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
public duty doctrine exception to sovereign immunity
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)
other immunities
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
4 types of damages:
(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
damages to property
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
Wrongful Death and Survival rules
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.
who can bring a wrongful death or survival action?
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
Choice of law rules
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
recalls in LPLA fact patterns
usually are “subsequent remediation” and usually not admissable in lousiana courts
in informed consent questions, the standard is objective/subjective
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.
elements for any products liability claim
(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
a claim against an owner of a building or thing is a specific sub-set of negligence and the elements are:
(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
