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(e.g. pg 130-131)? Basics • Tort = an action by one person that harms another – not a contract o Civil law – enforced by party who claims his rights have been violated o 1) If there is a statute that determines relief, then tort law is not needed. o 2) If the parties had agreed in advance how the loss should be borne, then there is a contract o 3) If the parties do have a contract, but if the parties have not agreed or if the law does not permit them to (contra bones mores – cannot contract away the tort imposed duty to avoid intentionally or willfully harming another) then contract law is inapplicable and tort law is reached o General Risk: Six types of conduct which tort law generally condemns = pg. 4 If conduct does not fall under these, generally tort law dictates that the loss should stay where it is, i.e., with victim o Goals of tort law: Deterrence (provides substitutive vengeance to victim through damage awards) Compensating the victim Spread the accident losses Societal goals – e.g. satisfaction of community’s sense of justice (thus jury system) – should be measured as the justice of a disinterested man o Specific Risk: “but for” – inquiry into whether the actor’s conduct was a “substantial factor” in bringing about the victim’s harm Demurrer – Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted (in LA exception of no cause of action) Summary Judgment – filed if side does not feel that there is sufficient evidence to support a fact essential to claim. Case dismissed and then treated as res judicata Difference between 12(b)(6) claim and summary judgment: o 12(b)(6) -- they look solely at the complaint o Summary judgment – based upon fairly limited presentation of evidence. A lot of time this happens in paperwork before the trial. Evidence is not sufficient to meet the elements. Key difference between contract and tort o Contract: Has promise, intent – thus exchange, consideration in contract Individuals involved must know each other Plan for the future -- agreement
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May not have knowledge of one another = accident Not a crime – it is a private wrong Turn to legislature, sometimes from statute Action where the law feels that a remedy is appropriate Can be an accident lie a car accident or not – asbestos for example Black letter rules don’t apply as well Procedural posture is extremely important Can be intentional or negligent • Intentional: o Purpose or knowledge with substantial certainty o Focuses on subjective intention of action o Focus on the defendant • Negligent: o Objective standard– How would a reasonable person react? o Not particular to thought of specific bus driver involved for example o Focuses on third party Reasonableness – varies with facts and circumstances How do we tell if when a child gets hurt, if the bus driver is liable? In addition to intentional and negligent, we have strict or absolute liability o Strict = focuses on knowledge of the actor o Absolute = nature of action is inherently dangerous Products Liability – sometimes even when there are contracts, torts can apply o E.g. when you buy a car Risk o There is always some level of acceptable risk o Cannot eliminate all risks, negligence is about determining which risks are acceptable Element: Those things a plaintiff must prove to establish existence of a tort. o Plaintiff has to prove all of them. o Important because that is how you define a tort o List elements and then determine whether facts meet those elements o Starting point of nearly every case Motion to dismiss – for failure to state a claim upon which relief may be granted. o Typically occurs very early and often. o May be one of the first things filed. o Means that you are making a motion to dismiss because they do not meet the elements i.e. they must claim the elements in the pleading…not just have facts to prove them What is difference between privilege and element?
o Privilege – you have a right to do Who has to prove the existence of a privilege? • A privilege is a defense, thus burden of proof on defendant o Element Burden of proof on plaintiff o Unclear whether lack of consent is an element or presence of consent is a privilege. Important in determining the burden of proof Battery, Assault, and False Imprisonment are all dignitary offenses.
A. Anatomy of Tort Litigation – A Primer for Beginners a. see book if need basis of trial technicalities CHAPTER TWO – INTENTIONAL TORTS ~Intentional torts do extend liability past what would be covered under negligence. ~Also may have a different statute of limitations (prescriptive period in LA) – depends on court. ~Most tort lawsuits in the U.S. are based on negligence theory of recovery rather than intentional tort theory (may reasons why plaintiff would choose intentional though: workers compensation, application of comparative fault principles or intentional tort defenses, also statute of limitations may differ, etc.) A. Intent a. Definition: Purpose or knowledge to a substantial certainty b. Can have substantial certainty but not have a purpose. i. E.g. blindfolded with a pistol, spin around and fire weapon. Battery because you have a substantial certainty that you will hit someone/something. Was there a purpose? Not necessarily. ii. Need to draw a line between substantial certainty and negligence (later in class) c. Garratt v. Dailey (example of indirect contact) i. Garratt (woman) is suing Brian Dailey (5 year old) ii. Restatement regarding liability for battery is determined by the following: 1. act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and 2. the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and 3. the contact is not otherwise privileged iii. No question in this case of consent or privilege, thus question of intent iv. Why focus on intent and not negligence? 1. If negligence -- Reasonable person of like age and development (5 years) is tricky here 2. If intent -- Better for plaintiff to focus on Brian as an individual v. Intent in this case
is a battery. Betts (e. because this type of contact is not normally harmful or offensive iv. Need to determine whether Brian had substantial certainty of contact xii. 3. 2. Caudle and Betts were at a company Christmas party horsing around with charged condensers. Purpose or knowledge to a substantial certainty that Naomi would attempt to sit down where the chair had been / would fall 2.g. . Was it harmful or offensive? Yes ix. Do need to intend to contact (that normally is harmful or offensive by some third party standard) a. This court reversed (found Betts guilty of battery) iii. Tender years doctrine states that children under a certain age cannot have negligence (general terms). tapping someone on the shoulder) are not considered harmful or offensive b. Does it matter that she broke her hip in order to prove the tort? No – harm is not required x. was it battery? No. For vicarious liability to attach to the action. Workers Compensation 1. If you tap someone on the shoulder and their arms falls off…but you didn’t know their arm was already injured. District court dismissed and court of appeal affirmed. Where is contact? When she hits the ground viii.1. Why is hurt not required? Interest is to be free from unwanted contact (embarrassing/offensive) xi. ii. Intent instead to contact in a harmful or offensive manner 2. Holding: remanded for clarification. What is the tort in this case? 1. it has to be done within the scope of the employment relationship. Caudle v.g. 1. of how harm does not need to be intended to constitute battery) i. Did Betts intend to cause injury? No 1. You do not need to intend to do harm to commit an intentional tort (buy it will apply) vi. 20 A harmful or offensive contact with a person. resulting from an act intended to cause the plaintiff to suffer such a contact. Battery vii. Exclusive remedy for workers on the job except for when it is an intentional act – allows worker out of the exclusivity provision of workers compensation 3. pg. Trial court applied the wrong standard. 21 Do not need to intend to do harm. A system where workers can recover in an administrative scheme can recover certain damages 2. Intent is person specific (specific terms) d. Betts shocked Caudle in the back of the neck. pg. Consent is presumed in some cases (e.
Extends liability of intentional torts for unintended consequences. 1. Is there a limit to the scope of liability? Yes 2. ii.4. There is nothing that is physically transferred. Davis fires a gun at a man named Tipton and hits an innocent bystander (White). but in most other cases. d. Why is this an intentional tort? 1. However limit is gray area. Battery a. This doctrine is not a rule – it is used by courts to extend liability for intentional torts (better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim) iv. One who intends a battery is liable for the battery when he unexpectedly hits a stranger instead of the intended victim b. Scope of liability extends further for intentional torts as opposed to negligence. Holding: Battery was committed and plaintiff was entitled to recovery. f. Issue: Can intent be established when a third party is injured instead of the intended party? Yes iii. Case shows the significance of claiming an intentional tort – the judgment debt cannot be extinguished in bankruptcy B. vi. An intentional tort that protects a person’s interest in being free from physical contact with his or her person b. h. Reversed and remanded e. Caudle argues that he should be able to recover in court because the act is intentional a. the owner would not be liable because the action was not done within the scope of employment v. Davis v. White i. e. g. Betts is owner in this case. Can transfer the intent. Transfer from one tort to another and/or from one person to another c. but company can only be held liable if the action was done during the scope of employment relationship (however. but be careful in extending it too far. Limits to unintended consequences 1. Doctrine of Transferred Intent a. You have requisite intent and this doctrine extends liability to unforeseeable events. If intentional – can sue both company and individual. no double damages will be awarded) 5. Way of transferring liability. Plaintiff must prove a voluntary act (that causes a harmful or offensive contact with the plaintiff) and intent on part of defendant .
case precedent. Leichtman v. Intent? Yes. WLW Jacor Communications. an offensive contact with the person of the other directly or indirectly results iii. biological argument. Intent of harm or offensive conduct iii. a. Offensive? Definitely offensive behavior. Doesn’t have to be harmful or offensive. Holding: Reversed and Remanded v. i. Leichtman (antismoking advocate) was guest host on radio show and claimed that defendant employee Furman lit a cigar and repeatedly blew smoke into Leichtman’s face. Would argue this by starting big and working way down to particulate matter. shooting. ii. Elements of a battery i. 25 – State Supreme court ruled that particulate matter is sufficient to form contact for a battery c. e.g. What is contact here? 1. He acts intending to cause a harmful or offensive contact with the person of the other and 2. Contact does not have to be person to person e. Need intent in addition to actual contact and actual harm or offense f. It is up to the courts to make the physical impact argument. throwing something 2. It was obvious that there was intent to contact in a harmful or offensive way (they knew he was an anti-smoking advocate) . What about stench? Sound? i. Case was reversed – which means that it was not dismissed. just one or the other. Unconsented/unprivileged (??) – some jurisdictions this is treated as a defense instead ii. Harm or offense 1. Need intent to contact in some offensive/harmful way when measured by some objective measure (reasonable person’s standard). Pg. a harmful contact with the person of the other directly or indirectly results or 3. Inc. Not necessary to prove actual harm d. Ultimate goal = protect person 3.c. but does not mean that there was necessarily battery – it at least gets past the motion to dismiss phase. Water does not have particulates and works. i. For this particulate matter case. Contact iv. we can’t say for sure that there wasn’t a battery vi. b. however this court felt that a battery had been committed iv. Where do we draw the line? No required that particulate matter be established. Restatement Second states that an individual is subject to liability to another for battery if: 1. How doe we know that particulate matter is enough? a. vii.
Appellate court dismissed the battery claim and this court AFFIRMS (no evidence of actual exposure to the virus iii. Thus vicarious liability. May have to be contaminated body fluid…pathway to contamination ix. Battery under restatement second: 1. or an imminent apprehension of such a contact and 2. Negligence: if he would have known that the body had AIDS. Can employer be held liable? Yes 1. What is the theory you would use to argue that he should have taken precautions? Consent to contact x. let along contaminated bodily fluids 2. Contact with contaminated body may not be sufficient. he would have handled the body / procedures differently viii.1. Battery: have to have had contact with contaminated bodily fluids vii. This case is not a battery – forced into this context because of statute of limitations C. Bluefield Community Hospital i. Gregory was never explicitly notified of the contamination. Court was not certain as to his liability and thus could not dismiss him yet. but since he missed the statute of limitation – he was left with only battery ii. This case should fall under negligence (however negligence has to have actual harm. d/b/a The Kimball Funeral Home v. Funeral Services by Gregory. iv. because they just forgot (negligence) 2. Intent? Purpose or substantial certainty? 1. Inc. This case is based on battery because the statute of limitations ran out on fear of emotional distress v. Gregory embalmed a body from Bluefield Hospital that had AIDS. not just the fear of) xi. g. No. We don’t know what type of contact occurred. Two years later he filed a lawsuit under several theories. Can be either intentional or negligent. Summary judgment is a preliminary motion. What is the best theory that the plaintiff has in this case? Fear of emotional distress. He could have been or he could not have been liable. Blowing smoke however is not offensive in all cases viii. a harmful contact with the person of the other directly or indirectly results vi. Not sufficient support for contact – do not know whether there was contact with bodily fluids. This case is not well-suited for battery – contact is an issue 1. Did not grant summary judgment for Cunningham either because they could not say for sure that he wasn’t liable. Action was within the scope of employment. ix. Assault .. acts intending to cause a harmful or offensive contact with the person of the other or a third person.
You can also have intent to cause apprehension (e. Words alone do not constitute an assault (must be combined with other circumstances or acts) d. An actor is subject to liability to another for assault if a. ii. shot at someone. if I thought the gun was unloaded. Intent to batter will transfer to the intent to assault and vice versa.a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and. Difference between battery and assault: i. If you know that it was coming and were hit. but it was actually loaded – I can get both battery and assault because the intent to assault will transfer to battery 2. Battery involves contact ii. Assault must be imminent (cannot be for a future event) g. then you have assault f. Puryear (case dealing with IIED) i. beat him into semi consciousness. and threatened Dickens. Defn: protects a person’s interest in being free from apprehension of harmful or offensive contacts with his or her person b. If you didn’t know the contact was coming. Puryear lured Dickens into rural area. He was then set free ii. Restatement of Torts (Second) – someone is liable or assault when: 1. e. pack or they would kill him.a. would be negligent or reckless if the risk threatened bodily harm. Elements are same except for the result e.g. then you have battery and not assault iii. Statute of limitations had expired for assault and battery. . An action which is not done with the intention stated in Subsection (1. than you have battery and assault ii. trespass to land. Assault is freedom from apprehension of an imminent battery iii. Actually. He filed a claim for IIED iii. he acts intending to cause a harmful or offensive contact with the person of the other or a third person. Dickens v.g. pull his phone off the wall. false imprisonment. therefore. They then told him to go home. walk in with an unloaded gun) iv. or an imminent apprehension of such a contact. the intent will transfer among the five trespatory torts (battery. Deals with a specific mental interest rather than a generalized fear like IIED c. What is needed for an assault? i. attached him to a farm implement. and trespass to chattel (Church doesn’t really agree) – you cannot transfer to or from intentional infliction of emotional distress iii. assault. but were hit. 1. Battery and assault can occur together or separate i. and b. If you saw it coming. the other is thereby put in such imminent apprehension 2. but ducked before you were hit.
Issue is whether there was intentional infliction of emotional distress (IIED) or only assault and battery? Are these mutually exclusive? Assault (imminent – no significant delay) and IIED (future) are mutually exclusive (one or the other) vi. Why do you suppose the statute of limitations is different? 1. thus summary judgment was an error D. v. Distinction between assault and IIED – need to distinguish between statute of limitations. False imprisonment = dragging him and attaching him to farm implement 4. Might take a little longer for people to realize and file. Some actions in this case did fall under assault and battery (cutting of hair. A motion for summary judgment was granted for defendants because it was viewed by the trial court that this case was grounded in battery and assault and that stat. IIED = at the end of the encounter. Words alone cannot constitute assault (have to think battery is coming) x. Intent to confine or transfer from assault and/or battery intent . of limit. Assault = most likely 3. Elements of False Imprisonment – mentioned in class: i. More extreme type of behavior – often involves repeated behavior viii. This court agrees with plaintiff. however threat for future death was not imminent…it was a future threat (thus IIED) xi.). Battery = definitely 2. what types of torts? 1. However plaintiff feels that it falls under IIED. they threatened to kill him if he didn’t do as they ordered when he got home a. Another classic trespatory tort c. IIED refers to future threat vii. etc. False Imprisonment a. Not imminent enough to make an assault (imminence depends upon the facts of the case) ix. Assault refers to imminent threat 2.iv. 1. 2. Holding: Remanded – there was IIED. Many times authority related d. beating. Assault elements: 1. Reasonable apprehension of attempt to battery (reasonable on part of plaintiff) 3. Protects a person’s interest in having one’s body free from restraint or confinement b. had expired. Intent to assault or intent to battery 2. Privilege is a factor in these cases e. The apprehension (not same as fear) clause isn’t imminent: it is a future threat b. When they grabbed this guy and attached him to the farm implement.
but someone is behaving like a jackass i. a. Elements are standard: i.ii. What about if Janitor locks one door (w/ intent) and leaves the other open. Focus on intention of police officers. Parvi v. may arise from abuse of a position of authority (e. Is this false imprisonment? Probably not because you have a separate door that you can see – reasonable avenue of escape iv. Some courts say that physical force is not always needed – can be threats. Privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question v. Extreme/severe emotional distress (harm needed here) iii. Plaintiff did not consent to the confinement and iv. Jurisdiction of taking them to location b. Should have done something to secure reasonable safety otherwise privilege could collapse c. In this case a new trial was ordered – court reversed order dismissing the plaintiff false imprisonment – privilege of police needs to be further analyzed E.g. Confinement was not otherwise privileged (often in false arrest cases) g. workplace – usually must be repeated behavior) ii. Intentional Infliction of Emotional Distress a. Actual confinement iii. Causal relationship between the behavior and the distress . Consciousness of confinement – plaintiff (debatable) f. Elements are heightened as well as burden of proof on plaintiff – cannot just be ticked off b. suffers harm as a result of it) iii. Where does the false imprisonment occur here? 1. Defendant intended to confine him ii. “fill-in” tort: not a classic tort. Need intent for false imprisonment also a conscious awareness on part of victim (he doesn’t agree with this) iii. Privilege could never have existed (if cops had intent from beginning to drop two men off in unsafe location??). You don’t realize that the one door is open and have a panic attack. Plaintiff was conscious of confinement (or if not aware of it. duress of goods h. City of Kingston i. Intent to create distress (purpose or substantial certainty) iv. Elements of false imprisonment in book: i. or could have ended when they dropped them off at a non-safe place – this is not a classic case of false imprisonment (Church says) ii. Extreme or outrageous conduct (no reasonable person would be expected to tolerate it) 1.
Protects the possessory interest in real property ii. Extreme and Outrageous means to be out of the ordinary f. the elements are i. Boss not found liable. No intent to inflict distress of a severe nature (purpose or substantial certainty) vi. Result element = entry onto the land iii. Knowledge of actor that other person would be particularly susceptible to emotional distress does matter – if there is no such knowledge than conduct is analyzed as to how it would effect a person of ordinary sensibilities F. as each is slightly different) c.c. Defendants found liable. and Trespass to Chattels a. Monsanto Company i. Conversion. Nickerson v. Intentional torts that protect property interests b. 1. Woman had panic attack after boss had reprimanded her and a few other employees for not following instructions – he used profane language ii. cases of repetition (sexual harassment). For each of these three. Just need intent to create distress 1. Probably not because addressing the group…unless he knew that White was sensitive to said behavior 2. Need to know information about the individual so that it can be understood just how likely it is for tort to occur iii. Woman had been in insane asylum before (causal relationship between behavior and distress. Background is important v. Act ii. Limit this area because we are concerned about false claims: view is that everyone is expected to put up with some tyrades e. g. Question is whether this is IIED so that woman can collect outside of worker’s compensation iii. Result (see below. Trespass to Land i. Hodges i. Examples: Telling someone that somebody is dead when they are not. Intent to accomplish the result iii. White v. Was there purpose or substantial certainty to cause distress? 1. Conduct was not extreme or outrageous to an ordinary person 2. Evil intent or that you intend that they suffer injury is not necessary vii. playing games with dead bodies. they knew that she had this condition and thus had substantial certainty that distress would be caused) ii. Property Torts: Trespass to Land. Not considered extreme or outrageous conduct by the courts because it was addressed at a group and not just White iv. some public utilities incidents (expected to live up to a higher standard) d. Ways trespass can occur: .
bullet. interference with use or ownership iv. Sutherland 1. Property extends above and below reasonably – restatement on page 51 extended tort of trespass a. Entering land in possession of another or causing third party or thing to enter the land 2. Trespass to Chattels Result element= interference (intermeddling) with possession of the property vi. Herrin v. Elements of both: 1. defendant’s good faith . failing to remove something from land possessed by another that one is under a duty to remove a. Remedy for conversion: recovery of the full value of the property that has been destroyed or stolen viii. Need some sort of entrance – even if you don’t physically enter (e. Whether it is conversion or trespass to chattel is a measure of degree: how substantially did the defendant interfere with plaintiff’s possessory interest vii. As with most other intentional torts.) 1. damages must be proven ix. Protect the possessory interest in personal property (chattels) iii. etc. Doesn’t require damage or interference or anything else (unless it is air travel) d. intent to interfere or to take (even in mistake) 2. Conversion and Trespass to Chattels i. then you have intent vi. is it trespass to land? 2. Extent and duration of control 2. Defendant’s intent to claim a right to the property 3.g. If bullet doesn’t land on the property and just wizzes by. Intent to enter property period…doesn’t matter if you accidentally stumble into the wrong apartment…because you had intent to enter – it is still trespass 2. Factors to determine whether substantial enough to be conversion: 1. water. Conversion Result element= exercise of dominion and control over the personal property v. Technically separate torts – yet don’t really differentiate ii. no requirement to prove damages – they are presumed vii. Lumber cases where entry to remove timber where there is no permission/consent iv. Unlike most intentional torts – in trespass to chattels.1. Need to establish intent 1. Water case = if you have purpose or substantial certainty that water will enter the land. LA draws distinction between good faith and bad faith trespass – for good faith you are responsible only for damage done v. remaining on land after the possessor withdraws consent 3.
However if it is a seeing eye dog and you kick it…it could be a battery because dog is extension. xv. xii. Harm done 5. fault is needed. quality. Can’t assault an animal. Conversion when any one of these is satisfied (in LA??. Expense and inconvenience caused If interference is substantial enough to be a conversion. etc. Chattel is moved from one place to another with intent to exercise control over it c.. Where is intermeddling? Definite cost to compuserve (slower harddrive) 5. Held that there was trespass to chattel Dual Drilling Company v. then it is intermeddling and is considered trespass to chattel 1. the defendant is said to have “exercised dominion and control” over the property. Maybe assault if I see it coming. xiv. Possession of chattel is transferred without authority d. 1. Intent – purpose or substantial certainty that entrance will occur 4. Possession is withheld from the owner or possessor e. Cyber Promotions 1. Chattel is altered or destroyed f. but hit me…what is this? Battery (transfer from trespass to chattel to battery). .conversion and trespass to chattel are very close – doesn’t matter whether interference with ownership or with enjoyment Mistake people make: You throw a rock trying to hit my dog. but then adopts common law conversion anyway. Ownership is asserted over the chattel 4. yet still conversion 3. Compuserve bringing suit for trespass to chattel (doesn’t really fit under conversion) 2. 1. or value. xi. Chattel is used improperly g. There must be damage shown for trespass to chattels – impaired condition. This case was remanded so fault (percentages) could be established. Inc. Possession acquired in an authorized manner ?? b. He doesn’t really care which we categorize situations as. Does LA have a remedy similar to common law tort of conversion (a strict liability remedy)? LA says civil law remedy was adequate. However in LA. thus there was conversion. This case fell into one of these. Chattel is Compuserve’s harddrive 3. Mills Equipment Investments. xiii. v. 6.. In this case value was shown to have been diminished 7. Mistake. deprivation of use. 2. both I think): a. Trespass to chattel is physical interference with enjoyment – remedy is less Compuserve Inc. 4. Conversion is interference with ownership – remedy is forced sale If interference is not substantial enough for conversion.x.
vii. Owens-Corning Fiberglass Corp. He said the safe word and yet they continued. unpadded batons being used supported that this was extreme d. You can consent to virtually any intentional tort…except IIED (e. Issue: whether remedy is limited to workers comp or whether there is intent 3. 1. Where do we find consent? Man (Fricke) made the choice to go down knowing the facts and circumstances (offered to go instead of older man – Baumer). Cole v. Found for defendant because there was consent. 7. ii. Key is that consent is not a contract. Establishing Consent 1. State of Louisiana a.g. But in this case the contact became extreme. 4. Can imply consent from surrounding facts and circumstances (depends on situation) v. Consent i. Defenses to Intentional Torts a. Issue: Did they exceed the scope of consent? Yes c. Facts: Man laying at bottom of bin of mustard. It is a manifestation to consent to something that would otherwise be a tort. iii. There was consent to some contact. otherwise on the defendant if it is a defense. Argued that Baumer knew with substantial certainty of contact (proof by guy laying at bottom). Consent and/or lack there of can be and is usually used as a defense instead of as an element of tort (no consent)– Burden is on plaintiff if it is an element. Also facts regarding full force and regular. b. Younger man goes to save the man at bottom and is also overtaken. 2. Cannot include damages into analysis…need to only consider contact. Thus no intentional tort…however. Can withdrawn at any reasonable time. Man playing a prisoner was hurt after he had said the safe word to stop. 5. iv. sexual harassment).G. 6. Will not vitiate unless there is unequal knowledge…which there didn’t seem to be 8. . Usually would be seen as negligence…but want battery to get out from under workers comp. vi. Facts: Fake riot of prison for training purposes that went too far. Fricke volunteered. there could still be remedies under worker’s comp. Fricke v. There are also cases where you can exceed consent. Doesn’t fall within realm of traditional battery.
