Professional Documents
Culture Documents
Torts Outline
Torts Outline
ii.
iii.
iv.
v.
court said there was no battery because there was no harmful or offensive
touching. Appellate court rules that exposure is critical to this case.
1. Battery: have to have had contact with contaminated bodily fluids
2. Statute of limitations time limit that forces you to bring a lawsuit
within a reasonable time after an actionable action has taken place.
a. Embalmer cant push for negligence because the statute of
limitations had run, and thus, he had to push for intentional tort.
3. Negligence: if he would have known that the body had AIDS, he would
have handled the body / procedures differently
4. The embalmer consents to touching dead bodies, so this cannot be
used for offensive contact. In this case, the contact is more offensive
than otherwise because the body was contaminated.
5. Its hard to say that the hospital intended not to tell him. This draws
the line between negligent behavior and intentional behavior.
6. What is the theory you would use to argue that he should have taken
precautions? Consent to contact
7. Case should fall under negligence no intent (however negligence has
to have actual harm, not just the fear of)
ii. The appellate court rules that he cannot recover because there is no battery.
C. Assault
a. Definition: protects a persons interest in being free from apprehension of
harmful or offensive contacts with his or her person
b. Words alone do not constitute an assault (must be combined with other
circumstances or acts)
c. Battery and assault: Elements are same except for the result
d. Intent to batter will transfer to the intent to assault and vice versa.
i. Intent will transfer among the five trespatory torts (battery, assault, false
imprisonment, trespass to land, and trespass to chattel you cannot transfer
to or from intentional infliction of emotional distress
e. Assault must be imminent (cannot be for a future event)
f. Dickens v. Puryear (case dealing with IIED)
i. Plaintiff was soliciting sex from defendants daughter, and giving her drugs
and alcohol.
Dad and friends organized and tied plaintiff to a farm
implement, beat him to a pulp, and threatened to castrate him. They told
him if he didnt leave the state, they would kill him.
1. Statute of limitations has expired for assault and battery. The issue
here is intentional infliction of emotional distress. (IIED)
ii. Assault (imminent no significant delay) and IIED (future threat) are
mutually exclusive (one or the other)
iii. IIED = at the end of the encounter, they threatened to kill him if he didnt do
as they ordered when he got home
1. Not imminent enough to make an assault
2. We would prefer assault, because its much easier to prove. IIED is
new, and thus has lots of limitations as to proving it.
iv. Assault elements:
1. Intent to batter (intent to cause a harmful or offensive contact with
person of the other or third party) or intent to assault (imminent
apprehension of such a contact and
2. Person put in imminent apprehension of attempt to batter or assault
(reasonable on part of plaintiff)
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e.
f.
g.
h.
i.
2. entrance
iv. Ways trespass can occur:
1. Entering land in possession of another or causing third party or thing to
enter the land
2. remaining on land after the possessor withdraws consent
3. failing to remove something from land possessed by another that one
is under a duty to remove
a. Lumber cases where entry to remove timber where there is no
permission/consent
v. Intent (purpose or substantial certainty) to enter property perioddoesnt
matter if you accidentally stumble into the wrong apartment -- it is still
trespass. Just intent to put one foot in front of the other.
vi. LA draws distinction between good faith and bad faith trespass for good
faith you are responsible only for damage done
vii. Need some sort of entrance even if you dont physically enter (e.g. bullet,
water, etc.)
viii. Herrin v. Sutherland
1. Property extends above and below
a. Doesnt require damage or interference or anything else (unless
it is air travel)
ix. Walking through the woods and crossed a property line unknowingly
1. You have trespassed.
x. Get drunk, drive to the wrong house, walk inside, and someone else is there.
1. You have trespassed.
xi. Note 5 on pg. 51
1. This is an unforeseen consequence, so by that principle you are
responsible for the heart attack.
xii. Tree cutting
1. Trees are expensive
2. This is trespass.
c. Conversion and Trespass to Chattels
i. Protect the possessory interest in personal property (chattels)
ii. Elements of both:
1. intent to interfere or to take (even in mistake)
2. interference with use or ownership
iii. Conversion Result element= exercise of dominion and control over the
personal property
iv. Trespass to Chattels Result element= interference (intermeddling) with
possession of the property
v. Whether it is conversion or trespass to chattel is a measure of degree: how
substantially did the defendant interfere with plaintiffs possessory
interest
vi. Remedy for conversion: recovery of the full value of the property that has
been destroyed or stolen
vii. Unlike most intentional torts in trespass to chattels, damages must be
proven
viii. Factors to determine whether substantial enough to be conversion:
1. Extent and duration of control
2. Defendants intent to claim a right to the property
3. Defendants good faith
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4. Harm done
5. Expense and inconvenience caused
ix. Compuserve Inc. v. Cyber Promotions
1. Trespass to chattel
2. Chattel is Compuserves harddrive and its servers
3. Intent purpose or substantial certainty that entrance will occur
4. Where is intermeddling?
Definite cost to compuserve (slower
harddrive)
5. There must be damage shown for trespass to chattels impaired
condition, quality, or value, deprivation of use, etc.
x. Dual Drilling Company v. Mills Equipment Investments, Inc.
1. Mistake, yet still conversion
2. Conversion when any one of these is satisfied:
a. Possession acquired in an unauthorized manner ??
b. Chattel is moved from one place to another with intent to
exercise control over it
c. Possession of chattel is transferred without authority
d. Possession is withheld from the owner or possessor
e. Chattel is altered or destroyed
f. Chattel is used improperly
g. Ownership is asserted over the chattel
xi. He doesnt really care which we categorize as...conversion and trespass to
chattel are very close
xii. Mistake people make: You throw a rock trying to hit my dog, but hit methis
is battery (transfer from trespass to chattel to battery).
xiii. Solidarily bound you as a plaintiff get full recovery.
