Torts Quizlet

False Imprisonment

- an intentional tort theory that protects a person's interest in having one's body free from restraint or confinement o Merchants detaining alleged shoplifters are the most common cases of this type. o There are in fact privileges for merchants, police, and others (can't exceed) - As with other intentional torts, a voluntary act is necessary. o In many instances, courts consider this to be physical force or assertion of authority. o But threats may suffice as well. Here are some examples: • "You are suspected of theft; you have to stay for questioning, or you will be fired." • Duress of goods is considered to be false imprisonment by threat. "I am going to keep your goods, so you have to stay to get them back."

private necessity

- private necessity arises where a natural event or a violent act of a third party makes it necessary for a person to harm another to avoid harm to himself o ex. Family docks boat on a private dock (trespass to chattels) during a storm

self-defense

- requirements- actual or reasonably apparent threat to the claimant's safety o reasonable response to a reasonably apparent threat to yourself o requiring and justifying force o force cannot be excessive in degree or kind o privilege justifies protection of the defendant or third parties, does not justify retaliation or revenge o cannot be triggered by threats and insults - a person who reasonably and apparently uses necessary or deadly force or violence for the purpose of preventing a forceable offense against the person or his property in accordance with is immune from civil action

Elements of Assault

1. Intent to cause harmful or offensive contact or imminent apprehension of contact 2. the other is thereby put in such imminent apprehension 3. means to complete the battery

Elements of Trespass to Land

1. Intent to enter onto land 2. Entry onto land

Elements of Trespass to Chattels/conversion

1. Intent to trespass 2. interference with owner/user enjoyment

· Dennis's opinion creates policy factors that do a better job of determining legal cause than reasonable foreseeability

1. The need for compensation of losses · The more physical or permanent the injury, the more need for compensation and the more likely the courts are to extend liability 2. The historical development of precedents · Courts will draw lines in certain areas to maintain certainty in the law 3. The moral aspects of the defendant's conduct · Not just moral culpability, but actual level of fault, the faultier, the more likely courts are to extend liability 4. the efficient administration of the law · courts never want to open the floodgates for frivolous lawsuits, look to the example of how stringent NIED is 5. the deterrence if future harmful conduct · courts feel like they need to guide activity - if the activity undertaken by the defendant was exceptionally risky, then courts are more likely to extend liability 6. the capacity to bear or distribute losses · there are certain types of parties that are better able to distribute losses—like insurance companies or public entities are better than individuals

providers of alcohol

1. The proximate cause of injury involving alcohol is not serving of the alcohol but instead the consumption 2. If you are a merchant who is licensed to sell alcohol, you are immune from liability for the torts of those you serve 3. Same standard applies to social hosts: as long as you are providing to a person of legal drinking age, you are immune from liability for any harm done by those people. 4. If you misrepresent that a beverage has alcohol, you can be held liable 5. Serving after hours does not bar your immunity. If you serve after hours, you just become a social host and your immunity is still intact.

Watson factors for allocation of fault

1. Whether the conduct resulted from an inadvertence or involved an awareness of the danger 2. How great a risk was created by the conduct 3. The significance of what was sought by the conduct 4. The capacities of the actor, whether superior or inferior 5. The extenuating circumstances which might require the actor to proceed in haste without proper thought 6. The relationship between the fault/negligent conduct and the harm to the plaintiff

Intentional tort importance

1. Worker's comp 2. liability extends to unforeseen consequences 3. non-dischargeable in bankruptcy (negligence is) 4. no punitive/additional damages for intentional torts 5. statute of limitations 6. insurance may cover negligence but not intentional torts

elements of battery

1. intent to cause harmful or offensive contact 2. contact 3. the contact is harmful or offensive

Elements of IIED

1. intent to cause severe emotional distress 2. severe mental distress 3. extreme/outrageous conduct 4. Causation of emotional distress

Elements of False Imprisonment

1. intent to confine or restrain 2. the act must cause complete confinement or restraint 3. the victim must be aware of the confinement and if not aware, suffers harm as a result

for consent to be effective

1. the person giving consent must have the capacity to consent 2. the consent must be to the conduct that occurs or to substantially similar conduct 3. the conduct must not exceed the scope of the consent in terms of time or other restrictions 4. the consent is not procured by a misrepresentation 5. the consent is not obtained through duress

common law elements of negligence

1.) Duty - Reasonable Person - Custom - Risk-Utility (Hand Formula) - Negligence Per Se - Res Ipsa Loquitur 2.) Breach 3.) Causation - Cause in Fact - Proximate Cause 4.) Injury/damages

Trespass to land Element 3: Entry onto land

4 ways trespass can occur 1. Entering land in the possession of another 2. Causing a third party to enter land 3. Remaining on land after the possessor withdraws consent 4. Failing to remove something from land possessed by another that one is under a duty to remove o One can trespass on air space. In other words, a person's property extends both upwards and downwards to an indefinite extent from his soil. • Where the rights to one's air and ground space stop is still unclear in the courts, but the immediate areas that extend both upward and downward from the soil are most definitely the person's property. o Trees are a person's property; a lot of litigation for cutting without consent - damages

contact ex. Garrat v. Dailey

5-year-old child visiting aunt, pulled a chair from underneath Garrett, causing her to fall. Garrett sued for Battery. Court allowed the contact of Dailey with the chair/ground to be considered sufficient contact for a battery on Garrett.

example of custom

A cable company doesn't put cones around their van when parking their vehicle on the street, even though that is the custom for cable companies in the industry. They are hit and sued for negligence because they didn't put cones around the van.

statute of limitations

Differ depending on intentional tort or negligence; sometimes intentional tort longer

ex of workers comp: Caudle v. Betts

Here, an employer used a condenser to shock an employee in the back of the neck as a practical joke. The shock caused permanent nerve damage. Plaintiff sued for battery.

ex. apprehension

I can be the bravest person in the world, and someone holds a gun to my face, and I'm not scared at all, but I still definitely have an apprehension that I am about to get shot.

worker's comp

If negligence occurs in the scope of employment, then the injured person is entitled to worker's comp If tort is intentional than a lawsuit can be brought More damages can be recovered from a lawsuit than worker's comp

liability can extend to unforeseen consequences

Imposes liability for all harm following a tort, no matter how unexpected the harm is Foreseeability doesn't matter when it comes to unintentional torts, a person can be liable for all harm either even if unintended or unforeseeable Does not mean that courts will always extend liability (not a rule)

self defense vs. necessity ex.

In self-defense tort, you punch the plaintiff because the plaintiff punched you. In necessity tort, you hurt the plaintiff's dock because a storm was coming, and you had to.

Intent case: Caudle v. Betts: Here, an employer used a condenser to shock an employee in the back of the neck as a practical joke. The shock caused permanent nerve damage. Plaintiff sued for battery.

In terms of intent, the court noted that the defendant obviously did not intend to cause the significant harm, however, originally, he did have purpose to put the condenser to his neck. This contact was objectively defined as offensive, so the action did constitute a battery.

false imprisonment to battery/assault example

In the process of confining a person falsely you commit a battery or assault. o This is even more of a stretch.

battery

Intentional tort theory that protects a person's interest in being free from physical contact with his or her person Don't always need person to person contact for a battery If action is close enough to invade your personal integrity, then it can be considered a battery

battery element 1: intent to cause harmful or offensive contact

Must have the intent to make unwanted contact • Purpose to make unwanted contact, OR Substantially certain knowledge that the unwanted contact will occur. o Actual Damages or an Intent to Harm is NOT required for a battery to be actionable. • Possible for very low-level damages (can be $1) • However, with the extended liability principle (see above), it is possible for battery damages to be very high, because the actor is usually liable for all harms that result from a battery, even those that are not foreseeable or intended.

assault to battery example

Only mean to scare a person with a gun but end up shooting it. Or, swing a bat at a person to scare someone but end up hitting them.

example of entry onto land: Herrin v. Sutherland To hunt waterfowl, Sutherland, while standing on his own land, repeatedly shot his gun over Herrin's land.

Sutherland was guilty of trespass, because one can trespass by causing an object (in this case bullets) to enter another's land.

Assault Element 1: intent to cause harmful or offensive contact or imminent apprehension of contact

The intent standard is the same in assault as it is in battery. • Purpose to create an apprehension of unwanted contact, OR • Substantially certain knowledge that an apprehension of unwanted contact will occur. In the same way that malicious (intent to harm) intent is not required for a battery, it is also not required for an assault.

example of liability extending to unforeseen consequences Caudle v. Betts Here, an employer used a condenser to shock an employee in the back of the neck as a practical joke. The shock caused permanent nerve damage. Plaintiff sued for battery.

While Betts could in no way have foreseen nor intended to give Caudle nerve damage, the court held Betts responsible for all damages caused by the condenser, including the nerve damage and the surgery and emotional distress related. This was because the original act (placing the shocker on his neck) was considered a battery.

contact hypo

You have a seeing eye dog, and a person hits your dog as you are walking. This would most probably be considered a battery because the seeing-eye dog, by nature of its job, is considered to be an "extension of your person." Contacting it is contacting you. • If normal person, probably only battery if he kicked the dog "into" you.

compensation

aims to compensate the injured party

the hand formula

an economic principle; sometimes called the risk/utility analysis • B<PL (from United States v. Carroll Towing Co.) • A person has a duty to take action if the burden to warn against or prevent against is less than the probability of the injury occurring multiplied by its potential for harm • B = burden (the cost of taking a precautionary measure; can include time, money, gathering information) - not just monetary, can be judged on inconvenience • P = probability (the risk or probability that an injury will take place) - for most judged on a number of past instances • L = loss/injury (the potential extremity or extent of the injury the harm will cause)

public necessity

arises when natural forces or third partied require the destruction of some to save the lives or property of other people or the community o ex. The state harms one man's property to build a new levee system in order to protect the whole city of NOLA. o ex. Militant group in someone's house, may have to bomb the house

Consent

assent by the subject of an offensive act, can be communicated by language or physical act o Basically the victim agreed to the certain harm/offense at stake. o consent negates the prima facia case o key defense to battery- a person enjoys the right to decide what happens to his or her body o consent can be defense to other torts other than battery o Some jurisdictions look to consent as a prima facia element of plaintiff's case • Church prefers we treat it as a defense. o In order for the defense of consent to be upheld, the victim must have consented to what the defendant intended to do.

apprehension

belief that the act may result in imminent contact unless prevented by others, self-defensive action, or by fight or flight by the intervention of some outside source

difficult to determine what is beyond scope of consent

consent can be withdrawn at any time plaintiff can withdraw consent to certain activities at any time • The use of UNECESSARY and UNANTICIPATED force negates consent. • Plaintiffs only consent to forces that are necessary and anticipated in the situation at hand, the minute the force exceeds those limits, it is implied that the consent is withdrawn. • In Cole, the court noted that Cole did not consent to the force used in the activity, even if the instance with the code word did not occur. The force used exceeded the necessary and anticipated force expected for a prison riot activity. • Example, courts say the football players consent to contact that is normal, foreseeable, and expected even if contact is outside of rules of the game. o Late hit okay but strangling someone on the field could be actionable. o consent cannot be effective forever, must be within a reasonable time o fraud that goes to the nature of the contact will void consent

hypo: if I take your car and keep it for a week, a month, a year

conversion

hypo: if I think your car is mine and drive it around the block. I realize it was yours, but on my way to return it, I get in a wreck and total the car

conversion

Standard of care for attorney:

custom for other attorneys, attorney behaving in similar circumstances, expert testimony

deterrence

deter other parties from engaging in similar conduct

goals for torts

deterrence, compensation

respondent superior

employers can be held liable for the actions of their employees as long as it is within the course and scope of their employment

consent is defective if defendant has duty to disclose information in the absence which the plaintiff would not have given consent

ex. sexual partner failing to disclose HIV

3rd requirement vicarious liability

fault

Aggressor Doctrine

if you are the aggressor, you can't recover not a valid doctrine

Express consent

indicated by spoken or written words

Trespass to land

intentional interference with an immovable protects the possessory interest in real property

contact hypo: if Church is walking out of the classroom carrying books, and you smack the book out of his hands

it is a battery. intent and offensive contact -- if property is close enough to connect the contact to the person, its a battery. Considered an "extension of your person"

monetary damages

most common remedy for torts

- Res Ipsa Loquitur

o "The thing speaks for itself" • The plaintiff cannot identify a specific negligent act on part of the defendant. • The injury is so out of the ordinary or extreme that it is ok to assume that it could have only occurred by negligence. • Ex.) Ceiling of a building collapses, chair falls out of window, plane crashes o If the judge decides that reasonable minds can differ on each of the elements and the case involves no direct evidence, then he will instruct the jury to Res Ipsa. • Evaluation of strength of circumstantial evidence, applies where direct evidence lacking • It allows (doesn't require) the jury to infer negligence; only goes to the elements of breach and duty - other elements must still be met. It is merely a tool for the plaintiff to meet case.

