Fall 2010
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| Intentional Torts -- Intent | With all intentional torts, there must be a voluntary act with a purpose or knowledge to a substantial certainty to cause __________ (insert tort)
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| Battery | the intentional infliction of harmful or offensive contact upon the person of another.
∆ must intend the harmful contact but not necessarily the resulting damages (liable for unforeseen consequences)
Doctrine of Transferred Intent for battery
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| Assault -- general | intentionally placing another in fear or apprehension of an imminent harmful or offensive contact
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| Assault -- requirements | Reas'bly apparent present ability bring about H/O contact V be aware + actors conduct be such that reasonable person in V's position would apprehend H/O nature/ threatened contact Not mere words, MUST be accompan'd by overt act
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| False Imprisonment | – intentional act which is substantially certain to confine, which results in actual confinement for an appreciable length of time, victim was conscious for confinement, victim did NOT consent, and no privilege existed to confine
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| IIED -- general | one who by extreme and outrageous conduct intentionally causes severe emotional distress to another is liable
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| IIED -- subpoints | Recovery likely if you take advantage of known peculiar sensibilities of another To be Extreme and Outrageous – Conduct goes beyond all possible bounds of decency & distress suffered must be such that no reasonable person could be expected to endure
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| Property Torts -- Trespass to Land -- general | unlawful physical invasion of the property of another
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| Property Torts -- Trespass to Land -- mistakes? | 1. Mistake is NOT a defense, land extends from heavens to center of earth (except for airplanes)
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| Property Torts -- Trespass to Land -- restatement of torts | 3 ways to trespass land a. Enter land or cause a third party to enter b. Remaining on land after the possessor withdraws consent c. Failing to remove something from land possessed by another
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| Property Torts -- Trespass to Chattels -- general | intentionally intermeddling with a chattel (movable) in the possession of another that damages the chattel, reduces its value, or deprives the possessor of the use for a significant period of time
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| Property Torts -- Trespass to Chattels -- Conversion -- general | an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel
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| Property Torts -- Trespass to Chattels -- Conversion -- factors | extent/duration of control, intent to assert a right, actor’s good faith, harm done, inconvenience, and expense caused
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| Property Torts -- Trespass to Chattels -- Conversion -- 7 Ways to commit conversion | 1 Acquiring possession in unauthorized manner such as theft or fraud 2 Removing the chattel with intent to control 3 Transfer possession w/o authority 4 Withhold possession from owner 5 Destroy or alter chattel 6 Improperly used 7 Asserted ownership
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| CAUSATION (Intentional Torts) | i. Must establish the intentional tort was the CAUSE-IN-FACT and LEGAL CAUSE ii. La. Law says Intentional Tortfeasor is liable for ALL consequences which DIRECTLY FLOW from actions (foreseeable or not)
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| Intentional Tort -- Defenses | 1. Consent 2. Implied Consent 3. Necessity 4. Self-Defense 5. Defense of 3rd party & prop 6. True pivileges
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| Intentional Tort -- Defenses -- Consent | burden on ∏ to negate; can be communicated verbally or by physical act
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| Intentional Tort -- Defenses -- Implied Consent -- general | Under the circumstances a reasonable person would assume the victim welcomed the otherwise harmful or offensive contact
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| Intentional Tort -- Defenses -- Implied Consent -- subpoints | 1. Implied consent in medical emergencies 2. La. Rule – 2 people may consent to battery (fight) 3. Fraud ordinarily vitiates consent 4. Children/Diminished capacity do not have the ability to consent
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| Intentional Tort -- Defenses -- Necessity | Arises from events unrelated to the behavior of plaintiff (differs from self-defense) -- 1. Natural forces or third party requires the destruction of property of some to save the lives or property of another
