Louisiana Bar Exam Torts Section - Elements – 22 Commonly Tested Areas

1. Duty Risk Analysis 2. Merchant Liability – 3. Owner/landlord 4. Slip & fall on

slip & fall liability Thing; ruin; premises – non
defect; Here – parking merchant –
lot coliseum/hospital/law
office
5. Defamation 6. Public body – injury 7. Wrongful death, 8. Medical review panel
from survival, & consortium
building/component
part
9. Elements of medical 10. Coleman Factors for 11. Loss chance of 12. Worker’s comp
malpractice action med mal survival
13. Products liability – 14. Products liability – 15. Intentional 16. Strict liability and
design defect manufacturing and interference with dog bites
design defect contractual relations
17. Pitre scope of duty 18. Negligent infliction 19. Vicarious liability 20. Intentional
factors of emotional distress interference with
business relationship
21. Parental Liability 22. City Park or 2
for Torts of Minor Landowner Defense
Children when property is used
for recreational
purposes at no charge

1. Duty-risk analysis - P may have a negligence cause of action for damages against Ds for injuries he
sustained in the accident. Louisiana Civil Code article 2315 is the basis of all tort law in the state of
Louisiana. “Every act whatever of man that causes damage to another obliges him by whose fault it
happened to repair it.” Louisiana courts use the duty-risk analysis when assessing negligence acts. The
duty-risk analysis requires that the plaintiff prove five elements before she can recover: 1. Cause in fact;
2. Duty; 3. Scope of duty; 4. Breach of duty and 5. Damages.

Cause in fact is generally a “but for” inquiry; if the plaintiff probably would have not sustained the
injuries but for the defendant’s substandard conduct, such conduct is a cause in fact. Stated differently,
the inquiry is, did the defendant contribute to the plaintiff’s harm or is the defendant a cause of the
plaintiff’s harm? Paul must prove that Dawn’s negligence was the “but for” cause of her injuries. A
negligent act is a “but for” cause if the harm would not have happened but for the negligent act. In this
case, Paul must show that his damages would not have occurred if Dawn had not been negligent in
opening the cup while driving on a pothole laden street. If Dawn had exercised reasonable care in driving
the car, she would have probably avoided the collision with Paul’s vehicle. Thus, Dawn’s actions are the
cause in fact of Paul’s injuries.

An alternative method for determining cause in fact, which is generally used when multiple causes are
present, is the “substantial factor” test. Under this test, cause in fact is found to exist when the defendant’s
conduct was a “substantial factor” in bringing about plaintiff’s harm. The cause in fact inquiry is a neutral
one, free of the entanglements of policy considerations-morality, culpability or responsibility-involved in
the duty-risk-analysis.

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Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law-statutory or
jurisprudential-to support his claim. Under Louisiana law, every driver has a duty to exercise the same
level of care as a reasonably prudent person under the same or similar circumstances. Drivers operating a
motor vehicle have a duty to use reasonable care driving so as not to cause an unreasonable risk of harm
to those who may be injured.

Scope of duty. Another issue is whether the injury Paul sustained was within the contemplation of the
duty discussed above. There is no “rule” for determining the scope of the duty. Regardless if stated in
terms of proximate cause, legal cause or duty, or ease of association, the scope of the duty inquiry is
ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Using
the foreseeability analysis, a risk is within the scope of a duty if it is reasonably foreseeable that the result
would occur from the negligent conduct. Here, the risk, an accident with bodily injury, is exactly the type
of risk one would expect when one does not exercise reasonable care when driving a car.

Breach of duty asks whether the tortfeasor behaved as a reasonably prudent person (RPP)would act under
the circumstances. Here Dawn did not. A RPP would use extreme care and not attempt to open a coffee
cup while driving. Dawn did not use reasonable care while driving. Her breach of duty or her act of
negligence is the failure to use reasonable care drive carefully while operating a motor vehicle.

