Other Torts Topics

Question 1

LPLA rules

Answer 1

the Louisiana Products Liability Act establishes the exclusive remedies against manufacturers of products for personal injury actions

the elements:

(1) defendant must be a manufacturer (**this will be in the fact pattern)
(2) damage must be proximately caused

(3) by a characteristic of the product that made it unreasonably dangerous in  one of  four ways: 
construction or composition  
design defect 
failure  to  warn 
breach  of express warranty 

(4) injury must result from a reasonably anticipated use
(5) defect must have existed at time the product left the manufacturer’s control

Question 2

if bar exam tells you that there is an alternate design to the product

Answer 2

design defect claim
(1) defect must exist at time the product left manufacturer’s control
(2) had to have had an alternate design which would have prevented or reduced the plaintiff’s damage
(3) balancing test of risk/utility: consider —
moral, social, economic utility
effects of alternative design in utility of the product
any new or additional risk created by alternate design
extent to which alternate design would have prevented or reduced harm

available defense = manufacturer can rebut by showing that he could not have known of an alternative design (at the time of manufacture)

Question 3

if exam tells you there was no warning with product

Answer 3

failure to warn claim
(1) defect must exist at time the product left manufacturer’s control OR result from a reasonable anticipated alteration
(2) analyze the adeqacy of the warning under the follownig factors:
likelihood and gravity of the danger
feasibility of providing a warning given the scientific/technological knowledge at time of manufacture
manufacturer’s ability to anticipate that a user would be aware of the danger

defenses:
that the danger is obvious to a reasonable ordinary user
that the user already knew or reasonably should have known that the product was dangerous
manufacturer neither knew nor should have known of the danger
warning was not passed on from the retailer/seller/etc

continuing duty to warn — if manufacturer learns of a defect after sale, sometimes manufacturer has duty to warn. rare.

Question 4

claim that this one particular product doesnt meet manufacturer’s specification

Answer 4

construction or composition defect

(1) defect must have existed at time the product left manufacturer’s control
(2) the product contained a material deviation from identical products that caused harm
(3) no knowledge required - strict liability standard

Question 5

breach of express warranty in product requirements

Answer 5

(1) manufacturer has to make an express warranty
(2) claimant was induced to use the product because of the warranty
(3) express warranty was untrue
(4) defect in violation of warranty existed at time that product left manufacturer’s control
(5) damages sustained because of untrue nature of the warranty

Question 6

Vicarious Liability

Answer 6

need an employee relationship
need course and scope: that employee is engaged in activities within the course and scope of the employment relationship
need underlying fault of employee

Question 7

evidentiary analysis to determine whether activity was within scope of employment

Answer 7

reasonable expectation of employer
payment of wages
control over work
time, place, purpose of act
relationships between employees act and employers business
benefits received by the employer
employees duty to perform the particular act
reasonable expectation of the employer that the employee would perform the act

Question 8

Prescriptive period for torts

Answer 8

typical time period in most torts = 1 year from the injury

prescription suspended while legal reason that you cant file (like, courts closed for Katrina)
prescription suspended while defendant engaged in active concealment / fraud to prevent plaintiff from discovering the claim
prescription tolled until the cause of action was known or reasonably knowable - then have one year to file
or contra non valentum, an extraordinary judicial doctrine which suspends the accrual of prescription while the actions of the tortfeasor prevent the plaintiff from filing

Question 9

Comparative Fault definition

Answer 9

the louisiana civil code requiers the fault of all actors to be compared, including parties, nonparties, settling tortfeasors, insolvent parties, immune actors, and those whose identities are not known.

Question 10

comparative fault Watson factors

Answer 10

whether the conduct resulted from inadvertence or involved an awareness of the danger
how great a risk was created by the conduct
significant of what was sought by the conduct
capacities of the actors (whether superior or inferior)
extenuating circumstances requiring haste
relationship between the fault/negligent conduct and the harm to the plaintiff

Question 11

Open and Obvious defense:

Answer 11

usually for slip and fall

risk has to be obvious to all, to every fool
has to be obvious to this particular plaintiff
conclusion = that defendant owes no duty

Question 12

workers compensation rule

Answer 12

Workers Compensation Act provides an exclusive remedy for the employee against his or her employee or co-employee where the terms of the statute are met.

