La Barbri Torts

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Torts - General

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➢ Start with La Civ Code Art 2315 – as being the basis for tort liability – we read in common law

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Intentional Tort - Intent

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➢ Intent→ purpose or knows w/substantial certainty that the consequences would result from his act

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Battery:

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(1)intent to cause
(2) contact that is
(3) harmful or offensive to reasonable person of ord sensibilities.

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Assault:

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(1)intent to cause (2) reasonable apprehension of a battery and (3) the Δ has apparent means to complete.

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False imprisonment:

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(1) intent to confine the Π & (2) actual complete confinement

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Trespass to land:

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(1) intent to enter the property & (2) physical entrance onto the land.
• Good and bad faith
• good faith = due to necessity or w/o knowledge; only liable for actual damage;
• bad faith = with knowledge and w/o necessity is responsible for nominal damages as well.

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IIED:

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(1) specific intent(P or SC) to cause severe emotional distress (2)extreme and outrageous behavior (beyond the toleration of reasonable members of society) that (3) causes the Π’s (4) severe emotional distress
• Rx: if the conduct is continuous, then Rx does not begin to run until conduct ends.

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Trespass to chattel/conversion:

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(1) intent to interefere with the Π’s dominion/use of the thing & (2) substantial interference with the dominion or control of the thing or damage to the thing.
• if the property is majorly damaged, then damages = full value;
• if the property is not damaged or minorly damaged, then damages = comp for damage or use.

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Intentional interference with a K:

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(1) contract between the Π and a 3d party (2) Δ has knowledge of the K (3)intentionally interferes with the performance of the K which causes breach /burden/ impossibility & (4) causes damages to the Π

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Defamation:

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• (1) a false and defamatory statement about another(not opinion/satire)
• per se - accuse of crim conduct / injures personal/professional rep (falsity/malice presume)
• if not defamatory per se, then have to prove the falsity and fault/malice elements.
• (2) unprivileged publication to a third party (3) fault (or malice) on the part of the publisher (4) damages to individual’s reputation /standing in the community
• Public officials and figures - actual malice (know of falsity or reckless disregard for truth/falsity)
• Private Π/public concern - must prove negligence & damages by clear and convincing evidence.
• Private Π/private matter - same except for prepon of evidence & Defamation per se is allowed

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Privileges and defenses –

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(1) truth; (2) absolute privilege (poltic & attys); (3) qualified or conditional privilege (reporting crime)

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Invasion of privacy - intrusion on seclusion:

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(1) int intrusion (2) on seclusion (res expectation) & (3) highly offensive to RP

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Invasion of privacy - appropriate name/likeness:

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(1) name/like of Π (2) int approp (3) Δ’s ben (4) w/o consent (5) damages

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Invasion of privacy - publicity priv life/facts:

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(1) publicity to pub (+1) (2) Π’s priv life – (hi offen & not of reas imp to the pub)

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Invasion of privacy - false light:

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(1) use Π’s name/ pic appearing that Π has consent/endorse the ad product & (2) falsity
• distinguish from def: no falsity required; no malicious intent; truth and lack of malice not defenses

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Invasion of privacy - defenses

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qualified privilege of “fair reporting”; consent; statutory immunity for posting NSF checks

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Mal prosecution:

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(1) jud proc (2) Π in tort is Δ in orig (3) current Π lost in orig (4) no PC in orig (5) damages

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Abuse of process:

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(1) an ulterior purpose & (2) a willful act that is not proper in the reg conduct of the proceeding

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Defenses and privileges to intentional torts

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• Consent - invalid if obtained through- fraud, duress, or misrepresentation; mistake does not vitiate unless the Δ knew of the mistake; may be express or implied; fighting voluntarily = consent unless other party uses excessive force.
• Self-defense - may use rease force to defend when a reas person would think necessary; excess –no con
• Defense of others - same grounds as defending one’s self; risk of mistake is on the defender
• Arrest or detention – (1) peace officers & (2) shopkeepers –for 60 minutes if: (1) PC & (2) RB they stole
• Defense of property and recapture of chattel - one in possession of prop is priv to use RF to protect; the owner of chattel & a storeowner priv to recap stolen chattle if in hot pursuit – only RF.
• Deadly force – can use reas & nec deadly force to prevent a forcible offense against the person or prop;
• Privileges not based on Π’s conduct – property context
• public necessity–taking & private necessity–if nec, one may trespass w/ liability only for act damage

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General Negligence Elements

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• Cause in Fact (But For & Substantial Factor) But For is harsher.
• Duty/Risk→ did D owe P a duty that encompassed a particular risk that caused P’s injury?
• Breach of Duty→ conduct falls below the standard of reasonable conduct as defined by the duty
• Damages→ must have actual damage (Phys Inj/Prop dam) Lost Chance/Fear of Disease sometimes recov

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Cause in Fact

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(But For & Substantial Factor) But For is harsher.

