author: 11 VICTORY, Justice. bKIMBALL, J.,

text:
    Byron K. LANDRY v. Luke BELLANGER, Jr.
    No. 2002-C-1443.
    Supreme Court of Louisiana.
    May 20, 2003.
    Rehearing Denied Sept. 5, 2003.
   11 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 Bel-langer, Jr. (“Bellanger”), a former high school classmate of his whom he had known for 201 ?years. Landry and Bellan-ger 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 Bel-langer, 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:

|3I 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 Bel-langer 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 |4Bellanger 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 BellangeFs 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 | Rinjury 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 plaintiffs 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 tortfea-sor 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 plaintiffs contributory fault consists of negligence and does not apply where a plaintiffs 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 | fiof 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 Associates, Ltd., 93-2818 (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 plaintiffs recovery for damages resulting from an assault or battery would be precluded if the plaintiffs own actions were sufficient to provoke the physical retaliation. According to this |7“aggressor doctrine,” plaintiffs 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. Burchard, 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, 97-91 (La.App. 5 Cir. 10/17/97), 700 So.2d 886; 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. § 18, at 112 (5th ed.1984). The earliest Louisiana decision addressing the aggressor doctrine seems to be Vernon v. Bankston, 28 La. Ann. 710 (1876). Therein, the rule was stated as follows:

[0]ne who is himself in fault cannot recover damages for a wrong resulting from such fault, although the party inflicting the injury was not justifiable under the laws.

28 La.Amn. 710, 711 (1876). The Vernon case asserts that this rule is well-settled in the jurisprudence of this State. However, the Court failed to cite any cases to support that the doctrine was indeed “well-settled.” In fact, there does not appear to be any |sprior Louisiana jurisprudence asserting the aggressor doctrine principle. Furthermore, in addition to the puzzling origin of the aggressor doctrine, Louisiana courts have applied the principle inconsistently, producing a rather confusing body of case law.

Later, in Bonneval v. American Coffee Co., 127 La. 57, 53 So. 426 (1910), the Court held that “[i]n an action for damages for an assault and battery committed without legal excuse, the plaintiff is entitled to recover, unless he provoked the difficulty by insults, abuse, threats, or other conduct, well calculated to arouse the resentment or fears of the defendant.” Accord, Hingle v. Myers, 135 La. 383, 65 So. 549 (1914) and Johns v. Brinker, 30 La. Ann. 241 (La.1878) (each applying the aggressor doctrine to preclude recovery where the plaintiff verbally provoked the defendant).

On the other hand, in other cases this Court did not bar the plaintiffs recovery, but concluded that aggression could be a ground to mitigate damages. For example, in Munday v. Landry, 51 La.Ann. 303, 25 So. 66 (1899), we concluded:

Words written or spoken some time pri- or will not justify a physical attack upon the one by whom they were written or spoken. The law had never gone further than to permit mere provocation to be shown as a palliation for the acts and result of anger. The legal phrase is ‘in mitigation,’ not ‘in justification.’ The jury must have found ground to mitigate damages, but not enough to justify the act, — a conclusion affirmed by the court.

| cAccord Richardson v. Zuntz, 26 La. Ann. 313 (La.1874) (holding that even when it is shown there was a great provocation, in civil actions such provocation may mitigate damages, but never justifies the unlawful act).

While there was a line of cases following Richardson, “the great bulk of the modern Louisiana jurisprudence had been entirely consistent with the disposition ... — say something calculated to outrage the defendant, and his physical retaliation, while unjustified, goes unredressed.” Robertson, The Aggressor Doctrine, 1 S.U. L.Rev. at 93.

Then, in Harvey v. Harvey, 124 La. 595, 50 So. 592 (1909), a plaintiff sued for damages from a “malicious” slap in the face by the defendant and the Court found that the provocation in this case (insult and abuse of the defendant) did not justify the assault and battery in question but merely constituted a mitigating circumstance in favor of the defendant. Similarly, in Moore v. Blanchard, 216 La. 253, 43 So.2d 599 (1949), this court quoted the following principles from the assault and battery section of American Jurisprudence:

The courts are not fully in accord as to the right of the defendant to introduce in evidence facts of provocation or malice for the purpose of mitigating the actual or compensatory damages. The better rule and the weight of authority, however, are in favor of the proposition that actual or compensatory damages are not subject to mitigation by proof of mere provocation or malice. To hold otherwise would be to allow provocation to be used as a defense, and thus to permit by indirection that which could not be done directly ... The reason for the rale allowing provocation to be introduced in evidence for the purpose of mitigating actual or compensatory damages is that as the plaintiff provoked the assault, he is himself guilty of the act which led to the disturbance of the public peace.

Moore, 43 So.2d at 601 (citing 4 American Jurisprudence, § 165).

As the aggressor doctrine progressed through our jurisprudence, the doctrine was modified by exceptions. In Oakes v. H. Weil Baking Co., 174 La. 770, 141 So. 456 (1932), the Court affirmed a judgment in favor of plaintiff where the trial court found the defendant’s use of force excessive. The Court found that even if the plaintiff was at fault and the defendant had ample provocation for physically ejecting him from the premises, the “parting kick” inflicted after the plaintiff had been put out of the building was not necessary and wholly unjustified. The Court concluded, “Under no theory can it be said that defendant was warranted in using any greater force than was necessary in ejecting plaintiff from the premises.” Oakes, 141 So. at 457.

Later in 1969, the rale concerning excessive force was then set forth as the following:

It is equally well settled that even where there is an aggressive act, justifying a battery, the person retaliating may use only as much force as is necessary to repel the aggression; and that if he goes beyond this, he using force in excess of what would have been reasonably necessary, he is liable for damages for injury caused by the employment of such unnecessary force.

Tripoli v. Gurry, 253 La. 473, 218 So.2d 563, 564 (1969).

Finally, the Court again modified the doctrine finding that mere words of provocation would not bar a plaintiffs recovery. In Morneau v. American Oil Co., 272 So.2d 313 (La.1973), the Court concluded,

We granted this writ primarily because, contrary to earlier Supreme Court decisions, a number of Court of Appeal decisions have followed a rule of law that words constitute provocation which excuses a battery ... [T]he courts below erred in considering mere words as justification for a battery. The rale of law earlier adopted and followed by our court has even more merit today. The deviations in the holdings of the Courts of Appeal not only are contrary to those pronouncements but are contrary to the majority rule in this country. Moreover, they run contrary to our system of justice under law which commands the use of judicial process rather than force for the settling of disputes ... Applying the rule of law that words which are calculated to provoke and arouse to the point of physical retaliation may mitigate the damages in a civil action, we find the words loused here, in the context of this incident, are insufficient to merit any mitigation of damages.

Louisiana’s intentional tort doctrine has traditionally afforded an intentional tort-feasor a full defense if he can establish consent, privilege or self-defense, or enough provocation to trigger the aggressor doctrine; and a partial defense if the defendant can show a “merely verbal” provocation for a mitigation of damages. David Robertson, The Louisiana Law of Comparative Fault: A Decade of Progress, 1 Louisiana Practice Series 5 (Louisiana Judicial College, 1991).

Hence, the existence of consent means the defendant did not commit a tort and the existence of a privilege means the defendant’s tort was justified. Robertson, Louisiana’s Law of Comparative Fault: A Decade of Progress, at 6-7. Conversely, Louisiana’s aggressor and mitigation doctrines are victim-fault defenses. Id. Neither theory implies that no tort has occurred or that the defendant’s conduct was justified, but instead seek to penalize the victim. Id. As Robertson then points out, “On this analysis the percentage-fault approach should replace both the aggressor doctrine and the mitigation doctrine, while leaving the full defenses of consent and privilege intact. In this way the comparative fault principles will be confined to the job they were designed to do — taking victim fault into account.” Robertson, The Louisiana Law of Comparative Fault: A Decade of Progress, supra, at 7.

In this case, we are presented with the issue of whether the aggressor doctrine is still a valid defense that would bar the plaintiffs recovery following the 1996 amendments to Article 2323. Article 2323 provides that “[i]n any action for damages ..., the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty ... The [foregoing] provisions ... shall apply to any claim for recovery of damages ... asserted under any law or legal doctrine or theory of | pliability, regardless of the basis of liability.” La. C.C. art. 2323(A) and (B). Thus, this article clearly requires that the fault of every person responsible for a plaintiffs injuries be compared regardless of the legal theory of liability asserted against each person. Dumas v. State, 02-0563 (La.10/15/02), 828 So.2d 530.

