Torts Flashcards
1
Q
Vicarious Liability
A
- Employment Relationship
- control test
- borrowed employee: right to exercise/relinquish control, whose work?
- dual employees when authority is split - Course and Scope
- frolic and detour
- enterprise risk theory (very fact sensitive) - Employee at fault
2
Q
Watson Factors
A
For determining comparative fault:
- Conduct a result of inadvertedness/awareness.
- Degree of risk created by conduct.
- Significance of goal sought by conduct.
- Capacities of actors.
- Extenuating circumstances.
- Relationship of fault and harm.
3
Q
Workers’ Comp
A
Immunizes employers for tort liability.
- Employment Relationship
- payroll, borrowing, and statutory employers
- there is a rebuttable presumption that anyone rendering services for another is an employee. - Nature of injury
- “arises out of” OR “in the course and scope of” employment.
- AOO = type of activity. C&S = place and time. - Compensable injury
Exceptions: horseplay, personal disputes unrelated to employment, and INTENTIONAL ACTS.
4
Q
Public Duty Doctrine
A
- Custody/ownership of defective thing by public entity.
- Unreasonable risk of harm.
- Constructive notice of defect.
- Failure to take corrective action within reasonable time.
- Causation of Damages
5
Q
Wrongful death/survival action plaintiffs
A
Higher excludes lower
- Spouse and Children
- Parents
- Siblings
- Grandparents
- Succession representative (survival only)
Note: For loss of consortium, the list is the same but omits succession rep. and IS exclusive.
Note: For NIED, the list includes grandchildren, omits succession rep., and is NON-exclusive (all can recover).
6
Q
Traditional duty
A
The “ordinary, reasonable, prudent person in like circumstances” test.
Alternative ways to prove:
negligence per se,
custom,
and res ipsa loquiter
Takes physical (blindness) and sudden onset/temporary mental disability (temporary insanity) into account, but not permanent mental disabilities (held to same standard as reasonable adults).
7
Q
Scope of the Duty
A
- Foreseeable risk/foreseeable plaintiff (Palsgraff and Wagonmound).
- Ease of association.
- Superseding and intervening causes.
- Pitre policy factors.
Note: LA only looks to general foreseeability. You do not have to foresee the specific damage or specific plaintiff.
8
Q
Pitre policy factors
A
- Need for compensation of losses.
- Historical development of precedent.
- Moral aspects of defendant’s conduct.
- Efficient administration of the law.
- Deterrence of future harmful conduct.
- Capacity to bear/distribute losses.
9
Q
Slip and Fall Claims
A
Prima facie case:
- Condition presented unreasonable risk of harm.
- Harm must be reasonably foreseeable.
- Merchant had actual or constructive knowledge of condition.
- Failure to exercise reasonable care.
Note: “merchant” must be in the habit of selling things in his place. Liability extends to outdoor areas and sidewalks.
Note: operative factor for constructive knoweldge is TIME.
10
Q
NIED
A
Negligent Infliction of Emotional Distress Bystander:
- P must view accident or arrive at scene soon after.
- Direct victim must suffer such harm that the P would reasoanbly be expected to experience emotional distress.
- Severe emotional distress.
- Plaintiff in listed group (immediate family, grandparents, grandchildren).
- Causation of emotional distress.
Note: Lejeune case controls, but remember 2nd Circuit Clomon decision allowed woman driver to recover for emotional distress against school district when toddler departed bus and darted in front of her car.
Note: the direct victim recovers for the distress too, they just include it in their general damages in the main petition.
11
Q
Coleman factors
A
Defines medical malpractice
- Wrong treatment related to or caused by dereliction of professional skill?
- Wrong requires expert medical testimony to determine breach?
- Wrong involved an assessment of P’s condition?
- Patient/Physician relationship?
- Would injury have occurred if P had not sought treatment?
- Is it an intentional tort?
12
Q
LPLA
A
The Louisiana Products Liability Act (LPLA) establishes the exclusive remedies against manufacturers of products for personal injury actions.
- D must be manufacturer
- Proximate cause
- Unreasonably dangerous product
- construction/composition (strict liability)
- design defect
- failure to warn
- breach of express warranty - Reasonably anticipated use of product (not intended use)
13
Q
Construction/Composition
A
- Defect must exist when product leaves manu’s control
- Material deviation from identical products
- stict liability (no knowledge required)
14
Q
Design Defect
A
- Defect must exist when product leaves manu’s control
- Must ID design alternative that could have prevented injury
- Balancing test: lost utility/costs vs. expected safety gain
- State of the art defense (risk or alt. design wasn’t reasonably knowable)
15
Q
Failure to Warn
A
- Failure must exist when product leaves manu’s control
- Jurisprudential balancing test: likelihood/gravity of danger vs. feasibility/effectiveness of warning.
