10. Torts Flashcards
(204 cards)
1
Q
Cause-In-Fact Tests
A
Two Tests:
1. BUT FOR
2. SUBSTANTIAL FACTOR
2
Q
Scope of Risk: Foreseeability
A
- is this a reasonably foreseeable person?
- is this a reasonably foreseeable risk?
only the general type of harm needs to be foreseeable
3
Q
Scope of Risk: Ease of Association
A
how easily can this injury be associated with the negligent act?
4
Q
Owner Liability for Actions of Lessees/ Tenants
A
owner is liable in tort or the actions of its tenant where the owner:
- knows or reasonably should have known that the activity would cause damage
- the damage could have been prevented by reasonable care, and
- the landowner failed to exercise such reasonable care
5
Q
Defamation: Types
A
- Defamation per se
- Susceptible of defamatory meaning
6
Q
Intent
A
purpose or knowledge to a substantial certainty
subjective standard
7
Q
Transferred Intent
A
- transfer between people
- transfer between torts
cannot transfer to or from IIED
8
Q
Battery
A
- intent to contact
- actual contact
- contact is offensive or harmful
9
Q
Contact
A
a touching of P’s person or contact with something closely connected to the person
10
Q
Harm or Offense
A
to a person of reasonable sensibilities
11
Q
Assault
A
- intent to create a reasonable apprehension of an imminent battery
- reasonable apprehension of imminent battery
- apparent means to complete the battery
12
Q
reasonable apprehension of an imminent battery is not the same as _______
A
fear
13
Q
False Imprisonment
A
- intent to confine
- actual confinement
14
Q
Confinement
A
actual, complete confinement
- reasonable means of escape destroys confinement
15
Q
IIED
A
- specific intent
- extreme and outrageous behavior – beyond toleration of reasonable members of society
- causation of severe emotional distress
- severe emotional distress
16
Q
Prescription and IIED
A
does not begin until completion of last act
17
Q
Trespass to Land
A
- intent to enter
- physical entrance onto property of another (can be entrance by object)
18
Q
Knowledge in Trespass
A
irrelevant
19
Q
Land
A
includes the area above and below the surface
20
Q
Trespass to Chattel and Conversion
A
- intent to interfere with the dominion or with the use and enjoyment of the chattel of another
- substantial dominion or interference with the use and enjoyment
21
Q
Choosing between trespass to chattel and conversion is only a matter of _________.
A
remedy
- trespass = get damages / fair rental value
- conversion = force sale and you get proceeds
22
Q
Intentional Interference with Contractual Relationship
A
- K btw P and 3P
- D’s knowledge of the K
- D’s intentional interference with the K – induce/cause 3P to breach K or render performance impossible/burdensome
- causation of damages
23
Q
Defamation
A
(false statement/ damage to one’s reputation)
- false and defamatory statement concerning another
- unprivileged publication to a 3P
- fault (negligence or greater) on behalf of the publisher
- causation of damages – injury
24
Q
Defamation attaches to _______ not __________.
A
Defamation attaches to STATEMENTS not OPINIONS.
- statements can be proven/ opinions cannot
25
Publication in Defamation
requires statement be communicated to a 3P
26
Defense to Defamation
**truth** is an _absolute_ defense
*(if true, but nonetheless harmful, sue for Invasion of Privacy)*
27
Constitutional Issues to Raise in Defamation
- statement relates to a PUBLIC OFFICIAL or a matter of PUBLIC CONCERN = **actual malice** is required
- Public Officials/Public Figures must prove ACTUAL MALICE (knowledge that statement is false or reckless disregard for its truth/falsity) by CLEAR & CONVINCING EVIDENCE
- Private Plaintiff/Public Matter requires proof of INJURY AND NEGLIGENCE by CLEAR AND CONVINCING EVIDENCE
28
Actual Malice
**knowledge** that the statement is false or **reckless disregard** regarding its truth or falsity
29
Absolute Privilege
- Judges,
- Witnesses,
- Attorneys,
- Legislators
(germaine to proceedings)
30
Qualified Privilege
- non-court statements
- peer review
- reporting crime
31
Invasion of Privacy: 4 Types
- intrusion upon seclusion
- appropriation of name or likeness
- publicity given to private life or facts
- false light
32
Intrusion of Seclusion
1. intentional intrusion (physical or otherwise)
2. upon seclusion ('reasonable expectation of privacy')
3. that is highly offensive to a reasonable person
33
Appropriation of Name or Likeness
1. appropriation by D
2. to his benefit
3. of P's name/ likeness
4. without consent
5. actual damages
34
Public Disclosure of Private Facts
1. publication to public
2. about private facts
3. that is highly offensive AND not of reasonable importance to the public (can be true)
35
False Light
1. use of persons name/image
2. attributes to him views he does not hold// actions he did not take
- affiliated with a group or cause you are not
- appearance of endorsement
3. impression is false in fact
36
Invasion of Privacy differs from defamation because truth is not a ________________ to ________________.
