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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 36 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 20th day of May, 2003, are as follows: BY VICTORY, J.: 2002-C- 1443 BYRON K. LANDRY v. LUKE BELLANGER, JR. (Parish of Lafourche) For the reasons stated herein, the judgment of the trial court is reversed and judgment is entered for the defendant. REVERSED AND RENDERED. KIMBALL, J., dissents and assigns reasons. KNOLL, J., dissents for reasons assigned by Kimball, J.

5/20/03 SUPREME COURT OF LOUISIANA No. 2002-C-1443 BYRON K. LANDRY VERSUS LUKE BELLANGER, JR. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF LAFOURCHE VICTORY, Justice We granted certiorari in this matter to consider whether or not the aggressor doctrine is a valid defense to an intentional tort under Louisiana's pure comparative fault regime. In addition, we are called to consider whether Section C of Civil Code Article 2323 prohibits a reduction of the plaintiff's recovery of damages for an injury partly the result of the fault of an intentional tortfeasor and partly the result of his own fault, when the plaintiff's fault amounts to more than mere negligence. For the following reasons, we conclude that the aggressor doctrine is inconsistent with Louisiana's comparative fault regime and no longer serves as a complete bar to plaintiff's recovery. However, self-defense is a valid defense to a battery, and in this case relieves the defendant of liability. We further find the prohibition of Section C is not applicable in situations where the plaintiff's conduct amounts to more than mere negligence. FACTS AND PROCEDURAL HISTORY On June 27, 1996, the plaintiff, Byron Landry ("Landry"), who had been living and working out of state, and his father, Ernest Landry, stopped at a local bar, Steve's Chevron, for a drink. While at the bar, Landry saw the defendant, Luke Bellanger, Jr. ("Bellanger"), a former high school classmate of his whom he had known for 20

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years. Landry and Bellanger were both at the bar for several hours, drinking and visiting, except for a period of time when Bellanger left and returned later. Landry's father left Steve's Chevron around 9:30 p.m., but Landry stayed behind drinking and visiting. As the evening progressed, Landry drank steadily over the next several hours, consuming approximately eight beers. Bellanger returned to the bar with his friend, Lonnie Bell, and Landry was still there. Bell, who testified by deposition, stated that he witnessed the interaction between Landry and Bellanger and that Landry appeared to be intoxicated. He testified that Landry began talking in a loud voice and became very belligerent toward Bellanger. Landry continued to harass and insult Bellanger, suggesting that he was born with a "a silver spoon in his mouth," and that he never had to work hard a day in his life. Bellanger continually asked Landry to calm down and leave him alone but Landry continued, becoming louder and more aggressive. Bell corroborated Bellanger's account of the events leading up to this point, testifying as follows: "Mr. Bellanger repeatedly . . . had asked . . . to please leave him alone. Asked him repeatedly . . . to please calm down because he was getting a little hostile. Toward the end before they had their encounter, Mr. Landry was in Mr. Bellanger's face practically." Bell further added that at no time did Bellanger threaten Landry or say anything threatening to him. When asked if Landry had issued a challenge to him or made any threatening comments to him, Bellanger testified that Landry walked up to him, poked him in the chest and said "if I wasn't such a f______ p____, he would take me outside [and] whip my ___." At that time, Bellanger asked Landry to step outside so they could talk, hoping he could get Landry to calm down. Landry and Bellanger then left the bar through the front door and stepped outside. Bellanger described what happened after they exited the bar, as follows:

