001 Torts

Front 1

If you get a question about a rotten tree, what do you say?

Back 1

La. Civ. Code art. 2317, prior to the 1996 amendment, would have applied strict liability to this issue
and imposed liability regardless of whether Mike knew, or in the exercise of reasonable care should have known
the risk. In 1996, the legislature adopted La. Civ. Code art. 2317.1, which amended La. Civ. Code art. 2317 and
imposes liability only where the owner of a thing or building that has a ruin, vice, or defect:
1. Knew, or in the exercise of reasonable care, should have known of the ruin, vice or defect;
2. The damage could have been prevented by the exercise of reasonable care; and
3. The owner failed to exercise reasonable care.

Front 2

In order to prove a public entity liable for a defective condition, a plaintiff must prove the elements in
La. Rev. Stat. 9:2800:

Back 2

1. Custody or ownership by the public entity;
2. The defect created an unreasonable risk of harm;
3. The public entity had constructive knowledge of the defect;
4. The public entity failed to take corrective action within a reasonable time; and
5. The defect caused injury to the plaintiff.

Front 3

a co-worker shoves you while playing basketball during lunch. you are not allowed to leave the job site during lunch. what are the claims and defenses

Back 3

At first glance, this appears to be a workers’ compensation claim. In order to claim compensation
benefits, a worker must show:
1. An employment relationship;
2. A compensable injury;
3. That arises out of and in the course of the employment.


Because this injury occurred at the job site and they were not allowed to leave, it appears to have occurred “in
the course of” the employment. Since the first two elements are obvious, it appears this is a workers’
compensation claim, meaning that Wally’s exclusive remedy is within the requisite workers’ compensation
statutory scheme.

In order to get out from under the exclusivity and immunity of Workers Compensation, Wally has two possible
arguments. First, he can argue that his co-employee committed a battery when he pushed him. A battery
consists of: the intent to contact, physical contact, and harm or offense. The fact that the push was “playful”
does not matter. The co-worker had purpose or substantial certainty that Wally would contact the ground,
Wally fell to the ground meeting the contact requirement and it was at least offensive. Wally seems to have a
pretty good argument this was an intentional tort. Alternatively, Wally could argue that this was “horseplay”
and thus is not a workers’ compensation event.
If Wally can show that the tort was intentional, or that the injury resulted from horseplay, then the workers’
compensation immunity does not apply. Wally could then sue his co-worker for battery or negligence, and his
employer for vicarious liability or negligent supervision. Conner Construction will be vicariously liable for the
co-worker’s intentional tort where the conduct is so closely connected in time, place and causation that it
constitutes a risk of harm attributable to the employer’s business.

Front 4

Benny, age 17, was skateboarding and injured an old lady. He had run away from his father's house and he made a diligent effort to find him but could not. Benny has been hiding in the shed behind his mother's house. She had no idea. The parents have joint custody of Beni. Who is responsible?

Back 4

The problem assumes that Benny’s behavior is negligent, so this discussion is limited to parental
responsibility. La. Civ. Code art. 2318 provides that “[T]he father and mother are responsible for the damage
occasioned by their minor child, who resides with them or who has been placed by them under the care of other
persons, reserving to the recourse against those persons.” Obviously, one of the key questions concerns the
meaning of the phrase “resides with them.” Louisiana law is relatively clear that a minor “resides” with both
parents who are parties to a joint custody arrangement. The only exceptions in La. Civ. Code art. 2318 are
formal emancipations. Thus, the fact that Benny was not physically with his father does not relieve his father of
liability. Similarly, the fact that his mother does not know that Benny is staying in her shed should not relieve
her of liability. Thus, it appears that Benny’s parents are responsible for damage occasioned by his negligence
pursuant to La. Civ. Code art. 2318.
Negligent supervision will be measured under the duty/risk formulation of negligence which consists of five
elements:
1. Cause-in-fact,
2. Duty,
3. Scope of the duty,
4. Breach, and
5. Injury.
We are not given any facts to suggest that the parents were negligent in their supervision. If Benny had run
away and neither parent made any effort to locate him, that behavior could be negligent, but we are told that his
father has searched diligently. A claim for negligent supervision may be possible, but we are simply not given
enough facts to perform a detailed analysis

