Torts Flashcards
Watson factors
- Conduct resulted from inadvertence or awareness of danger?
- How great was the risk?
- Utility/significance of the conduct
- Capacities of actors
- Extenuating circumstances
Pitre factors (6 - scope of duty/risk) DCHMEN
- Deterrence
- Capacity to bear and distribute losses
- Historical need to develop precedent
- Moral aspects of conduct
- Efficient administration of law
- Need for compensation
Tort damages
- Nominal (intentional torts only)
- Compensatory (general or specific)
- Hedonic
- Punitive (only available where authorized by statute)
Superceding cause
Intervening act that relieves D. of liability
Louisiana Product Liability Act
- Must be manufacturer
- sole remedy for products liability
- Injury must be proximately caused by an unreasonably dangerous characteristic of the product, and
- The injury arose during a reasonably anticipated use of the product.
Types of unreasonably dangerous characteristics under LPLA
- Construction or composition
- Design
- Inadequate warning
- breach of express warranty
Vicarious Liability
- Employee relationship
- Course and scope of duty
- Employee at fault for conduct
Worker’s Compensation
- Employment relationship
- Injury arose out of and in the course of employment
- Compensable injury
Liability of a Property owner
Owner is responsible for a vice, ruin or defect on his property when
- Ruin/Vice/Defect presented unreasonable risk of harm
- Owner had actual/constructive knowledge of ruin/vice/defect
- Damage could have been prevented through the exercise of reasonable care
- Owner failed to exercise reasonable care
Informed consent
Duty to disclose all material risks to patient
“Material” - Would a reasonable person have consented to the treatment had they known of the risk/s?
Wrongful Death & Survival Action beneficiaries
A higher class of beneficiaries takes to the exclusion of others:
- Children/surviving spouse
- Parents
- Siblings
- Grandparents
Survival Action
Pre-death pain and suffering, medicals, loss of wages, etc.
Claim is on behalf of decedent
Elements of Negligence
- Cause-in-fact - but for and substantial factor
- Duty - What duty owed? (Reasonable Person)
- Scope of the Duty? (Foreseeability and Ease of Association; Pitre factors)
- Breach -“Hand formula” B<PL
- Injury
Defenses: Comparative Fault (Watson Factors)
Bystander damages - NIED
- Plaintiff must view incident or come upon scene before substantial change had occurred
- Direct victim suffers such that it is reasonably foreseeable that plaintiff would suffer distress in viewing the incident
- Severe and debilitating emotional distress was caused by viewing incident
- Emotional distress must be severe and debilitating
- Pl. is permissible claimant (immediate family of victim)
Wrongful death action
Brought by beneficiaries for their own damages - loss of support, love, affection, service, etc.
Defense to intentional tort
- Self defense
- Defense of others
- Consent
- Defense of property (reasonable)
Intentional infliction of emotional distress (IIED)
- Specific intent
- Extreme and outrageous behavior
- Causation
- Severe emotional distress
Battery (tort)
- Intent - purpose or substantial certainty
- Contact
- Harm or offense
Assault (tort)
- Intent - purpose or substantial certainty
- Reasonable apprehension of an imminent battery
- Apparent means to commit battery
Intervening act
Act that occurs between negligent act and injury
Workers comp exceptions
- Horseplay
- Intentional torts
- Unrelated to employment
Premises liability (slip and fall
Merchant has duty to keep aisles, floors and passageways in a reasonably safe condition
- Condition presented an unreasonable risk of harm
- Harm was foreseeable
- Merchant knew or had constructive knowledge of condition that caused harm
- Merchant failed to exercise reasonable care
- Injury resulted
Coleman Med Mal factors (TEAR IT)
(TEAR IT)
- related to Treatment
- require Expert medical evidence
- involve an Assessment of patient’s condition
- patient/physician Relationship
- Injury occur without treatment
- intentional Tort
Standard of care in med mal
Reasonable care of a reasonably prudent health care provider in the community
Public Duty Doctrine
- Ownership/custody of thing by public entity.
- Defect created unreasonable risk of harm.
- Public entity had actual/constructive notice of defect.
- Public entity failed to cure defect w/in reasonable time.
- Defect caused Pl. injury
