Torts Flashcards
(247 cards)
1
Q
Elements of an intentional tort
A
Voluntary act Intent Causation Harm No privilege or defense
2
Q
Battery defined
A
an intentional act that causes a harmful or offensive contact with the plaintiff or with something closely connected to the plaintiff (like plate s/he’s holding, or a hat s/he’s wearing)
3
Q
Harm of offensive contact defined
A
the contact would inflict pain or impair any bodily function OR if a reasonable person would regard the contact as offensive
4
Q
Need the plaintiff be immediately aware of the contact made for a battery?
A
No. Unlike assault, the plaintiff need not be immediately aware of the contact. He can learn about it after the offense.
5
Q
Assault defined
A
The intentional act that causes the plaintiff to have a reasonable apprehension of an immediate harmful or offensive contact.
The defendant must either:
(1) act with the desire to cause an immediate harmful or offensive contact or the immediate apprehension of such a contact; or
(2) know that such a result is substantially certain to occur.
6
Q
Normally an assault would only be actionable if a reasonable person would also suffer as the plaintiff did. The one exception to that rule is:
A
If a normal and reasonable person in the plaintiff’s position would not have experienced apprehension, but the defendant had knowledge of a particular weakness or vulnerability in the plaintiff and took advantage of it, liability will result.
7
Q
False imprisonment defined
A
an intentional act that causes the plaintiff to be unlawfully confined or restrained to a bounded area against her will AND the plaintiff knows of the confinement OR is injured thereby. The duration of confinement is immaterial.
There must be no means of escape about which the plaintiff knows, and the plaintiff is under no duty to resist if there is a reasonable threat of force.
8
Q
Intentional infliction of emotional distress
A
the intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe mental distress
9
Q
Reckless element in Intentional infliction of emotional distress
A
the defendant acted with a deliberate disregard of a high degree of probability that emotional distress will follow
10
Q
The element of extreme and outrageous conduct for Intentional infliction of emotional distress is satisfied if the defendant’s conduct is:
A
beyond the bounds of decency; conduct that a civilized society would not tolerate
11
Q
In Intentional infliction of emotional distress cases, offensive or insulting language is generally not considered outrageous, except
A
in cases involving defendants who are common carriers or innkeepers, or plaintiffs with known sensitivity, such as the elderly, children, or pregnant women.
12
Q
Trespass to land
A
an intentional act that causes a physical invasion into the plaintiff’s land. Mistake is not a defense to a trespass action.
EXAMPLE: Don believes that he is the rightful owner of a grove of pecan trees near his property line. However, the trees are actually on Pam’s property. Don cuts down several of the trees. Pam has an action in trespass.
13
Q
The element of physical invasion under the law of trespass to land is satisfied if
A
- the defendant enters a third party’s land or causes a third person or object to enter the plaintiff’s land
- enters the plaintiff’s land lawfully, but then refuses to leave
- fails to remove an object from the plaintiff’s land when there is a clear duty to do so
NOTE: land includes both the air space and minarals below ground
14
Q
Removal of Trees (timber trespass). A person who unlawfully or without authorization cuts, fells, destroys, or removes any trees growing or lying on another’s land is liable for three times the fair market value of the trees if the violation was committed:
A
- willfully and intentionally or
- in good faith, but under such circumstances that the violater should have known that his actions were without the consent of the owner of the trees
15
Q
Conversion is
A
the unlawful interference with the ownership or possession of a movable (personal property).
The plaintiff is required to prove the fault on the part of the defendant under La.Civ.Code art. 2315
16
Q
Under Louisiana law, a conversion occurs when
A
(1) possession is acquired in an unauthorized manner;
(2) the chattel is removed from one place to another with the intent to exercise control over it;
(3) possession of the chattel is transferred without authority;
(4) possession is withheld from the owner or possessor;
(5) the chattel is altered or destroyed;
(6) the chattel is used improperly; or
(7) ownership is asserted over the chattel.
17
Q
Is there such thing as trespass to chattels in Louisiana?
A
No.
18
Q
Mnemonic for defenses to intentional torts
A
POPCANS
19
Q
defenses to intentional torts
A
POPCANS: Privilege, Defense of Others, Defense of Property, Consent, Authority, Necessity, Self-defense.
20
Q
A privilege (i.e. a defense against an intentional tort) may exist where
A
- the person affected by the D’s conduct consented to the conduct
- some important personal or public interest was protected by the D’s ordinarily prohibited conduct AND protecting this interest justified the harm caused or threatened
- the D must act freely to perform an essential function
The defendant bears the burden of proving privilege
21
Q
Consent (defense to intentional tort)
A
the consent must be effective, and the D must not exceed the scope of that consent
consent can be either express or implied (under the circumstances, a reasonable person would understand the person’s conduct to indicate consent)
22
Q
Consent may be found to exist as a matter of law where the plaintiff is unable to consent, and:
A
(a) emergency action is necessary to prevent his death or serious injury;
(b) a reasonable person would be expected to consent under the circumstances; or
(c) no reason exists to believe that the plaintiff would not consent.
EXAMPLE: Della falls and hits her head, splitting it open. She is unconscious. A surgeon may operate to repair the damage under the premise that Della would have consented had she been awake.
23
Q
When acting in self-defense, the degree of force allowed
A
A defendant otherwise acting in self-defense may only use the degree of force reasonably necessary to avoid the harm threatened by the plaintiff.
24
Q
Even where there is actually no harm threatened against the defendant, he may successfully assert self-defense if
A
a reasonable person in the same circumstance would have believed that he was under attack. Thus, so long as the defendant subjectively (i.e., honestly and in good faith) believes that a sufficient threat exists to justify defensive force, and there is an objective basis for that belief (i.e., a reasonable person would believe so under the circumstances), self-defense is available.
25
A defendant may lose his self-defense privilege if
he becomes the aggressor by pursuing or inflicting bodily injury upon the original assailant beyond the necessary bounds.
26
The use of deadly force is reasonable where
serious bodily harm is threatened. The threat must be imminent.
To justify the use of deadly force in self-defense, the defendant’s fear of danger must be both genuine and objectively reasonable.
27
Is a person not engaged in unlawful activity and in a place where he has a right to be under a duty to retreat prior to using deadly force?
(Stand your ground rules)
No.
28
If a person acting in self defense inadvertently injures a third party, is he liable to that third party in tort?
No. Where a defendant otherwise properly acts in self-defense, he is not liable for an intentional tort if he thereby inadvertently inflicts injuries on innocent third persons.
(1) However, that defendant will be liable if he deliberately injures a third party, and may be liable for negligence if he unreasonably inflicts such injuries in the course of defending himself against an attack by the plaintiff.
29
Defense of others
A defendant is entitled to defend another person from an attack by the plaintiff to the same extent that he would be lawfully entitled to defend him or herself.
30
Defense of others, Reasonable Mistake Doctrine
Under the reasonable mistake doctrine, a defendant is relieved of liability where the third person would not be permitted to assert self-defense against the plaintiff if a reasonable person in the defendant’s position would have believed that defense of the third person was justified, and that the defendant’s action was necessary to prevent harm to the third person.
31
Defense of property
a defendant can use reasonable force to prevent the plaintiff from committing a tort against the defendant's property
32
Before using force in defense of property, a person must
demand that the plaintiff cease the conduct that threatens injury to his property before he can use force in defense, unless it would be futile or dangerous to make such a demand.
33
Is it ever permissible to use deadly force to protect one’s property from injury?
No.
34
A defendant may use reasonable force to promptly recover his personal property if tortiously dispossessed of that property by the plaintiff, but the defendant must
(1) The defendant must act with reasonable diligence to discover the dispossession and to recover his property. This has often been described by the courts as a requirement that the defendant be “in hot pursuit” of the tortiously dispossessing person.
