Civil Law Torts

Front 1

Negligence

Back 1

is the failure to exercise reasonable care under the circumstances. The five elements include (1) duty; (2) breach; (3) cause-in-fact (4) legal cause (scope of duty); and (5) damages.

Front 2

Is duty a question of law or fact?

Back 2

a question of law. Where do we find the duty? They are decided by judges based on a range of factors such as case law, statutes, economic and social considerations. It is a very subjective and unscientific process – weighing policy goals and trends in the jurisprudence.

Front 3

A woman’s wheelchair was old and her wheel was rusting so she was considering buying a new one. A salesman came to her home and solicited several wheelchairs. She decided not to buy a new one and her wheel failed her and she fell and died shortly after. Her survivors sued the salesman for not stopping her from continuing use of her wheelchair. Duty?

Back 3

If you look at the economic considerations, the salesman would be responsible for every rusty wheelchair that fails when there is no sale of a new one.

Front 4

Case was brought by heirs of a physician. The physician had a problem with drugs and was in the care of a rehab program for doctors. He was subjected to random drug tests from time to time. It took two weeks to distribute the results that he flunked a drug test and that he could lose his license. The doctor commits suicide when hearing the news. His family sues the substance abuse program for waiting 2 weeks to give the results and that they should have known he was at risk of a relapse. They also allege that they should have given him counseling after his reaction. Was there a legal duty? Did defendants based on facts have a duty to not expose the doctor to news that could cause an adverse reaction?

Back 4

Suicide is generally not a foreseeable harm, but in certain circumstances it may be. Here, there was a lack of a particular relationship that would give rise to a duty.

Front 5

A man loses control of his car and knocks down a power wire. A policeman shows up and tells two men to stop touching the wire and proceeds to check out the accident. With his back turned the two men continue to touch the wire which electrocutes them and one of them dies. The decedent’s survivors sue the city of Kenner as a principal of the police. Duty?

Back 5

The determination of whether a particular duty should be imposed upon a particular governmental agency is a policy question. The scope of an officer’s duty here is to choose a course of action which is reasonable under the circumstances. When he became aware of a dangerous traffic situation, he had an affirmative duty to investigate the accident and ensure motorists were not subjected to additional risks of harm. After instructing the men to stop handling the wire, his priority was to the accident victims. Considering the totality of the circumstances, he was reasonably discharging his duty when the men were electrocuted. The officer is not required to make the best or even the better decision. The standard is whether the police officer’s actions were reasonable, not whether he complied with departmental policies.

Front 6

Standard of Care of Children

Back 6

a child is not held to the same standard of care as that of an adult, rather the test is whether the child, considering his age, background, and inherent intelligence, indulged in gross disregard of his own safety in face of known, understood and perceived danger.

Front 7

Standard of Care of the Insane

Back 7

The majority rule is one that who is insane must behave as a reasonable person.

Front 8

Standard of Care in an Emergency

Back 8

Negligence requires fault on the part of the defendant. We want to compensate people who were injured by no fault of their own. However, it is not fair to make a defendant pay when the accident was beyond their control. When a defendant presents an emergency defense, the burden of proof is shifted to them to prove by clear and convincing evidence that they lost consciousness or that there was a latent defect, etc.

Front 9

A blind concession stand worker was walking to the bathroom without his cane and bumped into an old man causing him to fall and injure himself. The old man sues alleging that the blind man should have been using his cane. Duty?

Back 9

The universal duty is to exercise a standard of reasonable care not to hurt others. Here we have a blind man, so the standard is what the reasonable person would do in light of knowledge of his infirmity. It is sometimes said that a blind man must use a greater degree of care than one who can see, but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind. There is evidence that it is not unreasonable for blind people to walk without their cane in familiar places. Defendant had mobility training and used adequate techniques.

Front 10

NEGLIGENCE PER SE

Back 10

Generally, we do not have negligence per se in Louisiana because we acknowledge the possibility that the violation of a statute does not necessarily create liability. However, as a practical matter, one will have a hard time arguing that a statute should just be disregarded because statutes often establish a duty.
A court will adopt a statute as the standard of care of the reasonable person under the circumstances when (1) the plaintiff is within the class of persons the statute was enacted to protect and (2) the risk was within the class of risks the statute was enacted to guard against.

Front 11

Res Ipsa

Back 11

There are cases in which the plaintiff cannot prove “what happened” but he can prove circumstances from which reasonable minds could conclude that the defendant acted unreasonably or that the “thing” presented an unreasonable risk of harm. This common sense evaluation of the strength of circumstantial evidence is sometimes called res ipsa.

Front 12

A fire originated in a kitchen of a restaurant and because of the smoke, a man in a nearby apartment suffocated to death. Can we apply res ipsa loquitor? Do the facts of the controversy suggest negligence of the defendant rather than some other factors, as the most plausible explanation of the accident?

Back 12

For res ipsa to apply there must only be circumstantial evidence and this evidence must negate other plausible explanations. The facts must indicate negligence to be the more probable cause of the injury in the absence of other as-plausible explanations by witnesses found credible. For example, had the decedent had cigarettes or candles burning, the res ipsa may be rebutted.

Front 13

Defendant dug a trench to install a gas line. Plaintiff fell into a sinkhole in her driveway and alleges res ipsa loquitor. Here there was direct evidence from the employees and testimony and photos from the plaintiff.

Back 13

Res Ipsa does NOT apply if there is sufficient direct evidence explaining the occurrence and establishing the details of the negligence charged In cases involving only circumstantial evidence, res ipsa loquitor may be applicable if the trial judge sequentially determines that the three criteria for its use are satisfied: (1) the injury is of the kind which does not ordinarily occur in the absence of negligence on someone else’s part; (2) the evidence sufficiently eliminates other more probable causes of the injury such as the conduct of the plaintiff or of a third person; and (3) the alleged negligence of the defendant must be within the scope of the defendant’s duty to the plaintiff. A plausible explanation of what happened from looking at the photos is that she simply tripped, thus the first prong of the test fails.

Front 14

Res Ipsa with multiple defendants

Back 14

LA courts do not refuse to apply the doctrine of res ispa simply because there is more than one defendant; rather, courts refuse to apply the doctrine where a possible tortfeasor is not joined.

Front 15

CAUSE IN FACT

Back 15

It is more probable than not that but for the breach of duty by the defendant the harm would not have occurred. Was the defendant’s conduct an essential factor in the cause of the harm?

Front 16

The speed limit of trains is 25mph, but the defendant was going 37mph. There was a warehouse obstructing the view of the intersection and when defendant saw plaintiff’s car approaching, they slammed on brakes but still hit the car. The issue is whether the train could have stopped in time going 25 mph. Cause in fact?

Back 16

The court concludes that even going 25mph the momentum of the train would have under the circumstances carried it well beyond the crossing. The burden of proving this causal link is upon the plaintiff. Recognizing that the fact of causation is not susceptible of proof to a mathematical certainty, the law requires only that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant. The record contains no probative facts from which the Court can draw a reasonable inference of causation.

Front 17

Victim violated a statute that requires wearing hunter orange while hunting. He was shot and the defendant argues that he would not have shot if he saw the hunter orange. Victim testified that he could clearly see the defendant through the scope of his rifle. Judge issued a directed verdict to defendant.

Back 17

A jury could infer that defendant could also see the victim had he used his scope. Victim had a duty to wear hunter orange and breached it, but it was not necessarily the cause in fact of his injury because he may have been shot regardless of whether he was wearing hunter orange. Hunters who violate such a statute do not for that reason alone deserve to be shot. Whether the plaintiff’s conduct contributed to his injury is a factual issue that should have been presented to the jury.

Front 18

This is a legal malpractice case against an attorney for allegedly allowing prescription to run before filing plaintiff’s claims for damages for injuries arising out of a truck-train collision. Plaintiff contends that once the client has established negligence on the part of the attorney, the burden should be placed on the negligent attorney to prove that the mishandled claim or litigation would have been unsuccessful.

Back 18

Causation is an essential element of any tort claim. However, once the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney’s negligence caused him some loss since it is unlikely that an attorney would agree to handle a claim completely devoid of merit. In such a situation, an attorney must go forward with evidence to overcome the client’s prima facie case by proving the client could not have succeeded on the original claim, and the causation and damage questions are left to the jury to decide.

Front 19

Plaintiff went to hospital to have his foot examined. During the X-ray, a staff radiologist reported a mass in his right trachea but failed to inform plaintiff of this discovery. Fifteen months later he returned complaining of chest pains and was told he had non-operable cancer in both lungs. He sues for loss of chance of survival.

Back 19

The issues in a loss of chance of survival case is whether the tort victim lost any chance of survival because of the defendant’s negligence and the value of that loss. A tort-caused loss in any degree is compensable in damages. The plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the negligence and that the tortfeasor’s action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance. Here, the court adopts the method of letting the calculation of damage go to the jury in a lump sum verdict.

There is a duty to give patients timely medical information, but the reasonable time frame depends upon urgent vs. routine medical evaluations. For example, if an x-ray is given because a doctor suspects pneumonia, he has a duty to give the results shortly thereafter. However, if the x-ray is given as a part of an annual check up as a routine procedure, the failure to administer the results right away would less likely be a breach.

Front 20

LEGAL CAUSE

Back 20

In common law, forseeability is the question for proximate cause, but is only one factor in civil law. The analysis here is whether there is an ease of association between defendant’s conduct and resulting harm.

Front 21

Employee of defendant was driving defendant’s truck which broke down so he brought the vehicle to a stop in the right lane of traffic without flashing his emergency lights or taking any other action to protect approaching traffic. Plaintiff noticed the truck about 80 feet away and immediately started to pull into the left lane to pass but was prevented from doing so by another passing car. Plaintiff applied his brakes but was unable to avoid collision with the stationary truck. Was the driver of the truck guilty of negligence, and if so, was that negligence the legal cause of the collision?