1. Plaintiff can sue any party in the group.
G. Defenses to Intentional Torts
a. Consent
i. Key is that consent is not a contract.
ii. You consent to some amount of contact in certain situations
1. Ex: football, heavy contact sports.
a. When this expected contact is exceeded, it becomes a battery.
b. If a linebacker chokes a quarterback, expected contact is
exceeded and battery exists.
iii. Manifestation to consent to something that would otherwise be a tort.
iv. Can withdraw at any reasonable time.
v. Can imply consent from surrounding facts and circumstances
vi. Fricke v. Owens-Corning Fiberglass Corp.
1. Mustard
2. There was consent.
3. Consent will not be vitiated unless there is unequal knowledge
4. Consent is usually used as a defense instead of as an element of tort
(no consent)
5. Fricke wants an intentional tort, because if its intentional then its
outside of workers compensation, and thus he could recover more
money.
a. Vicarious liability holds a firm responsible for the torts of their
employees when
i. There is an employment relationship
ii. They are acting within the scope of the relationship
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vii. You can consent to virtually any intentional tortexcept IIED (e.g. sexual
harassment). There are also cases where you can exceed consent.
viii. Establishing Consent
1. Cole v. State of Louisiana
a. Facts: Fake riot of prison for training purposes that went too far.
Man playing a prisoner was hurt after he had said the safe word
to stop.
b. Issue: Did they exceed the scope of consent? Yes
c. There was consent to some contact. But in this case the contact
became extreme.
ix. Implied Consent and Medical Treatment
1. Consent often established through circumstantial evidence
2. See section later
x. Duration of Consent
1. Can withdraw consent at any time that is reasonable
a. Consent is NOT a contract
2. What is reasonable depends on the circumstances of the case
xi. Failure of Consent
1. Stephen K. v. Roni L.
a. Case of whether or not there is consent
i. Stephen consented under false information.
ii. She induced his consent by saying she was on birth
control.
iii. Thus, the touching exceeded what was expected.
b. Compare to AIDS case
i. Doe v. Johnson
ii. Magic Johnson retired from professional basketball because
he had contracted AIDS.
Woman had sex with him
unprotected.
Court holds that a person who has
knowledge of his infection with a venereal disease and
knows his partner does not, commits a battery by having
sexual intercourse without informing his sexual partner of
his infected status.
c. You know that the contact is likely to be harmful and offensive.
Similar to if you know someone is particularly sensitive. It makes
the consent not valid.
d. Fraud will usually destroy consent (unequal information is the
key)
e. Duty if you know you are infected to disclose, otherwise battery.
f. Consent can be defeated when shown it was extracted under
duress
g. Remember incapacity can effect consent too.
i. Young children are the same
1. Very young children cannot consent for legal
purposes.
2. Some dog bite cases show that young people can
consent.
ii. Usual rule is that if you have a minor, they cannot consent;
however no strong principle for two minors
iii. Courts will almost ALWAYS rule in the best interest of the
child.
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2. Consent cases will always hinge on the particular matters of the case
subjective. Just know the basicsthe possibility of consent in various
cases.
3. Duress defeats consent as well.
4. Illegal Acts certain acts render consent invalid
a. Ex: statutory rape
b. Necessity
i. Most difficult area of defense where something normally would be
considered a tort is considered privileged
ii. Where a natural event or violent act by a third party imposes on the
defendant the necessity to harm the plaintiff
iii. Differs from self defense in that necessity arises from events unrelated to the
behavior of the plaintiff
iv. Two types:
1. Public
a. Usually undertaken by public official
b. To save lives or property of other people
c. Takings
i. Government seizes property of a private citizen
2. Private
a. Harms another to avoid harm to self or third party
b. Limited to risks of death, serious bodily harm, substantial
property damage
3. No universal rule to distinguish between public and private: the more
people the better to make it public
4. Compensation: Usually public would not have compensation, private
would.
However with 5th amendment, the government must
compensate for taking
v. Bass v. Louisiana
1. Defense of necessity involves a balancing test. Balance rights
2. Is there reasonableness in action? Then probably privileged.
vi. In zero-sum cases, where one person can be rescued and one cannot, the
defense of necessity is unavailable.
c. Self Defense you have the right to defend yourself against a reasonably
apparent danger using reasonable force.
i. Generally
1. Even if all prima facie elements have been proven, the defendant may
prevail if actions were justified self defense is one way.
a. Self defense is ALWAYS a complete defense. Once you establish
it, there is no liability at all.
2. Self defense is a true defense
3. Requires actual or reasonably apparent threat to the claimants safety
requiring and justifying force, though the force used may not be
excessive in degree or kind. Ordinarily not triggered by threats and
assaults.
4. Slayton v. McDonald
a. What type of force was used? Potentially lethal.
i. When someone enters your home, your right to use this
force increasesbut not always right. Have to have some
sort of threat to you have to have a threat to life or limb.
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5. Thomas v. Schwegmann
a. In order to recover for false imprisonment from a merchant,
plaintiff must show that detention occurred under one or more of
the following circumstances:
i. Unreasonable force was used
ii. No reasonable cause to believe that the suspect had
committed a theft of goods existed, because the nails
didnt even have glue in the package.
iii. The detention lasted more than 60 minutes, unless it was
reasonable under the circumstances that the suspect be
detained longer
iv. Spousal Immunity
1. Can sue for any intentional torts after marriage is terminated, but not
during marriage.