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I got up, walked towards the bar and I walked out first. He came out behind me. I walked about 10 feet from the door, I turned around and tried to tell him, Byron, we don't need to do this, you know, this is stupid. We're friends, there's no need for us to fight. He walked up to me and started pushing me with his chest and telling me, yes, I'm going to whip your ___. I kept stepping back, I said, Byron, we don't need to do this. Well, he pushed me; when he pushed me, he kept coming. The only thing I could do was I had to defend myself. According to Bellanger, he then struck Landry in the head with a partially closed fist, and Landry fell backwards and hit his head on the cement. Landry's version of events is slightly different. Landry recalls that he and Bellanger argued about a woman and then Bellanger asked him to step outside. According to Landry, he walked out of the door first, but he remembers nothing about what happened in the parking lot other than being struck and falling down. The next thing Landry remembers is waking up at his parents' house the following day. Lonnie Bell testified that he witnessed the entire incident, watching through the glass door from inside the bar. Bell indicated that prior to Landry and Bellanger going outside, it had "started to get pretty heated between the two" and Bellanger asked Landry to "step outside because he was starting to cause a scene inside of the bar." Bell reiterated that at no time did Bellanger threaten Landry. After exiting the bar, Bell saw Landry push Bellanger with his chest. Then Bell saw Bellanger hit Landry once in the head, causing him to fall to the ground and strike his head on the concrete parking lot. Bell stated that because Landry was "knocked out," they were reluctant to leave him on the ground. Thus, he and Bellanger lifted Landry into the bed of Bellanger's truck. Both Bell and Bellanger testified that although Landry was unconscious, he was still breathing and appeared to be all right. Although Landry's injury turned out to be a severe head injury, there was no evidence presented that