The above provisions indicate that Louisiana employs a “pure” comparative fault system, whereby the fault of all persons causing or contributing to injury is to be compared. When it adopted the comparative fault system, Louisiana abolished the contributory negligence feature, which completely barred the recovery of injury victims because of their fault, our tort law formerly embraced prior to 1980. See Dumas, supra, 02-0563 at pp. 4-5, 828 So.2d at 532-33. Applying the aggressor doctrine to bar plaintiffs recovery would reintroduce some vestige of contributory negligence law to our tort system and ignore the plain language of Article 2323(A) that directs the court to allocate a proportion of fault to every party contributing to the injury.

This court dealt with a similar proposition in Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988). In that case, this Court held that the survival of assumption of risk as a total bar to plaintiffs recovery would be inconsistent with the mandate of a former version of Article 2323 stating that contributory negligence should no longer operate as a complete bar to plaintiffs recovery. Characterizing assumption of risk as a form of contributory negligence, we noted that it would be anomo-lous to hold that the same conduct which results only in a reduction in recovery when it is described as “comparative negligence” somehow should operate as a total |13bar to recovery when described as “assumption of risk.” Id., 521 So.2d at 1133. In Murray, this Court concluded that the fact that the plaintiff may have been aware of the risk created by the defendant’s conduct should not operate as a total bar to recovery. Instead, comparative fault principles should apply, and the victim’s “awareness of the danger” is among the factors to be considered in assessing the percentages of fault. Id. at 1134.

As we explained in Murray, the premise underlying the assumption of the risk defense was that a plaintiff who disregards a known risk has consented to his own injury and agreed to relieve the potential defendant of liability for that injury. Id. at 1135. Similarly, under the aggressor doctrine, the plaintiff is deemed to have consented to the physical retaliation by provoking the defendant, thereby relieving the defendant of liability for any damages that may result. Just as we did in Murray with respect to assumption of the risk, we find the aggressor doctrine no longer has a place in Louisiana tort law. Pursuant to the rules imposed by Article 2323, comparative fault principles should be applied to alleged plaintiff negligence, thereby eliminating the inequities inherent in the “all or nothing” recovery rules that prevailed prior to the adoption of comparative fault. We find the purpose of the aggressor doctrine, which condemns actions by barring recovery, is adequately served by the civilian concepts of comparative fault, duty/risk, and privileges.

The trial court in this case, however, relying on the provisions of La. C.C. art. 2323(C), was of the opinion that the imposition of comparative fault was inapplicable. Section (C) of art. 2323 provides:

C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced.

Nothing in this section prevents the determination of the percentage of fault of all | upersons causing or contributing to the injury at issue. Rather, Section C provides that when plaintiff is injured as a result of the fault of an intentional tortfea-sor, his negligence shall not reduce his recovery. Thus, reading each section of La. C.C. art. 2323 and giving effect to each portion of the Article, we find that the fault of all persons causing or contributing to injury, regardless of the basis of liability, is to be determined, and, if a negligent plaintiff is injured as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced by his percentage of fault.

It is appropriate to consider each party’s respective fault when a matter involves intentional tortfeasors. In prohibiting the reduction of a negligent plaintiffs damages, Article 2323(C) reflects a legislative determination that on the continuum of moral culpability, the act of an intentional actor should not benefit from a reduction in the damages inflicted on a less culpable negligent actor. In the face of the silence of La. C.C. art. 2323(C) regarding how to address the comparative fault of two intentional actors, we can extrapolate from paragraphs A and B of La. C.C. art. 2323 that the fault of the intentional actors can be compared. In the instant case, the plaintiffs conduct was not merely negligent, but intentional, and therefore the provisions of Section C are inapplicable.

Furthermore, the trial court found that because the plaintiff suffered an injury partly as a result of the fault of an intentional tortfeasor, Section C prevented a reduction of plaintiffs damages by the percentage of plaintiffs fault attributable to his injury. By its own terms, Section C applies only when plaintiff is injured partly by his own negligence and partly by an intentional tortfeasor. The application of Section C furthers public policy by preventing an intentional tortfeasor from using the comparative fault regime to reduce his own obligation to compensate a less culpable victim. Even before the 1996 addition of Section C, in Veazey v. Elmwood Plantation Assoc., 93-2818 (La.11/30/94), 650 So.2d 712, 719, we recognized this public policy and held that a negligent tortfeasor, “who by definition acted unreasonably under the circumstances in breaching their duty to plaintiff, should not be allowed to benefit at the innocent plaintiffs expense by an allocation of fault to the intentional tortfeasor under comparative fault principles.” Therefore, the court of appeal correctly concluded that Section C applies only when plaintiffs contributory fault consists of negligence and does not apply where the plaintiffs fault is intentional.

Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine which party should prevail by a preponderance of the evidence. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 747; McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986). The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La.1980). In the present case, a legal error occurred when the trial court incorrectly applied Section C of Article 2323, thereby concluding that the plaintiffs intentional conduct could not effect the defendant’s liability and should not be included in the allocation of fault to all parties contributing to plaintiffs injuries. Thus, this Court must make an independent de novo review of the record, in order to render a judgment on the merits.

In a suit for damages resulting from an intentional tort, the claimant must carry the burden of proving all prima facie elements of the tort, including lack of consent to the invasive conduct. In turn, the defendant may seek to prove that he is without fault because his actions were privileged or justified, such as self-defense. Selfjdefense,16 unlike the aggressor doctrine, is a true defense in that it operates as a privilege to committing the intentional tort. In such a case, a plaintiffs conduct must have gone beyond mere provocation under the aggressor doctrine. Under Louisiana jurisprudence, in order to succeed on a claim of self-defense (not involving deadly force), there must be an actual or reasonably apparent threat to the claimant’s safety and the force employed cannot be excessive in degree or kind. Robertson, The Aggressor Doctrine, 1 S.U. L.Rev. at 90. The privilege of self-defense is based on the prevention of harm to the actor, not on the desire for retaliation or revenge, no matter how understandable that desire. Id. at 84. Furthermore, the prevailing view in almost every one of our sister states is:

Threats and insults may give color to an act of aggression, but in themselves, they do not ordinarily justify an apprehension of immediate harm, and the defendant is not privileged to vindicate his outraged personal feelings at the expense of the physical safety of another. Such provocation is considered only in mitigation of the damages.

Prosser and Keeton on The Law of Torts, § 19, at 126.

Absent a qualifying privilege, any provocative or aggressive conduct on the part of the plaintiff should be incorporated into the allocation of fault by the trier of fact. However, simply because the trier of fact must consider the fault of both plaintiff and defendant, does not mean that an aggressive plaintiff can avoid responsibility for his conduct. In fact, nothing prevents a trier of fact from determining that the plaintiffs conduct was of such a provocative nature as to render it the sole cause of his injury. Thus, we must consider Landry’s conduct to determine whether Bellanger was acting in self-defense, such that his conduct was justified or privileged and precludes recovery by Landry, or whether self-defense is unavailable as a complete defense, such that Landry and Bellanger’s relative fault must be compared. We find, after a de 117novo review of the record, that Bellanger was acting in self-defense and is therefore without fault in causing Landry’s injuries.

In the instant case, the lower court concluded that Bellanger committed a battery on the person of Landry. Clearly, by punching Landry, Bellanger perpetrated the harmful contact needed for an intentional tort and thus we find no manifest error in the trial court’s conclusion that Bellanger committed a battery when he punched Landry. However, the trial court also found that in striking Landry, Bellan-ger was not acting in self-defense. We disagree.

As indicated above, it is undisputed that Landry provoked this situation based on the harassment and insults he directed toward Bellanger. According to Bellan-ger, Landry physically poked him in the chest inside the bar while threatening that “if [Bellanger] wasn’t such a f_p_, he would take [him] outside [and] whip [his]_” Although Bellanger asked Landry to step outside the bar, Landry willingly did so, and Bellanger testified that he had no intention of fighting, he just wanted to get Landry out of the bar because he was causing such a commotion. After exiting the bar, the testimony is uncontroverted that Landry continued the physical confrontation he had started by aggressively bumping Bellanger with his chest while threatening to whip his _. Although Landry claims he was struck first, he admitted to being intoxicated and to having a very vague memory regarding the events of the evening. Further, Bell verified that Landry started the physical confrontation outside. In evaluating the record de novo, we find that Landry’s completely unnecessary and unrelenting verbal provocation became a physical confrontation when Landry first poked Bellanger inside the bar while threatening physical violence, and then physically and aggressively pushed Bellanger with his chest outside the bar while continuing to threaten physical violence.

