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Flashcards in Torts Deck (152):
1

What is the basis of tort liability in Louisiana?

Art 2315, which provides that every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.

2

What is the importance of intentional torts?

1. Immune from workers' compensation immunity; 2. Scope of liability extends to unforeseeable and unintended consequences; 3. Proof of damage is not required; 4. No heightened or additional damages for intentional torts.

3

What standard governs intent for intentional torts?

Intent is determined by subjective state of mind of defendant/tortfeasor. This is in contrast to negligence, where an objective standard is used. 1. Intent element is satisfied when the offender either desires the consequences of his act or when he knew the consequences were reasonably certain to result from his act. Under certain circ, intent can TRANSFER from one tort to another/one person to another.

4

What torts allow for transferred intent?

Battery/assault/false imprisonment and perhaps trespass/trespass to chattel, and conversion. Intent will NEVER transfer to or from IIED.

5

What is battery? What are the elements of battery?

Battery is an intentional contact that is harmful or offensive. The elements are: 1. Intent (need only intend the contact, NOT the harm of offfense); 2. Contact (person or something closely connected to person); 3. Harm or offense to person of ordinary sensibilities. Damage not required.

6

What is assualt? What are the elements of assault?

An assault is an intentionally created reasonable apprehension of an imminent battery. The elements are: 1. Reasonable apprehension--must be IMMINENT. Fear alone is not apprehension; 2. Intent/purpose or substantial certianty of causing reas. apprehension; 3. Tortfeasor must reasonably appear to have the means to complete the battery.

7

What are the elements of false imprisonment?

1. Intent--purpose or substanatial certainty of confinement/transferred intent; 2. ACTUAL, COMPLETE confiement is necessary. Reasonable means of escape will eleiminate liability; INDIRECT confinement may be actual confinement.

8

What are the elements of IIED?

1. Specific intent--desire to inflict severe emotional distress/substantially certain that severe emotional distress will occur; 2. Extreme and outrageous behviaor; 3. D's conduct must CAUSE plaintiff's emotional distress. When IIED is perpetrated over a long period of time, prescription does NOT start to run until the continuous conduct ends.

9

What is tresspass to land? (Intentional interference with immovables)

An intentional torat against property. The elements are: 1. Intent--purpose/subst. certaintiy to enter the property of another; 2. Physical entrance onto the land of another.

10

Is there a distinction under LA law for good faith/bad faith trespass?

LA distinguishes between good faith/bad faith trespass. Good faith trespass is trespass DUE TO NECESSITY or WITHOUT KNOWLEDGE. Good faith=only liable for actual damage. Bad faith=liable for nominal damages even if no actual damage.

11

What is trespass to chattel and conversion?

Damage to a chattel requiring a forced sale create a conversion, while lesser damages create a trespass to chattel. The elements are: 1. Intent--intent to interfere with the owner's dominion or use and enjoyment of the chattel; 2. Interference--substantial dominion or damage to the chattel of another. 3. Damages--damages are the value fo the chattel. For trespass, damages will compensate for the damage or use.

12

What is intentional interference with a contractual relationship?

The elements are: 1. Contract or legally protected interested between plaintiff and 3rd party; 2. Defendant's KNOWLEDGE of the contract; 3. Intentional inducement/causation of the third party to breach the contract/intentional rendition of its performance impossible or more burdensome; 4. Causation of damages to the plaintiff BY the BREACH of contract. LA courts DO NOT recognize negligent interference with contract.

13

What is defamation? What are the elements?

Defamation is a tort where the defendant causes damage to the plaintiff's reputation. The elements are: 1. False and defamatory statement concerning another; 2. Unprivileged publication to a third party; 3. Fault (negligence or greater) on the part of the publisher; AND 4. Resulting injury.

14

Does defamation exist for opinions?

Defamation exists only for statement, NOT opinions. 1. A defamatory statement is capable of being proved false. An opinion WIHTOUT a false factual connontaion is not a defamatory statement. Must be more than innuendo/suspeicion. Rhetorical hyperbole or satire about public figures does not reasaonably state actual fact, and is not defamatory speech. TRUTH is an ABSOLUTE DEFENSE to a defamation claim. Falsity is party of P's prima facie burden.

15

What are defamatory statements?

A statement is defamatory it it TENDS to harm the reputation of another so as to lower the person in the estimation of the community. 1. DEFAMATION PER SE: words which BY THEIR VERY NATURE tend to injure one's personal/professional reputation, w/o considering extrinsic facts. Falsity and malice are presumed. 2. SUSCEPTIBLE OF A DEF. MEANING: a plaintiff must prove, in addition to def. meaning/pub, falsity, malice, and injury.

16

What are the requirements for publication with defamation? Injury?

Statement must be communicated to a THIRD PERSON. May oral/written/communicated to single third person. Comm by corp. employee to another does not create liability on part of corporation. 1. INJURY may be presumed when the words are defamatory per se; when not, injury is damage to individual's reputation, etc.

17

What must public officials and public figures establish in a defamation suit?

1. Must establish ACTUAL MALICE. 1. Public official--someone employed by govt. who is involved in public decision-making process; 2. Public figure--someone intimately involved in resolution of importance public questions/famous; 3. ACTUAL MALICE--knowledge fo the falsity or reckless disregard concerning the truth or falsity.

18

What are the requirements for defamation when it is a private plaintiff on a matter of public concern?

Plaintiff must prove negligence and damage by CLEAR AND CONVINCING EVIDENCE. Even if words are defamaotry per se, the plaintiff must prove injury by clear and convincing evidence.

19

What are the requirements for defamation when it is a private plaintiff on a private matter?

Plaintiff must prove negligence and damage by a PREPONDERANCE of the EVIDENCE. Even for words that might be considered DEFAMATORY per se, the plaintiff must prove injury by a preponderance of the evidence.

20

What are the privileges and defenses to defamation?

1. Truth is an absolute defense; 2. Aboslute privilege exists in narrow number of situations, e.g., statements by judges/legislators/witnesses & attorneys in judicial/legis settings, unless the statement DOES NOT concern the matter that is properly before the judicial/legis body.

