Torts Flashcards
What is the basis of tort liability in Louisiana?
Art 2315, which provides that every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.
What is the importance of intentional torts?
- Immune from workers’ compensation immunity; 2. Scope of liability extends to unforeseeable and unintended consequences; 3. Proof of damage is not required; 4. No heightened or additional damages for intentional torts.
What standard governs intent for intentional torts?
Intent is determined by subjective state of mind of defendant/tortfeasor. This is in contrast to negligence, where an objective standard is used. 1. Intent element is satisfied when the offender either desires the consequences of his act or when he knew the consequences were reasonably certain to result from his act. Under certain circ, intent can TRANSFER from one tort to another/one person to another.
What torts allow for transferred intent?
Battery/assault/false imprisonment and perhaps trespass/trespass to chattel, and conversion. Intent will NEVER transfer to or from IIED.
What is battery? What are the elements of battery?
Battery is an intentional contact that is harmful or offensive. The elements are: 1. Intent (need only intend the contact, NOT the harm of offfense); 2. Contact (person or something closely connected to person); 3. Harm or offense to person of ordinary sensibilities. Damage not required.
What is assualt? What are the elements of assault?
An assault is an intentionally created reasonable apprehension of an imminent battery. The elements are: 1. Reasonable apprehension–must be IMMINENT. Fear alone is not apprehension; 2. Intent/purpose or substantial certianty of causing reas. apprehension; 3. Tortfeasor must reasonably appear to have the means to complete the battery.
What are the elements of false imprisonment?
- Intent–purpose or substanatial certainty of confinement/transferred intent; 2. ACTUAL, COMPLETE confiement is necessary. Reasonable means of escape will eleiminate liability; INDIRECT confinement may be actual confinement.
What are the elements of IIED?
- Specific intent–desire to inflict severe emotional distress/substantially certain that severe emotional distress will occur; 2. Extreme and outrageous behviaor; 3. D’s conduct must CAUSE plaintiff’s emotional distress. When IIED is perpetrated over a long period of time, prescription does NOT start to run until the continuous conduct ends.
What is tresspass to land? (Intentional interference with immovables)
An intentional torat against property. The elements are: 1. Intent–purpose/subst. certaintiy to enter the property of another; 2. Physical entrance onto the land of another.
Is there a distinction under LA law for good faith/bad faith trespass?
LA distinguishes between good faith/bad faith trespass. Good faith trespass is trespass DUE TO NECESSITY or WITHOUT KNOWLEDGE. Good faith=only liable for actual damage. Bad faith=liable for nominal damages even if no actual damage.
What is trespass to chattel and conversion?
Damage to a chattel requiring a forced sale create a conversion, while lesser damages create a trespass to chattel. The elements are: 1. Intent–intent to interfere with the owner’s dominion or use and enjoyment of the chattel; 2. Interference–substantial dominion or damage to the chattel of another. 3. Damages–damages are the value fo the chattel. For trespass, damages will compensate for the damage or use.
What is intentional interference with a contractual relationship?
The elements are: 1. Contract or legally protected interested between plaintiff and 3rd party; 2. Defendant’s KNOWLEDGE of the contract; 3. Intentional inducement/causation of the third party to breach the contract/intentional rendition of its performance impossible or more burdensome; 4. Causation of damages to the plaintiff BY the BREACH of contract. LA courts DO NOT recognize negligent interference with contract.
What is defamation? What are the elements?
Defamation is a tort where the defendant causes damage to the plaintiff’s reputation. The elements are: 1. False and defamatory statement concerning another; 2. Unprivileged publication to a third party; 3. Fault (negligence or greater) on the part of the publisher; AND 4. Resulting injury.
Does defamation exist for opinions?
Defamation exists only for statement, NOT opinions. 1. A defamatory statement is capable of being proved false. An opinion WIHTOUT a false factual connontaion is not a defamatory statement. Must be more than innuendo/suspeicion. Rhetorical hyperbole or satire about public figures does not reasaonably state actual fact, and is not defamatory speech. TRUTH is an ABSOLUTE DEFENSE to a defamation claim. Falsity is party of P’s prima facie burden.
What are defamatory statements?
A statement is defamatory it it TENDS to harm the reputation of another so as to lower the person in the estimation of the community. 1. DEFAMATION PER SE: words which BY THEIR VERY NATURE tend to injure one’s personal/professional reputation, w/o considering extrinsic facts. Falsity and malice are presumed. 2. SUSCEPTIBLE OF A DEF. MEANING: a plaintiff must prove, in addition to def. meaning/pub, falsity, malice, and injury.