2. Kids are similar to spousal immunity they cant sue until they reach
the age of majority
3. A parent may sue his child during the childs minority
CHAPTER 4 NEGLIGENCE
CAUSE IN FACT
BUT FOR
SUBSTANTIAL FACTOR
LOST CHANCE
SHIFT BURDEN
DUTY
TRADITIONAL DUTY
REASONABLE ORDINARY PRUDENT PERSON
CUSTOM
NEG PER SE
RISK UTILITY
RES IPSA WHICH NOBODY REALLY USES
SCOPE OF DUTY
RISK RULE
POLICY
EASE OF ASSOCIATION
INTERVENING/SUPERSEDING CAUSE
BREACH
INJURY (lost chance is more of an injury issue)
Consists of 5 elements (from book): 1) duty 2) breach 3) cause-in-fact/actual cause 4)
proximate or legal cause (scope of duty) and 5) damages
Scope of the risk and proximate cause are the same thing.
Louisiana tends to treat this a little bit differently than other common law jurisdictions.
Negligence defined = conduct which falls below the standard established by law for the
protection of others against unreasonable risk of harm.
For negligence, you must identify the specific act of negligence.
Elements of negligence (his from class):
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b.
c.
d.
e.
B. Custom
a. The T.J. Hooper
i. Radios
ii. Just because it is custom not to have them, doesnt make it reasonable
1. Hand Formula: Burden of having them is lower than the expected
PL (L is huge)
iii. Custom as a shield which is weaker than when plaintiff uses custom as a
sword
1. Sword example: if plaintiff says everyone uses safety options but
them strong evidence against defendant
iv. Sometimes custom still negligent (as in Hooper case)
C. Risk/Utility/Economics and the Reasonable Person
a. United States v. Carroll Towing Co., Inc.
i. B<PL = Hand Formula if this is the case, the precaution should be taken
1. PL = expected loss
2. B = Burden of adequate precautions
3. P = Probability of thing accident
4. L = Loss
5. To take a risk (no precaution), the burden to take precaution has to
be more than the probability times the loss
6. Calculation shows how we expect reasonable people to behave
7. Asks whether it is reasonable to take or not take the precaution.
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b. We dont know exactly what the negligence was, but were going to allow the
jury to apply negligence based on the circumstances surrounding this instance.
c. The Thing Speaks for Itself evidence is very strong that there can really be
no other option
d. Have to be able to point specifically to this defendants negligence and rid all
others of responsibility
e. Who gets to make the decision on res ipsa? Judge. Once res ipsa is shown,
what do you get?
i. Jury instruction allows jury to infer. Not required to infer, but are allowed
to.
f. Elements of res ipsa:
i. Within scope of risk of the defendants duty to plaintiff
ii. The event does not ordinarily occur in the absence of negligence.
iii. The evidence must sufficiently eliminate other more probable causes of
the injury, such as the conduct of the plaintiff or a third person.
g. Standard as to providing jury instruction:
i. Whether facts and inferences point so strongly and overwhelmingly in
favor of one party that reasonable men could not arrive at a contrary
verdict.
ii. Whether a reasonable juror could come to the conclusion that the injury
more probably than not came from the defendants duty alone
h. Boudreaux v. American Insurance Company
i. There are other possibilities to cause this, but we dont have to
completely eliminate all of these. Reasonable juror has to be more
probable than not that defendants negligence was cause.
ii. Not an assumption you are allowing (not demanding) the jury to infer
negligence from the circumstances.
1. Negligence failure to exercise due care
a. Duty
b. Breach
c. Still have to establish causation and show injury (prove other
elements). Res Ipsa only allows an inference that they were
negligence.
d. Could reasonable minds differ in evaluating whether it was
more probable than not that the defendant was faulty?
iii. Fire is unexplained. Courts have split over this in the past.
i. Designed to apply to a very rare set of cases where the ONLY possible
explanation for injury is defendants negligence. Its the only exception to
identifying a specific negligent act.
j. The only thing you really get from this is a jury instruction saying, you may
infer, but you need not infer.
i. Res Ipsa really doesnt help you that much.
k. Res Ipsa ONLY applies in cases where there is NO DIRECT EVIDENCE.
l. Linnear v. Centerpoint Energy
i.
Plaintiffs started using Res Ipsa as a crutch. We dont want to allow
plaintiffs to use Res Ipsa as a crutch for a case that simply cant be
proven.
ii. The court basically listed that Cnagelosi gives elements for Res Ipsa then
ignored them.
1. The appellate court said could reasonable minds differ in proving
negligence?
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2. When this is applied, anytime the jury can conclude negligence, Res
Ipsa should apply. This is wrong.
3. Supreme Court thus announces:
a. Res Ipsa cannot apply when there is direct evidence.
b. The appellate court erred in its application of the Cangelosi
doctrine.
4. Now, courts must look at each individual element and reason
whether reasonable minds could differ on the findings of each
individual element.
Then, and only then, does the Res Ipsa
instruction get read to the jury.
m.Not 5 on pg. 164: Res Ipsa creates NO presumption. It allows an inference.
More probable than not = anything over 50%.