Invasion of Privacy differs from defamation because truth is not a **DEFENSE** to **INVASION OF PRIVACY**.
37
Many of the defenses apply to both Invasion of Privacy and Defamation.
In particular, because speech is involved, ________________ ________________ may be required by the U.S. Constitution.
Many of the defenses apply to both Invasion of Privacy and Defamation. In particular, because speech is involved, **ACTUAL MALICE** may be required by the U.S. Constitution.
38
Malicious Prosecution
1. original criminal or civil proceeding
2. with a P in the malicious prosecution as D in the original proceeding
3. termination of the original proceeding in favor of the malicious prosecution P
4. absence of probable cause for the original proceeding
5. damages
39
Abuse of Process
1. ulterior purpose
2. willful act in the use of process that is improper
40
(Abuse of Process)
Malice is shown . . .
through ulterior purpose
41
Distinguishing Abuse of Process from Malicious Prosecution - Malicious Prosecution involves wrongfully initiating a legal ________________, while Abuse of Process involves wrongfully using ________________.
Distinguishing Abuse of Process from Malicious Prosecution - Malicious Prosecution involves wrongfully initiating a legal **PROCEEDING**, while Abuse of Process involves wrongfully using **PROCEDURE**.
42
Defenses to Intentional Torts
- self defense
- consent
- arrest and detention
- necessity
- defense of others
- defense of property and recapture of chattels
- deadly force / statutory immunity
SCAND-DD
43
Consent: validity and capacity
- NOT valid if obtained through fraud, duress or misrepresentation
- valid when given by mistake
44
Implied Consent
consent may be implied by facts and circumstances
can be withdrawn at any reasonable time
45
Self Defense: Reasonable Grounds
An actor may defend herself when she has **reasonable grounds** to believe that it is necessary.
46
Self Defense: Reasonable Force
An actor may only use **reasonable force** to defend himself.
**excessive force** exceeds the scope of the privilege.
47
Self Defense: Deadly Force
can only use deadly force when you are threatened with the same
48
Defense of Others: Relationship to Self Defense
One may defend others to the same extent that the third person may **defend herself**.
49
Defense of Others: Risk of Mistake
The risk of mistake is borne by the **defender**.
50
Arrest and Detention
- officers who are acting in accordance with the law
- store owners can detain up to 60 mins where they have reasonable belief of a theft
51
Defense of Property and Recapture of Chattels
- only belongs to possessor of the property
- reasonable force to protect
- when in hot pursuit, can use reasonable force to recapture
52
Deadly Force and the Statutory Immunity
seemingly creates statutory immunity to defend property using deadly force
53
Necessity
Necessity allows the defendant to **TRESPASS** where the action will result in a greater good, usually saving lives.
*ONLY applies to intentional torts against property*
54
But-For Test
but for the alleged negligent conduct, would injury have occurred?
CAN HAVE MORE THAN 1 BUT FOR CAUSES
55
Substantial Factor Test
was D's negligence a substantial factor in causing P's injury?
56
Multiple Causes of Negligence?
use substantial factor test
57
Evidentiary Standard for Negligence
= more probable than not
*relax standard for multiple sufficient causes*
58
Negligence: Requirements
LA applies the duty-risk analysis approach to negligence, which requires 5 elements:
(1) cause in fact
(2) duty
(3) scope of the risk
(4) breach
(5) injury
CDSBI (Christy Drives So Bad I'm suing for negligence)
59
Traditional Duty (methods of analysis)
1. Reasonable Person
2. Negligence Per Se
3. Custom
4. Res Ipsa
(go in that order IF they apply)
RNCR
60
Reasonable Person Standard
actor is expected to behave as a **reasonable, ordinary, prudent person under like circumstances**
- not average
- physical disabilities considered
- mental disabilities treated as a sane person
61
Reasonable Child Standard
expected to behave like a child of **like age and development**
*also talk about parental responsibility*
62
Negligence Per Se: When does it apply?
