited
to the Court.
46
King v. Cancienne 316 So. 2d 366, 369 (1975). See also the criticisms by Bolin J. in Callais v. Allstate Ins.
Co. 334 So. 2d 692 (1976).
47
Callais v. Allstate Ins. Co. 334 So. 2d 692 (1976). On first hearing, four justices criticized the Hubgh case as
being ‘an incorrect decision’ and appeared disposed to give a revolutionary reading to Art. 2315 which would
have based the wrongful death action upon the original French principle rather than the authorizing language
added in 1884. Nevertheless, in the final analysis the Court found for the plaintiff on the basis of a liberal
reading of the authorizing language. On rehearing, however, a different majority rejected that reading and held
in defendant’s favor.
48
Voss, ‘Recovery of Damages,’ supra note 36, at 220.
See Acts 1828, no. 83, sec. 25, abrogating ‘all the civil laws which were in force before the promulgation of
the civil code lately promulgated.’
49
There was an action for damages caused by words in the Partidas. See Moreau & Carleton’s translation, vol. I,
p. 51, vol. II pp. 1170 et seq.
50
[‘survivor’ and ‘dependent’] actions.’51
Once the legislature adopted the Court’s logic that the general clause could not
provide a solution, and that the deficiency would be overcome by authorizing legislation,
then there was no turning back. By responding in terms to the Court’s call, the legislature in
effect uprooted Article 2294 (1825) from civilian soil and replanted it in a common-law
landscape. In this strange environment, the new authorizing provisions come from another
tradition and must be strictly construed because they are themselves ‘derogations’ from the
common law. From that time forward, the general clause became a hybrid expression of two
legal cultures.
5. The legislative transformation of the general clause
The general clause has now been amended approximately fifteen times since it was first
introduced in 1825. About half of these changes relate to the subject of wrongful death and
survival actions first discussed in the Hubgh decision. To date it has received modification on
average every ten years, beginning in 1855 with the provision for a survivorship action
which, for reasons already suggested, was an unnecessary measure that trivialized the Code.
Then in 1884 a wrongful death action was added, and thereafter the legislature constantly
tinkered with the list of beneficiaries eligible under both actions, gradually extending the list
well beyond the first circle (spouse and children) to include surviving mothers and fathers,
adopted children, siblings, grandparents and finally (as survivor of last resort) the succession
representative. The outstanding feature of these provisions is that the classes of beneficiaries
are hierarchical and preemptive. The existence of one class of survivor or dependent
precludes a recovery for every other type. These provisions are now codified as CC Arts.
2315.1 and 2315.2 (set forth below).
Towards the end of the 20th century, however, the legislature turned to new subjects
and the pace and scale of its interventions increased. Within the last twenty years, it altered
the delictual scheme on eight occasions. Waving the flag of ‘tort reform’, it began to
micromanage the tort system. For example, in 1986 and again in 1999 it saw fit to define with
particularity the word ‘damages’ under the general clause (see below CC Art. 2315, para. 2),
thus declaring certain kinds of damages to be recoverable, others unrecoverable and
significantly, on the last occasion, it added the comment that these definitions are
‘interpretative of Civil Code article 2315 and are intended to explain its original intent,
notwithstanding the contrary interpretation given in Bourgeois v. A.P. Green Indus. Inc.52 and
all cases consistent therewith.’ Here the legislature reveals itself to be in open competition
with the Court for control of the interpretation of the general clause. The Act explicitly
mentions the case which provoked the intervention.
There are other signs confirming the existence of a new institutional balance. In 1988,
after the Court had invented a particularly rigorous form of strict product liability in the
Halphen decision, the legislature statutorily overruled the decision and took the occasion to
pass the Louisiana Products Liability Act. The Act is a statutory return to the fault principle,
but not under Article 2315. The detailed provisions of the Act provide the exclusive basis for
all products liability claims in Louisiana. From an institutional standpoint, this was a sharp
rebuke to the Supreme Court. The Act put an immediate halt to a rich jurisprudence and
repudiated the liberal trend of Supreme Court decisions. By enacting a special statute, the
51
Johnson, ‘Death on the Callais Coach,’ supra note 37 at 2.