- Defenses: state of the art; constructive knowledge of risk; obvious danger; warning not passed on by seller (weak).
- Continuing duty: changes balancing test because cost to warn increases with time/sales.
16
Q
Breach of Express Warranty
A
- Express warranty
- P induced to use product based on warranty
- Warranty was false
- Damage
17
Q
Battery
A
- intent (purpose or substantial certainty)
- contact that is harmful or offensive
- harm or offense
Damage not required. Contact can occur if P’s person was closely associated with the thing contacted.
18
Q
Assault
A
- Intent to create fear or apprehension of imminent battery
- Reasonable apprehension of an imminent battery
- Apparent means to complete the battery
19
Q
False Imprisonment
A
- Intent to confine or transferred intent
- Actual, complete confinement is necessary
No reasonable means of escape available.
20
Q
IIED
A
Intentional Infliction of Emotional Distress
- Specific intent (purpose or substantial certainty of causing severe distress)
- Extreme or outrageous behavior
- Causation of severe emotional distress
- Severe emotional distress Prescription can begin to run after continuous conduct ends
21
Q
Trespass to Chattel and Conversion
A
Prima Facie Case: Intent, Interference With a Movable (Either Possessory Interest or Use and Enjoyment)
Choosing Between Trespass or Conversion
– Discuss both, issue is one of remedy.
Conversion –> damage has been severe enough requiring forced sale.
Trespass –> damage is less than full value. Mistake is not a defense.
22
Q
Intentional Interference With Contractual Relationship
A
Prima Facie Case: Existence of a Contract, Knowledge, Intentional Interference, Resulting Damages
- Must be a contract between the plaintiff and a third party. Anything less than a contract is not enough.
- Knowledge – Defendant must be actually aware of existence of contract.
- Intentional Interference – Defendant must intentionally induce breach.
- Damages – Actual damages must be shown.
There is no negligent interference with a contractual relationship in LA.
23
Q
Defamation
A
Intentional tort damaging an individual’s reputation based on a false statement.
List elements, then get into the constitutional requirements
Prima Facie Case: False and Defamatory Statement Concerning Another, Unprivileged Publication to Third Party, Fault (Negligence or Greater on Part of Publisher), Injury to Reputation
- Statement vs. Opinion – Must be a false statement. If it’s an opinion, it’s neither true nor false, no defamation. Must be capable of proof. Not innuendo, rhetoric, or hyperbole.
- Publication – Can be oral or written. Publication to single individual third party is sufficient.
a. Self-publication is not recognized in Louisiana. - Injury – May be presumed in a limited number of cases, but normally requires proof of damage to P’s reputation.
- Falsity – Truth is an absolute defense to defamation. If true but damaging, may be invasion of privacy.
Constitution and Free Speech – MUST raise constitutional rules for this tort or invasion of privacy.
- Actual malice – Knowledge of falsity or reckless disregard concerning the truth or falsity of the statement.
- Actual malice is required when the P is a public official or public figure or the matter is of public concern.
- Private plaintiff, public matter – No defamation per se where a matter of public concern. Need proof of damage by clear and convincing and actual malice.
- Private plaintiff, private matter – Can apply a negligence standard.
Privileged Statements
- Absolute privileges – judges, legislators, witnesses and attorneys in proceeding
- Conditional privilege – peer review
24
Q
Four types of invasion of privacy
A
- Intrusion on seclusion
- Appropriation of name or likeness
- Publicity given to private life or private facts
- False light
Invasion of privacy differs from defamation because (1) statements need not be false and (2) actual malice may not be necessary.
- All of the constitutional requirements for defamation probably apply to invasion of privacy too. Defamation privileges and defenses generally cross over to invasion of privacy.
25
Intrusion on seclusion
(snooping, peeping, etc.)
- Intentional intrusion (need not be physical),
- intrudes into seclusion, solitude, or private affair (reasonable expectation of privacy),
- highly offensive to person of reasonable sensitivity
a. Could be a trespass to land as well.
26
Appropriation
Right to manage name or keep matters private
- Appropriation by defendant,
- to the defendant’s benefit,
- of the plaintiff’s name or likeness,
- with lack of consent,
- and actual damages
27
Public Disclosure of Private Facts
- Publicity/disclosure to the public at large,
- about private life (REOP),
- highly offensive to a person of reasonable sensibility.
