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LA BAR > LA Torts > Flashcards

LA Torts Flashcards

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1
Q

Battery

A

Intentional contact that is harmful or offensive

1.Intent or substantial certainty of harmful or offensive contact

2.contact with person or something closely connected to person

3.Contact is harmful or offensive to a reasonable person

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2
Q

Assault

A

intentional creation of reasonable apprehension of an imminent battery

  1. intent
  2. Reasonable Apprehension of imminent battery (not future and fear not required)
  3. Apparent means to complete the battery (reasonably)
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3
Q

False Imprisonment

A

Intentional confinement of the plaintiff

  1. intent
  2. actual confinement (w/o reasonable escape)
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4
Q

Intentional Infliction of Emotional Distress

A
  1. SPECIFIC INTENT
  2. Extreme and outrageous behavior
  3. Causation
  4. Severe emotional distress
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5
Q

Trespass to Land

A
  1. Intent (need not know the property belongs to another)
  2. Entrance to land

Good faith = liable for actual damage

bad faith = nominal damage even absent actual damage

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6
Q

Trespass to Chattels and Conversion

A
  1. Intent to interfere with owner’s dominion or use and enjoyment of chattel
  2. substantial dominion or damage to chattel (determines trespass or conversion)
  3. Damages (conversion = value of chattel; trespass = compensate for damages)
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7
Q

Intentional Interference with a contractual Relationship

A
  1. contract must exist
  2. knowledge of the contract
  3. Intentional Interference
  4. Causation

LA does not recognize negligent interference with a contract

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8
Q

Intentional Misrepresentation (Fraud)

A
  1. Misrep, suppression, or omission of true information
  2. intent by defendant to obtain an unjust advantage or cause damage or inconvenience
  3. error induced by the act

Silence may also qualify

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9
Q

Defamation

A

Causes damage to Ps reputation

  1. false statement concerning another
  2. an unprivileged publication to a third party (at least one person)
  3. Fault on part of the publisher
  4. Injury

opinions don’t apply must be able to be disproven

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10
Q

Defamation Per Se vs. Susceptible of a Defamatory Meaning

A

Per Se = very nature of words injure

Susceptible = must prove falsity, malice and injury

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11
Q

First Amendment Limits on Defamation

A

Public officials and Public figures

  • must prove malice by “clear and convincing” evidence

Public Officials (employed by gov)

Public figures (achieved pervasive fame or noteriety)

Actual Malice = knowledge of falsity of statement or reckless disregard concerning its truth or falsity

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12
Q

Private Plaintiff/Public Concern

A

p must prove negligence and actual damage by clear and convincing evidence

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13
Q

Private Plaintiff/Private Matter

A

liability w/o fault may be imposed where the statement is defamatory per se

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14
Q

Privileges and Defenses (defamation)

A
  1. Truth
  2. participants in judicial or legislative proceedings
  3. Conditional or Qualified privileges (peer reviews, reporting of crime, non court public statements by attorney, others)
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15
Q

Invasion of Privacy

A
  1. Intrusion on Seclusion
  2. Appropriation of Name or Likeness
  3. Publicity Given to Private life or Private Facts
  4. Publicity Placing a Person in a False Light
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16
Q

Intrusion on Seclusion

A
  1. Intentional intrusion (physical or otherwise);

2.upon seclusion, solitude, or private affairs (must have reasonable expectation of privacy)

3.intrusion is highly offensive to a reasonable person

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17
Q

Appropriate of Name or Likeness

A
  1. appropriation by the defendant

2.to his benefit

3.of plaintiff’s name or likeness;

4.without consent; and

5.causing actual damages

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18
Q

Public Disclosure of Private Facts

A
  1. publicity to the public

2.publicity of private facts

3.highly offensive and not important to the public

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19
Q

Malicious Prosecution

A
  1. An original criminal or civil proceeding
  2. P in malicious prosecution action was the D in original proceeding
  3. Bona fide termination of the original proceeding in favor of the P
  4. Absence of probable cause for such proceeding
  5. Damages to P (nominal okay)
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20
Q