11sBellanger responded with only one punch. His response was legally permissible self-defense, was justified under the circumstances, and did not involve excessive force, especially considering that Landry outweighed Bellanger by 90 pounds and considering that Landry was highly intoxicated, making his actions unpredictable. Because Landry followed his verbal provocations with physical confrontations, Bellanger was justified in striking a blow to defend himself. Under all these circumstances, we find that Bellanger acted in self-defense and was not at fault in causing Landry’s damages.

CONCLUSION

The aggressor doctrine has traditionally precluded tort recovery where a plaintiffs own actions, though not necessary physical, were sufficient to provoke a physical retaliation. However, we find that the aggressor doctrine is inconsistent with Louisiana’s pure comparative fault regime. Thus, pursuant to the rules imposed by Article 2323, comparative fault principles should be applied to such a plaintiffs actions, thereby eliminating the inequities inherent in the “all or nothing” recovery rules that prevailed prior to the adoption of comparative fault. A comparison of fault is required in spite of Section C of Article 2323, which only prohibits a reduction of the plaintiffs recovery of damages for an injury partly the result of the fault of an intentional tortfeasor and partly the result of his own negligence. Here, the plaintiffs fault amounted to an intentional tort, not mere negligence, and as such the prohibition contained in Article 2323(C) does not apply. However, self-defense is still a valid defense to a battery, and because Bellanger acted in self-defense in this case, he is, not liable for Landry’s injuries.

|iqDECREE

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.

bKIMBALL, J.,

Dissenting.

I agree with the majority’s finding that the aggressor doctrine is inconsistent with Louisiana’s comparative fault regime and no longer serves as a complete bar to plaintiffs recovery. In addition, I agree with the majority that the prohibition of Civil Code Article 2323, Section C is not applicable in situations where the plaintiffs conduct amounts to more than mere negligence. I dissent, however, because I believe the majority erred in finding that self-defense applies under the facts of this case. The majority decision, which relieves the defendant of all liability in this situation, ignores the reasonable factual findings of the trial court and produces the exact effect of applying the aggressor doctrine, whereby the plaintiffs fault in provoking an intentional tort would bar his recovery.

As an initial matter, the majority concludes that due to the legal error committed by the trial court, this court must make an independent de novo review of the record. Consequently, the majority disregards all of the trial court’s findings of fact including those critical in this case that were based on the trial court’s credibility determinations. The majority finds that a legal error occurred when the trial court incorrectly applied Section C of Article 2323, thereby concluding that the plaintiffs intentional conduct could not affect the defendant’s liability and should not be included in the allocation of fault to all parties contributing to plaintiff? injuries. However, in my view, this legal error does not merit a Incomplete disregard of every fact finding made by the trial court and especially those findings based on credibility determinations.

In conducting a de novo review of the record, the majority found that Landry’s “completely unnecessary and unrelenting verbal provocation became a physical confrontation when Landry first poked Bel-langer inside the bar while threatening physical violence, and then physically and aggressively pushed Bellanger with his chest outside the bar while continuing to threaten physical violence.” Accordingly, the majority adopts Bellanger’s version of events that is largely uncorroborated by evidence in the record and was obviously judged to be unworthy of belief by the trial court. The only non-party eyewitness, to provide testimony of the events in question, Lonnie Bell, stated that he did not at any time hear Landry make any threatening statements to Bellanger. Even though Bell saw Landry push Bel-langer with his chest after Bellanger and Landry walked outside, Bell was inside the bar when the physical altercation took place and only witnessed the events that occurred through a glass door. Bell was not in a position to hear Landry threaten Bellanger after the two had exited the bar. The only person to provide testimony that Landry had threatened Bellanger, was Bellanger. In making the above mentioned findings of fact, the majority improperly reassesses the credibility of the witnesses. It is my view, therefore, that the record supports the trial court’s factual findings based on reasonable evaluations of credibility and therefore, these findings should not be disturbed by this court.

As pointed out by the majority, the privilege of self-defense is based on the prevention of harm to the actor and requires there to be an actual or reasonably apparent threat to the defendant’s safety. David Robertson, The Aggressor Doctrine, 1 S.U. L.Rev. 82, 90 (1975). “Threats and insults may give color to an act of aggression, but in themselves, they do not ordinarily justify an apprehension |gof immediate harm, and the defendant is not privileged to vindicate his outraged feelings at the expense of the personal safety of another.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 19, at 126 (5th ed.1984). In the present matter, the record contains no evidence, other than Bel-langer’s self-interested testimony that the trial court rejected as incredible, that Landry posed a reasonably apparent threat to Bellanger’s safety. Bellanger and Landry had known each other over 20 years and had never had any prior confrontations. While Landry substantially outweighed Bellanger, the evidence indicates that Landry was extremely intoxicated. In fact, Landry was so intoxicated that Bellanger, who was 90 pounds smaller, was able to knock the much larger Landry to the ground with a single open-fisted punch. With Landry in such a state of intoxication, he would unlikely have posed a reasonable threat to Bellanger, a fact recognized by the trial court. Although Bel-langer testified that Landry had threatened to “whip his ass,” the record, which contains eyewitness testimony, has no evidence to corroborate this threat.

Moreover, Bellanger’s actions were not in self-defense because his use of force was excessive. The amount of force used in self-defense must be reasonable, i.e. not disproportionate to the harm from which the actor seeks to protect himself. Restatement (Second) of Torts § 63 cmt. j (1965). The term “excessive force,”

... can be readily understood when it is employed in connection with common defenses such as self-defense, defense of another, or defense of property. In such cases the assaulting defendant is privileged to use force as a means of attaining some socially desirable end— the protection of person . or property. The force must be limited to such as appears reasonably necessary to achieve the purpose for which the defense was given, and anything more is excessive and beyond the protection of the privilege.

Wex S. Malone, Private Law, Work of the Louisiana Appellate Courts for the 1964-65 Term, 26 La. L.Rev. 517, 518 (1966). Thus, it appears to me that Bellanger’s use of force exceeded the amount of force necessary to prevent Landry from chest bumping him.

In addition to substituting its judgment on credibility of the witnesses for that of the trial court, the majority’s opinion in my view creates bad policy. Even under principles of the aggressor doctrine, which the majority correctly concludes is inapplicable, the rule of law adopted long ago by this court provided that mere words spoken, however much they may be calculated to excite and irritate, do not justify a battery. Richardson v. Zuntz, 26 La.Ann. 313, 315 (1874). We previously held that to conclude otherwise would run contrary to our system of justice under law which commands the use of judicial process rather than force for the settling of disputes. Morneau v. American Oil Co., 272 So.2d 313, 316 ,(La.1973). Yet, in the present case, the majority concludes that other than verbal provocation, the mere act of someone bumping you with their chest is enough to justify a punch in the face. By finding that Bellanger’s response was legally permissible self-defense, the majority has essentially given their approval to the continuance of the archaic principles behind the aggressor doctrine.

| ¡^Notwithstanding the ability to decide the case de novo, in a case where the credibility of the defendant and his friend was critical due to the incapacity of the plaintiff, and the trial court obviously did not believe the defendant’s version of the events, I would adhere to the trial court’s factual findings that were reasonably based on the record. Accordingly, I would find that the defendant did not act in self-defense and should not completely escape liability for Landry’s injuries. In any action for damages involving an injury, death, or loss, comparative fault principles should be applied under La. C.C. Article 2323. A proper application of Article 2323 to the facts of this case involves a comparison of fault between plaintiff and defendant pursuant to Section A. The record supports a conclusion that the plaintiffs culpable conduct in causing the resulting injury makes Section C inapplicable to prohibit reduction of the plaintiffs damages in the present case. In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Thus, I would apportion fault according to the comparative degree of contribution to the plaintiffs injury.

      . "The Court cited no cases from this well-settled jurisprudence, and there don’t appear to be any.” David W. Robertson, The Aggressor Doctrine, 1 S.U. L.Rev. 82, 83 n. 5 (1975).

