Canned Answers (Tort) Flashcards
Negligence
Louisiana uses a duty risk approach to negligence. The plaintiff must prove the following factors to have a cause of action in negligence: (1) cause in fact, (2) duty, (3) scope of duty/scope of risk, (4) breach, and (5) damages.
First, cause in fact can be proved by applying one of the two standards: but for causation or substantial factor. Under these standards, it asks whether the plaintiff’s injury would have occurred but for the defendant’s negligent conduct or was the negligence a substantial factor in causing the injury.
Second, plaintiff must satisfy the duty requirement. Duty is an objective, reasonable person standard. The defendant must act as a reasonable, ordinary prudent person in similar circumstances. The plaintiff may use other theories to establish the applicable duty. Other tests for duty include: (1) negligence per se, (2) custom, and (3) res ipsa loquitor. Negligence per se allows a plaintiff to introduce a non tort statute, that is intended to protect this class of persons from this type of harm, to establish a standard of care. If violated, it allows an inference of negligence. Res ipsa creates the presumption of negligence because the damage or harm does not occur in the absence of negligence. Lastly, under custom, evidence of how people normally behave can be evidence of how people should act and what the applicable standard should be.
Third, the plaintiff must establish the scope of the duty – whether the defendant owed plaintiff a duty of care in this case. The factors for scope include: (1) foreseeability; (2) ease of association;(3) superseding/intervening cause; and (4) the Pitre policy factors. Foreseeability asks whether the class of person and general class of risk was reasonably foreseeable. Ease of Association ** verbiage used by LA Courts examines how easily this injury may be associated with a negligent act. Next, it must be determined if an intervening act is superseding and will relieve the defendant of liability. The more foreseeable the intervening act, the less likely it will be superseding. Lastly, the Court must use the Pitre factors to determine the scope of the risk, including: (1) need for compensation of losses; (2) historical development of precedents; (3) moral aspects of defendant’s conduct; (4) efficient administration of the law; (5) deterrence of future harmful conduct; and (6) the capacity to bear or distribute the loss.
Fourth, the plaintiff must establish breach or that the defendants conduct fell below the objective standard of care. Here,… Louisiana examines the risk/utility balancing under the Learned Hand formula, which is: B<P x L= negligence; B is the burden of precaution; P is the possibility of injury; and L is the magnitude of loss. Here, the burden is … The likelihood of the harm is …
Fifth, actual damages must be proven through person injuries property damages.
Louisiana is a comparative fault state. Therefore, the trier of fact will assign a percentage of fault to each defendant even if they are insolvent, judgment proof, or immune from liability. The plaintiff’s own contributory fault will also be taken into consideration. The fact finder will use the Watson factors to assist in assessing proportions of fault. The Watson factors are: (1) whether the risk occurred from the unawareness or inadvertence of the danger, (2) how great the risk created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacity of the actors, whether superior or inferior; (5) extenuating circumstances that would have caused the actor to proceed in haste, without proper thought; (6) relationship between the negligent conduct and the harm to the plaintiff.
Vicarious Liability
Plaintiff could argue that defendant’s employer is vicarious liable for defendant’s negligence if plaintiff establishes: (1) defendant was an employee of __; (2) the employee-defendant was engaged in activities within the course and scope of the employment relationship; and (3) and the employee was negligent. Employers are vicariously liable for the actions of their employees- this liability is solidarily liable.
First, whether there is an employment relationship hinges upon a control test: could the employer have exercised control over how the work was done? First, independent contractors are no employees. However, an employer may be liable for the conduct of an independent contractor when there is a (1) contractual relationship between the two parties; (2) the contractor chooses the means for accomplishing the task, and (3) the object of the contract is a particular piece of work for a set price. Second, employers are liable for the torts of borrowed employees, but the court must consider the (1) right of control; (2) actual exercise of control by the borrowing employer; (3) the relinquishment of control by the general employer; and (4) where the borrowed employee is doing the work for the borrowed employer. Additionally, the dual employment doctrine provides that the lending employer can remain responsible as long as he continues to exercise control of the lent employee and there is an economic interest in the lending of the employee.
Second, whether the employee is engaged in activities within the course and scope of the employment relationship depends on: (1) payment of wages; (2) control over work and methods; (3) time, place, and purpose of the act; (4) relationship between employee’s and employer’s business; (5) benefits received by the employer; (6) employees duty to perform the particular act; and (7) reasonable expectation of the employer that the employee would perform the act. Regardless of these factors, an employer is not liable for an employee’s frolic or detour.
LPLA (Louisiana Products Liability Act)
Plaintiff may assert a claim for products liability against defendant. The Louisiana Products Liability Act is the exclusive remedy for personal injuries actions against a manufacturer. The following factors must be present to have a LPLA prima facie case.
First, the defendant must be a manufacturer. A manufacturer is a producer of products to insert into the stream of commerce.
Second, the damages must have been proximately caused by a characteristic of the product that rendered it unreasonably dangerous. This will be proven by a combination of the but-for and foreseeability test.
Third, the product must be unreasonably dangerous in one of the following ways: (1) composition or construction; (2) design defect; (3) inadequate warning; or (4) breach of an express warranty.
A product is unreasonably dangerous in construction or composition when it contains a material deviation from the manufacturer’s specifications, performance standards, or otherwise identical products manufactured by the same manufacturer. The is a strict liability theory.
A product is unreasonably dangerous because of an inadequate warning. The manufacturer must warn the user of any potential defect and how to use the product. The warning must be conspicuous. The adequacy of the warning will be considered by the following factors: (1) likelihood and gravity of the danger, (2) foreseeability, (3) manufacturers ability to anticipate that the user would be aware of the danger and the risk of the danger. Defenses against inadequate warning include: (1) the warning was obvious, (2) the user knew or should have known of the danger, (3) the manufacturer did not know or could not have know of the danger, and (4) the warning was not passed on. The manufacturer has a continuing duty to warn therefore if they learn of or should have learned of a danger they will have the obligation to warn the user.
A product is unreasonably dangerous because of a design defect if it is built according to the manufacturer’s specification but the entire line of products is defective because of a design flaw. The plaintiff must prove that an alternative design existed that would have prevented their injuries. The reasonableness of the alternative design will be measured in light of (1) the moral, social, and economic utility, (2) effect on utility, (3) new or alternative harm caused by the alternative design, and (4) the extent of preventing or reducing the harm. If this balancing test is met, the burden will shift to the defendant who will assert the state of the art defense that they could not have known of the alternative design at the time because they used the best technology available in the design.
A product is unreasonably dangerous when it expressly breaches the manufacturer’s express warranty. The manufacturer has made an express warranty to which the product did not conform, the claimant was induced to use the product by the representations, and the express warranty was not true.
Fourth, the harm must arise from the reasonably anticipated use of the product. Reasonably anticipated use means a use or handling or a product that the manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.
Fifth, the defect must have existed when the product left the manufacturer’s control.
Sixth, the product must cause actual damages in the form of personal injury or property damages.