- Immunities

o 2 different types of periods · Periods that govern the time you have to file the action · Measured from the incident · Problems: delayed period of injury · Prescriptive period (statute of limitations) · You have 1 year from the time of the accident to file your claim o Can be extended sometimes, the period is usually one year o Adopt different periods for specific torts § Conduct that is a forceable or violent crime—2 years § Torts against minors o Filing the action interrupts the period

alternative liability

o : a liability principle used when there are multiple defendants and it is unknown which defendant caused the injury to the plaintiff, but it is known that one did · Different from market share in that it has a much more limited number of defendants at stake. Here, once the plaintiff can show that the entirety of the defendants could have cause the injury, the burden of proof switches to the defendant to prove they were not at fault. · In order to be applicable, the plaintiff must have all possible defendants in the suit

Assault Element 3: Means to complete the battery

o A defendant cannot be held liable for assault when looking at future threats (could be IIED) • The apprehension must be of some immediate action, imminent - "no significant delay." o The plaintiff must think that the battery (harmful or offensive contact) is about to occur.

False imprisonment element 3: the victim must be aware of the confinement or suffers harm as a result

o A dignitary tort is not suffered unless its victim knows of the dignitary invasion o The application of this element varies. • Some don't even consider consciousness as an element. • Some interpretations rely on "harm" rather than consciousness

ex. consent case: Fricke v. Owens-Corning Fiberglass Corp.

o A man sued his boss for the intentional tort of battery for knowingly exposing him to toxic mustard gas. The man found his friend passed out in the bottom of a mustard tank. He grabbed his supervisor, and as the supervisor went to go down into the tank, he stopped him and went down himself. He ended up being exposed to toxic gas and suffered severe brain damage. The employer's defense is that he consented to the battery. o The court upheld this defense, noting that while the employer had purpose or knowledge to a substantial certainty (intent) to some contact - say the contact with the mustard tank - the employee consented to that contact (he agreed to go in the tank). o No one knew the gas was toxic, so the employer could not have had purpose or substantial certainty to the exposure to the gas. The consent and intent met on equal grounds. • The case would have been completely different had the employer known that the gas down there was toxic and also known that the employee didn't know the gas was toxic. Then the intent would have exceeded the contact the employer consented to.

IIED Element 2: Severe Mental Distress

o Again, unlike other intentional torts, this tort and element requires INTENT TO HARM o Severe distress is distress that no reasonable person should be expected to incur. • Sometimes this is difficult to prove. • Usually need to show some sort of medical or psychological evidence of harm. o Examples • In White v. Monsanto Company, the plaintiff had to go to the doctor for a panic attack.

duty of reasonable care

o All people have a duty to act as a reasonable, ordinary, prudent person under similar circumstances • This behavior is expected to be better than how an average person would act • Duty analysis always begins with the reasonable person standard • Afterwards, if necessary, apply: custom, risk utility, negligence per se, and res ipsa

- Affirmative defense available: state of the art defense- the manufacturer proves that when it left, he did not know and couldn't have reasonably known of the risks

o At the time the product left the manufacturer, the manufacturer did the best they could with the technology/information available at the time. o Only available for Design Defect and Failure to Warn. o Holds today's manufacturers to a different standard than those of the past. o Can avoid liability if: · (1) The manufacturer did not know and, in the light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage or the danger of such characteristic, OR · (2) Same as above except for in concern of the alternative design, OR · (3) The alternative design was not feasible, in light of then existing scientific knowledge or then existing economic practicality.

assumption of the risk

o Categories of assumption of the risk · Express/waiver- agreed in writing to risk of injury · Implied primary- no duty/no breach · Implied secondary- comparative fault, aware of the risk, assumed the risk · Most cases

2 doctrines that extend period

o Contra non valentum -4 branches- § 3rd branch- legal reason why the plaintiff can't take action, § 4th branch- discovery doctrine, prescriptive period does not begin until the plaintiff didn't know or through the exercise of reasonable care should have known about the claim · Ex. Instrument left in the patient, patient gets MRI, alarms go off, year and a half delay and then the action was filed · If he had filed 6 months after the claim, the discovery doctrine would have applied o 1 year from date of discovery · Ex. Developing a disease caused by exposure to a drug or toxic chemical · Inquiry notice: under a duty to inquire more o Relation back § If they discover there's a wrong defendant, want to relate the claim back to when the claim was filed § The relation back of claims · Could have had a claim negligence and wanted to amend it to be a breach of contract claim o Question: is the defendant prejudiced by the amended complaint? § Louisiana courts are tough in relating back claims

- Controlling third parties

o Courts do not impose a duty upon a person to act to either help a person or to control the conduct of a third person actor to prevent tortious conduct by that actor unless · The person has a special relationship with the actor or either the actor's potential victim · Ex. Parent, caretaker, employer, common carrier, possessor of land, innkeeper · You know that there is an unreasonable risk of harm threatened by that party · Hinges on the foreseeability of the harm and the policy concerns behind regulation. We don't want people to stop taking care of others in fear of liability · There is no duty to rescue, but once you begin the rescue you have duty to act reasonably

damages

o Damages are important for the goals of Tort Law (Deterrence & Compensation) · They should be calculated in all cases, very important for settlements. · The value of a case matters when determining what cases lawyers accept. · Note significance of damages to Risk/Utility balance

Problems that arise when looking at consent

o Difficult to determine when consent has been given. o Difficult to determine what exact behavior was consented to o Difficult to decide the circumstances in which consent, though given, is defective.

- Interest and court costs

o Each party pays their own attorney's fees and court costs o More likely to be awarded those damages in state courts

- Wrongful death and survival exceptions

o Engaged in criminal activity - no recovery o Killed your spouse

example of vicarious liability

o Ex. a bouncer at a bar touches people as part of his job. • The contact is usually privileged, but if the contact goes too far, bar is liable.

Assault Element 2: the other is thereby put in such imminent apprehension

o For a defendant to be able to be held liable for assault, the plaintiff must SEE the unwanted contact coming. (attack from behind can't be assault, but it could be a battery) o Apprehension is not the same thing as fear; in other words, fear is not required for something to be considered an assault. It just must create an apprehension that the act is about to occur.

Policy Considerations for IIED

o IIED is a relatively new tort that arose out of Courts noticing that there were harms outside of physical contact that require some type of remedy. o With this in mind, courts are very slow to expand this tort - don't want to open floodgates o Note there is a difference between emotional distress damages for another tort and IIED, which requires a much tougher burden. - Sexual harassment could also be an IIED in the workplace

wrongful death and survival

o If someone dies on the exam, discuss wrongful death and survival first o They are procedural rights; it is the only way you can get into court o Pay attention to who the plaintiff is in the case o Never talk about it if the party is still alive o If the party is still alive, discuss lost consortium o Categories of beneficiaries, if one category recovers, the others can't, everyone in the category that recovers can recover 1. Surviving spouse and children 2. Father and mother 3. Brothers and sisters 4. Grandparents · Wrongful death: if there are no beneficiaries existing in any of the categories, then no one has the right to sue · Survival: a succession representative can sue on behalf of the deceased estate for damages that occurred while they were still alive. The right does not die with the restricted parties

- Comparative fault

o If the plaintiff is at fault, he is not completely barred from recovery o Instead the jury allocates a percentage of fault to the plaintiff and the defendants and their damages are divided by those percentages, except for those immune from recovery (even though they're still allocated fault)

intervening cause

o Intervening cause: the event occurred sometime in between the negligent act and the harm

slip and fall

o Issue is regulated by a statute in Louisiana · Why? It is the most common tort claim. Patron slips on some hazard · Banana Peel hypo: more likely to recover if the banana peel was brown because that means it had been there longer, the longer the condition existed, the more unreasonable it was to be left there · Notice: it only applies to merchants (sells goods, fixed location, businesses) · This statute applies to all of a merchant's premises including floors, aisles, passageways, etc.

- Breach

o It is purely a question of fact for the jury o Difference between Common Law and Louisiana Law · Common law · Solely asking whether the defendant breached his traditional duty · Louisiana duty/risk approach · Much broader question because it's question of whether the defendant breached his traditional duty and the scope of it There are times where the defendants breach their traditional duty, but the injury was not in the scope of the duty so they are not liable

- Duty/Risk Example Cases o Jones v. Robbins: alleged act of negligence: selling gasoline to a minor

o Jones v. Robbins: alleged act of negligence: selling gasoline to a minor · The plaintiff, the father of a minor sued the defendant, a store owner who sold gasoline to Jones's six-year-old half-sister. The gasoline was placed in a container and while the children were using it to wash their hands, four-year-old Candy threw a match in the container, it caught on fire and it caused her to have severe burns

the size of the aggressor is not determinate, but not irrelevant

o Just because one person is bigger than the other in an altercation does not automatically mean that the self-defense is justified. Nor does the fact that the larger person is doing the defending mean that the defense is not justified. o Size of the aggressor is just another element courts look at in determining the reasonableness of self-defense threats and responses.

Factors to consider to decide if its Conversion or Trespass to Chattel:

o Key question: How substantially did the person interfere with the property? • Extent and duration of the control • Defendant's intent to claim a right to the property • Defendant's good faith • Harm done • Expense or inconvenience caused.

absolute liability

o Liability without fault. Imposed regardless of an unreasonable risk or known risk usually is a reasonable risk. In Louisiana it is limited to pile driving and blasting. Louisiana Art 667-669, other jurisdictions can be: driving around dangerous chemicals, storage of radioactive substances o Activities that have to be engaged in, but have a high risk o Even if you take all the reasonable precautions in the world, you are liable for the resulting injuries because the activities are so hazardous and risky o You are only required to show that the injury was the natural and probable cause of the activity o Article 667-669 · Converts everything to negligence besides pile driving and blasting o Why do we impose absolute liability? 1. Very narrow range of activities - reduce activity level and efficiency · Want people to engage in blasting only when necessary, limits amount of activity 2. Induces locational efficiency- only when and where it's necessary · Considers other alternatives · Avoid liability when someone will not get hurt o High risk, high benefit, high loss

products liability actions

o Louisiana Products Liability Act (LPLA) · Applies when the defendant is the manufacturer · The statute is exclusive, on exam apply only this and not negligence or other theories · If it is not put into the stream of commerce, then it is not a product · Elements 1. The defendant who is the manufacturer of the product 2. Defect must proximately cause damage · Focus on actual cause, is damage within the scope of the risk, use but for, substantial factor 3. Product must be unreasonably dangerous in one of 4 ways · Construction of composition (one standard) · Design default (other ways) · Failure to warn · Breach of an express warranty 4. Reasonably anticipated use 5. Injury · There is a state-of-the-art defense available

Louisiana's concept of comparative fault

o Louisiana replaced the aggressor doctrine with the concept of comparative fault. • Each party is given a percentage of fault and then the damages are distributed accordingly. o Self-defense in this comparative fault system is a true defense. In other words, if you can prove you were acting out of self-defense, then your fault level is zero.

- Market Share Liability

o Market share liability: used when there are multiple manufacturers or producers in an industry that produce a dangerous/risky product in the same way and the product presents the exact same risk to all consumers · Instead of trying to figure out which exact company (indeterminate defendant) caused the harm to the plaintiff, the whole industry will be held liable because they all present the same risk and could have caused the harm in the same way · A defendant who possibly may not be at fault to this specific plaintiff is still being sued for contributing to the overall risk · Most courts don't apply market share o In order to apply market share liability, the plaintiff must show: · Identical product with identical risk · Injury or illness due to design hazard · Inability to determine specific manufacturer · Joiner encompasses a substantial share of the market

necessity vs. self defense

o Necessity actions, unlike self-defense action, arises out of no action related to the plaintiff, it arises out of the actions of a completely independent third party. • Ex. In self-defense tort, you punch the plaintiff because the plaintiff punched you. In necessity tort, you hurt the plaintiff's dock because a storm was coming, and you had to. o Even though necessity is a defense, defendant may still need to compensate for damage. • The government must pay when it exercises Eminent Domain o Necessity only lies to property damage

negligence per se

o Negligence Per Se is used when there is a statute applicable to the situation discussed in the case - the statute outlines the standard of care that should be taken in the case, so it is used to consider whether the defendant was being negligent • Only relevant for non-tort statutes - if there is a tort statute, you are automatically liable by breaking it • Negligence Per Se includes things like criminal statutes, traffic ordinances, FDA regulations o Louisiana and most jurisdictions adopt a mere evidence approach (the statute is used as evidence in the suit) • If the statute is applicable and the defendant broke it, it could be used as a factor to see if the defendant was negligent in the circumstances • Few jurisdictions use a strict or presumptive test o Two-part test to determine if the statute is applicable: 1. Is the plaintiff within the class of persons the statute was enacted to protect? 2. Was the risk/injury within the class of risk the statute was enacted to protect?

economic loss

o Negligence does not provide recover for pure economic loss o Negligent interference with contractual relations- only recoverable in a few jurisdictions o Damage is one step removed- only economic damages · What about customer in Alaska oil spill? Who recovers? · Property owners, value of lost damages · Louisiana economic loss doctrine- rejects in favor of scope of the risk

negligent entrustment

o No liability for negligent entrustment unless there were circumstances that would indicate that they were incapable of performing the action they were entrusted to do o Ex case: Joseph v. Dickerson · No breach of duty or vicarious liability when giving her car to her daughter · Her daughter had a license and there was no circumstances that showed she would be incapable of driving

involuntary reflexes

o Not as much liability for voluntary reflexes o Ex. A football player slapping his girlfriend after she attacked him with a fork

- Survival actions

o Plaintiff is suing on behalf of the deceased for the damages they suffered between the incident and the time of their ultimate death · Your negligence killed my wife, survived for 6 months · Damages belong to the 6-month period that she was still alive o Prescriptive period = 1 year from the accident; however, if the person dies before the year ends, the prescription period begins anew from the day of the death (then it is a year from a death) · If the person dies 13 months after the incident and doesn't file anything during that period, they do not have the right to sue o Can have both survival and lost chance of survival at the same time

but-for-causation

o Plaintiff must establish more probable than not but for the negligence, the damage would not have occurred · More probable than not 50% + anything · (by a preponderance of the evidence) · Plaintiff has the burden of proving causation by a preponderance · Question of fact that is usually left to the jury · If the injury would have still occurred without the person's negligence, the standard is not met and the negligence inquiry is over. The person cannot be held liable even if you have breached your duty · It is possible to have more than one but for cause · Causation chain has to be drawn from the alleged negligence to the injury

- Wrongful death actions

o Plaintiff sues for their personal damages from their loved one wrongfully being killed · What I lose: chores, companionship, income · The damages the family sustains · If there is an estranged parent and sue, damages could be close to 0 because there isn't much damage sustained · Prescriptive period = 1 year from the death. Theoretically the suit can be brought many years after the incident if the death is delayed.