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| Intentional Tort -- Defenses -- Self-Defense -- general | an actual or reasonably apparent threat to the claimants safety requiring and justifying reasonable force, though force cannot be excessive, retaliation or revenge is NOT justified, not required to retreat
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| Intentional Tort -- Defenses -- Self-Defense -- subpoints | Use of dangerous weapons is not justified when attacking party is not armed Resort to dangerous weapon may be justified when the fear of danger is genuine and likely to produce similar emotions in reasonable men
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| Intentional Tort -- Defenses -- Self-Defense -- subpoints -- factors to consider | character and reputation of attacker, the belligerence, differences in size and strength, overt acts or threats of serious bodily injury, impossibility of a peaceful retreat
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| Intentional Tort -- Defenses -- Defense of 3rd party & property -- general | Use of force justified in defense of third party, must be allowed to use self-defense then okay for to protect, must reasonably believe defense of another is justified and did use reasonable force
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| Intentional Tort -- Defenses -- Defense of 3rd party & property -- subpoint | 1. If a man reasonably expects an attack from A and in the exercise of due care mistakes B for A, he is excused on the ground of self-defense and apparent necessity
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| Intentional Tort -- Defenses -- True Privileges | 1. Discipline, 2. Shopkeepers' Privilege/Privilege to Arrest, 3. Spousal Immunity, 4. Parent/Child Immunity
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| Intentional Tort -- Defenses -- True Privileges -- Discipline | parent/child, reasonable force
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| Intentional Tort -- Defenses -- True Privileges -- Shopkeepers' Privilege/Privilege to Arrest | a. La. Art 215: a peace office or merchant may use reasonable force to detain a person for questioning for a length of time not to exceed 60 min when he has reasonable cause to believe the person has committed theft
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| Intentional Tort -- Defenses -- True Privileges -- Spousal Immunity | Spouses cannot sue each other while married
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| Intentional Tort -- Defenses -- True Privileges -- Parent/Child Immunity | Non-emancipated child cannot sue parents (if divorced cannot sue custodial parent)
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| GROSS, WILLFUL, WANTON CONDUCT (GROSS NEGLIGENCE) -- general | a. Highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation when a high degree of danger is apparent
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| GROSS, WILLFUL, WANTON CONDUCT (GROSS NEGLIGENCE) -- punitive damages (wanton or reckless) | gen'ly not recov'ble in LA except 1 injuries by WoR conduct by ∆ whose intox while op'ing motor vehicle was c-i-f/ ∏’s injuries 2 injuries by WoR disregard for rights+safety/ person thru crim sex'l activity taking place V <17 3 Person Furnishing Drugs
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| Negligence -- 5 elements | c-i-f, duty, scope, breach, harm
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| Cause-in-fact | 1. But-For OR Substantial Factor – is it more probable than not that “but-for” BREACH by ∆ harm would not have occurred? 2. Substantial Factor; preferred where are multiple causes, if two forces combine and either would've caused harm -> JOINT Liability
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| Legal Cause/Scope of Dy | 1. La 431; Conduct subst'l factor in harm and no rule relieving actor from liability 2. Is ∆ responsble to ∏ who caused this harm, in this manner, @this time 3. Reason'le Foreseeab'y: liable only if owed Dy to V and Dy was breached by unreas'ble conduct
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| Duty/Risk | a. Did the ∆ violate a duty owed to this ∏ and b. Did the duty protect this ∏ from this risk, which arose in this manner
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| Damages -- Compensatory | most important, the amount designed to place the plaintiff in the position she would have been in if the tort had NOT occurred
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| Damages -- Compensatory -- Special Damages | those which must be specially/specifically pled or have a ready market value (usually determined with relative certainty, medical expenses, future earnings, ect.) i. Based on ABILITY to earn, not what actually earned, GROSS WAGES
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| Damages -- Compensatory -- General Damages | inherently speculative in nature and cannot be fixed mathematically (pain and suffering, mental anguish, loss of enjoyment of life) i. Coma victim gets not pain and suffering
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| Damages -- Property Damages | recover damages including cost of restoration or difference b/w value of property before and after harm