Damages – The victim sustained damages here because the facts state …

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2. Merchant Liability – slip & fall – L.R.S. 9:2800.6 governs merchant liability for slip or trip and fall
cases, and places a heavy burden of proof on plaintiffs in claims against a merchant for damages arising
out of a fall on the premises. In order for the plaintiff to prevail in her negligence claim for the injuries
she suffered, P must prove the following: (1) Cause in fact - that the condition of the premises was a
substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which
occurred?; (2) Duty - the duty of the merchant to persons who use the premises which is to exercise
reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty
includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably
might give rise to damage; (3) Breach or unreasonable risk of harm - that the duty was breached, that is
that the merchant failed to exercise reasonable care in keeping his aisles, passageways, and floors in a
reasonably safe condition. An unreasonable risk of harm means that the condition presented an
unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. In
determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is
insufficient, alone, to prove failure to exercise reasonable care.; (4) Scope of duty - that the risk and harm
caused were within the scope of protection afforded by the duty breached; (5) Notice - that the merchant
either created or had actual or constructive notice of the condition which caused the damage, prior to the
occurrence; and (6) Actual damages.

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3. Owner/landlord liability – [thing, ruin, defect] Ex - parking lot LCC 2317.1 The owner or
custodian of a thing is answerable for damage occasioned by its ruin, vice or defect, only upon a showing

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that he knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect which
caused the damage, that the damage could have been prevented by the exercise of reasonable care, and
that he failed to exercise such reasonable care. Under this standard, the P must prove that: (1) the thing in
question was in the custody of the defendant; (2) the thing in question was defective, i.e., that it posed an
unreasonable risk of harm; (3) the defendant knew or, in the exercise of reasonable care, should have
known of this defect; (4) the damage could have been prevented by the exercise of reasonable care; (5)
that the defendant failed to exercise such reasonable care; and (6) causation, i.e., that he was damaged as a
result of this defect.

Defenses - If P proves these six things by a preponderance of the evidence, the person in custody of the
thing in question can escape liability only if he shows the harm was caused solely by the fault of the
victim, by the fault of a third person, or by an irresistible force.

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4. Slip & fall on premises – non merchant – coliseum/hospital/dormitory/law office – The duty of a non-
merchant is less than the duty owed by a merchant. Why? The reason that the duty owed by a non-
merchant such as a hospital is less than the duty owed by a merchant is that the economic circumstances
that prompted the heightening of the duty owed by merchants, i.e., merchandising distractions and
customer volume, are not present in non-merchant settings such as hospitals. From the above quote, the
following elements that must be proven by a plaintiff in a slip and fall case against a school board may be
derived:

1. Cause-in-fact;

2. Breach of the duty to protect against unreasonable risk of injury from dangerous or hazardous objects
in the school building and on the grounds;

3. Scope of Duty – Foreseeability of Injury or Ease of association between the duty and the injury
suffered by the plaintiff;

4. Relationship between risk of fall and reasonableness of the measures the school board took to eliminate
the risk; and,

5. Actual or constructive
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5. Defamation – Slander and Libel

Polly Professor (PP) may have a cause of action against the student assistance (SA) and the other
professors
(Professors) for defamation. Defamation is a tort which involves the invasion of a person's interest in his
or her reputation and good name. “Slander” is defamation in its spoken form, while “libel” is written or
printed. PP’s claim of action will be an action for libel because the statements were written on the
Internet. PP may also bring a cause of action for invasion of privacy and intentional infliction of
emotional distress.

Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory

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statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or
greater) on the part of the publisher; and (4) resulting injury.. Thus a plaintiff, in order to prevail in
a defamation action, must prove “that the defendant, with actual malice or other fault, published a false
statement with defamatory words which caused plaintiff damages.”

