Prescription, Damages, Choice of Law

Question 1

Prescription

Answer 1

• Prescriptive periods require that a lawsuit must be initiated within a statutorily defined time period. The prescriptive period generally begins to run at the time of the incident.

Time Period and Extension:
- The prescriptive period applicable to most torts in Louisiana is 1 year.
- Contra Non Valentum: The prescriptive period may be extended beyond the one-year period in four instances:
(1) Where there is some legal cause that prevented the filing of the suit
(2) Where the D concealed facts that would have allowed the P to discover a claim
(3) Where the D has done something to prevent the P from filing
(4) Where the cause of action was not known or reasonably knowable (a.k.a. discovery doctrine – use this)
- Limitations on Contra Non Valentum – malpractice has 3 year peremptive cap.

Question 2

4 Types of Damages

Answer 2

(1) Nominal
(2) Compensatory
- General and specific
(3) Loss of enjoyment of life (hedonic damages)
(4) Punative (exemplary) damages

Question 3

Property Damage Election

Answer 3

• A plaintiff who has suffered compensable property damage may elect to recover either the decrease in value or cost of repairs unless repairs are out of proportion to decrease in value.
• A plaintiff may recover the higher value when there is a personal reason for the repair or there is some reason to believe that the plaintiff will conduct the repair.

Question 4

Punitive/Exemplary Damages

Answer 4

Punitive Damages are not available in Louisiana except where authorized by statute:
(1) DWIs
(2) Sexual abuse of a minor
(3) Child pornography
(4) LA Drug Dealers Liability Act – creates a private right of action for both the direct victim and the parents of the victim. Exemplary or punitive damages may be awarded upon proof that the sale or distribution of an illegal controlled substance was in wanton or reckless disregard for the rights, health and safety of others.

Question 5

Collateral Source

Answer 5

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 paid.

Question 6

Lost Consortium

Answer 6

Certain parties who suffer their own damages may recover for those damages. The proper parties are those parties listed in the Wrongful Death code article.

Question 7

Choice of Law

Answer 7

• A choice-of-law question should be obvious. It must tell you about the law of some other state.
  
  • First, recognize that the problem is a choice of law problem.
  • Second, recognize that the Code governs choice-of-law and that a LA court will apply the Louisiana choice-of-law provisions.
  • Third, apply the “serious impairment” test and/or specific provisions.
• Serious Impairment: 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;
  (2) Interstate system and uniformity; and
  (3) District Policies, usually deterrence and compensation.
• Discuss after Serious Impairment, even though the specific articles will almost always control.
  Specific Applications:
  (1) Conduct and Safety
  (2) Loss Distribution
  (3) Products Liability
  (4) Punitive (Exemplary) Damages