Torts Flashcards
What are the five elements of a negligence claim?
- Cause in fact
- Duty
- Scope of Duty
- Breach
- Injury
What is negligence?
Failure to exercise due care as to …
Cause In Fact
But for negligence
Substantial Factor
But for Negligence Analysis
A negligent act was the “but for” cause of an injury if the injury would not have occurred without negligence.
Substantial Factor Test for Negligence
Recognizing the problem of proof in many cases, Louisiana courts use the “substantial factor” test as an alternative, finding that the causation element is met where the negligence was a substantial factor in causing the injury.
Duty Element of Negligence
The type of care an ordinary, reasonably prudent person would exercise under similar circumstances.
Unique standards of Proof for Duty
Negligence per se,
Res Ipsa Loqutor
Custom
Scope of Duty
The scope of the duty - scope of the risk analysis asks whether the right that materialized was within the reasonable scope of risks created by the negligent conduct.
When is a risk within the scope of the duty?
When it is reasonably foreseeable result of the negligent conduct.
Breach of Duty
Asks whether the defendant created an unreasonable risk of harm. In most cases, this is a simple question of whether Defendant behaved as a reasonable person or not.
What is the risk-utility balancing test?
The Louisiana Supreme Court has utilized a risk-utility balancing test to determine whether the expected loss exceeds the burden or cost of a precaution.
What is the risk-utility balancing test?
B < LP
Where B = Burden
L = actual Loss
P = probability of the loss
Injury
Usually, injury is fairly obvious. A broken arm, a wrecked car, etc.
Damages P can recover
Physical injuries
Lost income including potential and actual income
Pain and Suffering: while speculative, this must be determined by a fact finder. In order to maximize recovery, P should have an expert witness.
Family can recover
Lost consortium damages
What are lost consortium damages?
Damages are available to any party who would have a wrongful death claim if the injured party had died.
Lost consortium damages include lost love, companionship and affection, and recovery for the value of household services that must now be obtained on the private market.
The lost consortium claims are dependent upon the negligence claims and will be reduced or eliminated by any defenses alleged by the Defendant including comparative fault.
What are the categories of beneficiaries for lost consortium?
Spouses and children are the first category of beneficiaries for the wrongful death statute and thus, are proper parties for a lost consortium claim.
Negligent Infliction of Emotional Distress
A third-party claimant must show:
- that he or she viewed the accident or came upon the scene shortly thereafter.
- That the direct victim suffered the type of harm that makes it reasonably foreseeable that the person in the plaintiff’s position would suffer mental anguish.
- That the resulting emotional distress is severe and debilitating
- That he or she is within the statutorily-defined relationship with the direct victim.
Allocation of Fault
The factfinder must allocate a percentage of fault to all responsible parties. Louisiana applies a “pure” comparative fault meaning that each party is responsible only for the allotted share of fault, regardless of whether they are present in the suit.
What factors will the court consider when allocating fault? Watson Factors
- Whether the conduct resulted from inadvertence or involved an awareness of the danger.
- How great the risk created by the conduct.
- The significance of what was sought by the conduct
- The capacities of the actors, whether superior or inferior
- Extenuating circumstances which might require the actor to proceed in haste without proper thought
- The relationship between the fault/negligent conduct and the harm to the plaintiff
Vicarious Liability: Employers are responsible for the ats of their employees when:
- There is an employment relationship
- The employee was acting in the course and scope of the employment relationship.
- The employee was at fault.
What are the factors when considering allocation of fault?
Great a risk
Relationship between fault/negligent conduct and harm
Awareness or inadvertence to the danger
Capacities of actor, whether superior or inferior
Extenuating circumstances, including haste
Significance of what was sought
Slip and Fall Statute
- Merchant
- Condition Presented an unreasonable risk of harm
- Harm was reasonably foreseeable
- Merchant created or had actual or constructive knowledge of the harm
- Merchant failed to exercise reasonable care
What action must be taken before filing a medical malpractice petition in district court?
Request for a medical review panel (MPR).
Who is on a medical review panel?
3 Qualified Healthcare Professionals of the same class and specialty and
1 nonvoting attorney chair
What is the purpose of an MRP?
The purpose of an MPR is to render an expert opinion concerning the professional standard of care, breach of the standard of care, and causation and injuries.
What do you do after MRP has rendered an opinion?
File in district court. The MRP opinion is admissible in district court as expert testimony.
What is the standard of care in a medical malpractice case?
Custom: Medical professionals must exhibit that skill and care of a duly licensed professional in the same community or similar community.
Expert testimony is required.
What are the elements for establishing the liability of a building or thing?
- Custody of a thing or ownership of a building
- A vice or defect that presented an unreasonable risk
- The defendant knew or should have known of the unreasonable risk of harm
- The damage was caused by the defect
What does scope of the duty ask?
Whether this defendant should be responsible to this plaintiff for the injury.
Products Liability: act and remedies
The Louisiana Products Liability Act (LPLA) establishes the exclusive remedies against manufacturers of products for personal injury actions.
What are the elements of a prima facie case of products liability?