Court doesn’t want to meddle in this relationship. it isn’t valid. 72 ??? i. Mix of negligence and intentional tort 4. Basically a medical term – e. Scope of consent – statutorily mandated for the most part ix. 68 x. Stephen K. Young children are the same k. Important: don’t have to intend harm…just have to intend contact viii. otherwise battery. b. If you can form intent subjectively. Unless case is extreme. court doesn’t want to be involved – disease cases are different because there is actual contact with the disease. Consent can be defeated when shown it was extracted under duress j. concern for child’s welfare – if it is found that there was battery by mother. Is consent to an illegal act nonetheless consent? . when should defendant’s failure to disclose information invalidate consent? i. If consent. Consent doesn’t matter here because they didn’t know of disease. Also. ii. Roni L. what have you committed? Battery. Consent often established through circumstantial evidence 3. What is reasonable depends on the circumstances of the case – see McAndrews v. There is a duty if you know you are infected to disclose. It makes the consent not valid. the child support is reduced f. Duration of Consent 1. there was consent. Have to look at each case individually iii. if you perform surgery on me while I am sleeping without my consent = battery.e. Compare to AIDS case: if you have aids and know it. d. Other than fraud. Failure of Consent 1. “Implied Consent” and Medical Treatment 1. Is there consent? No. See Note 4 pg. Can withdraw consent at any time that is reasonable 2. Similar to if you know someone is particularly sensitive. Result of this case: No tort. than odds are you can form consent. Case of fraud – unequal information. You know that the contact is likely to be harmful and offensive. h. then you would have a defense to battery 2. Roy pg. What about incapacity and consent? i. a. v. e.g. c. Fraud will usually destroy consent (unequal information is the key) g.
Private a. Compensation question: Usually public would not have compensation. he still has ownership. Consent cases will always hinge on the particular matters of the case – subjective. private would. Balance rights against each other. To save lives or property of other people 2. How is this case different from imminent domain? ID has more formal condemnation. consent is not going to be valid ii. Statutory rape? Should consent by minor be valid in this case? Legis. Louisiana 1. Most difficult area of defense – where something normally would be considered a tort is considered privileged ii. Necessity i.i. but must pay fair market value). serious bodily harm. and regulatory taking (limitations on land that makes land lose its value) 4. Defense of necessity involves a balancing test. Has made a judgment that under a certain age. the government must compensate for taking v. Where a natural event or violent act by a third party imposes on the defendant the necessity to harm the plaintiff iii. 5. Bass v. 7. Facts: There is a necessity for a levee 3. Today would be considered taking and would be compensated 2. Two types: 1. No universal rule to distinguish between public and private: the more people the better to make it public 4. Is there reasonableness in action? Then probably privileged. However with 5th amendment. Differs from self defense in that necessity arises from events unrelated to the behavior of the plaintiff iv. Just know the basics…the possibility of consent in various cases. however no strong principle for two minors 2. . Harms another to avoid harm to self or third party b. Public a. Limited to risks of death. Church doesn’t see why this case was treated differently. substantial property damage 3. Here they didn’t actually take the property. Courts are leaning toward compensation 6. they cannot consent. Usual rule is that if you have a minor. b. No question that today there would be compensation. Question: compensation? Two types of takings: Formalized taking (can condemn private property to build new building at LSU. Usually undertaken by public official b.
the defendant may prevail if actions were justified – self defense is one way. c. Reasonable appearance of threat to life and limb is okay.vi. Belligerance of the attacker iii. Character and reputation of the attacker ii. Large difference in size and strength iv. Self Defense i. he continued to move forward even when the person said they were calling the police g. When someone enters your home. the defense of necessity is unavailable. What made this type of force acceptable? Unavailability of escape b. Even if all prima facie elements have been proven. Generally 1. Impossibility of a peaceful retreat f. Slayton v. Reasonable force in response to reasonable threat. Right doesn’t really change for the two: as defender of others you have the same right as the one you are defending – right to life or limb b. Kid shooting tried to limit the effect of the gunshot. Under the circumstances. the response seemed reasonable (no other options really) h. Overt act by the attacker v. In zero-sum cases. However right to use force is decreased if there is an adequate escape d. where one person can be rescued and one cannot. Self defense is a true defense 3. had reputation. McDonald a. your right to use this force increases…but not always right. Requires the showing that there was an actual or reasonably apparent threat to the claimant’s safety requiring and justifying force. 5. Typically justified to use assault to defend yourself… difficult when escalates to battery. Not what is subjectively thought – it is an objective standard e. What type of force was used? Potentially lethal. Ordinarily not triggered by threats and assaults. You bear the risk of mistake if by chance they are not entitled to the right of self defense . This person was a bully. 4. Self defense is different than defense of others a. though the force used may not be excessive in degree or kind. Factors relied upon to determine reasonableness of actions: i. Threats of serious bodily harm vi. i. i. Have to have some sort of threat to you – have to have a threat to life or limb. c. 2.
Held that fault should be apportioned (comparative fault) because both had intent (i.e. Part of this is that it occurred outside the dwelling – Peairs could have just gone inside. but it is now gone i. If it wasn’t self defense. Force used was excessive under the facts. i. Peairs a. Facts: foreign exchange student was going to a party. Size of aggressor is not determinative – each case depends on its own particular faces and circumstances 2. ii. Sometimes shopkeepers can commit battery to keep the peace a. Hattori v. Case found that instead of aggressor doctrine…self defense should be used. Duty to retreat: You are never under a duty to retreat your own home. Under this. Landry would be completely barred from recovery if Bellanger’s behavior was considered self defense (this is a complete defense)… which it was. i. recovery of plaintiff should be reduced as opposed to plaintiff had been negligent instead and the other was intentional…then intentional members recovery should be barred) – however. hit head on curb d. c. If you are not in your home and it is reasonable to retreat. even if deadly force involved. Mere words are not enough (however can be considered when figuring damages) g. Reasonable Response 1. Obviously a misunderstanding. Bellanger a. Landry v. Problem: like trying to figure out “who started it?” iii.6. Fact: Landry was punched. LA used to have the aggressor doctrine. you only have to if a deadly force is involved…otherwise you can stand ground and repel the attack. there is not a battery ii. 4. even though outcome wasn’t really f. went to wrong house and was killed. then comparative fault would have applied. Hattori didn’t understand b. Holding: Bellanger’s response was in self defense… response to aggravation to chest hits e. More force justified for a shopkeeper when they are defending others 3. Bellanger’s force was reasonable. if you were deemed the aggressor and someone punched you. Fact that is was Halloween complicates things: student might have thought gun was part of costume . When husband said freeze. LA now has comparative fault c. Justified too much violence – provoking with words counted b.
. Defense of Third Persons and Property i. Paddling was allowed in school and teacher paddled a student. If force used would have been excessive. Innkeepers have a duty to protect others. Privileges created to promote public policy. Circumstances may justify more force. Defense of Property 1. They may be justified in using more force or using it earlier. Third parties need to have the right to self defense. More leeway then when defending self or only a small group of others. Facts: Kid was shot by his neighbor because neighbor thought the kid was a prowler. Patterson v. They didn’t live at property…it wasn’t there home b. He knew that it was likely to cause injury and was intending to protect property. Important to note: you do have the right to protect self… don’t just have to wall self up…however excessive force is not justified d. What made this shooting reasonable in the eyes of the court? a. Discipline 1. c. d. iii. Force which is threatening to life or limb is never justified in defense of property 2. There was an intent to battery. License certain classes of actors to violate other’s rights in certain circumstances. Daniels a. it is excessive regardless of whether it is under self defense or defense of others. Reaction was not reasonable (objective standard) d. Briney a. ii. It was reasonably apparent that force was necessary b. Only if you are defending self or others and threatened with life or limb in order to respond in the same.ii. but defense of others does not create the right to use more force ii. 2. Facts and circumstances must be taken into account each time iv. Kuntz 1. otherwise right to defend others would not have existed and man would have been liable for the mistake 3. Harrell v. They set a spring gun which is never justified to defend property. Man saw something in student’s hand (it ended up being a camera) iii. Not even justified if there are warning signs. Katko v. Facts and circumstances (history of prowlers) made it reasonable to respond the way he did c. i. You are justified to use reasonable force to defend…just not force that will endanger life or limb e. True Privileges i.
attitude and past behavior of pupil 5. Standards of reasonableness used: 1. age and physical condition of student 2. Contingent on reasonableness ix. Teacher warned him. Can question during the hour and then if you determine that there is no theft. seriousness of misconduct soliciting punishment 3. Have to engage in some effort to make a determination of whether there was a theft – questioning!! e. vii. There was a witness to the paddling iii. student. etc.b. he didn’t quit ii. nature and severity of punishment 4. Shopkeeper’s Privilege and Privilege to Arrest 1. Woman had items (shrimp. coke) in her cart. c. b. availability of less severe but equally effective means of discipline 2. you must let them go. LA Code Article 215 on page 113 2. reasonableness. Parents immune from tort suits by child during the child’s minority – however can be brought after reaches age of majority iii. Miller a. Shopkeepers are held to standards: time. Discipline by parents is also a basis for the defense of privilege. Can detain for 1 hour if there is a reasonable suspicion of theft and only theft. Shopkeeper saw her put something in her purse. . viii. Court found teachers (2) more credible than student vi. Key idea: She hadn’t even left the building yet. d. Court found that there was a right to paddle. Past behavior of the child v. minimal force (bruises only because he moved). 3. Need reasonable reason to detain. What did the child do to deserve paddling? What made it reasonable? i. You cannot just keep for an hour for the hell of it. Credibility of teacher v. he was told not to move to avoid major risk iv. Have to have a reasonable suspicion of theft. a. She moved the shrimp and coke and probably put the checkbook into her purse. Derouen v. Just 5 paddles. The items and her purse were cramped. Schools have more rights than parents in disciplining because there are other individual’s interests in mind.
Toce CHAPTER 3 – GROSS. Shopkeeper may have a right outside the statute. involving an extreme departure from ordinary care. but the facts of this case do not support any right to detain v. Schwegmann a. in a situation where a high degree of danger is apparent -Applies to conduct which is still. Duplechin v. c. rather than actually intended to do harm. d. 4. 118) does not cover opening. Kids are similar to spousal immunity – they can’t sue until they reach the age of majority 4. Fine line between the privilege and false arrest 5. but which is so far from a proper state of mind that it is treated in many respects as if it were so intended -Will avoid the defense of ordinary contributory negligence on the part of the plaintiff CHAPTER 4 – NEGLIGENCE Consists of 5 elements (from book): 1) duty 2) breach 3) cause-in-fact 4) proximate or legal cause (scope of duty) and 5) damages . No reasonable cause to believe that the suspect had committed a theft of goods existed or iii. AND WANTON CONDUCT -Hybrid between acts considered negligent and behavior found to be intentionally tortuous -Highly unreasonable conduct. Thomas opened item but didn’t take it. The statute (pg. negligent. 2. Shopkeepers can detain and use some limited batteries. at essence. Can sue for any intentional torts after marriage is terminated. Focus on statutory language is important in regards to reasonable suspicion that did not occur in this case iv. The detention lasted more than 60 minutes. Prescription period is suspended during the marriage 3. Spousal Immunity 1. In order to recover for false imprisonment from a merchant. Focuses on language of shopkeeper’s privilege – Theft b. WILLFUL.f. plaintiff must show that detention occurred under one or more of the following circumstances: i. A parent may sue his child during the child’s minority 5. unless it was reasonable under the circumstances that the suspect be detained longer iv. Thomas v. Shopkeeper never allowed the crime to ripen. but not during marriage. Unreasonable force was used ii.
“But for” question. no foul” A.J. “Should the defendant be responsible?” In LA.g. Actual causation: is whether the act of negligence was the cause in fact of the injury. is a very strong argument (if all had a radio except for you for example) c. custom. it was not reasonable behavior (custom as a shield).” Does depend on some circumstances – e. Reasonable person: Duty of an individual is to behave as a “reasonable person. statutes (negligence per se) 2) Breach (to him this is easiest to determine) 3) Causation – actual (cause-in-fact) and proximate 4) Damage/Injury -.Need damage for negligence unlike intentional torts (with the exception of IIED)– “no harm. It does not include conduct recklessly disregardful of an interest of others.Reasonable care = objective test – what would the ordinarily prudent person do under the circumstances? External standard. medical malpractice. Duty = How we expect people to behave. Hooper argument was that it was not customary behavior. C. Actual causation is based on facts. E. Causation – a. Environmental cases. Elements of negligence (his from class): 1) Duty: “reasonable person. Proximate cause in common law deals with proximity. Proximate cause: really has nothing to do with causation. In LA it is dealt with explicitly. It is a policy question.” B<LP – risk/utility balance test.g. Custom as a sword. In common law. however. duty is decided by judge. b. Statutes (Negligence Per Se): We use non-tort statutes to help us determine how a reasonable person would behave B. Customary: What is argument on custom and reasonable person? Customary behavior is somehow a reasonable behavior. duty in LA) – same analysis…we just do in a different order . cause-in-fact for both common law and LA are the same proximate is similar to scope (causation in common. If they don’t behave this way it is a breach Negligence defined = conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. it is done explicitly. emergency situations b. Damage – need to establish damages Louisiana Approach Duty/Risk: elements are rearranged 1) Cause-in-fact 2) Duty: a) traditional duty (just like common law duty analysis – “reasonable person”) b) scope of the duty/risk (how far you are going to extend liability – proximate cause from common law) 3) Breach 4) Damages/Injury Why is it decided differently in LA? In LA. How we expect people to behave (duty). it is treated as an issue of causation for the jury. T. a.
the victim or the insane individual? Insane person.Differences really don’t matter A. Reasonable Care – In General a. Physical handicaps are part of person – we take those deficiencies into account. State i. ii. What is argument in terms of common law elements? 1. Roberts v. duty owed to persons with disabilities – blind persons c. a. There was thus no breach. Could then sue caretaker for fault of mentally ill because we expect caretaker to take better care . and experience i. b. but he is not required to do the best thing b. Argument that it was unreasonable for man to walk unattended – others do not know he is blind v. Child standard is “like age and development” – ordinary child at like age. Don’t need expert testimony – usually in experience of most jurors d. must act as a reasonable person who knows that the individual has a mental illness. Two different duties in this case: these are related – reasonable behavior of one depends on reasonable behavior of the other 1. Basically. Unless child is engaged in an adult. Court says that there is no negligence – other reasonable blind persons would have behaved in the way Burson did (facial sense – familiarity with surroundings) 1. Who is alleged to have been negligent? Burson – blind operator ii. Police officer acts reasonably: tells men to stop messing with the wire. In these cases. He behaved in a reasonable manner under the circumstances and thus was not considered negligent. Ultimately comes down to what makes sense. i. Insane person standard – One who is insane must behave as a reasonable person. He fulfilled his duty. Need to determine what a “reasonable blind person” would do in similar circumstances iv. then child is held to adult standard of care. City of Kenner i. Duty of the blind person to behave as a reasonable blind person 2. intelligence. First: Identify the alleged act of negligence (only way you can draw causation chain) iii. who should bare the loss of the insane person’s actions. Those who care for individuals with mental illness. parents might be negligent in letting the kids do these things – negligent act becomes parents failure to supervise when they should have iii. or inherently dangerous activity. Misuraca v. He could have done more. Courts don’t want people making false claims to relieve liability ii.
Inc. Liability depends upon whether B is less than PL 6. but probability is low b. Best explanation of behavior that exists b. Custom applies pretty strongly when it applies to plaintiff establishing breach of duty and not so much for defendant establishing that there wasn’t a breach of duty. Hooper i.J. Hand Formula: Burden of having them is lower than the expected PL (L is huge) iii.e. Hand (Judge) says that the defendant is using the custom as a shield – which is weaker than when plaintiff uses custom as a sword 1. B<PL = Hand Formula – if this is the case. Says that it is custom for people not to have radios ii. What is custom helps us to determine what reasonable people would do versus not do i. Do I need to put Ford example here??? . Risk/Utility/Economics and the Reasonable Person WHAT NEEDS TO BE IN THIS SECTION…I WAS GONE…ASK CHURCH—ALSO A COUPLE QUESTIONS FROM SARAH’S NOTES a. Sword example: if plaintiff says everyone uses safety options but them – strong evidence against defendant – failure to comply is strong if used as a sword c. the burden has to be more than the probability times the loss 5. i. the reasonable person is held to the standard of care of a reasonable person in an emergency i. ????? C. the precaution should be taken 1. Just because it is custom not to have them. Custom ASK ABOUT SWORD AND SHIELD – WHICH IS WEAKER EVIDENCE? a. L = Loss 4. When driving – loss is high. Under comparative fault. The probability is fairly low – accept expected loss because burden is greater 7. this is not a defense…but is considered when distributing fault B. not of his own making. B = Burden of adequate precautions 2. United States v.. Carroll Towing Co. Sometimes custom still negligent (as in Hooper case) d. doesn’t make it reasonable 1. The T. Defendant says that they weren’t negligent because everyone else does it the same way (no radios) iv. To take a risk (no precaution). How does custom say what a reasonable person should do? b. Sudden emergency doctrine: in a sudden emergency. Calculation shows how we expect reasonable people to behave a. Balancing burden of not getting to school (that is high) – you accept the expected loss for driving c. P = Probability 3.
Have to take into account the behavior of the buyer (in all cases. A/K/A Negligence Per Se a. Where we take things from criminal law. not just kids) D. i. This case says that exact numbers aren’t always important – it is the general concept that is important – forms a basis 3. Formula is rational. 4. B > LP. Burden doesn’t have to be financial…it is the burden of the action 5. are you negligent? 1. If you violate a criminal statute. Dog bite case that dealt with determining class of persons and class of risks included in statute and whether statute should be used as standard of reasonable care . the risk was within the class of risks the statute was enacted to guard against d. Equate hand formula to reasonability i. Church says that hand formula always works – formula makes sense 1. Boyer v. etc. just because someone is injured doesn’t mean someone had a duty to them g.i. c. There is some degree of expected risk. Johnson i. Pheasant Run. Judge Posner in this case believes in B<LP. this formula asks whether it is reasonable to take or not take the precaution. so Ford wasn’t negligent by not taking the precaution c. Purely advisory – mere guidelines for the court – however it is persuasive and courts many times adopt (see above two circumstances) e. Legislative body helps us determine how a reasonable person behaves. and try to determine how reasonable people behave. Inc. Probability is probably higher ii. There is a burden with any precaution. Brown i. but doesn’t feel that there will always be numbers available d. The plaintiff is within the class of persons the statute was enacted to protect and 2. A violation of a criminal statute does not automatically create liability in a particular civil case. but not necessarily reasonable ii. Helps determine 1) Admissibility 2) Evidentiary Value i. Court will adopt a statute as the standard of care of the reasonable person under the circumstances when: 1. What about with kid’s toys? i. McCarty v. some municipal ordinances. Violation of Statute. Equation is a paradigm – won’t always have numbers e. just a reasonable choice f. Uncomfortable with numbers creating absolute 2. Wright v. Use of outside non-tort statutes b. 2. It all comes down to the fact that you don’t need to choose the best choice.
i. Admissibility 1. h. then if it is: 1.f. Different types of presumptions: i. Class of person – is this person part of protected class of statute 2. Mere evidence – what type of jury instruction would you draft if it was mere evidence? You can use criminal statute if you would like as a guideline. Bursting bubble – plaintiff meets burden of proof. Do you provide a jury instruction at all? You establish through testimony that person had violated a criminal statute. a.basically is it adopted widely enough to label it as evidence of a standard of care? We apply admissibility in LA to determine duty ii. ii. a. Presumption – Who bears burden of proof on all elements? Plaintiff.For admissibility . The jury might feel that they are required to find civil liability of negligence because of violation of criminal statute – thus there is usually a jury instruction. Mandatory – similar to strict negligence per se Violations of criminal statutes are very persuasive evidence. Why are we dealing with negligence per se? Biting dog is supposed to be quarantined for 14 days by statute. 1. the statute is irrelevant except that it establishes a time period (duty – thus mere evidence) Once we make a decision that a person violated a criminal statute (admissibility). Principles to keep in mind: i. will be in a jury instruction. the roles that criminal statutes play in determining negligence are: i. OSHA standards are adopted by regulatory agency…not same amount of trust…thus how would you get these admitted? . The more persuasive the legislative body that adopts the standard. Evidentiary Value – First establish this info. the more likely that it is admissible. Class of risk – is this risk one that is protected by statute Both of these class questions are pretty flexible -. When should OSHA standards not be admissible? Horseplay 2. Once the plaintiff has established that there was a violation of the criminal statute. g. iii. In Church’s mind. 2. then we have to decide what to do with it (evidentiary value) Under Boyer and Wright cases. but you are not required to. defendant just gives some evidence then it returns to plaintiff to prove by greater weight of evidence ii. Strict negligence per se – if you find that person has violated criminal conduct in the statute. Dog was let out early and bit again. then you must find that person negligent – most states have abandoned this 3. the burden shifts to the defendant to show that their conduct was reasonable.
Res Ipsa does not involve any kind of presumption!! h. Sometimes courts will neither ask the jury to decide if defendant acted reasonably or adopt a statute as the standard of care – thus the court articulates a rule of law and says what is views as reasonable care under the circumstances E. etc. Allow inference. Whether facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable men could not arrive at a contrary verdict. Traditionally we apply to medical cases where wrong body part is operated on. Categories of operators that behave as a reasonable person would under those special circumstances. E. g. 153??? ii. . Say they are regulatory. They are not required to infer. All other negligent. b. Special Duties a. Doctor is held responsible. (Same standard as for a directed verdict). Fire started and suffocated Boudreaux who was in an adjacent premises. F. but are allowed to. Who gets to make the decision on res ipsa? Judge. Within scope of risk of the defendant’s duty ii. Common sense evaluation of the strength of circumstantial evidence b. e. Standard as to providing jury instruction: i. Res Ipsa is important on cases where it is not soo obvious and during appeal (appeal court has right to make this decision) i. Could a reasonable juror come to the conclusion that the injury more probably than not came from the defendant’s duty along? If yes. what do you get? i. ii. nondefendent possibilities/causes have been ruled out sufficiently k. Once res ipsa is shown. Custom j. “The Thing Speaks for Itself” – evidence is very strong that there can really be no other option c. Then you should provide instruction. Have to be able to point specifically to this defendant’s negligence and rid all others of responsibility d.a. Defendant’s negligence falls within the scope of duty to the plaintiff f. electricity workers. Boudreaux v. Elements of res ipsa: i. Jury instruction that says jury can find negligence in absence of specific evidence of negligence. 1st = Reasonably exclude all other explanations – other’s negligence and possible non-negligent explanations. American Insurance Company i. innkeeper as an innkeeper has an elevated sense of duty.g. then give res ipsa jury instruction j. ???? is this right pg. Res Ipsa a. What is needed for res ipsa? i.
We do not know anything on the part of the action of the defendant. More probable than not = anything over 50%. Two negligent. 50%+) 1. then you do not meet the but for requirement 2. CHAPTER 5 – CAUSE IN FACT A. Whether the alleged act of negligence was the cause in fact of the injury ii.e. Tice and Landers case (later in outline) d. iii. Three cases: i. Forces them to come forward with evidence of non-negligence Note: Negligence can refer to the whole tort or simply the first two elements (duty…). I. Reasonable juror has to be more probable than not that defendant’s negligence was cause.but for the defendant’s negligence. the injury would have occurred regardless of the negligence. Negligent cause and non negligent cause – Anderson case ii. Began in multiple factor cases…now has expanded a. each of which was capable of causing harm by itself – Landers case iii. Standards: (they are often treated as same. only one which caused alternative liability – Summers case . Introduction a. even though they aren’t – evidentiary standard is important (50% v. l. But for – 50%+ standard -. For those cases when you didn’t quite meet the burden of more probable than not = 50%+ c. then it is more probable than not (does this then fall under “but for”) b. Substantial factor – Not same as but for – 50% standard.ii. would the injury have occurred? If no. Causation is an element of the prima facie case of negligence i. 50% standard is important because if it goes above this percent. then negligence and vice versa a. Sometimes use res ipsa when there is a whole group of defendants. Arose in cases like Summers v. Res ipsa allows an inference of negligence. but we don’t have to completely eliminate all of these. There are other possibilities to cause this. Two negligent. One who does not cause harm is not liable – causation is fundamental to negligence b. Factual or actual causation (“cause in fact”) i.