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6. Public body – injury from building/component part - The elements of proof that Plaintiff must satisfy
to impose liability upon the City, based upon either negligence or strict liability, are essentially the same.
Under either theory, Plaintiff must show that: (1) the City owned or had custody of the thing which
caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others;
(3) the City had actual or constructive knowledge or notice of the defect prior to the accident,; (4) the
damage could have been prevented by the exercise of reasonable care; (5) The City failed to take
corrective action within a reasonable time; and (6) causation, i.e., that he was damaged as a result of this
defect. There are several factors that may be considered in determining whether a hazard presents an
unreasonable risk of harm. The degree to which a danger is evident to a potential victim is one factor in
determining whether the condition is unreasonably dangerous. The accident history of the defect is also a
relevant consideration in the unreasonable risk evaluation. The determination that a defect presents an
unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ
greatly from case to case. The unreasonable risk of harm criterion entails a myriad of considerations and
cannot be applied mechanically.”

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7. Wrongful death , survival, & consortium - A survival action is transmitted to beneficiaries upon the
victim's death and permits recovery only for the damages suffered by the victim from the time of injury to
the moment of death. This is like a personal injury case brought because of injury to the decedent. The
wife and children sue in a survival action. In a survival action, the right to recover damages for injury to
the decedent himself exists in favor of a hierarchy of beneficiaries with the surviving spouse and children
being in the first class. The survival action damages would be based on the decedent’s pre-death damages
consisting of “much pain” after being “seriously injured. If the decedent was conscious after the injury
causing event and before his death, the plaintiffs could recover for the decedent’s conscious pain and
suffering as well as the hospital costs and lost wages.

A wrongful death action is a separate action that “does not arise until the victim dies and it compensates
the beneficiaries for their own injuries which they suffer from the moment of the victim's death and
thereafter.” A spouse could also bring wrongful death claims on her behalf and on behalf of the children .
The spouse and the children can sue for their own losses from his death, including: lost support from
work, loss of consortium (including sex for spouse), their grief, burial costs, etc.

Who can bring a survival and wrongful death action? La. Civ. Code Ann. art. 2315.2 provides that if a
person dies due to the fault of another, suit may be brought by the following persons to recover damages
which they sustained as a result of the death:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or
children.

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(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child
surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent
surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse,
child, parent, or sibling surviving.
This means that people in higher classes cannot bring a wrongful death or survival claim if there are
people in a lower class. For example, surviving grandmothers and grandfathers (Class 4) can only bring
an action is no relative exists in Classes 1, 2, or 3.

Finally, the spouse and children may have their own loss of consortium claims for the loss of the
decedent. Loss of consortium damages are recoverable by spouses and children of an injured or deceased
party. Loss of consortium is a harm to relational interest which occurs when the other party to the
relationship suffers physical harm (invasion of an interest or personality. Thus, under La. C.C. art.
2315(B), family members of the primary tort victim have an action, loss of consortium, that will
compensate them for their diminished relationship with the primary tort victim. Hence, a spouse's claim
that she is unable to engage in activities that she formerly enjoyed prior to her husband's injury, such as
taking vacations, attending sporting events, or dancing, is compensated under loss of consortium. A claim
for loss of consortium accrues at the time a plaintiff suffers an actual loss of consortium, which is the
point at which an injured party's condition deteriorates to such an extent that his family is actually
deprived of his consortium, service, or society. These damages arise from the negligence claim brought
by Wife, and include loss of sex, society, affection, household services that the injured person (Bill) used
to perform around the house before the injury. Anyone who would have had a wrongful death claim if the
party would have died can bring a loss of consortium claim. Spouse’s and children’s loss of consortium
damages are based on the fact that decedent suffered for two weeks and is now deceased and cannot
perform as a husband and father as he could before the injury and death.

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8. Medical review panel - Other than those claims submitted for binding arbitration, a claim in medical
malpractice against a qualified health care provider (QHCP) must first be submitted to a medical review
panel. Failure to have the opinion of the medical review panel prior to filing suit subjects the plaintiff’s
action to an exception of prematurity. The P initiating the medical review panel process for a claim
against a QHCP must first file a request for review of the claim with the Louisiana Division of
Administration. If the claimant is unsure whether the health care provider is qualified or not, he or she
should nonetheless file a request for review with the Division of Administration. The filing will suspend
the running of prescription until 90 days after the plaintiff or the plaintiff’s attorney has been notified by
certified mail that the health care provider is not qualified.

The panel is composed of four members: three health care providers and one attorney (a non-voting
member).