Front 5

Trespass to Chattel and Conversion

Back 5

a. intent - to interfere with owner's dominion or use and enjoyment of chattel (movable)

b. interference (substantial dominion or damage to chattel of another)

c. damages - for conversion, damages are lost value of the chattel, while for trespass it is compensation for the damage or use (ex. lost rental value)

Front 6

Intentional interference with a contractual relationship

Back 6

1) contract between plaintiff and third party

2) D's knowledge of contract

3) D's intentional inducement or causation of third party to breach or make impossible or burdensome

4)causation

***no such thing as negligent interference of contract

Front 7

Defamation burdens of proof: private plaintiff/public concern & private plaintiff/private matter

Back 7

1st amendment requires proof of negligence and damage by clear and convincing evidence

1st amendment requires negligence and damage by preponderance of evidence

Front 8

Who has absolute privileges regarding defamation?

Back 8

An absolute privilege exists in a limited number of situations such as statements by judges, legislators, witnesses, and attorneys in a judicial or legislative proceeding.

Front 9

What are the four types of invasion of privacy?

Back 9

1) 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 false light

Front 10

Elements of intrusion on seclusion

Back 10

1) intentional intrusion (physical or otherwise)

2) upon seclusion, solitude or private affairs (person must have reasonable expectation of privacy)

3) highly offensive to a reasonable person

Front 11

Elements of appropriation of name or likeness

Back 11

1) appropriated by the defendant

2) to his benefit

3) of the plaintiff's name or likeness

4) without consent

5) causing actual damages (gaining a business advantage)

Front 12

Elements of publicity given to private life or private facts

Back 12

1) publicity to public (at minimum more than one person)

2) about private life

3) highly offensive and not of reasonable importance to the public

Front 13

What is placing person in false light?

Back 13

use of a person's name or picture making it appear as though the person has consented to endorse the advertised product and the impression is in fact false.

Front 14

What is the difference between defamation and the invasion of privacy?

Back 14

In an invasion of privacy action, statements do not have to be false and malicious intent is not necessary, nor is truth a defense.

Front 15

What are defenses to invasion of privacy?

Back 15

1) qualified privilege of accurate reporting

2) consent

3) statutory immunity for merchants posting NSF checks

Front 16

Elements of malicious prosecution

Back 16

1) original criminal or civil proceeding

2) plaintiff was the defendant in the original proceeding

3) bona fide termination in favor of the present plaintiff

4) absence of probable cause for such proceeding (depends on the facts as perceived by the person bringing action - burden of proving malice is on plaintiff). Malice is inferred when there is a lack of probable 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 brought with reckless disregard for the truth.

5) damages

(can be brought against anyone that brought action against you)

Front 17

Elements of abuse of process

Back 17

1) an ulterior purpose

2) a willful act in the use of process that is not proper in the regular conduct of the proceeding

ex. peter had don, a star prosecution witness in his trial, arrested, alleging that don attacked him when no such event occurred

Front 18

The basis of tort liability in LA is civil code article _________ which provides ______________.

Back 18

2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Front 19

What do you need to know about intentional torts?

Back 19

1. Worker's Comp - exception to immunity

2. scope of liability - may extend to unforseeable and unintended consequences

3. proof of damage not required

4. no heightened or additional damages

Front 20

What is "intent" for purposes of intentional torts?

Back 20

-determined by the subjective state of mind of the tortfeasor (unlike negligence which is objective).

-satisfied when the offender either desires the consequences of his act or knew the consequences were reasonably certain to result from his act

Front 21

When can intent be transferred?

Back 21

from one tort to another or from one person to another.

ex. Albert intends to shoot bill but misses and hits Charlie. Intent to batter is transferred to intent to assault Bill and batter Charlie.

Intent is never transferred for IIED

Front 22

Battery

Back 22

Intentional contact that is harmful or offensive.