2. Driver in the car was negligent (undisputed) 3. Plaintiff in this case was a passenger…so he could recover because he is not barred under the contributory negligence in state at the time. 2. Perkins v. But-For Causation a. Proximate causation (next chapter) i. On the other hand. It need not. Class question: What if two spill and combine to create reaction. You can have multiple but for causes. Issue: 1. ii. Actual cause is based solely on facts. Holding: 1. the train wouldn’t have been able to stop and the members in the car probably . be the sole cause. pg. iii.e. Negligence here is the failure to stop in a reasonable time. 157 Under the circumstances of the instant case. of course. Both are but for causes. Train was going 37 in a 25. There are some policy questions here now too – not completely sterile vi. Driver could not recover (We now have comparative negligence which doesn’t completely bar recovery) 4. 3. Multiple chemical sensitivity. Court found that train wasn’t cause in fact of injury because even if they were going 25 miles an hour. 157 – It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. Reasoning: 1. Language is important…pg. A lot of authors equate proximate cause and actual cause as the same…he does not agree iv. 5. Car was hit by a train. Factual cause doesn’t care about foreseeability c. Whether the excessive speed of the train was a cause in fact of the fatal collision? iii. v. the excessive speed was undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. iv. Texas and New Orleans Railroad Company i. Because you were speeding at some time does not mean there should be liability. then it was not a substantial factor. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. Is a policy question for the jury – whether this defendant should be responsible – when actual cause has already been established B. It has to be close enough to call it a cause. Facts: 1. if the collision would have occurred irrespective of such negligence.
but delayed because of way it was attached to ship. to evaluate if there is a duty. if you spill gasoline and someone else drops a match – both are but for causes. vii. There is a breach of duty. Dissent makes mistake by equating excessiveness (37 miles per hour) with cause in fact. vi. Dissent: 1. Rescue boat was launched. This is excellent example of but for test. E. he is not responsible. Is the radiologist responsible? Is he the but for cause? iii. it was equipped with only one oar. It is easy to show negligence of one of these duties. Breithaupt v. When it was launched. didn’t ask woman if she was pregnant. etc. 2. Yes the doctor screwed up…but not negligence because there was no causation. 3.g. but he was not the but for cause. You can always have more than one but for cause viii. Holding: 1. This part is fairly easy. Were the problems with the boat cause in fact? a. 2.could not have gotten out of the way (warehouse blocked view). She didn’t know she was pregnant…so she would have answered no anyway. 5. More probable than not that he would have drowned regardless of negligent action. Even if the radiologist would have met the duty. He did breach his duty. the injury would still have occurred. 4. v. On exam: should always talk about both but for and substantial factor tests – to some extent they can be used interchangeably…but not completely 1. iv. As for substantial factor test? Means but for in this case. Majority is correct in this case by saying that speed can be excessive but could still not be a cause in fact. Salinetro v. Was there causation (cause in fact)? No. custom. Nystrom i. Issue: 1. First have to establish negligence – reasonable person. Doctor breach of duty is not but for cause of injury c. Reasoning: 1. Duty established because a reasonable radiologist would have asked if she was pregnant. Sellers . Using the but for test. Facts: 1. Note 3: Ship mate fell overboard and immediately disappeared beneath the water. Doctor gave x-rays. Notes: 1. b. hand form. Thus the x-ray would have been taken regardless and injury would have occurred. ii.
b. remanded to trial court for new trial to let jury decide if hunter that shot acted reasonably (first trial assumed that what he did was reasonable) v. Class of risk? c. If you are showing that the plaintiff is faulty. Statute is very disturbing and this court agreed a. Failure to wear orange probably didn’t matter. This is a question of contributory/comparative negligence b. the other guy should have known he was shooting at a human iv. Issue: 1. Other Standards for Causation Causation: 1) But For . You cannot evaluate cause in fact until you identify the alleged breach C. Holding: 1. for that reason alone. deserve to be shot 4. Found against defendant – his negligent shooting was cause in fact of injury 2. Whether the accident would have occurred regardless of whether Breithaupt wore Hunter Orange. Trial court found that plaintiff had contributed to injury through his negligence and thus was barred from recovery 3. Facts: 1. iii. Plaintiff was not wearing hunter’s orange and was shot by another hunter ii. Contributory negligence was not substantial in causing injury thus should not bar recovery 3. Class of person? b. Notes: 1. Who’s negligence are we analyzing? a. you have to show that his negligence was cause in fact of his own injury. Makes sense maybe to use statute as mere evidence 2. One of the reasons contributory negligence was gotten rid of b.i. Why wasn’t cause in fact established? a. Hunters who violate the statute do you. Reasoning: 1. Actually. Do we apply negligence per se regarding the statute in this case? a. If the plaintiff could see facial features in scope.
2. Attorneys did not bring claim in the prescriptive period. Notes: 1. Marie Railway Co. plaintiff was shot in the eye. Landers case: plaintiff owned a lake that he had spent considerable sum to stock with fish. 3. Paul and Sault Ste. One negligent party and a whole bunch of non-negligent fires – still use of substantial factor test ii. Jenkins v. It was negligence. LA in addition to other states have come a long way in getting rid of this 3. Two men shot guns in plaintiff’s direction c. St. How would you measure reasonable care? . It was a breach of duty – they had a duty to meet the prescriptive requirement. Court found Joint and severable liability: plaintiff can recover full amount from either one. b. b. St. the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident 2. i. b. Salt water disposal company’s pipelines broke. c. Paul Fire and Marine Insurance Co. This is why we have substantial factor…otherwise both companies would have gotten off. Minneapolis. which tests whether the accident would or would not have happened but for the defendant’s substandard conduct. What if there were 4 actors? Is this going to be substantial factor? Shouldn’t be. Cause-in-fact usually is a “but-for” inquiry. Facts: 1.2) Substantial Factor 3) Alternative Liability 4) Market Share 5) Lost Chance a. Summers v Tice case a. Where there are concurrent causes of an accident. a. Three men were hunting. Practically a “single indivisible injury. i. Plaintiff could not prove which shot caused injury – need substantial factor test d. Thus how could you prove that action was more probable than not (greater than 50%) to cause the harm? You can’t say which is more likely to cause the event. in addition an oil company caused salt water and oil to be discharged into the lake. Were the shooters negligent? Probably. Facts: 1. No good evidence as to which leak occurred first. All fish were killed. Very big problem. Anderson v. They both have 50/50 chance.
Used to be very difficult for plaintiff to bring case against attorney – effective shield for attorneys iv. etc. One plaintiff shows negligence on part of defendant – defendant has to show that they wouldn’t have won. 2. This court changes things: Still case within a case – but burden is shifted. Holding: 1. A routine x-ray was taken of the chest which showed a cancerous mass. complaining of three week history of chest pain. 2. must also establish the validity of the underlying claim by proving that the attorney’s negligence caused him damages and by further proving the amount of damages. By this time cancer was diagnosed as nonoperable 6. Reasoning: 1. a. Similar to Smith case (next case) and lost chance b. 5. of Health and Hospitals i. the plaintiff more probably than not would have been successful in the trial in question 2. Smith died nineteen months after original x-ray . Custom is easy – especially for professionals – almost requirement that you show evidence of custom 5. Whether the client. c. If we apply the but for to this. 3. 4. – i. Smith returned to hospital. What is the best evidence that this case wasn’t a dog? That they initially took the case as an attorney.a. The hospital failed to inform Smith or his family of the results. what would the plaintiff have to prove? Case within a case approach – but for the negligence. State of LA Dept. whether “case within a case approach” is best approach: that plaintiff must prove negligence and that claim would have been successful. 15 months later. However this is not the theory used by the majority. but most use burden shifting approach of majority. 4. Smith v. ii. This test is only relevant when right on 50% line ??? v. 3. How a reasonable attorney would behave. Dennis’ approach is much more pro-plaintiff. not the case a. iii. Facts: 1. something was taken away – settlement value. Some jurisdictions use it. Issue: 1.e. Even if the case would have been lost in trial. after proving the attorney’s negligence. Second x-ray was completed and revealed mass had doubled in size. Dissent: 1. c. Smith and his family now learned of the mass. Plaintiff is suing attorney for negligence to file on time. Argues that injury is losing the chance to litigate. Smith was simply discharged.
shouldn’t get to recover full damages for death when you would have died anyway. In this case. i. they did not redefine the causation standard. they redefined the injury. However. Redefined the injury to meet the causation standard c. We would lose the case. If we apply the but-for. 1st approach: This court does not just take a pure percentage of a wrongful death suit if it was litigated to the end – like the trial court did. Instead of death. would have died anyway? Yes. On test – need to say that there are three different ways for the jury instructions see page 173 if want more details on three . 3rd approach: allow full survival and wrongful death damages for the loss of life partially caused by malpractice. 9. 8. Once you show causation. Action followed seeking survival and wrongful death damages ii. What was Smith’s chance of survival at the time of the first xray? a. how do you establish damages? a. 4. 8. Not 50% or more. 2nd approach: This court says that it is up to the jury to decide what is appropriate. then it is a separate injury – lost chance of survival 5. c. but it was positive. How do we establish duty? Custom 3. more probable than not standard. b. without regard to chance of survival d. a. Same result if we adopt the but for from Jenkins where burden is shifted. This and Jenkins case are definite policy issues. He had a chance. Negligence was failure to inform 2. a. His chance of survival at the time of the second x-ray was less than one 6. 1. If chance of survival is less than 50%. They can value it any way they would like – in essence we are giving them too much discretion. Hospital expressly reserved right to contest causation and damages.7. This was a clear wrong… there was clear negligence. Question is of damages in this case. 7. it was lost chance of survival b. Reasoning: 1. Differed. Hospital admitted that employees and physicians were at fault and breached the standard of reasonable care.
There are some types of asbestos injury that can only be gotten from asbestos…but not all cases. there is a usual outcome.g. b. iv. Holding: 1. do we talk about lost chance – if you don’t die you don’t really have an injury 2. Place on continuum matters – he would be surprised if there was ever an award given for loss of 1% chance… however under this case it would be awarded. Argued that lost chance should apply to environmental cases i. Notes: 1. once you hit 50%. iii. In medical cases. The negligence of hospital employees was proved by a preponderance of evidence that it deprived a chance of survival. We limit lost chance to medical malpractice cases. As in next case. However. It is a lost chance of survival and not just litigation. Only in cases where somebody dies. Regardless. we know that if there is this type of treatment. there are other causes for the condition as well. why do we not have a lost chance in asbestos cases? i. Some conditions cannot be traced back directly to chemical…but it can be proved that chemical does cause this condition ii. Plaintiffs were not required to prove a reasonable or substantial chance of survival – simply that any chance of survival was lost because of defendant’s negligence a. This case is different then Jenkins and burden shifting approach – lost chance is limited to medical malpractice cases a.e. Normally 20 cancers expected. iii. We have a good statistical basis from which to start – not so in other areas. No way to parse out when there is a mixture – such as smoking c. ii. thus reluctant to extend. but there . 100 people have been exposed. Problem: indeterminate plaintiff problem – which of the cancer cases are due to the exposure to chemical and which are just the background cases of cancer we expect to arise from individuals backgrounds? 1. Lost chance is a new area of recovery – uncertain as to boundaries…but haven’t yet seen abuse that was predicted a. 2. you should get the full award – not a portion (however some juries don’t do this) 9. e.
Abbott i. This case is different – Court says that market share liability cannot be used – the products were not fungible…they had different levels of asbestos in the products – different levels of risk c. Thus companies had to pay in proportion to their share of the market. Black v.g. Alternative liability has joint and severable liability (one party could be responsible for all damages) – not same with market share (just responsible for own share of market) . b. Causation problem because of indeterminate defendant problem – difficult to tell where injury came from – synergistic effect – don’t know real source (e. Almost essential that all parties are known (market share is similar because you need to know the market and who has all the shares – not quite as difficult though) b. Indeterminate defendant case: next case – Black v. We don’t know which of 10 are caused by chemical. Problems: people react differently to different levels iv. but closer to first 4. 2. Abex d.are 30. Companies involved in that case used same formula as any of the others – so the product was fungible (substitutable). Second issues is alternative liability a. Facts: 1. Man that worked in the manu. 2. Reasoning: 1. business died and wife sued 48 companies based on claims of market share and alternative liability ii. Case deals with brake and clutch products that were manufactured with asbestos. First issues is Market Share Liability a. toxic mold) 2. Options: 1) Could just give everyone money – only way to really do it (better to hold responsible party liable than let them go) 2) add up risk factors and find 10 individuals that are most likely to suffer the result 3. i. Abex Corp. Courts have done neither. Mentioned case – Sindell v.
are not included (Summers case is e. Inherently a policy question c. Introduction to the Risk Rule a. Usual standard is that tort litigation is inappropriate for this type of relief because injuries to each person vary. That person was not foreseeable. but issues are different and need to be treated differently CHAPTER 6 – LEGAL CAUSE/SCOPE OF THE DUTY A. at this time. Most cases divided by application of the risk rule – whether the injury was reasonably foreseeable (there are other policy issues as well) d. independent element of negligence theory f. This case is an example of Forseeability of Person – have to foresee the risk to that particular person a. e. 2. 2. Foreseeable Plaintiff i. Neither were applicable. Best to think of legal cause/scope of duty as a fifth. Need to know exposure problems too (who. in this manner. etc. g. if analyzed as questions of causation then often it is the jury. Fundamental question: should this defendant be responsible in this case (this plaintiff who was harmed by this instrumentality. For test: Need to know different theories and indeterminate problems (plaintiff and defendant).g.g. Can be many but for causes that shouldn’t necessarily be held responsible (e. b. Man running with small package that is not identifiable. iv. where exposed – kids especially at risk) ??? 3. what. b.c. The injury to that person was not foreseeable. Long Island Railroad Co. Facts: a. Railroad employees help him to get onto the train because he is falling 3. at this location. Both market share liability and alternative liability claims were dismissed. Who decides the policy issues? If issues are analyzed as questions of duty then often it is the judge. Palsgraf v. Notes: 1. Holding: 1. This case introduced the idea of reasonable foreseeability . Problem is that asbestos rulings get applied to other areas.)? b. Chicago fire) B. 1. Reasoning: a. Alternative liability does not apply in this case because all manu. The Concept of Legal Cause a.) iii. Once we meet standard of causation…should we impose liability? Policy question.
i. The risk reasonably to be perceived defines the duty to be obeyed ii. I.e. duty established by whether the risk was reasonably foreseeable b. Court felt that the plaintiff must show that a wrong was committed to her specifically…not a wrong to someone else, nor conduct wrongful because it is unsocial c. There is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others d. Two important opinions: Cardozo opinion and Andrews dissent – shows importance of difference between LA can common law – difference deals with how far foreseeability should extend i. Cardozo says that it is a question of duty (LA approach) – owe a duty only as it is owed to this person 1. Does not see liability for railroad ii. Andrews represents traditional duty approach (common law)– policy analysis is a part of causation here 1. Sees that there was foreseeability and thus liability on part of railroad 4. Holding: a. Railroad not responsible because risk was not reasonably foreseeable and thus there was no duty 5. Andrews Dissent a. He thinks that majority’s “duty to the specific person” approach is too narrow b. He feels that if the act is wrongful, the doer should be responsible for the proximate results i. Polemis case: 1. individual was responsible if there was direct causation without intervening cause (superceding) 2. This case takes very strict stance: actual cause and proximate cause are same thing – not policy question 3. Idea from Polemis case has been pretty much abandoned c. Damages must be connected with the negligence that the latter may be said to be the proximate cause of the former d. Needs to be a natural and continuous sequence between cause and effect – thus he feels in this case that woman should have been able to collect 6. Notes:
a. What would be an intervening cause? i. E.g. I spill gas at a gas station and then someone comes by and drops a match which ignites the gas. Dropping the match is an intervening cause. ii. It is a question of time. b. Superceding cause is a term of art applied to acts that cut off liability of the original actor i. Why cut off liability? One person is more evil/less moral ii. Intervening act is more likely to become superceding if it is intentional iii. Exceptions: If the result of negligence of the original actor is foreseeable then liability is not cut off 1. E.g. bus driver is negligent by knowingly dropping passenger off in a high crime area a. You can foresee the existence of crime b. Criminal actor is worst actor, but that does not mean that original actor should be relieved of liability 2. In LA, we apportion liability c. While Polemis rule from before this case is no longer used, intervening and superceding wording is however d. Began with Polemis idea (referenced in Dissent) and then moved into foreseeability (of person and of risk) b. Foreseeable Risk i. Wagon Mound 1. Facts: a. Oil spillage. There is a cotton rag (basically acts as a wick) floating around. There is welding going on, which has sparks. Eventually the spark caused the oil to ignite. 2. Whether Polemis rule is invalid? 3. Reasoning: a. Challenges Polemis which said that if the defendant is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not – this rule is too harsh b. No actionable breach of duty unless it can be shown that at the time of the act, the consequences of the act were reasonably foreseeable (reasonable man test) c. What is the foreseeable risk from oil? Not fire, it would soil the dock. d. In this case, it was the unique combination of the welding with the rag (wick).
e. Those who left the oil didn’t foresee the risk because they thought the only risk was making the dock dirty. f. Specific v. General risk i. If the requirement is that you need to have harm occur in the specific mechanism, then Wagon mound (the welders) could argue that they couldn’t reasonably foresee that rag would act as a wick ii. However if all they had to see was risk of fire in general, then they could be liable 4. Holding: Polemis rule is too harsh. The test should not be whether result is direct, but instead whether it is reasonably foreseeable to the ordinary man. Thus company that left the oil was not held responsible because result was not reasonably foreseeable. 5. Notes: a. Jurisdictions must decide the standard of foreseeability: i. Foresee risk to the particular plaintiff v. class of plaintiffs ii. Forsee the specific mechanism or manner of harm v. foreseeability of the general hazard iii. Foresee the harm v. just the hazard b. Usual rule is that you only need to foresee the general risk of harm c. Why do we impose a foreseeability limitation (why don’t we follow Polemis)? i. Concerned liability may be extended indefinitely (but to Church this doesn’t really relate to foreseeability) ii. Hand formula gives a good reason: if we impose liability for unforeseeable risk, people will be taking precautions that are not justified under this formula. Force people to take too many precautions. 1. He has two problems: a. If it is truly unforeseeable, no prediction can be made and thus no precautions can be taken regardless. b. If it is truly unforeseeable, it is less likely to be negligent in the first place d. Determining Whether an Intervening Force is a Superceding Cause i. See pg. 194 – 195 for list C. Proximate Cause and Scope of the Duty in Louisiana a. Development of the Duty-Risk Approach i. Dixie Drive It Yourself v. American Beverage Co. 1. Facts: a. Dixie Gulf States Langtre
RC Cola Driver Ownership Employment c. g. American Beverage says that they are not responsible – that Langtre is j. . Reasoning: a. Dixie is suing American Beverage to recover the value of the truck i. wholly owns RC Cola subsidiary which is indication that you could hold ownership company liable for subsidiary actions b. ii. American Beverage argues that they don’t have a duty – they argue that Langtre is the intervening/superceding cause 2. Contributory existed at this time. because can be imputed all the way up from driver c.Lease Employment b. Langtre’s perceived acts of negligence were failing to see the obstructing truck and failure to realize that it was stopped on the highway in time to avoid collision 1. Bev. Imputing liability from employer to employee = vicarious liability. Dixie leased a truck out to a third party (Langtre) d. who leased the truck from Dixie. i. which could bar recovery…but doesn’t apply here because you can’t impute from Gulf to Dixie and thus can’t impute from Langtre to Dixie. Both defenses focus on negligence of Langtre. American Bev. Dixie did nothing wrong – why can they recover from if we know that both driver’s were negligent? Gulf States because can be imputed from Langtre (vicarious liability) and Amer. Same idea for ownership and subsidiary – piercing the corporate veil (when need to decide if/when owner is liable for subsidiary torts). Why wouldn’t you name Langtre as a defendant? Vicarious liability between Gulf and Langtre (employee in course and scope of employment)… but there is not vicarious liability between Dixie and Gulf because there is no employment relationship (it is a lease) i. RC truck broke down and took no precautions to warn. American Bev. Langtre is an employee of Gulf. Driver of RC truck is employed by RC Cola who is owned by American Beverage Co. e. Langtre has also been negligent in some way in driving – didn’t slow down in time h. f.
Is this seen as a question of causation or duty? Define duty from statute then shift over to causation issues regarding Langtre g. Bev. which is allocation of damages (one may pay whole thing) 4. Question of negligence of both parties…thus multiple causative factors d. driver’s negligence. Dealt with violation of a regulatory statute – can standard be imported to establish a duty – negligence per se? a. e. Court found that Langtre was negligent. Also negligent in taking no action to warn approaching traffic of stalled vehicle iii. Argue that Langtre’s negligence was sole proximate cause and thus Amer. Joint and severable liability. Comparative fault applies to plaintiff’s fault in effort to reduce plaintiff’s recovery – defendant’s defense versus… ii. Notes: . Bev. How else does his fault come into play? a. Amer. Court found that negligence of Amer. Applied intervening/superceding – actual cause question (responsible for everything except…) ii. 2 principles: i. Holding: a. Says statute was designed to protect life and property on the highways…thus protected the class of person and class of risk 2. Bev.2. Applied negligence per se when there was not strictly a statute involved ??? (ends up forming basis for LA duty/risk approach) 3. Bev. Need to figure comparative fault between Gulf and American (at this time it was joint and severable (which is what they were ordered to do and which has been gotten rid of since) i. but the question is now whether Langtre’s negligence was superceding to Amer. Court says yes. f. That Langre’s negligence is an intervening and superceding cause ii. Driver was cause in fact of accident. Driver’s perceived negligence: 1. Langtre’s action was not found to be superceding b. off the hook.
After hurricane. Lundin is not responsible for Hill’s injury – not within the scope of the duty i. b. Some third party moves the ladder.a. Celeste Hill was a babysitter. Facts: a. Intervening/superceding cause still important in LA duty/risk analysis: if there is a superceding cause. Ease of association (foreseeability) of the injury with the rule replied upon. which Hill falls over when trying to protect the child. LA shifts more toward policy with duty analysis – away from causation (foreseeability – intervening/superceding cause) b. It was also not that faulty to take the ladder down and put it on the ground. Hill v. it is not necessarily within the scope of the duty owed because of that conduct. Hard to categorize third party as intervening or superceding: it is intervening.but could just as easily use the reasonable person standard for emergency situation) c. the duty does not extend to this plaintiff c. Third party action not reasonably foreseeable to defendant . Foreseeability is not always a reasonable guide…A risk may foreseeably arise by reason of conduct. This case is analyzed as a scope of the duty question – is the risk of injury from a ladder lying on the ground (by a combination of defendant’s act and third party) within the scope of protection of the rule of law which would prohibit leaving a ladder against a house– sounds like negligence per se…except here there is no actual statute ??? d. d. but court forgives (Momentary Forgetfulness Doctrine -. Reasoning: a. Holding: a. Lundin & Associates 1. Neither are all risks excluded from the scope of duty simply because they are unforeseeable. however is always the proper inquiry ??? 3. She sues the repair company 2. b. but not superceding because she knew the ladder had been moved (foreseeable). repair company leaves ladder next to house. c. What about Hill? Was she negligent? She knew the ladder was there. Realize that proximate cause and scope of the risk (whether this defendant’s duty extends to this particular injury to this plaintiff) are similar ii.
Ease of association (something considered more than just foreseeability) iv. 204 for description) • Duty (Traditional) o Reasonable Person o Custom o Hand Formula o Res Ipsa o Neg Per Se • Breach • Cause o Actual o Proximate – foreseeability. Decision was really made because of policy issues – hurricane…most efficient for company’s to leave equip… thus more freedom should be given i. Go through following steps to determine scope of the risk/duty on exam: i. policy questions • Injury LA Approach: • Cause (Actual) – but for. Important to talk about foreseeability and ease of association and then try to determine why the decision was actually made 4.ii. Rule of law that imposes a duty not to leave a ladder against a house does not encompass the risk encountered here b. Intervening/Superceding iii. A Return to Proximate Cause and Variations to the Risk Rule Common Law Approach: (pg. Foreseeability ii. substantial factor (same as common law cause) • Duty o Traditional as in Common law Reasonable Person Custom Hand Formula Res Ipsa Neg Per Se o Scope (risk. duty) = proximate cause Foreseeability Intervening/superceding Ease of association . intervening/superceding. Notes: a. Policy factors (laid out in following case) b.
