Torts II

Question 1

What is strict liability?

Answer 1

Liability that is imposed without fault. Reasoning = if you engage in certain inherently dangerous activities, you bear the risk they cause even if you took all precautions.

1 of 3 kinds of tort liability.

Question 2

What is a survival action?

Answer 2

claim based on the harm or injuries that the decedent suffered before death. The claim already existed at the timer of death. It survives for benefit of estate or legal survivors.

Question 3

What is a wrongful death action?

Answer 3

A statutory cause of action, that allows certain surviving family members or beneficiaries to recover damages for their own losses, resulting from a wrongul act, negligence or fault of another that caused death.

Question 4

LA staute for survival action

Answer 4

Analyzes the order of beneficiaries, allows a succession representative to sue if no listed beneficiaries exist, and can pass to heirs (but doesnt mean you get extra time to sue).

Question 5

Damages for survival actions

Answer 5

lost earnings
medican expenses
pain and suffering
emotional distress of decedent
property damage

Question 6

LA statute for wrongful death action

Answer 6

Looks to order of beneficiaries?
1 year prescription from death
Protects family interests and prevents double jeopardy.

Question 7

wrongful death damages

Answer 7

funeral expenses
medical expenses
loss of income
emotional distress
loss of consortium

Question 8

Prescriptive period for survival action

Answer 8

Filed within 1 year of death. Tied to the victims original cause of action –> Did the claim expire at the time of the victims death?

Question 9

Prescriptive period for a wrongful death action

Answer 9

Runs from the date of death and expires after 1 year if no legal action is taken.

Question 10

Common law strict liability for wild animals

Answer 10

Party is always liable for the injuries caused by dangerous propensities. Wild in this context means not commonly devoted to human service in the local community.

Question 11

Common law rule – strict liability for domesticated animals

Answer 11

Party is strictly liable when the owner knows or has reason to know of dangerous propensities.
AND
The animal has shown vicious tendencies.

Question 12

Louisiana strict liability doctrines

Answer 12

Wild animals
Certain dog injuries
Ultra hazardous activities

Question 13

Common law strict liability doctrines?

Answer 13

Injuries by animals
Abnormally dangerous activities

Question 14

Louisiana rule – strict liability for animals

Answer 14

General rule for all animals is that the owner is liable if they
1) Knew or should have known the animals behavior would cause harm.
2) The owner could have prevented the harm by exercising reasonable care.
3) The owner failed to act reasonably.

Question 15

LA rule for when strict liability applies to dogs

Answer 15

The dog caused damage, the owner could have prevented the harm, and the injury was not provoked by the victim.

Question 16

LA rule for livestock and strict liability

Answer 16

An owner is SL if the livestock escapes, and injury could have been prevented with reasonable care.

Exceptions: Fortuitous event, no fault of the owner, provocation by a third party.

Question 17

Common law rule – strict liability for animal tresspass

Answer 17

SL for livestock that damages property while roaming.

No liability for domestic pets unless negligence is shown.

Question 18

LA Rule — strict liability for animal tresspass

Answer 18

SL applies if the owner is at fault

Question 19

Strict liability for abnormally dangerous activities

Answer 19

6 factor test
1) high degree of risk or harm
2) likelihood of severe harm
risk cannot be eliminated by reasonable care
4) the activity is uncommon
5) inappropriate location?
6) the danger outweighs the community value.

Question 20

defense to SL

Answer 20

acts of God
superseding causes

Question 21

In LA, what are the abnormally dangerous acitvities that you will be SL for?

Answer 21

Pile driving
Blasting with explosives

All other activities use negligence test

Question 22

Premises liability – persons off the property

Answer 22

landowners owe a duty to prevent unreasonable risks to people outside the property when… the hazard is artificial.
Ct. says less duty is required for natural conditions especially in rural settings.

Question 23

Assumption of the risk defense

Answer 23

Where a defendant argues that the pl. knowingly and voluntarily accepted the risk of the harm therefore the def. isn’t full liable.

Question 24

Louisiana Comparative Fault

Answer 24

If a pl. knowingly exposed themselves to risk, their recovery can be reduced in proportion to their fault. However, the pl. is not completely barred from recovering.