Back 21

Under the circumstances of this case, the negligent conduct of defendant was undoubtedly a substantial factor in bringing about the collision since the collision would not have occurred without it – the cause in fact. The essence of the legal cause inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the statute that requires drivers of disabled vehicles to display a red signal flag 100 feet behind the vehicle. It involves determination of whether this statutory duty and responsibility for protecting traffic were designed to afford protection to the class of claimants of which plaintiff is a member from the hazard of confused or inattentive drivers colliding with stationary vehicles on the highway. The doctrine of intervening cause is a separate event that occurs that breaks the chain of cause in fact. The inquiry of the court is whether the risk produced by the combination of defendant’s act and the intervening cause is one which is within the scope of the protection of the rule of law upon which plaintiff relies. Here, if either or both drivers would have seen such signal, the accident would have been averted.

Front 22

Defendant was doing work on plaintiff’s house and left his ladder leaning against the house in its upright position. The owner of the house later removed it and laid it flat in the backyard. Subsequently, a babysitter was hanging clothes on a clothesline, saw the toddler approaching and ran towards him to keep him from tripping on the ladder. In doing so, she tripped and was injured. Is defendant’s conduct the legal cause of her injury?

Back 22

The basic question is whether the risk of the injury from a ladder lying on the ground, produced by a combination of defendant’s act and that of a third party, is within the scope of protection of a rule of law which would prohibit leaving a ladder leaning against a house. Foreseeability is not always a reliable guide, and certainly it is not the only criteria for determining whether there is a duty-risk relationship. Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of the duty owed because of that conduct. Neither are all risks excluded from the scope of duty simply because they are unforeseeable. The ease of association of the injury with the rule relied upon, however, is always a proper inquiry. Here, the defendant could not have reasonably anticipated that someone would move the later in a position to create this risk or that such a possibility was an unreasonable risk of harm. Thus, a rule of law that would prohibit leaving a ladder leaning against a house does not encompass the risk here encountered.

Front 23

This is a medical malpractice case in which a doctor engages in a medical procedure to sterilize a woman so that she would not have any more children. He made a mistake and she gave birth shortly thereafter to an albino child which is considered a birth defect. The question on review is whether the defendant owed a duty to the parents and to the child that did not exist yet. Can you breach a duty to a person who does not yet exist? Is there legal cause between a negligent operation and the birth of a child? What about a child with a birth defect?

Back 23

The court finds that a defendant may owe a duty to a person that does not yet exist under particular facts. For example, if baby food is manufactured before a baby is born, there is still a duty to that future baby to refrain from harming it.
Is there legal cause between a negligent operation and the birth of a child? The court awards damages for emotional distress and costs in becoming pregnant and having a child, but does not provide for child rearing costs. A child is considered a blessing and plaintiff should not be awarded compensation for the offset in distributing funds among children. This is a policy decision that takes into account the fact that this is negligence and not intentional and that children should not be thought of as an unwanted damage. There is a clear tendency to give greater causal effect to an intentional fault than to a merely negligent fault and to a negligent fault than to an act or circumstance where the element of fault is altogether absent. Another tendency is that of distinguishing between the consequences of a harmful act that are immediate in time and the more remote consequences of the same act.

When a physician knows or should know of the existence of an unreasonable risk that a child will be born with a birth defect, he owes a duty to the unconceived child as well as to its parents to exercise reasonable care in warning the potential parents and in assisting them to avoid the conception of the deformed child. Here, the physician did not have a duty to the unconceived child to protect her from the risk of albinism. This disorder cannot be easily predicted or forseen and the plaintiff’s petition does not contain any allegation that the physician knew or should have known of the risk of this abnormality.

Front 24

A man was walking home drunk on a dark road and fell off of the side of a bridge and died. The parents file a lawsuit alleging the bridge was hazardous to pedestrians because the railing was not high enough. Although there were no sidewalks or separate railings for pedestrian traffic, it was well known that many pedestrians had used the bridge to cross the river to the community on the other side. Legal cause?

Back 24

It is not enough to allege that the deceased “might not” have fallen if the railing was taller. The burden of proof requires that it is more likely than not. Defendants argue that it is not forseeable that a man would be drunk and wear dark clothes and be frightened and stagger towards the edge. The court finds that despite that the precise manner of harm may not have been predictable, there is an ease of association between having a low railing and falling off. The more details that you put into your question of legal cause, the more random it sounds. However, that will not always make it unforeseeable.

Front 25

Six year old, Penny Wyatt, went to a gas station with a plastic container and was sold a small quantity of gasoline. She took the gasoline back to her house and played with it in her yard with her half-sister, Candy. Candy had previously found a match, struck it, and threw it into the gasoline. Consequently, she was severely burned. Should the defendant respond in damages for the injury suffered by a 4 year old child when she ignited gasoline obtained from defendant by her half-sister?

Back 25

It is a breach of duty to permit another person to use a thing or engage in an activity which originally was controlled by the actor if the actor knows, or should know, that the third person is likely to use the thing or to engage in conduct with it in such a manner as to create an unreasonable risk of harm to others. Dissent argues that there is no liability because there was no negligence to the injured plaintiff. However, particularly included within the risk of harm to others is the fact that, with the expectation of child group play, an easily associated risk is that some other incompetent would misbehave or misuse the gasoline. Gasoline is dangerous even when handled by knowledgeable people and it often causes harm because the special care required with its use is not taken.

Front 26

Controlling Third Parties

Back 26

Generally, courts do not impose a duty upon a person to control the conduct of a third person actor to prevent tortious conduct by that actor unless the person has a special relationship with either the actor or the actor’s potential victim.

Front 27

The Employment Relationship

Back 27

The employee, as well as the employer, can be liable to fellow employees as well as third persons. The employer also has a duty to protect an employee from a dangerous condition or person on his premises. A principal may owe a duty to provide the employees of a contractor with a safe place to work where the harm is extrinsic from job related risks, but does not owe a duty to protect from risks inherent to the job.

Front 28

Duty to Rescuers

Back 28

an injury sustained by an amateur rescuer is usually within the scope of the risks of the negligent defendant’s conduct – it is a policy decision. Courts must determine whether there is an ease of association between the negligent conduct and the additional risk that an invitee will be injured in attempting to preserve the lives and property endangered by that conduct.

Front 29

Police officer injured herself when she attempted to knee-strike a drunk suspect that swayed or staggered during her attempt. She sues the suspect for her injury.

Back 29

A professional rescuer, such as a fireman or policeman, who is injured in the performance of his duties “assumes the risk” of such an injury and is not entitled to damages, but they do not assume the risk of all injury without recourse against others. A professional rescuer may recover for an injury caused by a risk that is independent of the emergency or problem he has assumed the risk to remedy. The assumption rationale bars recovery from most dependent risks except when (1) the dependent risks encountered by the professional rescuer are so extraordinary that it cannot be said that the parties intended the rescuers to assume them or (2) the conduct of the defendant may be so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence.
The risk of being injured while carrying out an arrest is a dependent risk arising out of a specific problem which the police officer was hired to remedy. Although defendant was not fully cooperative, he was not resisting arrest. This act cannot be said to be an extraordinary risk or that his conduct was extremely blameworthy.

Front 30

Duty to rescue

Back 30

see restatements pp233-234 (Duty to act when prior conduct is found to be dangerous; duty to aid another harmed by actor’s conduct; negligent performance of undertaking to render services; duty of one who takes charge of another who is helpless)

Front 31

§ 9:2800.6. Burden of proof in claims against merchants (slip and fall cases)

Back 31

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

C. Definitions:

(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.

D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

Front 32

Plaintiff filed suit against the defendant alleging that he slipped and fell in a puddle of water that was leaking from a container used by defendant to cool beer. He testified that when he fell his pants were damp and there was water on his boots and that he could not have seen the liquid because it was too dark. He argues 9:2800.6 applies and that he met his burden of proof. Defendant argues that employees were stationed in the room to constantly walk the floors, there were no reports of spills or puddles, and the beer tubs were elevated 15 inches above the ground with carpet placed underneath.

Back 32

Because plaintiff never testified that he slipped in a puddle or that there was water on the floor, the court found plaintiff did not meet his burden of proving that the selling of beer from tubs created an unreasonable risk of harm to him, that the risk of harm was reasonably foreseeable, and that the defendant had constructive notice of this condition.
R.S. 9:2800.6 replaced strict liability which was very burdensome on stores. Now a plaintiff must show that the merchant created the danger and had actual/constructive knowledge of such danger.

Front 33

Grossly Negligent Actors

Back 33

An actor’s conduct may be so grossly negligent that it is not “foreseeable” to a negligent actor whose fault coalesces with the grossly negligent conduct to cause harm. In such a case, a LA court may hold that the grossly negligent conduct with not within the scope of risks created by the negligent actor. See examples on pp237-38.

Front 34

§ 9:2800.1. Limitation of liability for loss connected with sale, serving, or furnishing of alcoholic beverages

Back 34

A. The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.

B. Notwithstanding any other law to the contrary, no person holding a permit under either Chapter 1 or Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950, nor any agent, servant, or employee of such a person, who sells or serves intoxicating beverages of either high or low alcoholic content to a person over the age for the lawful purchase thereof, shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.

C. (1) Notwithstanding any other law to the contrary, no social host who serves or furnishes any intoxicating beverage of either high or low alcoholic content to a person over the age for the lawful purchase thereof shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were served or furnished.