- Negligent provision of services

o Professional malpractice · Lawyers, accountants, clergies, professors

False Imprisonment Element 1: Intent to confine or restrain

o Purpose to confine, OR knowledge to a Substantial Certainty that confinement will occur. • This intent does not have to be wrongful or malicious, you just have to intend to make the action that ends up confining. • Similar application as torts above.

Trespass to Chattels/conversion Element 1: Intent to trespass

o Purpose to interfere with another's property or knowledge to a substantial certainty that there will be interference with another's property. • Like Trespass to Land, the intent is simply to do the action. Mistake no defense. • It must be a voluntary act done on your own will.

Risk/utility balancing

o Risk/utility can be applied in almost every tort case. It is the most important topic and must be discussed on the exam. • Every human activity involves some kind of risk/utility balancing • It is weighing the burden of taking a precaution with the probability of the negative event happening

consent issues when it comes to private acts (sex)

o STDs: Say a person has sex with another person without telling that person that he/she had AIDS or any other STD. • Courts recognize this act as an intentional tort of battery that is actionable. In these cases, the sex act is consented to, but the harmful or offensive contact (contact with the disease) is NOT consented to. o Consent is defeated when under duress • Say you have a sexual harassment, IIED case. A whole part of the sexual harassment is the fact that person is required to give consent under duress - the consent is part of the harm.

policy considerations (scope of the duty/risk)

o Scope of duty/risk is a policy question · These policy considerations are usually hidden behind language like "foreseeability" and "ease of association" but are already present · Pitre policy factor should be listed on the exam

- Negligent hiring, training, and supervision

o Talk about the employee's fault first · Then determine whether it was in the course and scope of the employment o Source of personal negligence for employers · In Louisiana, do a basic duty/risk analysis o To determine if the general harm is in the scope of the risk of the employer, usually include similar factors used in vicarious liability analysis: · Were the employee and the plaintiff each in places where they ere allowed to be when the harm occurred · Did the plaintiff meet the employee as a direct result of his employment? · Would the employer have gotten some benefit from the meeting had the wrongful act occurred? o The closer the employee's actions are to the course and scope of the employment, the more likely that they are in the scope of the duty when hiring, training, and supervising

IIED Element 3: Extreme/outrageous conduct

o The action must go "beyond all possible bounds of decency." • A reasonable person could not be expected to endure it. o Some characteristics considered by courts for this element: • Repetitious Conduct: especially that which gets more severe over time. • Sexual harassment cases like this are the most successful and common IIED claims • An imbalance of power between the parties, as a boss and employee • Susceptibility of the Victim: child, pregnant woman, mentally ill, etc.

Battery Element 3: the contact was harmful or offensive

o The actor only has to intend some sort of unwanted contact • The contact also has to be labeled harmful or offensive for there to be an action. These are two separate considerations, judged from different perspectives. o Harm or offense is an objective standard, based on a reasonableness scale • Would the contact STILL constitute a battery if all the damages did not occur? Would it still have been a battery if there were no damage/harm because by nature the contact is considered harmful or offensive? • The Supreme Court has labeled offensive contact as that "which is offensive to a reasonable sense of personal dignity" or "any unwanted touching."

ex. Defense of property - Katko v. Briney: A couple was held liable for the damage they did to a trespasser on their abandoned property. They set up a spring gun to shoot at the legs of intruders after knowing that people were intruding on their land frequently. The couple did not reside there

o The court noted that this was excessive force in defense of property. Remember, without statute, one cannot use deadly force to protect property. o If they had lived and been in the home at the time of the intrusion, it may have been more reasonable to shoot the trespasser.

ex. of discipline immunity Harrell v. Daniels The teacher was accused of administering unreasonable corporal punishment when she paddled a boy, which left marks on his side, near his kidneys. The boy had a prior history of disciplinary problems. Other teachers who witnessed the event testified that it was done in accordance with school policy.

o The court noted that this was not unreasonable corporal punishment because the teacher was acting within school policy and the boy had a history of severe behavior problems that could explain his current mental distress.

ex. of shopkeeper's privilege: Thomas v. Schwegmann A grandmother while shopping was accused of stealing glue from a box of crazy nails that she opened and moved to a different shelf. It was later found that the box did not contain glue, but the woman was still detained.

o The court ruled that this detainment was unreasonable because the statute narrowly only applied to THEFT actions, not destruction of property. In order to recover for false imprisonment from a merchant, plaintiff must show either (1) unreasonable force was used, (2) there was no reasonable cause to believe the suspect had committed a theft, or (3) that the detainment lasted more than 60 minutes, unless it was reasonable for it to last longer.

ex. Shopkeeper's privilege Derouen v. Miller A shopper was detained at a local Winn Dixie after an employee saw her put shrimp next to her purse, get in line, and then leave the line to walk the aisles again. The storeowner called the police and the woman was arrested. At criminal trial she was found not guilty of theft.

o The court ruled that this was an unlawful arrest because the employee didn't take part in any sort of reasonable questioning of the accused party. The court notes that had there been questioning, the store would have probably realized that the woman did not steal anything. The court looked to the statute, noting that the statute must be read as a whole, requiring that there be some sort of reasonable questioning before an arrest can take place. If you find that there is no theft, you must let the accused go.

loss of consortium damages

o The parties that can recover for loss of consortium and the same hierarchy applies for spouse or family member injured in tort · If its consortium claim, then the victim is still alive · If it's a wrongful death claim, the loved one is dead o Include loss of love/affection, companionship, sexual relationships, material services o Your negligence injures spouse, can't talk, can't help out, have to hire outside help

False Imprisonment Element 2: the act must cause complete confinement or restraint

o The plaintiff's movement was restricted in a way that they did not have any other option. • Here, one must consider whether the plaintiff had a reasonable method of escape and whether the plaintiff was aware of that method.

o There is a "lost chance" tort in Medical Malpractice Claims called Lost Chance of Survival

o There is a "lost chance" tort in Medical Malpractice Claims called Lost Chance of Survival · But for the negligence, you wouldn't have lost the chance of survival · The damage or injury was the chance of survival that was lost · Loss of chance- didn't get the chance of trying to survive · So how do we judge? —in Louisiana you just have to prove there was some lost chance of survival and you can recover. Then the jury places a value on that lost chance based on the facts and circumstances of the case to decide how much you can recover · Necessary in medical malpractice cases: because the whole point of a doctor is to increase a person's chance of living or the length of their lifetime. Increasing a person's chance of survival is inherent to the practice or medicine. · Only time you award lost chance damages is in medical malpractice · Plaintiff's burden is to establish the existence of a lost chance of survival · Jury has to tell what the value of that is

strict liability

o Truncated hand formula: B-BK<LP- only applies to strict liability · An unreasonable risk assuming the knowledge o In Louisiana, strict liability only exists when concerning dog ownership · Strict liability does not require constructive knowledge · Does not matter whether the negligent party had knowledge · Only required that you show that there was an unreasonable risk of harm and it is assumed that the person knew of that risk o Now most strict liability cases are now negligence theories o Statutes/Code Articles · 2317 and 2317.1, 2322 - Liability for Things/Liability for Buildings · Used to be strict liability under 2317, but with the addition of 2317.1 became a basic negligence consideration. · 2319 - Liability for the Insane. · Used to be strict liability but now just a negligence theory. · A curator can no longer be responsible for the torts of the insane solely by virtue of his relationship with him. · He can only liable for his own independent fault that can be assessed through a normal duty/risk negligence analysis. · 2321 - Liability for Animals. · Used to be completely strict liability. but now negligence consideration for all animals, except dogs. Other animals - negligence. · Dogs - Must Show: o (1) There was an unreasonable risk of harm o (2) That the risk could have been prevented by the owner o (3) The injury did not result from the injured person's provocation of the dog. · 2318 - Parental Responsibility · Turner interpreted this statute to hold parents accountable even when the actions of the child would not be actually negligent from their perspective. · Instead, they are held to an adult standard. Look at what the child did. If the child did something that, had they been an adult, would have been a tort, the parents are responsible. This is a very bizarre legal standard.

risk rule (apply first)

o Two main questions: was the plaintiff a foreseeable plaintiff or group of plaintiffs? Was the risk a foreseeable risk? · Similar application as Negligence Per Se: class of persons, class of risk · Palsgraf: foreseeable plaintiff, Wagon Mound: foreseeable risk (general, specific)

IIED Element 1: Intent to create severe emotional distress

o Unlike any other intentional tort, the intent of the defendant must be intent to harm • Purpose or knowledge to a substantial certainty that your conduct will cause severe emotional distress. • In Nickerson, the court found the defendant knew of the victim's mental illness, and therefore should have known the severe harm the prank could cause. • This is a specific intent requirement, not a general one as in other intentional torts. • Not intent to cause some emotional distress; it must be severe emotional distress.

nuisance

o Use of property that is not necessarily negligent or involving unreasonable danger, but instead interferes with another's use of their own property. Often a legitimate use of property interferes with another · Ex. Neighbor has a party and I can't sleep because of it, I do have a right to enjoy my property without unreasonable loud noise, balance interests · If its one night its not worthy of an injunction, if its every night than yes o Courts will usually require an injunction or an accommodation o Louisiana: obligation of the neighborhood · Negligence shouldn't be applied to nuisance

substantial factor causation

o Was this negligent act a substantial factor in bringing about the victim's harm? · Multiple, sufficient causes- two different things operating to cause the injury · Each independently capable of producing the harm, does not meet but for, still a substantial factor in bringing about the harm · Courts will sometimes use this language to approach situations where there is more than one cause to an injury or a certain cause doesn't exactly me the 50% + anything standard · If both are but for causes, you don't have to result to substantial factor · Each was enough to cause the injury, each one was a cause of the injury

Battery Element 2: contact

o What separates a battery from an assault is actual contact occurs in a battery, not just an apprehension of that contact. o Extent of Contract - somewhat a loose term • Indirect contacts are included, but at times the line of what materials can constitute contact are unclear. • Examples: gun shoots you, violent dog put on you, bat hits you, etc. • Close cases that depend on facts: person kicks your dog, or the car you were in depends on how close you were to the contact

Legal Malpractice

o When dealing with causation in Legal Malpractice Cases, the Burden of Proof switches to the defendant (attorney) to show that injury would still have occurred without the negligence. o Plaintiff has to establish the elements of the case if it had been filed in time · If the case has been established, then the burden shifts from the plaintiff to the defendant to produce proof that overcomes the prima facia case · Defendant attorney has to show that the case was a loser · This is because the "case within a case" standard is too difficult on the plaintiff, so once duty and breach are established, it is the defendant's job to defeat the causation element · A lawyer may take a case event though it is a loser because it still has settlement value. To establish this claim, you would have to redefine the tort as "lost chance of settlement" claim

custom

o When dealing with defendants in an emergency, courts can look to what is customary procedures as evidence to what an ordinary reasonable prudent person in that certain industry does • Can be the case with professionals such as doctors, engineers, etc. • However, customs can still be negligent, just because it is custom to behave a certain way, does not mean that is how an ordinary, reasonable, prudent person acts

· Discretionary act immunity: allow the government to function, separation of courts and administration and legislation

o When the government is acting out of their discretion, they can't be liable for their discretion § Ex: tax dollar spent for courthouse and not roads, they can't be liable for someone who is hurt on the roads o Liability for defective conditions discovered by LRS 2800: liability for defective conditions governed by 2317.1 3 requirements (same standard as the negligence) § Show they knew or should have known of the condition § Exercise of reasonable care would have prevented the harm § Failed to exercise the reasonable care