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| Damages -- Interest and Court Costs | La C.C. 2000, interest on a c/a arising from breach of contract generally begins to run from time due. When c/a arises from a breach of duty growing out of the contract it is “ex delicto” and interest is due from date of judicial demand
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| Damages, list | 1. Compensatory (Special + General Damages), 2. Property Damages, 3. Interest and Ct Costs, 4. Loss of Consortium, 5. Collateral Source Rule
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| Damages, Loss of Consortium, general | La C.C. 2315 provides that damages may include loss of consortium, service and society and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death
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| Damages, Loss of Consortium, seven elements | (1) love and affection, (2) society and companionship, (3) performance of material services, (4) sexual relations, (5) performance of material services, (6) support from husband, (7) aid and assistance
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| Damages, Collateral Source Rule | A Tortfeasor may not benefit, and an injured ∏ may not be reduced, b/c of monies received by the ∏ from sources independent of the tortfeasor’s procuration/contribution
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| Negligence Per Se | Ct will adopt statute as standard of care or reasonable person under the circumstances when: 1. ∏ is within the class of persons the statute was enacted to protects AND 2. The risk was within the class of risks the statute was enacted to guard against
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| Special Duties |
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| Proximate Cause Policy Factors, from Pitre v. Opelousas General | 1. Ds capacity to bear/distribute losses 2. Ds capacity to analyze risk 3. Need for deterrence/ future harmful conduct 4. Efficient administration of the law 5. Morality of d’s conduct 6. Need for compensation 7. Histor'l development of precedents
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| Proximate Cause Policy Factors: 1. Defendant’s capacity to bear or distribute losses | 1) Corporate entities can distribute losses more easily than individuals a) Liability costs treated as a cost of doing business b) Pass costs on to the consumer c) Or get malpractice insurance 2) Governmental entities a) They can raise taxes
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| Proximate Cause Policy Factors: 2. Defendants capacity to analyze the risk | 1) Knowledge/expertise available 2) The question of who has the best ability to take precautions to avoid the loss a) Least Cost Avoider = in this case, the hospital or medical professionals b) Knowledge lies in the hands of D
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| Proximate Cause Policy Factors: 3. Need for deterrence of future harmful conduct | Not necessarily deterring individuals, but more likely to deter professionals or business entities, because these entities pay more attention to liability issues
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| Proximate Cause Policy Factors: 4. Efficient administration of the law | 1. If Ct cant make predictable decisions, it leads to unpredictability 2. Court not able to eval wrongful life (whether someone is better off dead or alive), so court decides a person is always better off alive
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| Proximate Cause Policy Factors: 5. Morality of D's conduct | Degree of fault, degree of deviation from expected level of behavior -- the further the deviation, the further liability will be extended
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| Proximate Cause Policy Factors: 6. Need for compensation | 1. Personal injury damages are more needful for compensation than mere economic damages 2. Individual (personal) damages more needful than corporate entities suffering damages
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| Proximate Cause Policy Factors: 7. Historical development of precedents | 1) Related to efficient admin of law 2) If a line of case law establishes something and ruling to the opposite casts the older line in doubt, this may have a higher than desired impact 3) This one has the least importance of the policy factors
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| Res Ipsa | cant prove what happened, can prove circums which reasble minds conclude ∆ acted unreasbly or presented unreasble risk/ harm 1. Negli Est'd, ∏ didn’t contribute, ∆ in control 2. only gets you a jury in LA 3. Doesnt apply to multiple Ds
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| How can Res Ipsa prove negligence | Circumstantial Evidence can prove Negligence if: 1. Injury was of a kind which would not ordinarily occur w/o negligence 2. Conduct of ∏ or third party was eliminated as the cause 3. Negligence was within scope of ∆s duty to ∏
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| Other Standards of Causation | Joint, Market Share, and Alternative Liability
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| Joint Liability | two forces combine and either one would have caused the harm
