Gregor v. Argenot Great Central Insurance Co.

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.

. 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.