Ex.: disclosing private finances to newspaper
28
Malicious Prosecution and Abuse of Process
**Mal Pros** - initiation of prosecution for improper purpose.
Prima Facie Case:
1. Original criminal or civil proceeding
2. Plaintiff in mal pros case was defendant in original proceeding
3. Termination in favor of present plaintiff
4. Absence of probable cause for original proceeding
5. Damages
Malice is shown by the lack of probable cause or reckless disregard or knowledge of the false claim or use of process.
**Abuse of Process - ****using machinery of court for improper purpose**
Prima Face Case:
1. Some ulterior purpose
2. Willful act in the use of process that is not proper
29
Affirmative Defenses to Intentional Torts
Consent
Self Defense
Defense of Others
Privilege of Arrest and Detention
Defense of Property and Recapture of Chattels
Necessity
30
Consent
- Requires validity and capacity. Not valid if obtained through fraud, duress, or misrepresentation. Only valid if given by one who has or reasonably appears to have capacity. Mistaken consent is valid unless D is aware of the mistake.
- Implied Consent – facts or circumstances can create consent.
- Revocation – consent can be revoked any time it’s reasonable.
31
Self Defense
- Reasonable Grounds – One may defend herself where it reasonably appears to be necessary.
- Reasonable Force – One may only use force that is reasonable under the circumstances. Excessive force defeats the defense.
32
Defense of Others
- One may defend others to the same extent that one can defend one’s self.
- Risk of Mistake – borne by the person who attempts to defend others. (If third party doesn’t have self-defense, can’t mistakenly think they do.)
1. Excessive force will still defeat it.
- Parental Privilege (La. Civ. Code. art. 236) – parent can defend child to the same extent that defense of others exists. Reasonableness is slightly different where own children involved.
33
Privilege of Arrest and Detention
- Officers and public officials may arrest or detain within the limits of statutes and US Constitution.
- Store Owners Privilege (La. Code Crim. P. art. 215) – store owners may detain a person up to 60 minutes if probable cause and reasonable belief that the person is shoplifting.
34
Defense of Property and Recapture of Chattels
- Reasonable Force to Prevent/Protect
- Recapture, Hot Pursuit, and Reasonable Force can be used to recapture chattels. Not a very strong privilege.
35
Deadly Force and Statutory Immunity
Specific LA statute immunizes person who uses necessary and deadly force to prevent offense against person or property.
36
Necessity
Public necessity – involved in saving of many people, invokes takings clause of the Constitution.
Private necessity – involved to save a few. Must pay damages. Only applies to intentional torts against property.
37
Negligence
"Negligence in Louisiana is gauged under the duty risk standard.”
The Louisiana duty/risk approach to negligence is defined by, in the following order:
i. Cause in Fact – did the defendant’s negligence cause the injury?
ii. Duty/Risk
1. Standard of Care – Did the defendant owe a duty of care and did that duty extend to this injury, to this plaintiff, at this time, in this manner?
2. Scope of the risk – Should this defendant be responsible to this plaintiff?
iii. Breach of the Duty – Did D breach the duty owed?
iv. Injury - Did P suffer a compensable injury?
Res Ipsa Loquitor (thing speaks for itself) – the only exception. Allows jury to presume negligence in the absence of proof of a specific act. Injury never would have occurred in absence of negligence. Any proof *at all*, can’t use RIL.
38
Cause in Fact
- But-For Test – But for the negligent act, would the injury have occurred?
- Substantial Factor Test – Was the defendant’s negligent act a substantial factor in the plaintiff’s injury?
- Multiple Causes – Can and frequently do have multiple but-for causes.
- “More probable than not” is the evidentiary standard. Greater than 50% likelihood that this was the cause of the injury. Only relevant in “lost chance cases”:
1. Injury and Lost Chance – causal chain is traced between negligent act and injury in all cases; but lost chance case changes the injury. The injury is now the lost chance of survival. Only allowed in medical malpractice cases.
a. Someone comes to doctor with condition that has 75% chance of death even if treated, and treatment doesn’t happen. That 25% chance is recoverable.
39
Duty/Risk
Two steps:
1. Standard of Care – What is the objective standard that we apply to this conduct under these facts and circumstances?
2. Scope of Duty or Scope of Risk – Is this injury to this plaintiff within the scope of this defendant’s duty?
**Standard of Care** – Reasonable Person
1. An actor is expected to behave as a reasonable, ordinary, prudent person under similar circumstances.
a. Physical vs. Mental Disability – physical disabilities are used in the standard, mental are not. Blind person must behave as RP who is blind. Mentally disabled person must behave as RP who is sane.
b. Children – Children are expected to behave as reasonable ordinary children of like age and development, unless engaged in adult activities.