(2) The defendant may also use reasonable force to recover such property from a guilty third party.
35
May a defendant use force to recover property taken under claim of right?
No. Even if otherwise proper, a defendant may not use force to recover property as to which the plaintiff came into possession under a claim of right.
36
Is reasonable mistake a defense against a plaintiff from whom he recovered property under the reasonable belief that the plaintiff tortiously dispossessed him of the property?
No.
37
If otherwise proper for the defendant to use reasonable force to recover property, the defendant may enter upon the land of the plaintiff or guilty third party in order to effectuate the recovery. However,
(1) Such entry must be at a reasonable time and must be accomplished in a reasonable manner.
(2) The same rule applies if the property is on the land of an innocent possessor, but the defendant will be held liable for any actual damage such entry causes.
EXCEPTION: A defendant may not enter upon the land of an innocent party and recover tortiously dispossessed property if that property has come to rest there as a result of the defendant’s fault.
38
The defense of necessitiy
a defendant is authorized to injure the plaintiff's property if this is reasonably necessary to avoid a substantially greater harm to the public, to himself, or to his property.
(1) The defendant may successfully assert this defense if a reasonable person in the same circumstance would believe it necessary to injure plaintiff’s property.
(2) Mistake: If the defendant reasonably but mistakenly believes that his actions are justified under the objective standard set forth, he is privileged to act, even if it subsequently is established that there was no actual necessity.
39
If the defendant is acting to protect private, individual interests, he is justified in doing so if the threatened harm he is acting to avoid is substantially greater than the harm that will result from the action he actually takes.
But will the defendant be liable for damages?
Yes. In this case, the defendant is still liable for any actual damage to the plaintiff’s property, but is not liable for trespass.
40
If the defendant is acting to protect a public interest, he is justified in doing so only if the threatened harm is severe.
But will the defendant be liable for damages?
No. When acting out of public necessity, the defendant incurs no liability whatsoever for damage to the plaintiff’s property.
41
If a police officer has an arrest warrant and reasonably, but mistakenly arrests the wrong person, is he liable to that person for damages?
No.
42
Where a police officer or private citizen acts to prevent a felony that is being committed or appears is about to be committed in her/his presence, he is not liable for an intentional tort upon such arrest.
May a defendant assert this defense even if he was mistaken as to whether a felony was actually being committed?
1. A police officer is not liable in tort for a warrantless felony arrest, even if he makes a mistake about whether a felony was committed or about the identity of the person who committed the felony, so long as the mistake is reasonable.
2. Where a private citizen makes a felony arrest but makes a mistake about whether a felony was committed, the defense of authority is not available, even if the mistake is reasonable.
3. If a felony was committed, but the private citizen making the arrest was mistaken about the identity of the person who committed the felony, the defense of authority is available if the defendant’s mistake as to identity is reasonable.
43
A police officer or private citizen is not liable for an arrest made without a warrant for a breach of the peace.
May a defendant assert this defense even if he was mistaken as to whether a breach of the peace was actually being committed?
A defendant may assert this defense even though s/he was mistaken in her belief that a breach of the peace was being or about to be committed, so long as the mistake is reasonable.
44
Merchant’s Privilege
Pursuant to La. Criminal Procedure Code article 215, a peace officer, merchant, or a specifically authorized employee or agent of a merchant, may use reasonable force to detain a person for questioning on the merchant's premises, for a length of time, not to exceed 60 minutes, unless it is reasonable under the circumstances that the person be detained longer, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods.
A merchant may assert this defense, even if the detained plaintiff has not, in fact, stolen any property, so long as the merchant’s mistake is reasonable.
45
When determining whether the length of a detention under the merchant's privilege is “reasonable under the circumstances”, Article 215 instructs that the following should be considered
(a) the value of the merchandise in question;
(b) the location of the store;
(c) time it takes the police to respond;
(d) the cooperation of the person detained; and
(e) any other relevant circumstance that should be considered with respect to the length of time a person is detained.
46
May teachers and others charged with maintaining discipline use force against another person's child?
Yes, so long as the force used is reasonable under the circumstances.
47
Force that is reasonably necessary to maintain discipline varies according to the circumstances. Factors considered include:
1. the nature of the conduct
2. the age, sex, and physical condition of the disciplined child
3. what the child did to warrant the discipline
48
The duty-risk analysis consists of
```
cause in fact
duty
breach
scope of duty
damages
```
For a plaintiff to recover on a negligence theory, all five inquiries must be affirmatively answered.
49
cause in fact
(1) Cause in fact is generally a “but for” inquiry; if the plaintiff probably would have not sustained the injuries but for the defendant's substandard conduct, such conduct is a cause in fact. Stated differently, the inquiry is “Did the defendant contribute to the plaintiff's harm or is the defendant a cause of the plain-tiff's harm?”
(2) An alternative method for determining cause in fact, which is generally used when multiple causes are present, is the “substantial factor” test. Under this test, cause in fact is found to exist when the defend-ant's conduct was a “substantial factor” in bringing about plaintiff's harm.
50
Breach
Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law-statutory or juris-prudential-to support his claim.
51
Action within the scope of the duty owed?
There is no “rule” for determining the scope of the duty. Although Louisiana courts have used the terms proximate cause, legal cause, and duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty.
consider it an ease of association. was what happened foreseeable?
52
Duty refers to
an obligation recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks.
Where a defendant engages in conduct that is claimed to have injured a plaintiff, the issue can be framed: Did the defendant have a duty to the plaintiff to conform to a certain standard of conduct?
53
In the Palsgraf case, Justice Cardozo articulated the rule that a defendant owes a duty only to
foreseeable plaintiffs. Justice Cardozo’s view is the prevailing view, and the view followed in Louisiana courts.
54
Under the American Rule, there is no general duty to aid a person in peril.
EXAMPLE: Cliff sees Norma injured by the side of the road. Late for an appointment, Cliff does not stop to help Norma. Norma bleeds to death. Norma’s estate does not have a cause of action against Cliff.
However,
if the defendant’s conduct is responsible for placing the plaintiff in a position where he requires aid, the defendant does incur a duty to take action to aid the plaintiff.
55
Are rescuers considered foreseeable plaintiffs?
Virtually all jurisdictions, including Louisiana, agree that rescuers are per se foreseeable plaintiffs, and thus are owed a duty of care.
(1) For a plaintiff to qualify under rescuer status, he must be attempting to protect human life.
56
Although a defendant ordinarily has no duty to take affirmative action to aid a plaintiff, once the defendant actually undertakes such action
he has a duty to exercise reasonable care and act reasonably to effectuate the rescue
57
The following relationships have been generally recognized as triggering the duty to care for a plaintiff:
(1) employer/employee during and in the scope of employment;
(2) common carrier and innkeeper/customer;
(3) school/pupil;
(4) parent/child;
(5) business/patron; and
(6) jailer/prisoner.
58
Professional Rescuer’s Doctrine
Police and firemen injured in the court of their duties assume the risk of such injuries and are generally not entitled to damages, subject to a few exceptions:
1. the risk encountered is so extraordinary that the rescuer is deemed not to have assumed it or
2. the defendant's conduct is so blameworthy that the tort recovery should be imposed for the purposes of punishment or deterrence
A professional rescuer may also recover for an injury caused by a risk which is independent of the emergency or problem for which he has assumed the risk to remedy.
59
There is no duty to control the conduct of third parties as to prevent them from causing physical harm to another, unless:
(1) a special relationship exists between the actor and the third person that imposes such a duty upon the actor
EXAMPLE: Dean is in a movie theater sitting next to Perry. Dean and Perry do not know one another; they just happen to be sitting in adjacent seats. Perry gets very angry with the usher because the usher tells him to take his feet off the seat in front of him. If Perry decides to slug the usher, Dean has no duty to control him.
