Definitions, Analysis, More Lists
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| A conversion is committed whenever: P = possession C = chattel | 1. P acquired in unauthorized manner
2. C removed from 1 place to another w/intent to exercise control over it
3. P transferred w/o authority
4. P withheld from owner
5. C is altered or destroyed
6. C is used improperly
7. ownership is asserted over
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| Defenses to intentional torts | 1. consent
2. implied consent
3. duration of consent
4. necessity
5. self-defense
6. defense of third parties
7. true pivileges
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| requirements for consent | 1. only applies to intentional torts
2. capacity to consent
3. communication of consent (can be implied)
4. consent can be terminated after a reasonable period of time
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| what are the true privileges? | 1. discipline
2. shopkeeper's privilege and privilege to arrest
3. spousal immunity
4. parent-child immunity
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| implied consent | 1. consent does not have to take any specific form
2. must only have sufficient evidence that consent was valid
3. consent is NOT a contract--can withdraw at any time w/o a breach
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| duration of consent | 1. terminates after a reasonable passage of time
2. terminates even if there is no affirmative withdrawal of the consent
3. duress vitiates consent
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| "failure of consent" | when consent is vitiated bc person would not have given consent if they knew of a risk that the other person had a duty to inform of
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| summary of self-defense | 1. reasonably-perceived threat (certainty of loss of limb)
2. respond with reasonably necessary force (not necessarily equal; greater force if necessary)
3. duty to retreat
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| statute: shopkeeper's privilege | 215
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| 215 elements | limits shopkeeper's privilege:
1. cannot arrest
2. cannot detain without questioning
3. cannot detain for more than 60 minutes, unless for reasonable cause
4. force used to detain must be reasonable
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| negligence elements, common law | 1. duty
2. breach
3. causation
a. actual (factual question)
b. proximate (policy question)
4. injury
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| emergency doctrine | if there's an emergency, a reasonable person may choose to act in a variety of ways
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| "intent" | purpose or knowledge to a substantial certainty
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| "reasonable avenue of escape" doctrine | no reasonable avenue, no FI
-- crawling through a hole or jumping out window not reasonable avenue
-- checking to see if door is unlocked, is reasonable
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| standard for children | standard is another child of like age and development. exception, when child is engaged in adult activity, which is a high-risk one (e.g. driving a car)
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| standard for insane persons | insane people are held to the standard of reasonably prudent SANE persons
unless with a sudden episode of insanity (e.g. schizo), held to a standard of reasonably prudent INSANE person
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| custom, s vs. s | Sword -- custom used by P to show that since D didn't adhere to custom, D was negligent (strong argument)
Shield -- custom used by D to show that custom is to NOT take certain safety precaution (weak)
--custom is relevant, but not dispositive
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| hand formula | b < LP
burden
loss/injury
probability of accident/loss
LP=expected loss
if B < LP should take precaution
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| negligence per se | weight and admissibility
admissibility:
class of persons -- statute must be designed to protect the person injured by negli
class of risk -- statute must be designed to protect against risk of injury neglected by D
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| res ipsa loquitur, general | 1. the thing speaks for itself
2. if proven, get a jury instrution
3. allows an inference of negligence from fact of injury
4. trout in the milk
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| res ipsa loquitur, all 3 criteria N = negligence | 1. injury is kind which ordinarily doesn't occur w/o N
2. evidence suff'ly eliminates other more probable causes/ injury, such as conduct/ P or 3rd party
3. N of D must fall w/in scope/ duty to P (e.g. D had exclusive control of thing that caused injury
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| substantial factor test | or material element; designed for cases of 2 Ds where parties are each 50% of cause and trying to get over the hurdle, but test has expanded to 2+ parties, also
summers v. tice -- 2 shoot one in eye, don't know which bullet
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| market share liability | 1. from DES
2. each company determines % share of market, which becomes their share of risk (no singular risk w/asbestos -- not fungible -- diff %s of asbestos)
3. typically w/signature disease (DES and asbestos)
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| alternative liability | when harm could've come from one of two factors (e.g. summers v. tice), but only came from one, the burden shifts to each D to prove he didn't cause the harm (too many asbestos manufacturers)
few courts apply this
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| three different legal cause/prox cause broad principles | 1. polemis approach -- actual cause is direct cause (too much liability--mother goose)
2. palsgraf approach -- foreseeability of P
3. wagon mound approach -- foreseeability of risk
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| foreseeability of P | 1. does the D have a duty to THIS P
2. there is no duty owed in the absence of foreseeable particular injury to a particular P
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| intervening/superseding from Palsgraf | 1. the more foreseeable the intervening cause, the more likely to be superseding
2. when the intervening cause is faulty or intentional, it is more likely to be superseding
3. the more odd the intervention, the more likely to be superseding
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| scope of duty analysis for test | 1. mention ease of association, then start with foreseeability (without hindsight)
a. class of persons
b. class of risk
2. address intervening (and possibly superseding) causes
3. policy factors
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| ease of association | invites an analysis of how closely related the negligence and injury are
if an injury can be easily associated with the negligent act, it's within the scope of prox cause
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| wrongful birth | parents' claim that they would have avoided/terminated the pregnancy because of the defect
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| wrongful life | child's suit that if the parents had terminated the pregnancy, it would not have had the defect -- i'd been better off having not been born -- not recognized
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| wrongful pregnancy | parents' claim with a healthy child, just wanting to not get pregnant. policy decision: better off having a child than not
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| professional rescuer | pro rescuers may not recover for ordinary risks encountered in their jobs (gann v. matthews). dependent v. independent risks -- dependent arising from c&s of job; independent, either so extraordinary or so blameworthy
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| LaRS 9:2800.6 | slip&fall stat:
1. conditions presented unreasonable risk of harm to claimant and ROH was reasonably foreseeable
