House Bill No. 431 was signed into law by Governor Jeff Landry on May 28, 2025. But what does this mean for the recovery of damages and how does this new system compare to other states?

Effective January 1, 2026, if the degree or percentage of negligence attributable to a person suffering injury, death, or loss is equal to or greater than fifty-one percent, then that person will not be entitled to recover damages. However, if the degree or percentage of negligence attributable to a person suffering injury, death, or loss is less than fifty-one percent, then the amount of damages recoverable will be reduced in proportion to the degree or percentage of negligence attributable to that person.

The new act also provides that in all cases where the issue of comparative fault is to be submitted to a jury, the jury shall be instructed on this modified comparative fault scheme, and its preclusive effect for those plaintiffs determined to bear a percentage of negligence equal to or greater than fifty-one percent.

Additionally, this modified comparative fault scheme will apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis for liability, with a limited carve-out for injury, damage, or loss as a result of the fault of an intentional tortfeasor.

Of note, the Bill makes no mention whether this modified comparative fault scheme will apply prospectively or retroactively. This ambiguity, whether the new law is procedural, substantive, or interpretive, is likely to spur substantial litigation in the district courts regarding the timing of its application. A prior legislative amendment to La. Civ. Code Art. 2323, which established the existing comparative fault scheme, was considered by the Louisiana Supreme Court to be procedural legislation, which could be applied retroactively. See Keith v. U.S. Fidelity & Guar. Co., 96-2075 (La. 5/9/97), 694 So. 2d 180. However, it can likely be argued that the implementation of this new modified comparative fault scheme represents a substantive change in the law, which can only be applied prospectively.

So how does this new modified comparative fault scheme measure up with the rest of the United States? Prior to House Bill No. 431 being passed and signed into law, Louisiana was one of just eleven states who still utilized a pure comparative fault scheme in allocation of damages. With these changes to the law, Louisiana now joins a majority of states who place a complete bar to recovery for a plaintiff whose share of fault is determined to be equal to or greater than 51%, and in some instances 50%.

Of the established modified comparative fault schemes, Louisiana has taken the more forgiving approach, adopting a scheme that still allows a prospective plaintiff to recover damages even if they are determined to bear half (50%) of the fault allocated to the parties and non-parties. This is in contrast to the modified comparative fault systems employed by Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, and Utah. Rather, it is only upon a determination that a plaintiff bears a majority (51% or greater) of the fault allocated that the plaintiff is precluded from any recovery. Louisiana joins Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, West Virginia, Wisconsin, and Wyoming in applying this comparative fault standard.

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Written on behalf of the Torts & Products Liability Committee.