(2) a special relationship exists between the actor and the other person that gives the other person a right of protection.
EXAMPLE: Dean is in the movie theater sitting next to his son when Tina enters. Tina takes one look at Dean’s son, realizes that he is the kid who bit her child on the playground, and lunges at him. Dean has a duty to protect his son from Tina and to control her conduct.
60
Who is responsible for damages caused by unemancipated, minor children residing with their parents, or who have been placed by their parents under the care of others?
The parents are strictly liable
(1) If placed under the care of others, parents reserve recourse against those persons.
(2) Tutors of minors bear the same responsibility as parents
61
A master is under a duty to exercise reasonable care to control his servant while acting outside the scope of his employment in order to prevent the servant from intentionally harming others, or creating unreasonable risk of bodily harm to them, but only if
(1) the servant is:
(a) on the master’s land;
(b) on land where he is privileged to enter only as his master’s servant; or
(c) using a chattel of the master; and
(2) the master knows or should know:
(a) that he has the ability to control his servant
(b) has the opportunity to exercise such control
EXAMPLE: Darnell owns Silver Skates, an ice skating rink in Coldville. Ellie is a skating teacher at the rink. Darnell is in the office overlooking the rink one day when he sees Ellie, who is supposed be taking the day off, performing skating lifts with skaters that Darnell knows to be beginners. Darnell knows that beginning skaters are not ready to do lifts and can hurt themselves if they do. Darnell has a duty to intervene to protect the students if he is able to do so
62
One generally does not have a duty to protect a person from third party criminal conduct. However, a special relationship may trigger a duty, such as the relationship between a:
(a) parent and child;
(b) employer and employee;
(c) carrier and passenger;
(d) innkeeper and guest;
(e) shopkeeper and business visitor;
(f) restaurateur and patron;
(g) jailer and prisoner; or
(h) teacher and pupil.
EXCEPTION: Specifically in the context of a business owner and his patrons, although there is generally no duty to protect a person from third party criminal conduct, a duty may arise under limited circumstances wherein a business owner has a duty to take reasonable measures to protect its patrons from foreseeable criminal acts. The greater the likelihood of these acts, and the greater the severity, will lead to an obligation to take more significant measures.
63
A public entity, which includes all governmental bodies as well as housing authorities, plus any agents or subcontractors of a public entity, has a duty
care over property owned or in the custody of the entity.
64
A public entity has the duty to ensure
the public’s use and possession of the property, but it is not an insurer of the safety of members of the public. The entity must keep the property reasonably safe. Maintaining the property in perfect condition is not necessary.
65
A public entity is not liable for
damages resulting from a defective condition without proof that the entity had actual or constructive knowledge prior to the occurrence of the particular vice or defect causing the damage, AND the entity had a reasonable opportunity to remedy the defect and failed to do so.
66
Under the general duty statutes, to bring a successful claim for being injured on public lands (tripped on uneven sidewalk) against a public entity, the plaintiff must prove that
the vice or defect is a condition that poses an unreasonable risk of harm, considered in light of all relevant moral, economic, and social considerations.
67
Under the La. Constitution, there is no sovereign immunity for government entities from suits in contract or tort.
But there is a cap on general damages for personal injury or wrongful death in suits against government entities, exclusive of property damage, medical care, and loss of earnings. What is it?
$500,000
Medical treatment following a personal injury judgment must be paid from a government reversionary trust directly to the health care provider.
68
La. Rev. Code 9:2798.1 gives public entities, officers, and employees immunity from liability when
performing policymaking or discretionary acts properly within the scope of their official duties
69
La. Rev. Code 9:2793.1 gives police officers, fire-fighters, and others immunity when
responding to an emergency, unless their actions result from willful or wanton misconduct or gross negligence.
70
The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to
act reasonably in view of the probability of injury to others.
Each case turns on its own facts, determining the extent of the duty owed, and the resulting degree of care needed to fulfill that duty.
71
The attractive nuisance doctrine creates a heightened standard of care for artificial conditions that have a foreseeable risk of unreasonable danger to trespassing children, where
the risk of such danger outweighs the utility of the artificial condition.
72
For the attractive nuisance doctrine to apply there must ordinarily exist a
hidden trap or inherently dangerous instrumentality peculiarly attractive to children.
73
A landowner owes no duty to warn of any hazardous condition or to keep his premises safe for entry or use by others for any recreational purpose, unless
the landowner operates a commercial recreational facility on the land.
EXCEPTION: The immunity provided by this statute does not apply to a landowner’s willful or malicious acts, which cause a plaintiff injury.
74
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that
1. he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage
2. that the damage could have been prevented by the exercise of reasonable care
3. that he failed to exercise such reasonable care.
Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
75
In order for the plaintiff to recover against Owners or Custodians of Things such as Buildings, Elevators, and Sidewalks, she must prove by a preponderance of the evidence that:
1. a defect existed on the premises
2. the defect caused the plaintiff's damages
3. the owner or custodian knew or should have known of the defect that caused the damage
4. the damage could have been prevented through the exercise of reasonable care,
5. the owner failed to use reasonable care
76
Defect defined
A defect under Art. 2317.1 is a condition creating an “unreasonable risk of harm.” The fact that a person fell or is injured on the premises of another does not elevate automatically the condition of the premises to that of an unreasonably dangerous defect.
To be a defect, the imperfection must pose an unreasonable risk of injury to those exercising ordinary care and prudence
77
Whether a defect is actionable depends on the trier of fact, who decides whether
the social value and utility of the hazard outweigh, and thus justify, its potential harm to others, which means the risk of harm is reasonable
78
A landowner is liable to his neighbor for any damage caused by activities performed on his land where
he knew, or through the reasonable exercise of care should have known that his works would cause damage
the damage could have been prevented through the exercise of reasonable care
the landowner failed to exercise reasonable care
79
Inconvenience: A landowner is permitted to conduct activities on his land that merely inconvenience his neighbor so long as
they don’t result in real damage.
80
The owner of a building has a duty to keep it in repair so that neither its fall nor that of any part of its materials causes damage to a neighbor or passerby. However, he is liable for damages only upon a showing that
he knew, or through the reasonable exercise of care should have known of the defect that caused the damage
the damage could have been prevented through the exercise of reasonable care
the owner failed to exercise reasonable care
81
Under Civil Code article 2321, the owner of a dog is strictly liable for damages for
injuries to persons or property caused by the dog, which the owner could have prevented and which did not result from the injured person's provocation of the dog.
82
Absent a statutory standard, a defendant breaches his duty to a plaintiff if he fails to conduct himself as
a reasonable person would in like circumstances (i.e., failing to exercise ordinary care).
83
The reasonable person standard is applied as though the reasonable person possessed the same physical characteristics as the defendant EXCEPT
The conduct of defendants whose cognitive abilities are diminished due to mental illness, mental disability, or intoxication is assessed without such diminishment of abilities.
84
Reasonable person standard. In an emergency situation, the court considers
how a reasonable person would act while taking into consideration the excitement and confusion which normally accompany an emergency situation
85
Evidence of custom is relevant, but not conclusive, meaning
The trier of fact may find that the customary manner of behavior was not reasonable under the circumstances, or that a reasonable person would have engaged in behavior other than what is customary.
86
Deviation from custom; Compliance with custom
A plaintiff may introduce evidence of the defendant’s deviation from custom as evidence of the defendant’s unreasonable conduct. Conversely, a defendant may introduce evidence of compliance with custom to show the reasonableness of his conduct.
EXAMPLE: In trying to show that her landlord, Willie, was negligent for failing to install unbreakable glass in her shower, Penny may introduce evidence that most landlords use unbreakable glass. This evidence is persuasive, as it suggests that the burden of using unbreakable glass is not too great.