40
Other Mechanisms to Establish Duty
Start with reasonable person, but:
a. Negligence Per Se – Non-tort statutes lifted into torts to establish RP standard. Usually criminal statutes.
i. Ask the class of person, class of risk to determine relevance and admissibility – Was plaintiff w/in class of people statute designed to protect? Is this risk w/in this class of risks statute designed to prevent? If yes, statute can come in as evidence.
ii. The statute will be mere evidence that person failed to be reasonable person.
b. Custom – Can establish how most people behave, prevalent in medical malpractice.
i. Sword vs. Shield – custom used by plaintiff is strong evidence (this D didn’t behave according to custom); custom used by D as shield is very weak evidence (industry standard)
ii. Safety Standards – admissible as custom because people customarily comply
iii. Professional Negligence – custom within the profession is the method and the exclusive way to establish standard of care, needs expert testimony
c. Res Ipsa Loquitor
i. Requirements:
1. Event must be of a kind that does not occur in absence of negligence.
2. Other responsible causes, including conduct of P and third persons, are sufficiently eliminated by the evidence.
3. Negligence is within scope of D’s duty
ii. Only creates an inference of negligence.
iii. Does not apply where there is any direct evidence (or P should have direct evidence).
41
Scope of the Risk/Scope of the Duty
- Was this plaintiff’s injury within the scope of this defendant’s duty? (This is proximate cause, but analyzed in LA as duty/risk.)
- Things to analyze:
a. Foreseeable Risk and Foreseeable Plaintiff – Is this P within class of foreseeable Ps, is this risk within foreseeable class of risks?
b. Ease of Association – How easily can you associate this injury with Ds negligent act? (Essentially foreseeability)
c. Superseding and Intervening Causes
d. Pitre Policy Factors (Pitre = LA Sup Ct case name)
i. LA claims to go beyond just foreseeability by including policy factors.
42
Foreseeability and Ease of Association
**Foreseeability of Person** – Injury to P must be reasonably foreseeable.
**Foreseeability of Risk** – Must be within class of reasonably foreseeable risks.
General vs. Specific – LA requires only that general type of risk be foreseeable. Specific mechanism of risk doesn’t have to be foreseeable. (Risk of fire, not risk of specific way fire happens.)
**Ease of Association** – How easily can you associate this injury with Ds negligent act?
43
Intervening and Superseding Causes
Intervening occurs between negligent act and injury, superseding relieves defendant of liability as a matter of policy.
Intervening can be superseding – requires foreseeability of intervening cause (more foreseeable, less superseding)
i. Is Wal-Mart liable if someone in parking lot steals your purse? Intervening cause, but superseding? If prior incidents, not superseding. If none, might be superseding.
ii. Culpability – The more faulty the intervening act, the more likely it is superseding. (Criminal action more likely to be superseding than mere negligence.) But if action foreseeable, still not superseding.
iii. Act of God (once-in-lifetime event) often intervening and superseding, have to plan for reasonably foreseeable Acts of God, such as hurricanes. Have to define the duty first, then can check causes. (Jailor has duty to prevent suicide, therefore suicide not a superseding cause.)
44
Breach of the Duty
Definition – The defendant has breached the duty when that defendant’s conduct has fallen below the standard of care.
Unreasonable Risk – When D has breached the duty, that defendant has created an unreasonable risk of harm.
Hand Formula/Risk Utility Balancing (don’t write formula)
- If B \< LP, there is a breach
B = burden of the precautionary activity
L = magnitude of injury to plaintiff
P = probability of injury to person
45
Injury
The plaintiff must have suffered a compensable injury.
1. Personal injury or injury to property will suffice.
2. “Lost Chance” – your lost chance of survival can be recoverable, but only in medical malpractice cases
3. Emotional Distress and Fear of Disease – available to establish injury where there is some special likelihood of distress (ex, exposed to toxic chemical, fearful of developing cancer)
a. Medical monitoring damages are not available in LA.
46
Controlling Third Parties (negligent supervision/negligent failure to control)
Duty – The duty is to behave as a reasonable, ordinary, prudent merchant/caretaker/ parent/etc. under the circumstances.
Third-Party Criminal Activity – the owner of a business must exercise reasonable care for the safety of patrons (ex, someone gets mugged in WalMart parking lot). Social hosts and other special relationships have this duty. Did they have knowledge of risk?
a. Criminal behavior is within the scope of duty, and not superseding, when it is foreseeable.
b. Duty is to behave as a reasonable, ordinary, prudent shopkeeper. Look for previous similar criminal activity at or near the defendant’s location.
c. Allocation – intervening criminal behavior may be foreseeable and within the scope of the duty, but allocate some percentage of the duty to the intervening criminal!