(2) No social host who owns, leases, or otherwise lawfully occupies premises on which, in his absence and without his consent, intoxicating beverages of either high or low alcoholic content are consumed by a person over the age for the lawful purchase thereof shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person who consumed the intoxicating beverages.

D. The insurer of the intoxicated person shall be primarily liable with respect to injuries suffered by third persons.

E. The limitation of liability provided by this Section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

Front 35

Berg approached the intersection of Audobon and Zimple. Zummo hit berg with his truck causing him serious bodily injury. Berg sues the Boot alleging that they were negligent in serving Zummo alcohol and that this was the proximate cause of his injuries.

Back 35

LA R.S. 9:2800.1 places the responsibility for the consequences of intoxication on the intoxicated person by providing that it is the consumption of alcohol, rather than the sale, service, or furnishing of alcohol, that is the proximate cause of any injury inflicted by an intoxicated person. When reading section A and B together, this statute provides immunity to vendors of alcoholic beverages who sell or serve alcohol to persons over the age for the lawful purchase of alcohol. When a bar serves alcohol to a minor and that minor causes damages to another because of his intoxication, this statute does not immunize the bar from liability, nor is it absolute liability. Instead, the court must determine whether the bar violated the general negligence principles, applying the duty/risk analysis.
Here, the Boot breached its duty in not checking Zummo’s ID when entering the bar or when purchasing a pitcher of beer. Next, the court found that the jury was not erroneous in finding that the alcohol that he consumed was a cause in fact of his conduct. Next, the court found that the risk that a minor who is served alcohol might become intoxicated and get into a fight and injure someone with his car is clearly within the scope of the duty of The Boot not to serve alcohol to a minor. Thus the court finds The Boot liable under this analysis, and it is not necessary that the vendor commit an additional “affirmative act” such as ejecting the minor from the premises that increases the peril of the intoxicated patron in order for liability to be imposed.
Compensatory damages are awarded. However, under the punitive damages statute, such damages cannot be assessed against a vendor of alcoholic beverages for selling to an intoxicated person whose intoxication while driving a vehicle causes injury.

Front 36

unborn children

Back 36

– An unborn child’s right to sue the mother for negligence is suspended or delayed, but not extinguished. An employer is not vicariously liable to the unborn child for the mother’s negligence while on the job because the pregnancy discrimination act requires the employer to allow the mother to work.

Front 37

mental anguish

Back 37

When a plaintiff is able to show physical injury, courts typically allow the injured party to recover mental anguish associated with the injury. There are limited circumstances where mental anguish may, in the absence of physical injury, satisfy the requirements of the tort of negligence. Courts distinguish mental anguish cases where the negligent conduct is directed at the plaintiff from cases where the conduct is directed at a third party.
Art. 2315.6. Liability for damages caused by injury to another

A. The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person's injury:

(1) The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.

(2) The father and mother of the injured person, or either of them.

(3) The brothers and sisters of the injured person or any of them.

(4) The grandfather and grandmother of the injured person, or either of them.

B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant's position to suffer serious mental anguish or emotional distress from the experience, and the claimant's mental anguish or emotional distress must be severe, debilitating, and foreseeable.

Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article.

Front 38

Plaintiff is the mother of the deceased. She learned that he was involved in an accident and arrived at the hospital to find him in pain. The doctor read the wrong chart and discharged him from the hospital two and a half hours later stating that he just needed bed rest and will recover. Instead he died in the presence of his parents 7 hours later of internal bleeding, signs of which were on his actual chart. Mom sues for mental anguish, alleging the injury-causing event was the doctor’s negligent discharge.

Back 38

Bystander damages are intended to provide a remedy when severe mental distress arises directly and immediately from the claimant’s observing a traumatic injury-causing event to the direct victim. In order to recover, the claimant who observes the injury causing event (or soon thereafter comes upon the scene of the injury) must be contemporaneously aware that the event has caused harm to the direct victim. The requirement of temporal proximity has always been at the root of allowing recovery for emotional distress caused by an injury to another, whether recovery is limited to one who actually witnessed a traumatic injury or whether recovery is extended to one coming soon upon the traumatic injury, as under the LA rule. Recovery of damages for mental anguish has almost never been extended to one who observed the victim’s suffering at a place other than where the injury-causing event occurred or at a time not closely connected to the event.
In the present case, the injury causing event was the automobile accident, but even accepting the view of the court of appeals that the injury causing event was the doctor’s negligent discharge, that event was not a traumatic event likely to cause severe contemporaneous mental anguish to the observer, even though the ultimate consequences were indeed tragic. There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence.

Front 39

misrepresentation

Back 39

Intentional misrepresentation constitutes fraud, and is actionable, whether it causes personal injury or only economic harm. Negligent misrepresentation which causes personal injury is also compensable, if personal injury is foreseeable. Where negligent misrepresentation causes only economic harm, courts are hesitant to allow recovery. The floodgates and overdeterrence arguments are the most obvious policy reasons. Nevertheless, the desire to compensate victims of undesirable conduct has led courts to permit some recovery.

Front 40

Plaintiffs purchased a house and relied on a report from the defendants which incorrectly stated that there were no termites. Defendants contracted with the seller of the house and has no contractual relationship with plaintiffs. Why does V.P. Exterminators owe a duty to the Barrie family?

Back 40

Pertinent to this case is the classification of negligent misrepresentation, specifically, representations made in the course of rendering service pursuant to a contract, when made with an honest belief in its truth, but because of lack of reasonable care, or absence of skill or competence in ascertaining the facts or making the opinion, and/or in the manner of communicating the facts or opinion, the representation causes economic loss to be suffered by a third party, but an intended user of the information, who relies on the information to their detriment. Louisiana is a jurisdiction which allows recovery in tort for purely economic loss caused by negligent misrepresentation where privity of contract is absent. Articles 2315 and 2316 are sufficiently broad to encompass a cause of action for negligent misrepresentation.
Here, the narrow group protected is purchasers of the home – the defendants need not know them. Where a service is rendered gratuitously, there may not be liability – it must be within someone’s trade, practice, or involve transfer of money. Part of causation here is that there must be a reasonable reliance. If it is something that a reasonable person would not accept, for example, if someone approached you and offered to sell the Tulane law school building, you would not reasonably rely on that. This is not strict liability – the duty is not to give 100% accurate information but a duty to use reasonable care in giving accurate information. Here, defendant did not use reasonable care in making a report that he knew potential buyers would rely on, and his services were not gratuitous.

Front 41

Drug addicted doctor gets fired and is hired elsewhere. His former partners wrote letters of recommendation that he was an “excellent clinician.” The hospital sent a letter saying that due to a large volume of inquiries, they could only confirm the dates in which he was employed. However, they answered every other inquiry that was sent to them. Doctor negligently kills a patient while operating on drugs. Patient sues former partners and for the recommendation letter and former hospital for lying about the number of inquiries and failing to disclose he was fired.

Back 41

The elements of a claim for intentional misrepresentation in LA are: (1) a misrepresentation of a material fact; (2) made with the intent to deceive; and (3) causing justifiable reliance with resultant injury. To establish a claim for intentional misrepresentation when it is by silence or inaction, plaintiffs also have to show that the defendant owed a duty to the plaintiff to disclose the information.
To make out a negligent misrepresentation claim in LA: (1) there must be a legal duty on the part of the defendant to supply correct information; (2) there must be a breach of duty, which can occur by omission as well as by affirmative misrepresentation; and (3) the breach must have caused damages to the plaintiff based on the plaintiff’s reasonable reliance on the misrepresentation.
In LA, although a party may keep absolute silence and violate no rule of law or equity, if he volunteers to speak and to convey information which may influence the conduct of the other party, he is bound to disclose the whole truth. The partners created a misapprehension about Dr. Berry due to their own statements, and they incurred a duty to disclose information about his drug abuse and firing.
Although the hospital lied about having a large volume of inquiries, they have no duty to come out and volunteer information about him. However, we have an issue of whether their letter was misleading. The letter does not comment on the doctor’s proficiency or recommend him. The plaintiffs argue that they lied about the number of inquiries. The court says that this lie did not mislead them or have a causal link to the belief that he was a good doctor.
Had the partners suspected the drug abuse and gone to an abuse expert and the expert denied any suspicion of drug use, the partners will not necessarily be off the hook if there were tell tale signs of drug abuse. It would not be an intervening cause – there would be comparative fault.
Tort & indemnity contribution – Louisiana does not allow contribution or indemnity claims, but this suit is not asking for contribution or indemnity; it alleges a breach of duty owed to Kadlec.

Front 42

Defendant hired plaintiff to supply uniforms for the World’s fair. Plaintiff sues because defendant was unable to collect what it contends was the full amount owed under the contract because defendant went bankrupt. Defendant did not appoint an employee to be exclusively in charge of coordinating the design and supply of the uniforms until Feb 7, 1984. The uniform contract was not signed until May 8, 1984. Plaintiff wants to bring action for tortious interference with a contractual relationship because defendant allegedly caused delay and difficulty in the performance of the contract. LA has refused to recognize such an action since 1902.

Back 42

There are strong reasons that corporate officers should enjoy immunity from liability for negligent contractual interference as well as from liability for intentional interference committed within the scope of corporate authority for the corporation’s benefit. The officer’s privilege should not be absolute, but limited by the purpose for which it is granted, i.e., to allow him to fully perform his fiduciary duty as authorized by his corporation. When the officer’s action is detrimental to the corporation or outside the scope of his authority, the officer should be responsible for his intentional acts of interference with the contract rights of another.
For purposes of analysis, the action against a corporate officer for intentional and unjustified interference with contractual relations requires: (1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) the officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4) absence of justification on the part of the officer; (5) causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.
The evidence reflects that defendant’s delay in appointing a uniform coordinator was not unusual or inconsistent with the procedure followed in administering the contracts of other suppliers. Usually a contract was signed before it was assigned to a specific employee for administration. It might be argued that he could have appointed him sooner, but the evidence in this case does not show his acts or omissions were committed with the intention to interfere with the performance of the contract or that he acted outside the scope of his authority or acted contrary to the best interests of the corporation.
It will be tough to show intentional interference for a self interested reason. Why must the corporate officer be involved with the tort and not the manager? Because the corporate officer owes a fiduciary duty, and others do not owe this duty.