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| Market Share Liability | ∆s produce identical or virtually identical products which carry equivalent risks of harm, therefore it is equitable to apportion liability based upon the percentage of products each ∆ contributed to the entire relevant market
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| Alternative Liability | arising from the tortuous act of two or more parties, when the ∏ proves that one of the ∆s has caused harm but cannot prove which one caused it, resulting in a shifting of the burden of proof to each ∆
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| Negligence exception, 3rd parties? | Generally courts do not impose a duty to control a third party unless there is a special relationship
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| Negligence exception, psychologist? | Psychologist, If patient has communicated threat and has the apparent intent and ability, the healthcare provider owes a duty to warn (Dr. will not be liable for breach of confidentiality)
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| Negligence exception, chaperone? | Chaperone may be liable for damage where negligent supervision contributes to teenage sex at the party
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| Negligence exception, greater foreseeability? | Greater the foreseeability and gravity of the risk of the harm, the greater the duty of care that will be imposed on the business
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| Negligence exception, spread of disease? | Duty to prevent spread of harmful communicable disease
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| Duty to Rescuers, Amateur Rescuer | A rescuer’s injury is usually within the scope of the risks of the negligent ∆’s conduct
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| Duty to Rescuers, Professional Rescuer -- may recover | May recover for an injury caused by a risk that is independent of the emergency or problem he has assumed the risk of remedy
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| Duty to Rescuers, Professional Rescuer -- recovery barred | Recovery barred from most dependent (injuries in performance of duties) risk except when: 1. Dependent risks so extraord'y that can't've intended rescuers to assume them 2. ∆'s conduct so blameworthy that tort recovery imposed for punish or deter'nce
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| Duty to Rescuers, S321 | Duty to Act when Prior Conduct is Found to be Dangerous
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| Duty to Rescuers, S322 | Duty to Aid Another Harmed by Actor’s Conduct
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| Duty to Rescuers, S324 | Duty of One Who Takes Charge of Another Who is Helpless
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| Slip and Fall, statute wording | La R.S. 9:2800.6; Merchant must use reasonable care to make walking areas reasonably safe and must be free of hazardous conditions
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| Slip and Fall, ∏ must prove elements plus ...? | 1. Condition was an unreasonable risk of harm and risk was reasonably foreseeable 2. Merchant created or had actual/constructive notice of the condition prior to the occurrence 3. Merchant failed to exercise reasonable care
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| Providers of Alcohol, immunity | 9:2800.1 Limits liability for loss connected w/sale, serving, furnishing of alcho for lawful purposes sold to persons over age; immunity extends to social hosts.
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| Providers of Alcohol, exception to 9:2800.1 | Insurer of intoxicated person is primarily liable, does not apply to anyone who causes or contributes to the consumption of alcohol by force or falsely representing beverage contains no alcohol
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| Providers of Alcohol, proximate cause? | 2. Consumption of the beverages rather than the sale, serving or furnishing of beverages is the proximate cause of any injury
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| Providers of Alcohol, minors | 9:2800.1 doesnt immunize; If bar serves alcohol to MINOR and minor causes damages to another b/c of intoxication then the court uses a traditional DUTY/RISK analysis --- no Duty on minor not to share alcohol, no liability for furnishing another minor
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| Mental Anguish (Negligent Infliction of Emotional Distress, NIED) | i. Mental Distress that accompanies prior or contemporaneous physical injury is compensable, or parasitic
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| Mental Anguish/ NIED, guidelines | 1. View accident/injury-causing event or come upon it soon after; 2. Direct V must suffer such harm that it's reasonably expected ∏ suffer serious mental anguish, 3. Emo distress was serious and reasonable; severe and debilitating, 4. Close relatship to V
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| Mental Anguish/ NIED, who may recover? | Following persons may recover for Mental Anguish (Each is entitled to recover): a. Spouse, child, grandchild, or injured person b. Father/mother c. Brothers/sisters d. Grandfather/grandmother