21

What are the conditional or qualified privileges to defamation?

1. EXISTENCE: Do the attendant circ of a comm occasion a qualified privilege? (reported suspected crime, e.g.) 2. SCOPE: A conditional privilege may be defeated by establishing that the D has exceeded the scope fo the priivlege. Usually, showing that D has acted with ACTUAL MALICE will defeat the privilege.

22

What are the four distinct branches to the invasion of privacy?

1. Intrusion upon solitude or seclusion; 2. Appropriation of name or likeness; 3. Publicity given to private life and private facts; 4. Publicity placing person in a false light.

23

What are the elements of intrusion on seclusion?

1. Intentional intrusion--phsyical or othersie; 2. Upon seclusion/solitude in which person has REOP; 3. HIGHLY OFFENSIVE to a reasonable person.

24

What are the elements of appropriate of name or likeness?

1. Appropriated by D; 2. To his benefit; 3. Of the plaintiff's name or likeness; 4. Without consent; 5. CAUSING ACTUAL DAMAGES.

25

What are the elments of publicity given to private life or private facts?

1. Publicity to public--size of group depends on what is nec to make info public; can't be just one person; 2. Needs to be about private life; 3. Highly offensive and not of reasnable importance to the public.

26

What are the elements of publicity placeing person in a false light?

Occurs when person's name or picture is used to make it appear as though the person has CONSENTED to endorse the advert product, with or without being paid to do so. WHEN the impression is FALSE in fact, the appropriation of the persona' identy places the person in a false light.

27

What is the difference between defamation and invasion of privacy?

In an invasion of privacy action, statements DO NOT HAVE TO BE FALSE.

28

What are defenses to invasion of privacy torts?

1. Qualified privilege of fair reporting, which is publication of an accurate report of an official action; 2. Consent--impress or implied; 3. Statutory immunity for merchants posting NSF checks; 4. Truth is NOT a defense; nor is GOOD FAITH.

29

What is malicious prosecution?

1. A original criminal or civil judicial proceeding; 2. With plaintiff in malicious pros action as D in original proceeding; 3. Bona fide termination in favor of present plaintiff; 4. Absence of probable cause for such proceeding; AND 5. Damages to P. PROVING MALICE--mailce is inferred when there is lack of prob cause resulting from a wanton and reckless disregard of the rights of the party sued, or when there is knowledge that the charge is false or when it is brought with reckless disregard for the truth. Burden of proving malice is generally on the plaintiff. Burden of proof is on the plaintiff.

30

What are the elements of abuse of process?

1. An ulterior purpose; 2. A willful act in the use of process that is not proper in the regulatr conduct of the proceeding.

31

What constitues consent as a defense to an intentional tort?

Recognize dispute between whether consent is an affirmative defense or whether lack of defense is a prima facie element of the tort. 1. Consent to an action vitiates intent of the tortfeasor; 2. Cosnent is not valid if botained through fraud/duress/misrep; however, consent is valid when given by mistake; 3. Consent may be either express or implied by the circ of the incident; 4. Consent is not a contract, it can be revoked at anytime.

32

What are special applications of consent as a defense?

1. Consent standard must be adjusted in power relationship; 2. Voluntarily engaging in fighting/initating fight constitutes consent. Cosnet to medical procedures should be analyzed in the light of INFORMED consent.

33

When is self defense a defense to an intentional tort?

An individual may use reasonable force to defend himself when a reasonable person would conclude that it was necessary. OBJECTIVE STANDARD. Actual danger is not required; only necessary that person had reasonable grounds to believe that the danger existed. Exceeding scope of privilege may make individual responsible for an intentional tort.

34

When is defense of others a defense to an intention tort?

1. On same grounds as third party may defend himself; 2. Risk of mistake is borne by the person who attempts to defend another; 3. EXCESSIVE force may exceed privilege of defense; 4. Parents have a stuatory privilege for defense of their children.

35

When can arrest and detention give rise to defenses for intentional torts?

1. Oficcers of the law that act in accordance with a properly issued warrant are privileged in the actions taken which are necessary to arrest and detain the suspect; 2. Store owners are often privileged to detain a person for up to SIXTY MINUTES if they ave prob cause/reasonable belief that someone has stolen something from the store.

36

When does defense of property and recpature of chattels give rise to defense to an intentional tort?

1. Person in POSSESSION of the property is privileged to use reasonable force in the protection on that property. Cannot use DEADLY or EXCESSIVE force to defend property. 2. OWNER of chattel that was wrongfully taken from him is privileged to recpature such chattel. A STOREOWNER is privileged in recapture of stolen merch if in hot pursuit. Both bear the risk of mistake; both are governed by the limits of reasonable force.

37

When can a person use deadly force?

By LA stutate, a person who uses REAS and APPARENTLY nec or DEADLY force to prevent a FORCIBLE offense against the person or his proeprty. (self defense and justificable homicide). PRESUMPTION OF REAS BEL for occupants of dwellings and autos; negates generally the duty to retreat before using deadly force.

38

What is a public necessity; taking?

1. 5th and 14th amendments require that the govt compensate persons for property seized for future use; 2. If govt seizes proeprty for purpose of destruction to avert harm to others, then govt is not liable for damages.

39

What is private necessity?

A defense to trespass. 1. A person may trespass without liability in cases of a private necessity; 2. Any damage that is incurred to the P's proeprty is the responsibility of the trespasser.

40

What is the negligence standard?

Actor's conduct falls below an objective standard of care/substandard conduct results in injury to another. Elements: 1. Cause in fact--actually cause injury; 2. Duty/risk--did D owe a duty of care, and did duty extend to the risk?; 3. Did defendant breach the duty?; 4. Plaintiff must have suffered some compensable injury.

41

What are the elements of the duty/risk standard?

1. Traditional duty--what is the standard of care applicable to this defendant? 2. Scope of the duty--should D be responsible to this P, for this injury, which occurred in this manner, from this risk? VERY IMPORTANT YOU USE THIS.