Front 43

ARR hired Troy Keith as a general manager. While working on a project for ARR, Troy began planning a new business with a friend. They formed a company that operated in direct competition with ARR. Keith testified that he recalled being given a non-competition agreement, but he refused to sign it. ARR sued to determine the validity of the non-competition agreement.

Back 43

LA disfavors non-competition agreements as expressed in LA R.S. 23:921(A)(1): “Every contract or agreement or provision thereof by which anyone is restrained from exercising a lawful profession, trade, or business of any kind shall be null and void.” The desire to prevent an individual from contractually depriving himself of the ability to earn a living and consequently becoming a public burden is the basis for LA’s strong public policy restricting noncompetition agreements. They must be strictly construed against the party seeking enforcement. An exception to this statute is that employers may contract for non-competition in specific parishes or municipalities, as long as the employer carries on a like business therein, and the agreement lasts for only 2 years upon termination of employment.
Here, the absence of the required geographic limitation is fatal to the non-competition agreement and renders it invalid. It is also unenforceable for the simple fact that Troy did not sign it. Whatever knowledge Troy had or did not have about the specific parishes where ARR operated is immaterial in determining whether the unsigned agreement may be enforced against him. ARR also failed to show that Troy had a fiduciary duty to disclose the fact that he did not sign the agreement because this was easily discoverable.
ARR further alleges claims of fraud and intentional misconduct, unfair trade practices. Determining what constitutes unfair competition requires the employee’s right to individual freedom to be balanced against the employer’s right to honest and fair competition and to the protection of its business assets and property in the nature of trade secrets. A former employee’s use in a competing business of the experience and skills acquired in the former employment is not fraud or an unfair trade practice. Although ARR asserted that Troy stole and used its client list to solicit its business, ARR failed to prove this or that the list is a protected trade secret because the names of the hospitals and doctors were readily available in the phone book.

Front 44

Plaintiff alleges that defendants breached their respective employment agreements with CRC and that they violated the non-competition clause of their employment agreements. They also allege that defendants committed acts which caused usurpation of corporate opportunity and misappropriated proprietary information and trade secrets. Finally, they allege defendants violated the Louisiana Unfair Trade Practices Act.

Back 44

Actions taken before termination of employment to prepare for a competing business do not necessarily constitute a breach of fiduciary duty or unfair trade practice. Conduct is considered unlawful when it involves fraud, misrepresentation, deception, breach of fiduciary duty, or other unethical conduct. A defendant’s motivation is the critical factor; the actions must have been taken with the specific purpose of harming the competition. To have a claim under the UPTA there must be more than a simple breach of conduct – most courts require intentional egregious conduct. Preemption commences to run upon the commission of the act by the defendant and not the plaintiff’s knowledge of the act. Employees wanted to start a competing business. Conspiracy is an agreement by two or more persons to commit an unlawful or tortious act – is there an action for conspiracy in LA law? There is no independent claim for conspiracy in LA. However, it is a device to impose solidarily liability on two people for a tortious act to another or for statutory violations. Conspiracy requires proof of an agreement to commit a tort and not to breach a contract – there is no liability in LA for conspiracy to breach a contract. In this case, the violation was more like a breach of contract and they could not be held liable. The non-solicitation clause must specify parishes and cannot cover more than 2 years. The owner of trade secrets has a legal duty reasonable under the circumstances to maintain the secrecy of the information – a fact inquiry. If you want to start a company, you don’t have to quit on day 1 and then think about what you want to do on day 2. You can make basic preparations to compete even while you are employed. You can solicit contacts you have made throughout your career, but you cannot use a customer list if the employer made substantial efforts in compiling and building the list.

Front 45

Plaintiff developed and designed a more efficient marine pile driving barge. Defendant agreed to fabricate and sell the barges for him. He did not file a patent application until 2007. In 2005 he learned that defendant was manufacturing and selling his barges for himself.

Back 45

Reasonable efforts to maintain secrecy have been held to include advising employees of the existence of a trade secret, limiting access to a trade secret on a “need to know” basis, and controlling plant access. On the other hand, public disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection. The efforts required to maintain secrecy are those reasonable under the circumstances.
Here, plaintiff failed to take reasonable efforts to maintain secrecy. The barge was marketed at trade shows and pictured on websites and pamphlets. Even after plaintiff became aware of the duplication of the idea, he allowed continued production by the alleged offender.

Front 46

Benoit was commissioned as a deputy and given 1 day of firearm training. He was instructed not to use the gun during recreational activities such as consumption of alcohol. Defendant got drunk, played with his gun, and accidently injured plaintiff. Plaintiff sues the state for negligent hiring and training.

Back 46

Under the common law, negligent hiring is a tort. It differs from respondeat superior in that it does not have the “scope of employment” limitation, but instead depends on whether an employee in some respect be engaged in furthering the employer’s business when he stepped beyond the line of duty.
Under civil law we use the normal duty-risk analysis for negligence law. There is a very generous formulation of cause in fact – did the defendant’s action have something to do with the injury? Yes.
The most critical issue is whether the injury plaintiff sustained was within the contemplation of the duty to exercise reasonable care in hiring and training employees. The court finds that the ease of association between the negligent hiring and inadequate training and the risk of injury to plaintiff under the circumstances that occurred was attenuated. Benoit was not required to carry his gun off duty and was actually prohibited from carrying it while intoxicated. The court does not believe the Sheriff would forsee that one of his officers would violate not only the regulation, but also elementary standards of conduct relative to the use of firearms which are within the common knowledge of everyone.
On rehearing, the court is uncomfortable about the way they described the duty originally and finds it to be much narrower. They feel that they were too generous and that the duty is to avoid promoting a cook to deputy in order to monkey with the pay scales. The duty has nothing to do with safety but to do with financial violations against the public’s taxes. By changing the duty they completely change the scope of protection. By deputizing a cook, not properly training him, and encouraging him to carry a weapon is there an ease of association with the risk of injuring someone? Is it the purpose of the rule to protect those who are near someone engaged in horse play outside of work while intoxicated? (notice the more specific and narrow the inquiry, the less ease of association).

Front 47

Christina, 19 years old and uninsured, drove her mother’s car at her mother’s request to perform an errand. She got into an accident with plaintiff who sued her mother for negligent entrustment. The first claim is that she was negligent in letting an uninsured driver use the car, and the second is that the mother is vicariously liable for her daughter’s acts because she was performing an errand for her.

Back 47

Under the first claim, the court does not find this a basis for liability – there was no risk in allowing the daughter to drive because she was not incompetent in any way. There has to be either actual or constructive knowledge that the person entrusted with the vehicle is not competent to use it or that the person is known to be a risk or threat to other persons – for example, intoxicated or too young. The court does not find a duty to entrust a car to those only with insurance, unless she was excluded from the insurance because she had been in too many accidents or had a DWI. Otherwise, there is no connection between her insurance coverage and the safety of her driving.
Under the second claim, typically when there is a mandatary/principal relationship, there is no imputed negligence. The imputation of liability to a principal for the tortious acts of a mandatary requires a relationship between the parties that is more than mandatary/principal. This differs from respondeat superior between employees/employers where the employer has the right to control the employee’s activities. Public policy provides that parents should not be liable for the torts of their children of majority age. Employers on the other hand have the capability of distributing the loss caused by employees that commit torts.

Front 48

Subsequent injury

Back 48

Prior to 1996, the original tortfeasor was liable for the entire chain of events that resulted from their negligence. Now each person is only responsible for his or her share of the fault and not a second accident that aggravated the injury, nor a subsequent injury that arose out of the first.

Front 49

Boy bought a bike helmet from sears and he was injured, claiming the helmet did not fit properly. The issue is whether this retail seller has a duty to instruct buyers on the proper method of wearing and fitting bicycle helmets.

Back 49

The court finds that as a matter of policy they find no duty exists for a department store to properly fit a bicycle helmet on the buyer. A mass marketing retailer should not be required to provide point of sale personalized advice to a particular product. The result of such requirement would be higher prices because sears would have to get insurance. The plaintiff’s rely on the testimony of an “expert” who gave his opinion about what retailers should do, but did not point to any industry standard or regulation. Courts have held that experts may not rely on their own conclusions as authority in the
absence of any objective support. The boy’s mother in this case said, “this was the best fitting helmet Johnny ever had.” The defense could then argue there was no causation element.

Front 50

Art. 2323. Comparative fault

Back 50

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

Front 51

Art. 2324. Liability as solidary or joint and divisible obligation

Back 51

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

Front 52

Plaintiff was riding a bicycle and hit a pothole. He is injured and sues the state. The state makes the defense that his death was in part due to medical negligence, and that he should not be liable in full for the death.

Back 52

Plaintiff argues solidary liabililty. State points out that articles 2323 and 2324 have been amended to replace solidary liability with joint and divisible liability regardless of whether a negligent party is part of the case and regardless of whether there are multiple theories of liability. 2324(A) is an exception to 2323. 2324(C) means that if you sue one in a timely matter, you have interrupted prescription as to all joint tortfeasors – as long as the one you sue is determined to be a joint tortfeasor. A settling party is no different from an absent party – percentage of fault will still be distributed accordingly. The comparative fault article 2323 makes no exceptions for liability based on medical malpractice.
Prior to the enactment of these amendments, the policy behind LA’s tort law was ensuring innocent victims receive full compensation for their injuries. Now, LA’s policy is that each tortfeasor pay only for that portion of the damage he has caused and the tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of that other person.