52
716 So. 2d. 355(1998).
legislature simply subtracted a large area from the domain of the general clause and placed in
question the Court’s curatorship over tort development. In 1991, immediately following a
‘nervous shock’ decision53 that greatly stretched the parameters of recovery, the legislature
enacted CC Art. 2315.6 (see below). The new article effectively overruled the offending
decision by codifying the exact classes of bystanders at the scene of an accident (all limited
to ascendants, descendants or collaterals of the direct victim) who may be entitled to
compensation for nervous shock. In declaring that recovery for mental anguish or emotional
distress should be recovered ‘ only in accordance with this Article,’ the legislature forbids
courts to expand these classes or the circumstances in which recovery may be granted.
The most memorable rebuke of the Court’s work was the legislative intervention of 1996.
The legislature took this occasion to revise three delict provisions dealing with things in
custody, animals, and ruinous buildings in a way that refuted the Court’s interpretation of
them. Until 1996 the Court had conceived these provisions to be areas of strict liability, but
now the legislature expressly wrote the standard of fault into each of them. The result was
that an elaborate creation of the courts - one that drew inspiration from modern French
interpretations of Code Napoléon and Roman sources - was cleanly beheaded and buried. The
1996 revision of Article 2317, for example, means that the owner/custodian of a defective or
ruinous thing that causes damage is now liable only upon a showing that he/she knew or
should have known of the thing’s defect and failed to exercise reasonable care (CC Art.
2317.1). Under the Court’s previous interpretation, the owner/custodian was answerable
simply upon a showing that the thing was defective and presented an unreasonable risk of
harm, irrespective of whether the owner/custodian knew or should have known of the
defect.54 The underlying reasons for this intervention could be characterized as politically and
economically motivated. Firstly, there was apparently a political perception that the courts
were expanding liability partly as a result of the organized influence of the trial lawyers and
the substantial campaign contributions they channel to the judges. Secondly, as an economic
matter it was believed that the addition of new areas of strict liability to the system created an
unfavorable business climate that needed to be improved.55 These events show that the
general clause has become something of a lightning rod for political differences between
bench, bar and legislature.
In view of all these developments, it may be questioned whether the Court is any longer sole
master of the general clause or of the torts it recognizes thereunder. The legislature has
already deconstructed the abstract principle into a host of subsidiary and concrete liability
rules, and there may be more rules to come in future years. One might call this a process of
subtraction through addition. Through continual lengthening of the provision, the original
principle becomes progressively circumscribed, increasingly less autonomous. The catalyst
for most of these changes, as we have seen, is usually particular rulings by the judges, usually
53
Clomon v. Monroe City School Board 572 So. 2d 571 (1990), which extended the criteria for recovery set
forth in Lejeune v. Rayne Branch Hospital 556 So. 2d 559 (1990).
54
The seminal case which revolutionized the interpretation of the article and cited the Cour de Cassation’s
interpretation of a parallel provision in the Code Napoléon (Art. 1384) was Loescher v. Parr 324 So. 2d 441
(La. 1975) It held that the owner of a magnolia tree which fell onto plaintiff’s automobile due to internal rot (not
apparent to external inspection) was strictly liable. See below note 60.
This characterization of the legislature’s motives is not based upon an actual search of the legislative debates
(which in view of our archival system is not really possible ) but on the basis of helpful discussions with
members of the Louisiana judiciary.
55
liberal rulings with which the legislature disagrees. The legislature has accordingly taken
back much of the original delegation of power conferred upon the judges by the Code of
1825. By virtue of accretion, lengthy statutes which are common-law in content and style,
replete with repetitious phrases and definitional sections, have been inserted into the scheme.