Trespass to chattels/conversion Element 2: Interference with owner/user enjoyment

o a conversion is committed when: 1. possession is acquired in an unauthorized manner 2. the chattel is removed from one place to another 3. possession of the chattel is transferred without authority 4. possession is withheld from the other or possessor 5. the chattel is altered or destroyed 6. the chattel is used improperly 7. ownership is asserted over the chattel o The level of interference is what differentiates between trespass to chattel and conversion claims. • The more interference (judged on time, harm, substantiality standards), the more likely the tort will be conversion.

must go beyond mere provocation

o a person is not justified in using force to defend himself when using words alone o can be justified when the words are coupled with a reasonably apparent threat of harm (an assault) o Ex. A man committed a battery against another man for cursing in front of the women in the room (especially his wife). • The court ruled that this was not self-defense because self-defense is not justified in response to mere words. o there must be an actual apparent threat to the claimant's safety o threats do not ordinarily justify an apprehension of immediate harm

superseding cause

o an intervening cause that is so faulty or unforeseeable that it supersedes the original negligent act and the original negligent actor is no longer liable · ex. Annie is suing Eddie for wrongful death. Eddie hit Annie in her VW while she was driving to the library. As she got out of the car to talk about the wreck, a piece of lightning struck her and she died. It is probable that the lightning was so unforeseeable that Eddie can no longer be liable for Annie's death · The faultier the intervening cause, the more likely it is to be superseding. The more unforeseeable or extraordinary the intervening cause, the more likely it is to be superseding.

indeterminate defendant

o asbestos was used by everyone- hard to determine who caused the problem · Asbestos creates a signature disease that only comes from asbestos

loss of chance

o didn't get the chance to try and survive o Does loss of chance alter the but for standard? · No, if the lost chance of survival is the injury, the causation standard does not change · But for more probably than not in the absence of the negligence, does the loss of chance still exist o Policy issue: medical malpractice, a contract, maximize chance of survival, unreasonable conduct that takes away the chance, but for the negligence, would you have lost the chance

ease of association

o how easily can the risk be associated with the duty? · How attenuated is the harm from the original negligent act? o Hill v. Lundin & Associates, Inc. plaintiff tripped over a ladder left by a construction company while trying to keep a child from tripping over it · how far does liability extend? · Use scope of the risk/duty approach in Louisiana · Separate element (5th)

Breach duty of reasonable care for hospitals:

o rely on expert testimony- customary standard of care

Indeterminate plaintiff problem

o say you have a product that it is know that it causes cancer. There is evidence that this product caused 10 cases of cancer, but there are 20 plaintiffs suing the company for their cancer symptoms. It is impossible to discover which 10 of the 20 plaintiffs got their cancer from the defendant's product. And it does not meet the preponderance of evidence standard because it is split 50/50. · Assumption: additional cases of cancer are caused by exposure · Make causation assumptions: can assume the substance (exposure to roundup) causes cancer · If this is the evidence, how does this show causation · In the absence of exposure, this individual would not have suffered from the cancer · Causation Situation 1: Plaintiff (any 1 case) = 20/30 = 66% > %50 · More probable that not = all individuals can establish causation (indeterminate plaintiff) · Causation Situation 2: Plaintiff (any 1 case) = 4/14 = 28.57% < %50 · None can establish causation even though there was 4 caused by exposure · Indeterminate plaintiff is not a legal standard

duty to retreat

o there is never a duty to retreat from your own home (last refuge of a person) o Otherwise, if there is a reasonable method of retreat, you do have a duty to retreat before you can use any type of deadly force. o stand your ground rule does not justify deadly force when defending your property • ex. Someone has stolen something from your house and is running away in your front yard, you cannot shoot them as they are running away o however, if someone is in your home, you have the right to shoot them because they pose a reasonable risk to your safety while in your home

reasonableness standard

o there must be an actual or reasonable apprehension of harm • Self-defense must be based on actual or apparent danger to life or limb. • Can't use excessive force in response to non-threats. • Whether the threat was reasonable is usually judged by the factfinder. • Always dependent on the facts and circumstances of the case. o The defender must use a reasonable amount of force in response to that threat • Excessive or unreasonable use of force in response to an attack is NOT justified. • Would not be ok for you to shoot someone who just pushed you and was unarmed. • Once you exceed a reasonable response to a threat, you are liable for your actions. • If attacker runs away, you can't shoot him in the back - threat diminished. • It is important to note that what are reasonable responses are usually quite broad

transferred intent

one who intends a battery is liable when unexpectedly hitting a stranger instead of the intended victim can be transferred from person to person and tort to tort not an official rule, not always enforced by courts

informed consent

only for medical malpractice

injunction

ordering the defendant to behave a certain way

Intentional Infliction of Emotional Distress

protects individuals against severe emotional harm outside of any physical harm a "fill-in" tort for when damages occur, but no other tort can apply

intent

purpose or knowledge to a substantial certainty Intent does not have to 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.

Trespass to Land Element 1: Intent to enter onto land

purpose to enter the land or knowledge to a substantial certainty that you are entering the land • Simply put, it is the intent to be where you are. o You do not have to know that you are on someone else's property. • You just have to undertake the voluntary action to get there. • Must be there on your own will. • Mistake is not a defense. Intent is only to enter that physical space.

tort law

recovery for injury

Restatement § 432(2): if two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about the harm to another,

the actor's negligence may be found to be a substantial factor in bringing it about

contact ex. Leichtman v. WLW Jacor Communications Inc: well-known anti-smoking advocate was asked as guest host on a radio show. He accused the assistant host of purposefully blowing cigarette smoke in his face, which he felt was so offensive in the context to constitute a battery

the court ruled that cigarette smoke as a "particulate matter" did have the physical properties capable of making contact

Plaintiff

the person injured

defendant

the person who caused the harm

ex of severe mental distress White v. Monsanto Co.

the plaintiff had to go to the doctor for a panic attack.

extreme/outrageous conduct: Murray v. Schlosser A case involving early radio "shock jocks." Radio disk jockeys looked through local newspaper's weekly photographs and picked from among the brides a "dog of the week" to whom to whom they awarded a case of dog food.

this was considered to be extreme and and outrageous conduct

implied consent

to have been evidenced by the plaintiff's behavior or other evidence o At issue, when a defendant claims that consent was never blatantly given, but the actions or behavior of the plaintiff was evidence to the consent. • Evaluated by reasonable person standard • Consent by circumstances, such as medical cases

trespass to chattel Hypo: if I take your car without permission and drive it for an hour before returning it

trespass to chattel

elements

what the plaintiff needs to prove to have a case

other considerations for false imprisonment

when did the confinement begin? • When did the confinement start in Parvi v. City of Kingston? • Most would claim it was when the policemen began to act outside of their privilege. Can a person be confined mentally? • It could be argued that someone who joins a cult be confined in that the cult controlled his or her mind.

contact hypo

you are in a car, and a person kicks the outside of the car. You don't feel the kick and it does not affect your person in any way. This would probably not be a battery. The contact is too far removed from your person

hypo: awareness of confinement or suffer harm as a result. You are locked in a room, but you have no idea you are locked in. Later everyone finds out about the incident and makes fun of you for how stupid you were.

you could meet this element in that you were not aware of your imprisonment, but you were still harmed by it

o Louisiana Medical Malpractice Act

· $500,000 cap on general damages + other damages (lost wages) · Initial response: request for a medical review panel (MRP) · 3 voting licensed professionals + nonvoting attorney chair who will render whether the defendant met the standard of care · After decision is rendered, go to court where it will be tried · The opinion of the review panel will become expert witness testimony, admissible evidence (can still litigate) · Can still rebut in court · Filing in court does not beat the prescriptive period, only the request to the division of administration interrupts the prescriptive, only begins anew after the filing

legal malpractice: o Jenkins v. St. Paul Fire & Marine Insurance Co.: act of negligence: did not file a claim before the prescriptive (SOL) period

· A client sued his lawyers for legal malpractice when they did not file a claim before the prescriptive (SOL) period · The client was able to prove that there was a duty to file on time and the lawyers breached that duty. The lawyers argued that he could not meet the burden of proof on causation because his case was a loser in that he would still have nor recovered even if the claim had been filed on time · The court ruled that while this may be true, it is difficult for a plaintiff to know when his or her own case would have been a loser (case within a case). So, the burden of proof switches to the defendant to show that the case would still have lost even without the negligence.

loss of chance case o Smith v. State of LA DHH: act of negligence: failure to inform the family of a cancerous mass

· A guy came in for a routine surgery, during which a chest x-ray was performed. In looking at the x-ray, the doctor's staff saw a cancerous mass. They did not inform the family of the cancerous mass and the guy returned 15 months later with issues and the mass had doubled. The doctor then informed the family and he died 4 months later · Because of the cancer, the guy would have died whether the doctor had told him earlier or not. But it is possible if he has been informed earlier, he would have had a better chance of survival. 10% at the time of the first x-ray 1% when informed. But for test fails. · The court noted that this was not a wrongful death action, but instead a loss chance of survival action. Can't put a percentage number on that lost chance, but it is clear that the loss had value. One proof that there was a lost chance of survival then the jury can put a value on that lost chance and the person can recover.

but-for-causation o Breithaupt v. Sellers: alleged act of negligence: shooting a hunter

· A hunter wasn't wearing his orange hunter vest when he was shot by another hunter while out hunting deer. If the other hunter could have detected the presence was a man and not a deer, then he had the duty to refrain from shooting regardless of whether his victim was an innocent person or a fellow hunter. It is more probable than not, if he acted as a reasonable hunter and looked into the scope before shooting, the guy would not have been shot. It was determined that a reasonable jury could say that the injury would have occurred even if he was wearing hunter's orange. · Case importance: defendant tries to argue contributory negligence for not wearing orange (would bar recovery); must present their own prima facia case. Court disagreed. (this was before comparative fault was adopted)

products liability design defect

· A product is unreasonably dangerous in design if at the time the product left the manufacturer's control or as a result of a reasonably anticipated modification or alteration o There existed an alternative design for the product that was capable of preventing the claimant's damage and o The likelihood that the product's design could cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and adverse effect, if any of such alternative design on the utility of the product § An adequate warning about a product should be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product § Balance the cost of using the alternative design with the not using the alternative design § Sometimes will be applying without all the adequate information § Because the balancing test is applied, manufacturers are only held liable if they are negligent, that is they knew or should have known through reasonable care that the defect was unreasonably dangerous § There is no strict liability in design defect o Always identify the alternative design § On the exam Church will tell you the alternative design o The use the balancing test required by the statute o Compare the original design's likelihood of causing the claimant's injury and the gravity of that damage against the burden of the manufacturer in adopting the new design and the alternative product's adverse effect on the utility of the original product (Ford Pinto Case) o A warning can minimize the P in PL o The reduced utility of the design alternative can be taken into account

products liability: breach of an express warranty-direct statement

· A product is unreasonably dangerous when it does not conform to an express warranty made at any time by the manufacturer about the product if the express warranty has induced the claimant or another person or entity to use the product and the claimant's damage was proximately caused because the express warranty was untrue. · Basically, here the manufacturer says the product will never blow up and it does. · Held liable for only express warranties NOT implied ones or opinions. · These have to statements of fact, not opinions. · This product is the best product ever - opinion · This product will never rust - fact. · A sample or model of a product IS an express warranty.

o Professional rescuers doctrine

· A professional rescuer who is injured in the performance of his duties "assumes the risk" of such an injury and is not entitled to damage · There are two exceptions to this rule: · The risk is so extraordinary that it could have never been expected; it is such an unforeseeable risk · The conduct of the defendant is blameworthy or faulty in a way that he should be punished

duty to rescuers amateur rescuers

· A rescuer attempts to rescue and is injured in the process · Generally speaking, damages to amateur rescuers is within the scope of the risk of the originally negligent party · This stems from the theory the danger invites rescue · The only possible exception is when the rescue attempt is grossly negligent. Grossly negligent rescuers generally fall outside the scope of the risk o Example: you jump in the pool to save someone and realize you can't swim. It is unlikely that the original tortfeasor will be liable to you, because your rescue attempt was grossly negligent and thus a superseding cause to your injuries

common law has 3 theories for misrepresentation

· Akin to privity - plaintiff has something to do with contractual relationship · Restatement- expansion upon akin to privity, unknown persons related to contract · Foreseeability- liability will extend to foreseeable parties

types of medical malpractice cases

· Botched procedure: bad advice · Malpractice in the provision of the services · Informed consent · Only in medical malpractice · Unauthorized touching would be a battery unless there was informed consent o unless it is very clearly an intentional tort (carving initials into a person's body, we treat it as medical malpractice · duty on the part of health professionals to provide information about the risks and benefits of treatment alternatives · don't need consent in a true emergency · if the victim can't consent, you get consent from someone else · fail to provide adequate information, failed to provide information to make informed consent, will be medical malpractice · customary duty to provide adequate information · physician could make a judgement: if I don't remove this, the patient will die o could obtain substitute consent o even if the correct judgement was to remove organs, not proper under the conditions o could have a consent form before the surgery, have to disclose the particular risk § use of state consent forms, valid consent, but if there are unique circumstances in the patient's procedure, have to tailor the consent to the particular circumstances · constitutional basis for why the doctrine of informed consent has to be in the hands of the patient o duty is to provide information about all material risks § material risk: one that a reasonable risk is part of the decision, don't have to disclose well known risks § don't have to disclose low risks, some assessments about the level of risks § layers of informed consent: meet with the different doctors to disclose risks and each have to obtain consent · when you visit the doctor's office, some kind of implied consent o if it goes beyond what you come there for, could exceed the scope of informed consent · would the disclosed information have caused you not to undergo the procedure? o procedure has nothing to do with the information o the injury that results has to be the injury they failed to disclose about o objective standard: would a reasonable patient consent to the risk or not o doctor's privilege to not provide information: the healthcare professional can not disclose information when the information would harm the patient § need to get substitute consent o duty to provide information about all reasonable treatment options, even nontreatment

Louisiana elements of negligence (applied to Jones v. Robbins)

· Cause-in-fact: but for selling the minor gasoline, Candy wouldn't have been injured o It is more probable than not, that not selling the gasoline would have prevented the accident · Traditional duty: a reasonable, ordinary, prudent gas station owner would not sell gasoline to a child o Risk/utility: burden of not selling the gasoline is relatively low, while the expected loss of injuring a child who plays with it is very high · Scope of the duty o Risk rule: there was foreseeable risk and a foreseeable plaintiff. The risk of injuring someone when giving gasoline to a child is within the scope of the duty o The throwing of the match was within the risk, so not an intervening/superseding cause o Easily associated risk that another child would misuse this § Can easily associate the risk with the person with the negligent act o Policy considerations - list them and explain · Breach · Injury/damages

o Cox v. Gaylord: Pregnant mother injured on job driving forklift - couldn't be moved out of job because of employment discrimination. Child born with cerebral palsy.