Front 53

12 year old boy shot Mr. Watson while hunting. The defendants allege Mr. Watson was 100% at fault for not wearing orange and not calling out while walking through an area that he knew the boy was hunting in. The jury in the trial court agreed even though the boy had little experience using the scope of the gun and was unsupervised by his father.

Back 53

The concept of comparative negligence, written into art. 2323, permits a plaintiff as Mr. Watson, to recover damages notwithstanding his own negligence. Clearly the concept of comparative negligence is not applicable when the victim alone is the party at fault.
The Supreme Court finds that the decedent could not be 100% at fault because there had to be some negligence involved with the shooter and the shooter’s father for failure to supervise. They reapportioned the fault.
In determining the percentage of fault, the trier of fact must consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.
In doing this assessment the court found that the majority of the fault rested with the boy and his father.

Front 54

Murray was doing shallow diving at a Ramada Inn and struck his head on the bottom of the pool causing instant paralysis and his death 5 months later. No lifeguard was on duty in violation of LA statutory code. There were no signs in the area that warned against shallow diving. Murray knew how to dive and also warned his brothers that shallow diving was dangerous. Defendants urged assumption of the risk as a complete bar to plaintiff’s recovery. Trial court denied request and refused to instruct the jury on assumption of the risk, concluding the defense has been replaced by comparative negligence.

Back 54

If a plaintiff is at fault, that fault will be considered and the damages will be reduced accordingly. Defendants argue that plaintiff assumed the risk of diving in shallow water. The Supreme Court answered the certified question: Is assumption of the risk still an absolute bar to the plaintiff’s recover? No – it is just a species of contributory negligence which has been eliminated and replaced with comparative negligence. It is no longer a basis to dismiss a claim but there may be some questions of cause in fact and legal cause when someone acts intentionally in the face of a known risk. Any prospective waiver for personal injury is void under the civil code. When someone enters a baseball stadium and gets hit by a ball can they sue now that the assumption of the risk doctrine is not a bar? Defendants will come up with another defense such as there was no unreasonable risk of harm – they didn’t breach a duty of care.
Defendants argue that even leaving aside assumption of the risk, they should not be held liable because they had no duty to protect plaintiff from a danger of which he had knowledge. A defendant’s duty should not turn on a particular plaintiff’s state of mind but instead should be determined by the standard of care which the defendant owes to all potential plaintiffs. Here, for example, the defendants owed a duty to all potential users of the pool to operate that facility in a reasonably safe fashion. It cannot be said that Murray consented to the risk that he would suffer a fatal blow to the head.

Front 55

Pitre slid down a snowy hill head first lying on his back and hit a light pole. They alleged Tech was negligent because (1) they encouraged students to engage in sledding in areas they knew were dangerous; (2) they failed to place cushions around the light poles to prevent injury; (3) they failed to warn students of hazards that might be encountered in the area in which the sledding took place; (4) they failed to prohibit sledding in that area.

Back 55

A landowner owes a plaintiff a duty to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. In making this determination in negligence actions, the “obviousness” and “apparentness” of the complained condition have historically been taken into consideration. A landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as a landowner.
The court looks to (1) the utility of the light pole, (2) the likelihood and magnitude of the harm, (3) the cost to prevent the harm, and (4) the nature of the activity and whether it was dangerous by nature. (1) The light poles serve an important public interest and are of great utility. (2) The light pole was lit on that evening and readily observable or clearly visible by those engaged in sledding, thus the likelihood of harm to anyone exercising reasonable care was slim. (3) While the proposed means of preventing the accident were feasible, they were not necessary in light of the likelihood of injury if sledders used good judgment. Additionally, the cost to post signs at every object on campus that one might sled into would be enormous. (4) While sledding is of minimal social utility, it is common knowledge that one must be able to steer to avoid colliding with fixed objects. When Pitre decided to sled head first on his back, he was unreasonable in denying himself the ability to dodge the pole.

Front 56

hold harmless clauses - enforceable?

Back 56

Ramirez v. Fair Grounds Corp. (not assigned) – any hold harmless clause that releases potential liability for any physical injury is null

Front 57

Laches and Statutes of Limitations

Back 57

If there is no state statute barring a claim because it was not pursued timely, the equitable doctrine of laches applies. Under laches, a claim is barred if the plaintiff failed to pursue the remedy judicially within a reasonable time, and the defendant was prejudiced thereby.

Front 58

Art. 3492. Delictual actions

Back 58

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

Front 59

Art. 3493.10. Delictual actions; two-year prescription; criminal act

Back 59

Delictual actions which arise due to damages sustained as a result of an act defined as a crime of violence under Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950 are subject to a liberative prescription of two years. This prescription commences to run from the day injury or damage is sustained.

Front 60

Art. 3456. Computation of time by years

Back 60

- If a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription.

Front 61

Art. 3462. Interruption by filing of suit or by service of process

Back 61

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

Front 62

Art. 3463. Duration of interruption; abandonment or discontinuance of suit

Back 62

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

(The most common type of abandonment is the failure of a party to take a “step” in the prosecution or defense of a pending lawsuit for a period of 3 years. Dismissal for abandonment is without prejudice, i.e. the plaintiff is not precluded through res judicata from refilling the suit, but the successor suit will nearly always be barred by the SOL)

Front 63

Art. 3464. Interruption by acknowledgment

Back 63

Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.

Front 64

Art. 3468. Incompetents

Back 64

Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation.

Front 65

Art. 3469. Suspension of prescription

Back 65

Prescription is suspended as between: the spouses during marriage, parents and children during minority, tutors and minors during tutorship, and curators and interdicts during interdiction.

Front 66

Art. 3503. Solidary obligors

Back 66

When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors.

When prescription is interrupted against a successor of a solidary obligor, the interruption is effective against other successors if the obligation is indivisible. If the obligation is divisible, the interruption is effective against other successors only for the portions for which they are bound.

Front 67

Art. 2324. Liability as solidary or joint and divisible obligation

Back 67

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

Front 68

What is an exception for joint liability?

Back 68

conspiracy. In that case tortfeasors will be solidarily liable.

Front 69

Suppose you are in a psych ward because you are crazy for 3 years and when you get out you want to sue for medical malpractice afterwards – result?

Back 69

You cannot do so unless the malpractice caused you to be crazy, otherwise prescription runs.

Front 70

Due solely to the defendant’s negligence, the tort-caused physical and mental injuries to the plaintiff so mentally incapacitated him that he lacked any understanding of what happened to him and of his possible legal remedies until after the one year prescription period when he began to recover awareness of the events and his condition.

Back 70

The principle of contra non valentem applies so as to prevent the running of liberative prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or actiong on the plaintiff’s action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; and (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action.
Thus, a person whose ignorance of his cause of action or inability to assert it is the result of his own mental incapacity cannot claim the benefits of this rule unless he has been interdicted. However, to permit prescription to run under facts such as the present case would permit a defendant with custody and control over a person he had tortuously injured to profit by his subsequent laxity in medical treatment, when the injured person’s recovery of mental faculties was retarded beyond the prescriptive period.

Front 71

Notice requirement for prescription

Back 71

Without actual or constructive notice of the injury, prescription does not start.

Front 72

Continuing tort doctrine

Back 72

A tort can be timely even after years if the continuing tort doctrine applies – where the defendant’s conduct is continuous and the prescription does not start to accrue until the defendant’s conduct stops. This does not apply where the effects of the injury are continuing. The focus is on the defendant’s actions and not the effects of the actions.

Front 73

Plaintiff wanted to sue the proper owners of a highway in which his wife died in a car accident. The highway was divided and owned half by the DOTD and the other portion by Jefferson Parish and the GNOEC. Plaintiff initially sued the wrong defendant and amended its petition after the prescription period to add the correct defendant.

Back 73

Article 1153 provides: “When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”
The court established the following criteria for determining whether this article allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original petition;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.
Here, these criteria were not met.

Front 74

Statutes of Repose (peremption)

Back 74

Without actual or constructive notice of the injury, prescription does not start. Thus, the statute of limitations may not bar some claims until years after the wrongful act has occurred. Some jurisdictions adopt statutes which bar recovery if an action is not instituted within a fixed period of time after the alleged wrongful act, regardless of whether the victim has sustained damages or could have reasonably known about the claim. The two most common preemptive statutes in LA are for legal and medical malpractice.

Front 75

Prior to 1996, liability for “things” was governed by art. 2317:

Back 75

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

Front 76

Plaintiff’s automobile was demolished when defendant’s tree fell across it. This happened in 1976. Result?

Back 76

Applying 2317, the court imposes a standard of strict liability and found that defendant was liable for defect of the tree whether she knew it was diseased or not. This result would differ today under the tort reform legislation because the plaintiff would have to prove defendant knew or should have known of the defect that caused the damage.

Front 77

Plaintiff stepped in a hole in a grassy area along the Toys R Us parking lot. Counsel for Toys R Us successfully argued that no duty was owed to plaintiff because adequate pedestrian walkways were provided and maintained, but plaintiff instead chose to use an area which was never intended to be a pedestrian walkway to get to a restaurant across the street.