87
Where a defendant’s conduct also violates a duty created by a criminal statute, the criminal statute will serve as
a guideline for the court to determine the duty of care owed by the defendant to the plaintiff.
88
Civil liability will be attributed to the defendant based upon the standard of care delineated in the criminal statute if:
1) the injury caused by the defendant’s conduct is the type that the statute was intended to prevent; and
2) the plaintiff is a member of the class intended to be protected by the statute.
EXAMPLE: To prevent children from getting poisoned, the legislature passes a law making it a crime to sell toxic substances without a child-proof cap. Rat-Co fails to put a child-proof cap on its rat poison. Four-year-old Pablo finds the rat poison, drinks it, and suffers harm. Even though the statute is criminal in nature, it would become the standard of care because it was designed to protect children from ingesting poison.
89
A defendant’s violation of an applicable statute is excused if compliance with the statute
(a) would have resulted in a harm greater than the harm produced by the violation; or
(b) would have been impossible.
(2) A few statutes are regarded as so important that their violation cannot be excused as a matter of law (e.g., the statutory obligation to maintain a vehicle’s brakes in proper working order).
90
Compliance with a statute is regarded as
mere evidence on the issue of whether a defendant breached his duty of care, and does not raise any presumption of non-negligence in the defendant’s favor.
91
When applied to children, the reasonable person standard specifically takes account the child’s
age, maturity, intelligence, experience, and knowledge, both generally and as to the particular situation involved, which means that exceptionally bright children will be held to a higher standard than children of average or below-average intelligence.
EXAMPLE: Darlene is seven years old and is very intelligent. One day, she leaves her roller skates on the front walk. Patrick, who is walking down the walk, does not see the skates and slips and falls on them, breaking his leg. If Patrick sues Darlene, her act of leaving the skates on the walk will be compared with that of a seven-year-old with similar experience and intelligence.
92
Children engaged in adult activities are held to what standard of care?
An adult standard
EXAMPLE: Nine-year-old Francis takes his dad’s motorboat out for a spin. While driving the boat across the bay, he hits Joanne, a swimmer, and knocks her unconscious. Joanne drowns. If Joanne’s estate sues Francis, he will be held to the objective, adult, reasonable person’s standard of care.
93
General rule for standard of care for professionals
those who hold themselves out to be professionals must exercise the care and skill of a professional practicing in the same general locality
94
General rule for standard of care for public utilities
required to exercise the utmost care to reduce hazards to life as far as practicable
95
General rule for standard of care for common carriers
their heightened standard of care has been described as stringent
96
General rule for standard of care for innkeepers
must take reasonable precautions to protect their guests from the criminal activities of third parties
97
General rule for standard of care for hospitals
(1) A hospital must exercise the requisite amount of care toward a patient that the particular patient’s condition may require, depending upon the situation.
(2) In general, it is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control.
98
General rule for standard of care for physician
A physician must exercise the degree of care ordinarily exercised by licensed physicians practicing in the same community or locality under similar circumstances.
99
General rule for standard of care for specialists
(e.g., orthopedist) must adhere to the national (not local) standard of care
100
Under Louisiana’s Uniform Consent Law, a physician or health care provider’s failure to adequately disclose the risks and hazards involved in medical care or a surgical procedure exposes him to
an action for negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
However, the physician or health care provider need not disclose every possible risk.
101
Louisiana Medical Malpractice Act (MMA)
Under the MMA, La. Rev. Stat. 40:1231.1, et seq., there is no liability on the part of a Qualified Healthcare Provider (QHCP) for any alleged breach of contract or warranty, assuring results to be obtained from any procedure, unless the contract is in writing and signed by the provider.
(2) To prevail under a medical negligence claim, a plaintiff must show duty, breach, cause in fact, legal cause, and damages.
102
A Qualified healthcare provider (QHCP) is
A health-care provider carrying medical malpractice insurance of $100,000 per claim is a Qualified Health Care Provider
103
What is a Qualified healthcare provider's claims for liability for personal injury and death capped at?
liability for claims for personal injury or death is capped at $100,000.
104
For a claim for personal injury or death against a qualified healthcare provider, the overall cap for damages for a single plaintiff, regardless of the number of defendant QHCPs, is
$500,000, exclusive of future medical costs.
Future medical costs are paid by the Patient Compensation Fund, which is funded by an annual surcharge on all QHCPs.
105
Claims against QHCPs are premature unless
the future plaintiff convenes a medical review panel through the State Division of Administration. Filing a request for a panel is the exclusive way to suspend prescription in med malpractice cases.
106
All medical malpractice claims are subject to a 1 year/3 year prescriptive period: 1 year from the date of the act or from the discovery of the act, but in no event more than three years from the act. Once the medical review panel issues its ruling, the plaintiff has
90 days (plus any unused time) within which to file suit in a court of competent jurisdiction and venue, if litigation is needed.
107
Claims against QHCPs are premature unless the future plaintiff convenes a medical review panel through the
State Division of Administration
108
May damages be collected for the loss of a chance of survival in a late-diagnosis case?
Yes. Thus, even if the plaintiff can’t prove that the patient more likely than not would have survived, the lost chance is compensable.
109
A defendant breaches his duty to a plaintiff where
his conduct falls short of the objective standard of reasonable conduct as defined by his duty.
110
Res Ipsa Loquitur
Where the plaintiff does not know and cannot effectively determine specifically the nature of the defendant’s injurious conduct, he may invoke the doctrine of res ipsa loquitur.
b. Res ipsa loquitur (“the thing speaks for itself”) is an evidentiary rule whereby a defendant’s negligence is inferred because the facts indicate such to be the most probable cause of the injury.
111
A plaintiff must establish that three requisites are present in order to invoke the doctrine of res ipsa loquitur:
1. The injury is the kind that doesn't ordinarily happen without negligence on someone's part*
2. The evidence sufficiently eliminates other, more probable causes
3. The alleged negligence of the defendant must be within the scope of the defendant's duty owed to the plaintiff.
*The plaintiff is not required to show that negligence is the only possible cause of the alleged injury-causing event; it is enough if the trier of fact finds that negligence was more likely than not the cause.
112
A showing of res ipsa loquitur has the effect of
shifting the burden of proof to the defendant, who must then come forward and introduce evidence in order to exculpate himself from negligence.
113
The open and obvious nature of a hazard may establish that
a defendant owed no duty (or breached no duty) to a plaintiff. That is, if the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff.
114
Cause-in-fact is established when
it is shown by a preponderance of the evidence that the defendant’s conduct was a factor in bringing about the harm to the plaintiff.
115
preponderance of the evidence means
more likely than not (51%)
116
When to use the "But for" test
When there is only one factor.
A defendant’s conduct is the cause-in-fact of an event if that event would not have occurred “but for” the existence of the conduct.
117
When to use the "substantial factor" test
In situations where multiple factors contribute to causing the plaintiff’s injury, Louisiana courts employ the “substantial factor” test, under which a cause-in-fact is found to exist where the defendant’s conduct was a substantial factor in bringing about the plaintiff’s harm.
118
Where the plaintiff demonstrates that the injury resulted from conduct engaged in by several defendants, each acting independently, but cannot identify which particular defendant’s conduct actually injured him, each defendant’s conduct may be regarded as
a cause-in-fact of the plaintiff’s injury.
EXAMPLE: Aaron negligently sets a fire that would have burned down Jerry’s house on its own. Separately, Judith negligently sets a fire that also would have destroyed Jerry’s house. The fires combine and burn down Jerry’s house. Each fire is a substantial factor of the harm and both Aaron and Judith are the cause-in-fact of the harm.
119
a merchant owes a duty to people on the premises to
keep the aisles, passageways, and floors in a reasonably safe condition.
