Torts Flashcards
Wrongful Death
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
Survival
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
Negligent Infliction of Emotional Distress (NIED)
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
Negligence: Requirements
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)
Cause-In-Fact (Causation)
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
Duty
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
Duty: Negligence Per Se
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
Duty: Custom
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
Duty: Res Ipsa Loquitur
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
Scope of Risk
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
Scope of Risk: Foreseeability
(a) is this a reasonably foreseeable person?
(b) is this a reasonably foreseeable risk?
*only the general type of harm needs to be foreseeable
Scope of Risk: Ease of Association
how easily can this injury be associated with the negligent act?
Scope of Risk: Intervening and Superseding Causes
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
Scope of Risk: Pitre Policy Factors
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
Breach of Duty
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
Breach of Duty: Hand Formula
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
`Injury
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
Vicarious Liability
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
Vicarious Liability: Employment Relationship
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
Vicarious Liability: Course and Scope
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)
Vicarious Liability: Negligent/Intentional Conduct
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
Owner Liability for Actions of Lessees/Tenants
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
Strict Liability
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
Strict Liability: Parental Responsibility for Children
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
Strict Liability: Dog Owners
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
Owner of a Thing/Building
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!
Landlord Liability for Building to Tenant
apply same general analysis, but landlords can limit their liability to tenants via the landlord/tenant agreement
Defense to Negligence: Comparative Fault
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
Watson Factors
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
Public Duty Doctrine
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)
Sovereign Immunity
has been waived in the LA constitution
Discretionary Act Immunity
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
Medical Malpractice: Types
(1) failure to exercise reasonable care in diagnosis or procedure
(2) failure to provide the information necessary for the patient to make informed consent
Medical Malpractice: Standard of Care
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
Medical Malpractice: Factors
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?
Medical Malpractice: Damages Cap
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
Medical Malpractice: Elements
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)
Medical Malpractice: Procedure
(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
Medical Malpractice: Consent
written consent in conformity with the Uniform Consent Law creates a rebuttable presumption of valid consent
Medical Malpractice: Prescription
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
Punitive Damages
only available under the following circumstances:
(1) driving while intoxicated
(2) sexual abuse of a minor
(3) child pornography
*(4) Drug Dealer Liability Act
Conversion
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
Intentional Interference with Movables
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
Drunk Defendant
apply negligence per se if driving with BAC above the legal limit
Provider of Alcohol
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
Products Liability
the Louisiana Products Liability Act (LPLA) provides the exclusive theory of liability against manufacturers of products in personal injury actions
Products Liability: Elements
(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
Products Liability: Unreasonably Dangerous
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
Unreasonably Dangerous in Construction or Composition
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)
Unreasonably Dangerous because of a Design Defect
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
Unreasonably Dangerous Due to Inadequate Warning
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
Unreasonably Dangerous Due to Breach of Express Warranty
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
Open and Obvious Defense
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
Defamation: Types
(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
Defamation: Elements
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
Defamation: Constitutional Issues
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
Actual Malice
knowledge that the statement is false or reckless disregard concerning its truth or falsity
must be proven by clear and convincing evidence
Defamation: Defenses
(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
Workers’ Compensation Immunity
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.
Workers’ Compensation Immunity: Elements
(1) employment relationship
(2) nature of the injury
(3) defined compensable injury under the statute
Workers’ Compensation: Employment Relationship
(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
Workers’ Compensation: Nature of the Injury
(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)
Workers’ Compensation: Exceptions to Recovery
(1) horseplay
(2) personal dispute unrelated to employment
(3) intentional act