      . Professor Robertson creates a table of pre-Momeau jurisprudence that compares behavior held sufficiently provocative to escape battery liability with other behavior which did not justify or excuse the use of force .... there is no pattern. Robertson, "The Aggressor Doctrine” at 97; Morneau v. American Oil Co., 272 So.2d 313 (La.1973); "The jurispra-dence of Louisiana is by no means clear or settled on this point. Some judges have preferred to apply the aggressor doctrine strictly and have refused to grant any damages to the plaintiff if he were the original aggressor. Other cases have adopted a more humanitarian attitude and have attempted to give recovery by refusing to admit that the acts of the plaintiff amounted to aggression.” Ferdinand F. Stone, Tort Doctrine in Louisiana: The Aggressor Doctrine, 21 Tulane L.Rev. 362, 367 (1947).

      . See also 2 Planiol, Civil Law Treatise no. 869c, 899 (La.St.L.Inst.Transl.1959) quoted in Note, 34 La. L.Rev. 137, n. 16 (1973) ("Moreover it often happens that the fault of the victim is not the sole cause of the damage, and that the fault is shared. In that case the victim cannot be denied the right to sue under the pretext that he was at fault. The responsibility is apportioned according to the gravity of the faults committed respectfully by the author and by the victim and partial recovery takes place.”)

      . Interestingly, Professor Malone also notes: The aggressor doctrine, on the other hand, is not geared to the attainment of any recognizable social objective. It is a mere recognition of hot temper aroused by provocation — a toleration by government of the attitude of the frontiersman. When the notion of excessive force is incorporated into this doctrine, the result can be only to invite the court's personal estimate as to how vigorously a defendant should be permitted to reply in violence to a given insult. In a close case this must be difficult business for a conscientious judge, although it is obvious that some such modifier must be available to the courts if the aggressor doctrine is to be kept within manageable bounds. This writer would be happy if the entire aggressor doctrine were shelved in some museum of archaic legalisms. Gross insults and violations of privacy are now actionable torts everywhere, and the aggrieved person should seek his redress in the courtroom rather than in gladiatorial combat.
      Wex S. Malone, Private Law, Work of the Louisiana Appellate Courts for the 1964-65 Term, 26 La. L.Rev. 517, 518 (1966)


source: Caselaw Access Project

author:
| JOHNSON, Justice.
     h CALOGERO, Chief Justice, L KIMBALL, Justice, LKNOLL, Justice, 11VICTORY, J.,

license: Public Domain

text:
    Eileen GREGOR, et al. v. ARGENOT GREAT CENTRAL INSURANCE COMPANY, et al.
    No. 2002-C-1138.
    Supreme Court of Louisiana.
    May 20, 2003.
    Rehearing Denied Sept. 5, 2008.

      Craig R. Nelson, Ward & Nelson, New Orleans, Counsel for Applicant.
    Charles S. LaBarre, Leonard J. Cline, Jr., Gauthier, Downing, LaBarre, Beiser & Dean, Metairie, Counsel for Respondent.
   | JOHNSON, Justice.

This matter arises from a suit filed by plaintiffs against several defendants, including the Department of Health and Hospitals (DHH) for the wrongful death of Daniel Gregor, who died after eating raw oysters at a Louisiana restaurant. After trial on the merits, the trial court found DHH 75% liable and the restaurant 25% liable. The court of appeal affirmed. We granted DHH’s writ application to determine the correctness of the lower courts’ decisions. Gregor v. Argenot Great Central Insurance Co., et al., 02-1138 (La.6/21/02), 819 So.2d 336. After review of the record, we affirm in part, reverse in part, and reapportion the assignment of fault among the parties.

FACTS AND PROCEDURAL HISTORY

In 1990, Dr. Joel Nitzkin, the state health officer at the time, expressed concern about the growing problem of vibrio vulnificus cases in Louisiana. Vibrio | ^vulnificus, a naturally occurring salt water organism not dangerous to most peo-pie, can be dangerous to those persons with chronic health problems, including gastric disorders, liver diseases, and immune disorders. Proper cooking will kill the bacteria.

In August 1982, DHH issued to physicians and hospitals a “Monthly Morbidity Report” dealing with vibrio vulnificus infections. The report stated, “[bjecause of the severity and high case fatality rate for the septicemia cases, physicians should warn patients with chronic underlying liver and kidney diseases and other conditions causing, or capable of causing, impaired immune responses, to avoid eating raw oyster.” Despite DHH’s warnings to physicians and communication with the seafood industry, the number of vibrio vul-nifcus cases continued to increase. Dr. Nitzkin’s concern regarding the bacteria ultimately lead to the amendment of the sanitary code to require restaurants serving raw oysters to provide warnings about vibrio vulnificus.

In August 1990, DHH published a notice of intent in the Louisiana Register, indicating its plan to implement such an amendment. Despite opposition from the Louisiana Restaurant Association (LRA), DHH published the rule requiring mandatory oyster warnings in the Louisiana Register in February 1991. The rule amended § 23:006-4 of the sanitary code to require restaurants that sell or serve raw oysters to provide clearly visible warnings about vibrio vulnificus at the point of sale.

§ 23:006J provides, in pertinent part:

All establishments that sell or serve raw oysters must display signs, menu notices, table tents, or other clearly visible messages at point of sale with the following wording:

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.

On July 25, 1996, Daniel Gregor was diagnosed with Hepatitas C, a liver disease, by the NABI Biomedical Center in Fort Myers, Florida. By stipulation of the parties, he was notified of his positive test result by a letter dated August 5, 1996, and was counseled personally about Hepatitis-C at the NABI Biomedical Center on August 9, 1996, 5 days before his trip to New Orleans. On August 14,1996, Gregor came to New Orleans to visit his fiancee’, Elizabeth Lyle. During this visit, Gregor, Ms. Lyle, and others visited Pascal’s Ma-nale, a local seafood restaurant and oyster bar for lunch. Pascal’s Manale decided to post the required oyster warning above the oyster bar at its establishment, where approximately 75% of its raw oysters were sold and consumed. The other 25% of its raw oysters were ordered and consumed in the restaurant’s dining rooms. Gregor and his party dined in the restaurant’s Opera dining room where Gregor ordered and ate the half dozen raw oysters. He became ill soon thereafter and was admitted to the St. Tammany Parish Hospital on the next day, August 16,1996.

On August 19, 1996, Gregor lapsed into a coma and subsequently died on August 25, 1996. The parties stipulated that the cause of Gregor’s death was vibrio vulnifi-cus sepsis and Hepatitis-C, with a secondary diagnosis of acute renal and liver failure. The parties further stipulated that Gregor contracted vibrio vulnificus sepsis through the consumption of the raw oysters on August 5, 1996 at Pascal’s Manale which contained the bacteria. However, it is noteworthy that Dr. Joel Nitzkin testified that the incubation period for vibrio vulnificus is a range of 12 to 36 hours with most persons who get sick consuming the product 18-24 hours prior to the onset of illness. Dr. Louise McFarland (Chief Epidemiologist for the Office |4of Public Health) agreed that with oysters consumed between 12 noon and 2:00 p.m., and the onset of symptoms at 4:30 p.m. on that same day, this case was unusual because of the very short incubation period for bacteria to multiply enough to cause a serious infection. The parties also stipulated that the raw oysters consumed by Gregor were purchased by Pascal’s Manale from Bez Oysters and Seafood, Inc., who purchased the raw oysters from Eddie’s Quality Oysters, Inc. Despite this stipulation by the parties, an investigation by the Office of Public Health, Seafood Sanitation Unit confirmed that the oysters served to Gre-gor were harvested from private leases in California Bay, and Louisiana Bez Oysters and Seafood, Inc. purchased the oysters from Miro Mjehovic rather than Eddie’s Quality Oysters, Inc.

Suit was filed suit on March 18, 1997 on behalf of Eileen and Francis Gregor, decedent’s parents, and Elizabeth Lyle, the decedent’s fiancee against Pascal’s Ma-nale, its insurer, Argenot Great Central Ins. Co., Bez Oyster and Seafood, Inc., Eddie’s Quality Oysters, Inc., DHH, and the Louisiana Department of Wildlife and Fisheries. Prior to trial, plaintiff settled with Pascal’s Manale and Argenot, and dismissed all other defendants, leaving DHH as the only remaining defendant.