120
In cases where a person is injured or killed because of a fall on a merchant/defendant’s premises, the plaintiff must show, in addition to all other elements of his cause of action, that:
1. the condition presented an unreasonable risk of harm to the plaintiff that was reasonably foreseeable
2. the merchant had actual or constructive knowledge/notice of the condition
3. the merchant failed to exercise reasonable care
121
If a a risk foreseeably arises by reason of conduct, is it for sure within the scope of the defendant’s duty owed to the plaintiff?
No. Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of the defendant’s duty owed to the plaintiff.
EXAMPLE: A city fails to enforce an ordinance requiring landowners to trim “weeds and other noxious growths.” The reason for the ordinance is to prevent health risks arising from noxious weeds, rodents, and other dangerous animals. Although it is foreseeable that an overgrown thicket adjacent to a public park could be used as cover for a sex offender to molest a child, this risk is not within the scope of protection afforded by the city ordinance.
122
If the defendant’s conduct is a substantial factor in bringing about the harm to another, does the fact that the defendant neither foresaw nor should have foreseen the extent of the harm prevent him from being liable?
No.
123
eggshell skull doctrine
a defendant is liable for the full consequences of the plaintiff’s injury, even though, due to a plaintiff’s pre-existing physical condition, those consequences were more severe than they would have been in a normal person.
EXAMPLE: Peyton is a hemophiliac. Jeremy leaves a bunch of paper and boxes lying around in the hall just outside his cubicle. When Peyton walks by, he falls and hits his head on the side of Jeremy’s desk. He begins to bleed heavily. Eventually, he loses so much blood that he must be hospitalized. Jeremy will be liable to Peyton for the full extent of Peyton’s injuries, even if he did not know about Peyton’s inability to clot blood.
124
An intervening force is
is one which actively operates in producing harm to the plaintiff after the negligent act of the defendant has been committed.
125
General rule regarding intervening causes and liability
a plaintiff will be liable for harm caused by foreseeable, intervening causes
126
Will original tortfeasers be liable for the negligence of gratis rescuers?
Yes. Rescuers are foreseeable.
EXAMPLE: Don is throwing balls around at a playground. Don hits Poppy in the head, causing him to lose consciousness. Casey arrives and tries to resuscitate Poppy, breaking Poppy’s ribs while doing compressions. Because Casey was merely negligent, Don will be liable for both Poppy’s head injury and broken ribs.
127
Is the original tortfeaser liable for subsequent diseases/injuries?
Yes, s/he will be liable for those sustained because of the impairment of the plaintiff's health that resulted from the plaintiff's original tortious conduct
EXAMPLE: When Don hits Poppy in the head, his sinuses are affected. As a result, Poppy becomes much more susceptible to sinus infections. He must go to the doctor frequently and take expensive medications. Don will also be liable for the cost of treating the sinus infections.
128
Superseding Cause
a new and independent force that breaks the causal connection between the original wrong and the injury, which itself becomes the direct and immediate cause of the injury.
129
The factors considered in determining whether an intervening force supersedes prior negligence include:
(a) whether its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) whether its operation or consequences appear after the event to be extraordinary in view of the circumstances existing at the time of its operation;
(c) whether the intervening force is operating independently of any situation created by the defendant’s negligence;
(d) whether the operation of the intervening force is due to a third person’s act or to his failure to act;
(e) whether the intervening force is due to the act of a third person which is wrongful toward the plaintiff and, as such, subjects the third person to liability; and
(f) the degree of culpability of the wrongful act of a third person that sets the intervening force in motion.
130
Collateral Source Rule
A plaintiff's damages cannot be reduced by amounts s/he received from insurance or other sources
This rule generally applies to the following types of benefits:
(1) insurance policies, whether maintained by the plaintiff or a third party;
(2) employment benefits;
(3) gratuities, including cash gratuities and the rendering of services; and
(4) social legislative benefits.
EXCEPTION: Payment made by the tortfeasor or by a person acting for him (e.g., the defendant’s insurance company) to the injured plaintiff are credited against the defendant’s tort liability.
131
Damages for mental anguish or emotional distress are recoverable under Louisiana’s general tort statute if
the plaintiff can prove causation, breach of legal duty under a duty-risk analysis, and actual harm.
Physical injury or manifestation of serious mental distress need not be proven in cases in which there is a likelihood of genuine and serious mental distress, arising from special circumstances showing an outrageous breach of a duty owed.
NOTE: Consequently, although Louisiana courts hold that there is no independent tort for the Negligent Infliction of Emotional Distress (NIED), this rule is not iron-clad. Damages have still been awarded in exceptional circumstances such as when a hospital negligently gave a patient the wrong blood, after the patient arranged to have only her own blood given, which resulted in the patient’s fear of contracting AIDS.
132
Where the defendant’s conduct is directed at a third person, a bystander may recover damages for mental anguish or emotional distress. To have a valid claim for bystander damages, the following elements must be met:
(a) Plaintiff must view the event or come upon the scene soon thereafter;
(b) The injured person must suffer such harm that one could reasonably expect that the plaintiff would suffer serious mental anguish or emotional distress from the experience;
(c) Plaintiff’s mental anguish or emotional distress must be severe, debilitating, and foreseeable; and
(d) Plaintiff must be a permissible claimant: spouse, children, parents, siblings, grandchildren, and grandparents of the injured person are permissible claimants.
133
Recovery for mental anguish or emotional distress from property damage is possible even without actual physical injury to the person of the plaintiff. This applies where the property is damaged by:
1. an intentional or illegal act
2. an act for which the defendant would be strictly or absolutely liable
3. acts constituting a continuing nuisance
4. an act that occurs at a time that the property owner is present or situated nearby and experiences a trauma thereby.
134
Hedonic Damages
damages for loss of enjoyment of life or lifestyle
135
Hedonic damages are recoverable as a form of damages, so long as
they are separately alleged and not duplicitous of “pain and suffering” or “loss of consortium.”
136
A plaintiff can recover punitive damages (typically referred to as exemplary damages in LA statutes) only where
specifically authorized by statute.
137
A plaintiff can recover punitive damages (typically referred to as exemplary damages in LA statutes) only where specifically authorized by statute. The five statutory provisions are:
(1) child pornography, under Civil Code article 2315.3;
(2) drunk driving when it causes the plaintiff’s injuries, under Civil Code article 2315.4;
(3) sexual abuse of a child, under Civil Code article 2315.7;
(4) domestic violence, under Civil Code article 2315.8; and
(5) under Civil Code article 3546, where any two of the following three conditions are met:
(a) the state where the conduct occurred allows exemplary damages;
(b) the state where the injury occurred allows exemplary damages; or
(c) the state where the defendant resides allows exemplary damages.
b. Since Louisiana’s general public policy is against the imposition of exemplary damages, courts strictly construe statutes that do authorize them.
138
The cost of medical monitoring or future medical treatment is generally
not recoverable, absent a manifest physical or mental injury or disease.
139
Plaintiff’s Duty to Mitigate
A plaintiff has a duty to take reasonable steps to mitigate the damage caused by the defendant. A court may reduce a plaintiff’s recovery based on his failure to mitigate.
140
The care and diligence required of a plaintiff with regard to his duty to mitigate is:
that which a reasonably prudent person under like circumstances would exercise
141
Pure Comparative Negligence
Under Louisiana’s comparative fault regime (i.e., the so-called “pure form” of comparative negligence), where more than one person or cause is responsible for causing an injury to the plaintiff, the percentage of fault of all persons causing or contributing to the injury is determined by the trier of fact, regardless of whether all parties "at fault" are party to the action, their insolvency, inability to pay, statutory immunity, or whether the person’s identity is known or ascertainable.
Where the plaintiff contributed to his own injuries, his degree of fault is apportioned in the same manner as any other person.