· Child is basically suing the employer for mother's actions done within the scope of the employment relationship - vicarious liability. · The Court rules though that since federal law prevented them from doing anything to stop the harm, they cannot collect. (weird case)

family immunities

· Children can't sue parents, spouses · Immunity is personal: can sue spouse's insurance company

o Bystander mental anguish

· Circumstances where damages are suffered after witnessing the injury of someone else · Only injury is the emotional distress · Wife walks in to see husband (who is in a coma) with bite marks after being chewed on by rats · Requirements: view the conduct or come upon the scene after, likelihood that they would suffer emotional distress, caused the emotional distress, family members · Regulated by statute which is very strictly applied in Louisiana, courts do not want to open the flood gates

o Pitre v. Opelousas General Hosp.

· Contains a deep discussion on duty to an unborn child and also lists new recognized causes of action and when tort recovery is allowed. · For tort purposes, there is no "person" until child born alive. · If the fetus is not born alive, the parents have action for wrongful death, not survival (fetus never person). The parents have claim for their own damages.

NIED o Clomon v. Monroe City School Board: Plaintiff runs over child after bus driver forgot to flip out bus signs. Women who hit child sues for damages!

· Court allowed recovery under bystander rule because although she was not a close relationship, she was a direct participant in the accident. · Recent cases have seemed to suggests that direct participant is no more · Court are more likely to allow damages when occurs at wedding.

NIED example case o Moresi v. State Department of Wildlife and Fisheries (Direct Victim) Agent leaves note at wrong duck camp saying "get you next time" on accident after cited before

· Court is reluctant to expand general rule, negligent transmission of death notice and mishandling of corpses fall within. · Court rules this case out of legislative intent.

La addresses misrepresentation through traditional duty/risk approach

· Courts are hesitant to apply tort law to economic harm · If there is physical injury involved more likely to extend scope of the risk

products liability construction or composition

· Does not live up to their own standards · A product is unreasonably dangerous in construction or composition if at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer · Basically the manufacturer sets the standards of how they wanted their product to perform and this one specific product did not live up to their own standard o Ex: exploding coke bottle § Product was incapable of handling pressure § One product fails · Because these situations are usually just a fluke, the manufacturer is held strictly liable for these injuries · In other words, you don't have to show that the manufacturer knew or should have known of this risk

o Ballas v. Kenny's Key West: a man is setting up equipment, he slipped and fell. He then sued the bar because an alleged puddle was leaking from a beer cooler

· Does the statute apply? Yes, because there was a merchant involved · No unreasonable risk - no proof that the puddle existed, the only proof was that his pants were wet. There was no notice of condition and the policy of the employees were that they were supposed to be walking around and checking for dangers periodically.

o Coleman factors (is this medical malpractice or a tort case?)

· Does this involve medical judgement or not · Do we need expert testimony or something like expert testimony?

o Vicarious liability- 1st requirement- Employer/Employee Relationship

· Employment relationship · Borrowing relationship- circumstance is borrowing an employee, can have dual employers, can have more than one vicarious employer · Independent contractor vs. employee- test of independent relationship · Depends on level of control o Supervision, right to control § Power to dismiss § Right to control- right to say when to perform work, under the conditions o The more level of independence, the more likely they are to be an independent contractor o More likely for an artist to be an independent contractor than a factory worker or a plumber § Plumber would depend on the circumstances · Independent contractor · Focus on payment o Independent contractor- based on particular job o Employee- based on salary/wages · When is an employer liable for the actions of an independent contractor? o When the independent contractor is performing ultra-hazardous or inherently dangerous activity on behalf of the employer o The employer retains operational control over the contractor's acts or expressly and impliedly authorizes those acts (the control test: the independent contractor becomes an employee) · Can impute negligence to the state or the school - negligence can be imputed to the law center but can it be imputed all the way up to the state? · Can have dual employers · Does the company retain enough control—if they pay him, retain a certain amount of control o Also, they tell him where to work

o Workplace immunity: worker's comp

· Encourage employees injured on the job, want to encourage them to move into worker's comp · Requirements: employment relationship, injury that occurred in the course of and arising out of the employment relationship, covered event within worker's comp · Exception: intentional act exception · Ex: general contractor contracts with a subcontractor who employs Ed · General: builds house · Sub: plumber · Ed employee who is injured o Sues plumbing company o Can he sue general contractor? § If they did what they were supposed to do no because they're a statutory employer · When talking about worker's comp talk about statutory employee, but not vicarious liability

express waiver

· Express acceptance of the risk, can't waive your right to a personal injury damage · Can waive your right to economic damages, but if waiver includes damage about both personal injury and economic damages than the entire thing is void · Only exist to raise awareness and to help prevent personal injury suits

ex of professional rescuers doctrine

· Gann v. Matthews: officer uses a maneuver to try and restrain and handcuff the defendant, but kicks the car door and fractures her knee after he moves. Is he liable? No, she assumed the risk of such an injury while performing her duty as a police officer · Gonzales v. Kissner: animal control officer was attacked by a dog while speaking to the owner about an earlier complaint of her dog attacking a 13-year old. The dog broke out of the house and had previously broken out as well. Since the dog had attacked the day before, broken out of the house previously, this falls under blameworthy conduct.

- General examples of special relationships that impose a duty to rescue o Parent/child: parent is under a duty to exercise reasonable care to control his minor child as to prevent it from intentionally harming others or from conducting itself as to create an unreasonable risk of bodily harm to them if

· Generally: a duty to control child · Knows or has reason to know that he has the ability to control his child and · Knows or should know of the necessity and opportunity for exercising such control

jailor's duty

· Generally: duty to control prisoner · Have a duty to keep prisoners in jail or dogs/cats in quarantine · There is a limit on jailer's duty of the risk that prisoners escape. There is a duty for them to prevent suicide of inmates

o General damages- pain/suffering, mental anguish no specifications

· Great deal of frequency- suffer from pain—usually develop a method of dealing with it, so it is hard to quantify actual damages · Day in the life videos · Left to judges/juries to decide

duty of school/student

· Have a duty to protect students while on school property and provide adequate mechanisms for them to get home

no duty cases

· Have to say no duty was owed to that particular injury · Defendant has done everything they can, complete fault allocated to the plaintiff · Breach goes to the jury, duty does not · Open and obvious risk doctrine- there is no duty for risks that are so open and obvious that defendant is behaving reasonably by doing nothing · It can be assumed that plaintiffs, will take adequate care for themselves

Legal Cause (Proximate Cause)/Scope of the Duty - Common law approach/general concepts o Should this defendant be responsible for the harm in this case?

· How far do we extend liability? · It is basically a policy question for the judge or jury · in common law it is a question of causation and fact for the jury · in Louisiana, it is a question of duty and law for the judge, scope of the duty · Is it the risk within the scope of the duty?

- Property damages o Diminished value of property or cost of repair

· If the cost of restoration is completely our of proportion with the actual value of the property (you chose cost of restoration because it would be millions while the value of the property is only thousands) the court will force your to pick actual cost of property · Exception: something that is hard to replace: antique, family value

NIED is its own tort

· In NIED cases, the injury is not parasitic to the damages · The only injury is emotional distress

o The duty to rescue in general

· In US, people generally do not have a duty to rescue. Courts just impose reasonable situations where one does have a duty · Those reasonable situations are: · When you are the person that created the risky/dangerous situation · When you begin a rescue attempt, you must see through (theory is that you prevent others from attempting to rescue) · In general, you have a duty to act as a reasonably, ordinary, prudent person in similar circumstances (sometimes just calling 911)

products liability- injury/damages

· Includes ALL damage from the product, including wrongful death and survival when applicable. · The defect must exist at the time the product leaves the manufacturer. They are responsible if they are aware of aftermarket alterations.

o HEDONIS- lost enjoyment of life

· Invest money into horseback riding, can't ride horses, enjoyment has been reduced Could take up another hobby, making it hard to quantify the actual damage amount

· Legal and medical malpractice have 1 and 3-year periods

· Legal and medical malpractice have 1 and 3-year periods o Have to interpret the medical malpractice problems specifically for medical malpractice o 1 and 3-year periods are the peremptive periods § Cap on the discovery doctrine if they meet the discovery doctrine can have 3 years for the peremptive period o 1 year is the prescriptive period · Why do we have these periods? · Evidence gets stale · Defendants ought to be free from the risk of the claims being filed · Longtail claims interrupt markets

o The hierarchy in both situations is interpreted very strictly

· Level of companionship does not matter. Even if a spouse is legally separated, but not divorced, the spouse is still the one that recovers · Cannot waive your right to wrongful death claim, either the correct party sues or no one sues · If the wife was the wife during the time of the accident and gets remarried after, the wife would still be able to sue for wrongful death because they were married at the time of the accident · Can marry into wrongful death or survival, if the woman marries the man after the accident and then he dies soon after because of the injury, the wife then can sue for wrongful death · Step parents and children aren't included unless they've been formally adopted · Illegitimate kids/siblings can file for paternity at the same time they file their wrongful death actions

o Pitre v. Opelousas General Hospital: alleged act of negligence: failure to correctly perform the surgery

· Malpractice suit filed by the parents of an albino child, seeking damages for themselves arising out of a surgeon's alleged negligence which caused the failure of a bilateral tubal litigation to sterilize the mother, resulting in the unplanned and unwanted birth of the child · Recognizes some new causes of action: · Wrongful birth- claim made by parents that they would have terminated the pregnancy if they were informed of the risk of a birth defect · Wrongful life- child's claim for having to live with defect or afflictions caused by it because had the risk been none, the parents still would have terminated it o Procedure would have resulted in non-existence, therefore the child cannot recover for the birth defects · Wrongful conception- parents claim that they would not have a child if it weren't for the alleged negligence o Can collect for loss of consortium/cost of pregnancy, but not the cost of raising the child - court would not recognize someone being worse off for having a child

product manufacturer

· Manufacturer: look for the word manufacture on the exam: repeat- LPLA establishes exclusive theories of liability for manufacturers for damages caused by their product · Use the word exclusive · Apply the elements of the statute to the exclusion of anything else · A person or entity that is in the business of manufacturing a product for the placement into trade or commerce. Includes producing, making, fabricating, designing, remanufacturing, assembling, reconditioning, or refurbishing a product.

o Duty to protect others from STDs

· Meany v. Meany: the husband did not know that he had a disease, does not quite meet the intent for an intentional tort. However, if the husband should have known, he is held to the reasonable person standard as in negligence cases · Doesn't have to know you have an STD, just engage in risk behavior

o La RS 9:2800.6: burden of proof in claims against merchants

· Merchant's duty to exercise reasonable care in keeping aisles, passageways in a reasonable safe condition · Claimant has the burden of proving: · The condition presented an unreasonable risk of harm to the claimant and that risk of harm foreseeable · The merchant either created or had actual or constructive notice of the condition, which caused the damage, prior to the occurrence o Constructive notice: the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care o The presence of an employee of the merchant in the vicinity in which the condition exists does not alone, constitute constructive notice, unless it is shown that the employee knew or with the exercise of reasonable care, should have known of the condition · Failure to exercise reasonable care, absence of policy is not enough · Make reference to the statute on the exam, list and prove element of the statute, then prove the rest of the negligence case

o Special damages- lost wages, earnings, have to be pled with specificity

· More prone to calculations · Includes past medical care, property damages, loss of wages · For loss of earnings capacity, you have to consider where the plaintiff is at the time of the incident. Your earning capacity will be much different when you are a baby than when you are in law school · Folse v. Fakouri: Damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact he may never take advantage of capacity. · Variables to consider: average wage, life expectancy, retirement, etc. · Hard to calculate with certainty · All speculative, plaintiff has burden, hires experts. Discounting also occurs since award is lump sum, worth more now than later (investing). They are also non-taxable.