Elements:

a. intent - purpose or substantial certainty of harmful or offensive contact

b. contact - touching of plaintiff's person or contact with something closely connected to the person

c. harm or offense - damage not required. reasonable person standard

Front 23

Assault

Back 23

An intentionally created reasonable apprehension of an imminent battery.

The elements are:

a. reasonable apprehension of an imminent battery (not future threats or fear)

b. intent - purpose or substantial certainty of causing the reasonable apprehension

c. apparent means - tortfeasor must reasonably appear to have the means to complete the battery

Front 24

False Imprisonment

Back 24

a. intent - purpose or substantial certainty of confinement or transferred intent

b. actual, complete confinement (reasonable means of escape will eliminate liability, but indirect confinement may be actual confinement)

Front 25

IIED

Back 25

a. specific intent - desire to inflict severe emotional distress or be substantially certain it will occur

b. Extreme and Outrageous Behavior - beyond toleration of a reasonable member of society

c. causation - conduct must cause plaintiff's distress

d. emotional distress - minor emotional upset is insufficient

e. prescription - runs when continuous conduct ends

Front 26

Trespass to Land

Back 26

(intentional interference with immovables)

a. intent - purpose or substantial certainty to enter the property of another (need not know the property belongs to another)

b. physical entrance


***good faith trespasser responsible for actual damage while bad faith is responsible for nominal damage in the absence of actual damage

Front 27

elements of defamation

Back 27

Defamation requires:

1. false and defamatory statement (not opinion)

2. unprivileged communication to a third party (self-publication not recognized)

3. fault (negligence or greater)

5. injury - damage to reputation (lowers their standing in the community)

Front 28

Define actual malice and when it is required.

Back 28

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

Required when the statement relates to a public official or matter of public concern.

Front 29

When are store owners privileged to detain a person?

Back 29

Up to 60 minutes where they have probable cause of a theft

Front 30

List the elements of a negligence claim

Back 30

1. cause in fact or actual cause

2. duty / risk (duty and scope of duty/risk)

3. breach

4. injury

Front 31

2 tests for cause in fact

Back 31

1. but for test

2. substantial factor

Front 32

questions for duty risk analysis

Back 32

1. define the duty based on reasonable person standard

2. should we extend liability this far? is it too far removed?

a. foreseeable risk and foreseeable plaintiff?

b. ease of association?

c. superceding and intervening cause?

d. policy considerations (pitre factors)

Front 33

other mechanisms to establish duty

Back 33

1. negligence per se

a. look for statutes, ordinance, etc
b. ask class of person, class of risk to determine relevance
c. statute will be mere evidence. no presumption

2. custom

a. sword v. shield
b. safety standards (OSHA)
c. role in prof. negligence - standard of care established by expert witnesses

3. res ispa loquitor

a. event doesnt ordinarily occur in absence of negligence
b. other causes are suff. eliminated
c. negligence w/in scope of D's duty to P
d. allows but doesnt mandate inference of negligence and doesnt apply where direct evidence available

Front 34

What is an intervening and superceding cause?

Back 34

Intervening = event that occurs between the defendant's negligence and the plaintiff's injury

superceding = intervening cause that relieves D of liability

was the intervening cause superceding?

1. foreseeability
2. culpability

ex. acts of god, suicide, criminal acts, hurricane (if not foreseeable)

Front 35

What are the pitre factors?

Back 35

CDMCEH

1. need for compensation
2. need for deterence
3. moral aspects of D's conduct
4. capacity to bear or distribute losses
5. efficient administration of law
6. historical development of precedents

Front 36

Define breach of duty

Back 36

D's actual conduct falls below the objective standard of reasonable conduct as determined by the duty.

created an unreasonable risk of harm


hand formula: burden < possibility of loss X magnitude of the injury

Front 37

Define injury

Back 37

personal injury or injury to property

"lost chance" only available in med mal

Front 38

elements of a slip and fall

Back 38

1. condition presented an unreasonable risk of harm

2. harm was reasonably foreseeable

3. merchant had actual or constructive knowledge of the condition (how long did the hazard exist?)

