Louisiana Torts

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Survival Action

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belongs to the decedent and provides damages for the period he survived after the injury causing events.

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survival action

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allows listed beneficiaries to recover the damages that the deceased suffered and would have been able to recover if she had lived.

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Survival Action Damages

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damages from the moment of the injury until the moment before her death and will include pain and suffering, mental anguish, and lost earnings.

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Wrongful Death

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listed beneficiary will be able to recover damages he/she suffered because of the victim's death.

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Wrongful Death Damages

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includes loss of love, affection and companionship, sorrow, grief, mental anguish, loss of services, loss of support from date of death to day of trial, loss of future support after trial, loss of consortium, funeral and medical expenses.

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wrongful death and survival actions are derivative

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meaning, at trial, decedent must prove some theory of liability as if victim were plaintiff...such as Negligence.

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Negligence

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Louisiana uses duty/risk approach to negligence. The elements of duty/risk are cause in fact, duty-risk, breach and injury.

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What are the 4 elements of Duty/Risk approach to Negligence

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1. Cause in Fact
2. Duty Risk
3. breach
4. Injury.

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Cause in fact

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is measured using either the "but for" or substantial factor test.

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Duty-Risk

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is divided into two parts:
1. Traditional duty
2. scope of the duty

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Traditional duty

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to behave as a reasonable person or entity under the circumstances... Traditional Duty defines the standard of care applicable.

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Reasonable Person Standard

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Courts will often turn to custom, statutes or regulations (negligence per se) or the doctrine of res ipsa loquitor to establish the duty.

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Hand Formula

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PL>B...Probability of the risk of loss times the actual loss is greater than the burden of making it safe.

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The second part of the duty analysis

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whether the injury was within the scope of the alleged negligence.

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foreseeable risk

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if the accident is not a foreseeable result of harm, it is arguabley not within the scope of the duty.

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Ease of association

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ease of association between duty and risk. Court found there was an ease of association between the D hospital's duty to keep rats out of the hospital rooms and the risk they they would bite the P husbands nose.

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comparative fault doctrine

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any assignment of fault to the plaintiff will not bar her recovery but merely reduce it by the percentage of her attributed liability

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Pursuant to La civil code

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the jury is instructed to assign a percentage of fault to all parties, and the defendant is responsible only for its allocated share

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Factors used to apportion fault

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each actor's awareness of the danger, the risk created by each party, the utility of each party's conduct, the relative capacity of each party and the existence of any extenuating circumstances.

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vicarious liability

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requires the 1. existence of an employment relationship, 2. that is actively within the course and scope of the employment relationship, and 3. the employee has engaged in tortious activity.

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vicarious liability

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an employer can also be held vicariously liable if it can be show that the employer was negligent in hiring, training or supervising and employee.

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Negligent infliction of emotional distress

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such damages are allowed when the victim suffers such harm that one can reasonably expect a person in plaintiffs position to suffer serious mental anguish or emotional distress from the experience

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Negligent infliction of emotional distress

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plaintiff's distress is
1. severe
2. debilitating
3. and foreseeable

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vicarious liability

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remember to look at whether actor was an employee or independent contractor. the key to determining whether an agent is an IC is whether the principal has the right to exercise control.
1. Valid contract between the parties
2. contractor chooses means for accomplishing his tasks; and
3. specific piece work for a price.

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vicariously liable

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employer may be viacarously liable for any negligence attributed to its employee

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Louisiana Products Liability Act

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provides the exclusive theories of liability agaisnt a manufacturer for personal injuries caused by products.

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LPLA elements

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1.D is a manufacturer of product
2. the product is unreasonably dangerous in one of four ways.
3. the unreasonably dangerous condition must proximately cause the injury.
4. the damage must arise from a reasonably anticipated use of the product, and
5. the characteristic that renders the product unreasonably dangerous must have existed at the time the product left manufacturer's control for construction or composition claims or
existed at the time the product left the manufacturer's control or as a result of a reasonably anticipated alteration or modification.

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A product is unreasonably dangerous if:

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it is unreasonably dangerous in
1. construction or composition (manufacturing defect)
2. in design (design defect)
3. it lacks an adequate warning (design warning defect)
4. it does not conform to the express warranty.

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Manufacturing defect

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1. product deviated in a material way from company specifications or performance standards for the wheel or identical wheels made by it.

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Design Defect

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wheel was designed to be made with a metal or alloy insufficiently strong for the wheel's intended use and, as such, suffered from a design defect.
The court would compare alternate designs and balance the additional safety benefits of those alternative designs against the reduced utility of the product.

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State of the art defense

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relieves the defendant of liability where the design choice was consistent with the state of the art of the product involved existing at the time the choice was made.

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Legal Cause

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(proximate cause) recently added to the duty risk factors stating that this concept may be appropriate when there are novel or complex liability issues involved or to assist in determining how far damages should extend. Legal cause uses concepts of foreseeability and other concepts of limitation and, therefore, in certain cases may be of greater assistance to the trier of fact than abstract notions of duty.

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Manufacturer's defect

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a product is unreasonably dangerous in construction or composition if it deviated in a material way from the manufacturer's specifications or performance standards for the product or identical products made by the manufacturer

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Design Defect

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A product is unreasonably dangerous in design if there existed an alternative design capable of preventing the harm and the likelihood and gravity of the harm outweighs the burden of adopting an alternative design.

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Assault

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Thug committed an assault upon john by waving the pistol, which was an intentional act by the Thug causing Jonn to be in reasonable apprehension of receiving a battery.

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Intentional Infliction of Emotional Distress

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Attempting to rob someone at gunpoint plainly constitutes an intentional act consisting of outrageous and atrocious conduct which would cause severe damage to the victim's emotional security.

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Louisiana Worker's Compensation Act

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a claim may be exclusivley in workers compensation if the harm done was the result of a personal injury, caused by an accident, arising out of victim's employment and in the course of employment.