In place of a French principle encapsulated in 20 words, the scheme consists of Article 2315
surrounded by seven satellite articles totaling more than 1,000 words (2315.1-2315.7) which
derogate from it. It might be said that the original French acorn which took root in Louisiana
soil 200 years ago now flourishes as a mighty English oak. The full set of provisions is set
forth below with the original text shown in italics.
Art. 2315 Liability for Acts Causing Damages
Every act whatever of man that causes damage to another obliges him by whose fault it happened to
repair it.
Damages may include loss of consortium, service, and society, and shall be recoverable by the same
respective categories of persons who would have had a cause of action for wrongful death of an injured
person. Damages do not include costs for future medical treatment, services, surveillance, or
procedures of any kind unless such treatment, services, surveillance, or procedures are directly related
to a manifest physical or mental injury or disease.
Art. 2315.1 Survival Action
A.
If a person who has been injured by an offense or quasi-offense dies, the right to recover all
damages for injury to that person, his property or otherwise, caused by the offense or
quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
(1)
The surviving spouse and child or children of the deceased, or either the spouse of
the child or children.
(2)
The surviving father and mother of the deceased, or either of them if he left no
spouse or child surviving.
(3)
The surviving brothers and sisters of the deceased, or any of them, if he left no
spouse, child, or parent surviving.
(4)
The surviving grandfathers and grandmothers of the deceased, or any of them, if he
left no spouse, child, parent, or sibling surviving.
B.
In addition, the right to recover all damages for injury to the deceased, his property or
otherwise, caused by the offense or quasi-offense, may be urged by the deceased’s succession
representative in the absence of any class of beneficiary set out in Paragraph A.
C.
The right of action granted under this Article is heritable, but the inheritance of it neither
interrupts nor prolongs the prescriptive period defined in this Article.
D.
As used in this Article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, ‘mother’, ‘grandfather’,
and ‘grandmother’, include a child, brother, sister, father, mother, grandfather, and
grandmother by adoption, respectively.
E.
For purposes of this Article, a father or mother who has abandoned the deceased during his
minority is deemed not to have survived him.
Art. 2315.2 Wrongful Death Action
A.
If a person dies due to the fault of another, suit may be brought by the following persons to
recover damages which they sustained as a result of the death:
(1)
The surviving spouse and child or children of the deceased, or either the spouse or
the child or children.
(2)
The surviving father and mother of the deceased, or either of them if he left no
spouse or child surviving.
(3)
The surviving brothers and sisters of the deceased, or any of them, if he left no
spouse, child, or parent surviving.
(4)
The surviving grandfathers and grandmothers of the deceased, or any of them, if he
left no spouse, child, parent, or sibling surviving.
B.
The right of action granted by this Article prescribes one year from the death of the deceased.
C.
The right of action granted under this Article is heritable, but the inheritance of it neither
interrupts nor prolongs the prescriptive period defined in this Article.
D.
As used in this Article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, ‘mother’, ‘grandfather’,
and ‘grandmother’ include a child, brother, sister, father, mother, grandfather, and
grandmother by adoption, respectively.
E.
For purposes of this Article, a father or mother who has abandoned the deceased during his
minority is deemed not to have survived him.
Art. 2315.3 Repealed by Acts 199656
Art. 2315.4 Additional Damages; Intoxicated Defendant
In addition to general and special damages, exemplary damages may be awarded upon proof that the
injuries on which the action is based were caused by a wanton or reckless disregard for the rights and
safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact
of the resulting injuries.
Art. 2315.5 Wrongful Death and Survival Action; Exception
Notwithstanding any other provision of law to the contrary, the surviving spouse, parent, or child of a
deceased, who has been convicted of a crime involving the intentional killing of the deceased or, if not
convicted, who has been judicially determined to have participated in the intentional, unjustified killing
or attempted killing of the decease, shall not be entitled to any damages or proceeds in a survival action
or an action for wrongful death of the deceased, or to any proceeds distributed in settlement of any
such cause of action. In such case, the other child or children of the deceased, or if the deceased left no
other child surviving, the other survivors enumerated in the applicable provisions of Articles 2315.1(A)
and 2315.2(A), in order of preference stated, may bring a survival action against such surviving spouse,
parent, or child, or an action against such surviving spouse, parent, or child for the wrongful death of
the deceased.