Back 77

Under the old law prior to 1996, she would simply need to prove there was an injury resulting from a condition that presented an unreasonable risk of harm – she would probably succeed under these facts. However, under the current law, the court lowers the burden on the defendant and considers social utility in what is reasonably dangerous and requires actual or constructive knowledge of the condition. The addition of the element of knowledge under 2317.1 has effectively turned it from strict liability to a negligence claim. Plaintiff failed to meet its burden of proof that Toys R Us knew of the hole in the ground and knew that people walked through the grass. Knowledge of the condition is an essential element for finding liability and plaintiff’s circumstantial evidence did not suffice.

Front 78

A grate fell from the ceiling of a hospital elevator injuring a patient. Plaintiff argues res ipsa. The year is 1997.

Back 78

The owner of a building is answerable for the damage occasioned by its ruin when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in the article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
Here, the mere showing that a defect existed which caused an injury is insufficient to carry the burden of proof. The plaintiff did not address the essential element of knowledge of the defect.

Front 79

discuss the factors of an employee v. independent contractor

Back 79

The independent contractor relationship presupposes a contract between the parties, the independent nature of the contractor’s business, and the nonexclusive means the contractor may employ in accomplishing the work. Moreover, it should appear that the contract calls for specific piecework as a unite to be done according to the independent contractor’s own methods, without being subject to the control and direction in the performance of the service, of his employer, except as to the result of the services being rendered. It must also appear that a specific price for the overall undertaking is agreed upon, that its duration is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. In applying the test, it is not the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists.
This right to terminate the relationship without cause, where no term of employment is prescribed, is characteristic of the master and servant or employer-employee relationship. The right is at the same time antagonistic to the independent contractor relationship.

Front 80

Victim was a construction worker that worked for a temp agency. Defendant hired victim from this temp agency to work in their scrap yard. Victim followed defendant’s instructions and tools and equipment were provided by defendant. Victim was injured at the scrap yard. The issue here is who should be liable: the temp agency, the defendant, or both?

Back 80

Many firms have a stand-by group of people who work for them. They come from a staffing company. Who is the employee and who is the employer? Under the old law, the court would find “one master” and figure out whether the staffing company or employer was liable. Now the courts find them both liable. The borrowed employee determination should not relieve the general employer of his liability for his employee’s negligent acts done in pursuance of duties designated for him by his employer, in whose pay he continued and who had the sole right to discharge him. This is especially so in the present case where the employee was loaned out to another in continuing arrangement between the employers for their mutual benefit.

Front 81

Two men owned a gift shop on the lower floor of a building and resided on the upper floor. The rear of the building was leased to Williams as an apartment. Defendants asked an employee of the hotel across the street to help Williams move his refrigerator from his apartment to his new residence. Williams lost his grip and injured this employee. Employee sues defendant alleging vicarious liability.

Back 81

Determination of the course and scope of employment is largely based on policy. When the act of the employee doesn’t benefit the employer, the purpose of the policy of finding an employer liable fails. Plaintiff moved a refrigerator for the owner of the company – it was a personal refrigerator and not one for the company. Although Williams is an employee of House of Décor, he was doing a favor unrelated to the scope of his employment.

Front 82

Employee deviated from an employment errand to cash her Christmas bonus and gets into an accident. Is the employer vicariously liable?

Back 82

There is not necessarily a brightline test- the deviation has to be “substantial.” The court will consider factors such as when and where, in relation to the business errand, the employee deviates from the employment related errand and commences with the personal errand, the temporal and special boundaries of the deviation, the nature of the employee’s work, the additional risks created by the deviation, and the surrounding circumstances. Because the employee in this case was going away from the business errand and toward the personal errand and passed up her place of employment on the way, the court found that this weighs heavily against finding the deviation was within the course and scope of employment.

Front 83

You should ask the following questions to determine whether a defamation case is subject to 1st amendment scrutiny:

Back 83

1. Who is the plaintiff? Is the plaintiff a public figure or purely a private citizen? Has the plaintiff made a choice to be public or has the publicity been “thrust upon him?”
2. Who is the defendant? Is the defendant a media defendant?
3. What is the subject matter of the communication? Is this a matter of public or private concern?

Front 84

Plaintiff presented a $100 bill at a Jack in the Box drive through. The employee thought the bill looked suspicious and called law enforcement. A sheriff arrived and detained him until he could verify the legitimacy of the bill, which he determined was real. Plaintiff sues for defamation.

Back 84

Defamation is a tort involving the invasion of a person’s interest in his or her reputation and good name. The four elements necessary to establish a claim of defamation are (1) a false and defamatory statement concerning another; (2) an unprivileged publication (communication) to a third party; (3) fault (negligence or greater) on the part of the publisher (speaker); (4) resulting injury.

Defamation exists for statements and not opinions.(can be proven to be false)

The fault requirement is often referred to as malice, actual or implied.
In LA defamatory words are divided into those that are defamatory per se and those that are susceptible of defamatory meaning. Words that accuse one of criminal conduct are defamatory per se, and falsity or malice are presumed, but may be rebutted by the defendant.
However, plaintiff has to prove knowledge of the falsity or reckless disregard of the truth of the statement – “actual malice.”
In LA, privilege is a defense to a defamation action. In order to encourage free communication of views in certain defined instances (reporting crime), one is justified in communicating defamatory information to others without incurring liability. If reporting a crime could subject you to liability, the number of reported crimes would substantially decrease.
Once this privilege is established, it becomes incumbent on the plaintiff to come forward with rebuttal evidence establishing abuse. Required proof of abuse in this particular case is proof that the defendant/publisher knew the defamatory statement to be false, or acted in reckless disregard to its truth or falsity.

Front 85

Hustler Magazine featured an ad parody which portrayed a nationally known minister in a promiscuous and drunken manner. The ad also had a disclaimer that it was a parody and not to be taken seriously. The minister sued for IIED. The district and appellate division found for plaintiff. Hustler appeals.

Back 85

Public figures may not recover for the tort of intentional infliction of emotional distress by reason of publication without showing that in addition the publication contains a (1) false statement of fact which was (2) made with actual malice, with (3) knowledge that the statement was false or with reckless disregard as to whether it was not true.
The first amendment right is critical to those who hold public office or public figures who are intimately involved in the resolution of important public questions, or by reason of their fame, shape events in areas of concern to society at large. The breathing space provided by the constitutional rule allows public figures to recover only where a false statement is made with the requisite culpability. This ad parody was not reasonably believable and was not made with the intent that the public believe the false statements.

Front 86

What is essential to a defamation case about the communcation?

Back 86

The underlying event has to be the communication of a false statement of fact. A statement of opinion is NOT defamation.

Front 87

Plaintiffs sue because they saw a picture of their house published in a newspaper with a caption commenting on how it was weathered and unkempt. The newspaper did not display the plaintiffs’ names nor did they disclose the address of the house.

Back 87

: In LA, the right to privacy has been defined as the right to be let alone and the right to an inviolate personality. Other members of society have a corresponding duty not to violate that right. Where no right to privacy exists, a person’s conduct may be the cause of another person’s embarrassment, discomfiture, or monetary loss, but it will not constitute a “legal cause,” because no duty has been breached.
An actionable invasion of privacy occurs when the defendant’s conduct is unreasonable and seriously interferes with the plaintiff’s privacy interests. For an invasion to be actionable it is not necessary that there be malicious intent on the part of the defendant. The reasonableness of the conduct is determined by balancing the plaintiff’s interests in protecting his privacy and the defendant’s interest in pursuing his course of conduct.
Plaintiffs have not alleged that the publication placed them, or their home, in a false light. The record shows the photograph was untouched and the property was in need of repair. There was no physical intrusion on the property because the photo was taken from the street. No right to privacy attaches to material in public view.
This would be different if you used a telescope camera and viewed someone tanning in their backyard or something to that effect.

Front 88

How can publishers defend against frivolous lawsutis?

Back 88

In LA, there is a special motion to strike, ccp art. 971, which essentially says that when a person has been sued on a matter of public importance, the defendant at the outset of the case may file a motion to strike which will cause the plaintiff to come forward with enough facts to show that it is likely it will prevail in the case. Unlike a motion to dismiss, you don’t assume the allegations to be true.

Front 89

The Iberville South was a weekly newspaper that had a tradition of reprinting the front page from a randomly selected 25 year old edition. Plaintiffs were depicted on the reprinted page because there was an article about their criminal conviction. Plaintiffs argue that because this was no longer a public concern, and because they served their time and were granted a pardon, that this was an invasion of their privacy.

Back 89

One of the ways in which a person may subject himself to liability for damages for invasion of privacy is by giving publicity to a matter concerning the private life of another, when the publicized matter would be highly offensive to a reasonable person and is not of legitimate concern to the public.
Defendants were arguably insensitive or careless in reproducing a former front page without checking for information that might be offensive, but more than insensitivity or simple carelessness is required for the imposition of liability for damages when the publication is truthful, accurate and non-malicious.
In imposing liability, courts look to a number of factors including the intentional nature of the disclosure, the lack of legitimate public interest, the lapse of time between the crime and the publication, and the disclosure of the private facts regarding the criminal’s new name and address.

Front 90

As you study products liability, ask the following questions:

Back 90

1. Who is the defendant? Is the defendant a manufacturer, a retailer, or some other party in the chain of distribution? Different theories apply.
2. Who is the plaintiff? Is the plaintiff a purchaser, user, bystander, or some other party? Is the use foreseeable? Different theories apply.
3. What is the theory? Are you applying principles of contract, negligence, strict liability, or statutory liability?

Front 91

What is significant about the application of the LPLA?

Back 91

A LA products liability lawyer must know the law before and after the adoption of the LPLA, because it only applies prospectively from 1988 and beyond. Also, the act only applies to manufacturers and a few special non-manufacturer sellers, so most of the pre-Act law will apply to non-manufacturer defendants.