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9. Elements of medical malpractice action - To prevail in a medical malpractice claim (a negligence

claim), a plaintiff must prove each of these separate elements:

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(1) The standard of care applicable to the defendant health-care provider. The degree of knowledge or
skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, nurses
chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar
community or locale and under similar circumstances; and where the defendant practices in a particular
specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical
specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by
physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.

(2) Breach of the standard of care by the defendant health-care provider That the defendant either
lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his
best judgment in the application of that skill. (by expert testimony)

(3) Cause-in-fact between the breach and the damages suffered,

4. Legal cause - That as a proximate result of this lack of knowledge or skill or the failure to exercise this
degree of care the plaintiff suffered injuries that would not otherwise have been incurred; and

(5) Actual damages.

Louisiana law provides a prescriptive period of one year from the date of the commission or discovery of
the alleged malpractice on actions for damages against health care providers. However, “in all events such
claims shall be filed at the latest within a period of three years from the date of the alleged act, omission,
or neglect.”

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10. Coleman Factors for medical malpractice - Additionally, we will address the six-prong test originally
set forth in Coleman v. Deno, 01–1517 (La.1/25/02), 813 So.2d 303, which analysis our supreme court
has repeatedly stated must be performed when attempting to determine whether an allegation is
malpractice as defined by the MMA. The six factors of the Coleman test are as follows:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2)
whether the wrong requires expert medical evidence to determine whether the appropriate standard of
care was breached; (3) whether the pertinent act or omission involved assessment of the patient's
condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was
within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have
occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

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11. Loss chance of survival - Allowing recovery for the loss of a chance of survival is not a change or a
relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such
recovery is a recognition of the loss of a chance of survival as a distinct compensable injury caused by the
defendant's negligence, to be distinguished from the loss of life in wrongful death cases, and there is no
variance from the usual burden in proving that distinct loss.

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Thus, in a medical malpractice case seeking damages for the loss of a less-than-even chance of survival
because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of
the evidence that the tort victim had a chance of survival at the time of the professional negligence and
that the tortfeasor's action or inaction deprived the victim of all or part of that chance, and must further
prove the value of the lost chance, which is the only item of damages at issue in such a case.

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12. Worker’s compensation - The Louisiana Worker's Compensation Act provides for compensation if an
employee receives personal injury by accident arising out of and in the course of his employment. As a
general rule, the rights and remedies granted to an employee therein are exclusive of all rights and
remedies against his employer, any officer or principal of the employer, or any co-employee. However, an
exception to this rule provides that nothing therein shall affect the liability of an employer, principal,
officer, or co-employee resulting from an “intentional act”.

In interpreting the statute, this court has held that compensation shall be an employee's exclusive remedy
against his employer for an unintentional injury covered by the act, but that nothing shall prevent an
employee from recovering from his employer under general law for an intentional tort. We concluded that
in drawing a line between intentional and unintentional acts the legislative aim was to make use of the
well-established division between intentional torts and negligence.

The present case is one in which the plaintiff employee sought to recover damages as the result of an
intentional tort, a battery committed upon him by his employer's principal owner and chief executive
officer. The trial court found that the chief executive had intentionally shocked the employee with an auto
condenser as a practical joke without the employee's consent or approval but that the serious injury to the
employee's occipital nerve which resulted was neither foreseeable nor intentional. From this the trial court
concluded that no intentional tort occurred, and the court of appeal affirmed its judgment. Consequently,
in reviewing those rulings we must decide whether a battery was committed and, if so, whether damages
are recoverable under battery for the unintended and unforeseeable occipital nerve injury.

A battery is a harmful or offensive contact with a person, resulting from an act intended to cause the
plaintiff to suffer such a contact. The intention need not be malicious nor need it be an intention to inflict
actual damage. It is sufficient if the actor intends to inflict either a harmful or offensive contact without
the other's consent

The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any
harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that
the law forbids. The defendant may be liable although intending nothing more than a good-natured
practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the
plaintiff's own good.