1. E.g. if you spill gasoline and someone else drops a match both are
but for causes. As for substantial factor test? Means but for in this
case.
iii. Duty
1. Negligence per se
b. Salinetro v. Nystrom
i. Facts:
1. Doctor gave x-rays, didnt ask woman if she was pregnant.
2. Duty established because a reasonable radiologist would have
asked if she was pregnant. There is a breach of duty.
ii. Reasoning:
1. Using the but for test, he is not responsible.
2. She didnt know she was pregnantso she would have answered no
anyway. Thus the x-ray would have been taken regardless and
injury would have occurred.
iii. You cannot evaluate cause in fact until you identify the alleged breach
c. Breithaupt v. Sellers
i. The argument is that the plaintiff failed to take adequate care to protect
himself.
ii. A jury wouldve been entitled to find that the failure to wear hunters
orange was not a cause in fact to the plaintiffs own injuries.
1. Some type of summary ruling is thus inappropriate if it takes that
away from the jury.
iii. Note 3: court of appeals made the mistake of ruling on fact.
iv. Note 4: If the plaintiff is faulty in failing to take adequate precautions to
take care of themselves, it is a complete bar to the plaintiffs recovery.
C. Other Standards for Causation
Causation:
1) But For
2) Substantial Factor
3) Alternative Liability
4) Market Share
5) Lost Chance
a. Anderson v. Minneapolis, St. Paul and Sault Ste. Marie Railway Co.
i. One negligent party and a whole bunch of non-negligent fires still use of
substantial factor test
ii. Notes:
1. Where there are concurrent causes of an accident, the proper
inquiry is whether the conduct in question was a substantial factor
in bringing about the accident
2. Landers: lake
a. No good evidence as to which leak occurred first. Thus cant
prove that action more probably than not (greater than 50%)
caused the harm. They both have 50/50 chance. This is why
we have substantial factorotherwise both companies would
have gotten off.
b. What if there were 4 actors? Shouldnt be substantial factor.
3. Summers v Tice case
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5. Could also adopt some sort of government run fund that the
defendants are required to contribute to, and based on that, certain
claims are paid.
iii. Notes:
1. For test:
Need to know different theories and indeterminate
problems (plaintiff and defendant).
Need to know exposure
problems too (who, what, where exposed)
2. If in fact these were the only 48 defendants who produced asbestos
to which Black was exposed, then we know that the GROUP caused
his death, but we know nothing about any one defendant. Thus, we
dont know causation.
a. It may be true that any one defendant didnt cause anything.
b. Under a but for standard, plaintiff cant establish that
against any defendant.
c. This is an indeterminate defendant problem.
3. Even through normal, non-negligent conduct, were going to
observe 10 cases of cancer out of a population of ####. Now we
also know there is a negligent spill where there is a release of
chemical, and thus there are now 25 cases of cancer. There are 15
cases of cancer caused by exposure (just assume). The cancer is
non-signature in that we cant isolate the different forms. Its all the
same cancer. If all 25 sue, each individual plaintiff will argue but for
the chemical spill, they would not incur injury. Probability of our
observed cancer is 15 out of 25 (60%). Thus, its greater than 50%
so its a substantial factor, and it is more probable than not that this
case of potential cancer came from exposure. Thus, ALL 25 can
meet the causation standard because of the numbers. This is an
indeterminate plaintiff problem.
4. If it was below 50%, nobody can establish causation, so the
defendant is paying for 0 cases of cancer when they caused 3.
iv. Louisiana does not allow medical monitoring cases.
v. Emotional distress: I know that Im at a higher risk for developing cancer
and that causes me stress. In this case, it would be negligent infliction of
emotional distress.
CHAPTER 6 LEGAL CAUSE/SCOPE OF THE DUTY when do we want to cut off
liability? How far away?
A. The Concept of Legal Cause
a. Fundamental question: should this defendant be responsible in this case (this
plaintiff who was harmed by this instrumentality, in this manner, at this location,
at this time, etc.)?
b. Scope of the risk is a question of the relationship between the duty and the injury.
c. Policy question
d. Best to think of legal cause/scope of duty as a fifth, independent element of
negligence theory
e. Mother Goose example: Note 2
i. Yes. If the nail had been there when it was supposed to have been there, the
kingdom wouldve been saved.
ii. If each one of the steps is negligent, then they are ALL the but for cause.
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iii. We wont impose liability on the nail maker because it extends liability too
far.
iv. Was the defendants negligence the proximate/legal cause of this..?
a. Polemis case:
i. Takes very strict stance: actual cause and proximate cause are same
thing not policy question
ii. Idea from this case has been pretty much abandoned
iii. Direct cause comes from this case, and is discredited in Both Palsgraf and
Wagon Mound.
b. From there, we switch to the foreseeability tasks, also known as the risk rules.
i. Foreseeability of injury: Wagon Mound
ii. Foreseeability of plaintiff: Palsgraf
c. Policy questions
i. Embodied in scope of the risk.
ii. Most cases in Louisiana are resolved on foreseeability, but we do highlight
the policy factors.
B. Introduction to the Risk Rule
a. Foreseeable Plaintiff
i. Palsgraf v. Long Island Railroad Co.
1. Forseeability of Person have to foresee the risk/injury to that
particular person
2. Facts:
a. The Plaintiff was standing on a railroad platform purchasing a
ticket, when a train stopped and two men ran forward to catch it.
One of the men nearly fell, and two railroad employees
attempted to help him. In the process, a package containing
fireworks fell and the contents exploded. As a result of the
explosion some scales at the other end of the platform fell and
struck the Plaintiff. Plaintiff sued and a jury found in her favor.
The Appellate Division affirmed this decision, but the Court of
Appeals of New York reversed.
b. They go after the railroad company because the railroad has
much more money than the guy who owned the package.
c. What did the railroad guys do wrong?
i. Pushed and pulled the guy onto the train.
d. Given that there is a wrong, is this injury that occurs because of
the concussion due to tipped scales due to the guy carrying
fireworks (etc.) within the scope of the risk of the negligent act.