Front 92

Plaintiff purchases a defective truck and wants damages for emotional distress caused by the hassles associated with the defective truck. Historically, LA only awarded damages for mental anguish in cases that involved personal injury.

Back 92

Redibition is defined by LSA-CC art. 2520, “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” Art. 2545 further states, “The seller who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.”
The court found that under art. 1998, if it can be established that the obligee intended, and if the nature of the contract supports this contention, to gratify a significant nonpecuniary interest by way of the contract, and that the obligor either knew or should have known that failure to perform would cause nonpecuniary loss to the obligee, then the requirements for recovery of nonpecuniary damages are satisfied.
Although the nature of buying truck involves both pecuniary and nonpecuniary interests, the court finds it is primarily pecuiniary (securing transportation). This would differ if the car were a unique antique or custom built vehicle.

Front 93

Plaintiffs sue manufacturer of cattle dip because it caused several cattle to die and caused two boys to become ill due to its excessive amounts of arsenic.

Back 93

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by the defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming the injury has the burden of proving that the product was defective, i.e. reasonably dangerous to normal use, and that plaintiff’s injuries were caused by reason of the defect.
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.
Here, plaintiff proved a causal relationship between the injuries sustained and the use of the product.

Front 94

Appellee widow brought a wrongful death action against an asbestos manufacturer alleging that her husband's death was caused by exposure to asbestos. The widow invoked Louisiana's strict product liability tort law under the district court's diversity jurisdiction.

Back 94

Before trial, the district court excluded all evidence of whether the manufacturer knew or could have known of the dangers of asbestos on the ground that such evidence was irrelevant as to whether the product was unreasonably dangerous. The district court found that the manufacturer's asbestos products were unreasonably dangerous and had been a proximate cause of the decedent's death. On certification of the intermediate appellate court's question, the court held that a manufacturer could be held liable for injuries caused by an unreasonably dangerous product even if the manufacturer could not have known of the product's inherent danger. The court held that, in such a situation, it was only fair that the manufacturer bear the cost of the damages caused by its products.
The issue here is whether a manufacturer is liable for a product when there was no scientific knowledge at the time that asbestos would cause mesothelioma. The court says that prior to 1988 there is no state of the art defense and the only question is whether the product is unreasonably dangerous.

Front 95

Plaintiffs, decedent's family, filed suit against defendant tobacco company and others alleging that defendants' products contributed to decedent's death. While the case was pending, the Louisiana Supreme Court answered a certified question dealing with unreasonably dangerous products per se. Plaintiffs then amended their complaint to add a products liability claim alleging that tobacco was unreasonably dangerous per se.

Back 95

The lower court ruled that the state court decision did not apply retroactively to plaintiffs' case and granted defendant tobacco company's summary judgment motion. Plaintiffs appealed. The state supreme court had held that when it interpreted the law, that decision became the controlling interpretation of state law and must be given full retroactive effect in all other cases, unless it declared otherwise or such application was barred by prescription or res judicata. The Louisiana Supreme Court did not limit the retroactive effect of its decision in the certified question case. Accordingly, the court concluded that the Louisiana Supreme Court would apply the case retroactively. Thus, lower court improperly determined that the case should not apply retroactively.

Front 96

Louisiana Products Liability Act
§ 9:2800.52. Scope of this Chapter

Back 96

This Chapter establishes the exclusive theories of liability for manufacturers for damage caused by their products. A claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in this Chapter. Conduct or circumstances that result in liability under this Chapter are "fault" within the meaning of Civil Code Article 2315. This Chapter does not apply to the rights of an employee or his personal representatives, dependents or relations against a manufacturer who is the employee's employer or against any principal or any officer, director, stockholder, partner or employee of such manufacturer or principal as limited by R.S. 23:1032, or to the rights of a claimant against the following, unless they assume the status of a manufacturer as defined in R.S. 9:2800.53(1):

(1) Providers of professional services, even if the service results in a product.

(2) Providers of nonprofessional services where the essence of the service is the furnishing of judgment or skill, even if the service results in a product.

(3) Producers of natural fruits and other raw products in their natural state that are derived from animals, fowl, aquatic life, or invertebrates, including but not limited to milk, eggs, honey, and wool.

(4) Farmers and other producers of agricultural plants in their natural state.

(5) Ranchers and other producers of animals, fowl, aquatic life, or invertebrates in their natural state.

(6) Harvesters and other producers of fish, crawfish, oysters, crabs, mollusks, or other aquatic animals in their natural state

Front 97

LPLA § 9:2800.53. Definitions

Back 97

The following terms have the following meanings for the purpose of this Chapter:

(1) "Manufacturer" means a person or entity who is in the business of manufacturing a product for placement into trade or commerce. "Manufacturing a product" means producing, making, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product. "Manufacturer" also means:

(a) A person or entity who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.

(b) A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage.

(c) A manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer.

(d) A seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer. The court shall take into consideration the following in determining whether the seller is the alien manufacturer's alter ego: whether the seller is affiliated with the alien manufacturer by way of common ownership or control; whether the seller assumes or administers product warranty obligations of the alien manufacturer; whether the seller prepares or modifies the product for distribution; or any other relevant evidence. A "product of an alien manufacturer" is a product that is manufactured outside the United States by a manufacturer who is a citizen of another country or who is organized under the laws of another country.

(2) "Seller" means a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.

(3) "Product" means a corporeal movable that is manufactured for placement into trade or commerce, including a product that forms a component part of or that is subsequently incorporated into another product or an immovable. "Product" does not mean human blood, blood components, human organs, human tissue or approved animal tissue to the extent such are governed by R.S. 9:2797.

(4) "Claimant" means a person or entity who asserts a claim under this Chapter against the manufacturer of a product or his insurer for damage caused by the product.

(5) "Damage" means all damage caused by a product, including survival and wrongful death damages, for which Civil Code Articles 2315, 2315.1 and 2315.2 allow recovery. "Damage" includes damage to the product itself and economic loss arising from a deficiency in or loss of use of the product only to the extent that Chapter 9 of Title VII of Book III of the Civil Code entitled "Redhibition" does not allow recovery for such damage or economic loss. Attorneys' fees are not recoverable under this Chapter.

(6) "Express warranty" means a representation, statement of alleged fact or promise about a product or its nature, material or workmanship that represents, affirms or promises that the product or its nature, material or workmanship possesses specified characteristics or qualities or will meet a specified level of performance. "Express warranty" does not mean a general opinion about or general praise of a product. A sample or model of a product is an express warranty.

(7) "Reasonably anticipated use" means a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.

(8) "Reasonably anticipated alteration or modification" means a change in a product that the product's manufacturer should reasonably expect to be made by an ordinary person in the same or similar circumstances, and also means a change arising from ordinary wear and tear. "Reasonably anticipated alteration or modification" does not mean the following:

(a) Alteration, modification or removal of an otherwise adequate warning provided about a product.

(b) The failure of a person or entity, other than the manufacturer of a product, reasonably to provide to the product user or handler an adequate warning that the manufacturer provided about the product, when the manufacturer has satisfied his obligation to use reasonable care to provide the adequate warning by providing it to such person or entity rather than to the product user or handler.

(c) Changes to or in a product or its operation because the product does not receive reasonable care and maintenance.

(9) "Adequate warning" means a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the damage for which the claim is made.

Front 98

LPLA Manufacturer responsibility and burden of proof

Back 98

A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.

B. A product is unreasonably dangerous if and only if:

(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;

(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;

(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or

(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.

C. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.55 must exist at the time the product left the control of its manufacturer. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or 9:2800.57 must exist at the time the product left the control of its manufacturer or result from a reasonably anticipated alteration or modification of the product.

D. The claimant has the burden of proving the elements of Subsections A, B and C of this Section.

Front 99

LPLA Unreasonably dangerous in construction or composition

Back 99

A product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.

Front 100

LPLA Unreasonably dangerous in design

Back 100

A product is unreasonably dangerous in design if, at the time the product left its manufacturer's control:

(1) There existed an alternative design for the product that was capable of preventing the claimant's damage; and

(2) The likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

Front 101

LPLA Unreasonably dangerous because of inadequate warning

Back 101

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer's control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

B. A manufacturer is not required to provide an adequate warning about his product when:

(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product's characteristics; or

(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

C. A manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

Front 102

LPLA Unreasonably dangerous because of nonconformity to express warranty

Back 102

A product is unreasonably dangerous when it does not conform to an express warranty made at any time by the manufacturer about the product if the express warranty has induced the claimant or another person or entity to use the product and the claimant's damage was proximately caused because the express warranty was untrue.

Front 103

LPLA Manufacturer knowledge, design feasibility and burden of proof

Back 103

A. Notwithstanding R.S. 9:2800.56, a manufacturer of a product shall not be liable for damage proximately caused by a characteristic of the product's design if the manufacturer proves that, at the time the product left his control:

(1) He did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage or the danger of such characteristic; or

(2) He did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the alternative design identified by the claimant under R.S. 9:2800.56(1); or

(3) The alternative design identified by the claimant under R.S. 9:2800.56(1) was not feasible, in light of then-existing reasonably available scientific and technological knowledge or then-existing economic practicality.

B. Notwithstanding R.S. 9:2800.57(A) or (B), a manufacturer of a product shall not be liable for damage proximately caused by a characteristic of the product if the manufacturer proves that, at the time the product left his control, he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the characteristic that caused the damage or the danger of such characteristic.

Front 104

The widow's husband was killed when a gas meat smoker exploded. On appeal, the widow alleged that based on the evidence, jurors might have found that the manufacturer was negligent in not designing the gas supply system with a safety shut off device.

