11. Torts Canned Answers

Question 1

Intentional Torts

Answer 1

In an action for intentional torts, the plaintiff must prove intent of the tortfeasor, which is defined as purpose or knowledge to a substantial certainty. The tort of battery consists of…. Intent is clearly met because the defendant purposefully…. Although the defendant did not intend to hurt the plaintiff, we only need intent to cause the contact …. The tortfeasor is typically liable for all consequences of the contact….

Question 2

List of Intentional Torts

Answer 2

Assault and Battery – transfer of intent
False Imprisonment – awareness need not be required if actual harm
IIED- actual harm
Trespass to Property – mistake is no defense
Trespass to Chattel/ Conversion – valuation of damages determines difference

Question 3

Negligence: Duty/Risk Intro

Answer 3

Unlike other jurisdictions, Louisiana takes a duty/ risk approach (also proposed in the 3d Restatement of Torts) for the analysis of the tort of negligence. The approach consists of four (sometimes classified as 5) elements. They are cause-in-fact, duty (traditional and scope of the duty), breach, and injury. The order of analysis is important so we begin with c-i-f. The standard of which is “but for.” But for the defendant’s actions would the injury have more probably than not occurred according to a preponderance of the evidence. Apply.

Question 4

Negligence: Duty

Answer 4

Duty in LA is established by the standard of Reasonable Ordinary Prudent Person under like circumstances. Duty may also be established through custom (of the trade/ industry), negligence per se (violation of a non-tort liability statute), res ipsa loquitur (“the thing speaks for itself”/ presence of only circumstantial evidence), or a utility/ risk analysis (which utilizes the Hand Formula, B>LP, established in Carroll Towing- if the burden to exercise reasonable care is lower than the expected loss times its probability, the defendant has violated its duty). Under our facts….

Question 5

Negligence: Scope of Duty

Answer 5

After duty we assess the scope of the duty, which could be posed in the question of: should we extend liability to this defendant for this injury? In determining the scope we look at the foreseeability of this plaintiff and this risk (Palsgraf, WagonMound respectively) coupled with intervening/ superseding causes (Polemis), the ease of association between the risk the act created and the injury (Hill v. Lundin), and the Pitre policy factors. The Policy factors are: the plaintiff’s need for compensation, historical development of precedent (“flood gates”), the efficient administration of justice, the capacity to bear the loss, deterrence of future conduct, and the moral aspect of the defendants conduct.

Question 6

Negligence: Breach

Answer 6

Breach is simply whether the defendant breached the duty owed. Here it is simple to evaluate the defendant’s conduct. (Hand Formula or open and obvious (implied primary A/R) may be applied here, recent jurisprudence (Bufkin and Allen)…duty, but …..) Apply.

Question 7

Elements of Negligence

Answer 7

1. Cause in Fact
2. Duty (traditional and scope)
3. Breach
4. Injury (DONT FORGET!)

Question 8

Comparative Fault

Answer 8

In the late 1970s, the LA legislature moved away from the harsh regime of contributory negligence (which bars all recovery if the plaintiff is found to be at fault) to the fairer comparative fault scheme. The fault of the plaintiff will be compared to the fault of the defendant (or multiple defendants). The factfinder will then allocate a percentage of fault to each party. Each party is only responsible for their allocated share. LA employs a pure comparative fault system, so even if the plaintiff is found more than 50% faulty, recovery is still allowed. The factfinder utilizes the Watson factors to determine the allocation.

Question 9

Watson Factors

Answer 9

use to determine comparative fault

1. whether the conduct resulted from awareness or inadvertence
2. how great of a risk was created by the conduct
3. significance of what was sought by the conduct
4. the capacity of the parties (whether superior or inferior)
5. extenuating circumstances (emergencies, etc.)
6. relationship between fault and harm

Question 10

Damages: Types

Answer 10

There are three broad categories of damages: nominal, compensatory, and punitive.

Question 11

Damages: Punitive

Answer 11

In LA punitive damages are typically restricted to drunk drivers and child abusers.

Question 12

Damages: Nominal

Answer 12

Nominal only deals with the assertion of a right and include no monetary valuation.

Question 13

Damages: Compensatory

Answer 13

Compensatory have two broad categories: general and special.

Special damages can be predicted with some mathematical certainty and can include: medical expenses past and future, loss of wages or earning capacity, and loss of service.

General damages are more difficult to predict a monetary value. They include: mental anguish (pain and suffering), loss of consortium, and hedonic damages (loss of enjoyment of life). Loss of consortium may be brought by someone with the power to bring a wrongful death action, and the plaintiff brings hedonic damages.

Question 14

Wrongful Death/ Survival

Answer 14

If a plaintiff who may have had a cause of action against a tortfeasor has passed away, LA C.C. art 2315.2 lists the hierarchy of familial relatives that may bring a wrongful death suit against the tortfeasor. If the first category of family members does not want to bring suit, the second category may not. The hierarchy is: spouses/ children of the deceased, parents of the deceased, brothers and sisters of the deceased, and lastly grandparents of the deceased. The plaintiff brings a survival action if they survived the tortious offense.