· Article 2315.6 is the exclusive method of recovery for mental anguish inflicted on third parties; cannot do a common law duty/risk analysis

· Must mention and use code article on the exam · There is no hierarchy in mental distress claims, as long as you meet the elements of the statute · If a result of medical malpractice, do fall under the medical malpractice act · Worker's Comp. Immunity does not apply. Parties can sue for bystander damages outside of WC.

· Examples of direct victim NIED

· Negligent transmission of a telegram announcing the death of someone · Destruction of property (very few cases) · Fright or nervous shock that occurs from an individual's fear of safety · Sometimes fear of contracting AIDS can be okay. However, important to look back and consider that some jurisdictions require proof of exposure (actual contact with blood) · Cancer-phobia- allowed in very rare cases. The fear must be based on a genuine increased risk. These claims are usually limited to instances where a person was suddenly exposed to a cancer-giving agent

o Direct victims of mental anguish

· No regulated by a statute, but still stringent on allowing recovery · Have to prove that you suffered severe, debilitating, and foreseeable emotional distress · Key things to look for · Circumstances where emotional distress is very likely · Circumstances where the powerful is taking advantage of the powerless · Has to be some especial likelihood of mental distress · Subjects of the negligent conduct · General rule: don't recover for mental distress · Negligent destruction of property- emotional distress damages · Zone of danger rule- within the are of risk, if you are that close, you can recover damages · Louisiana sometimes (but rarely) recognizes distress from exposure to diseases

types of damages

· Nominal - invasion of right, no real damage. Declaratory judgments solve problem now · Compensatory - amount that will make the plaintiff whole, as if tort had not occurred. · Punitive - controversial; Only allowed in LA for drunk driving, death as a result of hazing, and criminal sexual conduct with children. Very limited, goal is to punish/deter. Some states "wanton" behavior · Can't be beyond 10x the compensatory damages o Compensatory is 100,000, can't be 1,000,000 · Collateral Source Rule: a tortfeasor may not benefit, and an injured plaintiff's recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor's procuration or contribution. (Insurance/Federal Govt.) o Also applies to discounted medical bills · There is a duty to mitigate damages - can't make worse to collect more money o If you don't seek help, not responsible for damages for not seeking help

· products liability: Failure to warn- most cases allege a failure to warn

· Not just any warning, adequate or good warning · A product is unreasonably dangerous because an adequate warning about the product has not been provided if at the time the product left its manufacturer's control, the product possessed a characteristic that may cause damages and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product · No formal balancing required · Exceptions: o There doesn't have to be a warning for a low or obvious risk o Do not have to warn unless there is significant evidence of a probability of a high risk · Continuing duty to warn o If learning of a material danger the product presents after the product has left the manufacturer, the manufacturer has a duty to provide subsequent warning. o This, however, is very difficult and expensive, so to be required would have to be a pretty significant risk. o This is different than a recall - those are regulated by Federal regulations. · Warnings are not always cheap/free-balancing of factors · Too many warnings—can lose impact · Because this balancing test is applied, manufacturers are only held liable if they are negligent, that is they knew, or should have known through reasonable care, that the risk was material. There is NO strict liability in failure to warn.

- Example cases of NEID o Trahan v. McManus: Doctor reads the wrong chart and sends guy home too soon where he dies from his car accident injuries. Parents want to recover having to witness their son's death at their house.

· Note: Parents can't file for wrongful death and survival, because he has a wife he was separated from. Wife doesn't meet metal anguish conditions. · Cause-In-Fact; but for the hospital's negligence, the parents would not have suffered severe emotional distress. · Takeway: Code article requires contemporaneous viewing of sudden traumatic injury that causes an immediate reaction. · Court rules parents can't recover. Event was not sudden - limited/strict intrep.

o Reasonably anticipated use- use or handling that a manufacturer should expect or intend

· Once again note that this is not a dependent on what a reasonable consumer would do, but instead only what an ordinary user would do. · Manufacturers can anticipate stupid uses of products. - Even reasonable people use products in stupid ways.

unborn children

· Parents may recover damages they sustain when the tortfeasor's fault causes a prenatal injury to a fetus that is subsequently born dead because of the injury · Egg-shell skull situation: does not matter if the tortfeasor knew or should have known the woman was pregnant, courts will generally extend liability. Unique physical conditions are within the scope of the risk

o What if we change injury from cancer to an increase risk of cancer?

· Pays for: tests done - medical monitoring · Suffer emotional distress for fear of cancer can be recognized

business/patron duty

· Posecai v. Wal-Mart: the Louisiana case on intervening criminal activity. When does a business have the duty to protect from crime? · The greater the foreseeability and gravity of harm, the greater the duty of care imposed. There must be some history of the activity (weighing mechanism)

- Mental Anguish (Negligent Infliction of Emotional Distress)

· Recognize a class of cases with faulty conduct and recognition of mental injury is real · Creates unlimited liability · There are two types of cases · Bystander mental anguish- you inflict emotional distress on a third party because they witnessed you cause injury to another through negligence · Direct victim- you negligently cause a victim to suffer emotional distress

immunity designed to encourage activities

· Recreational land immunities: landowner for recreational land, if you don't receive money for the use · Developed property: common areas is land: engaged in recreational activity on property: applies to private property · Immunity that applies to farmland and government owned property · Encourage people to open their property for hunting, fishing, hiking · Can still be responsible for heightened level of fault · Solidarity liability- 2 parties are bound together for the same sum o Ex. An employer and the employee are solidarity liability o Filing against one will end the prescriptive for both · Peremptive period (statute of repose) · Period where there are no exceptions—3 years, cannot be extended · Use Louisiana terms on the exam o Charitable immunities o Horses and other farm animals o Parade immunity

allocation of fault

· Requires that a percentage of fault, adding up to 100%, be allocated to all parties of a lawsuit event those not present, unable to pay, or immune · The plaintiff's recovery is mitigated because even parties that don't have to or can't pay are allocated a percentage of fault · It is the jury's (factfinder) responsibility to allocate fault · Appellate courts tend to reallocate fault · If you are drunk driving and over 25% at fault, you can't recover o How to approach on the exam: · do not give proportion on the exam, question for the jury · list the Watson factors and determine which party will get more fault · at the end of the exam write a paragraph that discusses the allocation of fault

NIED example case o Veroline v. Priority One EMS: Guy saw the ambulance drive by him racing to the hospital with his sister after an injury at Toledo Bend. There may have been some negligence in the ambulance - didn't see it.

· Sets forth the same standard put forth in Trahan · Seeing her death at the hospital was the emotional trauma, not the actual death. · LA C.C. Art. 2315.6 requires that the plaintiff either view the accident or come upon the accident scene soon after it has occurred and before any substantial change has taken place in the victim's condition. · Plaintiff didn't arrive soon thereafter, his anguish is what normally accompanies the death of a loved one.

o Blanchard v. Tinsman: Car wreck, husband dies instantly, wife dies after one minute. They had no children. Who is able to file wrongful death action?

· She died a few minutes after him, therefore the right transferred to her and then to her parents. · Under these circumstances, the husband's parents cannot collect at all. · The code is applied very strictly

Black v. Abex Corp wife is trying to sue for the death of her husband when he was exposed to asbestos through his job. She tried to sue multiple asbestos manufacturers under the principles of market share liability and alternative liability

· She was unsuccessful on both accounts. In concern to market share liability, the court ruled that even though she narrowed the manufacturers to those sold "friction products" the products at staked did not present a singular risk of harm (the risk varied) · For alternative liability, she did not have all possible defendants present at the suit, so she could not use the principle

Focus on medical malpractice

· The delivery of healthcare is a huge issue · Malpractice raises the cost of healthcare · Different provisions to control the increase of price o Each jurisdiction adopts something to control the malpractice o Customary standard of care (almost exclusively) · Locality rule: member of the profession in level of the care in the same or similar locality · Many procedures have a national standard of care · Just needed an expert to testify about the standard in a similar locality · Conspiracy of silence: implicit understanding both professionals wouldn't testify against each other · Just have to know about the standard · Can allow expert witness from other locales to go to a different location · Testimony has to be acceptable

vicarious liability

· The employer doesn't necessarily need to be at fault, employee was just in the scope of employment o Distinct from negligent hiring, training, and supervision o Employment relationship 1. Worker's compensation 2. Employee fault (is it negligence) 3. Vicarious liability 4. Negligent hiring, training, and supervision

Immunity that applies to governmental agencies

· The government is immune unless there is a waiver, the waiver: the state constitution article 2 section 10: can sue governmental entities the same way you sue a regular defendant · Immunity from suit and judgement: waived · Immunity from seizure: haven't been waived yet, need a special rule to discover the money · Louisiana governmental claims act: rules about who you have to serve: o Ex. Suing LSU Law, special procedure about who you have to serve § Jury trial are prohibited unless the state consents · Juries see the government as having unlimited funds § General damages are capped at $500,000 · State entities include: parish, city § Public duty doctrine: any duty that is owed by the government is owed to the public at large not to any individual

berg v. zummo

· The plaintiff is attacked and run over by a group of minors who were served underage at the Boot, a bar in New Orleans · Scope of the risk does extend: it is foreseeable that a minor may get into a fight after consuming alcohol · Punitive damages: applies for Zummo, but not the boot because the legislative intent was to punish the drunk driver and not the bar

· La. Civ. Code 2315.6 - the plaintiff must meet all the following elements: · The plaintiff must be the spouse, child, grandchild, parent, grandparent, or sibling of the injured party (strict—can't be the stepmother or stepchild)

· The plaintiff must witness the injury causing the event or come upon the scene soon thereafter o Courts have interpreted this element to require a very close connection in time and space between the injury, the awareness of the harm and the emotional distress o Additionally, when coming upon the scene, must do so before substantial change has occurred in the victim's condition · The injured party must suffer such harm that it is reasonable that someone in the plaintiff's position would suffer serious mental distress o Notice that this element is an objective test dependent on the victim's injuries not the plaintiff's § Ex. Case: kid gets hit in the face while playing tetherball and the mom witnessed, court decided the injury wasn't severe enough · The plaintiff must suffer emotional distress that is severe, debilitating and foreseeable o Notice that unlike above this is a subjective element that depends solely on the plaintiff's injuries · what is missing from the statute is that there has to be some form of negligence in the first place in order to recover. Takes a negligent act to initiate the process

misrepresentation Barrie v. V.P. Exterminators, Inc.

· The seller hired inspector for the termite report, which was done negligently. Buyer sues because termites were in the house after satisfactory report. · A termite inspector has a duty to exercise reasonable care and competence in issuing a report to protect third party from a loss they may detrimentally rely on. · The termite inspector is be liable because the whole point of a termite inspection is for it to be used by future homeowners, always foreseeable that this party will be using and relying on it. · Best position to avoid the loss. A homeowner knows nothing about termites; a termite inspector could have avoided the claim if he would have just taken reasonable care in doing his job.

selling/serving to minors

· The statute has been interpreted to not apply to the sale of alcohol to those underage · Both merchants and social hosts can be liable for the torts of minors if that merchant or social host provided alcohol to an underage person · Important to note that the sale of alcohol to a minor is not always negligent. To determine whether the bar owner can be held liable: o Do a duty/risk analysis: reasonable person, etc.

but-for-causation o Perkins v. Texas and New Orleans RR Co.: assumed act of negligence: going 12 mph over the speed limit

· There was a train accident where a train ran into a car while moving over the tracks. The alleged act of negligence was the train company was speeding (12 miles over the required speed limit). The question became: would the accident still have occurred if the train had been going the required speed · Have to show more probably than not, if not for the negligence they would have been able to escape · The court said yes, so the defendant was not the cause-in-fact of the injury. If they were traveling at the correct speed, the accident would still have occurred because the train still would not have been able to stop in time. In the absence of the negligence, the injury still would have occurred.

substantial factor causation o Anderson v. Minneapolis, St Paul & Sault STE. Marie RR Co.: alleged negligent act: negligence of the RR company that caused a fire

· There were two fires in a certain area, one from an unknown natural cause and another was from the negligence of the RR company. They combined and caused damage to the plaintiff's property · The court ruled the RR company could still be liable because while they couldn't apply the "but for" standard (can assume that the damage would still have occurred without the railways' fire because of the other natural fire) they are still liable because their negligence was a "substantial factor" in causing the damage. Had they been the lone cause, the same injury would have occurred.

