Torts

Question 1

Wrongful Death

Answer 1

used when the direct victim dies, and beneficiary is suing for their loss resulting from the loss of the decedent

can only sue if plaintiff is one of the named beneficiaries under the code article

Remedy: damages, including:
lost support
lost love
lost affection, etc

Question 2

Survival

Answer 2

used when the direct victim dies, and beneficiary is suing on behalf of the victim

can only sue if plaintiff is one of the named beneficiaries under the code article

Remedy: damages, including:
lost wages
pain and suffering, etc

Question 3

Negligent Infliction of Emotional Distress (NIED)

Answer 3

NIED him so hard in the FICES that his fam sued for negligent infliction of emotional distress

Requirements:
(1) Family relationship (listed beneficiaries)
(2) Injury (must have actually suffered severe emotional distress)
(3) Cause (injury to the victim must have actually caused the severe emotional distress)
(4) Expected (victim’s injury was such that it is reasonably expected that an ordinary person in plaintiff’s position would experience severe emotional distress)
(5) Saw (plaintiff actually saw the injury occur or came upon the scene before substantial change)

allows the person to be able to SUE, but must still be able to establish fault on the part of the person they’re suing

Question 4

Negligence: Requirements

Answer 4

LA applies the duty-risk analysis approach to negligence, which requires 5 elements:
(1) cause in fact
(2) duty
(3) scope of the risk
(4) breach
(5) injury

CDSBI (Christy Drives So Bad I’m suing for negligence)

Question 5

Cause-In-Fact (Causation)

Answer 5

asks whether or not the conduct caused the injury

apply either the but-for or substantial factor test, both are generally interchangeable in jurisprudence

but-for: but for the act, plaintiff would not have suffered the injury

substantial factor: the act was a substantial factor in plaintiff’s injury

Question 6

Duty

Answer 6

standard: person has a duty to behave as a reasonable, ordinary, prudent person would under like circumstances

physical disability: add that disability

mental disability: regular person standard

other ways to establish duty:
(1) negligence per se
(2) custom
(3) res ipsa loquitur

Question 7

Duty: Negligence Per Se

Answer 7

use when you have a STATUTE, where:
(1) plaintiff is the same type of person state is meant to protect, and
(2) risk is the type of risk that the statute was designed to avoid

the statute can be used as “some evidence” of the standard of care

Question 8

Duty: Custom

Answer 8

established by evidence of customary behavior (ex: a safety manual, expert testimony, etc)

plaintiff uses custom as a “sword”

defendant uses custom as a “shield”

For licensed professionals: Custom is the ONLY evidence of reasonableness of conduct/duty

Question 9

Duty: Res Ipsa Loquitur

Answer 9

allows inference of negligence in the absence of evidence of a specific act

Requirements:
(1) event is of the kind that ordinarily does not occur in the absence of negligence
(2) other responsible causes including the conduct of 3rd parties are sufficiently eliminated by the evidence
(3) the indicated negligence is within the scope of defendant’s duty to plaintiff

Question 10

Scope of Risk

Answer 10

was the injury a reasonably foreseeable result of the negligent act?

Factors:
(1) foreseeability test
(2) ease of association test
(3) intervening and superseding causes
(4) pitre policy factors

Question 11

Scope of Risk: Foreseeability

Answer 11

(a) is this a reasonably foreseeable person?
(b) is this a reasonably foreseeable risk?

*only the general type of harm needs to be foreseeable

Question 12

Scope of Risk: Ease of Association

Answer 12

how easily can this injury be associated with the negligent act?

Question 13

Scope of Risk: Intervening and Superseding Causes

Answer 13

intervening cause: an event that occurs between defendant’s negligence and plaintiff’s injury

superseding cause: intervening cause that relieves the defendant of liability
factors:
(1) foreseeability
(2) culpability/fault

Question 14

Scope of Risk: Pitre Policy Factors

Answer 14

used to determine whether a specific injury to a specific plaintiff should be included in the scope of risk

(1) need for compensation of losses
(2) historical development of precedents
(3) moral aspects of the defendant’s conduct
(4) efficient administration of law
(5) deterrence of future conduct
(6) capacity to bear/distribute losses

Question 15

Breach of Duty

Answer 15

breach occurs when the defendant’s conduct falls below the standard of reasonable care

breach is determined by using a utility-risk analysis, otherwise known as the Hand formula

breach = unreasonable risk of harm

Question 16

Breach of Duty: Hand Formula

Answer 16

B < LP = defendant has breached the standard of care, and has thus created an unreasonable risk of harm

