Louisiana Jury Instructions–Civil and Criminal
CHAPTER 1 Civil Jury Instructions
VII. Negligence in General

§ 7.08 Aggressor Doctrine

A rule of law known as the aggressor doctrine can sometimes be raised as a defense in a civil case, and particular relative to an intentional tort, such as arising out of a fight. A similar application applies sometimes as a defense in a criminal case, but basically the application the same. In a civil matter, the Louisiana Supreme court has held that when there is an aggressor issue, comparative fault should be applied, rather than a complete a complete denial of recovery. An instruction relative to this doctrine can be as follows:

When dealing with an intentional tort, the Plaintiff 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,

The aggressor doctrine has traditionally precluded tort recovery where a plaintiff’s own actions, though not necessary physical, were sufficient to provoke a physical retaliation. However, the aggressor doctrine has been found to be inconsistent with Louisiana’s pure comparative fault regime. The rules of comparative fault principles should be applied to such a plaintiff’s actions, and will only allow a reduction of the plaintiff’s recovery of damages for an injury partly the result of the fault of acts intentional of the Plaintiff and partly the result of his own negligence.

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.

Alternative

A person who is who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a way that his adversary knows or should know that he wants to withdraw and stop the conflict.

 

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