42

What are the distinctions between Louisiana's negligence standard and the common law formulation?

1. Intentional torts--intent is measured by the subjective state of mind of the D. Negligence is measured by an objective standard. 2. Common law--reorders the elements and uses different langauge.

43

How is cause in fact proven under Louisiana law?

Cause in fact can be proven by applying one of TWO standards: 1. But-for causation;--if not for the defendant's negligence, the plaintiff would not have been injured. 2. Substantial factor causation--was the D's negligence a substantial factor in the injury of the plaintiff?

44

What is the relationship of the cause to the injury?

1. Relevant causation chain is drawn between the negligent act and the plaintiff's injury. 2. Whener plaintiff is able to PROVE causation depends upon the injury--if plaintiff claims lost change/increased risk of injury, causation is easier to establish. LA only recognizes lost change as a compensable injury in med mal cases. Medical monitoring is NOT a comepsnable injury.

45

How is duty defined?

Duty is defined by the standard of care applicable to the D. 1. Standard of care is an objective standard--the D must behave as a REASONABLE PERSON would behave. Higher standard than average. Takes into accoutnt he physical limitations of the tortfeasor BUT NOT MENTAL limitation. Child held to reas child standard, unless participating in a traditionally adult activity.

46

What are other ways to determine the appropriate standard of care/establish duty?

1. Negligence per se--non-tort statute may establish a standard; 2. Customary behavior may establish a standard; 3. Risk/duty utility--cost of precautionary activity balanced against expected loss; 4. Res ispa loquitur.

47

What is negligence per se?

A non-tort statute can be IMPORTED as a standard of care, which, if violated, allows an inference of negligence b/c it is the equivalent of breaching the duty of care. Questions: 1. ADMISSIBILITY--is non-tort statute admissible? 2. EVIDENTIARY VALUE--what value do we assign to the violation of the statute. Statutory breach is MERE EVIDENCE of negligence under LA law.

48

What are the two inquiries with respect to admissibility of non-tort statute?

1. Is the plainitff a part of the CLASS OF PERSONS the statute was designed to protect? 2. Is this risk within the CLASS OF RISKS the statute was designed to prevent?

49

What is res ispa loquitur?

Evidentiary doctirne that permits the inference of negligence. Elements: 1. Event is the kind that ORDINARILY does not occur in the absence of negligence; 2. Other responsible causes are SUFFICIENTLY eliminated by the evidence; 3. The indicated negligence is within the SCOPE of the D's duty to Plaintiff. Note: Res ispa is an INFERENCE the jury may make, not a presumption.

50

Is the res ispa standard the same as for directed verdict?

In LA, the standard for obtaining the res ispa instruction is the same as the directed verdict rule. If P proves all of the elements such that reasonable minds could not differ, then the DV is aarded. If reas minds COULD differ concerning the inference of negligence from the facts tehmselves, then the res ispa instruction is given. Note: Med mal may be governed by res ispa; but known risks of partic proc are not subject to res ispa.

51

When can custom be used for the standard of care?

1. Custom as a sword--may be used by P, arguing that D's failure to meet cust standard is evidence of breach; 2. Custom as a shield--D argues that it met the cust standard, and therefore has NOT breached the standard of care. Weak evidence.

52

What is the hand formula? Risk versus utility?

Duty can be imposed by a statute, standard of operation, or by applying a risk utility formulata. Looks at burden of precaut activity measured against possibility of resulting injury/mangnitude of injury/expected loss.

53

What is the scope of the duty/scope of the risk?

The SCOPE OF THE DUTY inquiry asks whether THIS defendant should be responsible to THIS plaintiff in THIS case. Several factors: 1. Foreseeable risk/foreseeable plaintiff; 2. Ease of association; 3. Superseding/intervening causes; 4. Policy considerations.

54

What constitutes foreseeability in the scope of duty/risk analysis?

Class of person and class of risk must be within the scope of reasonably foreseeable persons and risk. 1. Injury to the plaintiff must be foreseeable as a possible or probable injury to the protected class of plaintiffs. 2. The risk that occurs must be in the class of foreseeable risk. (LA only requires GENERAL TYPE of risk must be foreseeable).

55

What is the ease of assocaiton test?

This is the language used in the foreseeable analysis; I.e., is there an EASE OF ASSOCIATION between the class of person and the class of risk.

56

What are superceding vs. intervening causes?

1. An INTERVENING act is an action that occurs between the negligent act and th einjury. (Acts of God, acts of third parties); 2. A SUPERCEDING cause is one that will relieve D of liability--term that has LEGAL significance.

57

When is an intervening act superceding?

An intervening act is superceding if--1. More foreseeable or probable an event, the LESS likely it will be considered superceding; 2. The more FAULTY the intervening act, the MORE likely it will be considered superceding. Notes: Acts of God may be suerpceding, but regular event are not; suicide/criminal acts can be superceding UNLESS the duty to gaurd against suicide/criminal activity is reasonably foreseeable.

58

What are the policy factors that should be taken into account when determining the scope of the risk?

Need for comepsnation of losses; historical development of precedents; moral aspects of defendant's conduct; efficient adminstration of the law; deterrence of future harmful conduct; capacity to bear or distribute losses.

59

What constitutes BREACH of the duty?

1. D's condcut falls below the objective standard of reasonable conduct as defined by the duty; 2. Doctinres of NPS, RISK UTILITY/RES ISPA are all part of the breach analysis.

60

What constitutes harm/injury in the negligence analysis?

ACTUAL DAMAGE must be proven, either by showing personal injury damages or by showing damage ot proeprty. 1. NO recovery where there are not ACTUAL damages (e.g., an increased risk of cancer; 2. However, lost change IS recoverable in med mal cases; jury will determine value of the lost change. 3. LA does permit damage awards made for fear of contracting a disease AFTER you have been exposed to the disease.

61

What effect does controlling third parties have on the Louisiana duty/risk formulation?