After a judge trial, the trial court found that DHH negligently enforced the Sanitary Code and that such enforcement did not involve a discretionary function entitling DHH to immunity under La. R.S. 9:2798.1. The trial court apportioned 75% fault to DHH. The trial court, finding that Pascal’s Manale to a large extent could reasonably rely on the sanitarian’s approval of the signage, apportioned | .¡Pascal's Manale the remaining 25% fault for its negligent violation of the Sanitary Code. The court found no fault on the part of decedent, Gregor, after finding no evidence that he had ever been warned of the dangers of eating raw oysters during the consultation at NABI Biomedical Center on August 9, 1996. Likewise, the court found no fault on the part of the oyster wholesaler. The trial court rendered judgment in favor of plaintiff and against DHH in the sum of $450,000.00.

The court of appeal affirmed, agreeing with the trial court’s conclusion that La. R.S. 9:2798.1 did not shield DHH from liability. The court found that the Sanitary Code’s directive that establishments selling raw oysters “must” post this warning at the “point of sale” to be mandatory language, not allowing for choice or discretion. It found that because this provision requires a specific course of action, the discretionary function exception does not apply. The court further found that although the Code does not define the term “point of sale,” such an omission does not require a finding that the discretionary function immunity applies.

The court of appeal also affirmed the trial court’s apportionment of fault. The court reasoned that “[regarding the necessity and benefits of health warnings, DHH enjoys a far superior posture than Pascal’s Manale. DHH is in the business of protecting the health of the citizenry of Louisiana, whereas Pascal’s Manale is in the business of selling oysters.”

From this ruling, DHH appeals.

DISCUSSION

Liability of DHH and applicability of La. R.S. 9:2798.1

We must first determine whether the court of appeal was correct in holding that the discretionary function immunity of La. R.S. 9:2798.1 is inapplicable, such that DHH can be exposed to liability in this case. Louisiana Revised Statute 9:2798.1(B) provides:

| ^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. [Emphasis added.]

Section D of La. R.S. 9:2798.1 explains that its purpose “is not to reestablish 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.”

The starting point for the interpretation of any statute is the language of the law itself. Ginn v. Woman’s Hospital Foundation, Inc., 02-1913, p. 9 (La.4/9/03), 842 So.2d 338, 344; Rougeau v. Hyundai Motor America, 01-1182, p. 5 (La.1/15/02), 805 So.2d 147, 151. Special rules for interpreting a statute (such as La. R.S. 9:2798.1) have been enacted by the legislative branch and are found in La. R.S. 1:1 et seq. Louisiana Revised Statute 1:3 provides, in pertinent part, that “[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the language” and the “word ‘shall’ is mandatory.” (Emphasis added.) Louisiana Revised Statute 1:4 provided that “[w]hen the wording of a Section [of a statute] is clear and free of ambiguity, |7the letter of it shall not be disregarded under the pretext of pursuing its spirit.” The legislative branch also has provided general rules for interpreting laws in La. C.C. art. 9 et seq. See, in particular, La. C.C. arts. 9 and 11. We are bound by the language of a relevant law. Allen v. State, through the Ernest N. Morial-New Orleans Exhibition Hall Authority, 02-1072, p. 12 (La.4/9/03), 842 So.2d 373, 381.

The Louisiana Constitution of 1974 art. Ill, § 15(A) provides, in pertinent part, that “[e]very bill shall contain a brief title indicative of its object.” (Emphasis added.) Thus, the title of a law may be examined to determine its purpose. Boutte v. Jefferson Parish Hosp. Sev. Dist. No. 1, 99-2402, p. 5 (La.4/11/00), 759 So.2d 45, 49. The title of La. R.S. 9:2798.1 is “Policymaking or discretionary acts or omissions of public entities or their officers or employees.” After reviewing the title and substance of La. R.S. 9:2798.1, we must conclude that for purposes of this ease its object is to provide immunity from liability for offenses and quasi offenses of public entities, as defined therein, when the acts or omissions of the public entities are policymaking or discretionary acts or omissions.

Dictionaries are a valuable source for determining the “common and approved usage” of words. Louisiana Horsemen’s Benevolent and Protective Assoc. 1993, Inc. v. Fair Grounds Corp., 02-1928, p. 5 (La.4/9/03), 845 So.2d 1039, 1042.

Louisiana R.S. 1:9 specifically provides that “[u]nless it is otherwise clearly indicated by the context, whenever the term ‘or’ is used in the Revised Statutes, it is used in the disjunctive and does not mean ‘and/or’.” Cf, La. C.C.P. art. | «5056(2); La.C.Cr.P. art. 6(2); La. Ch.C. art. 108(2). In Black’s Law DiotionaRY 987 (5th ed.1979), the word “or” is defined as a “disjunctive particle used to express an alternative or to give a choice of one among two or more things” and indicates “an alternative between different or unlike things.” In Mirriam-Webster’s Collegiate DICTIONARY 817 (10th ed.1999), the word “or” is defined as “a function word to indicate an alternative.” Thus, the word “or” as used in the operative language of La. R.S. 9:2798.1 clearly and unambiguously demonstrates that the words “policy-making” and “discretionary” have different meanings. This is confirmed by their “common and approved” definitions.

Blaok’s at 1041 defines “public policy” as follows:

That principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good. The principles under which the freedom of contract or private dealings is restricted by law for the good of the community. The term “policy,” as applied to a statute, regulation, rule of law, course of action, or the like, refers to its probable effect, tendency, or object, considered with reference to the social or political well-being of the state.

In Mirriam-Webster’s at 901 the word “policy” is defined as “a definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future decisions.” Mirriam-Webster’s at 708 defines “making” as “the act or process of forming, causing, doing, or coming into being.” Thus, “policymaking” in the public sector means the planning of a course of action for the social or political well-being of the state.

Black’s at 419 defines the word “discretion” as follows:

When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. As applied to public officers means power to act in an official capacity in a manner which appears to be just and proper under the circumstances.

J_gln Mirriam-Webster’s at 332 the noun “discretion” is defined as “power of free decision or latitude of choice within certain legal bounds.” The word “discretionary” is the adjective form of the noun “discretion.”

When we interpret La. R.S. 9:2798.1, we are bound to give effect to all parts of it and cannot give it an interpretation that makes any part of it superfluous or meaningless, if that result can be avoided. Palmer v. Louisiana State Board of Elementary and Secondary Education, 02-2043, p. 5 (La.4/9/03), 842 So.2d 363, 367; Hollingsworth v. City of Minden, 01-2668 (La.6/21/02), 828 So.2d 514, 517.

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 § 23:006-4. DHH argues that the actual words of the regulation offer a variety of methods for compliance, which requires the use of judgment or choice—ie. “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). DHH also points to the testimony of Dr. Nitzkin that “different approaches would work well in different food service establishments because of the layout of the establishment ... what would work in one restaurant might not work in another.” Thus, DHH maintains that its sanitarians inspecting restaurants serving shellfish necessarily exercise some degree of discretion in determining whether the restaurant is in compliance based on the unique physical layout and service arrangements of each restaurant. DHH argues that the sanitarian who inspected Pascal’s Manale exercised such discretion in determining that the warning posted over the oyster bar met the required posting mandated by the regulation.

|inDHH also maintains that the underlying rationale for the regulation’s choices— to provide the public with a uniform warning in a variety of settings — indicates that discretion by the sanitarian should be used. Therefore, DHH argues that the lower courts erred in failing to find that it enjoyed discretionary immunity under La. R.S. 9:2798.1 to the sanitarian’s decision that the warning over the oyster bar at Pascal’s Manale satisfied the requirements of the regulation mandating a warning display at the point of sale.

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. However, no policymaking act or discretionary act is involved in determining where the warning must be given; it must be given AT THE POINT OF SALE.

In the instant case, the point of sale was at the table where the raw oysters were ordered for the decedent. The raw oysters were offered for sale in the menu at a certain price. This offer was accepted and the sale was consummated when the oysters were ordered. La. C.C. arts 2439 and 2456. This transaction did not take place in the room where the oyster bar and warning sign were located. There were no signs, menu notices, table tents, or other clearly visible messages conveying the warning in the room, or on the table, where the order was made. This violated Section 23:006-4.