Proving Malice for Malicious Prosecution

A
  1. Inference
    i) lack of probable cause based on wanton and reckless disregard
    ii) knowledge that the charge is false; OR
    iii) reckless disregard as to the truth or falsity of the charge
  2. P bears BOP
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21
Q

Abuse of Process

A
  1. ulterior purpose; AND
  2. willful act in the use of process that is not proper in the regular conduct of the proceeding
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22
Q

Consent

A

for exam, analyze consent as an affirmative defense

  • negates intent
  • must be freely given
  • express or implied by circumstances
  • can be revoked
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23
Q

Self-Defense

A

may use reasonable force to defend himself when a reasonable person would conclude it is necessary

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24
Q

Defense of others

A

same as defending self

risk of mistake (vic must be in actual danger)

by statute parents may use reasonable force to defend their children

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25
Q

Arrest and Detention (officers and store owners)

A

Officers
- executing properly issued warrant are privileged in any necessary actions taken to arrest and detain subject

Store Owners
- may reasonable detain person up to 60 minutes if they have reasonable belief person has stolen from the store. Period may extend if reasonable

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26
Q

Defense of Property

A

in possession may use reasonable force NOT deadly

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27
Q

Recapture of Chattels

A

privilege of recapture if store owner is in hot pursuit

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28
Q

Use of Deadly Force

A
  1. force must comply with self-defense statute
  2. occupants of dwellings and autos, reasonableness is presumed and there is no duty to retreat
  3. if found immune must be awarded attorney’s fees and expenses
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29
Q

Negligence

A
  1. Cause in fact
  2. Duty
  3. Scope of duty/risk
  4. Breach of the duty
  5. Injury
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30
Q

Cause in Fact (Neg)

A

two tests:

  1. But for
  2. Substantial factor
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31
Q

Duty

A

did D owe a duty of care? What is the standard of care applicable to D

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32
Q

Scope of Duty/Risk

A
  1. Traditional Duty = reasonable person standard
  2. Scope of the Risk/Duty = whether the injury is in the scope of the duty or risk created by negligent act
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33
Q

Traditional Duty (Duty/Risk Negl)

A

i) Reasonable Person = reasonable, ordinary, prudent person under like circumstances

ii) Negligence Per Se = non-tort statutes violation (is this the class of persons class of risk deemed to protect from statute)

iii) Custom = whats the custom (sword is strong shield is weak)

iv) Res Ipsa Loquitor = event is kinds that does not occur absent negligence; other causes (p and 3ps) sufficiently eliminated; within scope of D duty to P

34
Q

Scope of Duty/Risk (Duty/Risk Negl)

A
  1. foreseeable risk/foreseeable P & **ease of association **
  2. Superseding/intervening causes
    a. More forseeable less likely superseding
    b. more faulty more likely superseding
  3. Policy Considerations
35
Q

Policy considerations (Pitre Factors)

A

New Hoes Means Everyone Does Coke

  1. Need for compensation of losses
  2. Historical development of Precedents
  3. Moral aspects of D conduct
  4. efficient admin of law
  5. Deterrence of future harmful conduct
  6. capacity to bear or distribute losses
36
Q

Breach of the Duty

A
  1. defendants conduct falls below the objective standard of reasonable conduct as defined by the duty
  2. created an “unreasonable risk” of harm
  3. Hand Formula/Risk Utility Balancing
    b = burden of precautionary activity
    L = Magnitude of injury
    P = Possibility of Resulting injury

b < LxP = NEGLIGENCE

37
Q

Injury

A

Personal or Property

Lost chance - med mal

Emotional and “fear of disease” - RARE

38
Q

Third-Party Criminal Activity

A
  1. Criminal behavior of third parties are within the scope of the duty, and not superseding, when the criminal behavior is reasonable foreseeable.
  2. The duty of a shopkeeper or other defendant is to behave reasonably.
  3. Key Fact: Look for previous criminal activity at or near the defendant’s location.
  4. Allocation: Although intervening criminal behavior may be foreseeable and within the scope of the duty, the intervening criminal and negligent shopkeeper must be allocated a percentage share of fault. EVEN IF NOT IN LAWSUIT.
39
Q

Slip and Fall

A

1.condition presented an unreasonable risk of harm

2.harm was reasonably foreseeable

3.prior to the harm the merchant created or had actual or constructive notice of the condition which caused the harm

4.the merchant failed to exercise reasonable care (absence of written or verbal uniform cleanup or safety procedure by itself is insufficient)

Length of time hazard existed is key inquiry

NOT EXCLUSIVE REMEDY

40
Q

Negligent Infliction of Emotional Distress

A

where emotional distress is the only injury. It does not deal with cases where distress is a parasitic injury to physical injury.