Policy Factors • Breach • Injury Difference in two is really who should make decision: judge (duty) of jury (causation) What is the paradigm between proximate cause and duty/risk? Start with…Polemis direct cause rule. Wrongful birth – defect involved. Dennis discusses policy considerations to determine the moral aspect of the defendant’s conduct (when is negligence immoral) Lists on pages 205 (in terms of duty) and 209 (in terms of cause). Tubal ligation done on Tammy Pitre b. Wrongful conception – healthy (usually botched sterilization. Facts: a. This is 209 list: i. foreseeability of risk rules (plaintiff. c.). etc. Historical Development of Precedent . Opelousas General 1. If you would have done this operation correctly. Pitre v. Reasoning: a. I wouldn’t have been born with this defect – damages here are associated with pain and suffering of condition…not life in general b. They had a child with albinoism 2. Wrongful life – child’s claim that is associated with the defect i. Hannah doesn’t recover – albinoism is not clearly associated with negligence here. Claim of parents – if we had known that child was suffering from a defect. Physical injuries require need for compensation (other injuries are not treated the same) ii. Need for compensation of losses 1. but Pitres were never notified. Defect was not anticipated as a result of botched sterilization or anticipated knowing background of parents c. Report showed that operation wasn’t successful. Who gets to recover in this case? i. intervening/superceding cause. policy factors ??? I DON’T UNDERSTAND THIS – WHEN DO WE START WITH THESE THINGS?? Judges have more freedom under duty analysis i. abortion) – damages almost always limited to costs of actual birth e. we would have terminated the pregnancy – not in this case because albinoism isn’t foreseeable d.
there is no need to reinvent the wheel. 2. Even if system may be flooded (e. then additional justification is needed iii. Imposing liability on corporate entities is justified because they are better able to bear the loss by raising prices on products 2. 2. Efficient Administration of Law 1. but we need to deter the actors as well 2. Start with direct cause (Polemis). intervening/superceding. If we extend liability in this case of albinoism. the further we are willing to carry liability 2. Capacity to bear or distribute losses 1. but not future economic cost of raising child (child is a blessing) 4. Deterrence of future harmful conduct 1. This case boils down to not being foreseeable. How big of a mistake was it? iv. Some aggregious conduct -.g. policy factors ??? WHEN??? Scope of risk/scope of duty ??? . foreseeability of risk.1. g. Availability of insurance in the open market is significant – it tells us about forseeability b. nor can parents recover for wrongful birth (albinoism was not reasonably foreseeable result)…however parents can recover for wrongful conception (expenses incurred during pregnancy. Policy: i. Child cannot recover for wrongful life. Holding: a.need for compensation is great. Moral aspects of the defendant’s conduct 1. it will open the flood gates. The more faulty the defendant’s conduct. asbestos) something needs to be done vi. Ultimately you will talk about foreseeability first and then implicitly talk about policy factors c. If the theory you see goes against precedent. Need to consider precedent. Notes: a. Reluctance to expand novel areas v. Discuss who should bear the loss when it comes to allocating fault in comparative fault cases f. If you have cases on the books. Efficient administration – don’t want people to be able to bring claims for any condition that results from botched sterilization 3.
But for the railing not being so low. Negligence per se 1. 2. Cay v. When did they build it? State of the art defense perhaps…not really in this case ii. If he didn’t jump than more probably than not if the railing would have been higher. Standards themselves – serves as custom and maybe negligence per se iii. 2. 2nd element of duty/risk – Traditional duty i. Don’t really know numbers in this case . state of the art argument. State Department of Transportation 1. Evidence indicates that he probably didn’t jump or get pushed – thus cause in fact is proven. Policy factors in LA are unique – they are explicitly recognized ii. What would a reasonable department of transportation do? 1. would the accident have occurred? More probably than not is the standard. 1 element in duty/risk – Cause in fact (but-for. Seems here that state didn’t adopt iv. Facts: a. Reasoning: a. iii. A suit is brought against the DOTD. ii. substantial factor) i. There are appropriate cases where a child can sue and also for foreseeable injuries even if child is not yet conceived. c. Custom 1. Bridge railing should have been higher. Was this a place where they would reasonably expect pedestrians to cross? 2. b. He went to the bar and then leaves and falls over a bridge c. Hand formula 1. st b. (Negligence occurred and it was foreseeable that an injury to a child that could be conceived sometime in the future) e. Sister took brother to Jonesville and left him there. he wouldn’t have died. Basically need to know that both children and parents have rights f. What is the alleged act of negligence? i. Again. Not here – the standards are only recognized if a state chooses to adopt them.d. What do DOT’s from other states do? 3.
2. Res Ipsa 1. him jumping off the bridge – no duty of the DOT here) iii. 4th element – Scope of the risk/scope of the duty i. In this case there is an ease of association between accidental fall over the railing of the bridge and the failure to build the railing to correct height vi. Ease of association 1. Is there anything that could be a intervening/superceding cause? Drunkeness isn’t considered an intervening/superceding cause. ii. Only way to say that DOT is not liable in some way (comparative fault) is if the risk was not in the scope of the duty (e. but loss would be pretty high – amount of pedestrian traffic is important (probably pretty high in this case) v. Doesn’t really apply in this case d. 3rd element – Breach – basically a one line deal e. Foreseeability 1. jumping to suicide) . State may be better able to bear the loss 2. Cannot supercede negligence through the fault of the plaintiff—if it is the fault of the plaintiff then there is simply no duty (e. Need for compensation to family for their needs vii. Balance the cost of replacing the railing against the probability along with the expected loss.g. Policy Factors 1. Must be ease of association between the injury and the rule of law giving rise to the duty 2. Drunkeness can still be a but for cause – thus comparative fault iv. 3. Is it foreseeable that drunk people would cross the bridge just as nondrunk would? 2. This event is within the scope of the risk once you meet the burden of proof showing that lower bridge is negligence v. Doesn’t seem to be anything that the facts indicate. Can’t really determine probability.g. Courts are much more willing to extend the scope of the risk farther because of comparative fault 1.
4. There was comparative fault though – drunkenness of Cay was also considered a cause in fact 4. The gas station owner knew or should have know of the substantial risk in general ii. The injury was within the scope of the risk/scope of the duty. Facts: a. Holding: a. Does the duty not to sell to six year old extend to the sister? i. i. Courts have large discretion for allocation of fault – it is indeterminate 3. but could soften it (or make it worse because he said that he knew children were often unsupervised) b. Holding: a. Selling gas to a 6 year old 1. Does it matter that he knew girl? Still negligence. Robbins 1. Gas station attendant breached his legal duty…the risk was within the scope of the duty and thus he is liable for damages. DOTD better able to sustain the burden iii. Negligence was cause in fact of accidental fall b. Reasoning: a. Discussion of policy factors: i. He knew or should have known that there was a substantial risk that gasoline could be misused d. Risk to six year old and anyone that could be exposed to danger of unsupervised 6 year old is within the duty of the attendant e. Reasonable gas station worker i. Under any of these it was a duty which was breached – failed to act reasonably c. Is mother’s action (not watching them) an intervening/superceding cause? Probably not after we define the scope of the duty 3. DOTD’s liable for death of Cay. Hand Formula. Analyze by using Custom. She is turned back twice because she has a glass container instead of plastic. This case deal with whether you have to foresee the specific mechanism or just the general risk associated? This case focuses on general risk. Notes: . What is the alleged act of negligence? i.viii. Dissent: a. Jones v. Six year old girl goes to gas station to get gas. She finally is sold the gas. 2.
Who else are we concerned about? 1. Jailer’s duty – Jailer has duty to act reasonable in taking care of prisoner and third parties. escape and harm done to third party. Mother is also at fault…but this is not comparative fault because she is not a plaintiff claiming her own injuries. Children are to be judged at a standard of like age and development. However the policy is to promote marriage – don’t want people to have to act as police to their spouse. Until they bite. you do not have a duty to warn…not foreseeable. One bite rule regarding dogs (and children’s acts to some extent) – if they bite once. D. Time since last offender mattered (it had been years) and he had had treatment 2. you are on risk that they may do it again. If it is the plaintiff and they are injured and they were negligent. What about wife that knows husband is a known sex offender? 1. Walmart .a. reasonable. etc. iv. Controlling Third Parties i. If it is anybody other than the plaintiff (mother here) it is a question of allocation. then it is comparative fault b. There wasn’t any duty (under duty/risk) or it wasn’t foreseeable (under proximate cause) 3. If they were negligent. jailer could be responsible for suicide of inmate. However depends on circumstances – sometimes one bite by dog or one kick by child is not enough to impose a duty to warn v. Parents and teenagers – Duty to make sure certain things don’t happen – reasonable person standard 3. i. 4. Businesses a. E. thus children probably not considered negligent. However sex offender cases are special because tend to be repeat offenders iii. Posecai v. Generally. What about just violence (they know person gets drunk and is a violent/mean drunk)? It is possible to find a duty. 1. Employers – liable if in scope of the employment (vicarious liability – always on the exam) 2.g. courts do not impose a duty upon a person to control the conduct of a third person actor to prevent tortious conduct by that actor unless the person has a “special relationship” with either the actor or the actor’s potential victim ii. then percentage of fault would need to be assigned. Some Specific Proximate Cause/Legal Cause/Duty Risk Issues a.
Worker’s compensation – duty that employer’s owe to employees for safe conditions 3. (e. Need to consider comparative fault – would even need to allocate to phantom actor as well 5. E. First. They hired him and he wasn’t capable. The Employment Relationship i. b. Vicarious liability – employer duty to third party through employee – liable if scope of employment 2. Duty to Rescuers i. Third person is going to have action against employee under regular negligence. could find company liable outside of vicarious liability. Generally. iii. Immunity of spouse evaporates upon divorce 6.i. iv. you should think about three things: 1. When you see an employment relationship. etc. The greater the foreseeability and gravity of the risk of harm. original party will be held responsible for mere negligence of rescuer – matter of policy . If employee is found to be negligent. More precautions necessary in higher crime areas. they didn’t train him properly. Difficult case because of risk of harm on self if you interfere. Involves a balancing test to determine whether business owes a duty of care to protect its customers from criminal acts of third parties. Is duty owed to a roommate that has threatened suicide? a.g. Amateur rescuer is usually within the scope of the risks of the negligent defendant’s conduct iv. lighting). Third party and coworker are injured. Need to distinguish between the duty to rescue and the duty owed to a rescuer by the negligent party ii. then company can be held vicariously liable. Duty to third party from employers directly – not vicarious liability ii. Scope if different depending on whether the rescuer is an amateur or a professional rescuer iii. Duty of spouse to refrain from sexual contact or warn of symptoms a. involves action by third person. v. Balancing test (important!!) – Balances expected loss (e. the greater the duty of care that will be imposed on the business.g. Basic rule is that if they are threatening suicide. you shouldn’t give them a gun. Can have both vicarious liability and direct third party duty of employer c. Coworker would get worker’s compensation. higher where crime is higher). ii. Like apartment rape case (Viscii case) where apartment was held liable – within the scope of the risk (lack of locks. didn’t provide proper equip.g. Second. Workers are negligent in where they place a ladder. if children’s hospital hires a known sex offender) iii. Third.
Original tortfeasor is held responsible for the entire damages. Question of allocation ??? 2. and rescuer’s action was reasonable. party is injured in an auto accident. then original tortfeasor is held responsible for both damages to original victim and the rescuer – danger invites rescue a. Facts: a. professional rescuers do not assume the risk of all injury without recourse 1. If a party is engage in a rescue. but was drunk so he swayed when she went to put move on him 2.1. If grossly negligent rescue – may not have been in the original tortfeasors scope of duty 3. Holding: . Officer is trying to get person into handcuffs. A professional rescuer who is injured in the performance of his duties. b. Professionals are treated differently than amateurs because we want to allow amateurs greater recovery to encourage them 3. If you are a rescuer and an off duty doctor – heightens your reasonable person standard v. Court makes a point to show that he wasn’t resisting arrest (distinguishes from Worley case where recovery was allowed because of resist) so the risk wasn’t extraordinary/blameworthy…but Church thinks that even if he was resisting arrest – that should be foreseeable by a police officer (within scope of the duty) c. Gann v. is damaged. Matthews 1. Reasoning: a. e. Conduct of defendant is so blameworthy that recovery should be allowed as deterrence b. Dependant risks: usually bar recovery unless: a. ii. Professional Rescue Doctrine – if the injury is within the scope of the risk of employment. then there will not be any recovery i. “assumes the risk” of such an injury and is not entitled to damages. However. He did not resist arrest. Independent risks: May recover for an injury caused by risk that is independent of the emergency of the problem he has assumed the risk to remedy 2. negligent action of medical professional may cause more harm. Risks encountered are so extraordinary or b.g.
LA R.g. alcohol to individuals over the legal drinking age are not liable for any harm caused to intoxicated person himself or third party 3. Grossly Negligent Actors i. Limitation of liability does not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol. In America there is no duty to rescue – because person may create more risk ii.a. there are dram-shop statutes that impose liability on sellers – strict liability is imposed upon the seller of intoxicating liquors – irrespective of negligence ii. 2. e. you have a duty to rescue (even if not negligent) a. Where you engage in some activity that creates need for rescue. Legislature states that the consumption of intoxicating beverages. Duty to Rescue i. is the proximate cause of any injury 2. you have a duty to complete that rescue as a reasonable person would do. court may hold that the grossly negligent conduct is not within the scope of the risks created by the negligent actor.g. provide. e. it is fine as long as handing it over is reasonable e. Those that sell.1 1. than you can be held liable b.S. 9:2800. Grossly negligent actor’s conduct may bar or reduce his recovery from a defendant. etc. If you hand over the rescue. so there are exceptions: 1. ii. In LA. she was barred from recovery – this was a dependent risk and neither of the exceptions was met d. However this principle is harsh. e. Where you undertake a rescue. rather than the sale or serving or furnishing of such beverages. if you botch a rescue and do so in a way that is not reasonable. a. Does it break the chain of causation between the original actor and a third person injured by a combination of the original act and the intervening grossly negligent actor? 1. person is injured by dangerous horse you have nonnegligently stalled 2. f. Where your presence may deter others from rescuing a.g. . General rule is that an actor’s conduct may be so grossly negligent that it is not “foreseeable” to a negligent actor whose fault coalesces with the grossly negligent conduct to cause harm. but thinks that you will rescue the drowning person 3. In this case. In many states. Providers of Alcohol i. if you sit there with a rescue donut and someone drives by.
Statute only applies to intoxication of the actor – no mention of alcohol provider v. Statute has two elements: 1. but not by getting beaten up. Thus punitive damages could be applied to injury caused by the vehicle. b. Statute is interpreted narrowly – if legis. Also. Problem: no mention of minors iii. that is not within the scope of the risk. not the serving…unless there is an affirmative act 5. Has to be injuries caused while operating a motor vehicle 2. Court found that the Boot did have a duty not to sell to minors – it is illegal ii. court found that risk that caused the accident was within the scope of the duty of the Boot – reasonable that an intoxicated minor would beat someone up and hit them with a car d.4) i. Usually would say that if you go out and beat someone up. Zummo 1.4. The statute does apply to Berg (the kid that was harmed) in that he was injured by motor vehicle. 2800. Purpose of this statute: Don’t want to impose liability – drinking is the proximate cause. is whether punitive damages can be awarded (in LA. however the court says that it is foreseeable that drunk kids would beat others up. In LA. Two issues: Whether Boot is responsible? Second. Berg v. punitive damages are only allowed by statute ii. Second issue – whether punitive damages can be allowed (LA article 2315. iii. Important idea is that statute does not apply to the Boot bar – this is straightforward e. Needs to be alcohol related – individual intoxicated iv. Facts: a. punitive damages are only by statute)? c. Reasoning: a. First issue – responsibility/liability of Boot for damages i. Zummo beats Berg up and then hits him with his car after leaving the Boot 2.1 Proximate Cause issue . Boot serves alcohol to a minor – Zummo b. vi. Elements are met regarding the driver (however Church doesn’t really think that statute was meant to cover this type of incident…where beating first). wanted it broader they would have done so. vii.
i. Court gets rid of affirmative act requirement for minors – selling alcohol to minors itself is an affirmative act d.i. the serving of alcohol itself is really an affirmative act. There needs to be something in addition to just serving (throwing someone out when unwarranted. b. In this case. For minors. traditional duty/risk analysis is used (and no additional affirmative act is required) e. However if location off campus. or history at a particular place (fraternity) then likelihood of duty increases. Court spends a lot of time on Thrasher case – shows that statute really just codifies the established common law – merely serving alcohol is not the proximate cause…drinking is f. Hand formula – loss and probability versus the burden of taking precaution 3. Boot was liable 4. What is an affirmative act? i. telling someone that they need to drink until they puke) ii. Unborn Children .1 doesn’t apply – statute says nothing about minors b. Notes: a. Affirmative act troubles Church – omissions can cause just as many problems g. we are dealing with an underage so statute does not apply – but we focus on it because the trial court spent so much time on it h. not servers. Cases also exist that involve the duty that universities owe to students i. 2800. Court gets rid of the affirmative act requirement for minors i. ii. Under traditional duty/risk. Thus court uses as straightforward negligence (duty/risk) approach: i. To determine liability of vendor who sells or serves to minor. Punitive damages cannot be assessed against the vendor – statute does not apply c. Holding: a. punitive damages don’t apply – statute is to punish drunk drivers. then probably no duty. Does the university owe a duty to protect students? If they know of a particular instance. In this case. Same duty risk analysis if it is a minor providing a minor g. Takes you outside the scope of the statute iii.
Expert Testimony (really hard to win a case where there is no physical injury without expert testimony ii. Mental Anguish i. In many jurisdictions. Physical Symptom Requirement (needed some physical consequence in response to event – outward manifestation) iii. i. What is the mother’s right to recover from the employer? Worker’s compensation. Contact i. 1. 3. But if it can recover from mother. Employer had no choice…could not have prevented that act that caused the damage h. When a plaintiff is able to show physical injury. What about the unborn child? Could recover from mother (after immunity runs out when reaches age of majority). this section deals with mental anguish when there is no physical injury – thus separate tort Negligent Infliction of Emotional Distress (NIED) 3. there has been a yoyo -. we will give it where it is expected by a normal/reasonable person 5. Two divisions: a. Courts distinguish between negligent conduct directed at the plaintiff from cases where conduct is directed at a third party 4. Introduction 1. “Expected” – don’t have to have an outer manifestation. Cox v. Severity i. She would probably have some right. courts typically allow the injured party to recover mental anguish associated with the injury – these damages are considered “parasitic” 2. Emotional Distress is very easily faked.moving away from above rules toward relaxation and back again because too many people recovering . Actual contact ii. Woman messing around at work on a fork-lift while she was pregnant 2. Within the zone of danger (risk of physical contact) – LA has essentially eliminated the zone of danger requirement b. However. what about vicarious liability of employer? a. thus reluctant when there is no physical injury 6.i. Gaylord Container Corp. Parents may recover the damages they sustain when tortfeasor fault causes a prenatal injury to a fetus who is subsequently born dead because of the injury ii. Court found that employer could not be held vicariously liable because of federal requirement that woman be able to say in the same position unless she asked to move.
This case is a medical malpractice case – individual was negligently misdiagnosed and died seven hours later at home in front of parents b. Seems to meet proximity requirement 3. Instead it would be argued as a lost chance case . Anguish is foreseeable 4. and foreseeable 2. Facts: i. Trahan v. 1. The content: i. Need to be present or come across the event soon thereafter (no change in situation has occurred) – timing requirements ii. thus there would also be no wrongful death suit because of this causation question. Is the statute exclusive? Is this the only way to recover for NIED? No. Fundamental argument is that the parents were not patients iii.6 on page 241!!! a. Mental anguish must be severe. References LeJeun case where husband was in coma and wife comes in and sees nurse cleaning up blood from where rats had gnawed on him. Court says that even claims by bystanders falls under Medical Malpractice Act iv. it applies to a relatively narrow set of “bystander” cases where there is no physical injury. b. Reasoning: i. She is related as needed 2. One issue: does this action fall under the Medical Malpractice Act. 1. Second issue: Whether bystander damages are recoverable in this instance where the event observed that allegedly caused anguish was negligent omission of the doctor v. ii. Article is strict c. Statute limits the parties – don’t want randoms to be able to recover even if they are present iii. debilitating.ii. McManus a. Trial court found for doctor in that son would have died regardless of negligence. Article 2315. Conduct Directed at Third Parties 1. She would have to prove severity Main idea is that the statute is basically a codification of the LeJeun case.
well-defined relationship (list in statute) 2. Need for temporal proximity between tortious event. Elements: 1. vii. however. the defendant could not have reasonably anticipated any harm to the plaintiff . Distress must be severe and debilitating (may need expert testimony) xi. Negligent discharge was not an emotionally shocking event d.vi. Action has to be the type that a normal person would suffer distress 4. 1. Notes: i. Closely. which does not work. viii.6 because it is not the kind of traumatic event that the statute deals with. Clearly parents fall within the category of person of the statute. Action in this case was misdiagnosis – this negligence event itself was not the traumatice kind that the statute was meant to cover c. the court decides that misdiagnosis is not a traumatic event – not what the statute envisions.6 – Must fit under the statute. and plaintiff’s emotional distress arising from the awareness of the harm caused by the event – immediate shock of witnessing a traumatic event which caused immediate emotional harm that is severe and apparent ix. Does not fall under 2315. Appeal court reversed – (so there would be wrongful death to the wife and kids. Holding: i. This event happened over time. Common law rationale for limiting recovery if that absent impact or near miss. ii. Court finds that Medical Malpractice Act does apply – Doesn’t matter if third parties as long as the mental anguish arises from the injury to or death of a patient caused by the negligence of a qualified health care provider. 2315. victim’s observable harm. timing is very important 3. Claimant need not be the direct patient. but not the parents…thus they are going for NIED). Be at scene or come upon shortly thereafter (no change in situation) – very strict. that injuries are serious x. Claimant must realize at the time he witnesses.