142
Courts typically apply the Watson factors, which are 5 considerations courts use when trying to apportion fault between a negligent plaintiff and a negligent defendant. The factors are:
1. whether the conduct resulted from inadvertance or awareness of damger
2. how great a risk was created by the conduct
3. capacities of the tortfeaser (superior/inferior)
4. the significance of what was sought by the conduct
5. any extenuating circumstances which might require the tortfeasor to act hastefully
143
Does comparative fault apply to a plaintiff who was injured by an intentional tortfeasor?
No. where a person suffers an injury or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages is not reduced due to his own negligence. The intentional tortfeasor is fully liable.
144
Contributory Negligence
conduct by a plaintiff in a negligence action that falls below the standard to which a reasonable person should conform for his own protection
145
Contributory Negligence, minors
Contributory negligence may not be asserted as a defense against a minor engaged in hazardous activity contrary to a statute.
(1) Certain statutes have been enacted which prohibit children from working in dangerous occupations in order to protect them from their own negligence, since they are presumed to be incapable of exercising proper care to prevent injury to themselves.
(2) To hold a minor contributorily negligent would be to defeat the very purpose of such a statute, which is to protect the minor against the risk of his own negligence.
146
Assumption of the risk, minors
may not be asserted as a defense against a minor engaged in hazardous activity contrary to a statute.
147
Assumption of the risk
where a plaintiff expressly or implicitly consents to undergo a risk of the defendant's conduct
148
Like contributory negligence, assumption of risk is an affirmative defense that
must be pleaded specifically by a defendant.
149
Force Majeure
A force majeure is a providential occurrence or extraordinary manifestation of the forces of nature, which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence, and care, or by the use of those means, which the situation renders reasonable to employ. A force majeure is similar to the common law concept of “act of God” in that it is an intervening force, which may serve to excuse a defendant’s liability to an injured plaintiff.
150
In order for the defense of Force Majeure to serve as a complete defense and bar recovery to the plaintiff, two circumstances must exist:
(1) the accident must have been directly and exclusively due to natural causes and without human intervention; and
(2) no negligent act or omission by the defendant must have contributed to the accident.
151
Strict Liability
In strict liability cases, a defendant is liable for injuring a plaintiff regardless of whether the defendant exercised reasonable care. Public policy under these circumstances is to impose liability regardless of how carefully the defendant conducted himself, so long as he created or maintained an unreasonable risk of harm to others.
152
Dog owners are strictly liable for all damages and injuries caused by the dog:
(1) which the owner could have prevented; and
| (2) which did not result from the injured person’s provocation of the dog.
153
Parents are strictly liable for damages caused by their un-emancipated, minor children residing with them, or who have been placed by them under the care of others.
(1) If placed under the care of others, parents reserve recourse against those persons.
(2) Tutors of minors bear the same responsibility as parents.
154
Defenses to strict liability claims are few. They include:
1. the victim was at fault
2. a third party is at fault
3. force mejour
155
Absolute Liability
In cases of absolute liability, liability is imposed on a defendant as matter of public policy when harm results from risks inherent in the nature of a certain “ultrahazardous” activity.
156
An ultrahazardous activity is one that
can cause injury to others even when conducted with the greatest prudence and care.
EXAMPLE: Pile driving and blasting with explosives are defined by statute as ultrahazardous activities that subject a defendant to absolute liability.
157
The Louisiana Products Liability Act is fault-based, rather than imposing strict liability, and it establishes the exclusive theories of liability for
manufacturers, for damages caused by their products
158
Louisiana Products Liability Act applies only to
manufacturers
159
Manufacturer includes
(1) a person or entity who labels a product as his own, or who otherwise holds himself out to be the manufacturer of the product;
(2) a seller of a product who exercises control over or influences a characteristic of the design, construction, or quality of the product;
(3) a manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer; and
(4) a seller of a product of an alien manufacturer, if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer.
160
Manufacturer liability under the Act lies only where
1. the manufacturer's product possesses an unreasonably dangerous characteristic
2. this characteristic proximately causes the plaintiff's injury
3. such damages arise from a reasonably anticipated use by the plaintiff
161
(manufacturing defect) A product is unreasonably dangerous in construction or composition if
at the time it left the manufacturer’s control, the product deviated in a material way from the manufacturer’s specifications or performance standards, or from otherwise identical products manufactured by the same manufacturer
162
A product is unreasonably dangerous in design if, at the time it left the manufacturer’s control:
1. there existed an alternative design of the product that was capable of preventing the claimant's damages
2. it would not have been unduly burdensome for the manufacturer to adopt this alternative design
The plaintiff bears the burden of proving the existence of a feasible alternative design.
163
A manufacturer will not be liable for damage caused by his product’s defective design if he proves that, at the time the product left his control, he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known:
1. of the design characteristic that caused the injury, or the danger of such characteristic
2. of the alternative design identified by the plaintiff
164
A product is unreasonably dangerous due to an inadequate warning if, at the time it left the manufacturer’s control:
the product possessed a characteristic that could cause damage and the manufacturer failed to use reasonable care to provide an adequate warning
165
If the manufacturer learns of a characteristic of the product that may cause damage after the product has left his control, or would have acquired such knowledge had he acted as would a reasonably prudent manufacturer
he is liable for damages caused by a subsequent failure to use reasonable care to provide an adequate warning
166
A manufacturer will not be liable for damage caused by his failure to provide an adequate warning of the product’s dangers if he proves that
at the time the product left his control, he did not know and,
in light of then-existing reasonably available scientific and technological knowledge, could not have known of the characteristic that caused the damage or the danger of such characteristic.
167
A manufacturer is not required to provide an adequate warning about his product where
(1) the product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product; or
(2) the user or handler of the product already knows, or reasonably should be expected to know, of the potentially dangerous characteristic of the product.
168
A product is unreasonably dangerous when it does not conform to an express warranty made at any time by the manufacturer about the product if:
the express warranty has induced the claimant or another person to use the product, and the claimant's damage was the proximate cause because the express warranty was untrue
169
The lawful manufacture and sale of firearms and ammunition is deemed not
unreasonably dangerous
170
The seller of a product makes the following warranties:
1. guarantee the ownership and peaceful possession of the thing sold
2. the absence of hidden defects
3. the product is fit for its intended use
171
If the seller has reason to know the particular use the buyer intends for the product, or the buyer’s particular purpose for buying it, and that the buyer is relying on the seller’s skill or judgment in selecting it, the product must
be fit for the buyer’s intended use or for his particular purpose
172
The seller of a product who knows that the product he is selling has a defect may not withhold such information from a buyer; nor may the seller declare that the product has a quality that he knows it does not have.
a. A seller in violation of this rule is liable to the buyer for:
(1) the return of the price of the product, with interest;
(2) the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the product;
(3) damages; and
(4) reasonable attorneys’ fees.
173
Where a seller is also the manufacturer of a product, he is deemed to know
of any redhibitory defects in the product.
174
If the seller is unaware of the product’s defect, he is bound to repair, remedy, or correct the defect. If he is unable or fails to do so, he is liable to the buyer for:
1. the return of the purchase price with interest
| 2. reimbursement for the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing
175
A contractual provision between a manufacturer and seller attempting to limit the manufacturer’s liability in this respect (If a seller is held liable to a buyer for a redhibitory defect, he may bring an action against the manufacturer for any loss sustained because of the redhibition if the defect existed at the time the manufacturer delivered the product to the seller) is
void
176
A seller may be liable to a buyer in tort where the seller had knowingly entrusted a product to a person
who was incompetent to use it.
EXAMPLE: Rusty, who owns a fireworks shack on Rural Route 3, sells a box of Roman Candles to two six-year-old boys who pay him with change from their penny jar. The boys are severely burned when attempting to light the fireworks. Rusty is liable for their injuries because he should have known that six-year-old children are incompetent to be entrusted with fireworks.