4. failure to exercise reasonable care

**** merchant = seller of goods at a fixed place and includes the parking lot. does not include provider of services.

***can also bring action against employee who caused injury

Front 39

NIED

Back 39

1. P must either view accident or come before sub. change occurred

2. distress is severe and dibilitating

3. reasonably foreseeable that P will suffer

4. causation

5. class of permissible claimaints: spouses, children, grandparents, grandkids, parents, siblings


***direct victims may also recover

Front 40

informed consent

Back 40

1. requires disclosure of all material risks

2. materiality - would a reasonable person consent to the treatment if the risk was enclosed? would they consider it important?

3. uniform consent law - standard forms that are signed does not shield you from liability but creates a rebuttable presumption of consent

4. prescription - 1 year from date of the incident and 3 year cap on extention via the discovery doctrine

Front 41

Parental Responsibility

Back 41

Parents are responsible for the acts of children residing with them when

1. children must reside w/parents (look to custody)

2. conduct was negligent if engaged in by an adult


***diff from negligent supervision***

Front 42

Owners of Animals

Back 42

held to a negligence standard, unless the animal is a dog. Owners of dogs are strictly liable for damages which:

1. owner could have prevented

2. did not result from provocation of the animal

Front 43

LA limits absolute liability to

Back 43

pile driving and blasting

Front 44

what is the products liability statute

Back 44

The Louisiana Products Liability Act establishes the exclusive remedies against manufacturers of products for personal injury actions.

Front 45

how to make out a prima facie case under the LPLA

Back 45

1. D is a manufacturer

2. damage is proximately caused by an unreasonably dangerous condition of product (but for, sub. factor)

3. must be unreasonably dangerous by:

a. construction/composition
b. defective design
c. inadequate warning
d. breach of express warranty

4. damage results from a reasonably anticipated use

Front 46

Who is a manufacturer?

Back 46

retailers are not manufacturers and negligence applies

unless they hold themselves out as manufacturers or made a component part of the product

Front 47

Unreasonably dangerous in construction or composition

Back 47

1. defect exists when product leaves control of man.

2. material deviation from identical products

3. strict liability (knowledge irrelevant)


ex. exploding coke bottle

Front 48

unreasonably dangerous because of defective design

Back 48

1. defect exists when product leaves control of man OR results from a reasonably anticipated modification

2. alternative deisgn existed that would have prevented P's injury

3. balancing test - utility, risks, extent of reducing harm

4. state of the art defense

Front 49

unreasonably dangerous due to inadequate warning

Back 49

1. defect exists at time product left control of man. OR result from reasonably anticipated modification

2. balancing test - likelihood of danger v. feasibility of warning v. ability to anticipate that user knew of risk

3. defenses - danger was obvious; user knew or SHK; man. could not have known of risk; warning was removed by the seller

4. continuing duty - if man. later learns of risk, could be responsible to warn

Front 50

unreasonably dangerous due to breach of express warranty

Back 50

1. express warranty (spec. statement)

2. claimant was induced based on that statement

3. warranty is false

4. damage

Front 51

elements of vicarious liability

Back 51

1. employment relationship

2. injury occurred within course and scope of employment

3. employee is at fault

Front 52

employee v. independent contractor

Back 52

1. control test

2. borrowed employee (temp agency - does borrowing agency have right to control?)

3. dual employment (both employers can be vic. liable)


***exception to IC doctrine for ultrahazardous activities

Front 53

When is an employer vic. liable for intentional torts?

Back 53

when the conduct is so closely connected in time, place, and causation that it constitutes a risk of harm attributable to the employer's business. (ex. bouncer of a bar)

Front 54

In addition to vicarious liability... always mention...

Back 54

negligent hiring, supervision, or training.

Did employer exercise reasonable care in hiring/training/supervising an employee?