Driver of second vehicle is trying to recover from school for bus driver’s negligence under emotional distress claim. Woman driver was a direct participant in the incident…not just a normal bystander 2. public utility cases.6 governs) iii. General rule is that if the defendant’s conduct is merely negligent and causes only mental disturbance without physical injury. Recovery of damages for mental anguish has almost never been extended to one who observed the victim’s suffering at a place other than where the injury-causing even occurred or at a time not closely connected to the event (practice test would be an example) iv. Where conduct is directed at actual victim (next case) -. Conduct Directed at Mental Anguish Victim 1. 2315. Another way to interpret: violation of statutory duty. Where conduct is directed at third party (statute 2315. Failure to take photographs or develop film e. where the plaintiff was actually in great fear for his personal safety 3. There are exceptions of when recovery is allowed outside of the general rule – pg. Claimant must be contemporaneously aware that the event has caused harm to the direct victim iii. Failure to install.6 b. a. repair consumer products d.corpse cases. Moresi v. Mishandling of corpses c. maintain. 1. Negligent transmission of a message. especially one announcing death b. Cases allowing damages for fright or nervous shock. etc. This is an exception to 2315. Direct Participant Exception – Bus driver violated statute because he failed to put stop sign out. Notes: i. Two different areas where we allow recovery: 1. so damages can be extended in this case – doesn’t really make sense to Church . then defendant is not liable 2. State Department of Wildlife and Fisheries a.ii.6 doesn’t cover mishandling of corpses because corpses are not alive 2. 252 a. Negligent damage to one’s property while the plaintiffs were present and saw their property damaged f. bill collection.
skating with friend that is hit by a car and experiences a near miss is not good enough to be a direct participant. Inspector says there are no termites.g. In states that recognize a tort duty in the absence of privity. Facts: a. seems to be an exception to 2315. Barrie v. Akin to Privity View: Extends liability only where there is a relationship where defendant is atune to the third party existence. E. Need a pathway b. Increased Risk – hardly anybody gives this a. “Fear of” may be limited in time 2. but includes some contracts issues as well ii. you can recover for emotional distress i. Wasn’t a contract – party was not in privity – no relationship between termite inspectors ad new owners (Barries) 2. 1. three standards can be chosen from: i. “Fear of” Cases a. Ways you can recover in Exposure Only Cases: 1. Reasoning: a. but there really were – negligent inspection – usually statutory duty to give inspection certificate of termite inspection c. exposure to asbestos. ii. Key is determining who is a bystander and who is a direct participant – e. not recovering as bystander? 4. Inc. and thus need testing 3. you are not going to get this i.6 (Therefore there are two exceptions – direct victims as in Moresi and direct participant. Medical Monitoring a. Misrepresentation i. Needs to be an extreme risk c. Falls into category of torts.g. Need actual presence of the disease – policy decision to limit claims ii. This case deals with negligent misrepresentation – much harder than intentional misrepresentation (fraud) b. Exterminators. If you don’t have the disease. Either way.3. V. Issue: Whether duty runs to subsequent purchasers? (This is why we have certificates – for benefit of purchasers) 3. Where you don’t contract the disease. Basically the only reason .P.
the exterminators knew that realtor would sell to the third party. Encouraged to carry gun. Foreseeability View: Knew or should have know rule. Most times is applied when the defendant had a pecuniary interest (ran business) j. Training was 8 hours. iii. b. LA does allow recovery in tort for purely economic loss caused by negligent misrepresentation where privity of contract is absent d. ii. Damages caused to the plaintiff as a result of the breach b. This rule just seems to narrow the group. Negligent Hiring. He was labeled a deputy in order to get higher pay c. Existence of a legal duty on the part of the defendant to supply correct information or to refrain from supplying incorrect information ii. Training. Is this case. Majority rule. LA doesn’t adopt any of them. Benoit 1.that the person is not included is because of a technicality. Facts: a. Decide to wait and see what each case presents (common law approach) – if he had to guess he would say they would take foreseeability approach c. and iii. Need to be aware of the third party and know that the contract is there to benefit them. Elements of a claim of negligent misrepresentation: i. Allows recovery to third parties “to the extent that damages incurred by non-clients are reasonably foreseeable. Off duty police officer (actually a cook) who gets drunk and shoots someone. Restatement (2d) of Torts View: This view is very similar to that of foreseeability. Roberts v. Misinformer needs only know its client intends to use the inaccurate information to influence a particular business transaction. Termite inspectors had a duty and breached it. Restrictive minority view. Not required that plaintiff be identified or known to the misinformer b. 5. Notes: a.” Dispenses with privity notions altogether. Holding: a. d. Duty/risk is used in this case – but similar to Restatement view 4. However. Breach of that duty. and Supervision i. but not required .
i. How do you define Foti’s duty in this case? a.2. Negligence per se – statutes regarding training d. Basically uses a duty/risk analysis i. it is foreseeable that deputy would be negligent when only 8 hours of training are given).g. Ease of association was lacking a. There was a duty of the employer 1. Also. duty/risk j. Negligence here is promotion to a position where you could have a gun – training is not really the main problem c. More training may not have even helped in this case i. Question regarding actual cause – he had another gun with him anyway – thus hard to say that job promotion was the but for cause e. Reasonable sheriff. Case of negligent hiring versus training – promotion was the main problem (of course training didn’t help) d. Holding: . Fundamental problem – he shouldn’t have carried a gun associated with law enforcement b. No benefit to owner 2. There was negligent hiring. However proximate cause is not the real question… it is a question of actual cause 3. The employer received no benefit from the meeting from which the wrongful act occurred g. This seems to be a proximate cause analysis v. Custom c. Foreseeability of such activity by employee was lacking h. Hand formula – expected loss is much higher than burden 2. Scope of the risk – 1. He would adequately train. Reasoning: a. Found that defendant’s (negligent hiring) action were the but for cause – Church disagrees ii. not promote by title simply for monetary differences b. but injury was not within the scope of the risk. he was drunk and not motivated by any job concern f. Policy factors – Church thinks liability should be imposed in this case…doesn’t think floodgates would be opened and thinks all policy factors are met (e. Obvious breach of traditional duty iii. Totally personal motivation b.
Issue: Was Mother liable under negligent entrustment? 4.a. Need to turn to employee/employer type relationship – mission theory (two purposes: establish relationship and course and scope). b. Theory of negligent entrustment. b. Workers compensation ii. 2. Holding: No. Does this theory apply in this case? i. Notes: a. . Joseph v. had a record. No direct negligence of mother. Christina (daughter) was taking g-ma to the doctor. etc. Can’t really say whether Christina was negligent or not. Key is that they have to find mom responsible in some way. Can’t use vicarious liability because you have to have underlying negligence for this to apply (proof of negligence by Christina is lacking here – not negligence per se that she drove without insurance because that has nothing to do with her ability to drive) also Christina is not a minor b. a. and action was gratuitously performed (man point is that there was no underlying negligence). Thus. No – need negligence before you can impute anything c. had driver’s license. need to talk about: i. c. Daughter is not insured and is not included under mother’s policy (Mom signed form excluding daughter from policy) e. no negligence was proven. Dickerson 1. When an employment relationship is mentioned. Mother did not breach duty – Christina was capable. Negligent hiring. there was negligent hiring…but injury was not within the scope of the risk – thus no liability under negligent hiring 4. Not within the course and scope of employment nor motivated by the job. Facts: a. Analyzed under same theory as negligent hiring except parties in different situation ii. d. Therefore in this case we are concerned with mother’s own negligence. Duty would encompass if Judith knew that Christina was a bad driver. training k. no license. Mother had asked the daughter to take her. Vicarious liability iii. Christina was 19. Negligent Entrustment i. Reasoning: a. No vicarious liability because Christina is not a minor. 3. and no negative driving record. thus no vicarious liability also.
c.g. Notes: Hunting case (Watson) with boy Shane is a good example of negligent entrustment l. Allocation of fault – allocating among the various defendants – responsible only for fault allocated to them v. If it is gross negligence. Contributory negligence – bars recovery of plaintiff because of their own negligence iii. Comparative fault has been adopted by the majority of jurisdictions vi. Subsequent Injury i. baseball park cases vii. Some original negligence results in an injury followed by negligent treatment which results in exacerbation of injury iii. assumption of risk and failure to mitigate) or 2. Victim Misconduct a. v. Yellow Cab . but not the subsequent injury (similar to second accident cases) ix. iv. Li v. A few cases that used to be contributory negligence are still no recovery – called “no duty cases” e. Question: Who is responsible for what? Basically we decide what the original party is responsible for. The failure to timely pursue the claim (prescription and preemption ii. Rule: Joint tortfeasor’s shall not be responsible for more than his degree of fault CHAPTER 7 – GENERAL DEFENSES A. Danger invites rescue…thus foreseeability. vi. Original tortfeasor is still responsible for injury they created. Strong rule of thumb: mere negligent treatment is foreseeable. His agreement in advance that the other actor need not protect the victim from certain harm (waiver) or 3. Hinges on foreseeability. Straightforward negligence case 5. Contributory Negligence i. While negligent treatment is within the scope of the risk of the original negligence…allocation of damages is still an issue and must be distributed to both parties (comparative fault is different because comparative fault deals with allocation of fault) viii. Only separate the two instances if there is gross negligence – thus becomes superceding cause. Involves multiple accidents ii. Comparative fault – works to reduce plaintiff’s recovery for their own fault iv. then it may be that we will separate and not make the tort feasor responsible for the negligent treatment vii. The circumstances in which victim conduct bars or reduces recovery include: 1. Victim’s own unreasonably risky conduct (contributory negligence.
difficulties of comparative fault doctrine are not insurmountable. Some doctrines were developed saying that plaintiff’s conduct is a complete bar to recovery unless the defendant had the last clear chance to avoid the harm. Dumas v. Also says that if the victim is negligent. however the statute actually discusses allocation among defendants – including the plaintiff’s fault as well ii. fell. Administration of rule. a. 3. then the victim’s recovery shall not be reduced 6. willful misconduct. Some states have a modified theory where the person that had the most fault cannot recover but the other party can viii. but the other party is intentional.g.1. State 1. Pure comparative fault theory – both the court in this case and LA have adopted this. a. Last clear chance doctrine – peculiar and very harsh. Dumas was riding a bike. In this case. Article 2323 – see page 288 i. etc. fact finding. and died later that day . hit a pothole. Definition – apportions liability in direct proportion to fault in all cases b. We should know that comparative fault (deals solely with fault of plaintiff in reducing their own recovery) and allocation between defendants should be distinguished iii. the risk is not within the scope of the duty 4. baseball game. Doesn’t exist anymore – now a factor when considering allocation when doing comparative fault 5. Also says that you need an empty chare for absent parties – remaining parties can only be responsible for their own percentage of fault – thus plaintiff will not recover 100% iv. Assumption of the risk – considered to fall under comparative fault doctrine now – in those cares that still exist that used to be termed assumption of risk…it is said that there is simply “no duty” e. last clear chance. Negligence equivalent to consent 2. Statute should in theory be the defendant’s defense regarding plaintiff’s fault in reducing recovery. Facts: a. Means that there was some fault on the part of the plaintiff…but the defendant was more responsible so recovery should not be barred b.
Both hospital and state need to be allocated fault (even though hospital is not a party to lawsuit) 4.Could argue to jury that certain guidelines should be used: i. and one comparatively negligent plaintiff…the one negligent defendant will be responsible for his fault.b. Basically turning duty question over to the jury. Exceptions where plaintiff’s activity may bar recovery: i. but it is still split up. but the intentional defendant will be responsible for both his own fault and that of the plaintiff c. Look at statistical evidence (maybe indicating gross negligence by hospital – thus could separate injuries and make each party solely liable for their own injury) – normally people don’t die from this sort of injury (lacerated head) d. Situation where there is original negligence (by state) and then negligent treatment (by hospital). How far did each party deviate from standard of care? ii. One exception is vicarious liability.g. Regardless of theory (strict. In past. Court gets rid of solidary liability and replaces with comparative fault…thus each joint tortfeasor is only liable for his degree of fault and cannot be held solidarily liable with another tortfeasor for damages attributable to that other tortfeasor’s fault c. one intentional. Holding: a. original party would be 100% responsible for death (solidarily liable) and would be responsible to pay for all damage (even those of negligence of treatment)…however legislature got rid of solidary liability and courts are told to assign a percentage of fault to each responsible party b. If you have multiple parties – one negligent. Reasoning: a. With intentional tort. negligence) fault with be allocated. 2. Wife and children sue state for wrongful death (hospital not a party) c. When contributory negligence is deemed the sole legal cause of the accident . absolute. i. intentional tortfeasor may be responsible for the plaintiff share of the fault. Jury is given free reign to decide percentages. E. Notes: a. b. Solidary liability and joint and severable liability are the same thing – have been eliminated in LA 3. This difference with intentional torts doesn’t affect vicarious liability.
Reasonable 12 year old standard (like age and development)…however could argue an adult standard because of the activity ii. What about Earl? i. What about Shane? i. Reasoning: a. c. Watson gets shot. Contributorily negligent trespasser is barred from recovery against a merely negligent landowner ix. Definitely negligent. State Farm 1. Reasonable parent standard. Facts: a. Also there seems to be no question that the risk falls within the scope of the duty. Reasonable 12 year old should know to look to see what you are firing at. Watson invited Creel to his property. Watson v. At minimum it was a substantial factor d. Earl Creel gets a shotgun for 12 year old son Shane. You can have more than one but for cause as well as more than one proximate cause. Essentially contributory negligence…scary!!! 2. Watson was at fault – thus comparative fault b. Parental responsibility standard ??? 1. He had a duty and breached it. Definitely within the scope of the risk v. Shane was given little to no training (had only fired it twice) c. iii. b. 3. Point: Jury confused causation with some of the other elements ii. Was negligence a but for cause? Yes. 4.ii. Also a but for cause – but for the failure to adequately train Shane. He had a duty and breached it…thus negligent as well. All three people’s negligences are but for causes i. Shane is placed on the hunting land all by himself d. Should have trained his son on how to use a gun 2. . e. but he knew hunters were there and declined to wear hunter’s orange when it was offered f. ii. would the injury have occurred? No…more probably than not the injury would not have occurred. Statute bars recovery iii. Jury decides that Watson is 100% at fault i. iv.
Ramada Inns. and v. i. The significance of what was sought by the conduct iv. Knowing and voluntary – you know risk and walk in regardless . **Factors are listed which may influence the degree of fault and can be used as guidance (similar to policy factors): This list is the best determination of how you allocate fault between parties. 40% Shane. Court says that it is impossible that Shane should bear no responsibility. However policy factors should also be considered…but need to be careful how you argue policy factors to the jury. Any extenuating circumstances which might require the actor to proceed in haste.iii. Somebody how has control of the firearm has a heightened duty – either Shane or Earl f. 40% Earl. without proper though h. Ramada Inn was negligent – no diving sign and no lifeguard b. whether superior or inferior. You can also have an injury that is within the scope of the risk of many parties e. Court doesn’t agree with the jury – they allocate a new percentage of fault i. Inc. Assumption of Risk i. Unique in LA that appellate court can allocate percentages instead of remanding to trial court g. Holding: a. How great a risk was created by the conduct iii. Murray v. Earl would be vicariously liable for Shane’s percentage b. Person dove into shallow end and suffered a head injury 2. However. Fault reallocated 20% Watson. 1. there is a higher risk of firearms…which Watson also knew. If Earl and mother were still married or Shane lived with Earl. 2) Also. Whether the conduct resulted from inadvertence or involved an awareness of the danger ii. Shane’s mom is who would be vicariously liable for Shane because he is in her custody…but she is not a party to the lawsuit…so most likely would not recover that 40%. Facts: a. i. The capacities of the actor. Assumption of risk – is equivalent of consent in intentional torts i. 1) Watson was not inadvertent…he knew. Reasoning: a. In this case. 3.
but said to be cautious (not sled in street) 2. but is implied in circumstances. 3. b. Reasoning: a. and if there is then comparative fault if negligence on both sides. d. Kids sled using garbage cans lids and went down hill into backwards head first. Majority of cases fall into the implied secondary cases which go to comparative fault c. Discussion of express. Could argue that Ramada did not have a duty…but that is not what happened ii. School had sent out a memo encouraging sledding. Example of the old implied primary case – baseball park case. Policy consideration: school shouldn’t be in position to insure in this case . Today we would say no duty. Whether there was a duty should not hinge on the knowledge of this particular plaintiff – it should be a reasonable plaintiff. Implied primary – nothing oral or written. College student went sledding in parking lot. Facts: a. baseball game) iii. Conclude that it is not within the scope of the duty (e. Hit a light pole and college student got paralyzed d. you have a duty to protect the average person.b. implied primary. We do not talk about implied assumption of risk – basically we ask whether there is a duty. Pitre v. No protection was around the light poles. As a defendant. b. where risk is so obvious that there is no duty b. There was a duty on both sides…comparative fault (old implied secondary). c. A reasonable defendant would assume that the plaintiff would know and take adequate care of themselves. Holding: a. Louisiana Tech 1.g. What used to be express assumption of the risk is still express assumption: You can sign or orally commit – it is a waiver (waivers are limited in LA and most other states– cannot waive responsibility for personal injuries…can only waive economic damages and a few others) ii. Court does a large hand formula and found that school didn’t have a duty to protect from this risk – risk was too obvious that reasonable care would have notified victim (“no duty for open and obvious risks” doctrine) c. and implied secondary assumption of the risk that used to exist: i.
d. Cost to prevent would have been enormous as compared to the loss and very small probability– hand formula e. Involves balancing the utility of the light pole with the risk associated 3. Holding: a. No duty – obvious and apparent risk b. Represents a no-duty case called “no duty for open and obvious risk” doctrine (used to be implied primary) 4. Note: Good example of how to draft an answer on an exam – duty/risk analysis c. Waiver i. A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy ii. Wolf v. Ford 1. Facts: a. Woman is suing an investment firm because of negligence, but there is an exculpatory clause that waives claims against the firm. Involves a contract. 2. Reasoning: a. Lists three instances where public interest will not permit an exculpatory clause in a contract – grouped into three general exceptions: i. Not permitted to excuse liability for intentional harms or for more extreme forms of negligence (gross, wanton, reckless) ii. Contract cannot be product of grossly unequal bargaining power iii. In transactions affecting the public interest e.g. public utilities, common carriers, innkeepers, etc. b. Tunkl court developed a six-factor test to be used as a rough outline to help determine what type of transaction an exculpatory clause will be held invalid: i. Concerns a business of a type generally thought suitable for public regulation ii. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public iii. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards iv. As a result of the essential nature of the service, in the economic setting of the transaction, the party
invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services v. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence vi. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents c. Note: Adhesion contracts are not always unfair d. Court doesn’t adopt the six factor test – but say that it can be used as a guide. e. Instead they adopt a open-ended test: “whether the exculpatory clause goes against public policy” which is determined in a case by case basis (lots of freedom) f. This case is not a good case – clause just relieves the employees from simple negligence – investing money is risk. i. If you had a clause that provides exculpation for gross negligence, then it would probably not have been done with equal bargaining power iii. Wolf case raises a factor based analysis, but in LA we have a specific statute – 2004 on page 330. 1. In LA (2004 statute), you can’t exculpate yourself from intentional or gross negligence. Also, can’t limit liability for physical injury which is what Ramirez deals with 2. Thus, why do carnivals say they are not responsible for physical injuries since it is not valid? Can be relevant regarding comparative fault because person was aware of the risk…also limits litigation…puts people on warning of the risks iv. Ramirez v. Fair Grounds Corp. 1. Facts: a. Negligence was lack of hand rails to prevent people from falling off of loft b. Language of clause says that Fair Grounds will not be responsible for any risks including death, injury, etc. c. Clause mentions an indemnity clause – where one party agrees to pay the damages of the other party that they have to pay to a third party (e.g. insurance) d. Fairground’s clause names the applicant (Ramirez here) as the indemnifier. 2. Reasoning: a. Indemnity clause doesn’t work here – there is no third party
b. Not a true indemnity clause – if there was a third party involved then it would be fine…but in this case the Fairgrounds is trying to get the victim to indemnify for damages that they have to pay to the victim. c. Main idea of this case is that clause is null and void that tries to limit liability regarding personal injury. Clause is deemed to not exist. d. What if it was for monetary damages? Is the clause completely removed since it dealt with physical injury or do you keep the parts that are valid and strike the rest? i. 2004 is strict – you get rid of the whole thing if you run the risk of including things excluded under 2004. ii. Don’t get to keep things that benefit you when you went against public policy d. Mitigation i. Mitigation is how you handle the damages once the injury occurs. Victim has a duty to take care of injuries and not just let them worsen. ii. Basically you have a duty to mitigate damages as a reasonably prudent person – not just sit on your butt – need to try and lessen/control injury iii. Mitigation and comparative fault are different – one after injury, one before 1. Timing is what separates mitigation from comparative fault for the most part iv. Pre-Accident Conduct 1. Seat Belt Statute (pg. 332 is the language – E is pertinent section) a. What is failure to wear seatbelts? Church thinks it should not be mitigation…should be comparative fault (because it really deals with the prevention of risks) b. This provision is a public policy issued by legislation – we adopted statute requiring seatbelts in order to keep getting funding from federal government – straight public policy c. Contradictory statute because it requires you to wear a seatbelt, but then says that a failure to do so will not mitigate damages. d. This statute doesn’t fall under comparative fault either. 2. Safety Helmet Statute (pg. 332) a. Church doesn’t agree with this statute either – doesn’t account for the damage to the other party (seeing brain splattered on the pavement). There is an external benefit to wearing helmets. b. He thinks that this goes under comparative fault again and not really mitigation – it is pre- accident conduct, not post which is usually what mitigation is. v. Post-Accident Conduct 1. Jacobs v. New Orleans Public Service
Failure to mitigate will only limit recovery of damages you failed to mitigate – doesn’t completely bar recovery of initial injury e. Need not make extraordinary or impractical efforts iii. 2. Pg. For medical malpractice and attorney malpractice b. Laches – common law doctrine that we aren’t going to worry about ii. In LA. Expense and inconvenience of treatment are also considerations in determining reasonableness of person’s refusal to submit to treatment v.a. Stale Claims i. If you show that there was a failure to mitigate. Laches and Statutes of Limitations 1.0 that we extend the statutory period because they deal with children. Notice that in 3496.1 and 9:2800. Three years from date of negligence…that’s it…you cannot extend it. prescription is usually 1 year from date of injury or in some cases you can extend this through contra non valentum to one year after the injury was discovered. Failure to mitigate has to be where there is some causation. 3. Recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery iv. Drop dead deadline – cannot be extended c. An unreasonable refusal of medical treatment which does not aggravate his injury will not restrict a victim’s recovery b. peremption is typically three years a. In LA. 4. run of the mill case that the 1 year prescription can be extended by contra non valentum . Accident victim has a duty to exercise reasonable diligence and ordinary care to minimize his damages after the injury has been inflicted ii. Mitigation has to be something that would lessen the impact. then all the damages after the injury are attributed to the plaintiff f. c. 333 talks about guidelines for mitigation: i. General Statutes of Limitations (Prescriptive Statutes) See page 334 for statutes 1. Need to distinguish between peremption and prescription – doctrines both set a time limit 2. Need to know that for a typical. Burden is on the plaintiff – different than comparative fault??? Is this right – see page 333 it says burden is on the tortfeasor in this case to show unreasonableness of refusal e. d.
Abandonment – a. After dismissal for abandonment. Easiest to name all though. Reasoning: . Corsey v. since the suit was abandoned. Best way to interrupt the prescription period is to FILE SUIT!!! a. Med mal and legal mal have 1 year prescriptive periods that can be extended through contra non valentum…but only up to the 3 year peremption mark 4. a. However. Should have filed by June 18. if you didn’t know or shouldn’t have known that they were liable than you can maybe claim an extension of discovery period. children…also criminal acts iii. however this case is argued to fall within contra non valentum b. Incident on June 18. Suspended prescription – a. so the successor suit will almost always be barred by prescription 4. 1973. Period is suspended between spouses during marriage and parents and child while child is a minor 5. the plaintiff is not precluded from refiling suit (dismissed without prejudice. it is considered as not having been filed. Basically need to find another doctrine other than solidary liability for an extension (e. One of the injuries was brain damage iii. relation back in Corsey case) 3. thus res judica does not bar) – interruption is considered never to have occurred if plaintiff abandons c. is failure to meet deadline… clear wrong 2. Special rules for special circumstances – e. Hitch: If you beat the prescriptive period for one and not the others and the one you beat the deadline for is let go/dismissed – you have not beat the prescriptive period against the others.g. you meet the prescriptive period against all. ii. Biggest claims for legal mal. 1972 and filed on June 25.3. Solidary obligors – if you file suit against one. 1974. i. However. Suspension and Interruption of Prescription 1. State Department of Corrections a. I thought we got rid of solidary liability in LA? We did – treated as solidarily bound only for purposes of prescriptive period b. Facts: i. b.g. Most common type is failure to take a step in the lawsuit for three years.
Where the cause of action is not known or reasonably knowable by the plaintiff. even though his ignorance is not induced by the defendant (principle will not except the plaintiff’s claim from running of prescription if his ignorance is attributable to his own willfulness or neglect) ii. Plaintiff cannot invoke contra non valentum merely because of physical illness at least when illness arises independently of any fault on the part of the defendant vi. However here. Negligence itself caused the brain damage iv. Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting 3. Four categories of contra non valentum (prevent prescription from running): 1. either the third or fourth area of contra non could be applied . the third area of contra non valentum applies to when the conduct of the defendant in preventing the plaintiff’s pursuit of the claim was separate from the wrongful conduct giving rise to the claim itself (affirmative act)– but if it does fall out of same activity it should definitely apply then the court says. LA distinguishes between personal disabilities of the plaintiff – mental incapacity (which do not prevent prescription from running) and an inability to bring suit for some cause foreign to the person of the plaintiff (which does suspend its running) 1. the mental capacity was produced by the defendant’s own tort – thus contra non can be applied v. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action and 4. Usually. Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s actions 2. In this case. This case was put under the discovery doctrine (4th situation recognized under contra non valentum) even though it could have fallen under the third situation as well iii.i. vii.