An executive pardon shall not restore the surviving spouse’s, parent’s, or child’s right to any
damages or proceeds in a survival action or an action for wrongful death of the deceased.
Art. 2315.6 Liability for Damages Caused by Injury to Another
A.
The following persons who view an event causing injury to another person, or who come upon
the scene of the event soon thereafter, may recover damages for mental anguish or emotional
distress that they suffer as a result of the other person’s injury:
(1)
The spouse, child or children, and grandchild or grandchildren of the injured person,
or either the spouse, the child or children, or the grandchild or grandchildren of the
injured person.
(2)
The father and mother of the injured person, or either of them.
(3)
The brothers and sisters of the injured person, or any of them.
(4)
The grandfather and grandmother of the injured person, or either of them.
B.
To recover for mental anguish or emotional distress under this Article, the injured person must
suffer such harm that one can reasonably expect a person in the claimant’s position to suffer
serious mental anguish or emotional distress from the experience, and the claimant’s mental
anguish or emotional distress must be severe, debilitating, and foreseeable. Damages suffered
as a result of mental anguish or emotional distress for injury to another shall be recovered only
in accordance with this Article.
Art. 2315.7 Liability for Damages Caused by Criminal Sexual Activity Occurring During Childhood
In addition to general and special damages, exemplary damages may be awarded upon proof that the
injuries on which the action is based were caused by a wanton and reckless disregard for the rights and
safety of the person through criminal sexual activity which occurred when the victim was seventeen
56
This short-lived provision originally authorized, on an exceptional basis, exemplary damages (i.e. punitive
damages) to be awarded where injuries resulted from wanton or reckless disregard of public safety in connection
with the storage or handling of hazardous or toxic substances. The repeal of the provision (see Acts 1996, 1 st
Extra. Sess., no. 2, sec. 1) came in response to the decision of the Supreme Court in Billiot v. B.P. Oil Co. 645
So. 2d 604 (La. 1994). The episode again fits the familiar pattern of a liberal ruling that expanded liability
beyond that which the legislature thought was advisable and thereby produced a sharp statutory response. In its
ruling, the Court had held that exemplary damages under CC 2315.3 were not barred by the exclusivity
provisions of workers’ compensation law and might be awarded to a worker against his or her employer even
though no right to compensatory damages existed. The legislative counterpunch was to repeal the provision and
thereby take away the temptation to replicate or expand such awards in the future. It is believed that essentially
the same political and economic motives discussed supra in note 41 and accompanying text explain the repeal.
years old or younger, regardless of whether the defendant was prosecuted for his or her acts. The
provisions of this Article shall be applicable only to the perpetrator of the criminal sexual activity.
This wordy scheme is undoubtedly the most important source of tort law in Louisiana,
but it would be wrong to consider it the complete source. There are now many other special
statutes in the ancillary statutes that are in further derogation of the general clause.57
6. The reception from within
In continuing to trace the fate of the general clause, we may now try to go behind the
burgeoning textual façade to gain a glimpse of the interior furnishings that the judges
themselves have fashioned. To what extent (in those areas still ostensibly controlled by the
general clause) have the judges developed a civilian law of delict? To what extent have they
assimilated Anglo-American law? I will attempt a response to these questions by examining,
very briefly, three subjects: (1) the treatment given to intentional torts, (2) the
conceptualization of the action for negligence, and (3) the extent to which the recent civilian
renaissance redressed prior assimilations.