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Bellanger should have been aware that Landry had been seriously injured as a result of falling to the concrete. Between 10 and 45 minutes after they had put Landry in the bed of the truck, Landry's father returned to the bar to check on his son. Landry's father found him passed out in the back of Bellanger's truck and assumed he had too much to drink. With the assistance of Bellanger and Bell, Landry's father put him into his vehicle and drove him home. Landry's father was unable to remove him from the vehicle so he left him there until the next morning, at which time he was able to walk with assistance. After several days of vomiting and headaches, Landry went to the emergency room at Lady of the Sea Hospital in Galliano for treatment. Tests revealed a skull fracture and a hematoma on the brain. Landry was immediately sent to Thibodaux Regional Medical Center where he underwent brain surgery for removal of the hematoma. Following surgery, he remained in the hospital for eight days and then later returned to his home in Florida with his wife. Even after his recovery, Landry was unable to return to his former employment as an engineer in the marine industry. Landry testified that his treating neurologist advised him that he could never return to his previous employment. As a result of his brain injury, he was left with permanent neurological deficits, including loss of taste and smell, memory loss, and multiple personality changes. He also suffers from a seizure disorder and still has seizures on a daily basis. Landry sued Bellanger, claiming Bellanger committed an intentional tort, a battery, against him which caused his damages. The trial court rendered a judgment in favor of Landry and awarded $400,000 in general damages, $320,000 in past and future loss of wages, and $24,278.41 in medical expenses, together with legal interest from the date of judicial demand and court costs. The trial court found that it was more probable than not that Landry's
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injury occurred when he fell onto the concrete surface in the parking lot after being struck by Bellanger and thus, his injuries were caused by a battery committed by Bellanger. In the trial court's reasons for judgment, the court found that Bellanger invited Landry outside so that he could "gain some measure of satisfaction for the verbal abuse he had endured inside of the bar for most of the evening." Accordingly, the trial court concluded that when Bellanger invited Landry outside, Bellanger became the aggressor. The trial court determined that Bellanger used force that was totally unnecessary under the circumstances and was not acting in self-defense. Additionally, the trial court noted that Landry's actions leading up to the confrontation were significant in determining the cause of his injuries and damages. The trial court recognized that prior to the amendment of Civil Code Article 2323, a plaintiff's negligence could be used to mitigate and reduce the damages resulting from an intentional tort committed by a defendant. However, it found that the amendment to Article 2323, in Paragraph C, provides that the claim for damages by a person injured partly by his own negligence and partly by an intentional tortfeasor shall not be reduced. Thus, the trial court concluded that Landry's actions can have no effect on the liability of Bellanger and the damages recovered by Landry as a result of Bellanger's liability. On appeal, the First Circuit concluded the trial court erred in refusing to apportion fault in accordance with Article 2323. Landry v. Bellanger, 00-2029 (La. App. 1 Cir. 3/28/02), 813 So.2d 598. The court of appeal held that Article 2323(C) applies only in cases where a plaintiff's contributory fault consists of negligence and does not apply where a plaintiff's fault is intentional in nature. The court of appeal noted that the trial court acknowledged Landry's actions leading up to the confrontation were significant in determining the cause of his injuries and damages. Rejecting the trial court's conclusion that Landry's actions were negligent, the court
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of appeal found that these "significant" acts were intentional, not negligent, and therefore warrant a comparative fault analysis. After reviewing the evidence, the court concluded that fault should be apportioned equally between Landry and Bellanger. Thereafter, Bellanger applied for supervisory writs in this Court, arguing that the lower courts erred in failing to properly apply the aggressor doctrine to deny a claim for damages sustained by an identified aggressor as a result of his own aggression. We granted certiorari to consider the correctness of the court of appeal's judgment. Landry v. Bellanger, 02-1443 (La. 10/14/02), 827 So.2d 409. DISCUSSION Under Louisiana Civil Code Article 2315, a person may recover damages for injuries caused by a wrongful act of another. According to that Article, "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. C.C. art. 2315 (A). Historically, fault has been the basis for tort liability in Louisiana. Veazey v. Elmwood Plantation Association, Ltd., 932818 (La. 11/30/94), 650 So.2d 712, 717. Furthermore, Louisiana embraces a broad civilian concept of "fault" that encompasses any conduct falling below a proper standard, including intentional torts. Id. at 718. A battery is "[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact . . ." Caudle v. Betts, 512 So.2d 389, 391 (La. 1987). The defendant's intention need not be malicious nor need it be an intention to inflict actual damage. Id. It is sufficient if the defendant intends to inflict either a harmful or offensive contact without the other's consent. Id. Under long-standing Louisiana jurisprudence, a plaintiff's recovery for damages resulting from an assault or battery would be precluded if the plaintiff's own actions were sufficient to provoke the physical retaliation. According to this
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"aggressor doctrine," plaintiff's recovery is precluded if the evidence establishes "he was at fault in provoking the difficulty [sic] in which he was injured, unless the person retaliating has used excessive force to repel the aggression." See Baugh v. Redmond, 565 So.2d 953, 959 (La. App. 2 Cir. 1990); Slayton v. McDonald, 29,257 (La. App. 2 Cir. 2/26/97), 690 So. 2d 1914 (Louisiana's aggressor doctrine precludes tort recovery where the plaintiff acts in such a way to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff, unless the person retaliating has used excessive force to repel the aggressor); Clark v. Buchaud, 00-2750 (La. App. 4 Cir. 11/14/01), 802 So. 2d 824; Frazer v. St. Tammany Parish School Bd., 99-2017 (La. App. 1 Cir. 12/22/00), 774 So. 2d 1227; Duck v. McClure, 36,045 (La. App. 2 Cir. 5/8/02), 819 So. 2d 1070; Frame v. Comeaux 98-1498 (La. App. 3 Cir. 4/21/99), 735 So. 2d 753; Susananbadi v. Johnson, 97-2756 (La. App. 4 Cir. 6/28/00), 768 So. 2d 634; Minkler v. Chumley, 32,558 (La. App. 2 Cir. 12/8/99), 747 So. 2d 720. The aggressor doctrine is unique to Louisiana, having evolved through decades of jurisprudence, but lacking any statutory or common law basis. However, the origin of the doctrine is possibly rooted in the legal maxim "volenti non fit injuria," which provides "to one who is willing, no wrong is done." W. Page Keeton et al., Prosser & Keeton on The Law of Torts.

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