Question 13

requirements for workers comp applicability

Answer 13

must have an employee / employer relationship
nature of injury must arise out of employment OR during course of employment
need a compensable injury

Question 14

3 exceptions to applicabiliity of workers comp

Answer 14

intentional tort
“horseplay” exception — if employees horsing around, may involve negligent supervision analysis
personal disputes unrelated to employment

Question 15

Sovereign Immunity rules

Answer 15

general immunity of the sovereign from any and all actions by private entities
louisiana has constitutionally waived immunity for tort by statute
claims must proceed according to the statute:

jury trials are prohibited unless right to bench trial waived by state
damages are capped at $500k
discretionary or policy-making acts are immune

Question 16

public duty doctrine exception to sovereign immunity

Answer 16

establishes liability for a public entity if plaintiff shows injury arising out of the faulty provision of governmental services, including the condition of things within its custody

plaintiff must show:
custody or ownership of the defective thing
that defect in thing created unreasonable risk of harm
constructive or actual notice of defect
failure to take corrective action within a reasonable time
causation

note: potholes fit this exception as long as the government had notice (usually thru pothole hotline)

Question 17

other immunities

Answer 17

spouses may not sue one another; children cant sue parents during minority; parents can sue children

immunizes undeveloped property used for noncommercial recreational use

amateur rescuers are immune for actions at an injury scene including negligence; liable for gross negliigence or intentional harm

Question 18

4 types of damages:

Answer 18

(1) nominal damages
(2) compensatory damages
(a) special damages = damages that can be determined with certainty, ie, lost wages
(b) general damages = largely speculative damages, usually pain and suffering
(3) lost enjoyment of life damages
(4) punitive damages
(a) statutorily limited to damages from: driving while intoxicated — allowed even only when there was injury to property; sexual abuse of minor; child porn

Question 19

damages to property

Answer 19

plaintiff who has suffered property damages may claim either:
decrease in value of the thing OR
cost of repair
unless;
cost of repair is out of proportion with decrease in value of the thing
unless
there is a reason personal to the repair
and a specific reason that the plaintiff will do the repair anyway

Question 20

Wrongful Death and Survival rules

Answer 20

designates who can bring a lawsuit when the injured party dies because of wrongful act of tortfeasor

wrongful death is an action brought by the beneficiaries for their own damage.
survival action is an action brought by beneficiaries for the decedent’s injuries suffered.

Question 21

who can bring a wrongful death or survival action?

Answer 21

each class  is  distinct. one survivor in a class recovers to the exclusion of all lower classes; each member of class recovers by heads. 
class 1 = surviving spouse and children 
class 2 = surviving parents
class 3 = surviving brothers and sisters 
class 4 = surviving grandparents 
class 5 = succession representative

Question 22

Choice of law rules

Answer 22

in a louisiana court, louisiana courts apply louisiana civil code’s choice of law test = serious impairment test: apply the law of the state whose policies would be most seriously impaired if their law were not applied in most instances, louisiana law will apply

process for substantial impairment analysis:
identify the policies implicated by the conflict
look to see where tortfeasor is domiciled — if louisiana, then apply our law
look to see where the injury occurred
if rules of conduct and safety, definitely apply louisiana law if injury happened here or plaintiff domiciled here
if rules of loss distribution / insurance rules, probably apply law of state where injury occurred
if product liability, apply louisiana law if injury sustained here, by louiisiana domiciliary, or product manufactured here

if louisiana plaintiff is suing tortfeasor for injury in another state
where the other state allows punitive damages
then allow punitive damages for louisiana plaintiff under other states law

Question 23

recalls in LPLA fact patterns

Answer 23

usually are “subsequent remediation” and usually not admissable in lousiana courts

Question 24

in informed consent questions, the standard is objective/subjective

Answer 24

objective
to establish causation, an undisclosed risk must have been serious enough that a reasonable person in the patient’s position would have withheld consent.

using the Medical Disclosure Panel’s official disclosure documents will vitiate liability.

Question 25

elements for any products liability claim

Answer 25

(1) defendant must be a manufacturer
(2) damage must be proximately caused by a characteristic of the product that makes it unreasonably dangerous
(3) the product must be unreasonably dangerous in one of four ways:
(a) construction or composition
(b) design defect
(c) failure to warn
(d) breach of express warranty
(4) the injury resulted from a reasonably anticipated use

Question 26

a claim against an owner of a building or thing is a specific sub-set of negligence and the elements are:

Answer 26

(1) custody of a thing or ownership of a building
(2) a vice or defect that presented an unreasonable risk of harm
(3) the defendant knew or should have known of the unreasonable risk of harm
(4) the damage was caused by the defect / the damage could have been prevented by the exercise of reasonable care