B: burden of the precaution
L: loss
P: probability of the loss

Question 17

`Injury

Answer 17

plaintiff must have suffered a compensable injury to their person or property

*includes lost chance of survival in medmal cases

*includes emotional distress (alongside physical injury) and fear of disease

Question 18

Vicarious Liability

Answer 18

Requirements:
(1) employment relationship
(2) employee engaged in activity within the course and scope of the relationship, and
(3) negligent/intentional conduct on the part of the employee

Question 19

Vicarious Liability: Employment Relationship

Answer 19

Right of Control Test: could the employer have exercised control over how the work was done?

Borrowed Employment Doctrine: did the first employer relinquish control such that the employee was under the control of the second employer?

Dual Employment Doctrine: “lending” employer may also remain liable for the employee along with the “borrowing” employer depending on exercise of right of control

Question 20

Vicarious Liability: Course and Scope

Answer 20

whether the act was likely or not likely to have been within the course and scope of the employment relationship

Frolic and Detour: deviation from the course and scope such that there is no vicarious liability

Enterprise/Risk Theory: whether it is reasonably fair to attribute this risk to the business (apply factors, including: time/place/purpose of the act, and benefit to the employer)

Question 21

Vicarious Liability: Negligent/Intentional Conduct

Answer 21

employer can be liable for employee’s intentional torts if the conduct is so closely connected in the time, place, and purpose that it constitutes a risk of harm attributable to the employer’s business

Question 22

Owner Liability for Actions of Lessees/Tenants

Answer 22

owner is liable in tort or the actions of its tenant where the owner:
(1) knows or reasonably should have known that the activity would cause damage
(2) the damage could have been prevented by reasonable care, and
(3) the landowner failed to exercise such reasonable care

Question 23

Strict Liability

Answer 23

strict liability is the same as negligence except that knowledge of the risk is presumed on the part of the defendant

Two areas of strict liability in LA:
(1) Children
(2) Dog Owners

Two areas USED to be strict liability, but now use the negligence standard:
(1) Owner of a Thing
(2) Owner of a Building

Question 24

Strict Liability: Parental Responsibility for Children

Answer 24

parents are strictly liable for the acts of their children when:
(1) there is a parent/child relationship (and parent resides with child), and
(2) the act of the child would be negligent if performed by the adult

Question 25

Strict Liability: Dog Owners

Answer 25

dog owners are strictly liable when:
(1) owner could have prevented damage, and
(2) there was no provocation of the dog

*all other pet owners are held to a negligence standard

Question 26

Owner of a Thing/Building

Answer 26

owner of a thing/building is responsible for its ruin, vice, or defect when:
(1) defendant had knowledge/constructive knowledge of the ruin, vice, or defect
(2) damage could have been prevented through the exercise of reasonable care, and
(3) defendant failed to exercise reasonable care

then briefly apply negligence elements

*used to be strict liability!

Question 27

Landlord Liability for Building to Tenant

Answer 27

apply same general analysis, but landlords can limit their liability to tenants via the landlord/tenant agreement

Question 28

Defense to Negligence: Comparative Fault

Answer 28

all faulty parties must be allocated a percentage of fault, and each defendant is only responsible for their percentage

*factfinder is ultimately responsible for the allocation of fault

apply the Watson factors

Question 29

Watson Factors

Answer 29

used when determining allocation of fault

CRIERS:

(1) Capacities of the actor, whether superior or inferior
(2) Risk that was created by the conduct (how great)
(3) Inadvertent or involved awareness of danger
(4) Extenuating circumstances that required actor to proceed in haste without proper thought
(5) Relationship between the fault and the harm
(6) Significance of what was sought by the conduct

Question 30

Public Duty Doctrine

Answer 30

use when suing a public body

Clinton Owned Unruly, Red, Hangry Dachshunds, Never Actually Cuddly

Requirements:
(1) Custody/Ownership by governmental body
(2) Unreasonable Risk of Harm caused by the Defect (apply risk-utility analysis)
(3) Notice (government had actual/constructive notice)
(4) but did not Act to correct the harm
(5) Cause in fact (defect was cause in fact of the harm)

Question 31

Sovereign Immunity

Answer 31

has been waived in the LA constitution

Question 32

Discretionary Act Immunity

Answer 32

a public entity is not liable for actions based on policy-making, discretionary acts where the choice is within the public entity’s discretion by statute