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Duty/Risk

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→ did D owe P a duty that encompassed a particular risk that caused P’s injury?
• Traditional Duty→ Defines standard of care w/Reasonable Person Standard (objective standard)
• D must behave as a reasonable, ordinary, prudent, person would in similar circumstances
• Takes into account physical limitations but not mental deficiencies
• Child’s behavior- measured a/g reas child of similar age/intel/exp unless doing adult activity.
• Other tests for establishing duty:
➢ Neg Per Se- import stan of care from non-tort stat if: Π & risk are in class stat was meant to protec
➢ Custom- how people are supposed to behave (safety manual)
➢ Risk/Utility Balance- “Hand Formula” Burden of Pre caution < Loss & Prob of Injury = NEG
➢ Res Ipsa Loquitor- (1) event not occur w/o neg (2) other causes suff elim (3) neg w/in scope of D’s duty to Π. Can’t use RIP if direct evidence of neg

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Scope of Duty

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→ should D be responsible for this injury to this P in this case?
• Foreseeability of persons & risks (just gen risk needs to be foreseeable)
• Ease of association b/w injury and negligent act
• Superceding/Intervening Causes (IC = force majeure; suicide; crim acts of 3dP; more faulty = IC)
• Med Negligence - normally considered w/in scope of risk if original negligent act because 4seeable
• Policy Considerations (PITRE FACTORS)→ (1) need for compensation, (2) precedent, (3) moral aspect of D’s conduct, (4)efficient administration of the law (5) deterrence, & (6) capacity to bear/distribute loss

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Breach of Duty

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→ conduct falls below the standard of reasonable conduct as defined by the duty
• Risk/Utility Balance-“Hand Formula”; Neg Per Se; Res Ipsa applied here sometimes instead of Duty

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Damages

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→ must have actual damage (Phys Inj/Prop dam) Lost Chance/Fear of Disease sometimes recov

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Premise Liability (Slip & Fall)

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→ Merchant has duty to make reasonable efforts to keep premises free of hazardous conditions that reasonably might give rise to damages.
Elements: (1) Condition presented an unreasonable risk of harm (2) harm was reasonably foreseeable (3) Prior to harm, merchant had actual/constructive notice of condition & (4) Merchant failed to exercise reasonable care

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NIED:

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Bystander Cases→ (1) P must view accident/injury OR come upon scene shortly thereafter & b/4 V’s condition has substantially changed (2) direct V must suffer such harm that it can reasonably be expected that P would suffer serious emotional anguish (3) the ED must be severe & debilitating (4) ED must be cuase by the V injury & (5) W/in class (spouses, children, g-parents, g-children, parents (not in-laws), & siblings.

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Fear of Contracting Disease –

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can recover if ‘especial circumstances’ that cause fear

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Medical Malpractice

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• Standard of Care→ Care ordinarily possessed & exercised by professn’al in good standing in community
• QHCP- same locality HCP – same or similar locality
• La Legislation→ If a “qualified health care provider” (has at least $100,000 in malpractice ins):
• Claim must be reviewed by med review panel who’ll issue report re: deviation from standard of care
• Rx is suspended until 90days a/f issuance of report & it’s admissible at subsequent ct proceedings
• General damages are capped at $500,000, w/each provider only responsible for $100,000
• Remainder is paid by patient compensation fund
• Informed Consent- can act beyond authorization if P life/health seriously threaten Unifrom Consent Law- (1) serves as rebut presump of consent (2) state risks in lay terms (3) risk disclosed and op to ask ?s

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Alcohol Providers

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→ statutorily immune b/c consumption of alcohol, not its sale/service, is the proximate cause of an injury to an intoxicated person or 3dPs. Unless serve to < 21.

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Custodial Liability

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→ Elements: (1) Ruin/vice/defect creating an unreasonable risk of harm (2) Ownership/custody of thing (3) Actual/constructive knowledge of defect (4) Damage could’ve been prevented by reasonable care & (5) D failed to exercise such reasonable care

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Building Liability

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→ Owner is liable if (1) he had actual/constructive knowledge of vice/defect (2) damage could’ve been prevented by reasonable care & (3) he failed to exercise reasonable care

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Children

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→ Parents are responsible 4 damage caused by their children upon a showing that (1) child resides w/parents (interpreted broadly) & (2) the child’s behavior would have been negligent if he were an adult

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Animals (except dogs)

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→ owner is liable if (1) he had actual/constructive knowledge that animal would cause harm (2) damage could’ve been prevented w/reasonable care & (3) he failed to exercise such reasonable care

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Dogs

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→ owner is strictly liable for damage caused by dog if (1) he could’ve prevented the damage & (2) damage didn’t result from V’s provocation of the dog

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Absolute Liability→

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PD & Blasting (1) he had actual/constructive knowledge of hazard (2) damage could’ve been prevented by reasonable care & (3) he failed to exercise reasonable care