- look for statues/ ordinances/ regulations *(these are NOT tort statutes)*
- legislature has told us how a reasonable ordinary prudent person behaves
63
Negligence Per Se: Application of Statute
- ask the class of person and the class of risk to determine relevance
- statute will become mere EVIDENCE -- NO PRESUMPTIVE EFFECT
64
Custom (general points)
- has to be established by some evidence
- sword/ shield
- safety standards
- professional negligence
65
Evidence for Custom
- safety manual
- practice
- safety standards
66
Role of Custom for Professional Negligence
customary standard of care = EXCLUSIVE method of determining reasonableness of conduct in professional negligence
67
Res Ipsa Loquitor
"the thing speaks for itself"
1. event is of the kind that **ordinarily does not occur absent negligence**
2. **other responsible causes** (including conduct of Ps and 3P) are **sufficiently eliminated** by the evidence
3. _indicted negligence_ is **within the scope of the D's duty** to P
*very strict -- judge applies*
68
Res Ipsa _______, but does not _______ an inference of negligence.
Res Ipsa **allows**, but does not **mandate** an inference of negligence.
69
Res Ipsa _________ apply in the presence of direct evidence.
Res Ipsa **does not** apply in the presence of direct evidence.
70
Scope of the Risk/Scope of the Duty
"Was this plaintiff's injury within the scope of this defendant's duty?"
71
Things to Analyze in Scope of Risk / Scope of Duty
1. foreseeable risk / foreseeable P
2. ease of association
3. intervening and superseding causes
4. PITRE policy factors
72
Scope of Risk: Intervening Cause
an event that occurs between defendant's negligence and plaintiff's injury
73
Scope of Risk: Superseding Cause
intervening cause that relieves the defendant of liability
factors:
- foreseeability (MORE fore = LESS super)
- culpability/ fault (MORE faulty = MORE super)
74
Scope of Risk: Pitre Policy Factors
(1) **need** for compensation of losses
(2) **historical development** of precedents
(3) **moral aspects** of D’s conduct
(4) **efficient administration** of law
(5) **deterrence** of future conduct
(6) **capacity to bear/distribute losses**
“New Hoes Means Everyone Does Coke”
75
Pitre Policy Factors Purpose
used to determine whether
a specific injury to a specific plaintiff
should be included in the **scope of risk**
76
Breach of Duty
occurs when the defendant's conduct falls below the standard of reasonable care
= CREATES AN UNREASONABLE RISK OF HARM
*objective standard*
77
Hand Formula
B < LP = defendant has breached the standard of care, and has thus created an unreasonable risk of harm
B: burden of the precaution
L: loss
P: probability of the loss
78
How to Determine Breach
use a utility-risk analysis, otherwise known as the Hand formula
79
Injury
plaintiff must have suffered a **compensable injury to their person or property**
*includes lost chance of survival in med mal cases*
*includes emotional distress (alongside physical injury) and fear of disease*
80
Controlling 3P Possible Players
1. caretakers
2. parents
3. 3P criminal activity
*duty = reasonable person standard*
81
Parents/ Child in Fact Pattern . . .
1. is the *child* negligent?
2. parental negligent supervision?
3. parental responsibility for acts of children under 2318
82
3P Criminal Activity
merchants and others may have **duty to guard against reasonably FORESEEABLE criminal activity**
- duty = reasonable person standard
- look for previous criminal activity at or near D's location *(prior similar incidents)*
83
Allocation of Fault in 3P Criminal Activity
Although intervening criminal behavior may be foreseeable and within the scope of the duty, the **intervening criminal and negligent shopkeeper must be allocated a percentage share of fault.**
84
Slip and Fall
*mention it is a statute!*
1. condition presented an **unreasonable risk of harm**
2. harm was **reasonably foreseeable**
3. merchant either **creates or had actual or constructive knowledge** of the CONDITION
4. merchant **failed to exercise reasonable care**
*+ bring action against EE who caused damages*
85
Preface to Slip and Fall
"in addition to negligence, P must establish the PFC for a slip and fall. However, it is really just a negligence action under the statute and the requirements are:"
86
Slip and Fall: Actual or Constructive Notice
*The _length of time that_ the hazard existed is the key inquiry.*
- knew or should have known through the exercise of reasonable care
- longer = more unreasonable = more likely knew
87
NIED Allows . . .