In some instances, D may have a duty to guard against or control the foreseeable actions of third parties. 1. Caretakers--jailer's duty may extend to risk that person under their care will injure a third person; 2. Parents--parents have duty to control their children. 3. Owner of business must exercise reas care for safety of persons frequenting his bus; duty extends to keeping premises safe from unreas risks of harm/warning persons of known dangers.

62

What controls premises liability in slip and fall cases?

Burden of proof in claims against merchants is governed by LA Merchant Liability Act. 1. A merchant owes a duty of REAS care to keep asiles/floors in a reasonably safe condition which might reasonable give rise to damages. 2. Laintiff must prove FOUR ELEMENTS: 1. Condition presented unreas risk of harm; 2. Harm was reas foreseeable; 3. Merchant either created/had actual or constructive notice of condition which caused harm; 4. Merchant failes to exercise reas care. Absence of safety procedure is insufficient to show this element.

63

Define merchant and constructive notice in the context of slip and fall cases.

1. Merchant--One whose bsuienss is to sell GOODS/FOODS/WARES or MERCH at a fixed place of business. Does NOT apply to services only providers, e.g., banks. 2. Cosntructive notice--Condition existed for such a period of time that it would hav been discovered if the merchant had exercised reasonable care. 3. Note: slip and fall statute is NOT the exclusive remedy against store owner; can bring action also against employee who may have caused the customer's injury.

64

What is NIED? What are the elements?

1. Claimant need not be PHYSICALLY injuryed to receive mental pain/anguish damages arising out of injury of another. Plaintiff must either view injury causing event/come upon scene soon thereafter and before substantial change in condition. 2. Direct victim of traumatic injury must suffer such harm that it can be REASONABLY expected that plaintiff would suffer serious mental anguish; 3. Meotional distress must be serious and reas foreseeable; emotional injury must be server debilitating.

65

Who can bring a claim for NIED?

Only family memders--spouses/children; grandchildren/grandparents; parents (NOT in-laws); sibilings. ANY OR ALL of the family members may recover provided the other elements are met.

66

What is the standard of care in medical malpractice?

1. Care ordinarily possessed/exercised by members of the profession in good standing in the community; 2. Where alleged negligenct act raises issues peculiar to a MEDICAL SPECIALTY, the standard of care is that which is ordinarily practived by those involved in the medical specialty.

67

How is neglience proven?

1. Res ispa is applicable to med mal cases; 2. Judge should instruct the jury that INJURY alone does not raise a presumption of negligence, UNLESS the doctrine of res ispa is applicable.

68

Is lost change of servival compensable in med mal cases?

Yes-compensable damage. Issue in lost chance of survival cases is whether the tort victime lost any chance of survival because of the D's negligence and the value of that loss.

69

Are there any statutory guidelines for med mal under LA law?

Yes. LA leg enacted extensive legislation to govern area of med mal litigation. 1. Malpractice is defined as 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.

70

What ae the factors to apply when determining whether malpractice occurred under the med mal statute?

1. Was the wrong treatement related or caused by dereliction of prof skill? 2. Does the wrong require expert medical evidence to determine breach? 3. Did the wrong involve an assessement 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?

71

What is a health care provider under the med mal statute?

Person/partnership/corporation/facility/institution lecnesed by this state to provide health care/professional services.... RECENTLY AMENDED to include occupational therapist; licensed respiratory therapist;; licensed radiologic technologist; licensed clinic lab scientists; social worker; hospital admin; licensed prof counselor.

72

What is a QUALIFIED health care provider?

One who has obtained a minimum of 100 k insurance coverage for med mal liability. FOLLOWING APPLIES: 1. No suit can be filed until claim has been processed through med review panel, consisting of three HCP and a nonvoting atty chair; 2. Review panel will issue an opinion stating whether evidence supports conclusion that D failed to act with the app standard of care; 3. Prescription is suspended while the claim is under consideration; 4. Liability is limited to 100k per plaintiff, with a max of 500k, other than for future medicals. 500k cap is constitutional.

73

What is informed consent?

Regardless of the reasonableness of the surgery/its eventual necessity, a physician may NOT act beyond his patient's authorization, except when a situtation seriously threatens the health/life of the patient.

74

What is the standard for obtaining consent?

Doctor must act as a reas prudent person. 1. Duty to disclose all material risks which a reas person would attach signficiance to in deciding whether or not to undergo surgery; 2. No duty do disclose commonly understood/obvious risks. Phys is NOT required ot disclose risks that are NOT reas foreseeable. Causation standard: Would as reas person in P's position have consented to treatment had the MATERIAL risks been disclosed?

75

What is the Uniform Consent law?

LA has adopted the Uniform Consent law, which provides for written consent to medical procedures. Written consent has been held to be a REBUTTABLE, not conclusive presumption of consent. Disclsoure of material risks is satsified by obtaining consent in WRITING.

76

What is the rpescriptive period for medical malpractice actions?

1. One year with a discoery rule; but in NO EVENT beyond three years (I.e., files within three years from time P knew/should have known of the injury). 2. Three year preseciptive period is NOT peremptive, but prescriptive.

77

What is the professional negligence standard for attorneys?

1. Shifting burden--once client has established that his former atty accepted employment and failed to assert a timely clai, client has established PRIMA FACIE case that the atty's negligence caused him some loss--negligent atty must then overcome prima facie case by showing CLIENT would NOT have succeeded on the ORIGINAL CLAIM.

78

What is the time limit on malpractice actions agaisnt attorneys?

Malpractice actions agaisnt attorneys must be filed within ONE YEAR of the alleged act of malpractice or within ONE YEAR from the date of discovery of the act or ONE YEAR from when it should have been discovered. Must be filed within THREE YEARS. The three0year time period is PEREMPTIVE (unless it involved fraud/misapprop of client funds).

79

What is the standard of care in other professional negligence actions?

Architechts/accountants/other prof conduct will be judged under a customary standard.

80

What is the negligence standard for providers of alcohol?