What are the requirements for publication with defamation? Injury?
Statement must be communicated to a THIRD PERSON. May oral/written/communicated to single third person. Comm by corp. employee to another does not create liability on part of corporation. 1. INJURY may be presumed when the words are defamatory per se; when not, injury is damage to individual’s reputation, etc.
What must public officials and public figures establish in a defamation suit?
- Must establish ACTUAL MALICE. 1. Public official–someone employed by govt. who is involved in public decision-making process; 2. Public figure–someone intimately involved in resolution of importance public questions/famous; 3. ACTUAL MALICE–knowledge fo the falsity or reckless disregard concerning the truth or falsity.
What are the requirements for defamation when it is a private plaintiff on a matter of public concern?
Plaintiff must prove negligence and damage by CLEAR AND CONVINCING EVIDENCE. Even if words are defamaotry per se, the plaintiff must prove injury by clear and convincing evidence.
What are the requirements for defamation when it is a private plaintiff on a private matter?
Plaintiff must prove negligence and damage by a PREPONDERANCE of the EVIDENCE. Even for words that might be considered DEFAMATORY per se, the plaintiff must prove injury by a preponderance of the evidence.
What are the privileges and defenses to defamation?
- Truth is an absolute defense; 2. Aboslute privilege exists in narrow number of situations, e.g., statements by judges/legislators/witnesses & attorneys in judicial/legis settings, unless the statement DOES NOT concern the matter that is properly before the judicial/legis body.
What are the conditional or qualified privileges to defamation?
- EXISTENCE: Do the attendant circ of a comm occasion a qualified privilege? (reported suspected crime, e.g.) 2. SCOPE: A conditional privilege may be defeated by establishing that the D has exceeded the scope fo the priivlege. Usually, showing that D has acted with ACTUAL MALICE will defeat the privilege.
What are the four distinct branches to the invasion of privacy?
- Intrusion upon solitude or seclusion; 2. Appropriation of name or likeness; 3. Publicity given to private life and private facts; 4. Publicity placing person in a false light.
What are the elements of intrusion on seclusion?
- Intentional intrusion–phsyical or othersie; 2. Upon seclusion/solitude in which person has REOP; 3. HIGHLY OFFENSIVE to a reasonable person.
What are the elements of appropriate of name or likeness?
- Appropriated by D; 2. To his benefit; 3. Of the plaintiff’s name or likeness; 4. Without consent; 5. CAUSING ACTUAL DAMAGES.
What are the elments of publicity given to private life or private facts?
- Publicity to public–size of group depends on what is nec to make info public; can’t be just one person; 2. Needs to be about private life; 3. Highly offensive and not of reasnable importance to the public.
What are the elements of publicity placeing person in a false light?
Occurs when person’s name or picture is used to make it appear as though the person has CONSENTED to endorse the advert product, with or without being paid to do so. WHEN the impression is FALSE in fact, the appropriation of the persona’ identy places the person in a false light.
What is the difference between defamation and invasion of privacy?
In an invasion of privacy action, statements DO NOT HAVE TO BE FALSE.
What are defenses to invasion of privacy torts?
- Qualified privilege of fair reporting, which is publication of an accurate report of an official action; 2. Consent–impress or implied; 3. Statutory immunity for merchants posting NSF checks; 4. Truth is NOT a defense; nor is GOOD FAITH.
What is malicious prosecution?
- A original criminal or civil judicial proceeding; 2. With plaintiff in malicious pros action as D in original proceeding; 3. Bona fide termination in favor of present plaintiff; 4. Absence of probable cause for such proceeding; AND 5. Damages to P. PROVING MALICE–mailce is inferred when there is lack of prob cause resulting from a wanton and reckless disregard of the rights of the party sued, or when there is knowledge that the charge is false or when it is brought with reckless disregard for the truth. Burden of proving malice is generally on the plaintiff. Burden of proof is on the plaintiff.
What are the elements of abuse of process?
- An ulterior purpose; 2. A willful act in the use of process that is not proper in the regulatr conduct of the proceeding.
What constitues consent as a defense to an intentional tort?