(1) The intentional torts. The intentional torts recognized in the jurisprudence provide
revealing clues about the scale and scope of common-law infiltration. Here we find frequent
use of common-law authorities in the decisions, and frequent mention is made of wrongs by
their English names. Thus the judges speak of the tort of battery (harmful or offensive
contact) and they understand it to differ from assault which requires the victim’s
apprehension of offensive contact. False imprisonment lies for the intentional confinement of
another, and they understand it to differ from false arrest. The tort of intentional infliction of
emotional distress is recognized. Trespass to land, (even without damage to the land and
without fault being shown), trespass to chattels and conversion are also recognized. This list
could be lengthened and is merely illustrative.58
Now there has been healthy disagreement as to what all these references in the
jurisprudence really add up to. On the one hand, there have been spirited denials by the purist
wing that the use of these terms means that these torts are actually recognized in Louisiana. 59
The late professor Ferdinand Stone treated the English categories as ‘examples’ of fault and
denied that Louisiana had any ‘system’ of nominate torts.60 In his treatise, these terms have
57
To name only a few, see the Louisiana Products Liability Act (1988) and the Drug Dealer Liability Act (1997)
and more than 45 special provisions dealing with the liability of various groups and entities, such as landowners,
employees of nonprofit organizations, physicians and dentists, public bodies, airport authorities, etc., as
collected in La. RS 9: 2791-2800.12.
58
A far longer list of nominate English torts will be found in Maraist and Galligan, Louisiana Tort Law, supra
note 15, sec. 2-6. As to defamation and conversion, there is further discussion above at notes 45-46, and below
at note 62 and accompanying text.
Yiannopoulos, ‘Work of Appellate Courts, 1975-76,’ 37 La. L. Rev. 317, 330-331 (1977) (‘Despite this
denomination, these delictual actions are not identifiable with the common-law tort of conversion . . .
Conversion is not a part of the Louisiana law of delictual obligations.’); see also Comment, ‘Tortious Liability
for False Imprisonment in Louisiana,’ 17 Tul. L. Rev. 81 (1942) (use of term ‘false imprisonment’ nothing more
than descriptive terminology).
59
See Stone, Louisiana Civil Law Treatise, supra note 15, sec. 192. See also ‘Tort Doctrine in Louisiana: From
What Sources Does It Come?’ 16 Tul. L. Rev. 489 (1942).
60
quotation marks around them and indeed his treatise is organized in terms of invaded
interests and not in terms of recognized actions.
On the other hand, the authors of another leading treatise, Louisiana Tort Law (1996)
observe that under Louisiana’s general principle of liability ‘there is arguably no need for
specific categories of intentional torts’ but then they caution the reader, ‘However for mainly
historical reasons, the common law developed a series of specific intentional torts, each with
its own separate elements. Louisiana has largely adopted this common-law approach.’
If one were to ask which of these two views is correct, it is well to remember that in a
mixed jurisdiction there are different cultural voices and hence there are a variety of
viewpoints, including those of this writer. There are nevertheless, in my view, three reasons
to believe this was a veritable common-law reception.
First, these categories were never a mere vocabulary or a set of examples. The courts
are not merely using such terms as descriptive terminology, but they are using the defining
elements of each tort as the minima or the maxima of legal wrongfulness. They are checking
off these defining elements to see that the conditions of each wrong are satisfied and failing
which, it is held there was no wrong. The Louisiana judges have in effect been saying, ‘no
touching, no battery,’ ‘no malice, no malicious prosecution,’ ‘no “outrageous conduct”
going ‘beyond all possible bounds of decency’‘then no intentional infliction of emotional
distress.61 It is not the descriptive words but the chiseled elements of each action that
constitutes the pigeon-hole approach so characteristic of the common lawyer. So these are not
idle words.