LA statute limits the liability of those who are selling/serving/furnishing acloholic beverages. 1. CONSUMPTION of intoxicating beverages, rather than sale or serving or furnishing of such beverages, is the prox cause of any injury; 2. Permitted sellers are not liable for injuries OFF the premises UNLESS the intox bevs are served to an individual UNDER the lawful age. 3. Social hosts are NOT responsible for injuries occuring off the premises, unless consumed by indiviual under the lawful age.

81

Does Louisiana still have strict liability?

LA has eliminated MOST forms of strict liability. Note: LA distinguishes between strict liability and absolute liability.

82

What is strict liability for things and buildings in one's custody?

1. OWNER or CUSTODIAN of a thing is answerable for damage occasioned by its RUIN/VICE/DEFECT only upon a showing that he knew, or in the exercise of reasonable care, should have known of the ruin/vice/defect which caused the damage; the damage could have been rpevented by the exercise of reasonable care; and that he FAILED to exercise such reasonable care. This is NEGLIGENCE, not a strict liability standard.

83

What are the elements of negligence for harm occasioned by things in one's custody?

1. Ruin/vice/defect that creates an unreasonable risk of harm; 2. Ownership or CUSTODY of thing; 3. Actual knowledge (knew) or constructive knowledge (should have known) of the defect; 4. Damage could have been prevented by reas care; 5. D failed to exercise such reas care.

84

What is the neligence standard for buildings?

1. NEGLIGENCE standard now; not a strict liability question anymore. 2. Res ispa will still be considered in appropriate cases. Elements: 1. Building or appurtenance; 2. Ruin/vice/defect that creates an unreas risk of harm; 3. Actual knoweldge/cosntructive knowledge; 4. Ownership; 5. Causation--damage occurred through the defect or vice.

85

What is the neglience standard for landlord/tenant agreements?

Owner/lessor may contract AWAY from the strict liability imposed by the Civil Code in favor of a negligence standard by having the LESSEE assume responsibility for the condition of the leased premises. This means owner is liable for an injury caused by a vice or defect in the thing leased ONLY if the owner-lessor knew or should have known of the defect AND failed to remdy it within a reasonable amount of time.

86

What are the obligations of the neighborhood/?

The landowner's activities which DEPRIVE neighbors of enjoying their land/damage to their land, are liable for damages upon a showing that: 1. Landowner knew/reasonably should have known, that the activity would cause damage; 2. Damage could have been prevented by reasonable care; 3. Landowner failed to exercise such reasonable care. Merely causing INCONVENIENCE is not actionable.

87

Can an landowner be responsible in tort for the actions of its tenant?

Yes. The owern is a properietor under the terms of art 667. Same elements as obligations of the neibhgorhood; Must have CONSTRUCTIVE knowledge of the damage causing activity of the tenant/lessee.

88

What is the negligence standard with respect to children?

Generally, the father and mother are responsible for the damage occasioned by their MINOR child, who resides with them. . . However, NOT responsible for damage occasioned by minor child that has been emancipated by marriage/judgment of full or limited emancipation. Note: If the act of the child would be delictual EXCEPT for this disability, the parent with whom he resides is legally at fault and therefore liable for the damage occasioned by the child's act.

89

What is the negligence standard with respect to animals?

1. Negligence standard applies to all animals EXCEPT dogs--answerable for damage that he knew/should have known that his animal's behavior would cause damage. 2. Owner of a dog is STRICTLY liable for damage from dog, subject to a defense of provocation. Still requires a showing of unreasonable risk.

90

When will a tortfeasor be subject to absolute liability?

Absolute liability for an ultra-hazardous activity is strictly limited to pile driving or blasting with explosives. Defendants will be held liable regardless of knowledge/exercise of reas care.

91

What is the Louisiana Products Liability Act?

1. Act establishes EXCLUSIVE remedies against manufacturers of products for personal injury actions. ELEMENTS: 1. Defendant must be a manufacturer; 2. Damage must be proximately caused by a characteristic of the product that made it unreasonably dangerous when damage arose from a reasonably anticipated use of the product; 3. Must be unreasonably dangerous; 4. Must be reasonably anticipated use.

92

What constitutes a manufacturer under the LPLA?

A manufacturer is a person or entity in the business of manufacturing a product for plaement into trade or commerce. 1. One who labels a product as his own/holds himself out to be the manufacturer; 2. Seller who exercises control over design/construction/quality of the product; 3. Manufacturer of componenet parts; Seller of a product of an alien manuf if seller is in business of importing/distributing the product of resale and is the alter ego of alien manuf.

93

What characterisitcs constitute "unreasonably dangerous" for the purposes of the LPLA? Constrction or composition; design.

1. CONSTRUCTION/COMPOSITION--defect must exist at the time the product left the control of the manuf; product must contain a material deviation from identicaly products which cause them harm; strict liability theory and no knowledge fo the defect is required. 2. DESIGN--defect must exist when product left control/result from reas anticpated alteraiton; alternative design existed that would have prevented plaintiff's damage; and a balancing test would favor the plaintiff.

94

What factors are taken into account in a balancing test for design in the context of the LPLA?

1. Utility--moral/social/economic utility of the product; 2. Effects fo the alternative design on the utility of the product; 3. New or additional risks created by the new design; 4. Extent to which new design would have prevented/reduced harm; 5. Manuf has burden of proving that he could not have known of an alternative design.

95

What characteristics constitute "unreasonably dangerous" for the purposes of the LPLA? Inadequate warning;

1. Inadequate warning--defect must exist at time prod left control/result from reas anticip modification; adequacy of the warning is tested by the following factors--likelihood of and gravity of danger; feas of providing warning given sci/tech knowledge; manuf ability to ancticp that a user/handler would be aware of the danger/nature of potential danger.

96

What is the defense when no warning is given for products liability?

1. Danger was obvious to an ordinary, reas user; 2. User already knew/reas should have known the dang characteristic of the product; 3. Manuf did not know/reasonably could not know the dang characteristic; 4. Warning was not passed on by/for example, the seller, or the warnign was removed. Note: whenever manuf later learns/reas should have learned of a dang characteristic, he has a DUTY TO WARN.

97

What constitutes breach of manuf express warranty under the LPLA?