Question 25

What is constant trespass exception

Answer 25

If a landowner knows that tresspassers reguarly use part of their land, they owe a duty to warn or make safe of ~hidden dangers~

Question 26

What is attractive nuisance doctrine

Answer 26

Landowners may be liable for artificial conditions that lure in children. (This rule doesn't usually apply to natural conditions).

Question 27

What is the LA rule for premises liability?

Answer 27

Courts lean towards the reasonableness standard especially for social guests.

Question 28

Legal definition of a tresspasser

Answer 28

Someone who enters without permission. Duty owed to trespassers in none besides cant put intentional traps.

Question 29

What is an invitee + what duty is owed to them?

Answer 29

An invitee is someone on the premises by express or implied invitation, for mutual benefit. (Usually economic). Duty owed --> reasonable care to keep the premises safe, inspect for dangers, and to warn or fix dangers.

Question 30

What is a licensee + what duty is owed to them?

Answer 30

someone on the premises for their own purpose usually a social guest. Duty owed --> refrain from willful harm and warn of known hidden dangers.

Question 31

Premises liability

Answer 31

The legal responsibility of landowners for injuries that occur on or near their property.

Question 32

3 LA nuisance statutes covered?

Answer 32

A municipality has the power to remove a public nuisance such as a wrecked car. Illegal gambling houses = nuisance vicinage obligations --> certain duties imposed on neighboring landowners

Question 33

Defenses to nuisance

Answer 33

comparative fault assumption of the risk "coming to the nuisance" - balancing test. Does the defendants activity fit within the character of the area?

Question 34

Remedies for nuisance

Answer 34

1) compensatory damages for past and future harm if the nuisance is permanent. 2) injunctive relief -- if abatement is impractical then ct. may award permanent damages 3) Self help abatement -- pl. may remove the nuisance after notice and refusal by defendant.

Question 35

How is liability for nuisance determined in LA law?

Answer 35

When the landowner knew or should have known their activity would cause damage, the damage could have been prevented by reasonable care, and failed to exercise that reasonable care. Landlord may be liable if they had constructive knowledge.

Question 36

nuisance per se vs. nuisance per quod

Answer 36

pe se -- always a nuisance per quod - becomes a nuisance over time. such as a business causing excessive noise

Question 37

permanent nuiscane vs. temporary nuisance

Answer 37

permanent = cannot "practically" be removed. temporary = can be abated such as stinky pigs next door

Question 38

Private nuisance

Answer 38

substantial and unreasonable interference with a pl. use and enjoyment of land in which they have a possessory interest.

Question 39

public nuisance

Answer 39

3 elements 1) Unreasonable Interference -- defendant’s conduct must significantly interfere with public rights. 2) The interference must affect interests shared by the public, such as: Public health (e.g., pollution) Public safety (e.g., storing explosives unsafely) Public morals (historically, things like houses of prostitution) Use of public spaces (e.g., obstructing highways or waterways) 3) Substantial Harm -- the interference must be substantial enough to offend, inconvenience, or harm the public.

Question 40

Nuisance

Answer 40

A harmful or annoying human activity or physical condition and the harm caused by that activity or condition. prevents use of enjoyment of property

Question 41

difference between trespass and nuisance

Answer 41

trespass deals with interference of a possession + physical invasion someone walking on to your land uninvited nuisance is an interference of use of enjoyment such as odors, noise, vibrating. noise blasting

Question 42

How to prove a private nuisance claim?

Answer 42

The interference must be unreasonable under the circumstances. Courts apply a balancing test to determine this: Nature and character of the neighborhood. Utility or social value of the defendant’s conduct. The extent and duration of the harm. Whether the plaintiff is using their property in a normal or hypersensitive way.

Question 43

Vicarious liability

Answer 43

liability imposed on one party for the tortious acts of another due to a special relationship. key element = relationship opens the door to liability

Question 44

Louisiana vicarious liability and fault apportionment

Answer 44

When an employer shares liability for the employees percentage of fault. Also If the employer is also directly liable, their separate fault must be allocated. Example if an employee is 20% at fault the employer will be 20% at fault. If the employer negligently hired then that fault would be separate.

Question 45

Employers and Intentional Torts Louisiana

Answer 45

Employers are liable if the intentional tort is closely tied to employment duties. If the intentional tort was motivated purely by personal reasons, then no liability.