Front 55

Contra non valentum applies in 4 instances

Back 55

1. some legal cause prevents courts from acting (ex. katrina)

2. legal condition preventing creditor from acting

3. debtor took action to prevent creditor from acting

4. discovery doctrine - P did not know or could not have known in exercise of RC of injury

Front 56

Comparative fault

Back 56

The factfinder must allocate a percentage of fault to each responsible party regardless of whether the party is present in the lawsuit, immune, or insolvent. Apply the 6 watson factors:

1. whether conduct resulted from inadvertence or involved an awareness of danger

2. size of risk

3. utility of conduct

4. capacities of the actors

5. extenuating circumstances

6. relationship b/w conduct and harm

ULTIMATELY THE FACTFINDER WILL ALLOCATE RESPONSIBILITY

Front 57

Solidary liability

Back 57

LA has effectively eliminated solidary/joint and several liability with the exception that a vicariously liable employer is liable in solido with its employee.

Front 58

What language do you use where there is a worker's comp issue?

Back 58

The Worker's Compensation Act provides an exclusive remedy for the employee against his or her employer 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 the co-employee will be immune from civil tort lawsuits, except for intentional torts.

Front 59

what is an employment relationship in the context of worker's comp? (not vicarious liability)

Back 59

a. payroll employee

b. borrowing employee

c. statutory employee

Front 60

What are the three major exceptions to worker's comp?

Back 60

1. intentional tort

2. "horse play"

3. personal disputes unrelated to employment

Front 61

Whenever you see an employment relationship, what three tort concepts should come to mind?

Back 61

1. workers comp

2. negligent hiring/training/supervision

3. vicarious liability

Front 62

Difference between "arising out of and in the course and scope of employment" in VL and WC

Back 62

in VL = single theory

in WC = two separate questions:

arise out of focuses on character or origin of risk

course of focuses on time and place

Front 63

elements of sovereign immunity

Back 63

1. waiver of tort liability

2. LA Gov Claims Act - establishes procedure and limits on recovery

3. jury trials prohibited unless gov. agrees

4. $500,000 cap

5. discretionary acts are immune

Front 64

List the four types of damages

Back 64

1. nominal

2. compensatory (special and general)

3. hedonic - lost enjoyment of life

4. punitive (a. drunk driving; b. sexual abuse of a minor; c. child porn d. bad faith ins. settlement)

Front 65

Property damage election

Back 65

A plaintiff who has suffered compensable property damage may elect to recover either: cost of restoration or difference in value unless restoration is disproportionate.

A plaintiff may recover the higher value when personal value or plaintiff will make repairs.

Front 66

collateral source rule

Back 66

damages will not be reduced by funds received from some third party source

ex. insurance

Front 67

diff between wrongful death and survival and list of beneficiaries

Back 67

WD = brought by beneficiaries for their own damage

survival = brought by beneficiaries for the D's injuries suffered


1. surviving spouse and kids

2. parents

3. siblings

4. grandparents

5. succession rep (survival only)

PP = 1 year from death

Front 68

Choice of law

Back 68

apply the law of the state whose policies would be most seriously impaired if its laws were not applied. factors:

1. contacts of each state to parties and events

2. interstate system and uniformity

3. distinct policies, usually deterrence and compensation


Specifically, these articles will always control

1. conduct and safety
2. product liability - injury to a LA domiciliary or manufactured product in LA
3. punititve damages - can be awarded when other state law applies
4. loss distribution

Front 69

Damages for wrongful death may include:

Back 69

funeral expenses;

loss of past support (from date of death to trial);

loss of future support;

loss of consortium and society

Front 70

If you are a drunk driver, can you still recover damages from someone if they contribute to the cause of an accident?

Back 70

A party who is operating a vehicle with a blood alcohol level of .08% and found to be more than 25% at fault is not allowed to recover damages

Front 71

What are the 2 requirements for punitive damages for drunk driving?

Back 71

1. D's conduct must be in reckless disregard for the rights and safety of others

2. intoxication must be the cause of the injury

Front 72

what is the eggshell plaintiff doctrine?

Back 72

once damages are established, the defendant must take the victim "as he finds him" and is responsible for even unforseeable damages. for example, if you knock over a display case onto a elderly woman with a heart condition, the fact that she is fragile will not allow you to escape from liability for her death