allows the person to be able to SUE, but must still be able to establish fault on the part of the person they're suing
88
NIED: Direct Victims
- corpses (handling of the body)
89
NIED: Fear of Disease
must have highly significant legitimate risk
90
Medical Malpractice: Standard of Care
- judged exclusively by custom
- expert testimony required
*"medical professionals must exhibit that standard of care of a duly licensed processional in **the same or similar community***”
91
Same or Similar Community?
- same = QHCP
- similar = non-QHCP
92
Malpractice Defined: to determine whether an act is malpractice, the court applies:
the Coleman factors
93
Coleman Factors
1. Was the wrong **“treatment related” or caused by a dereliction of professional skill**
2. Does the wrong **require expert medical evidence** to determine breach *(no expert, probs just negligence)*
3. Did the wrong involve an **assessment of the patient’s condition**
4. Was there a **patient-physician relationship**
5. Would the **injury have occurred if the patient had not sought treatment**
6. Is the alleged tort an **intentional tort?**
94
Cap in MedMal Cases
Damages are capped at $500k, with each individual provider responsible for the first $100k.
The remainder is paid by the Patient Compensation Fund.
PCF is funded by insurance premiums from QHCPs.
95
Panel in MedMal Cases
Each malpractice case must be processed through a Medical Review Panel, consisting of three medical professionals and a non-voting attorney chair.
The panel will decide whether the defendant health care provider failed to act in accordance with the standard of care
96
Informed Consent in MedMal (BACKGROUND)
- unique to medmal
- hybrid between battery and negligence
- NOT failure to warn
97
Informed Consent
1. disclosure
2. materiality
3. uniform consent law
98
Informed Consent: Disclosure
HCP has duty to disclose all _material_ risks
99
Informed Consent: Material Risk
those risks which a **reasonable person would consider significant**
+ causation element: if P had known of the risk, wouldn't have done the procedure
100
Informed Consent: Uniform Consent Law
rebuttable presumption of valid consent IF written consent in conformity with uniform consent law
101
Prescription in MedMal
- 1 year from date of incident or discovery
- 3 year cap on discovery doctrine
102
Attorney Malpractice
- duty = licensed processional in same or similar community (customary standard of care)
- BURDEN SHIFTING: once a plaintiff establishes a PFC that attorney's negligence caused loss, the burden shifts to the attorney to prove the client would not have succeeded
- 1 year prescription/ 3 year peremptive
103
Providers of Alcohol Statute
statute confers immunity to the social host (removed if serving someone underage)
104
Proximate Cause and Alcohol
the _drinking_, not the serving or selling, is the proximate cause of the injuries
105
Alcohol Sellers
permitted seller not responsible for off-site injuries UNLESS:
- the drinker is under the age of majority
AND
- there is negligence
106
Social Hosts
social hosts not responsible for injuries UNLESS:
- the drinker is under the age of majority
AND
- there is negligence
107
Drinker of alcohol is almost always _________.
Drinker of alcohol is almost always **negligent.**
ALWAYS CONSIDER PUNITIVE DAMAGE AWARD
108
Drunk Defendant
apply **negligence per se** if driving with BAC above the legal limit
109
Strict Liability
Strict liability is the same as negligence, **except that we assume that defendant KNEW of the dangerous condition**.
For things and buildings Louisiana has eliminated strict liability in favor of a **NEGLIGENCE** standard.