  1. Plaintiff must either view the accident or come upon the scene soon there after

2.direct victim must suffer such harm that it is reasonable to expect that a person in the Ps position would suffer emotional distress

  1. Emotional distress must be severe

4.must be in one of these categories spouse, children, grandchildren/grandparents, parents, and siblings

5.incident has to have caused the emotional distress

Direct victims may also recover under a negligent infliction of emotion al distress theory.

— MUST HAVE SPECIAL CIRCUMSTANCE

— Negligent handling of a corpse

— If some special circumstance (dealing with a dead love one)

— Wedding photographer fails to take any photos

41
Q

Medical Malpractice

A
  1. Standard of Care/Custom
  2. Malpractice Defined
  3. Damages Cap
  4. Medical Review Panel
  5. Informed Consent
  6. “Lost Chance” of Survival Allowed
  7. Prescription
42
Q

MedMal Standard of Care/Custom

A

Standard of care = Exclusively Cutsom

  1. Same or similar community = medical professional must exhibit that skill and care of duly licensed professional in the same as qualified healthcare provider or similar to a nonqualified healthcare provider community
  2. Expert Testimony Required = someone from community NEED NOT BE same community
  3. Res Ipsa Loquitor may apply
43
Q

Malpractice Defined: Coleman Factors

A
  1. Treatment Related?
  2. require expert medical evidence to determine breach
  3. involve assessment of patient’s condition
  4. Patient-physician relationship
  5. injury if no treatment sought
  6. intentional tort?
44
Q

Medmal Cap

A

Damages are capped at $500k, with each individual provider responsible for the first $100k. The remainder is paid by the Patient Compensation Fund.

  • You get approved once proving to the state you have 100k and the rest paid out of fund.
  • Paid per incident not defendant
  • Not included is future medical expenses
45
Q

Medmal Panel

A

Each malpractice case must be processed through a Medical Review Panel, consisting of three medical professionals and a non-voting attorney chair. The panel will decide whether the defendant health care provider failed to act in accordance with the standard of care.

46
Q

Medmal Informed Consent

A

“Informed Consent” is a doctrine unique to medical malpractice and is a hybrid between battery and negligence.

  1. Disclosure Requirement: duty disclose all material risks
  2. Materiality: those risks which reasonable person would consider significant
  3. Uniform Consent Law: written consent in conformity with the UCL creates a rebuttal presumption of consent
47
Q

Medmal Prescription

A

1.One-year: from the incident or with discovery.

2.Three-year: operates as a cap through extension of the discovery period

The difference between these two periods is that 3year period is a cap on the extension on discovery doctrine.

48
Q

Providers of Alcohol

A
  1. Proximate Cause: consumption of intoxicating beverages, not serving or selling, is the proximate cause of injuries.
  2. Sellers: Permitted seller not responsible for off-site injuries unless the intoxicating beverages are served to an individual under the lawful age.
  3. Social Hosts: Social Hosts not responsible for off-site injuries unless the alcohol was consumed by an individual under the lawful age.

drunk driver causing injury CANNOT impose damages the seller or host EVEN if underage.

49
Q

owner of things

A

“Owner or custodian” of a thing is responsible for damage from its “ruin, vice or defect” where he

  1. defendant has knowledge or constructive knowledge of ruin, device, or defect

2.Damage could have been prevented by reasonable care

3.Failed to exercise reasonable care

50
Q

Owner of Building

A

“Owner” of a building is responsible for damage from its “ruin” when he:

1.had actual or constructive knowledge of the ruin

2.damage could have been prevented with reasonable care

3.failed to exercise reasonable care

51
Q

Children

A

Parents are responsible for the acts (not negligence) of children residing with them when the act of the child would be negligent if performed by an adult.