Back 104

The court found that there were alternatives to the product's design. Although the manufacturer claimed that the decedent was negligent in operating the smoker, the court held that under products liability law, the fault of the claimant was not dispositive. Based on the evidence, a reasonable juror could find that the failure to install a safety design on the product was a significant factor in causing the decedent's death. There was also evidence that the gas supply system had a high degree of risk inherent in its use and that the product could have been misused inadvertently. Because, based on the evidence, reasonable jurors could come to a conclusion that the manufacturer was negligent, the trial court erred in granting the manufacturer a directed verdict.

Front 105

Plaintiffs are the purchasers of a Ski-doo from defendant company. Plaintiff had placed his foot in the footwell which was 11 inches high and braced himself as the ski-doo fell over so that he would not fall off. Because his wife had his arms around him, she pulled him off while his foot was still in the footwell and his leg snapped at the 11 inch point. The instructions did not warn of such a danger, and the district court found for plaintiffs solely on the fact that an injury occurred.

Back 105

Courts applying the LPLA have noted that even when a product is not defective, a manufacturer may have a duty to instruct reasonably foreseeable users of the product’s safe use. A manufacturer must anticipate foreseeable misuse and warn in a manner that is likely to catch the user’s attention.
A court must first determine what risk the product created and then whether a reasonable person would conclude that the danger, whether foreseeable or not, outweighs the utility of the product. In this case the district court found liability solely on the fact that an injury occurred but did not properly apply the risk-utility analysis. Without evidence showing the severity of the risk created by the footwells or the frequency of foot entrapment, it cannot be shown that defendant failed to use reasonable care. Also, no evidence shed light on whether defendant shuld have forseen, either by a pattern of similar accidents or a design defect, the probability and risk of such an injury.

Front 106

Petitioner alleged that the cigarette manufacturers were liable for his mother's death because they breached express warranties contained in their advertising, they failed to warn consumers about the hazards of smoking, they fraudulently misrepresented the hazards, and they conspired to deprive the public of medical and scientific information about smoking.

Back 106

The court of appeals held that the claims based upon the manufacturer's advertising and promotional activities were preempted by the Federal Cigarette Labeling and Advertising Act of 1965, 15 U.S.C.S. §§ 1331-1340, and its successor, the Public Health Cigarette Smoking Act of 1969, 15 U.S.C.S. §§ 1331-1340. On certiorari, the Court reversed in part by holding that, due to the strong presumption against the preemption of state police power regulations, the 1965 Act did not by its statutory language preempt state common law damages claims. The Court held that the more broad language of the 1969 Act did preempt some common law damages claims based upon the failure to warn and fraudulent misrepresentation; however, the claims based upon the breach of an express warranty, intentional fraud, and conspiracy were not preempted.

Front 107

• Suppose someone is building a house and due to error there are not enough beams, and the roof falls down and hurts a visitor. Does a visitor have an LPLA claim for a defective product against the manufacturer builder of the home?

Back 107

The house is an immovable, and the LPLA only applies to corporeal movables.

Front 108

• Suppose someone uses a hairdryer to shrink-wrap plastic and the plastic catches on fire causing injury. The victim sues the hairdryer manufacturer. The obvious use is to dry hair, but is it reasonably foreseeable that people will use it to dry other things?

Back 108

The victim will argue everyone uses hairdryers to dry things other than hair. This is a factual issue which will preclude summary judgment.

Front 109

• Lets assume you go to sears and buy a whirlpool dryer and your house burns down due to a short in the wiring. Do you have an LPLA claim against sears?

Back 109

Sears would not be a manufacturer unless it fit into one of the definitions listed. However, this does not mean you have no claim against Sears – you could bring a redhibition claim against Sears.

Front 110

Do you have an LPLA claim against anyone in the Wendy’s chili finger case?

Back 110

If Wendy’s is holding itself out to be the manufacturer of that Chili, by labeling it as Wendy’s chili, it is possible to sue them.

Front 111

Issue: Are the rules that require an expert testimony to practice in the same community and specialization, an outdated and unfair rule?
Facts: During the birth of plaintiff’s baby, the attending physician performed an episiotomy, and after the birth the physician sutured the incision. The patient developed a fistula that required more surgery, and she continued to suffer pain and discomfort. She filed a medical malpractice action against the physician, who was a second-year family practice resident, another physician and the hospital. At trial her expert witness was found to be a board-certified obstetrician who had not actually been in practice for a number of years. Defendant alleges the expert witness is not a physician in the same field as the defendant and is overqualified. The expert's testimony was excluded, and because she could not find another expert, a directed verdict was entered against the patient because without expert testimony you cannot establish the standard of care for the jury. Plaintiff appeals.

Back 111

Holding: The court reversed and remanded for a new trial. It specifically abandoned the similar locality rule for experts.
Reasoning: The locality rule came under attack in that it legitimized a low standard of care in certain smaller communities and that it also failed to address or to compensate for the potential so-called conspiracy of silence in a plaintiff’s locality that would preclude any possibility of obtaining expert testimony. Even though witness did not come from same area of specialization, they still have the prerequisite knowledge of the standard.

Front 112

Issue: Is a doctor negligent when he fails to explain medically reasonable invasive and noninvasive alternatives even when the chosen course is noninvasive?

Facts: Doctor advised matthies to remain in bed. She could have undergone surgery but it involved high risks that she would end up worse off. He failed to inform her of these risks and simply prescribes bedrest.

Back 112

Holding: The appellate court held that to obtain a patient's informed consent to one of several alternative courses of treatment, the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course was noninvasive.
Reasoning: Doctors have a duty to disclose all courses of treatment that are medically reasonable. Plaintiff has the ultimate decision in treatment.
Doctors do not have to disclose everything, but what a reasonable patient would want to hear. Ex. He doesn’t have to say there’s a 1 in 1 million chance you would develop gangrene.
When it comes to actually performing a course of treatment, you do not consult the patient, the standard is that of a reasonable doctor.

Front 113

The patient went to the hospital due to arm swelling. The physician prescribed treatment and arranged for transfer to the charity hospital as the patient had no insurance and the charity hospital was better able to treat him. The patient's arm was amputated. Appellee patient sued appellant physicians and original hospital, alleging medical malpractice. The Fourth Circuit Court of Appeal (Louisiana) affirmed the trial court's judgment in favor of the patient, and the physicians and hospital sought further review

Back 113

The supreme court held the court of appeal erred in characterizing the patient's claim as one for patient dumping, as well as medical malpractice, since that claim was not alleged. The anti-dumping statutes, 42 U.S.C.S. 1395dd and La. Rev. Stat. Ann. §§ 40:2113.4 - .6, only applied to hospitals. The patient dumping claim was for malpractice governed by the Louisiana Medical Malpractice Act, La. Rev. Stat. Ann. § 40:1299.41, et seq., because (1) the wrong was treatment-related; (2) expert medical evidence was needed to determine if a standard of care was breached; (3) the act or omission involved assessing the patient's condition; (4) the incident occurred in the context of a physician-patient relationship, and was within the scope of activities the hospital was licensed to perform; and (5) the injury would not have occurred if the patient had not sought treatment. Fault should have been apportioned to the charity hospital.

Front 114

Plaintiff, a patient whose female reproductive organs were removed without her consent, filed suit against the surgeon. The trial court and appeals court held against plaintiff. Plaintiff sought further review.

Back 114

The court reversed and held for plaintiff, and remanded to the appeals court to determine the damages owed plaintiff. The court noted that the evidence presented no reasonable basis for finding that plaintiff had consented either expressly or impliedly to a removal of her reproductive organs. Regardless of the reasonableness of the surgery or its eventual necessity, the surgeon did not have authority to act beyond his patient's authorization, except when a situation seriously threatened the health or life of the patient. The court found nothing in the record to warrant a determination that the surgeon was forced by such a situation to remove plaintiff's female organs before obtaining her consent; thus the surgeon committed a battery that entitled plaintiff to recover damages for negligence or malpractice. The court noted that plaintiff consented in writing only to a laparotomy, an exploratory operation to burn the adhesions that had entangled these organs.

Front 115

The patient alleged that because of the physician's negligence, she needlessly underwent subsequent surgeries. The jury trial resulted in judgment in favor of the physician. The patient contended that the district court and the court of appeal had erroneously applied the law in barring the testimony by the patient's expert witness.

Back 115

The court reversed and held that the courts below had erred in excluding the testimony of an ob/gyn specialist, whose proffered testimony indicated that he would have testified regarding the nationally applicable standard of care for performing a certain procedure, which was the same surgical procedure that the patient underwent. The trial court barred the expert's testimony under La. Rev. Stat. Ann. § 9:2794 because the expert did not practice in a neighboring or similar community. The court held such to be the wrong test. Where there was a uniform nationwide method for performing a particular medical procedure, an expert with knowledge of such method was qualified to testify. The expert was not constrained by the need to have practiced in a similar community or locale and under similar circumstances.

Front 116

As a result of her surgery, the patient lost sphincter and bladder control. The patient contended that she would not have undergone the surgery if she had known of the possible consequences. The appellate court affirmed the trial court's judgment in favor of the doctor. On further appeal, the court considered whether a medical consent form, which tracked the language of La. Rev. Stat. Ann. § 40:1299.40A, had to specify all known risks of a particular surgical procedure, and absent misrepresentation of material facts, what proof was required to rebut the statutory presumption of consent that arose when the patient signed the form.

Back 116

The court answered the first question in the negative and held that a reasonable limitation on the "known" risks that had to be disclosed were implied in § 40:1299.40A. Regarding the second question, the court held that the patient was required to show that: (1) the adverse results of her surgery were known, significant, and material risks which should have been disclosed to her, (2) that those risks were not disclosed, (3) that she was unaware of those risks, and (4) that a reasonable person would have refused the surgery because of the risks.