110
Two areas of strict liability in LA:
1. Children
2. Dog Owners
111
Two areas USED to be strict liability, now use negligence standard:
1. owner of thing
2. owner of building
112
Owner/ Custodian of a Thing
1. D has knowledge (or constructive knowledge) of the ruin/ vice/ defect
2. damage could have been prevented by exercise of reasonable care
3. D failed to exercise reasonable care
113
Owner/ Custodian of a Building
1. D has knowledge (or constructive knowledge) of the ruin/ vice/ defect
2. damage could have been prevented by exercise of reasonable care
3. D failed to exercise reasonable care
114
Owner/ Custodian of a Building: Landlord/ Tenant Agreements
landlord is strictly liable for personal injury to the tenant unless express shift of responsibility in K
115
Strict Liability: Parental Responsibility for Children
parents are strictly liable for the acts of their children when:
1. parent/ child relationship (residing together)
2. child fault when measured by an adult standard
116
Owners of Animals
negligence standard
117
Owners of Dogs
strictly liable for damages when:
1. owner could have prevented the harm
2. no provocation of the dog
118
Absolute Liability
unlike negligence and strict liability, imposes **liability without fault**
119
Absolute Liability Circumstances
- pile driving
- blasting
120
For uses of the land other than pile driving or blasting, an owner is only responsible upon a showing that:
*negligence standard for all other actions involving land*
1. D has knowledge (or constructive knowledge) of the risk
2. damage could have been prevented by the exercise of reasonable care
3. D failed to exercise reasonable care
121
Products Liability
*The Louisiana Products Liability Act (LPLA) establishes exclusive remedies against manufacturers of products for personal injury actions.*
1. D must be a manufacturer of a product
2. damage must be caused by a characteristic of the product that made it unreasonably dangerous
3. product must be dangerous in 1 of 4 ways
4. damage must result from reasonably anticipated use
122
Unreasonably Dangerous in 1 of 4 Ways
- construction or composition
- design defect
- failure to warn
- breach of express warranty
123
Manufacturer
- assembler/ manufacturer etc.
- persons holding themselves out as manufacturer
- component part manufacturer
124
Proximate Cause
Do not repeat the entire "scope of the risk" (which is the equivalent of proximate cause) discussion.
Rather, focus on actual cause and particular aspects of proximate cause/scope of the risk such as superseding causes.
125
Unseasonably Dangerous in Construction or Composition
1. defect must exist at time the product leaves the control of the manufacturer
2. material deviation from identical products
3. strict liability theory
*exploding coke bottle*
126
Unreasonably Dangerous Because of a Design Defect
1. defect must exist at time the product leaves the control of the manufacturer
2. P has burden of proving there was an **alternative design that would have prevented P's damage**
3. balancing test *(lost utility with expected safety gain)*
4. state of the art DEFENSE
127
State of the Art Defense
- manufacturer's BOP
- couldn't have reasonably known of alternative design
128
Unreasonably Dangerous Due to Inadequate Warning
*(or no warning at all!)*
1. defect must exist at time the product leaves the control of the manufacturer
2. balancing test *(likelihood and gravity of the danger against feasibility and effectiveness of a warning)*
3. defenses
4. continuing duty
129
Continuing Duty in Inadequate Warning Cases
when manufacturer learns of the risk and possible duty to warn
130
Defenses for Inadequate Warning
- obvious dangers
- actual knowledge of the risk by user
- manufacturer did not know
- warning not passed on by seller
131
Unreasonably Dangerous Due to Breach of Express Warranty
1. must have made express warranty (express statement, not puffing)
2. claimant induced to use product by the warranty
3. warranty was untrue
4. claimant sustained damages as a result
132
Reasonably Anticipated Use
damage in products liability case must arise from reasonably anticipated use of product by P or another person
*NOT limited to _intended_ use*
includes reasonably foreseeable misuse!
133
Vicarious Liability
Vicarious liability requires three elements.
1. employment relationship
2. negligence must occur while the employee is acting within the course and scope of the employment relationship
3. employee must have been at fault *(do negligence analysis)*
134
Employee vs. Independent Contractor
TESTS
*no vicarious liability for IK*
- control test
- borrowed EE
- dual employment
*(EXCEPTION = ultrahazardous activities)*
135
Control Test
could the ER have exercised control over how the work was done
- right of control
- exercise of control
- relinquish of control
- whose work?
136
Dual Employment
both lending and borrowed ERs can both be ERs
*e.g.: wages by temp and control by other = both ERs*
137
Course and Scope
*Employer is vicariously responsible for actions of employee where the **act is within the course and scope** of the employment relationship.*
- frolic and detour
- enterprise/ risk theory
138
Frolic and Detour
deviation from the course and scope that results in no vicarious liability
*is it significant enough?*
139
Enterprise/ Risk Theory
whether is it **FAIR to attribute the risk to the business**
- reasonable expectation of ER
- payment of wages
- direct control/ actual control over work
- **benefit to ER**
- relationship to act and business
- **time/place/purpose of the act**
- ER instructions
140
Always look for negligent hiring, training, supervision, etc... in addition to vicarious liability.