Recognize dispute between whether consent is an affirmative defense or whether lack of defense is a prima facie element of the tort. 1. Consent to an action vitiates intent of the tortfeasor; 2. Cosnent is not valid if botained through fraud/duress/misrep; however, consent is valid when given by mistake; 3. Consent may be either express or implied by the circ of the incident; 4. Consent is not a contract, it can be revoked at anytime.
What are special applications of consent as a defense?
- Consent standard must be adjusted in power relationship; 2. Voluntarily engaging in fighting/initating fight constitutes consent. Cosnet to medical procedures should be analyzed in the light of INFORMED consent.
When is self defense a defense to an intentional tort?
An individual may use reasonable force to defend himself when a reasonable person would conclude that it was necessary. OBJECTIVE STANDARD. Actual danger is not required; only necessary that person had reasonable grounds to believe that the danger existed. Exceeding scope of privilege may make individual responsible for an intentional tort.
When is defense of others a defense to an intention tort?
- On same grounds as third party may defend himself; 2. Risk of mistake is borne by the person who attempts to defend another; 3. EXCESSIVE force may exceed privilege of defense; 4. Parents have a stuatory privilege for defense of their children.
When can arrest and detention give rise to defenses for intentional torts?
- Oficcers of the law that act in accordance with a properly issued warrant are privileged in the actions taken which are necessary to arrest and detain the suspect; 2. Store owners are often privileged to detain a person for up to SIXTY MINUTES if they ave prob cause/reasonable belief that someone has stolen something from the store.
When does defense of property and recpature of chattels give rise to defense to an intentional tort?
- Person in POSSESSION of the property is privileged to use reasonable force in the protection on that property. Cannot use DEADLY or EXCESSIVE force to defend property. 2. OWNER of chattel that was wrongfully taken from him is privileged to recpature such chattel. A STOREOWNER is privileged in recapture of stolen merch if in hot pursuit. Both bear the risk of mistake; both are governed by the limits of reasonable force.
When can a person use deadly force?
By LA stutate, a person who uses REAS and APPARENTLY nec or DEADLY force to prevent a FORCIBLE offense against the person or his proeprty. (self defense and justificable homicide). PRESUMPTION OF REAS BEL for occupants of dwellings and autos; negates generally the duty to retreat before using deadly force.
What is a public necessity; taking?
- 5th and 14th amendments require that the govt compensate persons for property seized for future use; 2. If govt seizes proeprty for purpose of destruction to avert harm to others, then govt is not liable for damages.
What is private necessity?
A defense to trespass. 1. A person may trespass without liability in cases of a private necessity; 2. Any damage that is incurred to the P’s proeprty is the responsibility of the trespasser.
What is the negligence standard?
Actor’s conduct falls below an objective standard of care/substandard conduct results in injury to another. Elements: 1. Cause in fact–actually cause injury; 2. Duty/risk–did D owe a duty of care, and did duty extend to the risk?; 3. Did defendant breach the duty?; 4. Plaintiff must have suffered some compensable injury.
What are the elements of the duty/risk standard?
- Traditional duty–what is the standard of care applicable to this defendant? 2. Scope of the duty–should D be responsible to this P, for this injury, which occurred in this manner, from this risk? VERY IMPORTANT YOU USE THIS.
What are the distinctions between Louisiana’s negligence standard and the common law formulation?
- Intentional torts–intent is measured by the subjective state of mind of the D. Negligence is measured by an objective standard. 2. Common law–reorders the elements and uses different langauge.
How is cause in fact proven under Louisiana law?
Cause in fact can be proven by applying one of TWO standards: 1. But-for causation;–if not for the defendant’s negligence, the plaintiff would not have been injured. 2. Substantial factor causation–was the D’s negligence a substantial factor in the injury of the plaintiff?
What is the relationship of the cause to the injury?
- Relevant causation chain is drawn between the negligent act and the plaintiff’s injury. 2. Whener plaintiff is able to PROVE causation depends upon the injury–if plaintiff claims lost change/increased risk of injury, causation is easier to establish. LA only recognizes lost change as a compensable injury in med mal cases. Medical monitoring is NOT a comepsnable injury.
How is duty defined?
Duty is defined by the standard of care applicable to the D. 1. Standard of care is an objective standard–the D must behave as a REASONABLE PERSON would behave. Higher standard than average. Takes into accoutnt he physical limitations of the tortfeasor BUT NOT MENTAL limitation. Child held to reas child standard, unless participating in a traditionally adult activity.
What are other ways to determine the appropriate standard of care/establish duty?