  1. Parent child relationship
  2. Child fault when measured by an adult standard
52
Q

Animals and Dogs

A

Owners of animals are held to a negligence standard, unless the animal is a dog. Owners of dogs are strictly liable for damages which:

  1. owner could have prevented
  2. Injured person did not provoke the dog
53
Q

Absolute Liability

A

limits absolute liability to pile driving and blasting. All other actions involving land are evaluated by a negligence standard. For uses of the land other than pile driving or blasting, an owner is only responsible upon a showing that:

  1. actual or constructive knowledge of the risk

2.Damage could have been prevented through exercise of reasonable care

3.Failed to exercise reasonable care

54
Q

Products Liability

A

1.Defendant must be a manufacturer

2.Proximate cause: by a characteristic of the product that made it unreasonably dangerous

3.Unreasonably dangerous in one of these ways:

A. Construction or composition:

B. Design Defect

C. Failure to warn

D. Breach of Express Warranty

4.Damage must arise from a reasonably anticipated use of the product

55
Q

Manufacturer

A
  1. any entity that manufactured product for placement into commerce
  2. persons holding themselves out as manufacturers
  3. component parts manufacturers
56
Q

Proximate Cause Prod Liability

A

Do not repeat the entire “scope of the risk” (which is the equivalent of proximate cause) discussion. Rather, focus on actual cause and particular aspects of proximate cause/scope of the risk such as superseding causes.

57
Q

Construction or composition

A

1.The defect has to exist at the time the product leaves the control of the manufacturer

  1. Contained a material deviation from identical products that caused harm

3.Strict liability standard and no knowledge of defect is required

58
Q

Design Defect

A

1.Defect must exist at time the product left the control of
the manufacturer

2.An alternative design existed that would have prevented the plaintiff’s damage

3.Balancing Test: Lost utility or cost of precaution against expected safety gain

4.State of the art design: manufacturer has the burden of proving that he could not reasonably have known of an alternative design

59
Q

Failure to Warn

A
  1. Defect must have existed at time the produce left the control of the manufacturer
  2. Balancing Test: Balance likely and gravity of the danger against the feasibility and effectiveness of the warning
  3. Defenses:
  • Obvious to an ordinary reasonable user;
  • User already knew or reasonably should have known the dangerous characteristic
  • OR the warning was not passed on by the seller or the warning was removed
  1. Continuing Duty: Manufacturer later learns or reasonably should have learned of dangerous characteristics, he has a duty to warn.
60
Q

Breach of Express Warranty

A

1.Defect must have existed at the time the product left the control of the manufacturer

2.Manufacturer made an express warranty (car capable of withstanding rear end collisions….)

3.Claimant was induced to use the product due to the warranty

4.express warranty was untrue

5.claimant sustained damage because the warranty was untrue

61
Q

Vicarious Liability

A
  1. Must be an employment relationship (payroll employee or borrowed employee)
  2. Employee must be engaged in activities within the course and scope of the employment relationship

3.Employee/servant must have been at fault (usually found through negligence)

62
Q

Employee v. Ind. Contractor

A

Control Test: could the employer have exercised control over how the work was done

Borrowed Employee:
*Right of control?;
*Actual exercise of control by the borrowing employer;
*Relinquishment of control by the general employer;
*Whether the borrowed employee is doing the work for the borrowing employer

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

63
Q

Course and Scope of Vicarious Liability

A

Frolic and Detour: deviated from the task (not liable)

Enterprise/Risk Theory: is the risk fairly attributable to the employer
*Reasonable expectations of the employer
*Payment of wages (are you getting paid for your time?)
*Do they have control over the work
*Time place and purpose of the act (on time/ off time?)
*Relationship between employee act and employer business (employer benefit?)
*Employees duty to perform the particular act; AND
*Reasonable expectation of the employer the employee would perform the act

64
Q

Vicarious Liability for Intentional Tort

A

An employer is responsible for the intentional torts of his/her/its employee when the conduct is so closely connected in time, place, and cause that it constitutes a risk of harm attributable to the employer’s business.

65
Q

Prescription

A

The prescriptive period applicable to most torts in Louisiana is
One year.