- EE fault
- ER fault through vicarious liability
- ER fault through negligent hiring
141
Vicarious Liability: Intentional Conduct
ER can be liable for EE's INTENTIONAL TORTS if the conduct is
**so closely connected in time, place, and cause that it constitutes a risk of harm _attributable_ to the employer's business**
142
Prescription for Torts
1 year from date of incident
143
Contra Non Valentum
The prescriptive period may be extended beyond the one-year period in four instances:
1. legal cause prevented filing of lawsuit
2. D concealed facts that would allow P to discover the claim (active concealment)
3. D has done something to keep P from filing
4. discovery doctrine = theory not known/ reasonably knowable
144
Limitations on Contra Non Valentum
discovery doctrine capped at 3 years for MedMal oNLY
145
Comparative Fault Preface
The factfinder must allocate a percentage of fault to each responsible party, regardless of whether the party is present in the lawsuit, immune or insolvent.
Each party is then responsible only for its allotted share. To determine each party's allotted share, factfinders apply the Watson factors.
146
Watson Factors
* Whether the conduct resulted from inadvertence or involved an awareness of the danger;
* How great was the risk created by the conduct;
* The significance of what was sought by the conduct (utility);
* The capacities of the actors, whether superior or inferior;
* Extenuating circumstances which might require the actor to proceed in haste without proper thought; and
* The relationship between the fault/negligent conduct and the harm to the plaintiff
147
Solidary Liability
For torts, Louisiana has effectively eliminated solidary liability.
The major exception is that a vicariously responsible employer is liable in solido with its employee.
148
Seatbelts - Liability
Failure to properly use seatbelts **IS admissible** into evidence to establish comparative fault.
*(new law)*
149
Alcohol - Liability
A plaintiff who is operating a motorized vehicle, with a blood alcohol concentration of .08, and is found to be in excess of 25% at fault may not recover for any damages.
DOES NTO APPLY FOR PRESCRIPTION DRUGS IF VALID RX
150
Immunities
- worker's comp
- sovereign immunity
- family immunity
- recreational land immunity
- rescuer immunity
151
Workers' Comp
**EE trying to recover against ER or co-EE**
The Workers’ Compensation Act provides an exclusive remedy for the employee against his/her employer or co-employee where the terms of the statute are met.
The compromise allows the injured employee to recover damages pursuant to the statute, but the employer and the co-employee will be immune from civil tort lawsuits, except for intentional acts.
152
Workers' Comp Compromise
WC allows defined recovery with reduced standards of proof for injured workers, but it also creates an **IMMUNITY** for the employer and co- employee.
153
Workers' Comp Requirements
1. employment relationship
- payroll ER
- borrowing ER AND/OR
- statutory ER
2. nature of injury
- arise out of employment AND
- in course of employment
3. defined compensable injury under the statute
154
Workers' Comp Exceptions
- horseplay
- personal disputes not concerning employment
- intentional act
155
See Employment Relationship?
Think 3 Things
1. WC immunity
2. vicarious liability
3. negligent hiring/ training/ supervision
*do not ever mention statutory employment in vicarious liability*
156
Statutory Employment
ONLY FOR WC!
must meet terms of the statute
- K must recite that the principal is a statutory employer
- EE's work is an "integral part" of the enterprise
157
Nature of the Injury: Workers' Comp
- **arising out of** = whether the injury grew out of a job-related risk
- **in the course of** = time and location
158
In ___________, "course and scope" is a term of art and should be discussed as a single theory.
In _________, the statute divides the inquiry into two separate questions.
In **vicarious liability**, "course and scope" is a term of art and should be discussed as a single theory.
In **WC**, the statute divides the inquiry into two separate questions.
159
Sovereign Immunity
must be discussed when the defendant is a governmental entity
- general immunity
- constitutional waiver
- jury trials generally prohibited unless gov waives
- generally damages capped at $500k
- applies to discretionary acts or policies
- has been waived in the LA constitution
160
Public Duty Doctrine
In order to prove public entity liability for a thing, the plaintiff must establish:
1. custody/ ownership by government entity
2. defect caused unreasonable risk of harm
3. public entity had actual/ constructive knowledge of the defect
4. public entity failed to take corrective action within a reasonable time
5. causation of damages
161
Family Immunities
Spouses may not sue each other and children may not sue parents. Parents may, however, sue children.
immunity exists only as long as the status exists and the prescriptive period begins to run when the status is terminated.