Caretakers – Caretakers/custodians have a duty to control those within their care (ex, custodian of one with mental disability has duty to control that person, jailor has duty to control prisoners)
Parents – Parents may have a duty to control their children, can be liable for negligent supervision. Distinguish Code Art. 2318.
47
Medical Malpractice
Key to med mal – Qualified healthcare provider (QHCP) vs. non-QHCP.
Primary features:
1. Standard of Care – for almost all, it’s custom (needs an expert)
2. Is It Malpractice? (Malpractice Defined)
3. Damages Cap – capped at $500k for QHCP exclusive of future medicals, if you’re a non- QHCP, there’s no cap
4. Medical Review Panel – all med mal actions against QHCP must proceed first through panel, panel decisions are non-binding
5. Informed Consent – duty on healthcare professional is to provide material information. Failure to do so and risk realization.
6. Lost Chance of Survival – only place allowed, look for statistics
7. Prescription
48
Standard of Care - Medical Malpractice
Judged exclusively by custom
1. Medical professional must exercise the care ordinarily possessed and exercised by members of the profession in good standing in the same or similar community.
a. For QHCP, it’s the same community (no similar). For non-QHCP, it’s same or similar.
b. For specialties, it’s a national standard.
2. Expert testimony is required to establish the custom. Only exception for expert testimony is res ipsa loquitur.
a. Surgical instrument in patient, wrong limb amputated, etc.
49
Malpractice Defined (Is It Malpractice?)
To determine whether an act is malpractice, apply the Coleman vs. Deno factors.
a. Was the wrong treatment-related or caused by a dereliction of professional skill?
b. Does the wrong require expert medical evidence to prove breach?
c. Did the wrong involve an assessment of the patient’s condition?
d. Was there a patient-doctor relationship?
e. Would the injury have occurred if the patient had not sought treatment?
f. Is the alleged tort an intentional tort?
50
Damage Cap Medical Malpractice
Damages are capped at $500k, with each individual provider responsible for the first $100k.
The remainder is paid by the Patient Compensation Fund.
This only applies to QHCP! Does not apply to non-QHCP.
51
Medical Review Panel
Each med mal case must first be processed through a Medical Review Panel consisting of three medical professionals and a non-voting attorney chair.
52
Informed Consent – Medical Malpractice
Unique to med mal, and is a hybrid between battery and negligence.
1. Disclosure Requirement – the healthcare professional has a duty to disclose all material risks.
2. Material Risk – risks are material if a reasonable person would attach significance
3. Uniform Consent Law – a panel creates forms and determines material risks applicable to procedures. May need to tailor form to the individual patient.
53
Prescription for Med Mal
**One year** from the act of malpractice, but can be tolled by the discovery doctrine, but **no more than 3 years** from date of the incident (3 year cap) Both periods are prescriptive, neither is peremptive (absolute)
54
Attorney malpractice
Attorney is under duty of care to exercise duty exercised by attorneys in good standing in the same or similar community.
Burden-Shifting (still but-for causation) – Once plaintiff establishes prima facie case, burden shifts to defendant attorney to establish the case was a loser and hence no causation.
Prescription – One year prescription period, 3 year period is peremptive!
55
Providers of Alcohol
La. Revised Statute 9.2800.1 limits liability (near-immunity) for those selling, serving, or furnishing alcohol – this statute uses proximate cause
1. Drinking, not serving or selling, is the proximate cause of injuries!
2. Sellers – a permitted seller of alcohol is not responsible for off-site injuries, unless the drinker is a minor.
3. Social Hosts – social hosts are not responsible for off-site injuries, unless the drinker is a minor.
Note – this only applies to off-site injuries!
Note – the drinker is almost always going to be negligent
Note – one of the few places punitive damages are allowed is in alcohol-related incidents
56
Strict Liability
Strict liability is the same as negligence, except we assume that defendant knew of the dangerous condition.
For things and buildings, LA has eliminated strict liability in favor of a negligence standard.
