2019 Louisiana Laws
Revised Statutes
Title 29 - Military, Naval, and Veteran's Affairs
§23.1. Nonimposition of liability for acts of national guardsmen on duty or training

RS 23.1 - Nonimposition of liability for acts of national guardsmen on duty or training

A. The legislature finds and states:

(1) That federal and state jurisprudence for causes of action arising prior to December 29, 1981, indicated that members of the National Guard engaged in training or duty under 32 U.S.C. 316 or 502 et seq., but not activated to become part of the federal forces as such, were to be considered employees of the state in which they served but not of the federal government, for purposes of master-servant tort liability;

(2) That the Congress of the United States, recognizing that the training and certain other duties of the National Guard are nationally required, directed, and supervised by the federal government for the primary benefit of fulfilling national governmental duties of providing trained and armed military bodies of adequate reserve strength for the Armed Forces and that the National Guard has grown proportionally with respect to the active federal Armed Forces so as to become an indispensable military component of reserve strength required for national defense and also desiring to protect members of the National Guard while engaged in such training or duty by placing them exclusively under the protection of the Federal Tort Claims Act (28 U.S.C. 2671 et seq.) and to relieve the several states of the financial tort liability burdens which may arise out of such training activities and duty by having the federal government assume same under the Federal Tort Claims Act, enacted Public Law 97-124, which provides that for all causes of action arising on or after December 29, 1981, members of the National Guard while engaged in training or duty under 32 U.S.C. 316 or 502, 503, 504, or 505 shall be employees of the government of the United States of America;

(3) That, under the federal jurisprudence interpreting the relationship between the federal government and its employees for tort purposes, the acts of the federal employee made in the course and scope of his federal governmental duties are the acts of the federal government itself, and such acts are redressable in tort only under the Federal Tort Claims Act, whereof the federal courts have exclusive jurisdiction, and the federal employee is immune from suit and liability in any of the state courts of the United States;

(4) That Article VI of the Constitution of the United States of America provides that the laws of the federal government shall be the supreme law of the land and that the judges in every state shall be bound thereby, regardless of what a state constitution or law may provide to the contrary; and

(5) That, despite the above federal provisions to protect such members of the National Guard and the several states from suit and liability in state courts as a matter of substantive tort law and also as a matter of the supremacy of federal law and policy and to have the federal government assume the financial burdens of tort liability for same, certain courts in Louisiana have been continuing the attempt to retain jurisdiction over tort cases arising on or after December 29, 1981, naming such members of the National Guard and the state as parties defendant, and seeking to cast them with tort liability, which is an unlawful situation intended to be corrected by this Section.

(6) That the intent of this Section is to relieve the state and the National Guardsman from liability only where the National Guardsman is an employee of the United States of America for purposes of respondeat superior liability under the Federal Tort Claims Act as provided in 28 U.S.C. 2671 et seq. This Section is not intended to prevent Civil Code Article 2320 or other such laws from imposing master-servant liability on the state, or to prevent Civil Code Articles 2315 et seq. generally from imposing liability in circumstances to which such codal articles and/or laws would otherwise impose liability for damages caused by the offenses or quasi offenses of members of the National Guard committed within the course and scope of their National Guard duties when the Federal Tort Claims Act does not apply.

B. Neither Civil Code Article 2320 nor any other law imposing liability on a master for the offenses and quasi offenses of his servant shall impose liability on the state or any branch, department, office, agency, commission, or any officer, official, or employee thereof for any acts or omissions committed on or after December 29, 1981, by any members of the National Guard while engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505; nor shall Civil Code Articles 2315 through 2324, or any other law imposing liability or creating obligations and causes of actions for offenses and quasi offenses in any form impose liability or create any obligations or causes of action for any acts or omissions committed on or after December 29, 1981, in the line of duty by any member of the National Guard while engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505, except insofar as Civil Code Articles 2315 through 2324 and other such state laws might define such acts or omissions as negligence under and for the purposes of the Federal Tort Claims Act, as all damages resulting from such acts and omissions are redressable exclusively against the government of the United States of America under the Federal Tort Claims Act and Public Law 97-124 of the Congress of the United States of America, with court jurisdiction thereof residing exclusively in the federal court system.

C. When the federal government is liable for the acts or omissions of a national guardsman under the provisions of the Federal Tort Claims Act, the state shall not be liable for contribution as a joint tort-feasor.

Acts 1985, No. 451, §2; Acts 1987, No. 643, §1, eff. July 9, 1987; Acts 1995, No. 828, §3.