Secondly, as capacious as the general clause is, sometimes the specific elements that
the judges insist upon exceed its limits and cannot be examples falling under it. The principle
of the Code insists on proof of fault, damages and causation, yet some intentional torts
dispense with these fundamental elements in various ways. Trespass to land, for example, is
an example of strict liability and may require no proof of damage to the land. Defamation too
can be viewed as strict liability or even, according to one Louisiana commentary, as ‘absolute
liability.’62 The judges acquiesced in a common-law malice standard that was implied from
the falsity of the statement. When statements were defamatory per se, their falsity was also
presumed. Thus the malice requirement was no fault requirement at all, and proof of truth
was a matter for defense, not an affirmative element.63
Thirdly, blithe denials appear to take no account of the cultural forces actually at
work. When we examine how these cases are actually decided, when we focus upon the
virtually exclusive references to American sources, the absence of civilian references, the
verbatim transplanting of exact elements found in encyclopedias, Restatements and American
cases,64 one realizes that these denials are not terribly realist. If one takes off the purists’
61
See the interesting way the Court emphasized the far limits of conduct required to establish the bare minima of
this intentional tort in White v. Monsanto 585 So. 2d 1205 (La. 1991).
62
Maraist and Galligan, Louisiana Tort Law, supra note 15, sec. 19-2(b).
63
Ironically, it was the constitutionalization of the defamation action that had, in Louisiana, the strange effect of
civilianizing it. The standards laid down by the Supreme Court in New York Times v. Sullivan 376 US 254
(1964) and Gertz v. Robert Welch 418 US 323 (1974) imposed a true fault requirement (‘actual malice’)
nationwide and upon Louisiana law. The New York Times rules, however, are limited to statements of public
concern. Even today in Louisiana, when the claim concerns only a private citizen suing another private citizen
on a matter of no public concern, the common law’s ‘absolute liability’ may still be the law. Maraist and
Galligan, Louisiana Tort Law, supra note 15, sec. 19-2(b).
64
For reasons of space, I confine myself to one illustration of this standard use of American authorities. The
decision in White v. Monsanto, supra note 61, may be regarded as typical. While issuing the usual caveat that it
was not bound by common law, the Court followed American authorities exclusively, even though they lay
monocle and attempts to take a detached view, the evidence of a massive reception is
palpable. This impression is not weakened as we turn to consider the Louisiana position in
the field of negligent wrongdoing.
(2) Negligence and duty of care. The duty of care concept is perhaps the leading feature of
American negligence law, and here at a high level of conceptualization Louisiana has
developed a highly imitative account. Curiously, this broad borrowing has not attracted much
attention, criticism or disagreement. Louisiana’s treatment includes the standard two-tiered
view of duty that is followed in most common-law jurisdictions.
On the first level, it must be confirmed that defendant was in a ‘duty situation’
because there are certain ‘per se no duty’ situations where there is no action and no liability
for anyone at all. Thus there is no duty owed by anyone for ‘wrongful birth’ actions,
negligently causing emotional distress, negligently causing pure economic loss, or for the
deliberate failure to rescue another person in distress. This initial analytical screening,
however, has no apparent grounding in the text of the general clause. The screening succeeds
only because some preconceived concept of unlawfulness is superimposed. Conceptually, a
‘no duty situation’ is simply a zone of lawful behavior that has been carved away from the
reach of the general clause, but there is no explanation how this surgery can be logically
accomplished.65 Probably all that can be shown is an interesting coincidence. Louisiana’s
duty-free zones roughly coincide with the same ‘no duty’ categories found in American law.
The second level of duty analysis is the highly fact-sensitive ‘particular duty’
conception. This narrow and cautious concept affords close judicial control over the limits of
liability. Here Louisiana judges, like common-law judges, commit themselves to nothing in
advance of case by case, piecemeal formulations of wrongful negligence, and they have not
been inspired by the general clause to develop a more ambitious approach. The particular
duty rule they follow has had different permutations over the years, but as it is currently
phrased it calls for ‘duty/risk’ analysis. Duty/risk, a variant of standard duty analysis, has for
the last thirty years dominated the Louisiana tort scene, but that formula comes from
American common law, particularly from the influential writings of Professors Leon Green
and Wex Malone.66 These authors argued that this test would provide greater judicial control
over the formulation of legal policy, strengthening the position of the judge as opposed to the
jury over the discretionary elements in liability determinations.67 According to a leading
commentary, the essential question which duty/risk asks the judge to decide is ‘whether that
down restrictions that no reading of the general clause would suggest. The Court referred to Prosser on Torts,
Magruder, the Restatement 2nd of Torts, sec. 46, a long list of American cases and various American case-law
citators.