The fourth type of contra non (knew or should have known equity provision) is only used in exceptions where needed – e. v. then period probably hasn’t begun yet). Accident on April 28. 1. Usually we talk about claim-splitting in this case – want parties to bring suit with all injuries included. If you file an action just prior to the end of the prescription period and it wasn’t right – you have to look at relation back (easier to relate back for claims than for parties) iv. Contra non valentum cannot extend the peremptory period. Presumably somebody would have been around to file for him. 1998 b. Contra non valentum is applied and prescription is extended d. Holding: i. 2.g. at what point should you reasonably know or should have known you had an action? You need to know there is a causal connection. Notes: i. State 1. latent diseases. State filed on April 22. If you dismiss it (file and withdraw) you kill yourself…don’t withdraw unless you know you should – DO ADEQUATE RESEARCH so you don’t get sanctioned when they find out it wasn’t a good case 2. 1999 . iii. However. Basically if you have a pretty good suspicion of causation than statutory period has probably begun (if doctor assures you it is unrelated. With latent diseases: a. What if he had just been incapacitated (insane)? Not the same result. Most important thing to remember is TO FILE!!! If it is a mistake and you withdraw immediately then you will not be sanctioned. As a result.c. Action v. Facts: a. Choose to wait to file and may forfeit chance 3. Renfroe v. there are relaxed requirements regarding claim splitting in this case 4. but can extend prescription iv. Suppose that you file or settle over injuries and after 1 year you discover you have another set of injuries? Arguably it is separate – thus prescription has run. ii. Either file early and risk low recovery because injuries are there completely or b. Latent diseases: 1. However there is a problem with latent diseases in this sense.
Difficult in this case – doesn’t meet the last three criteria listed below (virtually no relationship exists) ii. Amended claim must arise out of the same transaction or occurrence set forth in the original petition. Criteria for determining whether “relation back” is allowed: 1. since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed 3. The purported substitute defendant must not be a wholly new or unrelated defendant. This wasn’t a solidary obligor case because the State was dismissed (wasn’t their road) b. Notes: a. Reasoning: a. They thus try to rely on fourth doctrine of contra non valentum – that he reasonably should not have know d. Rule of solidary obligor is strict – suit timely filed against one defendant does not interrupt prescription against other defendants not timely sued where the timely sued defendant is ultimately found not liable to plaintiffs – no solidary obligation would exist c. 2.c. 1999 2. i. i. Action amended adding Jefferson and GNOEC on July 19. 3. Thus lose out on statute of limitations unless they can prove doctrine of relation back: Action against Jefferson and GNOEC relates back to action against state. the action would have been brought against him. Holding: Prescriptive period passed 4. The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant. Lesson: Should file against anybody you thought could be liable – wouldn’t be sanctioned if State was dismissed because they didn’t have time to do adequate research e. 4. Court found that this is something that should have been known. The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits. When would doctrine of relation back apply? .
Note: 1. Statutes of Repose (Peremption) 1. E. Wrong family member b. Relation back of claims is much easier i. Imputed contributory negligence – plaintiff’s recovery is reduced or barred if the fault would have been imputed had plaintiff been sued for the faulty actor’s conduct. Members of joint venture f. there must be: 1. Tort committed by the employee in 3. Employer-Employee a. regardless of whether his employer also is liable under respondent superior.g. Imposes liability upon one person for the fault of another b. mal. Need to find negligence on part of employee in cases we will be dealing with B. Tort can be intentional or negligent. Course and scope of the employee’s work with the employer ii. Two major issues: When is one and “employee” and When is the “employee” in the course and scope of his employment v. Employer/employee c. Peremption is a drop dead deadline – cannot be extended through contra non valentum 2. E. if you brought a claim against a child for negligence and he parent included under vicarious liability…you could add negligent entrustment because they are already on notice (same with employer/employee) vi. Statutory source is 2320 iv.i. An employer/employee relationship and 2. Imputation of liability – need negligence to impute. Parent and subsidiary (depending on how much of company is owned) ii. employer is suing employee??? g. Partnership e. If the employer also is liable. but must be within course and scope of employment iii. Statutes regarding med. and legal mal. An employee who negligently causes personal injury to a third person is liable for damages for that injury. Parent/child (above age of discernment) d. Generally i. Three requirements for employer to be vicariously liable. then there will be solidary liability for the employee’s fault . Generally a.g. are on page 346-347 CHAPTER 11 – VICARIOUS LIABILITY (Imputed Negligence) A.
If you are an independent contractor. If you are not an employee. but you are performing work… you are an independent contractor ii. The Employment Relationship i. you would have input on decisions. selection and engagement. Southern Pacific 1. b. ABC Manufacturing 1. Termination – if you are an independent contractor. Hickman v. payment of wages or salary. Actual control deals more with course and scope 3. Morgan v. Right to terminate ii.2. Facts: Goldin Worktec | | Morgan Hines See book page 511 for diagram a. or retaining an employee. Right of control – Right to control the specific mechanisms of the work…right to control work specifics and means of production (tools) i. Whose equipment is used? iii. there is a contract for a specified period of time or for given performance…thus right to terminate at will would sound like an employee b. then it is probably an employment relationship c. Employment relationship: a. Fundamental test: The single most important factor to consider in deciding whether the employer/employee relationship exists for purposes of 2320 is the right of the employer to control the work of the employee…. training. There are special rules/statutes to determine if a state is liable for actions of employees iii. Right to control refers to employment relationship b. There is some negligence on the part of Hines. a temporary employee from Worktec (temp agency) . In an employment relationship. If there is right to control.the Right of control necessarily encompasses supervision. and the power to dismiss 5. Actual control a. Thus a few simple factors to look at would be: i. Duration of employment – specific task or time period or not? 2. Right to control v. In addition to being vicariously liable for the torts of an employee in the course and scope of employment. the employer may be negligent in hiring. then there is no vicarious liability – unless it deals with ultrahazardous or inherently dangerous activity or the principal retains operational control over the contractor’s acts or expressly or impliedly authorizes those acts 4. supervise individual actions ii.
plus when used in this case they were evidence that there were two employers) i. Morgan has no relationship with Worktec whatsoever. Then there would be worker’s comp claim against both Goldin and Worktec (and another question of whether Hines could separately sue Morgan because he is not technically a co-employee) c. but what if we looked at it from Hines view if he had been hurt instead: i. If order to get out from worker’s comp restriction. but it is impliedly read in ii. Argument that Morgan should be under Goldin and not Worktec b. GC (Building) SC (Plumber) Employee (Joe) 1. Goldin is the employer of Morgan c. Worktec is the employer of Hines d. A third party gets hurt by Joe. limited??? – maybe because of mere negligence??? e. Court says that the one master rule doesn’t make sense because of growth of temp agencies – they rule that you can have two vicariously responsible employers c. 2. Reasoning: a. 4. Morgan is the injured party – and he wants to recover from Goldin (worker’s comp) but this is limited. Holding: a. If Hines is an employee of Goldin. Both are vicariously liable. concepts and vicarious liability course and scope – they are different.b. Course and Scope of Employment i. Two tests used to determine whether an employee is borrowed (they conflict in this case and are thus abandoned – but in other cases they still apply…we should use them. Worktec makes the “borrowing doctrine” argument – the one master rule. There is a mixing of worker’s comp. “Whose Business”Test: which employer’s work was being performed at the time of the accident ii. Similar to General contractor relationship: i. . “Right of Control” Test: Which employer had the right to control the specific acts of the employee at the time of the accident 3. Both SC and GC can be held solidarily bound d. Morgan would have to sue Worktec for vicarious liability of Hines 2. similar worker’s comp issue (limited recovery) Why is worker’s comp. Notes: a. 2320 doesn’t include language of course and scope.
Factors to determine course and scope (sounds a lot like factors of employment relationship. House of Décor 1. VL is responsibility to third parties iii. but in this particular case they were on a frolic and detour (go home to feed the dog) – no precision at all v. Two men owned a business and rented out the space above it to Williams c. He was an occasional employee at best. Frolic and Detour: Person is operating within the course and scope. running errands for job. There really was no employment relationship b. Fridge was being moved out of Williams personal residence iii. WC is employer’s liability to own workers 2. The place and purpose of the act in relation to service of the employer vi. Going to and coming from rule: Generally not within the course and scope. Employee’s duty to perform the particular act iv. They then turn to course and scope and find that it wasn’t within the course and scope. The time v.1. Reasoning: a. Course and scope is very fact specific – no good way to determine really iv. Landlord tenant relationship was personal…not business related c. Employer’s power to control iii. Business was closing and they told Williams he had to leave. Payment of wages by the employer ii. Court is faced with an instance where they have to just accept that there was an employment relationship b. i. The relationship between the employee’s act and the employer’s business vii. Reed v. d. but these are more incident specific): i. Williams asks a guy across the street (Reed) to help him move a fridge out of the apartment to the new business and the fridge fell on Reed’s foot…he sued for negligence of employee and vicarious liability of House of Décor 2. but need to look if person is on call. Motivation of the employee for performing the act and . Factors: 1. Facts: a. Benefits received by the employer from the act viii. being paid for travel – general rule is that you are not within course and scope until you clock in 2. ii.
g. Facts: a. b. The hours worked were long and hard – 12 hours shifts. Reasoning: a. This risk is foreseeable and is the type of risk that the employer should bear. e. a foreseeable consequence of a hard twelve hour day. In his trade and the custom of this business was for employees to stay in trailers on site and eat meals. Determination of the course and scope is largely based on policy – are the risks fairly attributable to the employer…is it foreseeable? e. c. Michaleski is suing the employer for vicarious liability 2. There is no question of an employment relationship in this case b. Leger was a oil wellworker. Foreseeability is important to the analysis d. No food was provided. Holding: a. there as well. Man was going off site to McDonald’s after a 12 hour shift to eat and because of exhaustion. but were provided an allowance to do so. The reasonable expectation of the employer that the employee would perform the act d. hit a man (Michaleski) f. iii. i. Notes: . Man was in course and scope and thus there was vicarious liability 4. so men would travel offsite to get food.ix. Michaleski v. This doesn’t fall within the general rule regarding going to and coming from work because he was paid for travel expenses. Found that business has reason to expect that employee would go and get food because of long hours and lack of food on the job – an allowance to get food was given as well ii. Course and scope in this case relates back to the fact that he was only an occasional employee 3. Question of policy: Whether this is a type of risk that the business should be responsible for…whether business benefits and whether it is foreseeable that risk would happened. He wasn’t on the clock at this time. Holding: Not within course and scope – no vicarious liability vi. Leger’s negligence was the result of exhaustion. c. Since the risk of harm could reasonably be attributed to the employer’s business – in course and scope 3. Western Preferred Casualty Company 1. etc. d.
d. 2. Comparative fault if third party is shown to be negligent as well. Foreseeability of risk is also a factor – in this case she went through an intersection that was extremely dangerous and that is where the accident occurred – risk not foreseeable by employer f. No allocation to employer if the employer is only liable through vicarious liability (they just get the employee’s negligence imputed). Timmons v. vii. Silman 1. then you could allocate between vicarious and direct which matters sometimes regarding which insurance policy will cover. the more likely it is to be within the course and scope e. You can still impose vicarious liability even if the employer says “I will not accept any deviation from work” – all employees slack… it is expected and foreseeable. Silman was running an errand for her lawyer boss in her own vehicle. The closer you are to the place and the mission. Vicarious liability is the last vestage of solidary liability – b/w employer and employee b. Fundamental Question: is this risk that employer should bear? h. then it could be different c. Proximity of the mission (both to office and to task) is very important. Thus she had to pass her work to get from post office to bank. you should also raise the issue of direct negligence of employer (should make sure food is around after a 12 hour shift instead of sending them out) c. and Tilman is suing Silman’s employer for vicarious liability b. whether it happened frequently and boss knew. Factors to determine if deviation is substantial or insubstantial (non-exclusive): . She went to the post office for her boss (post office was located in one direction from her work) and then went to the bank (in other direction from work). On exam. If she always stopped at bank on personal errand and employer knows it.a. Silman got into a car accident with Tilman. g. Reasoning: a. Cases are very fact specific – basically need to decide if this is something that can reasonably be attributed to employer b. Facts: a. time to deviate is important. If they are directly liable through negligent hiring. however she decided to go on a personal errand after the work errand.
networking etc. Lease at Loch Leven was not a business development tool – not used to promote business. Even though SSI’s name is on the lease. Additional risks created by the deviation. Hall 1. d. and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business. (Distinguished from Ermert case because Ermert had a track record of using hunting place for business purposes) b. Purpose of immunity statute is for people to allow others to use land – want landowners immune.i. in relation to the business errand. Question is whether the employee’s tortious conduct was so closely connected in time. Surrounding circumstances 3. the more likely your activities will be seen within the course and scope of the business f. high burden on plaintiff because they need to show that the lease is in company’s name and that the lease is actually used for business purposes. Temporal and special boundaries of the deviation iii. Therefore. as compared with conduct motivated by purely personal considerations entirely extraneous to employer’s interest g. the employee deviates from the employment related errand and commences with his/her personal errand ii. Richard v. and v. Even if there was evidence that they intended to use for business purposes. that didn’t matter because it hadn’t been used for that up to this point. She deviated too far from business mission (on a frolic and detour) viii. Loch Leven (landowner) SSI Hall (VP) Lease 2. Important principle: the higher in the corporate chain you are. c. If Loch Leven was the defendant they wouldn’t be able to declare immunity because they get paid… profitable enterprise…assumed duty iii. ii. Holding: She was not within the course and scope of her employment. they can still be found not liable – name is on lease for tax purposes. The nature of the employee’s work iv. Defendant is VP of SSI b. Facts: a. Reasoning: a. When and where. SSI wasn’t charging employees so they are immune . What about recreational use statute regarding immunity? i. SSI paid $10. e. place.000 for a lease with Loch Leven (landowner – leases to several parties) c.
E. Piercing the corporate veil theory iii. When driver is on a mission for the owner (This exception only applies if the owner has legal right to exercise control over the actions of the driver) 2. when driver is an agent or employee of the owner 3. Eg. Holding: SSI was not found to be vicariously liable. Vicarious for intentional torts: How do you determine whether employer is responsible for intentional actions? Employment relationship. Unless of course the action is extreme…at some point if it becomes a brawl it falls outside of course and scope iii. Single business enterprise theory ii.g.iv. Notes: a. however the subsidiary may not operate as a separate corporation and the corporate veil may be pierced to impose liability upon the parent corporation or the shareholders i. activity is usually within course and scope but it is factually specific . Mission of the owner theory – generally an owner of a vehicle is not personally liable for damages by another person driving their automobile… exceptions: 1. Little bit of cutting back of liability – thus same course and scope inquiry. but slightly different ii. Basically all the theories ask the same question – is this risk fairly attributable to this individual (owner)? b. Is bar bouncer – even if action goes beyond mere battery it will still be under the employer. in a sports game. Generally a parent corporation is not liable for the torts of its subsidiary. owner himself is negligent in entrusting vehicle to incompetent driver iv. same course and scope question…part of the mission of the employer…fairly attributable to the employer i. Therefore Hall is responsible (he could potentially recover from SSI if they had their own contract regarding reimbursement…but this agreement could still not be used as evidence of vicarious unless it was the practice to do for all employees) 4. There is really no reason to talk about this immunity because there was no negligence found in the first place 3.
Special Damages . that is designed to punish and deter the defendant and others like her e. Nominal: where plaintiff establishes the invasion of a right but no real damages c.) d. compensatory. Tort victim may also go for unjust enrichment (looks at defendant’s gain as opposed to plaintiff’s loss) or seek and injunction f. in addition to compensatory damages. Where it might matter is if you have an employer suing for damage of property of which their employee contributed to the damage iii. Lost earnings is a problem area – future life is uncertain. In practice…these are very difficult to calculate – basically there is wide discretion left to the jury and the district court i. Punitive: amount. B. Generally a. etc. Three types of damages: Nominal. 542 – discusses parent’s vicarious liability over minors “residing with them” ii. Compensatory: amount designed to place the plaintiff in the position she would have been in if the tort had never occurred d. Imputed Contributory Negligence i. Note discusses how you have vicarious only when the child is with you – the point is that they will not impose vicarious on both parents say if parents are divorced e. Theory is that compensatory award should equal the harm and punitive damages should be just enough to deter the defendant’s behavior h. Sexual assault and vicarious: People get uncomfortable with this area because courts basically substitute vicarious liability for where they should be using direct negligence (negligent hiring.if it is intentional than it would fall under vicarious liability d. Article 2318 pg. Doesn’t really matter anymore because we allocate through comparative fault ii. Look at whether employee’s motivation was purely personal and it not then whether the specific activity which caused the harm was in furtherance of the employer’s interest c. Personal Injury Damages a. and punitive b. The residency requirement has sometimes been interpreted as pretty much non-existent – thus jointly liable iii. Subrogation??? CHAPTER 8 – DAMAGES A. If you have an employee suing an employee – if it is negligence then it is under worker’s comp….iv. Twin goals: compensation (compensate victims) and deterrence (deter certain behavior) g. Parent – Child i.
S. rather than what he actually earned before the injury. U. Statistics can be relied on…but there are some subjective determinations (very difficult with children) iv. However do you discount and give net salary (discounted for taxes) or give gross salary? Not sure. Income taxes: Award is not taxable. 2. Sometimes huge awards are justified if the tort is particularly aggregious b. a. Theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily 2. Discounting: Damages are given in lump sums…so future wages have to be discounted. Martinez v. General Damages i. When they look at potential it is usually for those cases where someone hasn’t had the chance to do anything. a. Projected earnings will change a great deal depending on where you are in your life. If you make a choice to work at a place where there is a pay cut (law professor) they won’t look at potential you would have in a private firm 3. .g. If there is any certainty (already have a career) that should be used. 6. Fakouri 1. loss of services iii. ii. Basically just give it to the jury to determine. 4. Damages should be estimated on the injured person’s ability to earn money. 5. Need to discount by some interest rate so that you do not get too much (invest and get more money than should have) b. Cannot be fixed with mathematical certainty. a.i. Plaintiff may not obtain an award for lost wages unless he proves positively that he would have been earning the wages but for the accident in question – basically there needs to be causation. Either must be specially pled or have a “ready market value” – relative certainty however there are some uncertainties (loss of future wages) ii. There are some standards: expert witnesses are usually used in order to explain standards to jury. Fidelity 1. loss of earnings or earning capacity. E. With medical awards – as long as medical treatment is related to the injury…the tortfeasor must pay for all costs including overtreatment or unnecessary treatment unless these were received in bad faith 7. Folse v. Goal is to give the amount of money that will yield the stream of income you would have had. Hard to calculate. past and future medical expenses. Should probably forget taxes and give the victim the benefit of the doubt. Easy to calculate.
C. vi. ii. Basically awards are adjusted by degree of negligence or of causation Hedonic damages are lost enjoyment damages. the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful. Not the best way to calculate. a. This is distinct from pain and suffering.e. Property Damages a. Fundamental question is whether you get a separate jury instruction. the difference between the value of the property before or after the harm. Louisiana Gas Service Company i.iii. Dead person can recover for pain and suffering from the point of injury to the point of death…but not after death. In LA. mental anguish. You can get restoration if property is unique or there is some personal interest – need proof to say that it is an heirloom. pain and suffering. damages are measured only by the difference between the value of the property before or after the harm. v. then awards are probably lower and vice versa. Church in uncomfortable with this – especially in environmental cleanup cases where cleanup is extremely expensive but the value of the property is not great. 2. iv. “Day in the life” videos can also be shown 3. at his election. Also can have a “per diem” argument – suggests dollar amount to compensate for a day and then multiply that by the expected duration of victim’s life. Either way the awards can be staggering. with pain and suffering you know there is damage. 1. If causation is uncertain. Home is usually treated . iv. Lost earnings are different – others can recover lost support. we don’t know if we have separate hedonic damages section – however some feel that it is included in pain and suffering. Prefer not to adopt bright line awards – some people’s hands are worth more. If however. and loss of enjoyment of life For example. General rule is that when person sustains property damage due to the fault of another. A dead person cannot get hedonic damages (lost enjoyment). vii. in fact make the repairs. or. 1. but don’t know how much to award – thus jury or fact-finder (judge) determines. unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will. Or can ask how much you would pay per minute to be without this pain. In cases like this hedonic damages (lost enjoyment) would maybe be justified. he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred. Attorneys can do things like claim the bloody stump. if the cost of restoration is grossly disproportionate to the value of the property. E.g. Roman Catholic Church v. you are going to get the lost value) iii. etc. (i. 2.
but possible 4. Right of support from her husband a. Courts generally reduce the consortium plaintiff’s recovery by the contributory negligence of the trauma victim e. American rule: parties pay own court costs b. Recovered when victim is still alive. Loss of Consortium Damages a. Always need to be concerned with double recovery (e. lost wages and lost support) iii. Interest on damages (not punitive) is from date of injury. but it is limited. Bass i. Reluctant to use subjective valuation – if there is a market value it is used. but not attorney costs. Elements of loss of contortium: 1. Some jurisdictions say that loser pays for the winner’s court costs. Court costs are easily calculated. Love and affection 2. b. Finley v. Interest rate is in statutes. c. but will allow some exceptions. E. Right of performance of material services a.g. but higher level of proof regarding the causal . Courts are reluctant to award – victim can recover economic damages related to injury…can get lost earnings. If you meet any of them you can gain lost consortium iv. As long as it is work that you would not have performed but for the accident 5. Notes: 1. Assumption is that when lost earnings are awarded to victim that those that surround the party will benefit from this as well d. 6. D. vi. Aid and Assistance 7. We give more here. you can recover for material services you now have to perform or that you have to hire out.as having extra personal value – thus restoration damages. Can you recover loss of consortium when trauma victim is defamed? Could. Court costs are usually awarded to the winner. Awarded to those that surround the injured party – same persons that would have a cause of action for wrongful death c. v. Loss of felicity ii. We assume that some of the victim’s award for lost wages will be transferred to spouse so we don’t want to double award. Under a typical case. i. Society and companionship 3. Interest and Court Costs a. Can the defendant prove that you weren’t having sexual relations before the injury? Difficult. Sexual relations a. when you experience the loss. Rule for lost economics regarding businesses: have to provide enough certainty to show there is a loss.
Art. Art. DWI b. but judge still has great deal of discretion k. 2315. Couldn’t show that but for her being drunk the accident wouldn’t have occurred. C. Myers v. cause in fact and c.C.3 – see page 387: this is no longer in effect j. C. 2. In all jurisdictions something more than mere negligence is required – thus causation requirement and willful and wanton requirement. 2. Need some degree of causation. punitive damages are only allowed when justified by statute – drunk driving. Reluctance to award – thus punitive damages are not awarded everytime there is a drunk driver involved – causation needs to be proven (legis. a. Courts usually tell juries to consider the: 1. can change this if they see fit) f. Not limited quite like wrongful death (limited by categories)…but tries to approach similar guidelines. Some General Concerns i. Punitive Damages a. Negligence for punitive damages purposes may be imputed to principal through the acts of the agent h. In LA. Purpose is to punish and deter (deterrence is efficiency related) c. La.C. 2315. sexual abuse.relationship between defamation and loss of relationship (e.C. Also. don’t want to allow the plaintiff to have a windfall b. 2315. C. depression) 2. Must establish three requirements (need all three): a. Punitive damages are quasi-criminal – thus constitutional limits g. Prior to 1996 there was also a toxic chemical statute d. the jury can still decide not to award punitive damages. Juries would probably give a fiancee damages 3.4 – see page 388 i. La. wanton and reckless disregard (mere influence and impairment does not establish this. Usually marriage has to exist prior to the injury. Even if all these elements are met.7 – see page 390 l. Usually can’t marry into a cause of action – there are some cases that suggest you can though. . Art. Trauma victim’s “loss of consortium” is actually included under hedonic damages (loss of enjoyment – we don’t want to double count) F. Loss of consortium awards are disfavored because of threat of double counting 4.g. Jury issue. No punitive damages unless there are compensatory damages i. severity of harm with which the plaintiff was threatened. e. wealth of the defendant. La. Drunk driving was not the cause in fact. but a high alcohol level does) 3. Nunsett 1.