“Things” (Civil Code Article 2317.1) – “Owner or custodian” of a thing is responsible for damage from its “ruin, vice, or defect”, where he:
i. Possessed actual or constructive knowledge of the ruin, vice, or defect;
ii. Damage could have been prevented through reasonable care; and
iii. Defendant failed to exercise reasonable care
“Buildings” (Civil Code Article 2322) – “Owner” of a building is responsible for damage from its “ruin” where he:
i. Possessed actual or constructive knowledge of the ruin;
ii. Damage could have been prevented through reasonable care; and
iii. Defendant failed to exercise reasonable care
iv. Landlord-Tenant Agreements – assignment of risk between landlord and tenant in lease doesn’t absolve either party in third-party injury unless landlord is reasonable in assuming tenant will take care
“Children” (Civil Code Article 2318) – Parents are responsible for the acts children residing with them when the child’s action would be negligent but for the disability of age (i.e.; negligent if child was an adult).
i. Start with child’s primary negligence (child of like age and development). Then parent’s simple negligence for negligent supervision. Then 2318 vicarious and strict liability.
Animals (Dogs!) (Civil Code Article 2321)
i. Owners of animals are held to a negligence standard, unless that animal is a dog. Dog owner strictly liable where owner could have prevented and did not result from injured person’s provocation of the dog.
57
Absolute Liability
Absolute liability, unlike negligence and strict liability, imposes liability without fault. Civil Code Article 667 limits absolute liability to piledriving and blasting only! All other actions involving land are evaluated using a negligence standard.
An owner is only responsible upon showing:
i. Owner has actual or constructive knowledge of risk,
ii. Harm could have been prevented through due care; and
iii. Defendant failed to exercise due care
58
Manufacturer (LPLA)
Manufacturer includes:
i. One who produces, makes, fabricates, constructs, designs, remanufactures, reconditions, or refurbishes.
ii. One who holds themselves out as a manufacturer (ex, provides specs to another manufacturer who makes it)
iii. Component parts manufacturers are responsible for their component parts
Non-manufacturers (retailer, wholesaler, etc.) can be held responsible outside the LPLA, but it will be evaluated under a negligence analysis.
59
Unreasonably Dangerous – Construction or Composition
- Defect must exist at time product leaves the manufacturer
- Product must contain a material deviation from identical products
- Strict liability standard!
60
Unreasonably Dangerous – Design Defect
- Defect must exist at the time product leaves the manufacturer
- Must identify alternative design
- Balancing Test – balance decrease in risk if using alternative design with the decrease in utility or increase in price or cost of production
61
State of the Art Defense
1. Burden is on the defendant to show
2. If design decision was made using best available technology, it is an affirmative defense. (At time of decision, this was the safest it could be.)
62
Unreasonably Dangerous – Inadequate Warning
i. Defect must exist at the time product leaves the manufacturer
ii. Balancing Test – likelihood and gravity of the danger, manufacturer’s ability to anticipate the risk, feasibility of warning, benefit of warning
iii. Defenses:
1. Obvious dangers don’t require a warning.
2. If user already knew risk, then warning would be irrelevant.
3. Manufacturer could not have reasonably known of risk.
4. Warning was not passed on by the seller.
iv. Continuing Duty – a manufacturer’s duty to warn may arise when a manufacturer later learns of a defect or risk
63
Unreasonably Dangerous – Breach of Express Warranty
i. Defect must exist at the time product leaves the manufacturer
ii. Manufacturer must make some express warranty, not puffery
iii. Plaintiff has to be induced to purchase the product by the seller’s warranty
iv. Product has to fail to meet the warranty
**Reasonably Anticipated Use**
i. Damage must arise from a reasonably anticipated use or misuse by plaintiff or another person. (Not limited to the purchaser.)
64
Vicarious Liability
Masters are answerable for the damage occasioned by their servants…in the exercise of the functions in which they are employed Elements
i. Employment Relationship
1. Employee v. Independent Contractor
a. Not an employee if I.C. and therefore not vicariously liable
b. Control Test: Could the employer have exercised control over work done? More control, more likely employee
c. Exception: Ultra hazardous activities
2. Borrowed Employee
a. Could have two employers
3. Dual Employment
a. Both employers could be vicariously liable
ii. Course/Scope of employment
1. Employer is vicariously liable for actions of employee where the act is within the course and scope of the employment relationship
a. Frolic and Detour: Deviate from scope of employment
i. Not in course/scope, so won’t be V.L. for acts during frolic
b. Enterprise/Risk Theory
i. Is this a risk that is fairly attributable to the enterprise
iii. Employee Fault (Negligence, A.L, S.L., etc.)
1. Vicarious Liability for Intentional torts
a. An employer is responsible for the intentional torts of his employee when the conduct is so closely connected in time, place, causation that it constitutes a risk of harm attributable to the employer’s business
65
Prescription
Prescriptive Periods require that a law suit must be initiated within a statutorily defined time period.
