1. Tort Claims in Louisiana
Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)

2. Sovereign Immunity in Louisiana
The 1974 Louisiana Constitution (Edwin Edwards Constitution) abolished sovereign immunity for the state and its political subdivisions.
Assuming there is no LATCA, how is the situation different from the feds?
What is the rule when you are construing a statute that establishes immunity, as opposed to a statute in derogation of immunity?

3. La. R.S. 9:2798.1 – LA Tort Claims Act
Louisiana Revised Statute 9:2798.1(B) (DFE):
Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
Section D of La. R.S. 9: explains that its purpose "is not to re-establish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana."

4. Exceptions to the DFE in the LATCA
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
Remember that the FTCA DFE includes abuse of discretion – is this different in LA?

5. What is a Discretionary Function?
Under the FTCA, the courts use a very broad notion of discretionary function because it is a statute in derogation of immunity.
Under state TCAs, including LA, the courts use a much more narrow notion and there are endless fights about what is covered.
Clearing ice from roads is not covered.
Greene v. Succession of Alvarado, (La. App. 1 Cir. 12/27/16), 210 So. 3d 321

6. Procedure for Filing an LA Tort Claim
In general, you just go to court, you do not have to file an administrative demand.
Medical malpractice cases against governmental entities have to comply with the general LA legislation on medical malpractice, which does require notice and an administrative process for screening the cases.

7. Can You Collect a Judgment?
(C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. (emphasis added)

8. Stopped Here

9. Raw Oysters What do oysters eat? Hepatitis A - traditional
Liver disease
some die
vibrio vulnificus - the new threat
acute liver disease and failure
various other nasty vibrios
This is why God made deep fat fryers

10. Tort Standards for Oysters
The foreign/natural distinction
Cherry pits, chicken bones
The consumer expectations test
Is it something that a reasonable consumer would expect to be in the food?
This is the prevailing view.
Do consumers expect vibrio vulnificus or hepatitis A?
What about dying from fugu - puffer fish - sushi?
Why do the oyster producers and restaurants want a statutory warning?

11. State Warning
THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED.
What are the limitations of this warning for establishing assumption of risk?

12. Gregor v. Argenot Great Central Insurance Co. , 851 So. 2d 959 (La
What happened to plaintiff?
Preexisting illness?
What if he did not have a preexisting illness?
Where was the sign posted?
Where did plaintiff eat?
Did he see the sign?

13. The Claims Who did the plaintiff sue?
What was the comparative fault assessment?
What is the plaintiff's negligence theory against the state?
What is the causation issue?
Why do you think DHH assessed so much fault?

14. The State’s DFE Claim
DHH argues that the testimony and evidence establishes that the intent of the drafters of § 23:006-4 was to give DHH inspectors discretion when inspecting restaurants for compliance with § 23: DHH argues that the actual words of the regulation offer a variety of methods for compliance, which requires the use of judgment or choice--i.e. "Discretion." It maintains that the first sentence of the regulation indicates three specific choices (signs, menu notices, or table tents), and a fourth general alternative if signs, menu notices, or table tents are not appropriate in a particular situation (other clearly visible messages)

15. Where Does the Warning Have to be Posted?
Section 23:006-4 of the Sanitary Code requires that all "establishments that sell or serve raw oysters must display" a prescribed warning "at point of sale." The establishment has discretion in determining what method may be used to convey the warning because the warning can be conveyed by a sign, menu notice, table tent or other clearly visible message.
What is the critical language?

16. Court's Analysis How is this case like Berkowitz?
What is the role of the regulation?
How is the agency arguing that the reg does not apply?
The Court's use of Berkowitz is confusing.
It rejects the Fowler's court's reliance on Berkowitz because the LA statute is different
It then appears to use an analysis that is consistent with Berkowitz and other FTCA cases in its resolution of the case.
Berkovitz
25% of the oysters were consumed at the table.

17. What was the Real Negligence of DHH?
Did it really allow inspectors to decide what point of sale meant?
“DHH had a mandatory duty to properly enforce the sanitary code. La. R.S. 40:4A. We find that DHH was negligent in failing to properly train its sanitarians and failing to properly provide them with interpretations of the Sanitary Code terminology, specifically as to what the term "point of sale" means.”
Was the restaurant also liable?
Bad oysters or bad warning?
How did the court modify the allocation of fault?