Due process and deprivation of property is read into states through 14th amendment f. amount of compensatory damages awarded. Basically. State farm moved for exclusion of evidence 2. Campbell 1. egregiousness of defendant’s conduct. Supreme Court says that Utah is imposing the punitive damage award fore behavior that may be legal in other states d. b. amount of any other punitive damage awards the defendant had to pay or is threatened with paying.S. c. fraud.000 times – wanted damages to be big enough to deter c. Lower court gave a large award because of the probability that State Farm would only get caught 1 in 50. State farm said that they would support Campbell in their lawsuit – that they shouldn’t settle. whether the harm caused was physical as opposed to economic 2. b. What is egregious about this? State farm had a policy to screw over customers – take things to court when they should have settled.3. The award from the trial was larger than the settlement would have been and State farm refused to cover th excess amount. The degree of reprehensibility of the defendant’s misconduct. Constitutionality of Punitive Damages i. IIED. There are federal constitutional limits on where punitive damages can be awarded and how much. d. State farm then instructed Campbell’s to sell home. Supreme court of Utah agreed saying it was an area of state concern – however U. The following are helpful… 1. and 6. i. Utah needs to focus on damage caused in Utah e. Facts: a. Gore factors – guideposts used to determine if constitutional: i. any criminal punishment the defendant suffered or may suffer as a result of the same conduct forming basis of tort suit ii. 4. Reasoning: a. State Farm Mutual v. Due Process – need notice and don’t want awards to be arbitrary – don’t want to deter business too much. relationship b/w the harm suffered and that which was threatened. tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others . the punitive damages must bear a reasonable relationship to compensatory damages or else they will be reduced m. 5. Campbell filed suit alleging bad faith.
although they cover all of or part of the harm for which the tortfeasor is liable . The Collateral Source Rule a. 4.3.? You have to pay through your policy if you choose to act this way. Holding: a. punitive damages are not that important but compensatory damages tend to look punitive because the jury decides G. In practice. Insurance company should have made an exception to punitive damages if they wanted to. Rule: interpret insurance contracts in favor of insured 5. few awards exceeding a single-digit ration b/w punitive and compensatory damages. the conduct involved repeated actions or was an isolated incident and 5. 3. trickery. the target of the conduct had financial vulnerability 4. Court says that company needs to pay in this case because compensatory and punitive (exemplary) damages are not distinguished. the harm was the result of intentional malice. low probability chance of having to pay punitive damages. Dissent: a. or deceit. 6. Payments each month for a higher sum may actually be more of a deterrent than the one time. 4. wanton. Rule: Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability. Court says that Utah looked at more factors than they should have – should not punish for unlawful acts outside of their own state 3. etc. Question is whether a person who has punitive damages imposed against them can have them covered under their insurance policy? 2. that deterrence doesn’t really work) – seems you are buying rights to act willful. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award and iii. Creech v. Award of $145 million is unconstitutional. Says that award decisions should be left to states n. In LA. Insurability of Punitive Damages i. What about public policy argument (that if insurance policy pays punitive amount. The difference b/w the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases g. to a significant degree. will satisfy due process (cited 4 to 1 as an acceptable ratio) h. Aetna 1. or mere accident ii.
If there is more than one person in a category that applies. however has been applied where the collateral source is a government agency or other gratuitous source (e. If they are still alive it is a regular tort action with maybe some loss of consortium. children. Thus if there is no spouse or no children. g. Survival refers to survival of action. i. Statutes are only relevant when somebody dies. IF YOU TALK ABOUT ONE OF THESE. not the person. h. or parents. i. If the prescription expires during my life…before I die for the tort that was committed. YOU HAVE TO TALK ABOUT BOTH. d. Lower category of persons can recover only if the preceding category does not have any living members remaining. etc. Medicaid) H. Wrongful Death and Survival Action – WILL BE ON EXAM a. Most commonly applied in insurance proceeds. However usually there really isn’t a double recovery because you pay premiums and in the Louisiana railway case. then the parents can recover. Note: In LA. but does not impose a double burden. j. then siblings can recover. the DOTD will probably have to pay the feds back anyway f. Plaintiff may not recover such expenses if plaintiff does not pay an enrollment fee. DON’T TALK ABOUT THESE UNLESS SOMEBODY DIES!!! b. IF THE INJURED PARTY DIES. Question is really who should get the money – state or fed iv.b. Mitigation of Damages a. Double recover is okay in this case because tortfeasor should not benefit from victim’s foresight. etc. all can recover. b. Louisiana Railway i. Survival action -. 415 and 416 for language of statute and who is allowed to recover f. c. May permit a double recovery. Common law origin…adopted in LA d. This is a different situation than where collateral source is usually applied – traditionally involves insurance ii. Victim has to mitigate. does not have any wages deducted. If there is both a spouse and children. the damages are split equally between those persons. See pg.g.prescribes one year from the death i. Categories are identical to both. Key is reasonableness I. what happens? There is nothing left to survive so there is no action. Relationship b/w feds and state: really no windfall because state would have to reimburse feds anyway iii. medicare) e. Don’t want tortfeasor to benefit!! c. If there is no spouse.g. and does not otherwise provide any consideration for the collateral source benefits he receives (e. . Statutes are ways of maintaining the action – we don’t want the tortfeasor to benefit because their tort was so bad that they killed someone. THE ONLY THINK YOU CAN TURN TO ARE THESE STATUTES!!! e.
Spouse who married the victim subsequent to the injury? No. States Marine Lines i. m. Wrongful death: belongs to the listed beneficiaries…their cause of action 1. v. until divorced b. Odds are Cheryl would get the support amount (lost wages) as if she had survived and that would all pass to Cheryl’s parents. Will never give double recovery – but they are separate awards. a. e.k. Judicially separated or physically separated spouse – Yes. d. If family member was tortfeasor. Spouse who remarried after the victims injury? Yes. then there is no survival action. n. i. Only one year extension if the action existed at the time of death iii. If you are a participant in a murder then you cannot recover as beneficiary Moragne v. If that evidence is missing then each parent’s would get their own child’s survival. Putative spouse? No. if injury occurred three years ago (prescription for the injury was one year) and the person now dies. So on and so forth. Michael dies. It then cuts off – thus no one in the lower categories can recover once a higher ranked individual is found. Notes: 1. lost wages are not awarded to dead person because family will recovery loss of support. iv. They represent the estate of the dead person. However. iv. Legis. c. However she is the beneficiary. ii. Spouse living with another lover? Yes. ii. Thus money goes to Cheryl’s beneficiaries – Cheryl’s parents instead of Michael’s parents. . Basically Cheryl’s parents get their own recovery for Sheryl and Cheryl’s recovery from Michael. ii. p. they cannot recover damages. Cheryl dies minutes/seconds after (shortly) – she never regains consciousness. If you don’t have a spouse or child…you go to parents…but only if no spouse or child. Succession representative – can only bring action if there are no beneficiaries…goes to will. Tinsman i. l. Survival Action: survival of the dead person’s action 1. Basically just recognize that there is wrongful death in maritime law. Blanchard v. What does spouse include? a. These statutes are interpreted very strictly Difference b/w two: i. Need evidence that one survived (even if minutes) after the other. E. o. Cheryl’s parents inherit Cheryl’s actions related to Michael. iii. v.g. Find beneficiary within the highest rank category you can. judgment says that wrongful death cannot be claimed by succession representative – not entitled to this.
failure to properly treat (standard of care). 2006. Wrongful death is usually seen as a derivative thus it doesn’t survive either. then you have informed consent. Statute of limitations is one year past death. Medical treatment information is not within the realm of normal knowledge. step child is not. Types of survival damages (distributed equally among the beneficiaries): a. 11. Created a hybrid – doctrine of informed consent. and grief. Medical expenses. 2006 i. Victim’s pain and suffering c. Injury on Nov. but not for what was done. d. Loss of love. E. affection. 5. ii. services. a. As long as the survival action has not prescribed during life then you can have 1 year past death. However where there is some consent. Adopted child is recognized. Use custom to show what standard is. However there are some cases that say that wrongful death doesn’t arise until the time of death – he thinks that this is wrong. putitive damages if appropriate are recoverable under survival action and not wrongful death. the beneficiaries can still have an action for loss of consortium. society. To the extent that no one filed within the prescription (Nov. f. Even if you haven’t shown the parent relationship then can show through proof of affiliation 3. When victim dies. Loss of earnings from injury to death b. Party is on notice. Wrongful death and survival action filed Nov. If the victim is still alive. Funeral expenses 6. 7. 2005 and Death on Nov.2. Malpractice (negligence) -. Takes both from negligence and battery. Wrongful death damages: a. Lets say the decedent files while they are still alive but then die…the survival and wrongful death beneficiaries can relate back to the original action. 8.g. Battery – exceeding consent c. Medical Malpractice a. 9. 7th. Informed consent theory: . 7. 4. b. and d. support. CHAPTER 12 – NEGLIGENT PROVISION OF SERVICES A. 2006) then survival action does not exist anymore. Still have malpractice (negligence) claims and also some battery claims where there is no consent whatsoever e.
ii. Nobody uses the locality rule. Deals with geographic and practice area c. 4. Memorial Hospital 1. Can go to a similar community ii. Should always look for this when you have any type of medical treatment on exam.000 babies.i. Matthies v. Court says that that procedure is the same regardless of what practice area you are in. Local i. Usually person in small community can’t testify in large community. Almost impossible for plaintiff’s to get testimony. b. Nationwide 2. In terms of geography…it doesn’t matter because procedure is same nationwide. Up to patient if they don’t want to use the information…can leave it up to doctor…but that is the patient’s choice. 5. However just about everyplace has shifted from locality. Same or similar locality i. Dr. The Standard of Care i. They also argue that his skills are too good – board certified OBGYN as opposed to resident family practice doctor 3. Failure to adequately provide information to allow patient to decide on their own. His skills are stale b. but has delivered 4. He is retired. In some areas. certain localities will not have as good of equipment as larger areas and specialist – thus there would be differences here. but doesn’t run the opposite way 6. Standard is that doctor needs to provide information that a reasonable person would find important to make a decision and reasonable patient wouldn’t have gone through with procedure with the information (causation) iii. Because localities were analyzed so strictly – the conspiracy of silence came about…doctors didn’t want to testify against friends. Argument against Leslie’s testimony takes opposing views: a. How do we establish custom? Three ways: a. Duty on physicians to at least provide the information. Depends on facts and circumstances whether nationwide rule applies or similar locality rule 7. Leslie’s testimony is being offered. g. Moved more toward nationwide …same or similar is still used in a way in regards that testimony needs to come from person in same or similar community. Mastromonoco . Sheeley v. Holding: OBGYN specialist can testify for family practice as long as procedure is universal ii.
4. Then you go through the list of statutory representatives. If the patient is to make a choice they need to be informed. Laperotomy – procedure where you get rid of adhesions. 3. Material risk – those that would have some weight in a decision of a reasonable person 6. Objective –needs provide information that a reasonable person would find relevant. If they say no…then sew her back up. Treated more as negligent theory…not battery. 3. 2. Duty based upon reasonable behavior. Both subjective and objective. Proper consent to something that would otherwise be unauthorized or invasive touching. To the extent that this was a predictable risk he should have asked her before. Called implied consent because she was unconscious. He goes in and discovers that she might be sterile. He thought that he would have had to remove the organs later on so he did it 2. Can’t interpret consent forms too broadly – or you would be consenting to anything. Do not need to be informed of all risks…only those that are material. but there is no evidence that she was incompetent. Can claim an emergency. . decided to not put pins in it (because she had osteoporosis) so he ordered bed rest. Also encompasses drug interactions where patient is asking for certain drugs. Pizzalotto v. 4. but dangerous as opposed to going down statutory list. If you find something that is life-threatening at that time or would substantially increase the risk to a dangerous level if you wake her then it is an emergency. Even for things that aren’t touching informed consent takes on life of its own --. There is a duty to make sure that person understands the forms – can’t just give them stuff to sign.patient should get the choice. In this case he discussed with family. Matthies was 81 year old and fractured her hip. Consent form she signed said nothing about this.1. However if it wasn’t foreseeable then he should sew her up (unless it was an emergency). Her condition worsened. 5. 7. In this case what made the invasive and non invasive treatment material is that they were mutually exclusive iii. Key is that she should be given the choice. Hard to say whether she would have consented had she been given the information. More than a minimal conversation is required. She ended up going to care center. Of course not as much time spent on minor surgeries/operations as there are with major ones. However causation is not proven if the person subjectively wouldn’t have chosen the procedure anyway. 9. Dr. Wilson 1. Materiality test involves subjective and objective features. Usually don’t turn to representative. 8.
Burden of proof pg. Hondroulis v. “Material” risks – right hand side of hand formula (basically LP) – need expert testimony here 1. Also discusses how LA takes stance that seems similar to same or similar locality rule. Judicial representative comes before the spouse. thus it is negligence. Leyva v. Iberia 1. Cutting off the wrong limb. would be likely to . Limited list of people that can consent as representatives. Still a customary standard – need expert testimony. Pretty strong immunity for people that just make mistakes. Notes: a. Where the patient consents to operation A. Gratuitous service – if you are rendering emergency care that is gratuitous your liability is limited. Not that strict. Note: What if information is adequate. Expert testimony is not required in a res ipsa case – within the juries range. 5. but doctor does anyway – this is probably a battery. 4.g. If it is negligent you are okay… but if it is gross negligent then not free from liability. Want to encourage some activity – so people are not reluctant.a. person doesn’t give consent. v. However some other cases don’t agree…think it is under medical malpractice act. Schumacher 1. 2. Risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position. 2. leaving instrument inside patient. they did another surgery because they weren’t sure whether first operation was successful. Ended up having two more surgeries. Emergencies are defined – can proceed without consent if it is an emergency 4. 561. If it is a technical issue then expert testimony is required. 5. 3. Statutes: 1. Essentially says that you can have national experts testify regarding standards of a similar locality. but does operation B…that is battery. vi. b. i. iv. Basically includes all localities. Duty to Disclose i. Informed consent (every person should get choice) summary: (these are not elements) a. After tubal ligation. E. 3. If battery it wouldn’t because statute not well suited for intentional torts. Can apply to non-medical rescuers – gross negligence may be easier to prove in this case though. Important because it puts it under Medical Malpractice Act.
Cap – there are two: i. substantial factor… mainly but for) . Benefits: a. Been disclosed c. QHCP (personal) $100. “Qualified health care provider” – 1. Error should be on side of providing information. Even if patient says they don’t want to know…doctor should still disclose. you still need to inform because a reasonable person may not consent. Needs to be in lay terms. Need causal relationship b/w doctor’s failure to disclose material info. Narrow exception.g. Form needs to be narrowly tailored to reasonable patient under these circumstances.attach significance to the risk in deciding whether or not to forego the proposed therapy.000 excess b. Patient compensation fund (govt run) Overall $500. Panel – decides 1) standard of care/breach and 2) causation between breach and injury (but for. there will be some pain) 2. Need specific material risks – no vague or indefinite statements.000 (amount of insurance) ii. i. However reasonable person in like circumstances – subjective standard as well. Causation – objective standard. Therapeutic – Doctor foresees that info. iii. If risk not reasonably foreseeable iv. If risks are commonly obvious or already known to patient (e. Whether reasonable person in similar circumstances would have consented to treatment had info. Privileges i. And material risk of damage to patient. Case shows that form is not always going to be adequate – needs to be particular. vii. ii. “reasonable patient” – jury question (expert testimony not needed) 1.000 cap.000. Note: even if there is only 1/1. thus $400. 3. Will cause emotional distress/psychological damage.000 chance of death. Don’t want information overload. ii. Need insurance (need to obtain in private market or you can self insure (need to provide certification to state and they will tell you you are qualified)) 2. Emergency – however doctor should attempt to get consent if at all possible ii. Strict standard. Whether type of risk that reasonable patient would consider in deciding treatment b.
Whether the pertinent act or omission involved assessment of the patient’s condition d. EMTALA – federal statute that prohibits patient dumping – which is when someone doesn’t have insurance and you refuse to treat them. Attorneys 1. e. the burden shifts to attorney to show they wouldn’t have won the case) . Whether particular wrong is “treatment related” or caused by a dereliction of professional skill b. 2. Standards to determine whether QHCP actions constitutes malpractice under MMA: a. 1 Attorney (non-voting) – they describe the standards that the panel must decide upon ii. Whether the tort alleged was intentional h. Once you become QHCP you need to pay premiums to Patient compensation fund in addition to getting insurance 4. Duty is established by negligence per se (rules of disciplinary conduct governed by Supreme Court) and custom – locality rule applies 2.i. but you must make sure that patient is stabilized. Used to be a case within a case approach for causation. Viewed patient dumping in this case as negligence (judgment call as to treatment and judgment was wrong) which falls under Medical Malpractice Act – however sometimes patient dumping can be intentional (heightened standard of intent) (treatment needed (person is not stable) and someone turns them away) 3. and c. Whether the injury would have occurred if the patient had not sought treatement. 3 Physicians iii.000 cap doesn’t apply to medical expenses – does apply to pain and suffering viii. $500. Panel report serves as expert testimony (documentary form)– thus even if plaintiff loses on panel they can still litigate 3. Whether an incident occurred in the context of a physicianpatient relationship. Deno 1. or was within the scope of activities which a hospital is licensed to perform. Coleman v. EMTALA doesn’t eliminate right to transfer patients. but has not shifted to burden shifting approach (once you show attorney was negligent. Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached. and f. Other Professionals i.
c. regulation.g repressed memories) 4. Cannot attach property for claim against govt ii. Only liable if they make decision outside of discretion. but only attaches when behavior was consistent with what a reasonable officer would have believed permissible e. State is immune unless they waive the immunity b. Clergy/Educational Malpractice – difficult to win. Discretionary act: If the decision is within the discretion of the public officials they are immune. Typically judges. needs to be way out of the bounds of normal conduct CHAPTER 12 – GENERAL DEFENSES B. buildings collapse. $500. Strict procedural requirements to bring suit against the state/fed – and even then hard to recover damages because property can’t be attached. prosecutors in that capacity.000 cap – have to walk through procedure to get money iv. However even these need to be functioning within capacity to be immune and if they are in capacity and action if way outside scope they can still be held liable. Spousal – one spouse cannot sue the other. No jury unless state waives it iii. There are funds set up for recovery purposes. Qualified – available to all govt officials. Accountants – pre-suit review.g. Architects – e. Kids – kids can’t sue parent until comes of age or becomes separate for some reason 3. Defendant’s Status (Sovereign Immunity) i. Absolute – no true absolute immunity. Immunity a. 2. non-party witnesses in court. Defendant’s Relationship to Victim i. treated similar to other professionals iii. 2. Attorney not liable to third parties unless intentional tortious conduct ii. Parent can sue child in minority– would be suing yourself however . Most deal with prescription – but some deal with lack of right to choose (this is hard to prove because some choices can be made by lawyer) 4. Family Immunities 1. Absolute and Qualified Immunity: 1. Exception: “Agency forcing” – immunity does not apply when a statute. policy. etc. Subscription period is suspended – can still be extended through contra non (e. specifically prescribes a course of action where there is no element of choice or discretion v. 1. LA has waived immunity for contracts and torts d. Once you are divorced you can file a lawsuit.3. legislators. need expert testimony to show breach of standard of care iv.
Charitable and Public Service Activities 1. 2. Is this a risk that is higher to employee than anyone else? If the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. Introduction 1. Can only claim immunity if not using land for commercial profit. Also limited immunities for certain tourist industries by statute – parades. g. 2nd – Defined Damages – has to be type listed in statute i. Goal of employees is to get out from under immunity so they can recover more 3. Wife is able to recover from husband’s insurance company. Borrowing employer (not important. If you render aid. Payroll employer ii. Broad immunity. Things needed: a. you can get out from under immunity 2. just mention – these usually fall under statutory employer) iii. Applies to medical help and others. the court says that the immunity is only personal to spouse. “course of” – relates to time. Workplace Immunity i. Insurance company cannot claim the recovery. f. Occupational diseases are included too c. Statutory employer – whatever statute says it is 1. Even though she is essentially suing husband. as long as it is just merely negligent you will not be responsible.5. DO NOT EVER TALK ABOUT STATUTORY EMPLOYER WHEN TALKING ABOUT VICARIOUS LIABILITY b.risk (asks whether the risk is attributable to the employment relationship). “Arising out of” -. 1st – Employment Relationship (you can have more than one employer) i. 3rd – Scope (must use appropriate language on test – this is different then vicarious test) i. Defendant’s Activities i. place. Guillot v. Travelers a. Also. If you have an intentional tort. land cannot be improved – has to be in natural state (thus pool/man made lake would not fall under immunity) – only applies to natural conditions of the land ii. Use of Land 1. ii. and employment activity. Employee sustains an injury .
d.g. Couple exceptions: i. Dept. However court will probably find that . Problems with exceptions to worker’s comp – ends up harming employer by making them more liable – Holliday v. Unborn fetus claim is derivative to mother’s claims (would fall under worker’s comp if it applies) b. Treated on a sliding scale. E. Woman stabbed on way to work in elevator in the hospital she worked at. b. either on the employer’s premises or at other places where employment activities take the employee iii. e. Intentional Acts 1. Lack of Workers’ Compensation Coverage 1. Threshold doctrine – going to and coming from work is dangerous so sometimes going to and coming from work would fall under worker’s comp. Personal dispute exception allows claim to be brought outside of worker’s comp. If you have one strong. condenser case iii. Clark v. Case deals with personal dispute – she (and fetus) were killed at work by husband i. Risk has nothing to do with employment. Horse-play – not all horseplay falls into horseplay exception. the other can be weaker. Personal dispute unrelated to work ii. iv. Courts sometimes willing to stretch intent for purposes of letting employees out from under worker’s comp. State of Louisiana a. Division Seven a. In horseplay – you can still sue co-employee. but they waived it here. 2. c. which could be imputed to employer because horseplay is exception to worker’s comp. Mundy v. ii. Could talk about sovereign immunity in a case like this. purpose or substantial certainty regarding battery and court’s willingness to almost allow a gross negligence standard instead iii. Intentional torts – can be imputed to employer outside of workers comp. of Health a. d.while actively engaged in the performance of his duties during work hours.g. Court says she wasn’t in “course of” employment because she was on way to work…not clocked in so weak showing in this category. – larger burden for employer c. Didn’t “arise out of” either because it could have happened to anybody – not appreciably different risk for employees.
iv. Has to be written contract ii. Both GC and SC are going to be immune. b. or absolute (see statute and explanation) • Need to differentiate between strict and absolute liability – they are different and LA treats them as such o Negligence – hand formula is the primary test B<LP Look to precaution that could have been taken o Strict Liablity – Don’t care if you knew or should have known…but still need an unreasonable risk B-BK < LP where BK is the burden of knowledge. Has to say that activity is essential to their business (fact specific). Has to say “we are a statutory employer. if when Exxon contracts for lunch services and lunch lady gets hurt. However it is possible. Two ways to become a statutory employer: a. Statutory Employer 1.1 amendment addition as well) 2318 Parent/child 2319 Curators and Insane 2320 Vicarious (will deal with in a separate chapter) 2321 Animals 2322 Buildings Products (composition/construction defects) and Animals (dogs only) are all that are strict liability presently.” iv. E. it creates a presumption where person can try to bring proof that service is not essential. strict. Information is costly – thus don’t care whether you knew in strict liability Burden is thus smaller in strict liability then in negligence Look to precaution that could have been taken . 1st way: 2 contract theory – landowner GC SC employees i. and iii. If these three things are included. That immunity is then imputed up to GC through statute. Three things needed: i.g. 2nd way: no third party contract. Children are weird – not negligence. BEGINNING OF CHAPTERS WE DID DURING MAKE-UP CLASSES CHAPTER 9 – STRICT LIABILITY Remember the existence of code articles in this area: 2317 Things (see 2317. Subcontractor is employer and is immune under worker’s comp.there is no vicarious liability because not within the course and scope.
There was a minor wind storm that blew the tree over onto plaintiff’s car ii. In order to escape strict liability. Wind was not so high that tree would have fallen had it been strong or defective. a.1 under a negligence standard b. Things a. Reasoning: 1. Person hits a telephone pole that was on the shoulder of the road while trying to miss hitting a deer ii. a. the owner would have to show that the damage was caused by the fault of the victim. Note: After 1996 – this would have been analyzed under 2317. Loescher v. was defective. Found that he was responsible – strict liability. but it was rotten. Johnson v. he would not have been found responsible) 2. but the ultimate conclusion is that this is not a building under 2322 – it is a thing under 2317 3. Represented an unreasonable risk of harm b. Parr (deals with 2317 pre amendment in 1996) i.o Absolute liability – There is still a balance. Facts: 1. Entergy i. Plaintiff proved that tree was under care of defendant owner. 2. by the fault of a third party. There was nothing to put the tree owner on constructive notice (if it were under negligence. Tree appeared to look safe. Court didn’t care whether he knew or should have known iv. but also has a high societal value Once you show you are dealing with an absolute liability activity…you just need to show causation and injury Doesn’t care about precautions…you are liable if it is the right type of activity and there is causation and injury Has been limited to piledriving and blasting in LA A. Alleged act of negligence – putting pole too close to the road . but balance concerning the ACTIVITY (whether activity is one that is considered an absolute liability activity). Main difference between strict and absolute is that in absolute there is not a balancing test of the risk associated Inherently involves a high loss. Based on 2317…could have also been analyzed under 2322 because it has to do with grounds. Argued that windstorm was irresistible force – but this failed because wind was not strong. Reasoning: 1. or by an irresistible force. Facts: 1. Best example of strict liability iii. and defect caused the injury 4. Holding: 1. Tree only fell from wind because it was defective 5.
