In Memoriam by William T. Tete
In Loescher v. Parr our supreme court articulated the concept of ‘fault in the guard’ stating ‘ a rticles 2315 through 2322 express the same concepts and represent the same scheme as French Civil Code articles 1382 through 1386’ and, further, that under article 2317 legal fault of the guardian of a thing was ‘based upon the breach of his legal obligation to keep his thing in such condition or in such control that it does no damage to others.’ I must confess to a certain ambivalence about Loescher. The French part of me has always admired what Judge Tate there wrought, pretty much on the grounds that Professor Higgins recognized. You will recall, the learned Henry Higgins correctly observed in My Fair Lady, ‘The French never care what they do actually, as long as they pronounce it properly.’ Loescher v. Parr is indeed a very elegant pronouncement.
Loescher used to worry the conservative in me because of its readily-apparent revolutionary implications. Indeed, in 1975 I even induced Monroe & Lemann to give me a special mandate to purchase, in Paris, the Mazeaud treatise Judge Tate kept citing. Over the years, I had the opportunity to use what I learned from Mazeaud both in practice and in teaching. In a couple of articles, one in the 1973 Tulane Law Review and one in French in the 1980 Travaux de L'Association Henri Capitant, I touched upon certain reservations I had about the civilian trend in tort. So, when I told Judge Tate I would tonight defend the principle of Loescher, he got this benevolent expression on his face as though he were a priest who had, at long last, found the truly repentant sinner. I just could not bring myself to tell him that my defense would be based on what he might deem Reaganomic grounds.
Actually, my principal reason for supporting fault in the guard is that it respects the overall conceptual framework of the Civil Code. Since we have a civil code that encompasses obligations arising ex delicto, we must in some measure attempt to harmonize what we do in tort cases with the Code. In Louisiana during the past few years, truly challenging and systematic attacks on use of article 2317 have been made: one with eloquence by Judge Federoff at our last meeting, another by Professor Malone in the Louisiana Law Review, and another made with scholarly thoroughness by Justice Dennis at the Judicial College. These critics have made some very good observations, particularly on the question of causation. But should we now revert to just paying lip service to the Civil Code in tort matters?
One critic has posed the issue as follows: Why should Louisiana be any different from the other states? Well, Louisiana is different. The Civil Code attempts to gather the basic concepts of the private law into one single integrated information system. Please indulge me in the use of a brief computer analogy. What happens when you attempt to modify a computer program without fully taking into account its internal logic? Irrational, unpredictable, and undesired consequences—known technically as bugs—result. Similarly, there are complex, not readily-apparent, logical interconnections between the articles regarding offenses and quasi-offenses and the rest of the Code. What we do in delict defines the limits, the contours of property and contract and may either help or hinder their proper operation.
The fundamental questions I shall address are these: what are the sources of fault in the guard; what policy underlies fault in the guard; what are the consequences of disregarding fault in the guard; and what response should Louisiana make to criticisms of fault in the guard?
About the Author
William T. Tete. Partner, Mars, Medo & Tête, New Orleans, Louisiana; B.A. 1966, J.D. 1967, Louisiana State University; L.L.M. 1968, Yale University.
Citation
61 Tul. L. Rev. 759 (1987)