Question 46

Borrowed employee doctrine

Answer 46

Factor based test the ct. used to determine if an employee is borrowed. (When an employee is hired by one employer but then becomes under the control of another employer). The borrowing employer might become liable or granted certain protections.

Question 47

Louisiana Employer Liability

Answer 47

Employers are liable for employees torts if the tort committed was in the exercise of employment duties. And the employer could have prevented the harm but failed to. LA applies "right of control" test to distinguish an employee from an independent contractor.

Question 48

Parental Liability in Louisiana

Answer 48

Parents are strictly liable for torts of their minor children living with them. Liability still applies even if the child is too young for negligence and the parent wasn't negligent.

Question 49

Vicarious liability -- bailments

Answer 49

Generally a bailor is not vicariously liable unless they give control of a dangerous item to someone unfit. Example: Giving a car to a reckless driver.

Question 50

Vicarious liability -- joint enterprises

Answer 50

JE = where two or more persons agree to work together for a common purpose One person may be held liable for the wrongful acts of another in a joint enterprise when 1) Express or implied agreement 2) common purpose for pecuniary gain 3) equal control over the enterprise

Question 51

vicarious liability -- Independent contractors

Answer 51

Generally no liability except when 1) non delegable duty 2) peculiar risk (inherently dangerous work) 3) illegal activities 4) apparent authority - if the principal creates a reasonable belief that the contractor act on their behalf

Question 52

Course and scope of employment in vicarious liability cases

Answer 52

frolic = substantial personal deviation detour = minor deviation. With a detour an employer is liable. commuting = generally outside the scope of employment unless the employer provided transportation as part of the job. slight deviation = personal acts close in time, purpose, or distance of the job may still be within scope

Question 53

How does comparitive fault impact punitive damages?

Answer 53

Does not lower it, purpose is to punish the defendant.

Question 54

Joint and severable liability -- common law

Answer 54

multiple tortfeasors are liable for the entire harm if the injury is indivisible.

Question 55

Does Louisiana have joint and severable liability?

Answer 55

No it has been abolished. Each defendant is only liable for their own percentage of fault. Pl. can only recover from each defendant in proportion to that defendants fault.

Question 56

3 different doctrines of fault apportionment

Answer 56

Pure comparative fault (what Louisiana uses) - pl. damages are reduced in proportion to their fault. Governs the fault of all parties and applies to all torts besides intentional torts. Modified comparative fault - pl. recovery is barred or reduced... pl can recover if less than 50% at fault or pl. can recover if they 50% OR less at faut. Contributory negligence - complete bar to recovery if pl is any amount at fault. (super rare).

Question 57

Workers comp.

Answer 57

employers are automatically responsible for most workplace injuries regardless of fault (SL standard). replaces tort claims against employers with no fault system this guarentees benefits such as medical expenses, wage replacement, etc. does not apply to intentional acts

Question 58

elements for workers comp. claim

Answer 58

injury is caused by an unexpected identifiable event during employment. Physical or mental injury occurs and that injury causes a disability preventing work. employees can sue in tort if there's an intentional act.

Question 59

Limits of workers comp. claims

Answer 59

Workers comp doesnt bar suits like civil rights claims and claims unrelated to work injuries

Question 60

Auto Insurance -- Statutory compensation

Answer 60

auto insurance is entirely statutory all states require it in some form and there are two primary systems known as 1) no fault 2) fault based insurance

Question 61

No fault insurance

Answer 61

insurance designed to speed up compensation reduce minor accident litigation, where each driver recovers from their insurer regardless of fault. Pl. insurer may seek reimbursement from at fault drivers insurer. If the injury is serious the pl. can still sue under traditional tort law.

Question 62

no fault insurance --- non economic damages

Answer 62

generally you cannot sue the at fault driver for things like... pain and suffering emotional distress loss of enjoyment of life Unless the threshhold requirement is met --> significant or permanent loss of bodily function, permanent injury, significant disfigurement,

Question 63

Fault based insurance

Answer 63

Louisiana is a fault based state. therefor at fault driver is responsible for damages. The pl. must prove fault to recover. **no pay no play rule applies** limited recovery for uninsured drivers even if you aren't at fault

Question 64

what is subrogation in insurance?