2. merchant either created or had actual/constructive notice of condition, prior to occurrence,
3. merchant failed to exercise reasonable c
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| 2800.1 | A. consumption, not sale, is the prox cause; server, even if negligent, could not be liable for drinking
B. immunity for licensed servers
C. immunity for social hosts, similar to B
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| Clomon exception | allowed to recover despite being a participant, and thus don't need special relationship (driver sues for distress caused by seeing himself run over child)
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| spoilation | destruction of property of other evidence
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| subsequent injury | 1. original N actor is liable for subsequent medical injury
2. intervening GROSS medical N may be superseding
3. different from 2nd accident injury: original injury is aggravated by another N act, original actor only responsible for damages he caused
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| who is responsible for negligent act of child if parents have shared custody of child? | the parent they're with at the time, not who they're currently domiciled with
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| word to wise | don't give Church %s with allocation questions
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| Assumption of the risk, types | 1. Express (valid waiver cases)
2. Implied primary (obvious to all, well known, inherent risk; no duty/breach; sporting events)
3. Implied secondary (not obvious)
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| when are waivers null, as against public policy (PP) | 1. can't waive reckless behavior
2. can't waive unbalance bargaining positions (adhesion, boilerplates)
3. exculpatory agreements in transactions affecting public interest (utilities)
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| modified hand formula | B - BK < LP
BK = burden of knowledge (so -inspection)
B = annual inspection + tree removal
1. assume D knew of tree's condition; didn't matter if looked harmless
2. loescher v. parr
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| summary of negligence, SL, AL | 1. negligence: unreasonable risk taking account of knowledge
2. SL: unreasonable risk; knowledge irrelevant; imputed knowledge
3. AL: liability w/o fault: imputed fault
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| turner standard | parents responsible when child's action would have been tort, except for infirmity (young age); not actually how we do things
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| strict liability for curators of insane persons? | no, straightforward negligence; 2319
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| key to 2321 | ownership, for purpose of feeding strays and vets
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| absolute liability | 1. inherently dangerous activity with both hi benefit + hi expected loss (ultraH)
2. only do activity when necessary
3. must be activity that even when conducted w/ greatest prudence and care, can still cause harm
5. if care eliminates risk, not ultraH
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| ultra-hazardous activities for AL | blasting, pile driving, oyster beds
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| insulation by isolation | far enough away that nobody's gonna touch it, like power lines
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| ultrahazardous balancing | balance occurs at activity level, not precaution level
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| "coming to the nuisance" defense | knew or should have known about the nuisance when moved there
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| going to and coming from rule | if going to or coming from work, generally, this is NOT within C
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| a deviation from the agreed-upon path | frolic and detour
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| informed consent | 1. doctor has duty to inform about options, material risks
2. risk that a reasonable patient would consider important in decision matrix
3. not whether would've made a difference in opinion
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| architect defense | state-of-the-art defense, applying best standards known at time (strong)
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| redhibition | undoes contract, like annulment with marriage; still exists post-LPLA
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| manufacturer example | Sears: (still considered a manufacturer)
1. hold products as own
2. set standards for design, etc.
3. have someone else make it
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| puffing | "safest car on the road"; not considered "express warranty"
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| construction or composition, example | exploding coke bottle case; SL; failure of product to live up to manufacturer's own specifications
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| design defect, example | ford pinto, jetski; what alternative designs existed?; state of art defense
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| breach of warranty, explanation | 1. more like a contract case (redhibition)
2. requires a relatively clear statement that a product is safe or has a certain function
3. failure to live up to warranty is breach
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| reasonably anticipated use | is it reasonable that someone would put the product to the particular use; includes foresight of what stupid people will do
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| failure to warn, explanation | only have to warn where benefit of warning outweighs the cost and when the warning would reduce the risk, i.e. hand formula
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| unreasonable per se | lawn darts; maybe very useful, but, on balance, product (i.e. Halphen case -- asbestos) should've never been used; should've never been put on market PERIOD
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| alteration/modification, with LPLA | 1. example, safety devices on power equipment: people taking them off
2. yes, reasonably anticipated
3. taking off a safety measure bc of OVERWHELMING evidence that consumer takes it off anyway -- not design defect
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| adequate warning | can alter calculation of hand formula on design defect; cheap price of precaution in hand formula
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| survival | 1. action of decedent that they would have had if living
2. if die immediately, no survival damages
3. if injured and survived 6mos, survival damages would the damages sustained during 6mos before dying
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| beneficiaries of survival action | 1. surviving spouse and children
2. father and mother
3. bros and sisters
4. grandfathers and grandmothers
5. succession representative (S, not WD)
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| diff between WD & S | survival -- action of decedent if he had survived
wrongful death -- action of beneficiaries
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| prescriptive period, WD & S | WD: 1 yr from death
survival: 1 yr from injury, may expire during lifetime
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| discovery doctrine | 1. most important branch of contra non valentum
2. prescription doesn't run against a party who is unable to act
3. when does prescriptive period begin? when you knew or should've known
4. doesn't commence bf all elements present to bring suit
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| recreational use immunity | 1. only for undeveloped property
2. when you open up land for public recreation for FREE
3. when you start charging fees, gray area
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| 3 ways to be employer for WC | 1. payroll
2. borrowing
3. statutory
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