The Prescriptive period generally begins to run at the **time of the incident**
Time Period and Extension
i. One year prescriptive period for most tots
ii. Contra Non Valentum: May be extended beyond a year in four instances
1. Legal Cause prevents filing
2. Condition coupled with proceeding (like a contract)
3. Defendant has done something to prevent filing
4. Discovery Doctrine: Does not begin to run until plaintiff knew or should have known of tort committed
5. Limitations
a. Medical Malpractice
b. Attorney Malpractice
Note: Peremption cannot be extended through CNV
66
Comparative Fault and Solidary Liability
The Factfinder is required by the Code to allocate a percentage of fault to each responsible party, regardless of whether the party is present in the lawsuit, immune or insolvent.
Each party is then responsible only for its allotted shares.
To determine the allotted share apply the WATSON factors
Solidary Liability- For torts, La has effectively eliminated solidary/joint and several liability. The major is exception is that a vicariously responsible employer is liable in solido with its employee
67
Immunities
Sovereign
Family
Recreational Land
1. Applies to undeveloped land used for noncommercial recreational purposes
Charitable and Public Service
1. Rescuer Immunity: Amateur rescuers at an emergency scene are immune from negligence
Workers' Compensation
68
Sovereign Immunity
Must be discussed whenever the defendant is a governmental entity (city, state, university, regulatory agency)
Primary Features
a. LA has waived in almost all causes
b. Claims are processed through LA governmental claims Act
c. Jury Trial Prohibited unless permitted
d. Cap: $500K in general
e. Discretionary/Policy Actions are Immune
Public Duty Doctrine
a. In order to prove public entity, liability for a thing the plaintiff must establish
i. Custody/Ownership of defective thing
ii. Defect created unreasonable risk of harm
iii. Public entity had actual or constructive knowledge
iv. PE failed to take corrective action within reasonable time
v. Causation and Harm
1. For roadways and potholes
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Family Immunity
Spouses may not sue each other and children may not sure parents.
Parents may sue children.
Exists only as long as the status exists
Prescriptive period runs when status is terminated
a. Divorce
b. Minor reaches age of majority
70
Workers' Compensation
When you see an employee trying to recover against an employer or co employee write this:
**The WCA provides an exclusive remedy for the employee against his or her employer or co employee where the terms of the statute are met. The compromise allows the injured employee to recover damages pursuant to the statute, but the employer and the co employee will be immune from civil tort law suits, except for intentional acts**
i. Always look for some intentional tort for the injured employee to get out from under WC immunity
1. Don’t stretch too far
Compromise: WC allows a defined recovery with reduced standard of proof for inured workers, but creates an immunity for the employer and co-employee
Requirements
a. Employment Relationship
i. Payroll ii. Borrowing
iii. Statutory
1. Must meet terms of statute
a. Two Contract: Written document required: Need to look for writing that says I Am Statutory employer or statutory employee
b. Trade, Business, Occupation
b. Nature of Injury
i. Must arise out of and in course of employment
1. Arise out of: Focuses on time and place
2. Course: character and origin
a. Discuss separately
ii. Compensable Injury
c. Covered Event Exceptions:
- Horseplay
- Personal Disputes Unrelated to Employment
- Intentional Acts
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Damages
Five Types:
i. Nominal: Primarily for intentional torts
ii. Compensatory
1. Special/Specific: plead and proved with specificity
2. General: Pain and suffering
iii. Puntitive Damages
1. Only for
a. Drunk Driving
b. Sexual Abuse of Minors
c. Child Porn
iv. Loss of Consortium
1. No One has died
2. Damages available to family when a party ins injured
3. Anyone who can recover under wrongful death can recover
v. Hedonic Damages: damages for Loss of enjoyment of Life
Property Damage Election -
i. A Plaintiff who has suffered compensable property damage may elect to recover either decreased value or cost of restoration unless cost of restoration is out of proportion to the property value.
ii. There is an exception to the exception.
1. A plaintiff may recover the higher value when some reason that is personal to the owner or indicated that the owner will actually make repairs Collateral Source: Damages will not be reduced by funds received from some third party source
Collateral Source: Damages will not be reduced by funds received from some third party source
72
Wrongful Death and Survival
The WD and Survival statutes designate who can bring a lawsuit when the individual party dies
i. Discuss First
WD is an action brought by beneficiaries for their own damage.
Survival is an action brought by beneficiaries for the decedent’s injuries suffered.