The Supreme Court, Dennis, J., held that electrical shock administered to worker by his employer's chief
executive officer was an intentional tort, outside remedy of worker's compensation, and the employee
could recover damages for unintended and unforeseeable impairment of his occipital nerve which
resulted. Caudle v. Betts, 512 So.2d 389 (La. 1987).

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Although the compensation remedy is exclusive between the employer and the employee, his dependents
and heirs, the same is not true with reference to a third-party wrongdoer whose fault brought about the
employee's injury or death. That is, the employee, his dependents, and heirs may recover against third
parties. The following are not third persons as to the employee, and they are thus immune from a
proceeding in tort: the claimant's actual employer; the claimant's co-employees, under that same
employer, including supervisory employees or executive officers; any principal (statutory employer) as to
the claimant; any employees of a principal; a partner, if the claimant is employed by a partnership; an
officer, director or stockholder of the claimant's employer or any principal.

This immunity does not, however, extend to protect these persons against their liability “resulting from an
intentional act,” an exception we have noted earlier. It also does not extend to any officer, director,
stockholder, partner or employee of an employer or principal who is “not engaged at the time of the injury
in the normal course and scope of his employment” nor to a partner whose partnership has been formed
for the purpose of evading the Act.

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13. Products liability – design defect - The Louisiana Products Liability Act of 1988 (LPLA) provides
the exclusive remedy for recovery of damages from manufacturers in Louisiana. In order to prevail under
the LPLA, a plaintiff must prove: (1) Defendant is a manufacturer of the product; (2) that the product
possesses an “unreasonably dangerous” characteristic, (3) that this unreasonable dangerous characteristic
proximately caused the plaintiffs damage, and (4) that injury arose from a “reasonably anticipated use” of
the product.

A product may be deemed unreasonably dangerous due to its

[1] composition or construction,

[2] its design,
[3] the manufacturer's failure to provide an adequate warning, or
[4]the product's failure to conform to an express manufacturer's warranty.

A claimant seeking recovery under the Act bears the burden of proving the existence of an alleged defect.

A crucial element of the plaintiff's burden of proof under the LPLA is to show that damage arose from a
“reasonably anticipated use” of the product. The LPLA objectively defines reasonably anticipated use as
“a use or handling of the product that the product's manufacturer should reasonably expect of an ordinary
person in the same or similar circumstances.

Design defect - requires the plaintiff to show an existing alternative design which was developed and in
being at the time the product left the manufacturer's control that could have prevented the claimant's
damage. The defendant may defeat liability by showing that the existing alternative design was not
feasible or economically practicable. The defendant may also escape liability by showing that he did not
know and in light of existing technology could not have known of the alternative design established by
the plaintiff. This is the traditional state-of-the-art defense. Defendant has the burden of proof for these
defenses.

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14. Products liability – -Manufacturing or composition defect - A product is unreasonably dangerous in

construction or composition if, at the time the product left the manufacturer's control, the product deviated
in a material way from the manufacturer's specifications or performance standards for the product or if the
product deviated from otherwise identical products made by the same manufacturer.

15. Intentional interference with contractual relations – This is a cause of action against only corporate
officers who intentionally and unjustifiably interfere with contracts between the corporation and third
parties. Elements - For purposes of analysis, the action against a corporate officer for intentional and
unjustified interference with contractual relations may be divided into separate elements: (1) the existence
of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate
officer's knowledge of the contract; (3) the officer's intentional inducement or causation of the corporation
to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4)
absence of justification on the part of the officer; (5) causation of damages to the plaintiff by the breach of
contract or difficulty of its performance brought about by the officer.

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16. Liability for animals and dog bites – LCC Article 2321 reads, Damage caused by animals—The
owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the
damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that
his animal's behavior would cause damage, that the damage could have been prevented by the exercise of
reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is
strictly liable for damages for injuries to persons or property caused by the dog and which the owner
could have prevented and which did not result from the injured person's provocation of the dog. Nothing
in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an
appropriate case.