1. Defect must exist at the time the product has left the control of the manuf or result from a reas antic alteration/modification of the product; 2. Manuf made an express warranty to which the product did not conform; 3. Claimant was INDUCED to use the prod by the rep made; 4. Express warranty was untrue; 5. Claimant sustained damages prox causes bc the express warranty was untrue.

98

What is a reas ancitipated use under the LPLA?

Generally, damages must arise from a reas antic use of the product by the plaintiff or another person. If claimant misuses prodcut in direct contravention of a warning, his USE will not be reas ancit unless he can show that the manuf should have known that product users were using the product in contravention of certain warnings. NARROWER than previous "normal use" standard before the LPLA.

99

When can a non-manufcaturer be held liable for product malfunction?

1. May be held responsible throught an application of the LA duty/risk formulation of negligence; 2. Redhibition--product is not reas fit for its intended use. Plaintiff must prove that had he known of the defect he would have have bought the prod; no privity required; plaintiff must prove vice existed before sale, if vice arises within three days of the sale, this is presumed. DAMAGES: if seller unaware, limited to restitute plus expenses. if seller aware, can also obtain damages/attys fees.

100

What are the three elements of vicarious liability?

1. Must be an employment RELATIONSHIP--must be payroll or borrowed employee; 2. Employee must be engaged in activities which are within the course and scope of the employment relationship; 3. Employee/servant must have been faulty.

101

What constitutes an employment relationship for the purposes of vicarious liability?

1. Tytpically measured by a CONTROL test. Could the employer have exercised control over HOW the work was done? 2. A borrowed employer is liable for torts of borrowed employee--consider the following factors--1. Right of control; 2. Actual exercise of control by borrowing employer; 3. Relinquishment of control by the general employer; 4. Whether borrowed employee is doing the work for the borrowing employer.

102

What is the dual employment doctrine?

Lending employer remains liable for the torts of its loaned employee when the lending employer has an economic interest in the lending.

103

When will employers be held liable for the torts of independent contractors?

1. An employer is NOT vicariously liable for the torts of an IC. The test for determining whether an employee is an IC is whether the principal has the right to exercise control. The factors are: 1. Whether there is a contract between the parties; 2. Whether the contractor chooses the means for accomplishing the task; AND 3. Whether the object of the contract is a particular piece of work for a set price.

104

Wjhen will an employer be liable for the torts of an independent contractor?

1. Inherently/intrinsically dangerous activities; 2. Authorizing the performance of work in a manner which renders the work unsafe; 3. Injuries resulting from an ultrahazardous activity by hiring out the work to an IC.

105

What torts will the employer be liable for under a theory of vicarious liability?

The master/employer will be liable for the negligent acts of his servant/employee if the act is within the course and scope of employment. Factors to consider when determining course and scope: 1. Payment of wages; 2. Control over work/work methods; 3. Time/place/purpose of act; 4. Relationship between employee's act/employer's bus; 5. Benefits received by employer; 6. Employee's duty to perform particular act; 7. Reas expec of employe that employees would perform the act.

106

When does liability NOT attach in the context of vicarous liability?

1. Employers will not be liable for actions of employees when employees are engaged in FROLIC and DETOUR. Important that employee is going away from the business route and toward the personal objective. 2. Scope of risks attributable to an employer increase with the amount of auth granted to a servant in performing his assigned tasks.

107

When will an employer be vicariously liable for an employee's intentional torts?

1. If the intentional tort is within the course and scope of the employment, and the act is primarily employment rooted in and reas incident to employment duties. "So closely connected in time/place/causation to the employment duties that it constitutes a risk of harm attributable to the employer's business."

108

Can an employer seek indemnity from an employee?

Generally, the employer and employee are bound in solidio when there is a vicarious liability. If there is NOT a conventional release of the employe, the employwer can seek contribution in an incidental demand.

109

Does LA law permit a cause of action for negligent hiring?

Yes; the standard is whether the employer had recognized REAS CARE in hiring employees who, in the performance of their duites, will not subject third parties to a serious risk of harm.

110

What is comparative fault under LA law?

In any action for damages, amount of damages will be reduced in proportion to degree/percentage attributable to the person suffering the injury/death/loss. 1. TRUE COMPARATIVE FAULT STATUTE. Fault of ALL actors is compared, even phantoms/employers. 2. Plaintiff's recovery reduced by amount of his/her negligence, no matter what the percentage of his/her negligence is. 3. Comparative fault reduces recovery in strict/absolute liability cases.

111

What are the factors to be considered for assigning comparative fault?

WATSON factors: 1. Whether the conduct resulted from inadvertence/involved an awareness of the danger; 2. How great was the risk created by the conduct; 3. Significance of what was sought by the cnduct; 4. Capacities of the actors (whether superior or inferior); 5. Extenuating circ which might require the actor proceed in haste; and 6. Relationship between fault/negl conduct and the harm to the plaintiff.

112

Does express assumption of risk bar recovery?

Yes. ONLY express assumption of risk (WAIVER) is a COMPLETE bar to recovery. Other forms of assumption of risk are consumed by COMPARATIVE negligence (act as a type of contributory negligence, so falls within comparative negligence) Note: No duty in cases of INHERENT or OBVIOUS risk.

113

What is the general prescriptive period for most torts?

Generally, a period of ONE YEAR, and commences on the day after the occurrence of the incident and runs for the designated time period until the corresponding anniversary of the date of the incident.

114

What is the effect of interruption on multiple obligors for prescription periods with respect to torts?

When prescription is interrupted against ONE JOINT OBLIGOR, it is interrupted against ALL obligors and their successors. When prescription is interrupted against a successor of an obligor, the itnerruptive is effective against OTHER SUCCESSORS if the obligation is indivisible. If the obligation is DVISIBLE, interruption effective against other successors only for the portions for which they are bound.

115

What are special prescriptive periods?

1. Action for abuse of a minor--subject to a three-year liberative prescription period which commences from the day the minor reaches majority. Prescription is SUSPENDED until the minor reaches the age of majority. However, TEN-YEAR prescriptive period for sexual abuse; suspended until minor reaches age of majority. (must result in permanent impairment/phys injury/scarring)

116

What is contra non valentem?