Or, is the injury proximately or legally caused by the negligent
act?
3. Reasoning:
a. Duty established by whether the risk was reasonably foreseeable
b. Importance of difference between LA can common law
difference deals with how far foreseeability should extend
i. Cardozo -- question of duty (LA approach) strict -- owe a
duty only as it is owed to this person
1. Does not see liability for railroad
ii. Andrews represents approach of common lawcausation
focus -- broad
1. Sees liability on part of railroad
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c. Polemis case:
i. Takes very strict stance: actual cause and proximate
cause are same thing not policy question
ii. Idea from this case has been pretty much abandoned
4. Notes:
a. What would be an intervening cause?
i. E.g. I spill gas at a gas station and then someone comes by
and drops a match which ignites the gas. Dropping the
match is an intervening cause.
ii. It is a question of time.
iii. A force MUST BE intervening first.
b. Superseding cause is a term of art applied to acts that cut off
liability of the original actor
i. Intervening act is more likely to become superseding if it is
intentional
ii. Exceptions: If the result of negligence of the original actor
is foreseeable then liability is not cut off
1. E.g. bus driver is negligent by knowingly dropping
passenger off in a high crime area
a. You can foresee the existence of crime
b. Criminal actor is worst actor, but that does not
mean that original actor should be relieved of
liability
2. In LA, we apportion liability
c. The more faulty an intervening act is, the more likely it is to be
superseding.
5. Difference between Cardozo and Andrews (dissent).
a. Both say we arent going to extend liability indefinitely. Cardozo
narrows the duty to the plaintiff, but Andrews implies that duty
was breached to society as a whole.
b. Cardozo says they can resolve the case without submission to
jury. Andrews says they should submit to jury because he sees it
as a question of cause.
c. Both seem to shift towards a risk rule. Neither one adopts the
Polemis rule.
b. Foreseeable Risk
i. Wagon Mound
1. Reasoning:
a. No actionable breach of duty unless it can be shown that at the
time of the act, the consequences of the act were reasonably
foreseeable (reasonable man test)
b. Specific v. General risk
i. Specific mechanism -- couldnt reasonably foresee that rag
would act as a wick
ii. However if all they had to see was risk of fire in general,
then they could be liable
2. Notes:
a. Jurisdictions must decide the standard of foreseeability:
i. Foresee risk to the particular plaintiff v. class of plaintiffs
ii. Foresee the specific mechanism or manner of harm v.
foreseeability of the general hazard
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c. Dixie did nothing wrong who can they recover from if we know
that both drivers were negligent? Gulf States because can be
imputed from Langtre (vicarious liability) and Amer. Bev. because
can be imputed all the way up from driver
d. Both defenses focus on negligence of Langtre.
i. Langtres perceived acts of negligence were failing to see
the obstructing truck and failure to realize that it was
stopped on the highway in time to avoid collision
1. Contributory existed at this time, which could bar
recoverybut doesnt apply here because you cant
impute from Gulf to Dixie and thus cant impute from
Langtre to Dixie.
2. How else does his fault come into play?
a. Argue that Langtres negligence was sole
proximate cause and thus Amer. Bev. off the
hook.
That Langres negligence is an
intervening and superceding cause
ii. Amer. Bev. Drivers perceived negligence:
1. Dealt with violation of a regulatory statute can
standard be imported to establish a duty
negligence per se?
a. Court says yes. Says statute was designed to
protect life and property on the highwaysthus
protected the class of person and class of risk
2. Also negligent in taking no action to warn
approaching traffic of stalled vehicle
e. Court found that negligence of Amer. Bev. Driver was cause in
fact of accident.
f. Court found that Langtre was negligent, but the question is now
whether Langtres negligence was superceding to Amer. Bev.
drivers negligence.
g. 2 principles:
i. Applied intervening/superceding actual cause question
ii. Applied negligence per se when there was not strictly a
statute involved (ends up forming basis for LA duty/risk
approach)
3. Holding:
a. Langtres action was not found to be superceding
b. Need to figure comparative fault between Gulf and American
(Gulf not plaintiff???)
i. Comparative fault applies to plaintiffs fault in effort to
reduce plaintiffs recovery
4. Notes:
a. Intervening/superceding cause still important in LA duty/risk
analysis: if there is a superceding cause, the duty does not
extend to this plaintiff
b. Realize that proximate cause and scope of the risk (whether this
defendants duty extends to this particular injury to this plaintiff)
are similar
ii. Hill v. Lundin & Associates
1. Facts:
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2.
iii. Jones
1.
2.
3.
Injury
o Only question for prima facie case is do we have a
compensable injury that meets the prima facie
requirements for negligence?
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iii.
iv.
v.
vi.
3. Notes:
a. Talk about foreseeability first and then implicitly talk about policy
factors
b. Appropriate cases where a child can sue and also where parent
can sue for foreseeable injuries even if child is not yet conceived.
Just know that both children and parents have rights
c. Louisiana applies the duty/risk approach. If the hypo tells you
that you are in Louisiana, apply duty/risk. If you are in a common
law jurisdiction, apply the common law approach.
d. Most of the cases are resolved on foreseeability. The policy
factors are only for really, really difficult cases.
e. Ease of Association test
i. How easily can we associate this injury with the
defendants negligent conduct?
f. EGGSHELL or THINSKULL DOCTRINE
i. Imaginary plaintiff that has for instance a thin skull or
someone that is uniquely susceptible to an injury so the
defendant is responsible for all injuries including ones that
are not as forseeable.
ii. Cay v. State Department of Transportation
1. Analysis
a. Alleged negligence they built the railing too low
b. Cause in fact
i. More probably than not, this injury would not have
occurred if the railing was built to the proper height
standards.