177
Defamation
invasion of a person's interest in his reputation and good name
178
The elements necessary to establish a cause of action for defamation are
1. defamatory words
2. falsity
3. publication
4. malice or fault (negligence or greater)
5. resulting injury
179
A communication is defamatory if
it tends to harm the reputation of another so as to lower the person in the estimation of the community or to deter others from associating or dealing with the person.
180
A defamatory message has been characterized as one that contains an element of personal disgrace, dishonesty, or disrepute. Whether or not the defendant’s statement includes this notion of disgrace, it will be actionable if it causes third persons to
avoid contact with the plaintiff.
181
A message is defamatory per se if:
it has defamatory results without considering extrinsic facts and circumstances ("That professor plagiarizes his material.")
A message containing words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, is defamation per se.
182
If the plaintiff proves publication of defamatory per se words, the elements of falsity, malice, and injury are
presumed. The burden then shifts to the defendant to rebut the presumption of defamation.
183
Only statements of fact are actionable under defamation. However, expressions of opinion that imply that the speaker knows certain facts to be true, or that imply that such facts exist, may
be sufficient to classify the messages as defamatory.
EXAMPLE: The Daily Press may be subject to defamation liability to Porter for stating falsely, “In our opinion, Porter was involved in the planning of the assassination of Robert F. Kennedy.” The Daily Press cannot be liable for publishing, “Porter was once a very stylish dresser, but this year his clothes seem drab.
184
Even if the published statement is truthful, it may still be defamatory if
by innuendo or implication, the truthful facts carry a false defamatory implication.
"That baseball player hits the ball very far, about as far as someone who was using steroids would."
This applies only to matters of private affairs; matters of public concern are not actionable as defamation by innuendo.
185
The publication requirement for defamation
only means that a third party must hear/read the defamatory statement. The statement need not be written.
The plaintiff must prove that some reasonable third person who received the defamatory message understood it to refer to the plaintiff. Thus, if the plaintiff is not specifically named in the allegedly defamatory communication, he must allege through colloquium that some people will interpret the communication to be about him.
186
In addition to the defendant who originates the defamatory message, other persons who repeat it may be liable to the plaintiff, varying according to their relationship to the original publisher.
a. All persons who participate in originating a defamatory message are liable as
primary publishers
187
In addition to the defendant who originates the defamatory message, other persons who repeat it may be liable to the plaintiff, varying according to their relationship to the original publisher.
Any person who repeats the defamatory message is liable as a
publisher.
This is so even where the repetition is qualified by such terms as “alleged” or is said not to be the opinion of the republisher.
(1) Where the original publisher could reasonably foresee that the defamatory message would be republished, he is liable to the plaintiff for additional damages caused by the republications.
188
A person who distributes the original defamatory message as a commodity (e.g., a bookseller, newspaper vendor, or retailer) is liable only if:
he knew or should have known that the distributed material contained a defamatory message
189
Malice, as it applies to defamatory actions, is:
like fault for negligence. the lack of a reasonable belief in the statement's truth
190
Are punitive damages recoverable in a defamation action?
No.
191
New York Times Co. v. Sullivan
established the actual malice standard, which has to be met before press reports about public officials can be considered to be defamation and libel.
The actual malice standard requires that the plaintiff in a defamation or libel case, if he is a "public figure", prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such claims by public figures rarely prevail.
192
In a defamation case where the plaintiff is a public official or a public figure, the plaintiff must establish that the defendant acted with
actual malice before any recovery may be had.
193
New York Times Co. v. Sullivan definition of actual malice
the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity.
194
Where a private person plaintiff sues in defamation, and the subject matter is also private (not a matter of public concern), the Constitution does not require that the plaintiff prove
actual malice to recover damages.
The Louisiana Supreme Court has commented that a significant measure of fault with regard to the falsity of the statement clearly is required.
195
Even where the plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows that
the statement was true, that it was protected by an absolute or qualified privilege, or that the plaintiff consented to the publication.
196
Truth of the allegedly defamatory statement is an absolute defense.
So long as the statement is “substantially true,” trivial details need not be accurate.
The defense of truth is operable even if
the defendant was motivated by ill will toward the plaintiff
197
A legislator is not liable for a defamatory message uttered in
his official capacities (e.g., while on the floor of the legislature or during hearings or committee proceedings).
(a) The nature or content of the defamatory message or its relationship to any matter before the legislature is immaterial.
198
A participant in a judicial or quasi-judicial proceeding is not liable for any defamatory message that
is reasonably related to the proceedings.
199
An absolute privilege from liability for defamation applies to policy-making officials of the executive branches of state and federal governments, so long as
the defamatory utterance was made in the course of their duties and was relevant to those duties.
200
The Free Speech Clause of the First Amendment protects against defamation actions for
expressions of opinion about matters of public concern made without knowing or reckless falsity.
201
Louisiana recognizes a cause of action for invasion of privacy, embracing four different interests:
a. unreasonable intrusion on physical solitude or seclusion;
b. appropriation of an individual’s identity or likeness;
c. unreasonable public disclosure of embarrassing private facts; and
d. publicly placing a person in a false light before the public.
202
Is malicious intent an element of invasion of privacy?
No.
203
The right against invasion of privacy is
strictly personal
EXAMPLE: Phil sees an unauthorized use of his father’s picture on a poster at the train station, advertising an upcoming county fair. Phil cannot sue on his father’s behalf for invasion of privacy, even if his father is deceased.
204
Appropriation of Identity or Likeness
an unauthorized use of the plaintiff's identity or likeness for the defendant's benefit.
1. The plaintiff bears the burden of proof that he did not consent to the defendant’s use of his identity or likeness.
2. Use of identity or likeness is present if the defendant uses any object or characteristic sufficient to identify the plaintiff.
3. The defendant’s wrongful use of the plaintiff’s identity or likeness does not necessarily have to be commercial or pecuniary in order to be actionable.
205
Public Disclosure of Private Facts
This form of invasion of privacy occurs when the defendant unreasonably discloses private facts about the plaintiff to the public.
As opposed to defamation, communication solely to a third person is not sufficient to constitute this tort.
The information or material disclosed by the defendant must be an aspect or component of the plaintiff’s life not open to public view or inspection and not a matter of public record.
206
Public disclosure of private facts is actionable where
disclosure would expose the person to public disgrace, or where the facts are clearly private in nature.
207
Public disclosure of private facts is not actionable where
the publication is newsworthy.
This broad defense can apply to pictures published in newspapers, as well as magazine articles on former celebrities and public figures.
208
Portrayal in a False Light
he does not hold or actions that he did not take.
209
In analyzing a claim for false light, three elements need to be considered:
1. existence of a primary interest on the part of the plaintiff
2. falsity of the information decimated
3. unreasonable conduct on the part of the defendant
210
Where the plaintiff is portrayed in a false light as to a matter of public interest, he must prove that the defendant acted with
New York Times malice—knowledge of falsity or reckless disregard for truth or falsity—in order to recover.
211
Wrongful conception applies where the injury is
the birth of a healthy child
212
Wrongful birth is the claim of the parents for the birth of an unhealthy child, where
the parents profess that they would have avoided conception or terminated the pregnancy if they had been informed of the risk of birth defects to the child.
213
Wrongful life is
the child’s action for having been born unhealthy.
214
Malicious prosecution occurs where
one person institutes criminal proceedings against another, for an improper purpose and without probable cause. If those proceedings fail to result in a finding of guilt, the accused may have a cause of action for malicious prosecution against the person who initiated the proceedings.
215
Malicious prosecution takes place where a person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another:
a. acts without basis and primarily for a purpose other than that of securing the proper adjudication of the claim on which the proceedings are based; and
b. except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.