Prescription does not run against those who cannot act. Circ where it applies: 1. Legal cause prevented the filing of a suit; 2. Some condition coupled with the contract/connected with proceeding that prevented creditor from suing or acting; 3. Debtor himself has done some act to prevent the creditor from availing himself of his cause of action; 4. Cause of action is not known/reas knowable by the plaintiff, even though his ignorance is not induced by D.

117

What is soveraign immunity?

LA Governmental Claims Act establishes a procedure and limitations for recovery against govt defendants: 1. Jury trials are prohibited unless the govt body waives the prohibition; 2. General damages are limited to 500k; 3. Discretionary/policy making acts are immune.

118

What is the public duty doctrine?

Limits the liability of a public entity for risks arising out of the faulty provision of govt serices. In order to establihs a public entity's liability for things, a plaintiff must establish: 1. Custody or ownership of the defective thing by the public entity; 2. Defect created an unreas risk of harm; 3. Public entity had actual/constr notice or knowledge of the defect; 4. Public entity failed to take corrective action within a reas time; 5. Causation.

119

What are the order of family immunities?

1. Spouses may NOT sue each other in tort; 2. Children may not sure parents; 3. When marriage is terminated/child emancipated, may sue for torts occurring during the period of the relationship. Prescriptive period begins when the relationship is terminated.

120

What si recreationaly land immunity?

LA law immunizes undeveloped property that is used for noncommercial recreational purposes.

121

What immunizes charitable and public service activities?

1. Immunity for a person who GRATUITOUSLY renders aid at the scene of an emergency UNLESS the plaintiff proves their actions to be intentional or grossly negligent; 2. Other immunity for Mardi Gras/St. Patty's day/HCP for grat services; persons working as school volunteers; persons working as school volunteers; providers of aprking lots; sheriffs for prisoners workind roadside; parish airports for damages done to aircraft.

122

What do you write on the bar exam about worker's compensation?

The Workers Compensation Act provides an EXCLUSIVE remedy for an employee against her employer or co-employee where the terms fo the statute are met. The compromise allows the injured employee to recover damages pursuant to the statute, but the employer and co-employee will be immune from civil tort lawsuits, EXCEPT for intentional acts.

123

What is the compromise for the LWCA?

1. Employee gets speedy access to a limited remedy and freedom from proving fault; 2. Employer enjoys immunity from most tort liability.

124

What are the two requirements to prove a workers comp claim?

1. Immunity only applies if there is an employer/employee relationship; 2. Injury must have arisen out of/in the course of, employment.

125

Who is an employee for the purposes of workers comp?

A person is classified as an employee, borrowed employee, or IC. 1. Presumption that a person rendering service for another is an employee; 2. Borrowed employee--look at selection and engagement; 3. IC--generally NOT employees for the purposes of workers comp, unless they perform labor that is an integral part of the employer's busines.

126

Who is an employer for the purposes of workers comp?

1. Payroll employer--may lose immunity if he has NO interested in the work being done by the payroll employee for the borrowing employer; 2. Borrowing employer--use same factors as for borrowed employee; 3. A statutory employer is entitled to immunity even if he does not pay benefits. Two ways in which workers comp applies to statutory/non-payroll employers: 1. Two-contrac thtoery--principal contracts to perform work, and then subcontracts it to another; 2. Trade business or occupation--integral relationship; 3. Written doc states that one is statutory employer, this writing creates a rebuttable presumption.

127

Can co-employees recover from other employees under workers comp?

No. Immunity precludes suit.

128

What are the requirements for the nature of the injury in the context of workers comp?

1. Needs to ARISE out of/IN COURSE of employment. Focuses on the time and place of the accident and the origin of the risk. 2. Must be a compesnable injury--personal injury by accident or occupational disease.

129

What will not be covered under the LWCA?

1. Horeseplay--if an employees behavior is a significant or abnormal deviation from the normal course and scope of his employment; 2. Personal disputes unrelated to employment--workers comp immunity does not apply if the injury occurred as a result of a personal dispute unrelated to employment; 3. INTENTIONAL ACTS--may recover both in tort and worker's compesnation for damages arising out of employer's intentional act; however, tort damages are offset against workers comp benefits.

130

Does joint and serveral (solidary liability) exist in LA?

No. Effectively eliminated by the LA legislature. Instead, each responsible parties are allocated a PERCENTAGE of fault and are responsible ONLY for their alloted share. Exception to intentional torts or consipracy--must agree as to the intended outcome or result of their acts.

131

What damages are available for a plaintiff in a tort action?

1. Nominal damages--available for SOME intentional torts; 2. Compensatory damages--returns the plaintiff to the position in which he would have been if he had not been injured; special damages--amout can be determined with certainty (must be sepcifically alleged in petition); general damages--amount is speculative; lost enjoyment of life damages. 3. Punitice damages--meant to punish D, only available if authorized by statute.

132

What torts occasion the use of punitive damages?

1. Driving while intoxicated--even if damage is only to property; 2. Sexual abuse of a minor--criminal sexual abuse of a victim 17 years or younger, if injureies were caused by wanton/reckless disregard for rights/safety; 3. Child pornogoraphy, regardless of whether D was criminally prosecuted for his acts.

133

What is the collateral source rule?

Injured plaintiff's tort recovery is NOT diminished because of insurance benefits received by plaintiff from sources independent of tortfeasor's procuration or contribution; ie D gets NO CREDIT for recovery obtained by P from a collateral source; can mean double recovery for P. Applies to insurance maintained by P; gratuities to P; and employment benefits and benefits from social legislation.

134

When may a plaintiff recover damages for economic loss?

A plaintiff MAY NOT recover economic loss caused by the negligent damage to the property of someone with whom plaintiff has a contractual relationship.

135

What may a plaintiff recover for proeprty damage?