In their briefs the relator and respondent applied La. R.S. 9:2798.1 as it was interpreted by the lead opinion on rehearing in Fowler v. Roberts, 556 So.2d 1 (La.1990), and its progeny. See, e.g., Jackson v. State, Dept. Of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Archon v. Union Pacific Railroad, 94-2728 (La.6/30/95), 657 So.2d 987; Rick v. State, DOTD, 93-1776 (La.1/14/94), 630 So.2d 1271. The essence of this jurisprudence is summarized in Jackson, 00-2882 at 8, 785 So.2d at 809, as follows:

The immunity from liability for discretionary acts is essentially the same as the immunity conferred on the federal government by the exception in the Federal Tort Claims Act (FTCA). Fowler v. Roberts, 556 So.2d 1 (La.1989) (on rehearing). In Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the United States Supreme Court developed the following two-step analysis to examine immunity under FTCA: (1) whether a statute, regulation, or policy specifically proscribes a course of action; and (2) whether the challenged action is grounded in political, economic or social policy. This Court adopted the Berkovitz inquiry to analyze the applicability of La.Rev. Stat. 9:2798.1, describing it as follows:
Discretion exists only when a policy judgment has been made. Judicial interference in executive actions involving public policy is restrained by the exception. Thus, the exception protects the government from liability only at the policy making or ministerial level, not at the operational level.

Fowler, 556 So.2d at 15.

Initially, a review of the lead opinion on rehearing in the Fowler case shows that the starting point for interpreting La. R.S. 9:2798.1 therein was not the statute itself. Instead, the opinion starts with the premise that “[t]he discretionary function exception to state governmental liability established by the statute is essentially the same as the exception in the Federal Tort Claims Act.” Fowler, 556 So.2d at 15. This premise is fatally flawed. The referenced provision of the FTCA is 28 U.S.C.A. 2680(a) that provides as follows:

The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved |12be abused. [Emphasis added.]

A review of the Louisiana statute and the federal statute shows that their language is not essentially the same. The Louisiana statute applies to “policymaking or discretionary acts when such acts are within the course and scope of ... lawful powers and duties.” The federal statute is limited to “the exercise or performance or the failure to exercise or perform a discretionary function or duty.” Unlike the Louisiana statute, the federal statute does not provide that a “policymaking act” is separate and distinct from a “discretionary function or duty.”

The Fowler opinion did not utilize the rules for interpreting Louisiana statutes that are found in the Revised Statutes and the Civil Code. Instead, it went to federal jurisprudence to interpret a dissimilar Louisiana statute to reach the conclusion that the immunity provided for in the Louisiana statute only exists when there is a discretionary act or function “grounded in social, economic or political policy.” Fowler, 556 So.2d at 15. This quoted language is not found in the Louisiana statute. As indicated in the above cited quote for the Jackson case, the immunity has been further limited by the subsequent jurisprudence so that it now only applies “at the policy making or ministerial level, not at the operational level.” A review of the Louisiana statute shows that it does not make a distinction between operational acts and ministerial or policymaking acts. Finally, the Fowler interpretation of La. R.S. 9:2798.1 improperly renders the word “or” meaningless and is an impermissible repeal of part of a substantive immunity right. Louisiana R.S. 9:2789.1 is clear and unambiguous. We are bound to follow it as written and give effect to all of its provisions.

For the foregoing reasons, the analysis given to La. R.S. 9:2798.1 by Fowler and its progeny is faulty.

DHH had a mandatory duty to properly enforce the sanitary code. La. R.S. | ia4Q:4 A. 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. The result of this negligence is clearly seen in the actions of Mr. Robinson when he inspected Pascal’s Ma-nale. After observing that the restaurant had a raw oyster bar in the front of the restaurant displaying the required warning sign, Mr. Robinson testified that he did not inquire as to where else, other than the oyster bar, raw oysters might be sold to customers in Pascal’s Manale. Mr. Robinson testified that he believed that the one posted sign over the oyster bar met the requirement of § 23:006-4 because he believed that the warnings needed to be posted at each “establishment.”

Disturbingly, the evidence reveals that 20-25% of the raw oysters sold at Manale were sold and served in the restaurant’s dining area. Therefore, under Mr. Robinson’s interpretation of the statute, 20-25% of consumers at Manale’s would not receive the benefit of the required warning because none was included in menus, table tents or signs in the dining rooms. We find that this fallacious interpretation is the result of DHH’s negligent failure to properly train its sanitarians for enforcement of § 23:006-4. DHH is now attempting to escape liability for its failure to train its sanitarians by claiming that the untrained sanitarians are themselves exercising policymaking discretion. We reject this argument and conclude that Mr. Robinson’s decision in this case, that the warning over the oyster bar was in compliance with § 23:006-4, was not a decision grounded in social, economic, or political policy. It was operational negligence in enforcing the sanitary code. When the government acts negligently for reasons unrelated to public policy consideration, it is liable to those it injures. Archon, 657 So.2d at 996.

Accordingly, we hold that DHH is not entitled to immunity under La. R.S. |u9:2798.1. The factual ruling of the trial court, affirmed by the court of appeal, that DHH negligently failed to enforce its own regulation is not clearly wrong (manifestly erroneous). Therefore, we affirm these portions of the court of appeal’s decision.

Apportionment of Fault

Our next inquiry is whether the lower courts erred in their apportionment of fault. The allocation of fault between comparatively negligent parties is a finding of fact. Sims v. State Farm Automobile Ins. Co., 98-1613 (La.3/2/99), 731 So.2d 197, 199. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 S.2d 670, 680. Accordingly, an appellate court may only reallocate fault if it finds the trial court was clearly wrong or manifestly erroneous in its allocation of fault, even if the reviewing court would have decided the case differently had it been the original trier of fact. Hebert v. Brown Bottling Group, Inc., 98-0924 (La.10/30/98), 719 So.2d 1043, 1046.

DHH argues that the lower courts erred in holding it to a higher standard of expertise than Pascal’s Manale, claiming that Pascal’s Manale has superior knowledge as to where its customers order raw oysters. We agree. As stated above, DHH was negligent in its enforcement of the Sanitary Code regulation. The record reveals that a DHH sanitarian, untrained as to terminology of § 23:006-4, inspected Pascal’s Manale four times prior to Gre-gor’s death and never cited the restaurant for noncompliance with the regulation. DHH should, therefore, bear some portion of liability for the wrongful death of Gre-gor.

However, we find that the court of appeal’s allocation of only 25% fault to Pascal’s Manale is manifestly erroneous.

In Simeon, supra, after rejecting the theory of strict liability on the part of liBthe restaurant and oyster supplier, we analogized the situation to a product liability case for failure to warn. There, we noted that “in the context of product liability eases, we have held that in performing this duty a manufacturer is held to the knowledge and skill of an expert. It must keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby.” Simeon, 618 So.2d at 852. We went on to state, “[w]e find it unclear from the record whether a reasonable retailer or wholesaler of oysters on September 6, 1986 would have known or should have known, when held to a standard of an expert, of the potential danger to certain people from eating raw oysters.” Id. We therefore, remanded the case to the trial court to take further evidence on that issue.

In the instant case, DHH argues that by 1996, ten years after the cause of action arose in Simeon, retailers and wholesalers of raw oysters were well aware of the potential danger to persons with chronic ailments as well as the general public. The state agencies had provided free supplies of signs and brochures to the restaurants, and information to the general public through mass communication. By then, the regulation had been promulgated for five (5) years, with DHH seeking voluntary compliance from 1991 until August 1993, and then instituting full enforcement of the regulation thereafter.

The restaurants were well aware of the required oyster warning regulation and, in fact, expressed opposition to such warnings up until the time of enforcement. In 1990, the Louisiana Restaurant Association wrote to the Director of Public Health expressing its concern that mandatory signs would result in a drop in oyster sales. According to the LRA, its industry is the single largest retail employer in the state of Louisiana, and restaurant business (at that time) resulted in a $3.2 billion impact on the state’s economy. The LRA proposed to meet with DHH officials to discuss alternatives to mandatory signage. In response, Dr. |1fiNitzkin delayed promulgation of the final rule, scheduled public hearings and invited written comments. Despite strong opposition from the restaurant industry, the enforcement of the mandatory warnings began in 1993.