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La Products Liability Act

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→ exclusive remedy a/g Manufacturers of products in personal injury cases.
(1) Man is liable 4 (2) damages proximately caused by (3) an unreasonably dangerous characteristic of his product when P’s damage arose from (4) a reasonably anticipated use of the product. Product may be unreasonably dan in 4 ways (C-DIB):
• Construction or composition→ mat’l deviation from M’s specifications or identical products made by M
• Defect must exist at time product left M’s control
• Design→ (1) alternative design was available that would’ve reduces risk of P’s harm & (2) the likelihood & gravity of the harm outweighs the burden of adopting the alternative design
• Defect must exist when it left M or result from a reasonably anticipated alteration/modification
• State of Art Defense→ relieves M if alt design choice was state of the art – so they didn’t know ab it
• Inadequate Warning→ failed to use reasonable care to give an adequate warning of dan/characteristic.
• Defect must exist when it left M or result from a reasonably anticipated alteration/modification
• M’s defenses→ (1) dan was obvious to ordinary, reasonable user (2) user had actual/constructive knowledge of dan characteristic (3) M had no actual/constructive knowledge of dan characteristic or (4) warning wasn’t passed on by seller or it was removed
• Breach of Express Warranty→ (1) M made express warranty (2) P was induced to buy/use product by warranty (3) Warranty was untrue & (4) P sustained damages proximately caused by warranty
• Defect must exist when it left M or result from a reasonably anticipated alteration/modification

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Vicarious Liability

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→ employers are liable for damages caused by employees if (1) an employee relationship exists (2) activity was w/in course & scope of employment (not frolic & detour) & (3) Fault of employee (neg)
• Employee vs. Ind K’or – Control Test: Er over how work was done
• Ind K’or→ not liable UNLESS agent’s (1) improperly instructed or (2) engaged in inherently dan activities
• Negligent Hiring/Training/Supervision→ did employer exercise reasonable care in hiring employees who, in the performance of their duties, will not subject 3dP to a serious risk of harm
• Inten torts–if conduct is so closely connected in time, palce, & causation that constitutes a risk attrib to biz

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Comparative Fault

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→ Watson Factors: (1) whether the conduct resulted from inadvertence or involved an awareness of danger (2) the gravity of the risk created by the conduct (3) the significance of the conduct (4) the actors’ capacities (5) any extenuating circumstances & (6) the relationship b/w the conduct & P’s harm
• Effectively eliminates solidary liability from torts EXCEPT→ (1) a vicariously liable employer is liable in solido w/his employee & (2) I’al tortfeasor is liable in solido for V’s damages

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Workers’ Comp Act

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→ employee’s exclusive remedy a/g employer/co-employee if: (1) the person is an employee (2) the injury arises out of (character/origin of risk) & in the course of employment (time & place of accident) & (3) the injury is compensable (includes mental injury if can be proved by clear & convincing E)
• Exceptions→ (1) accident occurred due to horseplay (2) accident arose over matters unrelated to employment (3) injury was caused by an I’al tort or (3) P’ship was formed to evade liability
• Immune from civil tort liability, except for intentional torts

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Sovereign Immunity

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→ La has waived this, but procedure & recovery is limited by Govt. Claims Act:
• No jury trials unless state waives prohibition
• General damages are limited to $500,000
• Discretionary/policy making acts are immune when done in course & scope of lawful powers & duties
• But, officers aren’t immune from acts/omissions that are I’al or reckless

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Family Immunity

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→ Spouses can sue each other. Children cant sue parents, but Parents can sue kids.

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Damages

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→ Nominal; Compensatory [Special (lost wages)&General (Pain & Suffering)]; Puntive Exemplary
• Punitive only DWI or Sexual Abuse of a Minor
• Prop Dam – either lost value or restor cost unless too high. Can get rest cost even if too high if some reason personal to prop owner or he has reason to believe rest will or is likely to occur.

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Wrongful Death & Survival Actions (must have a death)

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• WD→ brought by beneficiaries to recover damages suffered by them individually
• SA→ brought by beneficiaries to recover damages for V injuries
• Beneficiaries→ higher category precludes lower category & share equally in each category: Surviving (1) spouse (not judicially sep/div) &/or children (regardless of age/emancipation) (2) parents (3) siblings (4) grandparents (5) succession rep (only for SA)
• WD Rx→ prescribes 1yr from date of death
• SA Rx→ 1yr from date of death if died within a year of accident, if not action Rx b/c Rx ran I year from date of accident for the deceased; so failure to file during lifetime of decedent results in loss of action if death occurs more than 1yr later UNLESS doctrine of Contra Non Valentem applies, which tolls Rx if:
• D created the condition that prevented timely filing OR
• P didn’t have actual/constructive knowledge of the existence of the right to file.
• Med Mal – 3 year cap o/w 1 year from knowledge
• Illegitimate Child→ must be formally acknowledged b/4 death or filiated w/in 1yr of death to be proper P

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Torts & Conflicts - Residual Art

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→ apply law of state whose polices would be most seriously impaired if not applied. Consider:
• Pertinent Contacts
• Interstate system and the need for uniformity
• Each state’s policies deterring wrongful conduct and compensation

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Torts & Conflicts - ➢ Products Liability

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→ La law applies if:
• Injury was sustained here by domiciliary or resident OR
• Product was manufactured/acquired here & caused injury here or in another state to a La domiciliary

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Torts & Conflicts - Punitive Damages

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→ La may award punitive damages if it’s authorized by (1) law of state of conduct & either by law of state of injury or T’s domicile OR (2) law of state of injury & law of T’s domicile