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| Mental Anguish/ NIED, no accompanying physical injuury? | iv. If the ∆’s conduct is merely negligent and causes only mental disturbance, without accompanying physical injury, illness or other physical consequences, the ∆ is not liable for emotional disturbance
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| Mental Anguish/ NIED, Conduct Directed at Mental Anguish Victim? | An award is proper when the conduct is directed at the mental anguish victim and the circumstances show an “especial likelihood of genuine and serious mental distress”
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| Mental Anguish/ NIED, diseases? | A. V may recover for neglig'ly inflicted fear of contracting AIDS if it's establ'd 1) HIV present 2) pathway to ∏ for infection, B. Fear of acquiring disease is compensable if any possib'y even remote of acquiring disease, C. No recovery for cancerphobia
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| Mental Anguish/ NIED, death of fetus? | Parents cannot recover mental anguish for death of fetus
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| Misrepresentation, general | i. Negligent misrepresentation which causes personal injury is compensable if person injury was foreseeable. ii. One is liable if he has superior knowledge and knows the other party is relying upon him for such knowledge
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| INTENTIONAL MISREPRESENTATION (FRAUD) | Fraud by silence, failure to speak in certain circumstances
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| Elements of Negligent Misrepresentation | 1. Existence of a legal duty on the part of the ∆ to supply correct information or to refrain from supplying incorrect information 2. Breach of that duty 3. Damages caused to the ∏ as a result of breach
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| Negligent Misrepresentation, liability for physical harm? | Misrepresentation is subject to liability for physical harm if the actor: 1. Intends his statement to induce action which involves an unreasonable risk of harm, 2. Knows that statement is false or that he has not the knowledge that he professes
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| Spoilation | The intentional destruction or negligent failure to preserve evidence
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| Negligent Hiring, Training, Supervision | An employer’s duty hiring, training & retaining confined to: 1. employee + ∏ been in places where each have right to be; 2. ∏ met employee as direct result of employment; 3. employer would receive some benefit from meeting had wrongful act not occurred
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| Defenses -- Victim Misconduct -- contributory negligence? | will bar or reduce damages provided it was a cause of the ∏’s injuries. ∏ failed to act as a reasonable person
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| Defenses -- Victim Misconduct -- comparative fault/negligence? | LA is pure comparative negligence; Determining %s of fault, trier of fact shall consider the (1) nature of the conduct of each party at fault and (2) the extent of the causal relationship b/w the conduct and damages claimed
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| La C.C. Art. 2323 Comparative Fault, 1/3 | 1. Degree or percentage of fault is assigned to all persons contributing to the injury regardless of if they are a party to the action, insolvency, ability to pay, immunity, unknown identity
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| La C.C. Art. 2323 Comparative Fault, 2/3 | 2. If injury results partly of own fault, damages recoverable shall be reduced in proportion to the degree of negligence attributable
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| La C.C. Art. 2323 Comparative Fault, 3/3 | 3. IF a person is injured partly as a result of his negligence and partly a result of an intentional tortfeasor, his claim for recovery shall NOT be reduced
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| Victim Misconduct, BAL | v. If ∏ is contributory negligent of 25% or more and is caused by a BAL concentration of .08 the ∏ may NOT recover
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| Victim Misconduct, Contribution | you may sue another ∆ for damages you were required to pay
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| Waiver | No exculpatory clauses: 1. To excuse liability for intentional harm or extreme forms of negligence (reckless), 2. no contract from grossly unequal bargaining power, 3. not when affecting public interest: public utilities, common carriers, inn keepers
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| Indemnity -- Mitigation -- Pre-Accident Conduct | Failure to follow a statute does not mitigate damages (ex. Not wearing seat belt)
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| Indemnity -- Mitigation -- Post-Accident Conduct | An accident V has a duty to exercise reasonable diligence and ordinary care to minimize damages after injury inflicted. Not extraordinary or impractical efforts, and refusal to undergo treatment that holds little promise for success will not bar recovery
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