32
c. Duty/Breach
i. Traditional duty
1. Reasonable person
2. Risk/utility
3. Negligence per se
4. Custom
ii. Reasonable ordinary prudent person/department under the
circumstances.
iii. AASHTO sets the custom of building railings to be 36.
1. Not a statute, but a custom.
iv. Did DOTD live up to the custom established in the
industry?
1. No.
v. Therefore, there was a breach of duty to build the bridge
up to the height of 36.
vi. A risk/utility balance was done, which set that the burden
of building railings at the higher height would avoid a lot of
accidents by falling. They applied the Hand formula in
making that determination.
d. Scope
i. Is there anything intervening and superseding?
1. Suicide in the case would be superseding.
ii. They apply foreseeability and ease of association test.
iii. The court rules that the harm was indeed foreseeable.
e. Injury
2. Another issue here is comparative fault
a. Lower court ruled that DOTD was 60% at fault, and Cay was 40%
at fault.
b. Manifestly erroneous standard.
i. Appellate court reallocates 90% fault to Cay and 10% to
DOTD.
3. Reasoning:
a. Bridge railing
b. Scope of the risk/scope of the duty
i. Is there anything that could be a intervening/superceding
cause?
1. Drunkeness
isnt
considered
an
intervening/superceding cause.
ii. Cannot supercede negligence through the fault of the
plaintiffif it is the fault of the plaintiff then there is simply
no duty (e.g. him jumping off the bridge no duty of the
DOT here)
iii. Drunkeness can still be a but for cause thus comparative
fault
c. Regardless what the negligent tort is (i.e. negligent infliction of emotional distress),
you must analyze the elements.
i. Tyson v. King
1. Defendant was driving his car and blacked out, drifting into plaintiffs
lane. Plaintiff was engaged in evasive maneuvers and sustained injury.
33
f. Providers of Alcohol
i. LA R.S. 9:2800.1
1. Legislature states that the consumption of intoxicating beverages,
rather than the sale or serving or furnishing of such beverages, is the
proximate cause of any injury
2. Those that sell, provide, etc. alcohol to individuals over the legal
drinking age are not liable (unless they force or falsely represent that
beverage contains no alcohol affirmative act) for any harm caused to
intoxicated person himself or third party
3. You lose immunity when you serve to a minor.
ii. Berg v. Zummo
1. The issue is whether this is within the scope of the risk.
2. Facts:
a. What is an affirmative act?
i. There needs to be something in addition to just serving
(throwing someone out when unwarranted, telling
someone that they need to drink until they puke)
ii. Before we had the statute, the affirmative act requirement
would only assign liability on the bar if there were an
affirmative act. It said that there had to have been more
than just the serving taking place.
b. We are dealing with an underage so statute does not apply
c. Court gets rid of the affirmative act requirement for minors
i. Serving of alcohol itself is really an affirmative act.
d. Since there is no affirmative act, we go back to duty/risk.
3. Holding:
a. To determine liability of vendor who sells or serves to minor,
traditional duty/risk analysis is used (and no additional
affirmative act is required)
4. Notes:
i. Does the university owe a duty to protect students? If they
know of a particular instance, or history at a particular
place (fraternity) then likelihood of duty increases.
ii. Note 1: not a foreseeable result of serving alcohol that he
will grab the wheel.
1. You dont expect a 15 year old to act as such, so
there is no duty really.
iii. Note 4: If there is a licensed establishment that closes
down and then serves alcohol to an underage minor,
nothing changes. Theyre either a merchant or a social
hosts and the same rules apply.
iv. Note 6:
v. However if location off campus, then probably no duty.
b. Same duty risk analysis if it is a minor providing a minor
5. Punitive damages are awarded very sparingly in Louisiana.
a. Punishing the driver with punitive damages, not punishing the
bar, best deters drunk driving.
b. L.a. C.C. art. 2315.4 explains this.
g. Slip and Fall RS 9:28006 (on page 248)
37
outward
manifestation)
iii. Expected dont have to have an outer manifestation,
we will give it where it is expected by a normal/reasonable
person
ii. Conduct Directed at Third Parties
1. Article 2315.6 on page 241!!!
38
iv. Only separate the two instances if there is gross negligence thus becomes
superceding cause. Original tortfeasor is still responsible for injury they
created, but not the subsequent injury (similar to second accident cases)
v. Rule: Joint tortfeasors shall not be responsible for more than his degree of
fault
vi. Medical negligence is usually within the scope of the risk of original negligent
conduct.
1. Its foreseeable, cause in fact, and the negligent conduct created the
risk, which then meant that the party was negligent.
negligence does NOT get any recovery. It operates as a complete bar (if you
assume the risk, then no recovery).
vii. Li v. Yellow Cab
1. Pure comparative fault theory LA
a. Woman crossed three lanes of traffic and was hit by a cab. She
was negligent in that she crossed with oncoming traffic.
b. Both were negligent.
c. Definition apportions liability in direct proportion to fault in all
cases
d. Article 2323 see page 288
i. We should know that comparative fault (deals solely with
fault of plaintiff in reducing their own recovery) and
allocation between defendants should be distinguished
ii. Also says that you need an empty chare for absent parties
remaining parties can only be responsible for their own
percentage of fault
iii. Also says that if the victim is negligent, but the other party
is intentional, then the victims recovery shall not be
reduced
viii. Dumas v. State
1. Reasoning:
a. In past, original party would be 100% responsible for death
(solidarily liable) and would be responsible to pay for all damage
(even those of negligence of treatment)however legislature got
rid of solidary liability and courts are told to assign a percentage
of fault to each responsible party
b. Court gets rid of solidary liability and replaces with comparative
faultthus each joint tortfeasor is only liable for his degree of
fault and cannot be held solidarily liable with another tortfeasor
for damages attributable to that other tortfeasors fault
c. Solidary liability and joint and severable liability are the same
thing have been eliminated in LA
2. Notes:
a. Regardless of theory (strict, absolute, negligence) fault with be
allocated. One exception is vicarious liability.