Answer 64

Insurer pays the insured and then seeks reimbursement from the at fault party. In Louisiana the insured must be fully compensated before the insurer can exercise subrogation. Applies in personal injury torts and 3rd party liability cases.

Question 65

UM and UIM Coverage

Answer 65

protects the driver when the at fault driver lacks sufficient insurance Louisiana mandates it unless expressly waived Public policy favors broad UM protection.

Question 66

phantom vehicle doctrine

Answer 66

allows UM recovery when an unidentifiable driver causes an accident if supported by an independent witness.

Question 67

Stacking UM coverage

Answer 67

combining multiple UM policies to cover one loss. Louisiana limits stacking and says only one UM policy applies unless you're injured while riding in another persons car.

Question 68

workers comp. -- car accidents

Answer 68

commuting accidents fall into auto insurance not workers comp. injuries during job related driving may trigger workers comp and a 3rd party tort claim against negligent drivers. In this scenario, the employer may seek reimbursement for benefits paid if the 3rd party is liable.

Question 69

what is defamation

Answer 69

an injury to a persons reputation caused by false information. 2 different forms = libel (written) and slander (spoken).

Question 70

In defamation cases what is a good first approach?

Answer 70

Ask how the defamatory statement was made. Written or spoken?

Question 71

Elements of a defamation claim

Answer 71

A false and reputation-damaging statement (judge determines if it’s capable of being defamatory; jury decides if it actually is). Publication to a third party Fault (at least negligence) Unprivileged communication Resulting injury

Question 72

defamation -- injury to reputation

Answer 72

court says a special activity such as a profession may make certain statements more harmful. special damages may be awarded if you can show that there was monetary harm due to reputational injury

Question 73

defamation -- publication and fault

Answer 73

Plaintiff must show the statement was communicated to a third party. Level of fault means depends on who the plaintiff is. Public official > must prove actual malice Public figure > must prove actual malice Private indiviual about a public concern > must prove at least negligence in most states private individual about a private matter> states can require only negligence or lower.

Question 74

Louisiana prima facie case for defamation

Answer 74

Louisiana Prima Facie Case (5 elements) False Defamatory Unprivileged publication Fault (negligence or more) Injury

Question 75

Louisiana nuances -- defamation

Answer 75

no distinction between libel and slander in pleading. defamation is a criminal offense in Louisiana when it exposes someone to hatred or contempt, damages the memory of the deceased, or harms a businesses reputation.

Question 76

what is defamation per se

Answer 76

defamatory on its face 4 different categories = Serious crime Harm to business/profession Loathsome disease Sexual immorality In some jurisdictions, ambiguous language defeats a per se claim if one meaning is not defamatory. In others, the jury decides if ambiguous language is defamatory per se.

Question 77

defamation per quod

Answer 77

Defamatory only with additional context/innuendo. Plaintiff must show reputational harm and the innuendo. Defamation per quod: Requires proof of harm via insinuation or innuendo Plaintiff must prove contextual harm to reputation​

Question 78

public concern doctrine

Answer 78

Statements not of public concern allow for: Presumed damages Punitive damages Without showing of actual malice​ Why?: Credit reporting agencies aren’t afforded same First Amendment protection as the press. Limited audience Not engaged in public discourse​

Question 79

what is a matter of public concern?

Answer 79

Content, form, and context of the statement Must relate to: Political/social/public interest General newsworthiness Public figures or safety concerns​

Question 80

defamation damages

Answer 80

Damages Presumed damages: Available for public figures only when actual malice is shown Restatement (2d) §621: Doesn't take a clear position on awarding presumed damages against public figures​

Question 81

Defamation --- privileges

Answer 81

Absolute Privilege Applies even if statement made with malice Examples: Judicial proceedings: judges, attorneys, witnesses, parties High-ranking federal/state officials (Barr v. Matteo, 1959)​ Qualified (Conditional) Privilege Applies only if speaker acts for a proper purpose Can be lost if made with malice or bad faith Evaluated by a jury​

Question 82

Defamation -- spousal immunity

Answer 82

VI. Spousal Immunity Communications between spouses are privileged But a third party who starts the defamation may still be liable if the statement is repeated between spouses​

Question 83

defemation -- opinions and LA law

Answer 83

Opinions are protected, but only if they don’t imply underlying false facts​