The Louisiana Supreme Court decreed a rule of strict liability for dog bites, doing away with the
traditional right of first bite of the dog. The case would lay absolute liability on dangerous or nocuous
animals. Only the three defenses, victim fault, third-party fault, and force majeure would be allowable as
defenses. The behavior of the dog must be unreasonably dangerous. Thus, the dog's injurious conduct is
not unreasonably dangerous when it is the result of provocation.

Cats are dealt with more gently. They obviously fall under the general category of animals whose owner
should have known of their potential for damage-causing behavior. Wm E.. Crawford, 12 La. Civ. L.
Treatise, Tort Law § 9:13 (2d ed.)

To establish a strict liability claim against a dog owner under Article 2321, the plaintiff must prove that
the dog damaged his person or property, the owner could have prevented the injuries, and the injuries did
not result from the injured person's provocation of the dog. To show that the owner could have prevented
the injuries under Article 2321, the plaintiff must prove that the dog presented an unreasonable risk of
harm. The criterion for determining whether the dog posed an unreasonable risk of harm to the plaintiff
is a balancing of claims and interests, a weighing of the risk and gravity of harm, and a consideration of
individual societal rights and obligations.

In determining whether strict liability has been established under Article 2321, it is important to
remember that the unreasonable risk of harm requirement is “in effect, a limitation ... upon the reach of

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strict liability, so the owner of an animal is not required to insure against all risk or loss.” Unlike
absolute liability, the standard of strict liability requires that the damage be caused by a dog that presented
an unreasonable risk of harm to others.
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17. Pitre scope of duty factors - The Pitre factors are only important if you are presented with a bizarre
fact pattern and it is questionable as to whether a particular harm is within scope of the defendant’s duty
to the plaintiff. For most Torts questions on the Louisiana bar exam, the Pitre factors do not need to be
applied. In short, when dealing with the duty-risk analysis, you will make the general statement that duty
is a question of law and asks whether the D has a duty to this P. Generally, based on the facts presented in
the question, you will simply state that the D had a duty to either (1) Drive safely, (2) To not improperly
install a skylight, (3) to improperly build a house, or something like that. You do not need to write a
detailed statement on duty.
Courts consider various policy factors that the legislature might consider, such as [1] whether the
imposition of a duty would result in an unmanageable flow of litigation; [2] ease of association between
the plaintiff's harm and a defendant's conduct; [3] economic, social, and moral implications on similarly
situated parties; [4] the nature of defendant's activity;[5] the direction in which society and its institutions
are evolving; and [6] precedent.
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18. Negligent infliction of emotional distress - The twins can also bring a claim for negligent infliction of
emotional distress (NIED) as a result of seeing their mom lying in a heap on the side of the road with a
bloody face. To prove a prima facie case, 1. the plaintiffs must view the accident or come upon the scene
before substantial change has occurred; 2. the direct victim must suffer such harm that it is reasonably
expected that a person in the plaintiff’s position would suffer mental distress; 3. The emotional distress
must be severe and debilitating, and 4. There must be a causal link between the negligent act and the
emotional distress.

Here, the twins viewed the accident as they were in the car when the accident occurred and they saw their
mother immediately after the accident. Additionally, one would expect the twins to suffer severe
emotional distress from seeing their mother in a terrible bloody condition after an accident. Moreover, the
counseling received by the twins is additional evidence of their severe emotional distress. Finally, their
constant awakening during the night screaming and crying out “Momma” would also bolster their NIED
claim.

Because Stephen was not a bystander and did not arrive on the scene immediately after the accident, he
cannot recover for NIED. Under Louisiana law, NIED or “Lejuene damages” are available to all of the
following plaintiffs: spouses, children, grandchildren, parents, siblings, and grandparents for mental pain
and anguish claims arising out of injury to a relative. However, there is no preemption by class as with the
wrongful death article. In other words, there is no hierarchy like class 1, class 2, class 3, and class 4.
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19. Vicarious liability - This is a vicarious liability case in which a gun shop manager accidentally
discharged his own gun, shooting a customer. The manager's gun discharged as he was disassembling it in
order to compare it to the customer's malfunctioning gun, as they were both Glock 19 pistols. The
customer sustained a gunshot wound on the right side of his chest, and he filed suit against the manager
and the gun shop owner.