Certainly, by 1996, Pascal’s Manale was fully aware of the warning requirement. It had the benefit of various publications and brochures made available by DHH to educate businesses and the public on the danger of eating raw shellfish. More importantly, Pascal’s Manale certainly knew that it served approximately 25% of its raw oysters in its dining rooms. Despite this superior knowledge, it chose to employ only the sign posted in the oyster bar, and did not provide the mandatory warning to customers who ordered raw oysters from menus at tables in the dining rooms where 25% of the raw oysters were ordered and consumed.

There was testimony presented at trial that even the oyster warning sign posted above the oyster bar at Pascal’s Manale was inadequate. At trial, DHH introduced excerpts from the deposition of Dr. Edward Karnes, a human factors expert in the field of warnings, who testified that the signage in Pascal’s Manale at the oyster bar was inadequate because of its placement and because of the “visual clutter” that surrounded it. Dr. Karnes testified that there are approximately 30 placards on the one wall where the oyster warning sign is located. He testified further that the placement of the oyster warning was “the best example of camouflage for that notice that probably could be possible, other than turning it faced against the wall so it can’t be read at all.” He also stated, “you have an abundance of visual clutter in the area where the sign is located. If someone was going to attempt to purposefully make this sign inconspicuous, the location chosen for the sign ... is a perfect example of achievement of that.”

We find it clear from this testimony that not only did Pascal’s Manale fail to |17give any warning to patrons who ordered raw oysters in its two dining rooms, it also failed to give adequate warning to its oyster bar patrons because of the clutter surrounding the signage. The court of appeal’s decision failed to recognize Pascal’s Manale’s superior role in this failure to warn.

Under these circumstances, we find that Pascal’s Manale is liable for the wrongful death of Gregor to the extent of no less than 50%. Accordingly, we reverse the decision of the court of appeal in so far as it allocates only 25% fault to Pascal’s Ma-nale. We hereby reapportion the percentage of fault: 50% to Pascal’s Manale and 50% to DHH.

DECREE

The decision of the court of appeal that DHH is not entitled to discretionary immunity under La. R.S. 9:2798.1 is hereby affirmed. The court of appeal’s allocation of fault is hereby reversed, and allocation of fault is reapportioned: 50% to Pascal’s Manale and 50% to DHH.

Affirmed in part; Reversed in part.

CALOGERO, C.J., concurs and assigns reasons.

KIMBALL, J., concurs in part and dissents in part with reasons.

KNOLL and VICTORY, JJ., dissent and assign reasons.

h CALOGERO, Chief Justice,

concurs and assigns reasons.

I respectfully concur in the majority’s finding that the Department of Health and Hospitals (DHH) is not entitled to discretionary or policymaking immunity for its acts or omissions under the provisions of La.Rev.Stat. 9:2798.1(B). I also concur in the majority’s apparent determination that the allocation of fault under the circumstances of this case was clearly wrong and that the fault of the restaurant may be raised only to the lowest level the trier of fact could have reasonably assigned, or 50% in this case. See Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607.

Notwithstanding my concurrence in these findings, I disagree with the plurality opinion’s decision to review the reasoning of Fowler v. Roberts, 556 So.2d 1, 13 (La.1989) (on rehearing), within the context of this case. Whether or not this court should choose at some point to revisit Fowler v. Roberts and its discussion of La.Rev.Stat. 9:2798.1(B), I do not see any compelling reason for the court to do so in this case, where neither party has challenged the analytical framework set forth in Fowler v. Roberts regarding La.Rev. Stat. 9:2798.1(B), and where the plurality’s criticism of the Fowler v. Roberts decision has no effect whatsoever either upon the legal analysis of the case before us or upon its outcome.

In my view, the plurality perhaps misunderstands the issues presented and the positions taken up in Fowler v. Roberts. There, an applicant for a Louisiana driver’s [ ^license suffered from a severe seizure disorder. Initially refused a license, he ultimately obtained one after submitting a detailed medical report saying he had been seizure-free for over a year. This license, however, had no restrictions other than the condition that the driver be required to use an automatic transmission. He later applied for a renewal of the license, and such request was granted without the requirement of submitting another medical report. While La.Rev.Stat. 32:403.2 requires every physically handicapped person to submit a detañed medical report upon initial application for a driver’s license, the statute also provides that the Department of Public Safety (DPS) “may waive the furnishing of said report by any person applying for a renewal license under the provisions of this Chapter.” In accord with that statute, the DPS elected to waive the submission of a medical report in every renewal application filed by a physically handicapped driver, rather than establish any guidelines regulating when such medical reports may reasonably be waived. The defendant driver, however, began having frequent seizures, despite medication, and eventually caused an accident resulting in the deaths of two other people. The survivors filed suit against the DPS alleging the agency had breached the duty it owed to protect the public.

On original hearing, Justice Lemmon, writing for a majority that included Chief Justice Dixon and Justices Watson and Calogero, performed a duty-risk analysis as set forth in Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970), and noted the five separate elements of a negligence case: duty, breach of duty, cause-in-fact, legal cause or scope of protection, and damages. The majority concluded the DPS has the duty, “when it knows that an applicant for a driver’s license has a seizure disorder that may be dangerous either at present or in the future, to adopt reasonable procedures designed to ensure safety on the highways not only in the initial issuance | 3of a license, but also in the continuation of the authority to drive.” 556 So.2d at 8. The majority further reasoned that, given the purpose of this duty, the risk that a handicapped driver might harm other drivers while undergoing the effects of his condition was clearly within the scope of protection contemplated by imposition of this duty. Justices Cole and Marcus dissented, being of the opinion that the DPS had no duty either to monitor a handicapped driver, who was licensed after a doctor attested he was medically capable of operating a vehicle safely, or to adopt and follow such monitoring procedures.

Justice Dennis also dissented. However, he pointed out that the majority had omitted any discussion of whether the DPS was entitled to immunity from liability under La.Rev.Stat. 9:2798.1(B). Justice Dennis noted that, although sovereign immunity has been abolished, the state and its agencies are “protected from liability for the decisions of executive-branch employees and officers when those decisions involve the kind of basic policy issues typically involved in legislation.” 556 So.2d at 10. He went on to say that this immunity “is essentially the same immunity known in federal law as the immunity for governmental conduct involving ‘discretionary functions or duties.’ ” Id., citing inter alia 28 U.S.C. § 2680(a) (Federal Tort Claims Act). Justice Dennis, after quoting at length a treatise on the federal immunity statute, applied federal precepts to the Fowler facts and concluded that the DPS could invoke governmental or discretionary immunity in that case because the agency’s only fault consisted of its negligence in making law or governmental policy. 556 So.2d at 12. He reasoned that the DPS is “being held responsible for negligent policy making, rather than for any act or omission by its officers or employees in carrying out law or policy previously established by the Legislature or .the DPS.” Id.

The court granted the DPS’s application for rehearing, and in response to |4Justice Dennis’s admonition addressed the applicability of La.Rev.Stat. 9:2798.1(B) to the Fowler facts. On rehearing, Justice Watson, joined by Chief Justice Dixon and Justice Lemmon (concurring), echoed Justice Dennis’s earlier observation that the Louisiana immunity statute protecting the discretionary acts of DPS officers or employees is “essentially the same as the exception in the Federal Tort Claims Act.” 556 So.2d at 15. Justice Watson noted, citing federal jurisprudence, that “[discretion exists only when a policy judgment has been made,” and that “the exception protects the government from liability only at the policy making or ministerial level, not at the operational level.” Id. Justice Watson then went on to adopt the two-step test articulated in the federal jurisprudence, namely Berkovitz v. United States, 486 U.S. 581, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), which the plurality today criticizes. Justice Watson also noted two principles: (1) that the discretionary function exception does not bar a negligence claim if the official had no room to exercise a policy judgment, and (2) that a government which acts negligently for reasons unrelated to public policy considerations is liable to those it injures. 556 So.2d at 15-16. Justice Watson then concluded the DPS there was not entitled to immunity protection, because implicit in La.Rev.Stat. 32:403.2 was the requirement that the agency formulate policy and make rules to govern license renewals by handicapped persons, and not either waiving all renewal medical reports or making arbitrary decisions on an ad hoc basis. 556 So.2d at 16. He further reasoned, incorrectly perhaps, that when there are no standards to be applied by the agency employee, “and renewals are granted to all applicants, the operational decision to issue a renewal is not a discretionary act” entitled to immunity under La.Rev.Stat. 9:2798.1(B). Id. The rehearing decision then reinstated the original opinion as supplemented thereby.