· A rescuer attempts to rescue and ends up injuring the originally-injured party more

· These types of situations usually fall under the theory of subsequent injury · Must first decide if the amateur rescuer acted reasonably under the circumstances (remember the emergency doctrine allows for a broad range of actions to be considered in the context of an emergency) · Because general negligence is usually treated as falling in the scope of the risk, the original tortfeasor can be liable for those subsequent injuries · However, if the amateur rescuer was grossly negligent and the injury is clearly distinguishable from the original, it is more likely that a court will separate fault between the parties, each being liable only for the injury he/she caused

o 2nd requirement of vicarious liability- course and scope

· Time, place benefit · Are you benefiting the employer? · Are you at a location you're supposed to be during your employment? · Fairly attributable · Is the risk fairly attributable to the business? · Did the employer know she was running personal errands? o If so, could be fairly attributable to the business · Going to/coming from · Going to/coming from- employer is not liable driving to work or coming home from work. Can be liable when driving for the job · Were they on a frolic and detour or were they participating in a work-related task? o Frolic and detour: when an employee's deviation from their given task is so substantial that it is no longer in the course and scope of the employment, but instead a frolic and detour · Example: men traveling to and from an oil rig to get to McDonald's were considered in the course and scope of their employment o The men's food and mileage were paid for by the company. The company expected the men to go get food; they worked long shifts and travel to get food required travel of site. The men were still on the job and the weird hours they worked for employer increased the risk of harm · Facts- every case is dependent on the facts and circumstance of each case

o Spoliation tort—when you destroy evidence that can be used in a lawsuit

· To be legally liable for spoliation in Louisiana, must do it intentionally · Must show: 1. That the destruction was intentional and 2. You knew it was going to be used in the lawsuit · Presumption that spoilated evidence would be contrary to the spoliator's position, spoliator has the burden to prove otherwise

o Chaperones

· Usually hinges on what the chaperone knew or should have known · When hosting a party and there is alcohol, liability is dependent on his/her constructive notice · Must exercise reasonable supervision, usually there must be some history of drinking/sex - not one incident

federal torts claims

· Waived most of their immunity · When there is any government entity: spend time talking about the immunity and the waiver of the immunity

o Overseas Tankship v. Morts Dock (Wagon Mound): alleged act of negligence: allowing the oil to leak

· a boat spilt oil into a harbor, harbor caught on fire and caused damage to the plaintiff's property · question: was the leaking of the oil responsible for the fire on the dock? o The type of oil was unlikely to light fire o Were instructed not to weld, but did anyway § Welding was an intervening cause, but was in superseding § Can argue knowledge of risk and acted in spite of risk § Intentional act-more likely to be superseding § The act of welding was a reasonably foreseeable intervening event · Question: was the risk of fire a foreseeable risk? o Risk of fire more of a general risk than a foreseeable risk

scope of the duty o Palsgraf v. Long Island RR Co.: alleged act of negligence: the guards pushing the individual and making him drop the package

· a man who was late for a train was running after the train while holding a package. The train guards helped him get onto the train by pushing him onto the platform, causing him to drop his package. The package had fireworks in it and exploded when dropped. The explosion caused scales on the other side of the tracks to fall and hit a woman who was standing on another platform waiting for the train · duty of care: reasonableness, unreasonable to push someone onto a moving train · expected loss: the person trying to get onto the train might be injured · courts apply proximate cause because the but for test would have an undesirable result · the plaintiff must be a reasonably foreseeable party, class of foreseeable persons · looked at as a question of reasonable foreseeability

but-for-causation Salinetro v. Nystrom: negligent act: failure to ask whether she was pregnant

· a woman went to get an x-ray, a few days later she found out she was pregnant. She lost the baby due to exposure to the radiation and sued the medical professional for negligence because he didn't ask if she was pregnant The court found that the technician was not negligent because he was not the but-for cause of the injury. The woman said that even if he would have asked if she was pregnant because she was unaware of her pregnancy at the time and it was common for her to miss her periods. Injury would have occurred even in the absence of the negligence, therefore not the but for cause

o Cay v. State DOTD: alleged act of negligence: not building the guardrail up to the standard

· a wrongful death action filed by the parents of Keith Cay. Cay fell from a bridge maintained by the DOTD. Cay was walking at night while intoxicated and wearing dark clothes at the opposite direction of traffic. The height of the railings was under the minimum standards set by the American Association of State Highway and Transportation for pedestrian walkways on bridges · cause-in-fact: but for the low railing, he would not have fallen to his death o it is more probable than not (preponderance) that it would have prevented the accident · traditional duty: custom; the AASH standard asks almost as expert testimony on how the bridge should be constructed o risk/utility: risk of falling is great enough that they should have built higher rails o even though the bridge was only built for vehicles, they knew people walked across it · scope of the duty o there was no superseding cause · comparative fault o DOTD is only responsible for 10%

· Patient compensation fund: medical providers have to opt in to receive the benefits

· have to have $100,000 worth of insurance and then go to the Louisiana administration and say I want to participate · Judgement against the healthcare professional, they pay the 1st 100,000 from their private insurance the remainder is from the patient compensation fund · Healthcare professional presents a certificate and pays a fee in insurance premium · Government run fund · Qualifies healthcare provider: the person that opts in: evidence $100,000 worth of private insurance and pay premiums · Get all the benefits · Healthcare professionals: physicians, other healthcare individuals, hospitals (if their employees are qualified healthcare providers) · Has to be a medical malpractice case

the elements of misrepresentation

· the existence of a legal duty on the part of the defendant to supply correct information or to refrain from supply that incorrect information · Breach of that duty · Damages caused to the plaintiff as a result of that breach

custom as shield

• Claimed by the defendant; the alleged negligent act is customary, so I can't be sued for taking part in it

custom as a sword

• Claimed by the plaintiff; the alleged negligent act does not live up to the customs of the industry, so the defendant is negligent because he does not act as his peers do.

consent can be withdrawn at any time ex. case • Cole v. State of Louisiana A trainee of the tactical unit at a Correctional Facility, sued for battery when his training session for a "prison riot" got out of hand. The trainee was given a code word for the simulation to stop (RED), and he used it when his helmet fell off. The beating continued after code word.

• Court noted that, if Cole consented to the activity at hand at all, his consent was withdrawn when he used that code word. The fact that the beating continued after the word was used makes the defendant's affirmative defense of consent inadequate.

o Limitations and things to note for res ipsa

• Courts are more willing to allow Res Ipsa instructions if the Defendant did something to make it harder for the plaintiff to meet his burden - like destroying evidence. • Res Ipsa is usually not allowed when multiple defendants are in a suit - goes to the second element of the reasonable minds test; if multiple defendants harder to rule out other causes. • Res Ipsa instructions do not lead to a presumption of negligence, they only allow an inference of negligence. • Church claims that in a way Res Ipsa instructions are unnecessary, in cases like these juries make their own inferences anyway.

Intent hypo: Defendant sees plaintiff, his sworn enemy, walking along the street one hundred yards away. Defendant says to people around, "There is no way I can hit him, but it's worth a try because I hate him." Defendant flings the rock, and against all odds, the rock strikes the plaintiff, injuring him. Tort?

• Defendant did have intent to commit the tort because he had purpose to hit him, even if he did not have substantially certain knowledge that it actually would hit him.

• Children are held to the same standard of children of like age and development

• Depending on circumstances, court can find children to be unreasonable • Exception: children performing adult-like activities o Example: driving

the employment relationship

• Employer owes a duty of reasonable care to its employees. Usually will fall under worker's comp • Employer also owes a duty to third parties • Three theories to think about on exam when seeing employment • Worker's comp • Vicarious liability • Independent negligence

Intent Hypo: Defendant walks up to a group of people and says, "I have acid in this bucket, and I am going to throw the bucket at you. I love you all, and I sincerely hope that it does not hurt anyone." Defendant throws the acid towards the group, and several people are burned. When she sees the people hurt, the defendant cries and starts to administer first aid. Tort?

• Even though she did not intend the harm, the defendant DID have intent, because she had a substantially certain amount of knowledge that the unwanted contact would occur.

battery/assault to false imprisonment example

• Ex. Maybe go to intimidate or hurt another and end up confining them. (STRETCH)

Battery to assault example

• Ex. Shoot a gun at a person, they see the bullet coming, but it misses. Or, throw a punch at a person, they see it, but you miss. o Initial intent to batter, can transfer to intent to assault.

ex. of risk/utility Ford Pinto Case: Ford put out the cheap, cost-efficient Pinto. At times, however, the Pinto would explode when rear-ended. Ford performed a risk-utility analysis concerning whether to put the money towards fixing the explosion problem. The Hand Formula said that Ford was NOT negligent for NOT installing the part.

• Ford had a troublesome task because they were required to quantify life (put a monetary level on it; very controversial, $200,000). They ended up deciding not to use the part, and when sued for death when a plaintiff rear-ended, the company was liable for both criminal and civil damages even though according to the formula they should not have been liable. • Putting baffle would have cost $11/car (could have screwed up other things though). • Probability of occurrence was 0.0001968; Burden $137M, PL $49.5M (No negligence) • Companies must balance between safety and price, now safety standards higher.

ex trespass to chattel case: Compuserve v. cyber promotions

• Here, a computer advertising company, Cyber Promotions, basically sent spam to all the CompuServe email users. CompuServe asked Cyber Promotions to stop, but the intrusions continued. • The court called this a trespass to chattel by focusing on element 2 of the interference elements above. They noted that this product had lost its value from the spam; the CompuServe users no longer saw the email service as valuable as before, because of the constant intrusions.

ex. conversion to chattel case: Dual Drilling Co. v. Mills Equipment Investments

• In this case, the defendants mistakenly destroyed a rig that wasn't their property. The question for the court was whether Louisiana had Conversion akin to Common Law. • The court ruled that it does, and that this was conversion. Destroyed - full value remedy.

other considerations for reasonable person standard

• Insane or mentally unstable people have a duty to act as a reasonably ordinary prudent sane person under similar circumstances • Duty falls under the caretaker to ensure they act a reasonable person, hard to determine what is considered insane or mentally unstable • Exception: if the insanity occurs suddenly and without warning o Ex. A woman suddenly driving her car off a cliff because she thought she could fly

ex of consent when it comes to private acts (sex) Stephen K v. Roni L: Here, a man sued one of his sexual partners because she falsely represented that she was on birth control. He had unprotected sex with her because of it, and when she got pregnant, he sued.

• Policy Ruling: The interest of an innocent third party's well-being is at stake in these cases (the child). And, courts do not want to force men to pay child support for the kids then be allowed to take that child support back in tort suit damages -> the only party that would suffer would be the child.

o No need to use numbers to make a mathematical evaluation; instead can be used as an analytical framework to see if a party is being negligent

• Reasonable people take cost-justified precautions, so we expect if the expected loss is very high and the burden to prevent the loss is low, then you would take reasonable action to prevent the expected loss. • There are always acceptable risks, but if the loss is high and the burden to prevent is low, then you are negligent (breached your traditional duty) if you don't take any type of action

harmful/offensive contact hypo: you are walking out of the door and someone taps you on the shoulder and ends up causing severe nerve damage

• That person had the intent to make the unwanted contact, the contact actually occurred, but it is not reasonable to think that tapping someone on the shoulder is a harmful or offensive act. A battery did not occur. • Note, this case would be different if that person had knowledge that I just had shoulder surgery. Then, the contact would become reasonably harmful or offensive.

ex. of actual and complete confinement: Parvi v. City of Kingston Two police officers were sued for False Imprisonment when they abandoned two drunks at an open golf course. There the men in trying to flee, crossed a busy street, were hit by cars, one suffered severe injuries, the other was killed.

• The "release" into an unfamiliar and unconsented area was actually a confinement. o Expanded beyond police privilege, the City was found liable. • Here, liability extended to unforeseeable consequences. o It doesn't matter that the cops didn't think they would get run over

ex. means to complete the battery Dickens v. Puryear Dickens sued Puryear for IIED (because the statute of limitations for assault had passed). The lower court denied the case, calling the comment "go home, pull your telephone off the wall, pack your clothes, and leave NC; otherwise you would be killed" an assault in the context of the other beatings and threats.

• The appellate court ruled that this threat was NOT an assault, because it did not threaten imminent action. It was a future threat. However, because it was a future threat it could be actionable for IIED.

courts consider the following factors in determining the reasonableness of the actions of the parties being attacked

• The character and reputation of the attacker • The belligerence of the attacker • A large difference in size/strength between parties • Whether there was an overt act by the attacker • Threats of serious bodily injury • Impossibility of peaceful retreat.

transferred intent ex.Davis v. White: A man shot a gun at another man who he had fought with, while pointing the gun at the leaving motorcycle, the bullet hit an innocent bystander.

• The court found the defendant guilty of a battery against the third party, because "Every person is liable for the direct, natural and probable consequences of his acts, and that everyone doing an unlawful act is responsible for all of the consequential results of that act." So, there need be no actual intent to injure the particular person who is injured.

ex. of negligence per se Wright v. Brown A dog was put in quarantine and released prior to the time limit that was required by statute for him to stay there. When he got out, he bit the plaintiff. The plaintiff sued, accusing the facility of negligence in letting the dog out prior to the statutorily required 14-day quarantine period.