- Defendant must be the manufacturer
- Damage must be proximately caused by a characteristic of the product that makes it unreasonably dangerous
- The product must be unreasonably dangerous in one of four ways:
A. Construction/Composition
B. Design Defect
C. Failure to Warn
D. Breach of Express Warranty - The injury must result from reasonably anticipated use
- The defect must have existed at the time the product left the control of the manufacturer
What are the four ways a product can be unreasonably dangerous?
Construction/Composition
Design Defect
Failure to Warn
Breach of Express Warranty
What is a survival action?
The survival action allows the designated beneficiaries to recover damages that the victim could have recovered if he had lived.
Damages are those suffered by the decedent from the time of injury until death and include medical expenses, lost wages, pain and suffering, and mental anguish suffered by the decedent.
What is a wrongful death action?
The wrongful death action is brought by the beneficiaries to recover for damages suffered by them. This includes loss of love, affection, services, support and society, and grief.
If a tree is rotting, what analysis should I use?
Things!
Requirements:
1. D has knowledge or constructive knowledge of ruin, vice, defect
2. Damage could have been prevented by exercising reasonable care
3. D failed to exercise reasonable ca
What do the Pitre factors evaluate?
Scope of the risk
Historical precedent
Capacity to bear and distribute losses
Deterrence of future negligence
Morals of Defendant
Needs of the Parties
Efficient Justice
Foreseeability as a defense
If an incident was not foreseeable, it may be outside the scope of the risk.
How do you prove the course and scope for vicarious liability?
Course and scope is determined by asking whether the risk is fairly attributable to the business.
Look to factors including:
-payment of wages
-time, place and purpose of act
-benefit received by employer
-reasonable expectation of the employer and the employee
What are survival action damages?
Survival action damages are those suffered by the decedent from the time of injury until death and include medical expenses, lost wages, pain and suffering, and mental anguish.
What is the “open and obvious” defense?
Defendants can avoid liability where the defect was open and obvious to all.
Different LASC cases attribute “open and obvious” to breach which is a question of fact to be resolved by the jury or to a question of duty. Most recently LASC has granted SMJ to a defect that was open and obvious.
What duty does an employer owe customers when hiring?
An employer owes a duty to all those who may foreseeable come into contact with the employees to exercise due care in the hiring, supervision, and retention of the employee.
What is an absolute defense to defamation?
Truth
What are the four branches of invasion of privacy?
Publicity placing a person in a false light
Publicity given to private facts
Misappropriation of the name or likeness of another
Intrusion upon seclusion of another
What are the elements of publicity given to a private fact?
Public disclosure
Private Fact
Offensive to a Reasonable Person
Not Newsworthy
What are loss of consortium damages?
Loss of consortium refers to the deprivation of the benefits of a relationship, usually between a husband and wife, including household duties, caregiving, companionship, and sexual intimacy.
Plaintiffs can make loss of consortium claims when their spouse or family member is seriously injured or killed, causing the Plaintiff to live a different life than they would have without their loved one’s injury or death.
What are the elements of a defamation claim?
A false or defamatory statement concerning another
An unprivileged publication to a third party
Fault on the part of the publisher
Resulting injury
Opinions are not defamation.
Intetional Infliction of Emotion Distress
-specific intent
-extreme or outrageous behavior
-causation
-severe emotional distress
How do you determine if something is malpractice?
Coleman factors
-Was the wrong “treatment related” or caused by a dereliction of professional skills
-Does the wrong require expert medical evidence to determine the breach
-Did the wrong involve an assessment of the patient’s condition
-Was there a patent-physician relationship?
-Would the injury have occurred if the patient had not sought treatment
-is the alleged tort and intentional tort?
What is the standard of care for a someone texting and driving?
Negligence per se
There is a Louisiana statute that imposes a fine for texting or reading while driving.
While the statute does not establish or eliminate tort liability, it could help determine whether the driver behaved unreasonably.
How do courts determine the admissibility of a statute?
Whether the plaintiff is part of the class of persons that the statute was designed to protect
Whether the risk is one that the statute was designed to protect
When does medical negligence supersede original negligent conduct?
It does not unless unless there is gross negligence.
How do you become a Qualified Health Care Professional?
Obtained 100k in private insurance
Be licensed health care professional in LA
Pay fees required under statute
Negligent credentialing
is not medical malpractice
Hospital breached duty of reasonable care by credentialing or providing staff privileges to the Dr.
What is a merchant?
A party whose business is to sell goods, wares, foods, or merchandise at a fixed place of business
What is the slip and fall statute?
Louisiana Merchant Liability Act
is not exclusive remedy, does not preclude action against an employee
Is medical malpractice a superseding or intervening cause?
Normal medical negligence is foreseeable and thus, is not superseding.
Exceptions may be made for gross negligence
Failure to Warn Product’s laibility
The manufacturer must provide a reasonable warning.
It does not matter that the manufacturer did not know of the risk at the time the product left their control, they have a continuing duty to provide a reasonable warning.
When does a worker’s compensation apply?
When there is an employment relationship and the worker suffers compensable injury on the job.
The employer or their surviving beneficiary may recover
This is an exclusive remedy that is resolved through an administrative proceeding.