Justice Dennis concurred in the result on rehearing, while adhering to his | ¿reasons originally expressed in dissent, because he believed the DPS had violated previously-established guidelines with regard to the submission and acceptance of the initial medical report when the physically handicapped driver first applied for a license. 556 So.2d at 17-18. And three justices, Cole, Marcus, and Calogero, dissented from the plurality decision on rehearing, being of the belief that the DPS was not negligently operating under an implied directive from the legislature, but rather that the DPS had made a discretionary, policymaking act entitled to immunity when it elected to waive all medical reports for all renewals by physically disabled persons, as it was at liberty to do under La.Rev.Stat. 32:403.2.

While the plurality today faults the Fowler decision on rehearing because it equated La.Rev.Stat. 9:2798.1(B) to the federal tort claim exception, 28 U.S.C. § 2680(a), and adopted federal jurisprudence applying the latter, I perceived no disagreement among the Fowler court’s justices in that regard. The justices in Fowler disagreed, first, on whether the DPS had a duty to adopt monitoring procedures and to follow them and, second, on whether the legislature had implicitly directed the DPS to adopt such procedures, such that the DPS’s failure to do so was a non-discretionary, operational-level decision not entitled to immunity under La. Rev.Stat. 9:2798.1(B). Although I dissented from the ultimate conclusion reached in Fowler v. Roberts on rehearing, none of the seven justices expressed opposition to comparing the Louisiana immunity provision to the federal tort claim exception or to adopting the two-step Berkovitz test.

In addition, the plurality opinion’s own reasoning in the case before us today, in which I concur, belies any need for revisiting Fowler v. Roberts. The plurality recognizes that the DHH has made the decision to promulgate the warning requirement in the Sanitary Code, that the provision under review, § 23:006-4, | ^required the establishment to place a warning of appropriate type “at point of sale,” and that La.Rev.Stat. 40:4(A) placed a duty upon the DHH to enforce that provision of the Sanitary Code. The Sanitary Code requirement allowed no discretion in where the warning was to be placed, the plurality reasons, such that the DHH negligently failed to enforce its own non-discretionary directive in not ensuring that an adequate warning was placed in the dining room or at the table, as well as at the oyster bar. Ante, p. 966. This finding — that the sanitarian had no discretion or choice in where to ensure placement of the warning — obviates the need for a discussion as to whether the Fowler rehearing decision properly distinguished between “discretionary” acts or omissions and “policy making” acts or omissions within the meaning of La.Rev.Stat. 9:2798.1(B). Therefore, by its own reasoning, the plurality’s discussion of Fowler does not affect the legal analysis in this case and has no ultimate effect on the outcome of this case. Consequently, I fail to see a basis for mounting such an attempt to undermine Fowler in the context of this case.

Finally, it should be noted that the analytical framework set forth in Fowler v. Roberts on rehearing has been consistently cited with approval by this court, most recently in Jackson v. State, Dept. of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803 (Traylor, J.), and Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606 (Victory, J.). In sum, while I concur in the holdings of the majority today, I disagree with the plurality’s decision to reach out and review Fowler v. Roberts, and with its conclusion that the analytical framework established in Fowler v. Roberts is faulty.

L KIMBALL, Justice,

concurring in part and dissenting in part.

While I do not necessarily agree with the extent to which the majority opinion utilizes common dictionary meanings to support its interpretation of La. R.S. 9:2798.1, I do agree that this court’s decision on rehearing in Fowler v. Roberts, 556 So.2d 1 (La.1990) was in error. I therefore subscribe to the majority’s conclusion that DHH is not entitled to discretionary immunity under the provisions of La. R.S. 9:2798.1.

I disagree, however, with the majority’s allocation of 50% fault to DHH. In my view, the record clearly establishes that although the negligence of DHH contributed to the injury, the fault of DHH was certainly not equal to that of Pascal’s Ma-nale. The responsibility of disseminating the warnings and making them clearly visible to patrons is rests primarily with Pascal’s Manale. I would therefore allocate substantially less fault to DHH and more to Pascal’s Manale.

LKNOLL, Justice,

dissenting.

I disagree that the Department of Health and Hospitals (“DHH”) is liable under the circumstances of this case.

Louisiana Sanitary Code, Chapter XXIII, § 23:006^1, states that “[a]ll establishments that sell or serve raw oysters must display signs, menu notices, tables tents, or clearly visible messages at point of sale” with the statutorily proscribed warning, (emphasis added). Clearly, under the terms of the sanitary code, the affirmative duty to ensure that patrons are adequately warned about the dangers associated with consuming raw shellfish is imposed, upon the “establishments” that sell raw oysters, not the DHH. Under the circumstances of this case, the restaurant clearly possessed the superior capacity to know where the warnings would have had the greatest impact. Indeed, the DHH inspected Pascal’s Manale and found that, based on all the objective evidence, the restaurant had posted the appropriate warning at its oyster bar. It was Pascal’s Manale, alone, that knew that 20-25% of its customers ate raw oysters in the dining area.

Without question the DHH is statutorily imposed with the duty to enforce the sanitary code by La. R.S. 40:4(A). It is entrusted with countless responsibilities in order to protect the public health, one of which is to make sure warnings have been posted about the dangers of eating raw shellfish. There are thousands of businesses 1 ?and restaurants in Louisiana that sell raw oysters, each different from the next. What is a “point of sale” at one, and thus requiring a warning, may not be a “point of sale” at another. In my view, the majority’s interpretation places an undue burden on DHH and effectively makes DHH the insurer of the safety of its citizens.

This Court has made clear that liability will not be automatically assigned to a State regulatory agency for the malfeasance of a third party. Cormier v. T.H.E. Insur. Co., 98-2208 (La.9/8/99), 745 So.2d 1, 6. Furthermore, it has been recognized that the State is not the insurer of the safety of its citizens. Wilson v. State Through Dep’t of Public Safety and Corrections, 576 So.2d 490 (La.1991). See also Guillot v. State Through Louisiana State Police, 364 So.2d 254 (La.App. 3 Cir.1978) (“[although the State has a duty to enforce its criminal laws, it is not liable for damages to individuals injured by criminal acts of others or by the State’s failure to punish those criminal acts. To hold otherwise would, in effect, obligate the State to compensate the victims of crime.”). Accordingly, I find the fault attributable to DHH to be minimal, if any, and does not rise to the level of actionable negligence.

For these reasons, I respectfully dissent.

11VICTORY, J.,

dissenting.

In my view, the Department of Health and Hospitals is not liable to the plaintiffs under the facts and circumstances of this case.

      . Retired Judge Walter I. Lanier, Jr., assigned as Associate Justice Ad Hoc, sitting for Associate Justice Chet D. Traylor, recused.

      . Plaintiffs, in their original Petition for Damages, erroneously referred to DHH as the Louisiana Department of Health and Human Resources (DHHR).

      .The state health officer is the state official responsible for implementation and enforcement of the state sanitary code.

      . By the time of trial, Gregor’s brother, Tom Gregor, had been substituted as the plaintiff, since both Gregor's mother and father were now deceased. Ms. Lyle's claim was dismissed shortly after suit was filed pursuant to an exception of no right of action. La. C.C. art. 2315.2 limits persons who may bring a wrongful death action, and does not include '‘fiancee.”

      .Article II of the Louisiana Constitution provides for the distribution of governmental powers as follows:
      § 1. Three Branches
      Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.
      § 2. Limitations on Each Branch
      Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.

      . Legislation is superior to any other source of law and is a solemn expression of legislative will. La.C.C. art. 1 and 1987 Revision Comment (c) thereto and La. C.C. art. 2.

      . La. R.S. 9:2798.1 is found in Chapter 2 (Of Offenses and Quasi Offenses), of Code Title V (Of Quasi Contracts, and of Offenses and Quasi Offenses), of Code Book III (Of Different Modes of Acquiring the Ownership of Things), of Title 9 (Civil Code Ancillaries) of the Revised Statutes.

      . I also question whether the plurality’s incomplete and cursory review might not invite unintended consequences. For example, at one point, the plurality emphasizes that La. Rev.Stat. 9:2978.1(B), unlike the federal jurisprudence applying the federal tort claim exception, makes no distinction between operational-level acts or omissions and ministerial or policy-making acts or omissions. Ante, p. 967. However, the plurality does not discuss what import this lack of a distinction would have on how a Louisiana court should apply La.Rev.Stat. 9:2978.1(B).