• The court held that this statute could not be used in this case, because while the plaintiff was in the class of persons (the general community) meant to be protected by the statute, dog biting was not in the class of risks the statute was meant to prevent • The court determined that the statute was meant to protect people from exposure to diseased dogs

example of duty of reasonable care: o Roberts v. State: A blind man was accused of negligently not using his cane to walk in a post office he had worked at for multiple years. On his way back from the bathroom he ran into a man who fell and hurt his hip.

• The court looked to expert testimony to show that it was customary practice in the blind community to use face recognition instead of a cane when walking in very familiar spaces. This was a familiar space, so the defendant was acting as a reasonable blind man under the circumstances. • A blind person has a duty to act as a reasonably ordinary prudent blind person under similar circumstances.

ex. extreme/outrageous conduct The plaintiff worked for Monsanto. She was given a job but had to wait for safety equipment. On waiting, her group was not productive, and the boss responded by going on a tirade that lasted less than a minute, calling them "mother ****ers" and accused them of sitting on their "f**king a**es" and threatening "to show them to the gate." The plaintiff suffered from a panic attack after the incident.

• The court noted specifically that this conduct was not outrageous or extreme enough. The insults were not utterly intolerable; they were addressed to multiple people. There is some sort of emotional distress expected in the work environment. • Did not go beyond all bounds of decency, and a reasonable person could endure it.

ex. of IIED White v. Monsanto Company

• The court noted that the actor did not have the correct level of intent in the case. The boss did not have the intent to inflict such a severe level of distress nor was he substantially certain that the distress that occurred would follow. The boss's conduct was a single incident and was not beyond toleration of a reasonable society

ex. of Res Ipsa o Boudreaux v. American Ins. Co.: A man died from smoke inhalation while he was sleeping in his attic. He lived next to a restaurant that had caught on fire. The cause of the fire, however, was unknown, so the plaintiff's family could not point to a negligent act.

• The court ruled that Res Ipsa instructions could be given in this case - a fire doesn't usually happen unless someone is negligent. • Must look to circumstantial evidence to find preponderance of negligence

ex. of Res Ipsa Linear v. Center Point Energy: A woman sued an energy company that had worked on her yard for negligently resurfacing the ground area that they worked on. While loading her car the next day, tripped and fell, injuring herself.

• The court ruled that the Res Ipsa instruction could not be given here for two reasons: (1) the case was one with direct evidence (the company testified to their maintenance procedures), and (2) it did NOT meet the first element; reasonable minds could NOT differ on whether this was an injury the usually does not occur in the absence of negligence; people fall down all the time. • It rained the day before natural forces could have also caused slip.

ex. of awareness of the restrain or if not aware, suffers harm as a result: Parvi v. City of Kingston the court addressed the issue of whether Parvi was conscious of his confinement in that he could not remember the incident due to him being so drunk

• The court ruled that the conscious awareness element WAS met in that there was evidence to show that he was conscious of his imprisonment at the time that it occurred. • that even though they don't remember, they were still aware at the time of the confinement (contemporaneous awareness)

ex. reasonableness when it comes to self-defense Slayton v. McDonald A 14-year-old kid shot another 14-year-old in the knee. The attacker had a history of being a fighter, was much larger than the defendant, and continued threatening and approaching the defendant after threats to shoot and calls to the police.

• The court ruled that the defendant acted reasonably in response to a reasonable threat to his person. The court pointed out that McDonald had a reasonable fear of harm (Slayton was much bigger and known for fighting). The use of a gun in this case was reasonable because he used it in a manner that was not meant to be fatal and McDonald tried other venues of help (calling police, requesting for Slayton to back down) before he acted.

o Rains v. Bend of the River: The parents of a young boy who committed suicide sued the store worker who sold him the ammunition for the gun. The boy was under 21 and the man did not check his ID.

• The court ruled that they were not sure if the man violated the Ammunitions Act in selling the ammunition, but other courts in the jurisdiction had interpreted the statute to include this person and risk within it. • It is important to note, however, that while the gun owner was negligent under the statute, he was still NOT liable because he was not the CAUSE of the injury. Shows that negligence per se ONLY goes to the elements of duty and breach in the negligence analysis.

duty of reasonable care example: Misuraca v. City of Kenner: Police officer showed up to the scene of an accident. He saw two men messing with a downed power line. He checked the line himself and told them to stop. He went on to check the accident scene. One of the men later played with the line and was shocked to death.

• The court ruled that while the police officer could have done more to prevent the accident, he acted as a reasonable ordinary prudent officer in making sure to check the scene of the accident first. • He also had a duty to the people involved in the accident to make sure they were okay and to gather witness statements • To consider the standard of care in a profession can look to expert testimony or policy manuals, et

ex. reasonableness of self-defense Landry v. Bellanger A man got into a bar fight with another man who was intoxicated and had been taunting him all night. He originally brought the plaintiff outside to keep him from causing a scene. Outside, the plaintiff shoved him. He responded by punching the plaintiff, which resulted in the plaintiff falling to the concrete and suffering severe head injuries. The plaintiff sued for battery.

• The court upheld the self-defense defense, noting that the defendant responded to a reasonable threat of harm (the shove) in a reasonable manner (a punch, he could not foresee the consequences).

o Cangelosi Standard: Can only give the instruction if reasonable minds could differ

• The injury is of the kind which does not ordinarily occur in the absence of negligence; • The evidence sufficiently eliminates other possible causes of the injury, such as the conduct of the plaintiff or a third person; and • The alleged negligence of the defendant must be within the scope of the defendant's duty to the plaintiff

ex of Risk/Utility o United States v. Carroll Towing: Where the formula was developed. The issue was whether it was reasonable to keep a barge hand on board to avoid potential risks of sinking.

• The question was would the burden of paying, keeping hand onboard at all times be lower than the potential of sinking and the loss that would come from sinking? • Cost to keep barge hand on board is high, likelihood of event is low McCarty v. Pheasant Run: If the burden is less, the precaution should be taken, Posner

emergency doctrine

• The same thing as the reasonable person standard except that the circumstances are an emergency • Duty to act as an ordinary, reasonable, prudent person in an emergency

example of custom: The T.J. Hooper: There was a boating accident where some tugs that were carrying some cargo were stuck in bad weather and the cargo sunk. Each party sued the other, claiming they were negligent. The tugs were accused of not having proper safety radios in their equipment.

• The tug company was able to prove that it was customary in the tugging industry to not have radio equipment. • The court still found them liable for negligence because while it was customary, this custom was an unreasonable one. There are things, such as safety alert radios, that are so important that no matter the customs in the industry a group should have them.

False imprisonment Hypo: passengers are held on an airline tarmac for over 8 hours due to inclement weather

• This can become false imprisonment if the time limit required to stay becomes too extreme. In this case the cause was remanded to a jury because there was a cause of action that this action went beyond "service."

ex of extreme/outrageous conduct Nickerson v. Hodges: A group of defendants played a practical joke on a woman with a history of mental instability (the defendants were aware of that instability). They let her believe she found a pot of gold/family heirloom on their property. She truly believed the prank was true, and when she discovered that it was false, she became furious claiming she was robbed. The plaintiff died 2 years later, still convinced she was robbed. Estate sued.

• This case occurred before the tort of IIED even existed, and the court ruled in favor of the plaintiff, granting her family monetary damages. • Here, one can posit that the actions of the defendant went beyond a practical joke, to extreme and outrageous conduct when the plaintiffs didn't just put the pot in the ground, but also put the note in the pot for the plaintiff to wait three days and gather her family. • The court also noted that the woman was specifically susceptible because she had a mental history.

apprehension hypo You are in a crowd watching the heavyweight boxing champion sign autographs. Overcome with a sense of confidence you rush forward and proclaim to the champion that you are going to knock him out with your fist in a moment.

• Though the champion may not fear you, he is in a reasonable apprehension of an imminent battery. He still has the right to be free from such threats to his person. So, this would be an assault.

ex. entry onto land hypo: Say you are walking in the woods of your own property and there is no marking to distinguish your property from your neighbors. You have no intention of trespassing on your neighbor's land, but you have no idea of knowing where the property line is. You accidentally cross the line.

• You are guilty of trespass. Mistake falls on the defendant and is NOT a defense. The only intent you have to have in trespass to land cases is the intent to be exactly where you are standing - you performed a voluntary act to get where you are.

defense of others

- A person has the right to defend a third-party to the same level that the third party has the right to defend themselves. o This is especially relevant for protection of one's family, or a parent's right to protect his children. - Once again, just as in self-defense, the person's response must be in response to a reasonable threat on the third party and that response must be a reasonable response to the threat at hand. - Courts have also recognized defense of hotel guests, tenants, etc.

defense of property

- A person has the right to protect their property in a reasonable manner against reasonable threats of harm o in the absence of a statute, a person has no right to use deadly force to protect their property

Intentional Tort defenses

- An affirmative defense is pleaded by the defendant after the plaintiff has established and provided proof for all elements of a prima facia case. o In turn, it should be discussed after discussing all the elements of the tort at hand on an exam. o The burden of proving the defense is on the defendant. • If the defendant can prove an affirmative defense (consent, privilege, necessity, etc.) then he can be relieved of all liability for the intentional tort he/she committed. - The following defenses can be used in any intentional tort claims, however. o It is difficult to prove consent on an IIED claim • Take a sexual harassment case. Part of the harassment is that the plaintiff is forced to consent to the behavior because of the duress she/he is under. The fact that she consented is part of her emotional distress. • Be careful using defenses for this particular tort.

spousal immunity

- In Louisiana, spouses who are not judicially separated are immune from tort law against one another o However, when the marriage ends, the spouses can sue for tortious conduct that occurred during the marriage o The statute of limitations begins once the marriage is over o Can bring any tortious conduct, no matter how much time has passed, as long as it is not outside the statute of limitations once the marriage ended o Forces parties to use the remedy of divorce first and then to pursue action for things that happened within the marriage

True Privileges

- In order to promote public policy, some parties are just generally privileged over others. o Certain groups of actors are licensed to violate other's rights in specifically defined circumstances. - Privileges usually granted by statute.

shopkeeper's privilege

- La. Code Cr. Proc. Art. 215: o (1) A peace officer, merchant, or a specifically authorized employee or agent of a merchant may use reasonable force to detain a person for questioning on the merchant's premises, for a length of time, not exceeding 60 minutes, unless it is reasonable under the circumstances that the person be detained longer, when he has reasonable cause to believe that the person has committed a theft of goods... o (2) A peace officer may without a warrant arrest a person when he has reasonable grounds to believe the person has committed a theft of goods... - A person can be detained for a reasonable cause, for a reasonable amount of time and in a reasonable manner. If they are detained outside the of the requirements of the statute, they can sue for false imprisonment. - Case law has interpreted the statute to require: o There must be some reasonable cause, meaning you have to at least perform some sort of reasonable inquiry or questioning after detention. o The statute is limited to ONLY THEFT actions, so you cannot detain a person for things like destruction of property.

Trespass to conversion/chattels

- Protect the possessory interest in personal property (chattels) - The chattel is impaired as to its condition, quality, or value - In modern law, Trespass to Chattel and Conversion are always discussed together. o It is important to note that Trespass to Chattel and Conversion protect the same interest - they are really the same tort - all a matter of degree o They only differ in remedy • Trespass to Chattel is normally nominal damages • Conversion entitles the owner to full value of the property- completely destroy or repossess the chattel

Assault

- Protects person's interest to be free from apprehension of an imminent battery (harmful or offensive contact with his or her person) o Judged in the same way as contact, but instead of contact, it is apprehension of contact o Mere words cannot constitute an assault, must be paired with physical act/threat - Damage is compensatory - Fear is not necessary for assault, only apprehension

discipline immunity

- The school has a need to protect its students and property with proper punishment, a school has the right to discipline children o Ex. A group of parents do not want the school to use corporal punishment on their children, the school still has that right if it is in the school's policy/school board's policy o The school may also have the duty to protect other children from harm - Schools have a right to administer reasonable corporal punishment. Factors: o Age and Physical Condition of the Student o Seriousness of Misconduct Soliciting Punishment o Nature and Severity of the Punishment o Attitude and Past Behavior of Pupil o Availability of less severe but Equally Effective means of Discipline o History Between Both Child and Teacher.

Parent-Child Immunity

- a child who is not emancipated cannot sue o either parent as long as they are married and not judicially separated o the custodial parent when the marriage is dissolved or the parents are judicially separated - same as in spousal immunity, the children can sue once they are emancipated, for actions that occurred earlier, when the immunity didn't apply o note- parents can sue their child - Important to note that both the spousal and the parent-child immunities are private to the parties involved. o For example, a wife can sue a husband's insurance company and vice versa.

necessity

- affirmative defense available where a natural event or violent act of a third party imposes on the defendant necessity to harm the plaintiff o Basically, you take harmful action for the greater good. • Burning down a row of houses to save the entire city (if gov, usually compensation) - necessity arises from events unrelated to the behavior of the plaintiff