Question 15

Slip and Fall

Answer 15

Because of the frequency of slip and fall cases, the LA legislature enacted a statute specifically for slip and falls designed to allow judges to dismiss if the prima facie case is not met. Although arguably slip and fall is analyzed under a typical negligence analysis, the legislature proposed 3 elements that need to be met: condition presented an unreasonable risk, the defendant must have known or should have known of the unreasonable risk, and the defendant failed to exercise reasonable care to eliminate the risk. If one of these is not met, the case may be dismissed.

Question 16

Med Mal

Answer 16

he Louisiana legislature has adopted a procedure to analyze certain medical malpractice suits. A case is determined to be medical malpractice by the Coleman factors. Typically if the case requires expert testimony it will be considered med mal. All QHCPs pay a fee and obtain $100,000 in insurance and qualify for this medical malpractice procedure. Medical malpractice is similar to a negligence analysis, but utilizes exclusively a customary standard of care. Medical professionals in the same locality establish the standard. However, an expert not practicing within the locality can testify to the standard in that locality. Two major theories exist in med mal: treatment performance (“botched procedure”) or failure to acquire fully informed consent. In an action for med mal against a QHCP, the case is first reviewed by a medical review panel consisting of 3 doctors and aided by one lawyer. The
MRP decides the standard of care. If the parties decide not to settle, the plaintiff may use their own expert witness in trial, but the MRP decision is also admitted as expert testimony. The experts’ testimony must meet the Daubert Standard as well for admissibility. If the QHCP is found faulty, the doctor/ hospital is only liable for up to $100,000. Any remaining damages will be paid out of the patient compensation fund, however med mal recovery is capped at $500,000.

Question 17

Vicarious Liability

Answer 17

An employer may be held vicariously liable for the intentional or negligent torts of its employee, if certain standards are met. There must exist an employer/ employee relationship, which is typically determined by the right of control test (which looks at the control of time, location, and other details of the employee’s work). The employee must have been acting in the course and scope of the relationship, which is sometimes described as the enterprise theory (risk fairly attributable to the enterprise/ work motivated). The employee also must be found at fault. If the employee is not found at fault there is no imputed negligence to the employer.

Question 18

NIED

Answer 18

Negligent infliction of emotional distress encompasses two categories of plaintiffs. Either direct participant plaintiff or the bystander. A direct participant is usually always allowed to recover under this theory because the emotional distress is said to be parasitic to the actual injury incurred or is easily predictable and reasonable. In the bystander analysis, the courts have limited the recovery (in recognition of the decision of Lejeune). The plaintiff must prove these things: necessary familial relation, witnessing or arrival upon the scene shortly thereafter the negligent conduct, reasonably foreseeable ED, and actual ED. The Plaintiff must also establish the prima facie case of negligence against the defendant.

Question 19

LPLA

Answer 19

In 1988, Louisiana adopted the Louisiana Products Liability Act and all cases involving products liability must utilize the LPLA. The LPLA establishes an exclusive theory of liability for manufacturers for damage caused by their products. The theory of liability must be against a manufacturer of a product, it must be the proximate cause of the injury, the product must have presented an unreasonable danger by:
1. construction/ composition,
2. design defect, (must indicate an alternative design and utilize the risk/utility balance)
3. failure to warn, or
4. breach of an express warranty.
The injury must have resulted from a reasonably anticipated use of the product, and the injury must have occurred.

Question 20

Defenses to Intentional Torts

Answer 20

1. Consent (cannot exceed scope, can be revoked)
2. Self-defense (reasonable response to reasonable threat)
3. Defense of others (only if other could also use self-defense)
4. Necessity (public v. private- still pay damages)
5. Special Privileges (law enforcement, parents, teachers, shopkeepers)

Question 21

Governmental Immunity

Answer 21

Although the defendant in this case is a governmental actor, we will assume immunity has been waived. In LA, the Louisiana Governmental Claims Act waived governmental immunity for tort and contract claims, however the act places some limitations on recovery. First there will be no jury trial unless the state wants a jury. Next, there will be a $500,000 cap on any damages awarded. Lastly, the plaintiff may not seize any public property or funds for satisfaction of the judgment. The prima facie case for liability will be held to essentially a negligence standard.
The prima facie case for defective conditions must meet the Public Duty Doctrine (which parallels a negligence standard) which states the thing which was defective was in the care or custody of the state, the defect presented an unreasonable risk of harm, the state had constructive notice of the defect, and the defect was the cause in fact of the injury incurred.

Question 22

Prescription/ Peremption

Answer 22

All torts in Louisiana have a one-year prescriptive period. The doctrine of contra non volentum may suspend the prescriptive period and includes four theories of suspension. The discovery doctrine may suspend the prescriptive period by having the one-year countdown commence once the injury or cause of action is “discovered.” However, medical malpractice and legal malpractice have a three-year peremptive period meaning no suit may be filed after three years from the incident.