- Negligence per se–non-tort statute may establish a standard; 2. Customary behavior may establish a standard; 3. Risk/duty utility–cost of precautionary activity balanced against expected loss; 4. Res ispa loquitur.
What is negligence per se?
A non-tort statute can be IMPORTED as a standard of care, which, if violated, allows an inference of negligence b/c it is the equivalent of breaching the duty of care. Questions: 1. ADMISSIBILITY–is non-tort statute admissible? 2. EVIDENTIARY VALUE–what value do we assign to the violation of the statute. Statutory breach is MERE EVIDENCE of negligence under LA law.
What are the two inquiries with respect to admissibility of non-tort statute?
- Is the plainitff a part of the CLASS OF PERSONS the statute was designed to protect? 2. Is this risk within the CLASS OF RISKS the statute was designed to prevent?
What is res ispa loquitur?
Evidentiary doctirne that permits the inference of negligence. Elements: 1. Event is the kind that ORDINARILY does not occur in the absence of negligence; 2. Other responsible causes are SUFFICIENTLY eliminated by the evidence; 3. The indicated negligence is within the SCOPE of the D’s duty to Plaintiff. Note: Res ispa is an INFERENCE the jury may make, not a presumption.
Is the res ispa standard the same as for directed verdict?
In LA, the standard for obtaining the res ispa instruction is the same as the directed verdict rule. If P proves all of the elements such that reasonable minds could not differ, then the DV is aarded. If reas minds COULD differ concerning the inference of negligence from the facts tehmselves, then the res ispa instruction is given. Note: Med mal may be governed by res ispa; but known risks of partic proc are not subject to res ispa.
When can custom be used for the standard of care?
- Custom as a sword–may be used by P, arguing that D’s failure to meet cust standard is evidence of breach; 2. Custom as a shield–D argues that it met the cust standard, and therefore has NOT breached the standard of care. Weak evidence.
What is the hand formula? Risk versus utility?
Duty can be imposed by a statute, standard of operation, or by applying a risk utility formulata. Looks at burden of precaut activity measured against possibility of resulting injury/mangnitude of injury/expected loss.
What is the scope of the duty/scope of the risk?
The SCOPE OF THE DUTY inquiry asks whether THIS defendant should be responsible to THIS plaintiff in THIS case. Several factors: 1. Foreseeable risk/foreseeable plaintiff; 2. Ease of association; 3. Superseding/intervening causes; 4. Policy considerations.
What constitutes foreseeability in the scope of duty/risk analysis?
Class of person and class of risk must be within the scope of reasonably foreseeable persons and risk. 1. Injury to the plaintiff must be foreseeable as a possible or probable injury to the protected class of plaintiffs. 2. The risk that occurs must be in the class of foreseeable risk. (LA only requires GENERAL TYPE of risk must be foreseeable).
What is the ease of assocaiton test?
This is the language used in the foreseeable analysis; I.e., is there an EASE OF ASSOCIATION between the class of person and the class of risk.
What are superceding vs. intervening causes?
- An INTERVENING act is an action that occurs between the negligent act and th einjury. (Acts of God, acts of third parties); 2. A SUPERCEDING cause is one that will relieve D of liability–term that has LEGAL significance.
When is an intervening act superceding?
An intervening act is superceding if–1. More foreseeable or probable an event, the LESS likely it will be considered superceding; 2. The more FAULTY the intervening act, the MORE likely it will be considered superceding. Notes: Acts of God may be suerpceding, but regular event are not; suicide/criminal acts can be superceding UNLESS the duty to gaurd against suicide/criminal activity is reasonably foreseeable.
What are the policy factors that should be taken into account when determining the scope of the risk?
Need for comepsnation of losses; historical development of precedents; moral aspects of defendant’s conduct; efficient adminstration of the law; deterrence of future harmful conduct; capacity to bear or distribute losses.
What constitutes BREACH of the duty?
- D’s condcut falls below the objective standard of reasonable conduct as defined by the duty; 2. Doctinres of NPS, RISK UTILITY/RES ISPA are all part of the breach analysis.
What constitutes harm/injury in the negligence analysis?
ACTUAL DAMAGE must be proven, either by showing personal injury damages or by showing damage ot proeprty. 1. NO recovery where there are not ACTUAL damages (e.g., an increased risk of cancer; 2. However, lost change IS recoverable in med mal cases; jury will determine value of the lost change. 3. LA does permit damage awards made for fear of contracting a disease AFTER you have been exposed to the disease.