Contra Non Valentum:

1.some legal cause that prevented the filing of the suit

2.defendant concealed facts that would have allowed P to discover his claim

3.Where D has done something to prevent P from filing

4.where cause of action is not known or reasonably knowable by the P

66
Q

Comparative Fault

A

require the fact finder 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 share. To determine each party’s allotted share, factfinders apply the Watson factors

67
Q

Watson Factors

A

All Heroes Should Consider Entering Rodeos

  1. Awareness of the danger;
  2. How great was the risk created by the conduct;
  3. significance of what was sought by the conduct
  4. Capacity of the actors
  5. Extenuating circumstance which might require haste
  6. Relationship between fault and harm
68
Q

Seat Belts

A

Failure to properly use seatbelts is admissible into evidence to establish comparative fault.

69
Q

Alcohol

A

A plaintiff who is operating a motorized vehicle, with a blood alcohol concentration of .08, and is found to be in excess of 25% at fault may not recover for any damages.

70
Q

Workers’ Compensation

A

“The Workers’ Compensation Act provides an exclusive remedy for the employee against his/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 lawsuits, except for intentional acts.”

71
Q
A

1.Employment Relationship

i) Payroll employer
ii) Borrowing employer
iii) Statutory employer (only exists for workers’ comp) – Must meet terms of statute
a. 2 Contract (general employer w/sub who then has employment relationship)
b. Essential to Trade, Business or Occupation

2.Nature of the injury

i) Arise out of employment
ii) In the course of employment

  1. Compensable injury

There are three major exceptions:
1. Horse Play
2. Personal Disputes unrelated to employment
3. Intentional act

72
Q

Sovereign Immunity

A

1.generally the sovereign is immune

2.constitutional waiver of immunity (LA waived tort immunity)

3.Jury trial is prohibited unless okayd by gov

4.general damages capped $500k

5.discretionary acts or policy are immune

73
Q

Public Duty Doctrine

A

1.custody or ownership of the defective thing by the government

2.defect created an unreasonable risk of harm

3.public entity had actual or constructive notice of the defect

4.failed to take corrective action in reasonable time

5.defect caused damage

74
Q

Damages

A

1.nominal damages

2.compensatory
A.special (lost wages, med costs) can be calculated
B.general (pain and suffering) speculative

3.Lost and enjoyment of life (“hedonic”)

  1. Punitive - when authorized by statute (drunk driving)
75
Q

Property Damage Election

A

A plaintiff who has suffered compensable property damage may elect to recover either decrease in value of property or
cost of reapair, unless repair is out of proportion to the decrease in value. There is an
exception to the exception: A plaintiff may recover the higher value when
some personal reason for the repair or some other reason to believe the plaintiff will conduct the repairs.

76
Q

Collateral Source

A

A plaintiff is allowed to recover for any expenses or damages actually paid by a 3d party, such as insurance, plus 40% of the difference between the amount billed and the amount actually payed.

77
Q

Wrongful Death

A

an action brought by beneficiaries for their own damage

78
Q

Survival Action

A

an action brought by beneficiaries for the decedent’s injuries suffered.

79
Q

WD & Survival beneficiaries

A

Once you find a beneficiary in a category, all beneficiaries within that category can recover, and no one in a lower category can recover. The categories are:

  1. Surviving spouse/children
  2. Surviving parents
  3. Surviving siblings
  4. surviving grandparents
  5. Succession Rep (survival action only)
80
Q

Lost Consortium Damages

A

available when the injured party lives, and are available to the same parties that would have had a wrongful death action if the victim were dead.

81
Q

Choice of Law

A

First, recognize that the problem is a choice of law problem.

Second, recognize that the La. Civil Code governs choice-of-law and that a Louisiana court will apply the Louisiana choice-of-law provisions.

Third, apply the “serious impairment” test and/or specific provisions.

82
Q

Serious Impairment

A

Apply the law of the state whose policies would be most seriously impaired if its law were not applied. Factors to discuss:
1. Contacts of each state to parties and events;

  1. Interstate system and uniformity (weak policy in torts); and
  2. District Policies, usually deterrence and compensation.

LA BAR (25 decks)

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