LA BAR EXAM CODE TORTS Flashcards
II. Intentional Torts - Intent?
Intent is determined by the subjective state of mind of the tortfeasor, whereas negligence is an objective standard. the intent element is satisfied when the offender with desires the consequences of his act or when he knew the consequences were reasonably certain to result from his act. Intent can transfer from one tort to another or from one person to another. Transferred intent does not apply to the intentional tort of intentional infliction of emotional distress.
II. Intentional Torts - Battery?
Battery is an (i) intentional (ii) contact that is (iii) harmful or offensive.
(i) Intent requires purpose or substantial certainty of harmful or offensive contact. The tortfeasor need not intend harm or offense.
(ii) There must be contact with the plaintiff’s person or with something closely connected to the person (e.g., a purse).
(iii) Damage is not required. The contact must be harmful or offensive to a reasonable person.
II. Intentional Torts - Assault?
An assault is the (i) intentional creation of (ii) reasonable apprehension of an imminent battery. The elements are:
(i) Intent
(ii) Reasonable Apprehension of an Imminent Battery
(a) Imminence - Future threats are not assaults.
(b) Apprehension - Fear is not required. Apprehension in this sense means expectation.
(ii) With Apparent Means - The tortfeasor must reasonably appear to have the apparent means to complete the battery.
What is the difference between battery and assault?
Battery and assault are separate torts, but the torts can occur together where the plaintiff is reasonably apprehensive of an imminent contact, and the contact occurs. For example, if the defendant points a gun at the plaintiff, we probably have an assault. When the defendant pulls the trigger and the bullet hits the plaintiff, there is probably a battery. If the defendant never fires the gun, we have assault without battery. If the defendant shoots the plaintiff in the back, we may have battery without assault.
II. Intentional Torts - Trespass to Land?
Trespass requires an intent to enter the property of another. The defendant need not know that the property belongs to another. Entrance to the land may be by the defendant or by something put into motion by the defendant. Good faith trespass is trespass due to necessity or without knowledge that the act is a trespass. The trespasser is responsible only for actual damage. A bad faith trespasser (one with knowledge and without necessity) may be responsible for nominal damages even in the absence of actual damage.
II. Intentional Torts - Reputational Torts - Defamation?
A defendant commits defamation when she causes damage to the plaintiff’s reputation.
The elements are:
- A false statement concerning another;
- An unprivileged publication (oral or written) to a third party;
- Fault (negligence or greater) on the part of the publisher;
- Resulting injury (damage to reputation, standing in the community).
Defamation does not apply to opinions; a defamatory statement must be capable of being disproven. In Louisiana, there are two categories of defamatory words:
- Defamation Per Se - Words which by their very nature tend to injure one’s personal or professional reputation - falsity and malice are presumed but may be rebutted. The 1st Amendment may limit the application of presumptions … in defamation and invasion of privacy (see below) suits … when the plaintiff is (i) a public official, a public figure, or a private individual/entity, AND (ii) whether the subject matter is a matter of public concern or a matter of private concern (private pltff/private matter, 1st A fault rules do not apply to defamation per se)
- Susceptible of a Defamatory Meaning - When the words are not defamation per se, in addition to publication a plaintiff must prove falsity, malice (or fault) and injury.
In Louisiana, falsity is an element of defamation and must be proven by the plaintiff. Note, though, that true statements disparaging a plaintiff may support a claim for invasion of privacy.
Actual malice is defined as knowledge of the falsity of the statement or reckless disregard concerning its truth or falsity.
Truth is an absolute defense.
II. Intentional Torts - Reputational Torts - Invasion of Privacy?
There are four distinct branches to the invasion of privacy:
- (intentional) Intrusion on Seclusion (physical or otherwise) is actionable if the intrusion is highly offensive to a reasonable person. The person must have a reasonable expectation of privacy.
- Appropriation of Name or Likeness - To recover, the plaintiff must prove an appropriation by the defendant to his benefit, of the plaintiff’s name or likeness, without consent and causing actual damages.