Notes: 1. See 2318 in book b. or by a fortuitous event 3. Basically a question of fact whether placement of pole was an unreasonable risk which is for the jury – thus no summary judgment in this case iv. This standard has never been overruled…thus holds true today. If this was decided under vicarious liability. Children a. Curators and Insane Persons a. Holding: 1. Talk about knowledge of Entergy 3. Regardless of whether parent was negligent – it doesn’t matter whether they could have prevented it b. Convert from strict liability in 2317 to negligence in 2317. State (prior to the amendment in 2001) .2. Treated as negligence as opposed to strict liability because after 1996 amendment a. Disturbing standard!!! 4. it was converted to a negligence standard (thus duty/risk is used) c. If kid is not legally faulty. by fault of third person. See 2319 in book d.1 iii. Brady v. Cost benefit analysis with telephone placement is common in case law 2. Reasoning: 1. 2. and children B. Standard in this case: Parent (that child resides with) is responsible for anything that would have been a tort if the kid (under the age of discernment) were an adult i. Turner v. the statute used to say that there was absolute liability b. Parent is held liable for injury caused C. need a different theory. In 2001. Liability can be escaped if parent shows that harm was caused by the fault of the victim. Bucher i. Holding: 1. 5. it would not be imputed because child is not legally responsible for his negligence (negligence at a young age is not legally faulty) and thus nothing can be imputed. Found that Entergy was not responsible under negligence because of the narrow chance of this happening and no proof that this had happened in the past – not on constructive notice 2. Remember: only should be talking about strict liability in cases dealing with products. Before 2001.e if activity would be negligent but for the fact they were a child a. Kid struck a woman with his bike (6 year old) ii. animals (dogs). Facts: 1. Not really strict liability and not absolute…more of a modified vicarious liability iii.
Reasoning: 1. 2. Ease of association b/w risk and the particular injury b. Reasoning: 1. Triplet i. The type. Also provocation can be a defense d.e. Court focuses on unreasonable risk of harm of strict liability. No duty to protect from this risk…i. Facts: 1. Holding: 1. Bandit had a history of biting. They didn’t see it as an unreasonable risk of harm – owner was reasonable under the circumstances…couldn’t have done anything different . Animals a. Pepper v. Policy considerations used for proximate cause of duty/risk analysis for negligence: a.i. and he was bitten twice ii. Adminstrative burden that could result from recognizing the scope of the duty c. Bandit was well fenced in. and the social and economic utility of the defendant’s activity and f. Moral culpability of each party e. Creation of an unreasonable risk of harm b. Neighbor goes into yard when owners aren’t home to get child’s ball (custom was for them to wait until owners came home). 3. See 2321 in book c. Facts: 1. Damage resulting from the risk of harm and c. Elements of a cause of action founded on strict liability: a. Wasn’t an unreasonable risk of harm for strict liability analysis 2. Economic ability of each party to liquidate the loss d. Not worker’s compensation because she was off duty 2. No strict liability and no negligence (if dealt with after 2001) D. Women was off duty and was injured when a patient had a seizure and fell on her at a street dance thrown by the state institution ii. The historical development of statutory and/or jurisprudence iii. A curatorship b/w the person which caused the damage and the party from whom the plaintiff is seeking recovery 3. but not pure strict liability i. Dogs remained strict liability. risk is not within the scope of the duty (under negligence duty/risk analysis) 3. Amended in 1996 – all animals but dogs became negligence b. Must be a situation where you could have prevented it ii.
• . Holding: 1. but if there are losses. Owner. ruin and defect are the key words. No recovery because negligence wasn’t shown – they didn’t know or were not under notice to know of the risk CHAPTER 10 – ABSOLUTE LIABILITY • Differences in burden of proof: o Negligence – breach of duty and legal cause o Strict liability – unreasonable risk of harm and legal cause o Absolute liability – only legal cause connecting injuries to the unreasonably dangerous activity Absolute Liability: o Limited to pile-driving and blasting in LA o Limited to ultrahazardous and abnormally dangerous activities in common law o Involves activities which have high societal value. Facts: Grate falls out of elevator and hits woman on the head ii. vice. After finding no strict liability. b. Ochsner (post 1996 amendment) i.2. Holding: 1. plaintiff must prove: a. Need to know that all animals except dogs is determined under negligence 4. See 2322 in book d. Person or property was damaged by owner’s dog b. To determine whether dog is unreasonable risk of harm is basically a balancing test of policy considerations – whether risk of injury outweighed the dog’s utility iii. Buildings a. they do a separate analysis under negligence and find no negligence (doesn’t really make sense because strict liability has higher standard anyway) 3. we will allow the activity. To establish claim in strict liability against a dog. No negligence – duty is logically attenuated as regarding a trespasser E. but also high risk of loss Basically. you must pay for them. No strict liability – no considered unreasonable risk of harm 2. Weber v. Injuries did not result from the injured person’s (or injured person’s animal) provocation of the dog 5. Injuries could have been prevented by the owner (plaintiff must show that dog presented an unreasonable risk of harm) and c. Amended in 1996 to be negligence instead of strict liability – thus reasonableness standard c.
. but treated differently . 668. absolute liability on pages 480-483 if above discussion on these topics is not clear Property ownership is governed by nuisance articles – just know that nuisance is form of absolute liability. but treated differently which is confusing Page 487 lists abnormally dangerous activities In LA: Absolute liability is limited to piledriving and blasting Nuisance activities are dealt with as well – too many Christmas lights (thus too many onlookers) However. absolute liability through nuisance articles (667. just have to show causation and damages Absolute liability comes from Article 667. 668. and 669 which are nuisance articles (obligation of neighborhood in LA) (where there is not physical entrance)– amendment to 667 on page 474 in book limits the original to pile driving and blasting Two ways to analyze in common law: Is it abnormally dangerous activity or ultrahazardous? • Other activites are included (crop dusting. 669) is limited to piledriving and blasting If something is not included under absolute liability. transporting moving houses. strict liability and strict liability v. Blasting was done and is considered abnormally dangerous. Court found that this wasn’t an area that wires were typically insulated so do duty. transporting chemicals) Is it a nuisance? • Type of absolute liability because of historical background. but stirring a nest of bees which kill a prize dog is not within the scope of the risk Result needs to come from the risk associated with what made the activity absolute liability in the first place Kent case deals with whether a certain activity is an absolute liability activity (as would be dealt with in common law jurisidictions) Problem was that wires were not insulated.. Injury still has to be within the scope of the risk – Holland case found that there was not liability. it is dealt with as straight negligence Would demolition still be considered absolute liability activity? If there is blasting.o o o o o o o o o Once it is shown that it is an absolute liability activity.but this case should be assessed under negligence…not an absolute liability activity If there are precautions that could have been taken (insulating wires) then it is not an absolute liability question…it is negligence Good explanation of negligence v.
A seller who knows of a defect in his product is in bad faith and is liable . Who is the plaintiff? Different theories apply depending on if purchaser. What is the theory? Contract. sellers. most of the pre-Act law will apply to non-manufacturer defendants g. Either manufacturer may still own product and retailer is just a conduit or the retailer takes title. ii. manufacturer. or statutory? B. redhibition (contract). A negligence claim was just like any other negligence claim – plaintiff had to prove that manu. Who is the defendant? Different theories apply depending on if retailer. we had provisions that made privity less important. Privity required that the plaintiff be a party to the contract c. so to insulate them doesn’t make sense. McPherson v. Historically dealt with this as a matter of foreseeability. In LA Civil Code. bystander. Those not in privity could still bring actions f. Could also recover against Manu. Notes: Since the LPLA only covers manufacturers and a few special non manu. d. Buick is the landmark case that eliminated the idea of privity. Negligence and Redhibition i. i. Need to keep a few things in mind: i. Introductory Note a. i. negligence. Contract between the retailer and purchaser. user. Post LPLA is governed by the LPLA statute only iii. Lack of privity between the manufacturer and the plaintiff was not a defense iii. Pre LPLA was governed by common law ii. Manufacturer knows the group that will use the products. ii. etc. Someone purchased the product from someone. strict liability. Pre LPLA Liability a. e. Problem at other end is that manufacturer is not an original party to the agreement. etc. in contract – plaintiff has to prove that the product had a “redhibitory vice” – if product is dangerous is voids the contract 1. Originally told of the problem of privy: i. iii. Prior to the LPLA a plaintiff could proceed against a manufacturer in negligence. 1. Products liabililty involves contract and tort law – hybrid that took the place of the doctrine of privity b. Need to distinguish the time period: Pre LPLA (1988) and post LPLA.CHAPTER 16 – PRODUCTS LIABILITY A. May have problems with users that are not the original purchaser. or retailer failed to exercise reasonable care in preventing or correcting the risk. or strict liability in tort ii.
The man did not have as his principle objective a nonpecuniary interest. Holding: a. 4. No.2. 3. we still talk about redhibition because statute says that it is the exclusive remedy other than redhibition. In this case.g. you can recover mental distress associated with the physical injury…but here there was not physical injury b. thus redhibitory ideas come into play. Young v. Weber v. Ford Motor Company 1. A manufacturer is presumed to know the defects in things it manufactures and thus is a bad faith seller as well. could recover economic damages such as purchase price. Prior to LPLA. of defective products was liable in contract for personal injury damages 4. vi. More generally. what types of damages are allowed under a redhibitory claim (statute says that damages are allowed. repair cost. Under redhibition. 1988 LPLA is not retroactive. Strict Liability i. i. Court says that an individual can recover under mental distress without having physical damages if the principle objective is a nonpecuniary interest (e. Even after the LPLA. Note: If you suffer some physical injury. But can he recover emotional distress damages even though there is no physical damage? c. Reasoning: a. If there is destruction to property where there is sentimental value and the tortfeasor knew this…you probably can recover e. but does not elaborate)? 3. antique car)…thus in this case the man could not recover. A redhibitory vice does allow damages that are tort in nature (see following cases) v. maybe economic damages associated with not being able to work because of being broken down (lost business) b. manu. Issue: a. Fidelity . Facts: a. Court says no. b. Some doubt concerning whether non-purchasers could bring an action in redhibition iv. Man buys a truck that ends up being a lemon 2. the man’s interest was viewed as solely pecuniary 5. This case was before the LPLA. Can you get emotional distress damages for buying a lemon? b. d.
Halphen v. a warning may reduce the danger in fact iii.1. Subject to liability without proof that there was any negligence on its part in creating or failing to discover the flaw ii. Johns-Manville Sales Corporation 1. Goes through the four strict liability theories and whether manufacturer’s intent/knowledge should matter/is material – argued that this case gets rid of true unreasonably dangerous per se a. #2 – A product is unreasonable dangerous in construction or composition if at the time it leaves the control of its manufacturer it contains an unintended abnormality or condition which makes the product more dangerous that it was designed to be i. Manu. whether foreseeable or not. A reasonable person would conclude that the danger in fact. outweighs the utility of the product ii. intent does not matter ii. One of first strict liability cases in LA 2. Manu. Evidence of knowledge was available to the manufacturer has no relevance because product failed to conform even to manu. Manufacturer’s knowledge. #4 – A product may be unreasonably dangerous because of its design for any of three reasons i. Not a recision of a contract case 3. whether foreseeable or not. #1 -. However. outweighs the utility of the product i. own standards iii. Although balancing under the risk-utility test leads to the conclusion that the product is not . Pure strict liability ??? c.A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product. Pure strict liability ??? b. required to warn for dangers inherent to normal use which is not within the knowledge or obvious to ordinary user ii. has a duty to test and inspect its product iv. #3 – A product may be unreasonably dangerous if the manufacturer fails to adequate warn about a danger related to the way the product is designed i. is held to the knowledge and skill of an expert iii. Manu. Evidence as to knowledge and skill of an expert may be admissible in determining whether duty was breached d. Involved defect in construction/composition ii.
2800. Concern with Halphen was that it was strict liability for a lot of products a. But there are some products that are just inherently dangerous 5. Biggest change in the LPLA is that they don’t create the unreasonably dangerous per se area. otherwise the rest of the Halphen case was adopted by the LPLA C. They did something to create the food… manu. Under this statute. As a general proposition. if you walk into a restaurant. 2800. Church doesn’t think the LPLA fits well with food preparation ii. f.52: Manufacturer of a product – list tells us what manu. 657!!! – know the basics of each area b. Louisiana Products Liability Act a. there was a feasible way to design the product with less harmful consequences e. However. Also says what product is as opposed to what service is.unreasonably danger per se – alternative products were available to serve the same needs and desires with less risk of harm iii. If the LPLA applies. a. it is the only thing you reference c. and deterrence 4. there is both service and product. could know of and feasibly avoid the danger is admissible under a theory of recovery based on alleged alternative designs or alternative products. What are the requirements for an action under the LPLA? i. Although the utility of the product outweighs its danger in fact. is better able to spread the cost of strict liability. This is at the fringe. What about food? Is it a service or a product? An apple is not a product. however in a suit based on the first design defect theory.53: Statute also contains some inclusions (in addition to exclusions) and definitions . manu. it. Dennis says that if there is an alternative design. held to the standard and skill of an expert. 2. Pg. Evidence as to whether the manufacturer. the first thing you write is: The LPLA is the exclusive remedy for damages against a manufacturer. 1. Louisiana legislature passed the LPLA a. then you analyze that design. In response to Halphen case. is and what it isn’t. Plaintiff can elect to try a case upon any or all of the above theories of recovery – however the admissibility of evidence is strictly followed 3. Reason for strict liability – risk creating person or thing should bear the loss rather than innocent third party. which is governed by the same criteria of proof that a product is unreasonably dangerous per se. Such evidence is not admissible.
. or arose out of reasonably anticipated use for design defect and warning elements iv. process where the product does not live up to the company’s own specifications – bad batch – it wasn’t a choice the company made 2. (b): Introduces four ways in which product can be unreasonably dangerous (and only these four ways) a. that alternative design should be used 1. they set specifications of the product. 3.55 Construction or Composition Claim: 1. Warning d. however may be considered manu. 2800. Ruling is that defect has to exist at the time the product left the manu.56 Design Defect: 1. of sears and craftsmen – Sears in considered the manu. E. What about Sears and DeWalt saws? Sears is not the manu.1. (c): Timing: Discusses when the characteristic of the product that renders it unreasonably dangerous must exist a. Warranty – more of a contract theory. 2800. Unreasonably dangerous product – only care about the product (no interest in what Coke knew about the danger) 4. a. written. Contruction/composition b. If the statute does not consider Sears a manu. Note: strict liability and negligence are different because strict liability does not have a knowledge requirement v. for construction/composition b.54: Need a characteristic of the product that is “unreasonably dangerous” – hand formula says that product shouldn’t be marketed. and they hold themselves out as the exclusive manu. Design Defect c. (a): Proximate cause a. Policy questions b. verbal warning and a breach thereto 3. if foreign manu. Different because it involves a number of different decisions at different times in the game . A lot of proximate cause questions are answered by statute – thus do a very short. in advertising 2. that has no presence…thus Sears acts as manu – which is again included under the statute. truncated proximate cause analysis 2. Ruling is that defect has to exist at time it left manu. of craftmen because they own craftsmen.g. iii. 2800. Do not look into what Coke thought – this is strict liability. Failure in manu.? Retailer duty if they know or should have know… and thus duty to pull off shelves and/or inspect – defined as reasonable --what reasonable retailer would do.
b. could do? If airbag didn’t exist. however LA courts continue to allow redhibition claims for economic loss. Notes: 1. 3.g. b. LPLA provides exclusive theories of liability for manufacturers. What if it was the best the manu. Involves choices made by those that design the product…more of a negligence standard vi. Also a balancing act 2. Construction/Composition = strict liability. 3. LPLA excludes claims of negligence against manufacturers 5. 4. sometimes to all products) 5. 2800. 1988)– for purposes of the LPLA. Balance the expected loss with the cost of the design change 3. Application of the Statute . 1. Have to show existence of an alternative design b. Like a negligence action. manu. When do we not require a warning? a. Problems: a. Why do we require that plaintiff shows an alternative design? Maybe more reasonable to show that it shouldn’t have been marketed at all. ii. Adopt theory that warning is serving some purpose a. shouldn’t be held responsible 4. a cause of action accrues when the claimant suffers damage D. This statute makes this class of cases that should never have been marketed in the first place not fall under this area…thus manufacturer is let off. E. warning = contract case. Some courts say that you are required to warn of a design defect (doesn’t make sense) 4. It is possible that a warning could be used to cure a design defect – expect people to take warning into account vii. For those uses that are out of scope of reasonable use. There is not an alternative design for everything. Alternative design could be to just not make the product at all. design defect and warning = negligence in essences. an injury must be proven 2. but is not referenced/dealt with. The product is unreasonably dangerous per se. lawn darts i. Creates an atmosphere where people are aware of the risks associated with products (not always specific to product. LPLA is not retroactive (after Sept. If danger is so obvious that a warning is not necessary.2. In summary.57 Warning: 1. Why do we care if there was a better alternative design? Hand formula analysis – negligence type analysis a.
3. Facts: 1. 4. Smoker was not manufactured under the LPLA – wasn’t for sale to someone else 2. under the LPLA – Ferrellgas made it to sell to the store that Bernard worked for. Court determined that the product was manufactured by the defendant and that the dangerous characteristic existed at the time the product left the manu. an explosion ignited ii. An adequate warning shall be considered in evaluating the likelihood of damage c. If there existed an alternative design for the product that was capable of preventing the claimant’s damage and ii. but not the second. . Reasoning: 1. of such alternative design on the utility of the product. 1. Risk/utility analysis: The likelihood that the product’s design would cause the claimant’s damage and the gravity of that damage outweighed the burden on the manu. What is the alternative design? Regulator and warning pilot light 2. control (there was no alteration/medication) b. If both valves were open. Thus court must determine whether the product is unreasonably dangerous i. Bernard v. had a duty to design the product differently. Court found that Ferrellgas’s failure to equip the smoker with a safety device was a significant factor in causing injuries ii. Analysis for these questions: i. of adopting such alternative design and the adverse effect. Gas delivery system was manu. if any.a. Court found that a reasonable jury could find that risk and burdent outweighed the utility. Risk/utility requirement (see three step process in Halphen case): Once it is determined that the defect in the design is the cause in fact. Ferrellgas i. Bernard was instructed to open the first valve. The court walks its way through the LPLA a. There is an alternative design…but need to determine under cause if fact analysis – Bernard’s death would have been prevented but for Ferrellgas failure to adopt alternative design 1. the court must determine whether the manu.
2.3. a. What if it was design defect case? There is an alternative design. Warning question 2. i. 7. no duty to warn for those things that everybody knows about. but did that increase risk in another sense. Reasoning: 1. Bombardier Corp. Thus not the kind of case where there would be a duty imposed on mass producers 6. Ask self…we reduced risk in one sense. Should be under duty to warn for those areas where manufacturer has special knowledge or should have known through due care/due diligence 6. Argument concerns the design of the footwell ii. 3. This product was unique. and extent of reduction of those accidents if alternative design was used . Assumption is that there would be a significant reduction in risk… and that is all that is needed. For design defect: Balance product’s design and expected damage with the burden of alternative design b. Could consider warning as a mere design choice Church says 5. What is the major issue? They should have warned him of danger. More simply…what is the primary issue once we know that there is an alternative design? Balance the expected loss from the reduction in risk from the alternative design against the lost utility 4. There is no duty to warn if you did not know and should not have expected to find this out through research. be held responsible for this risk to this person? Court says yes. not mass produced. Court reaches the result that motion for directed verdict should be defeated…company should be liable b. Holding: 1. Risk doesn’t need to be eliminated 5. In this case it was a reasonably anticipated use…manufacturer’s are expected to know that some users will use products negligently in this case iii. economic costs entailed by those accidents. Man was falling off jetski and planted his foot (intentionally). Court in this case said that in applying the risk/utility analysis that plaintiff must show evidence (statistics) concerning frequency of accidents like own. Krummel v. thus when it rolled over. his leg snapped. Facts: 1. Duty/risk – question is should this manu. Need a cost/benefit analysis both for design case and for warning label case…however the analysis for each case should differ. Also. For warning cases: Balance expected gain from providing warning (provide warning where it is calculated to do good) with cost of providing that warning 4. What about the state of the art defense (did best under circumstances) ? Doesn’t apply to strict liability 8.
Preemption – doctrine of federal government adopting rules. Has the federal scheme so covered the area so that there is no room for state regulations? 1. b. there is an affirmative defense based on the manu. Involves cigarette industry ii. what remains of the inadequate warning of products liability when federal government has stepped in? 1. Liggett Group i.Negligence is always available. Both design defect and inadequate warning cases require a form of risk-utility balancing 3. Was this a reasonably anticipated use? I think so c.iii. Not question that is really asked anymore because federal government explicitly says what they do and do not want preempted CHAPTER 17 – REPUTATIONAL AND PRIVACY TORTS . Court found that Bombardier was not liable…no evidence provided showing the severity of the risk or the frequency of foot entrapment iv. Notes: 1. Cipollone v. 1st . inability to know about the alternative design at the time the product left the manu. control – state of the art defense (2800:59(a)(2)) 4. What is good of putting a warning on an item even if you think/know people will not heed it? It can be used as comparative fault of customer’s negligence 2.If the plaintiff’s contract is with the retailer/seller. 3rd – as a variation on negligence. Need to read rule very closely – does the state rule conflict with the federal rule iv. 2nd . Liability of the Non-Manufacturer Seller a. E. Holding: 1. However analysis of duty changes depending on the role of the distributor/wholesaler/retailer iii. Interesting that warning can be used against you – you knew that it was reasonably anticipated to use in a certain way and they is why you warned against it. In this case. Federal Preemption a. Under design defect claim. regulations that preempt state regulations iii. he/she should have a full range of actions that exist under the law of contracts ii. Kampen case: Question of reasonably anticipated use a. Man used a jack to crawl under his care even though there was a warning that said not to. a retailer may be under a duty to provide operating instructions or warnings to the purchaser F. It is possible that an injured plaintiff may recover against other participants in the distribution chain by applying several theories i.
Not a lot of these cases. Vanna White/Samsung case 2. If you have a true statement you cannot claim defamation. Whether statement is one of public concern ii. Damaging to reputation iii. Heightened standard of intent 2. Published b. Cannot be a statement of opinion – has to be able to be proven or not proven i. If it is a truly private matter.g. we are going to protect the right to speak more carefully.S.U. False light – creating the impression that you are involved in a movement that you are not. Defamation a. the internet complicates things . c. Public figure iii. appear in picture of pro choice rally and you are pro life 1. a statement about a women’s chastity was presumed defamatory – but we have abandoned most presumption rules. then defamation is applied through simple intent – do not need actual malice B. Needs to be a statement of fact d. E. Elements: i. Used to distinguish between presumption cases and those that had to be proven. False statement ii. “actual malice” must be proven – means that they knew it was false or treated information with reckless disregard i. The more random/outlandish the statement. focuses on ad hoc rules – determining which types of information should be private gradually instead of saying all personal information is private and gradually make things public A. Of course. Intrusion on seclusion – taking pictures of very private events ii. Invasion of Privacy a. Truth is an absolute defense to defamation f. Publication of private facts iii. Publicity – Those who invest in their own publicity want to protect their investment interest 1. Came from one article by Prosser – four types of invasion: i. Publicity and nonpublicity cases are separate – nonpublicity cases are the “girls gone wild” type cases where individual does not want publicity b. the more likely that actual malice is involved g. iv. In these cases. but could go for invasion of privacy – 1st amendment test from above still applies c. In past. First Amendment plays a role: if any one of these. Whether made by a media defendant e.
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