Article by Robert R. Peebles, Jr.
Recently, Professor David Robertson suggested in the pages of this journal that adoption of a comprehensive tort claims act, along the lines of the Federal Tort Claims Act (FTCA) or similar state legislation, “could set Louisiana on the road to adopting a unified and rational approach to its governmental liability law.” At the root of the perceived conundrum, in Louisiana as elsewhere, is a legal principle with a long and somewhat complex history: the doctrine of sovereign immunity. My purpose in this Article is not to challenge Robertson's thesis, but to propose that the unique tradition of Louisiana law demands more thought, more research, and perhaps a different solution than the one reached on the national level or in other states.
When Louisiana adopted its new constitution in 1974, it seemed that the troublesome doctrine of sovereign immunity was finally a thing of the past. Article 12, section 10 of the constitution provided:
A. No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
B. Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
C. Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. 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 judgment is rendered.
The gradual erosion of sovereign immunity on both the national and state levels had been occurring since the middle of the last century, but in few jurisdictions had the rejection been quite so complete as the new constitutional provision suggested that it would be for Louisiana. Typically, tort-claims legislation on both the federal and state levels preserve governmental immunity, at least for specified events and injuries. The sweeping language of the Louisiana Constitution seemed to preserve nothing of the sort. In the years since the 1974 constitution was adopted, however, the legislature has attempted to hedge article 12, section 10 with qualifications and limitations. Perhaps the attempt can be seen as a realistic move toward the position occupied by other states and the federal government, but the post-1974 statutes in question suffer from two infirmities that distinguish Louisiana from other jurisdictions. First, the statutes have been enacted so as to create what Robertson calls a “hodgepodge,” revealing the lack of a consistent policy. Second, they have often seemed to fly in the face of the 1974 constitution's apparently absolute rejection of sovereign immunity.
What makes the issue more interesting is that, at least in theory, the ability to recover for governmental torts is greater in nearly every nation that shares Louisiana's civilian heritage than it is anywhere in the United States. This is especially true in France, which is the wellspring of Louisiana's private law. It would be easy to dismiss this fact as simply one more instance in which Louisiana adopted the prevailing American view, making the state the “mixed” jurisdiction that it undoubtedly is. But the truth of the matter is far more complicated. At the time Louisiana adopted a civil code based in large part on the Code Napoleon, it was more difficult to recover for governmental torts in France than it was in the United States. The current French liberality resulted from an evolution that occurred well before the turn of the century. Significantly for Louisiana, one of the factors that guided the evolution was doctrinal reflection on the scope of the Code civil.
Part II of this Article will discuss the historical development of the doctrine of sovereign immunity in the United States in general and in Louisiana in particular. Part III will focus on sovereign immunity in the civil-law tradition, especially as it pertains to France. Part IV will recount the post-1974 Louisiana legislation and jurisprudence and will explore the possibility of applying principles of French doctrine to discover whether those principles might foster consistent policies and workable rules for dealing with article 12, section 10 of the Louisiana Constitution. Such an exploration is hardly novel; it has been proposed for states that do not share Louisiana's legal heritage. So much the more reason for Louisiana to consider the French solution before blindly adopting a statute modelled on the FTCA, whether the French solution ultimately proves feasible for Louisiana or not.
About the Author
Robert R. Peebles, Jr. Associate with the New Orleans law firm of Sessions & Fishman.
Citation
65 Tul. L. Rev. 1055 (1991)