- Publicity Given to Private Life or Private Facts
- Publicity Placing Person in a False Light - attributes views to person he does not hold or actions he did not take.
Defenses include fair reporting, consent, and immunity for merchants posting rejected checks.
II. Defenses and Privileges to Intentional Torts - Consent?
There is some dispute concerning whether consent is an affirmative defense or whether lack of consent is a prima face element of the tort. For exam purposes, you should recognize the dispute and then analyze consent as an affirmative defense. Consent to an action believed not to be harmful will negate any intent of the tortfeasor. Consent must be freely given and not obtained through fraud, duress, or misrepresentation. However, consent is valid when given by mistake, if the tortfeasor is not aware of the mistake. Consent may be either express or implied by the circumstances of the incident. Consent can be revoked at any time and may be limited in time and scope. There will be a higher standard of the required consent when one party has a dominating relationship with the other party. Voluntarily engaging in fighting or initiating a fight constitutes consent, which prevents recovery unless the other party uses force in excess of that needed.
watch for this coming up in medical malpractice, too - Consent to medical procedures should be analyzed using the doctrine of informed consent.
II. Defenses and Privileges to Intentional Torts - Self-Defense?
An individual may use reasonable force to defend himself when a reasonable person would conclude that it is necessary. The actor must have reasonable grounds to believe the danger exists. Using excessive force or otherwise exceeding the scope of the privilege may negate self-defense.
III. Negligence - what are the elements? Explain them in detail.
To prevail in a negligence action, the plaintiff must prove that the defendant (1) actually caused-in-fact the plaintiff’s injury; (2) that the defendant owed the plaintiff (a) a traditional duty (b) that had a scope which extended to this injury, to this plaintiff, that occurred in this manner / from this risk, (3) that the defendant breached that duty, and (4) the plaintiff suffered some compensable injury (damages).
(1) The defendant’s conduct is the actual cause of the plaintiff’s injury if the injury would not have occurred but for the defendant’s conduct.
(2) (a) Duty is defined by the standard of care applicable to the defendant. The standard of care is an objective standard. The defendant must behave as a reasonable person would behave. Other tests for establishing duty include negligence per se and res ipsa loquitor.
(2) (b) The general scope in a duty-risk analysis is: whether this defendant should be responsible for the injury to this plaintiff in this case. These are the factors to consider: (i) foreseeability (risk/plaintiff); (ii) ease of association (in lieu of foreseeability test at common law - to act as the reasonably prudent person would to all foreseeable plaintiff’s); (iii) superseding and intervening causes; (iv) policy considerations.
(i) Louisiana requires only that the general type of risk be foreseeable. The scope of duty only extends to foreseeable plaintiffs.
(ii) Louisiana employs the ease of association test which asks how easily this injury may be associated with the negligent act.
(iii) A superseding cause (legally significant) is an intervening act (timing question - action occurs between negligent act and the injury) that will relieve the defendant of liability. The more foreseeable or probable an event, the less likely it will be considered superseding. the more negligent the intervening act, the more likely it will be superseding.
(iv) Louisiana explicitly recognizes that policy factors (from the Pitre case) play a role in determining the scope of the risk. These factors are: (A) the need for compensation of losses; (b) the historical development of precedents; (C) the moral aspects of the defendant’s conduct; (D) the efficient administration of law; (E) the deterrence of future harmful conduct; (F) the capacity to bear or distribute losses. DCHMEN
(3) When the defendant’s conduct has fallen below the standard of care, the defendant has breached his duty. Risk/utility balancing: risk and consequences high, and cost of prevention low? Breached.
(4) A plaintiff is entitled to compensation from the tortfeasor for all her damages, even if the harm is unforeseeable. Actual damage must be proven, either by showing personal injury damages or damage to property. Tip: the defendant takes the plaintiff as he finds him.
IV. Special Negligence Topics - Medical Malpractice?
The standard of care generally is the care ordinarily possessed and exercised by members of the profession in good standing in the community.
