Other Torts Topics Flashcards
LPLA rules
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
if bar exam tells you that there is an alternate design to the product
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)
if exam tells you there was no warning with product
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.
claim that this one particular product doesnt meet manufacturer’s specification
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
breach of express warranty in product requirements
(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
Vicarious Liability
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
evidentiary analysis to determine whether activity was within scope of employment
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
Prescriptive period for torts
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
Comparative Fault definition
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.
comparative fault Watson factors
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
Open and Obvious defense:
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
workers compensation rule
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.
requirements for workers comp applicability
must have an employee / employer relationship
nature of injury must arise out of employment OR during course of employment
need a compensable injury
3 exceptions to applicabiliity of workers comp
intentional tort
“horseplay” exception — if employees horsing around, may involve negligent supervision analysis
personal disputes unrelated to employment
Sovereign Immunity rules
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