Question 33

Medical Malpractice: Types

Answer 33

(1) failure to exercise reasonable care in diagnosis or procedure
(2) failure to provide the information necessary for the patient to make informed consent

Question 34

Medical Malpractice: Standard of Care

Answer 34

Custom

Qualified Healthcare Providers (QHPs) must exhibit skill and care of a licensed professional in the same/similar community

*prove standard of care by expert testimony

*Res ipsa loquitur might apply, but construe very narrowly

Question 35

Medical Malpractice: Factors

Answer 35

used to determine whether or not act was medical malpractice

The Coleman Factors:
(1) was the wrong treatment related or caused by a dereliction of professional skill?
(2) does the wrong require expert medical evidence to determine breach?
(3) did the wrong involve an assessment of the patient’s condition?
(4) was there a patient-physician relationship?
(5) would the injury have occurred if the patient had not sought treatment?
(6) is the alleged tort an intentional tort?

Question 36

Medical Malpractice: Damages Cap

Answer 36

general cap on damages: $500,000

individual QHP cap on damages: $100,000

patient compensation fund pays difference between damages award and individual physician cap

Question 37

Medical Malpractice: Elements

Answer 37

negligence analysis generally:

(1) cause in fact (but-for the lack of reasonable care, would the injury have happened? but for plaintiff’s lack of consent, would the plaintiff have made a different decision)
(2) duty (standard of care = custom, as proven through expert testimony, of whether or not the defendant acted with the same skill/care of a physician in the same/similar community)
*physician has duty to disclose all material risks (risks which a reasonable person would consider significant)
(3) Scope of risk (Coleman factors)
(4) Breach of duty (hand formula)
(5 Injury (includes lost chance of survival)

Question 38

Medical Malpractice: Procedure

Answer 38

(1) victim must request review of case by medical review panel

(2) medical review panel processes all medical cases prior to trial (comprised of 3 medical professionals and 1 nonvoting attorney); determines whether there was a breach of the standard of care and whether the breach caused the damage

(3) medical review panel issues opinion, can be used as evidence at trial

(4) plaintiff can then bring their case to trial, must prove case by a PREPONDERANCE of the evidence

Question 39

Medical Malpractice: Consent

Answer 39

written consent in conformity with the Uniform Consent Law creates a rebuttable presumption of valid consent

Question 40

Medical Malpractice: Prescription

Answer 40

1 year liberative prescription from date of the injury

Discovery Doctrine Exception: extends the date of injury to the date of discovery of the injury

Peremptive period: but in no case shall the Discovery Doctrine extend prescription beyond 3 years from the date of injury

Question 41

Punitive Damages

Answer 41

only available under the following circumstances:
(1) driving while intoxicated
(2) sexual abuse of a minor
(3) child pornography
*(4) Drug Dealer Liability Act

Question 42

Conversion

Answer 42

intentional tort relating to movables

Requirements:
(1) intent to interfere with the dominion of the movable property of another
(2) substantial dominion over the property of another

Damages: full value of the thing destroyed

Question 43

Intentional Interference with Movables

Answer 43

intentional tort relating to movables

Requirements:
(1) intent to interfere with the use and enjoyment of the movable property of another
(2) substantial interference with the use and enjoyment of the movable property of another

Damages: comparable to the degree of interference

Question 44

Drunk Defendant

Answer 44

apply negligence per se if driving with BAC above the legal limit

Question 45

Provider of Alcohol

Answer 45

apply negligence generally, plus:
(1) drinking is the proximate cause of injury, not serving/selling
(2) permitted sellers/social hosts have limited immunity - not liable for off-site injuries resulting from drinking unless there is both (a) negligence on the part of the seller, and (b) drinker is underage
(3) punitive damages are permitted for drunk driving
(4) drinker is also almost always negligent

Question 46

Products Liability

Answer 46

the Louisiana Products Liability Act (LPLA) provides the exclusive theory of liability against manufacturers of products in personal injury actions

Question 47

Products Liability: Elements

Answer 47

(1) defendant must be a manufacturer of a product
(2) damage must be proximately caused by a characteristic of a product that made it unreasonably dangerous
(3) product must be unreasonably dangerous (4 ways)
(4) damage must result from reasonably anticipated use

Question 48

Products Liability: Unreasonably Dangerous

Answer 48

a product must be unreasonably dangerous in one of four ways:
(1) unreasonably dangerous in construction or composition
(2) unreasonably dangerous because of a design defect
(3) unreasonably dangerous due to inadequate warning
(4) unreasonably dangerous due to breach of express warranty