162
Recreational Land Immunity
Applies to undeveloped land used for noncommercial recreational purposes.
163
Rescuer Immunity
Amateur rescuers at an emergency scene are immune from negligence.
164
Discretionary Act Immunity
a public entity is NOT liable for actions based on **policy-making discretionary acts** where the choice is within the public entity's discretion by statute
165
Types of Damages
- nominal
- compensatory
- special
- general
- lost enjoyment of life
- punitive damges
166
Property Damage Election
A plaintiff who has suffered compensable property damage may elect to recover either **decrease in value or lost of repair**, *UNLESS repair is out of proportion with the decrease in value*.
There is an exception to the exception: A plaintiff may recover the higher value when a reason personal for the repair or some other reason to believe P will conduct repairs.
167
Punitive Damages
only available under the following circumstances:
1. driving while intoxicated
2. sexual abuse of a minor
3. child pornography
4. Drug Dealer Liability Act
168
Hedonic Damages
lost enjoyment of life
169
Collateral Source
A plaintiff is allowed to recover for any expenses or damages actually paid by a 3d party, such as insurance,
plus 40% of the difference between the amount billed and the amount actually payed.
170
Lost Consortium
Certain parties who suffer their own damages may recover for those damages.
available when the injured party lives, and are available to the same parties that would have had a wrongful death action if the victim were dead.
171
Wrongful Death and Survival (differences)
*someone has to be DEAD* - discuss WD first
WD is an action brought by beneficiaries for their own damage.
Survival is an action brought by beneficiaries for the decedent's injuries suffered.
172
Beneficiaries in WD and Survival
(they are the same!)
Once you find a beneficiary in a category, all beneficiaries within that category can recover, and no one in a lower category can recover.
1. children and spouse
2. surviving parents
3. surviving brothers and sisters
4. surviving grandparents
5. succession representative
173
Prescription for WD and Survival
1 year from date of death
174
Choice of Law
- recognize that the problem is a choice of law problem
- recognize that the La. Civil Code governs choice-of-law and that a Louisiana court will apply the Louisiana choice-of-law provisions
- apply the "serious impairment" test and/or specific provisions
*presume LA law*
175
Choice of Law: Serious Impairment Test
Apply the law of the state whose policies would be most seriously impaired if its law were not applied.
- contacts of each state to parties/ events
- interstate system and uniformity
- district policies - deterrence/ compensation
176
Choice of Law: Specific Provisions
*apply after discussing serious impairment*
- conduct and safety (tortious act/ injury location)
- loss distribution
- products liability
- punitive damages (if other state allows punitives)
177
Defamation Per Se
words that by their very nature tend to injure one's personal or professional reputation, OR that expressly/implicitly accuse someone of criminal conduct
*malice and fault are presumed (unless protected by first amendment privilege)*
178
Susceptible of defamatory meaning
P must prove defamatory meaning and publication, falsity, fault, and injury
179
Exemplary Damages
for wanton or reckless disregard for the rights and safety of others
180
MedMal Preface
Medical malpractice is largely governed by statute. Under the statutes, we must distinguish between Qualified Healthcare Providers (QHCPs) and those that are not qualified. A hospital, and its employees, become QHCPs by furnishing evidence of $100,000 worth of private or self-insurance, and paying the appropriate fee to the state of Louisiana.
The QHCPs’ liability is then limited to $100,000, with the remainder paid by a state entity known as the Patient Compensation Fund or PCF. In addition, the overall liability is capped at $500,000, exclusive of future medicals.
Finally, any medical malpractice case against a QHCP must proceed through a Medical Review Panel (MRP), consisting of three profes- sionals and a non-voting attorney chair.
The MRP will issue an opinion concerning whether the defendant breached the standard of care of a licensed professional in the same or similar community. The MRP opinion does not resolve the case but becomes admissible as expert testimony once the action is filed in court.
