Louisiana Bar Review: Torts

Front 1

Four important implications of intentional torts

Back 1

Worker's comp immunity
Scope of liability
Proof
Damage calculation

Front 2

How is intent satisfied?

Back 2

Subjectively (mind of defendant)
When the offender either desires the consequences of his act or knew that the consequences were reasonably certain to result from his act

Front 3

When can intent transfer?

Back 3

From person to person
From tort to tort (between battery, assault, and false imprisonment; maybe between trespass, trespass to chattel, and conversion)

Front 4

Elements of battery

Back 4

Intent (purpose or substantial certainty of causing contact that is harmful or offensive)
Contact
Harm or offense

Front 5

Elements of assault

Back 5

Reasonable apprehension of an imminent battery
Intent (purpose or substantial certainty of causing reasonable apprehension of an imminent battery or transferred intent)
Apparent means

Front 6

Elements of false imprisonment

Back 6

Intent (purpose or substantial certainty of confinement or transferred intent)
Actual confinement

Front 7

Elements of IIED

Back 7

Specific intent (desire to inflict severe emotional distress or have been substantially certain that severe emotional distress would occur)
Extreme and outrageous behavior (intolerable to reasonable members of society)
Causation
Severe emotional distress
Prescription

Front 8

Elements of trespass to land

Back 8

Intent (purpose or substantial certainty to enter property of another; need not know property belongs to another)
Physical entrance

Front 9

Elements of trespass to chattel and conversion

Back 9

Intent (to interfere with the owner's dominion or use and enjoyment of chattel)
Interference (substantial dominion or damage)
Damages

Front 10

Elements of intentional interference with contractual relationship

Back 10

A contract between the plaintiff and a third party
Defendant's knowledge of the contract
Intentional interference with contract
Causation of damages by breach of contract
NOTE: no negligent interference

Front 11

Elements of defamation

Back 11

(1) A false and defamatory statement concerning another
(2) An unprivileged publication to a third party
(3) Fault (negligence or greater)
(4) Resulting injury

Front 12

What else must public officials and public figures prove in a defamation action?

Back 12

actual malice (knowledge of the falsity or reckless disregard concerning the truth or falsity)

Front 13

What is the standard of proof in a defamation action brought by a private plaintiff over a matter of public concern?

Back 13

Clear and convincing

Front 14

What is the standard of proof in a defamation act brought by a private plaintiff over a matter of private concern?

Back 14

Preponderance of the evidence

Front 15

Four branches of invasion of privacy

Back 15

(1) Intrusion upon solitude or seclusion
(2) Appropriation of name or likeness
(3) Publicity given to private life and private facts
(4) Publicity placing person in a false light

Front 16

Elements of intrusion on seclusion

Back 16

(1) Intentional intrusion (physical or otherwise)
(2) Upon seclusion, solitude, or private affairs (person must have reasonable expectation of privacy)
(3) Highly offensive to a reasonable person

Front 17

Elements of appropriation of name or likeness

Back 17

(1) Appropriated by the defendant
(2) To his benefit
(3) of the plaintiff's name or likeness
(4) Without consent, and
(5) Causing actual damages

Front 18

Elements of publicity given to private life or private facts

Back 18

(1) Publicity to public (not just one person)
(2) About private life
(3) Highly offensive and not of reasonable importance to the public

Front 19

Elements of false light

Back 19

A person's name or picture makes it appear as thought the person has consented to endorse the product, with or without being paid to do so. When the impression is false in fact, the appropriation of the person's identity places the person in a false light.

Front 20

Elements of malicious prosecution

Back 20

(1) An original criminal or civil judicial proceeding
(2) With the plaintiff in the malicious prosecution action as the defendant in the original proceeding
(3) Its bona fide termination in favor of the plaintiff
(4) The absence of probable cause for such a proceeding, and
(5) Damages to the plaintiff

Front 21

Elements of abuse of process

Back 21

(1) An ulterior purpose
(2) A willful act in the use of the process that is not proper in the regular conduct of the proceeding

Front 22

What are some general defenses and privileges to intentional torts?

Back 22

Consent
Self-defense
Defense of others
Arrest and detention
Defense of property and recapture of chattels
Use of deadly force
Public necessity (taking) and private necessity (trespass)

Front 23

What are the elements of negligence?

Back 23

(1) Cause in fact
(2) Duty/risk (traditional duty; scope of the duty)
(3) Breach of the duty
(4) Injury

Front 24

Causation is an element of negligence. What are the two standards for causation (apply both on the exam)?

Back 24

(1) but-for causation
(2) substantial factor causation

Front 25

Duty is an element of negligence. What are the tests to determine duty?

Back 25

(1) How a reasonable person would behave (the objective, general standard)
(2) Other tests include: negligence per se, custom, risk/utility balancing and res ipsa loquitur

Front 26

Scope of the duty (aka scope of the risk) is a special part of the duty element of negligence. What are the factors to consider when determining the scope of the duty?

Back 26

(a) Foreseeable risk / foreseeable plaintiff
(b) Ease of association
(c) Superseding and intervening cause
(d) Policy considerations

Front 27

What are the Pitre policy factors for determining the scope of the duty (aka scope of the risk)?

Back 27

(a) the need for compensation of losses
(b) the historical development of precedents
(c) the moral aspect of the defendant's conduct
(d) the efficient administration of the law
(e) deterrence of future harmful conduct
(f) capacity to bear or distribute losses

Front 28

Actual injury is an element of negligence. How might one show this injury?

Back 28

(a) simply proving actual damage to person or property
(b) lost chance (only in med mal)
(c) fear of disease after being exposed to the disease

Front 29

Elements of a slip and fall action (a specific negligence action)

Back 29

(1) the condition presented an unreasonable risk of harm
(2) the harm was reasonably foreseeable
(3) prior to the harm, the merchant either created or had actual or constructive notice of the condition that caused the harm (constructive notice of condition existed for such a time that it would have been discovered if merchant had used reasonable care)
(4) the merchant failed to exercise reasonable care (the absence of a written or verbal uniform cleanup or safety procedure is by itself insufficient)

Front 30

What are the two branches of NIED?

Back 30

NIED when the conduct is directed at a third person
NIED when conduct is directed at the mental anguish victim

Front 31

What are the Coleman factors for determining whether an alleged wrong is medical malpractice?

Back 31

(1) Was the wrong "treatment related" or caused by a dereliction of professional skill?
(2) Does the wrong require expert medical evidence to determine breach?
(3) Did the wrong involve an assessment of the patient's condition?
(4) Was there a patient-physician relationship?
(5) Would the injury have occurred if the patient had not sought treatment? AND
(6) Is the alleged tort an intentional tort?

Front 32

What special med mal rules apply when the defendant is a qualified health care provider?

Back 32

(1) No suit can be filed until the claim has been processed by a medical review panel.
(2) The review panel issues an opinion on whether the evidence shows that the defendant failed to act with the appropriate standard of care
(3) Prescription is suspended while the claim is under consideration
(4) Liability is capped at $100K per plaintiff, with a maximum of $500K (except for future medicals)