Where the alleged negligent act raises issues peculiar to a medical specialty, the standard of care is that which is ordinarily practiced by those involved in the medical specialty.
Res ipsa loquitur (III.C.2.b., supra) is applicable in medical malpractice cases. Louisiana has enacted extensive legislation to govern the area of medical malpractice litigation.
“Malpractice” is defined as “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.”
To determine whether the alleged wrong falls under malpractice, rather than general negligence, ask whether: (i) the wrong was “treatment related” or caused by a dereliction of professional skill; (ii) the wrong requires expert medical evidence to determine breach; (iii) the wrong involves an assessment of the patient’s condition; (iv) there was a patient-physician relationship; (v) the injury would have occurred if the patient had not sought treatment; and (vi) the alleged tort was an intentional tort.
“Health care provider” is a person, partnership, corporation, facility, or institution licensed by the state to provide health care or professional services.
Informed Consent –
Except when a situation seriously threatens the health or life of a patient, a physician may not act beyond his patient’s authorization. In obtaining consent, the doctor must act as a reasonably prudent person. Louisiana has established a Medical Disclosure Panel that will identify the medical treatments and procedures that require disclo-sure, and the details that need to be disclosed.
The plaintiff must show that a reasonable person would not have consented to treatment had the material risks been disclosed.
Louisiana’s Uniform Consent Law provides that the written consent must contain disclosure of material risks in terms a layperson can understand. Risks particular to a patient must be disclosed and the patient must be given the opportunity to ask questions. This written form creates a rebuttable presumption of consent. The plaintiff may rebut the presumption by showing: (i) there is a material risk which the physician has a duty to disclose; (ii) the physician failed to inform the patient about the material risk; (ji) the material risk was real-ized; and (iv) there is a causal connection between the failure to inform the patient of the risk and realization of the risk.
Prescription –
The prescriptive period for medical malpractice is one year with a discovery rule but in no event beyond three years. Thus, the plaintiff must file the action within one year of the date of the incident or one ear from the date that the plaintiff knew, or in the exercise of reasonable care should have known, of the existence of the right to an action, but no later than three years from the date of the incident.
IV. Special Negligence Topics - Controlling Third Parties
IV. Special Negligence Topics - Premises Liability: Slip and Fall?
According to the statute, “a merchant owes a duty to keep its aisles, passageways and floors in a reasonably safe condition.” More specifically, the statute provides that a merchant is “one whose business is to sell goods, foods, wares or merchandise at a fixed place of business.”
The statute further provides that the plaintiff bears the burden of proving that:
1. The condition presented an unreasonable risk of harm that was reasonably foreseeable;
2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence, and
3. The merchant failed to exercise reasonable care.
The question of the “unreasonableness” of the risk of harm usually involves a balancing of the expected loss from a condition against the benefit.
Defense: Open and obvious - question of duty, defendant owed no duty to plaintiff
IV. Special Negligence Topics - Negligent Infliction of Emotional Distress? NIED
Emotional distress damages are included in general damages when the victim suffers a physical injury. Tort liability is more limited for emotional distress unaccompanied by physical injury.
Bystander NIED - distress caused by conduct directed at third parties.
(i)The plaintiff must either view the accident or injury-causing event or come upon the accident scene soon thereafter and before substantial change has occurred in the victim’s condition.
(ii) Also, viewing the scene must be the cause of the emotional distress.
(iii) The direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that a person in the plaintiff’s position would suffer serious mental anguish from the experience.
(iv) The emotional distress suffered by the plaintiff must be severe and debilitating and be reasonably foreseeable.
(v) Only the following listed family members of the direct victim are allowed to recover: (i) spouses and children; (i) parents (not in-laws); (ii) siblings; and (iv) grandchildren and grandparents. Note that all of the family members listed above may recover, provided the other requirements of the Code are met.
IV. Special Negligence Topics - Professional Negligence (Malpractice)?