65
It is difficult to understand at least the reasons which justify their categorical withdrawal from general clause
review since these ‘situations’ too - whether the problem is one of pure economic loss or emotional distress may arguably involve an actor’s ‘fault’ which causes ‘damage to another.’
66
It could be argued that this approach is after all civilian since it is well known on the continent, particularly in
Germany, where it is referred to as ‘Schutznorm’ and takes the form of teleological interpretation under BGB
Art. 823, para. 2. The principle was long ago accepted into Dutch jurisprudence and has recently been enshrined
in the Dutch Civil Code (1992) in Art. 6:163 (New) BW. See Gerhard Lankhorst, De relativiteit van de
onrechtmatige daad (Kluwer 1992). But the Louisiana judiciary has never sought out or followed these
continental sources. Instead, their recourse was to the American strain of duty/risk which has particular cogency
in the allocation of judge and jury functions.
67
See references to the writings of Green, Malone and Prosser in Hill v. Lundin 256 So. 2d 620 (La. 1972),
which is the key decision inscribing duty/risk into Louisiana law.
general duty extends to protect the plaintiff against the particular risk that occurred, in the
particular manner in which it occurred. Put differently, does this defendant have a duty to
protect this plaintiff against this risk that occurred in this manner?’68 In other words, in the
formulation of the question of negligent wrongfulness, Louisiana is, as far as I can see, in the
mainstream of American law, not the civil law.
(3) The civilian revival in Louisiana: Its impact on tort law. One of the most interesting
correlations in the historical evolution of mixed jurisdictions around the world is their
unpremeditated and individual attempts to purge or redress past assimilation of the common
law of tort. There has been a revival movement in Puerto Rico, led by Chief Justice Trías
Monge, another in South Africa which is associated with Justice Steyn, a third in Louisiana
led by Justices Tate, Barham, Dixon and Dennis.69 Though there is nothing to suggest mutual
inspiration or international collaboration, these movements all took place in the same time
frame (roughly the last third of the 20th century) and much of the energy was focused upon
the field of tort. Perhaps it is no wonder that the area that had undergone the greatest
penetration should be thought that area needing the most redress.
To what extent did the revival movement succeed in Louisiana? Certainly a number
of important substantive doctrines were changed. In 1969 the Supreme Court overruled the
locality rule as a test of medical malpractice, noting that Article 2315 gives forth a statewide
standard of fault, not a localized one.70 In 1974 the Court abolished the doctrine of ‘charitable
immunity,’ which had enjoyed a 50-year reign in the lower-court jurisprudence, and once
again it chose the simple ground that Article 2315, textually speaking, grants no immunities.71
It helped bury the common-law rule that tort actions in general abate on the death of the
victim by drawing attention to the codal distinction that only ‘strictly personal’ actions are
affected by death.72
In several important decisions of the period where the Court launched new doctrines it
constructed codal analogies or it creatively reinterpreted existing texts. Thus it created strict
liability for defective things under an owner’s control by reawakening a slumbering Article
2317.73 It also created strict liability under Article 2315, reasoning that ‘fault’ under that
article was not limited to negligence or moral wrongs, but encompassed many acts which are
merely forbidden by the law.74
68
Maraist and Galligan, Louisiana Tort Law, supra note 15, sec. 5-1.
69
For details on these movements, see Palmer, Mixed Jurisdictions Worldwide, supra note 4, chap. II (South
Africa), chap. IV (Louisiana) and chap. VI (Puerto Rico).