b. E.g. If you have multiple parties one negligent, one intentional,
and one comparatively negligent plaintiffthe one negligent
defendant will be responsible for his fault, but the intentional
defendant will be responsible for both his own fault and that of
the plaintiff (it is still split up though)
c. Exceptions where plaintiffs activity may bar recovery:
i. When contributory negligence is deemed the sole legal
cause of the accident
ii. Statute bars recovery
iii. Contributory negligent trespasser is barred from recovery
against a merely negligent landowner
ix. Watson v. State Farm
1. Facts:
a. Earl Creel gets a rifle for 12-year-old son Shane, and Shane
shoots a man while hunting on his farm.
44
b. You can have more than one but for cause as well as more than
one proximate cause.
c. You can also have an injury that is within the scope of the risk of
many parties
d. Start with the party closest to the negligence (Shane). Alleged
negligence was that he didnt take reasonable care to ascertain
what he was shooting at.
i. His carelessness was cause in fact, and the scope of the
duty is satisfied.
ii. All elements are satisfied so Shane is without doubt
negligence.
e. Earls negligence or PARENTAL RESPONSIBILITY:
i. Negligent entrustment, negligent training, and negligent
training.
ii. His negligence was cause-in-fact, there was a duty, and he
breached it. It was within the scope.
f. **Factors are listed which may influence the degree of fault and
can be used as guidance (similar to policy factors): This list is
the best determination of how you allocate fault between parties.
However policy factors should also be consideredbut need to
be careful how you argue policy factors to the jury. Watson
Factors.
i. Whether the conduct resulted from inadvertence or
awareness of the danger
ii. How great a risk was created by the conduct
iii. The significance of the conduct
iv. The capacities of the actor, whether superior or inferior,
and
1. Focuses on age to give dad more than son
v. Any extenuating circumstances which might require the
actor to proceed in haste, without proper though
vi. Could add a 6th = relationship between the conduct and the
causation
g. FOR EXAM dont give numbers. Dont say Earl should be given
40%. Say that Earl should be given a Fairly high percentage.
h. TALK ABOUT WATSON FACTORS ON EXAM.
i. Pick out a couple and talk about them briefly, correctly,
efficiently
ii. ***Talk about what the fact finders are going to be given
b. Assumption of Risk
i. Murray v. Ramada Inns, Inc.
1. Reasoning:
a. Assumption of risk negligence equivalent of consent in
intentional torts
i. Knowing and voluntary you know risk and walk in
regardless
b. Discussion of express, implied primary, and implied secondary
assumption of the risk that used to exist:
i. What used to be express assumption of the risk is still
express assumption: You can sign or orally commit it is a
45
1. Slightly inconsistent with the Code article, but the Code will prevail.
Most courts cite the Code article and apply the law, ignoring the
statute.
iv. Note:
1. An employee who negligently causes personal injury to a third person
is liable for damages for that injury, regardless of whether his employer
also is liable under respondent superior.
v. Workers compensation does not cover injury sustained from a co employee.
b. The Employment Relationship
i. Hickman v. Southern Pacific
1. Employment relationship:
a. If there is right to control, then it is probably an employment
relationship
b. Thus a few simple factors to look at for employment relationship
would be:
i. Right to terminate/duration of employment (at will or
specific task/time)
ii. Whose equipment or tools are used?
1. If theyre using their own tools, it leans towards
independent contractor.
iii. Specific price instead of wages
1. If there is a specific price, its a contract and there is
an independent contractor relationship.
iv. Right to control right to control specific mechanisms,
work specifics, means of production
2. If you are an independent contractor, then there is no vicarious liability
unless it deals with ultrahazardous or inherently dangerous activity or
the principal retains operational control over the contractors acts or
expressly or impliedly authorizes those acts
3. Fundamental test: The single most important factor to consider in
deciding whether the employer/employee relationship exists for
purposes of 2320 is the right of the employer to control the work of the
employee.the Right of control necessarily encompasses supervision,
selection and engagement, payment of wages or salary, and the power
to dismiss
a. Roofing work done to your house independent contractor.
b. Payment for completion of the job independent contractor.
ii. Morgan v. ABC Manufacturing
1. Facts:
Goldin
Worktec
|
|
Morgan
Hines See book page 511 for diagram
a. There is some negligence on the part of Hines, a temporary
employee from Worktec (temp agency)
b. Goldin is the employer of Morgan
c. Worktec is the employer of Hines
d. Morgan is the injured party and he wants to recover from
Goldin (workers comp) but this is limited.
If Hines is an
employee of Goldin, then Hines is a co-employer to Morgan, and
workers comp doesnt apply.
51
i. How far away is the house and how long did it take to
deviate?
ii. Maybe.
c. Driving to Monroe to deliver CLE on behalf of LSU and get in a
wreck.
i. Probably within course and scope.
d. If you are engaged in a frolic and detour, you are not within the
course and scope.
iii. Michaleski v. Western Preferred Casualty Company
1. Notes:
a. Comparative fault if third party is shown to be negligent as well.