To determine whether the shop was vicariously liable for Deare's action, the court must apply the four-
factor test . These factors are: (1) whether the tortious act was primarily employment rooted; (2) whether
the act was reasonably incidental to the performance of the employee's duties; (3) whether the act
occurred on the employer's premises; and (4) whether the act occurred during the hours of employment.

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A factfinder must consider the nature of the employer's business at issue in determining whether an act is
within the course and scope of one's employment. [You must include the policy reason for vicarious
liability in your answer.] Vicarious liability “rests not so much on policy grounds consistent with the
governing principles of tort law as in a deeply rooted sentiment that a business enterprise cannot justly
disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” “In
determining whether a particular accident may be associated with the employer's business enterprise, the
court must essentially decide whether the particular accident is a part of the more or less inevitable toll of
a lawful enterprise.”

An employer is responsible to third persons for its own acts. Because an employer acts through its
principals and employees, it also can be vicariously liable for their acts. Vicarious liability is a type of
strict liability imposed by virtue of the employment relationship, without regard to the employer's
negligence or fault. For respondeat superior liability to attach, the employee must have breached his duty
to a third party while acting in a course and scope of his employment. It is more accurate to describe
vicarious liability as liability in addition to the liability of the employee who always remains personally
liable for his tort.

The doctrine of respondeat superior, is based on the deep-rooted sentiment that a business enterprise
should not be allowed to disclaim responsibility for accidents which may fairly be said to be characteristic
of its activities. The modern economic and legal rationale for respondeat superior is that an employer is in
a better position to internalize and absorb the cost of liabilities incurred by its employees as a cost of
doing business or to insure against such liabilities and to shift those costs to the public. Objectives
underlying respondeat superior liability are to give the victim greater chance of recovery and to ensure
that the victim's losses will be borne by those who benefit from the enterprise that gave rise to the injury.

20. Tortious interference with business relationship

A “tortious interference with business relationship” claim protects the businessman from malicious and
wanton interference. Only interferences designed to protect a legitimate business interest are protected. A
“tortious interference with business” claim is established when the plaintiff proves the defendant
improperly influenced others not to deal with the plaintiff. It is not enough for the plaintiff to show that
the defendant's actions adversely affected the plaintiff's business. The plaintiff must show that the
defendant actually prevented the plaintiff from dealing with the third party. Louisiana jurisprudence has
viewed this cause of action with disfavor. Louisiana courts have limited this cause of action by imposing
a malice element, which requires that the plaintiff show the defendant acted with actual malice.
“Although its meaning is not perfectly clear, the malice element seems to require a showing of spite or ill
will, which is difficult (if not impossible) to prove in most commercial cases in which conduct is driven
by the profit motive, not by bad feelings. “Simply put, in most cases in which a corporation is acting to
maximize profits-rather than to harm another business-it will be difficult for a plaintiff to produce
evidence of bad faith or malicious intent.”

21. Parental Liability for Torts of Children

The father and the mother are responsible for the damage occasioned by their minor child, who resides
with them or who has been placed by them under the care of other persons, reserving to them recourse
against those persons.

22. City Park or Landowner Defense when property is used for recreational purposes

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The immunity provision in this case is La.R.S. 9:2795, which provides:

LRS 9:2795. Limitation of liability of landowner of property used for recreational purposes; property
owned by the Department of Wildlife and Fisheries; parks owned by public entities
B.(1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or
activity, an owner of land, except an owner of commercial recreational developments or facilities, who
permits with or without charge any person to use his land for recreational purposes as herein defined does
not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Incur liability for any injury to person or property caused by any defect in the land regardless of
whether naturally occurring or man-made.

Considering these established facts, we conclude that La.R.S. 9:2795 is applicable to the City. Subsection
(B)(1) states that “an owner of land, ..., who permits with or without charge any person to use his land for
recreational purposes as herein defined does not thereby ... (c) incur liability for any injury to person or
property.

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