181
NIED
1. The claimant must **view** the accident which caused injury to the other or **come upon the scene soon thereafter** *[contemporaneous viewing ]*
2. The **mental anguish must be reasonable**
3. The **mental anguish must be serious and foreseeable**
4. The claimant must be within one of the **statutorily listed relationships** with the direct victim
*The Louisiana Supreme Court has held that recovery under 2315.6 is limited to concurrent viewing of sudden, traumatic events.*
182
Survival Damages
those suffered by the DEAD victim AFTER tort, BEFORE he died
- lost wages
- pain and suffering
- medical expenses
183
D might try to argue that the action for property damage is not covered under the LPLA, but the only exception is an action for redhibition.
An action for property damage to its truck is a claim under the LPLA.
184
Obligation of Neighbors
1. D knew/ should have known of the risk
2. that the injury could have been prevented through the exercise of reasonable care
3. the D failed to exercise reasonable care
667 statute
*creates an action by one neighbor against another neighbor for intentional conduct that interferes with the use and enjoyment of the property*
185
under a risk-duty analysis, the “moral, social and economic values involved” do not warrant extending a duty, and hence liability, to those who might suffer indirect economic losses from an act of negligence
186
owner typically has a nondelegable duty to _____________
owner typically has a nondelegable duty to **maintain property**
duty to repair known defects in your car
187
Negligence per se is a doctrine that utilizes non-tort statutes to help determine how reasonable people behave under certain circumstances. In this case, there is a Louisiana statute that imposes a fine for texting or reading a text while driving. Although the statute does not establish or eliminate any tort liability, it could be used by the factfinder to help determine whether Dan behaved unreasonably.
Courts determine the admissibility of the statute by asking whether the plaintiff is part of the class of persons that the statute was designed to protect and whether the risk is one of the risks that the statute was designed to prevent.
188
Courts have dealt with intervening medical negligence on many occasions, and the general rule is that:
simple medical negligence does not supersede the original negligent conduct.
if the medical negligence is gross negligence, then it is more likely to be considered superseding
HOWEVER, the original negligent actor is responsible for any EXACERBATION of injuries
189
Negligent Credentialing
*NOT medical malpractice and the claim need not be submitted to a medical review panel and is not subject to the cap on damages*
190
Merchant
a party whose business it is to sell goods, foods, wares, or merchandise
191
negligent driving of an ambulance is _________ considered medical malpractice
negligent driving of an ambulance is **NOT LIKELY** considered medical malpractice
192
Malpractice Definition
any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient
193
Effects of a Recall in Products Liability Cases
- standard for a recall is not necessarily the same as the risk-utility balancing test imposed in the statute
- does establish the existence of an alternative design since there was a repair available at a reasonable cost
- establishes that there was a relatively high expected loss, (otherwise they wouldn't have done a recall)
- is the warning sufficient to provide constructive notice?
- satisfies continuing duty?
194
Emergency Doctrine
argument that actions during emergency were reasonable and not negligent
195
Wrongful Death Damages
damages suffered by BENEFICIARIES when person DEAD
- grief
- loss of love, affection, services, support and society
196
Although actions against the State could be immune, the State of Louisiana has waived most tort immunity in the state constitution.
More precisely, the immunity is waived and a scheme for recovery in medical malpractice actions against the State is established by statute.
197
IF NO WC IMMUNITY, CLAIM NEGLIGENCE!
198
Although an intentional tort may be motivated by personal animus, the conduct would be considered within the course and scope of the EE's job IF it was the position at the employment that put the EE in the position to engage in the tort.
199
liability for _______________ extends to all consequences regardless of whether the consequences were intended or foreseeable
liability for **intentional torts** extends to all consequences regardless of whether the consequences were intended or foreseeable
200
Although some courts have extended vicarious liability to encompass physicians who are not employed by hospitals, Louisiana has not adopted this standard.
201
Louisiana law is clear that a collision is not required to find resulting injuries to be within the scope of the risk.
For example, a party that strikes his/her head on the steering wheel while trying to avoid an accident may recover for the injuries even in the absence of a collision.
202
Concurrent Negligent Acts with Product Liability
negligent actor will be liable as well - even if defect was also a cause
*rollerblader/ mower*
203
violation of an applicable statute, which may sometimes establish breach of duty, will be excused where compliance was _________
violation of an applicable statute, which may sometimes establish breach of duty, will be excused where compliance was **IMPOSSIBLE**
204
Borrowed EE
did the FIRST employer **relinquish control** such that the employee was under the control of the SECOND employer?
*e.g. temp agency and business contract together = borrowed worker*
(apply same control test)