1. Recovery will be either DIMINUITION in value for partial destruction, or FMV for TOTAL destruction. P is entitled to recover either 1. Damages including cost of restoration OR 2. Difference between value of property before and after the harm UNLESS it would result in economic waste UNLESS there is a personal reason for restoring the original condition or reason to believe that P will make repairs.

136

What damages may be recovered for mental anguish?

1. Uusally outside the scope of risk; not recoverable in property damage cases; 2. Recoverable if property is damage while you are present/experience a real psychological trauma in the nature of a physical injury.

137

When are damages recoverable for loss of consortium?

Generally, certain family members may recover for the loss of constorium they suffer as a result of a DIRECT injury to another family member. Persons who can recover for loss consortium are the SAME persons who can recover for wrongful death: spouses, children, parents, and siblings. Existence of beneficiary in a higher category PREEMPETS recovery by those in a lower category. Spouses and children are in first; parents are in second; sibiling in thirds; and then grandparents.

138

What are recoverable damages in the context of loss of consortium?

Loss of society includes love; companionship, and affection that the consortium plaintiff loses because of the trauma victim's injury. Service includes UNCOMPSENSATED household services previously provided by trauma victime.

139

What is a wrongful death or survival action?

Allow designated beneficiaries to bring tort actions when the tort victim dies. 1. Death is required. Tort victim must be dead. WRONGFUL DEATH--action brough by the beneficiaires to recover for damages suffered by the beneficiaries, e.g., loss of love, affection, services. SURVIVAL--allows designated beneficiaires to recover damages whcih the victime could ahve recovered if he had lived--what decedent suffered from time of injury until death; e.g., lost wages, pain and suffering. HERITABLE.

140

What is the effect of classing beneficiaries in wrongful death and survival actions?

ALL beneficiaries in one category may recover. Existnece of ONE beneficiary in a higher category precludes anyone in the lower categories from recovering. Order: 1. Surviving spouse and or children (adopted/legit/illegit); 2. Surviving parents (biological and adoptive parents); 3. Surivivng brothers and sisters; 4. Surviving grandparents; 5. Succession representative. Note: Survivial damages are shared equally by the survivors.

141

What are defenses to wrongful death and survival actions?

1. Victim fault--will reduce recovery in both survival and wrongful death actions; 2. Beneficiary's fault, e.g., conviction of crime involcing intentional/attempted killing of the decedent; 3. Settlement of decedent's personal injury claim--generally will NOT bar the wrongful death action unless there has been a pre-death release; can do so prior to decedent's feath. (however, may be barred); 4. PRESCRIPTION--prescribes one year from the date of death. (Failure to timely file within decedent's lifetime may bar SURVIVAL action; does not result in loss of wrongful death action).

142

What is the extent of multistate contacts?

1. Parties' domicile; 2. Transaction giving rise to dispute; 3. Location of the dispute's subject mater. Note: if a statute contains a conflicts provision, then that provision prevails over Book IV.

143

What is the scope of Article 3515?

Article 3515 is residual; if applies only if another more specific conflicts rule does not apply. Generally, if an ISSUE has MULTISTATE contacts, then it is governed by the law of the state whose policies would be most SERIOUSLY IMPAIRED if its law were not applies.

144

What is the process fo determining which law should apply?

1. Identify the policies implicated by the conflict (general policies) and (specific policies--those raised by the dispute) and then balance the relevant state policies in light of the relationship of each state to the parties and to the dispute.

145

What are false conflicts? What is decepage?

If only one state has an interest in having its law applied-- ie, the other state's policies would not be impaired if its laws were not applied, then apply its law. Decepage--if more than one issue has multistate contacts, then it is possible that the law of one state may apply to one issue, and the law of another state to another issue.

146

What is renvoi?

If the forum state determines that another state's laws apply, then: 1. General rule is that if another state's laws apply, then only its SUBSTANTIVE laws apply; 2. If a conflicts article states that a balancing test should be used in determining whether another's state's laws apply, then the conflicts law of that state MAY be taken into consideration.

147

What is the general rule for serious impairment test in the context of torts?

General rule: the law of the state whose policies would be most seriously impaired if its law were NOT applied will generally goven tort actions. Look to: 1. Pertient contacts/domicile or place of business of the parties/state in which the relationship between the parties was centered; 2. Policies of deterring wrongfuly conduct and repairing consequences of injurious acts in addition to those enumerated in Art. 3515.

148

What are rules regulating conduct and safety conflicts rules in the context of torts?

1. Use the law of the state in which the tortious act occurred if the injury occurred in that state/OR/injury occurred in another state whose law did not provide for a higher standard of conduct. 2. Otherwise--look to law of state where injury occurred provided that tortfeasor SHOULD HAVE forseen its occurrence in that state.

149

What are rules regarding loss distribution and financial protection in the context of torts?

1. If victim/tortfeasor were domiciled in the same state/states which have subst similar rules, apply the law of the state of injury; 2. If victim/tortfeasor were domiciled in different states, apply law of state where both injury/tortous act occurred; 3. When injury/tortuous act occurred in DIFFERENT states, apply the law of the state of injury if IP is domiciled there, tortfeasor should have foreseen its occurrence in that state, and the law of the state of injury provides a higher standard of financial protection for the IP then the law where the tortuous conduct occurred.

150

When does Louisiana law apply in a products liability action?

1. Injury was sustained in this STATE by a person domiciled/residing here; OR 2. Product was manufactured/acquired in this state and caused injury in this state or in another state to a person domiciled here. Apply THIS rule even if it is an issue of: conduct/safety; loss distribution; punitive damages (overrides).

151

When may punitive damages be awarded by a Louisiana court?

Punitive damages may NOT be awared by a Louisiana court UNLESS authorized: 1. By the law of the state where the tortuous conduct occurred and by either the law of the state where the injury occurred or the law of the tortfeasor's domicile; 2. By the law of the state in which the injury occurred and by the law of the tortfeasor's domicile.

152

What is the domicilary rule for juridical persons in tort actions?

Juridical persons domiciled OUTSIDE Louisiana that conducts business in LA and incurs tort liablity as a result of activity within this State shall be treated as a Louisiana domicilary.