Beneficiaries: For all relevant purposes, the WD beneficiaries and survival beneficiaries are the same. Once you find a beneficiary in a category, all beneficiaries within that category can recover and no one in a lower category can recover
i. Categories are 1. Surviving Spouse and Children 2. Parents 3. Brothers and Sisters 4. Grandparents 5. Succession representative for survival actions
Prescription: One year from date of death
i. If action expires in life, generally cannot extend
73
Choice of Law
Strategy
i. Recognize that the problem is a choice of law problem
ii. Recognize that the La Civil Code governs choice of law and the LA court will apply the LA choice of law provisions
iii. Apply the serious impairment test and/or specific provisions
1. \*\*Almost always resolve the issue in favor of
iv. Serious Impairment Test
1. Apply the law of the state whose policies would be most seriously impaired if its law were not applied
2. Factors
a. Contacts of each state to parties and events
i. domicile
ii. where injury occurred
iii. where tort occurred
b. Interstate system and uniformity
c. District Policies, usually deterrence and compensation
i. La has a strong policy in making sure residents are compensated and deterred
v. OR By the law of the state in which injury occurred and by the law of the TF’s domicile
Specific Applications: Discuss after serious impairment, even though specific articles almost always control
- Rules Regulating Conduct and Safety
- Loss Distribution and Financial Protection Rules
- Products Liability
- Punitive Damages
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Rules Regulating Conduct and Safety
Use law of state in which tortuous act occurred if the injury occurred in that state OR if the injury occurred in another state whose law did not provide for a higher standard of conduct
OTHERWISE, look to law of state where injury occurred provided that the tortfeasor should have foreseen its occurrence in that state.
i. Exception to this rule is to apply La Law if:
1. Tortuous conduct occurred here AND
2. TF was domiciled here OR
3. TF had significant contacts with LA
75
Loss Distribution and Financial Protection Rules
Apply in descending order of priority
i. If, at the time of the injury, the injured party and the TF were domiciled in the same state or states which have substantially similar rules, apply law of state of injury
ii. If at time of injury, the injured person and TF were domiciled in different states
1. When both the injury and the tortuous act occurred in one of those states, apply its law
2. When the injury and tortuous act occurred in different states, apply the law of the state of injury if the injured party is domiciled there, the TF should have foreseen its occurrence in the state, and the law of the state of injury provides a higher standard of financial protection for the injured party than the law where the tortuous conduct occurred
76
Products Liability
La law applies when
i. the injury was sustained in this state by a person domiciled or residing here OR
ii. When the product was manufactured or acquired in this state and caused injury in this state or in another state to a person domiciled here
77
Punitive Damages
May not by awarded by La Court unless
i. authorized by the law of the state where tortuous conduct occurred and
ii. by either the law of the state where the injury occurred or TF’s domicile
325
T/F Mitral stenosis is mc in female than male.
True mc in female 25-45 y/o
334
Lab results in Pernicious anemia?
Folic acid deficiency has normal methylmalonic acid levels but \> homocystine levels
1126
Sporadic episodes of vertigo w some degree of sensorineural hearing loss and tinnitus?
Menniere's Dz
1346
Name the jones criteria?
Major: polyarthritis, carditis, erythema marginatum, subcutaneous nodules, Sydenham chorea Minor: fever, arthralgia, previous RD or RHD, ESR or CRP, prolonged PR interval
3622
Crunching sound on auscultation--- subcutaneous emphysema ?
Hamman's sign
3643
MC type of breast CA?
Infiltrating ductal cancer
3697
Fungi that infect the skin and tend to live on the dead, top layer?
Dermatophytes
4262
Tx for AR
Decrease afterload with ACE inhibitors or vasodilator
4388
Pruritic, round, "coined-shaped" plaques with erythema, scales and crusts?
Numnular eczema
6053
What drugs can be hepatotoxic?
Fat soluble drugs
6189
Severe Myelosuppression ?
Vinblastine
6612
What is the drug of choice for methicillin-resistant Staphylococcus aureus?
Vancomycin
6991
Proopiomelanocortin (POMC) is cleaved into what two substances?
1. Adrenocorticotrophic hormone (ACTH) 2. (alpha)-Lipotropins (melanotropins and endorphins)
9630
What is the most common: Intraspinal tumor?
Ependymoma
10137
What hormone phosphorylates enzymes to decrease their activity?
Glucagon
11265
What is the most common type of kidney stone?
Calcium oxalate
11296
What form of antimicrobial therapy is better to treat an immunocompromised patient?
Bactericidal
12171
What is the length of diastole on a pressure curve, and where is it on an EKG?
From the beginning of the IVR to the beginning of the IVC, and from the T wave to the QRS complex (S2 to Sl)
12365
Increased uric acid levels -- CF
Gout, Lesch-Nyhan syndrome, myeloproliferative disorders, loop and thiazide diuretics