216
Abuse of process exists where
a defendant intentionally misuses a judicial process (criminal or civil) for a purpose other than that for which the process is intended.
217
Intentional Misrepresentation (Fraud)
misrepresentation or suppression of the truth made with the intention to either obtain an unjust advantage for one party or to cause a loss of convenience to the other
218
An actionable misrepresentation is an assertion of
a false past or present fact. Fraud cannot be predicated on statements of opinion (subject to certain exceptions), promise, or relating to future events.
219
For a misrepresentation to be successful the plaintiff must have
The plaintiff must rely on the defendant’s misrepresentation, and that reliance must be justified. In general, reliance on an assertion is justified if a reasonable person would have relied upon it.
220
In general, reliance on a misrepresentation of opinion is not justified, except where:
(1) the defendant owes the plaintiff a fiduciary duty;
(2) the defendant has the confidence of the plaintiff (e.g., where the defendant is the plaintiff’s uncle);
(3) the defendant possesses much greater expertise than the plaintiff as to the subject of the transaction; or
(4) if the defendant has an interest that he fails to disclose to the plaintiff, it is justifiable for the plaintiff to rely on the defendant’s expression of opinion on the subject of that interest.
221
The tort of negligent misrepresentation pertains to
the failure to provide correct information about existing facts
222
The elements necessary to maintain a cause of action for negligent misrepresentation are
1. the defendant supplied false information to the plaintiff
2. the defendant had a legal duty to supply accurate information
3. the defendant breached his duty to supply accurate information to the plaintiff either affirmatively or by omission
5. the plaintiff suffers damages or pecuniary loss as a result of his justified reliance on the defendant's information
223
Interference with contractual relations occurs where
the defendant convinces a party to breach his contractual obligations with the plaintiff or where the tortfeasor disrupts the party's ability to perform his obligation, thereby preventing the plaintiff from receiving the performance promised.
224
The elements for a cause of action against a corporate officer for tortious interference with contractual relations are:
1. the existence of a contract or legally protected interest
2. the corporate office has knowledge of the contract
3. the officer's intentional inducement or causation of the corporation to breach the contract or his intentional rendering of its performance impossible or more burdensome
4. the absence of a justification therefor
5. resulting damages to the plaintiff for breach of the contract or difficulty of its performance brought about by the officer
NOTE: not the corporation itself, not a corporate committee, but rather a corporate OFFICER (NOT a mere employee)
A corporate officer acting within scope of his corporate authority and in reasonable belief that his action was for benefit of corporation is entitled to immunity.
225
The tort of interference with business relations occurs where a person intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry), whether the interference consists of:
a. inducing or otherwise causing a third person not to enter into or continue the prospective relation; or
b. preventing the other from acquiring the prospective relation.
A claim for tortious interference with business relations is based on the principle that the right to influence others not to deal is not absolute; Louisiana law protects the businessman from malicious and wanton interference, permitting only interferences designed to protect a legitimate interest of the actor.
226
Under the theory of injurious falsehood
business relations are interfered with based upon damage to a company’s reputation, causing either the termination of current business relations or the preventing of obtaining future business relations.
EXAMPLE: On The Day Break Show, host Felix insults Vanderling’s new line of handbags, calling them “made of pigskin.” Sales of the bags noticeably diminish, and Vanderling is forced to declare bankruptcy. Vanderling may have a cause of action against Felix for injurious falsehood if they are not made of pigskin.
227
An employer is generally liable for injuries caused by the negligence or strict liability of an employee if
the tortious act occurred within the scope and course of employment
228
The basic test for determining whether a worker qualifies as an employee centers around the employer’s power to control the worker. Relevant factors for this analysis are:
(a) the circumstances surrounding his hiring;
(b) payment of wages; and
(c) the employer’s power of dismissal.
229
Under Louisiana law, teachers and artisans are answerable for the damage caused by their scholars or apprentices who are
at the time under their superintendence.
230
Acts are within the scope of employment if
they are so closely connected with what the employee was hired to do and so fairly and reasonably incidental to it that they may be regarded as methods, even though improper, of carrying out the objectives of the employment.
231
An intentional tort committed by an employee may be given respondeat superior effect if
the tortious act is undertaken within the course and scope of employment to further the employer’s interest.
232
A claim against an employer for the torts of an employee based on the employer’s alleged direct negligence in hiring, retaining, or supervising the employee generally is governed by the same duty-risk analysis used for all negligence cases in Louisiana. A limitation on the negligent hiring theory is that the employee, while not necessarily within the scope of employment, must be
engaged in some respect in furthering the employer’s business.
233
Under the negligent entrustment theory, the lender of a vehicle or other potentially danger-causing thing is not responsible for the negligence of the borrower, unless
he had or should have had knowledge that the borrower was physically or mentally incompetent to drive.
234
Under the Louisiana Workers’ Compensation Act, an employer is liable for compensation benefits (medical benefits and partial wages) to an employee who is
injured as a result of an accident or disease arising out of and in the course of employment. Generally, the rights and remedies under the Act provide an employee’s exclusive remedy against the employer for such injury.
a. Intentional acts—acts the person desires to occur or knows are substantially certain to occur—fall outside of this immunity (e.g. you can sue for tort on top of the workers' compensation act).
b. The Act applies both to a direct employer/employee relationship, as well as to a statutory employer/employee relationship. A statutory employer is one who, by written contract referencing the Act, hires another company to perform work integral to its operations and agrees to be liable to pay comp benefits to the company’s employees who may become injured while fulfilling the contract.
235
A defendant is ordinarily not liable for torts committed by someone he has engaged as an independent contractor when
the defendant has no right to control the activity of the contractor.
236
The defendant may be held vicariously responsible for the torts of an independent contractor in two situations:
(1) where the contractor undertakes a duty the law does not permit to be delegated to another; or
(2) where the contractor engages in ultrahazardous activities.
237
Partners and joint venturers are vicariously responsible for each other’s torts if:
the tort was committed within the scope and course of the partnership or joint venture
238
In Louisiana, the owner of an automobile is only liable for damages caused while his car is being operated by a third person with his knowledge and consent if
he was present for the accident, or if the third person was acting as his agent, servant, or employee at the time of the accident.
239
Tavern-keepers and social hosts are immune from liability for resulting damage following their lawful selling or serving of alcoholic beverages to persons of lawful age because
the consumption, not the sale or serving, of alcoholic beverages is deemed to be the legal cause of any injuries inflicted by intoxicated persons.
240
A bar that serves alcohol to a minor
is liable for things that qualify under the standard duty/risk analysis
241
Solidary Liability
where more than one defendant is responsible for the harm, their liability is joint if the tort was intentional or willful but divisible if only negligent
242
where joint tortfeasors conspire to commit an intentional or willful act
each is liable in solido (jointly) for the resulting damage.
243
The survival action comes into existence
simultaneously with the tort against the victim, and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death, and is transmitted to the victim's beneficiaries upon his death
244
the wrongful death action arises
only if and when the victim dies and compensates the beneficiaries for their own individual damages that occur at the moment of the victim's death and thereafter.
245
The survival action in a suit resulting from the death of a tort victim includes recovery for
for the victim's pain and suffering, loss of earnings and other damages sustained by the victim up to the moment of death. Damages for pain and suffering are properly awarded if there is a scintilla of evidence of any pre-death pain or suffering by the victim.
246
In a wrongful death action, suit is brought to recover
damages which the beneficiaries themselves sustained as a result of the death of the decedent. The wrongful death beneficiaries can sue for their own losses from the decedent’s death, including: lost support from work, loss of consortium (including sex and services), their grief, burial costs, etc.
247
The persons who are allowed to bring wrongful death and survival actions are
a. The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
b. The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
c. The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
d. The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