70
Ardouin v. Hartford Acc. & Indem. Co. 360 So. 2d 1331 (La. 1978). It should be noted that in subsequently
passed special legislation the legislature largely reinstituted the old standard by establishing a ‘similar locality
rule’ and a ‘strict locality rule.’ See details in Maraist and Galligan, Louisiana Tort Law, supra note 15, at sec.
21-3(a).
71
See Garlington v. Kingsley 289 So. 2d 88 (La. 1974) and the earlier case of Grant v. Touro 223 So. 2d 148
(La. 1969).
72
Guidry v. Theriot 377 So. 2d 319, 329 (La. 1979).
73
Loescher v. Parr 324 So. 2d 441 (La. 1975). The development of custodial liability out of this innocuous text
is traced in Vernon Palmer, ‘A General Theory of the Inner Structure of Strict Liability: Common Law, Civil
Law, Comparative Law,’ 62 Tul. L. Rev. 1303 (1988). But as pointed out above, see note 39, the legislature has
now expressly overruled this interpretation and altered the text of the provision.
74
Langlois v. Allied Chemical Corp. 249 So. 2d 133 (1971).
The movement has now slowed considerably - some even believe it has expired - but
occasionally it still bears fruit. Two years ago, the Court ruled that civilian principles must be
applied to the tort of conversion. The Court declared that conversion had been erroneously
viewed as a strict liability tort and henceforth it must be predicated on fault principles.75 The
Court took pains to rebaptize this as the ‘civil-law tort of conversion.’
On balance it is clear, however, that the redress brought about by the renaissance did not
penetrate to the deeper levels where common-law principles and methodology have been
assimilated. Perhaps it was captious to think that profound change could happen in a
relatively short period of time or that civilian purism would figure importantly on the agendas
of future justices of the Court. What is probably captious is to think that a judicial revival led
from on high can reverse for long the ingrained legal culture which emanates from below.
The renaissance in Louisiana is quite important for what it actually accomplished, but it is
just as noteworthy for what it did not attempt and could not prevent. The English categories
of intentional torts basically remain. The Anglo-American conception of duty of care was not
disturbed. The legislative assault on Article 2315 continued, indeed it intensified after the
renaissance and nullified some of its gains. As stated earlier, the Court no longer seems to be
sole master of tort development, nor even of the torts it recognizes under the general clause.
For many reasons the renaissance was not enduring or deep enough to stem the tide of tort
history in a cross-cultural setting.
En guise de conclusion
By now some of my compatriots from Louisiana, were they with us here in Edinburgh, might
complain that I have wasted my time chattering about the problem of snakes in Ireland. They
might say, ‘What are you talking about? There is no problem with the general clause.’ True
there is no problem - except perhaps for those who took it seriously and expected something
different from it. No, the fate of the general clause reminds me of what Chesterton said of
Christianity: ‘The Christian ideal,’ he said, ‘has not been tried and found wanting; it has been
found difficult and left untried.’76 In this essay, I have tried to suggest why the difficult has
not been tried. To be sure, although I have tried to mention some important issues (structural
opportunity, institutional forces, linguistic and societal considerations), there are quite a few
factors that I have not stressed. The jurisdiction is now unilingual and cut off from French
doctrine and jurisprudence. Our judges no longer read French and the available materials they
do read are likely to be American. The local system of legal education is not sufficiently
civilian or comparative to point the way, and many other causes could be adduced. However,
all of these factors could be considered aspects of a more general condition. The general
clause has not been the organizing principle of Louisiana tort law because the Louisiana legal
mind has become culturally conditioned by Anglo-American thought. It is habituated to a
preference for the concrete over the abstract. It resists the logic of open-ended syllogistic
development and prefers focused liability categories. And the general clause is now encased
in a textual straitjacket from which there is no escape.
75
Dual Drilling Co. v. Mills Equipment 721 So. 2d 853 (La. 1998).
76
Gilbert Keith Chesterton, What’s Wrong with the World, pt. I, chap. 5 (1910).