Question 49

Unreasonably Dangerous in Construction or Composition

Answer 49

Elements:
(1) defect must exist at the time the product leaves the control of the manufacturer
(2) defect is a material deviation from identical products
(3) strict liability (assume defendant had knowledge of the defect)

Question 50

Unreasonably Dangerous because of a Design Defect

Answer 50

Elements:
(1) defect must exist at the time the product leaves the control of the manufacturer
(2) there was an alternative design of the product that would have prevented the injury

Defense: defendant could not reasonably have known of the alternative design

apply a balancing test: lost utility vs. expected safety gain associated wit the alternative design

Question 51

Unreasonably Dangerous Due to Inadequate Warning

Answer 51

Elements:
(1) defect must exist at the time the product leaves the control of the manufacturer (*though in some cases defendant might have a continuing duty to warn)
(2) the product must have no warning or an inadequate warning

apply a balancing test: likelihood and gravity of danger vs. feasibility and effectiveness of a warning

Defenses:
(1) obvious dangers (where danger is obvious to an ordinary user, there is no duty to warn)
(2) actual knowledge (where user knew or reasonably should have known of the risk, there is no duty to warn)
(3) defendant had no knowledge of the risk
(4) warning was not passed on from seller to consumer

Question 52

Unreasonably Dangerous Due to Breach of Express Warranty

Answer 52

Elements:
(1) manufacturer must have made an affirmative statement/express warranty
(2) plaintiff was induced to use the product by the warranty
(3) warranty was untrue
(4) plaintiff sustained injury as a result of the breach

Question 53

Open and Obvious Defense

Answer 53

defendants can avoid liability where the defect was open and obvious because the defendant owes no duty to the plaintiff where the defect is open and obvious

can lessen a defendant’s liability in a comparative fault analysis

Question 54

Defamation: Types

Answer 54

(1) Defamation per se (words that by their very nature tend to injure one’s personal or professional reputation, OR that expressly/implicitly accuse someone of criminal conduct) –> malice and fault are presumed (unless protected by first amendment privilege)

(2) Susceptible of defamatory meaning –> plaintiff must prove defamatory meaning and publication, falsity, fault, and injury

Question 55

Defamation: Elements

Answer 55

Elements:
(1) false and defamatory statement concerning another
(2) unprivileged publication to a 3rd party
(3) fault on the part of the publisher
(4) injury - damage to reputation

Question 56

Defamation: Constitutional Issues

Answer 56

when a statement relates to either a public figure/official or a matter of public concern, the plaintiff (public figure/official) must also prove “actual malice” to overcome the privilege

privilege stems from the first amendment

Question 57

Actual Malice

Answer 57

knowledge that the statement is false or reckless disregard concerning its truth or falsity

must be proven by clear and convincing evidence

Question 58

Defamation: Defenses

Answer 58

(1) truth is an absolute defense

(2) absolute privilege (statements by judges, legislators, witnesses, and attorneys in judicial or legislative proceedings) *but the statement must concern the matter before the judiciary/legislature to be protected by the privilege

(3) conditional/qualified privilege (statements concerning peer review process, reporting of a crime, or non-court statements made by attorneys)

*both privileges come from the LA constitution

Question 59

Workers’ Compensation Immunity

Answer 59

the Workers’ Compensation Act provides an exclusive remedy for the employee against their employer/co-employee where the terms of the statute are met.

the compromise allows the injured employee to recover damages pursuant to the statute, but the employer and co-employee will be immune from civil tort suits, except for intentional acts.

Question 60

Workers’ Compensation Immunity: Elements

Answer 60

(1) employment relationship
(2) nature of the injury
(3) defined compensable injury under the statute

Question 61

Workers’ Compensation: Employment Relationship

Answer 61

(a) payroll employer, or
(b) borrowing employer, or
(c) statutory employer (2 contracts in writing, and must be for an integral part of trade/business/operation)

*if none of the above, plaintiff is an independent contractor and thus cannot recover under WCA

Question 62

Workers’ Compensation: Nature of the Injury

Answer 62

(a) arise out of the employment (character and origin of the risk)
(b) in the course of the employment (time and location of the risk)

Question 63

Workers’ Compensation: Exceptions to Recovery

Answer 63

(1) horseplay
(2) personal dispute unrelated to employment
(3) intentional act