No allocation to employer if the employer is only liable through
vicarious liability (they just get the employees negligence
imputed). If they are directly liable through negligent hiring,
then you could allocate between vicarious and direct which
matters sometimes regarding which insurance policy will cover.
iv. Timmons v. Silman
1. Facts:
a. Lawyer -- post office
2. Reasoning:
a. Proximity of the mission (both to office and to task) is very
important, time to deviate is important, whether it happened
frequently and boss knew.
b. Foreseeability of risk is also a factor intersection that was
extremely dangerous (in this case not foreseeable by employer
because she was on frolic and detour)
c. All employees slack it is expected and foreseeable.
d. Factors to determine if deviation is substantial or insubstantial
(non-exclusive):
i. When and where, in relation to the business errand, the
employee deviates from the employment related errand
and commences with his/her personal errand
ii. Temporal and special boundaries of the deviation
iii. The nature of the employees work
iv. Additional risks created by the deviation, and
v. Surrounding circumstances
v. Richard v. Hall
1. Facts:
a. SSI -- Loch Leven
2. Reasoning:
a. Lease at Loch Leven was not a business development tool
b. Important principle: the higher in the corporate chain you are,
the more likely your activities will be seen within the course and
scope of the business
c. No negligence in this case
3. Notes:
a. Generally a parent corporation is not liable for the torts of its
subsidiary; however corporate veil may be pierced
b. Mission of the owner theory generally an owner of a vehicle is
not personally liable for damages by another person driving their
automobileexceptions:
53
3. Plaintiff may not obtain an award for lost wages unless he proves
positively that he would have been earning the wages but for the
accident in question basically there needs to be causation.
4. Discounting: Damages are given in lump sumsso future wages have
to be discounted.
iv. Martinez v. U.S. Fidelity
1. Income taxes: Award is not taxable, however what do you give as an
award?
b. General Damages
i. Hard to calculate.
ii. Basically just give it to the jury.
iii. E.g. pain and suffering, mental anguish, and loss of enjoyment of life
iv. Basically awards are adjusted by degree of negligence or of causation
v. Hedonic damages are lost enjoyment damages. This is distinct from pain
and suffering.
vi. A dead person cannot get hedonic damages (lost enjoyment). Dead person
can recover for pain and suffering from the point of injury to the point of
death.
C. Property Damages
a. Roman Catholic Church v. Louisiana Gas Service Company
i. General rule is that when person sustains property damage due to the fault
of another, he is entitled to recover damages including the cost of restoration
that has been or may be reasonably incurred, or, at his election, the
difference between the value of the property before or after the harm.
ii. Unless there is a reason personal to the owner for restoring the original
condition (i.e. if the cost of restoration is grossly disproportionate to the
value of the property, you are going to get the lost value)
iii. Can get restoration if property is unique or there is some personal interest
heirloom, home.
iv. Rule for lost economics regarding businesses: have to provide enough
certainty to show there is a loss, but will allow some exceptions.
D. Interest and Court Costs
a. Interest on damages (not punitive) is from date of injury, when you experience the
loss. Interest rate is in statutes.
E. Loss of Consortium Damages
a. Recovered when victim is still alive.
b. Awarded to those that surround the injured party same persons that would have
a cause of action for wrongful death
c. Reluctant to award victim can recover lost earnings and parties in family will
benefit from this
d. Courts generally reduce the consortium plaintiffs recovery by the contributory
negligence of the trauma victim
e. Finley v. Bass
i. Elements of loss of contortium:
1. Love and affection
2. Society and companionship
3. Sexual relations
a. Can the defendant prove that you werent having sexual
relations before the injury? Difficult, but possible
4. Right of performance of material services
55
a. Under a typical case, you can recover for material services you
now have to perform or that you have to hire out. As long as it is
work that you would not have performed but for the accident
5. Right of support from her husband
a. We assume that some of the victims award for lost wages will be
transferred to spouse so we dont want to double award.
6. Aid and Assistance
7. Loss of felicity
ii. Always need to be concerned with double recovery (e.g. lost wages and lost
support)
iii. If you meet any of them you can gain lost consortium
iv. Notes:
1. Trauma victim doesnt claim loss of consortium for them it is
hedonic damages (loss of enjoyment)
F. Punitive Damages
a. Causation requirement and willful and wanton requirement.
b. In LA, punitive damages are only allowed when justified by statute drunk driving,
sexual abuse.
c. No punitive damages unless there are compensatory damages
d. La. C.C. Art. 2315.4 see page 388
i. Myers v. Nunsett
1. Must establish three requirements (need all three):
a. DWI
b. cause in fact and
c. wanton and reckless disregard (mere influence and impairment
does not establish this, but a high alcohol level does)
e. La. C.C. Art. 2315.7 see page 390
f. Some General Concerns
i. Courts usually tell juries to consider the:
1. wealth of the defendant,
2. severity of harm with which the plaintiff was threatened,
3. relationship b/w the harm suffered and that which was threatened,
4. amount of compensatory damages awarded,
5. egregiousness of defendants conduct, amount of any other punitive
damage awards the defendant had to pay or is threatened with paying,
and
6. any criminal punishment the defendant suffered or may suffer as a
result of the same conduct forming basis of tort suit
ii. Basically, the punitive damages must bear a reasonable relationship to
compensatory damages or else they will be reduced
iii. Put the person in the position they would have been in if the tort had never
occurred.
g. Constitutionality of Punitive Damages
i. State Farm Mutual v. Campbell
a. Gore factors guideposts used to determine if constitutional:
i. The degree of reprehensibility of the defendants
misconduct. The following are helpful
1. whether the harm caused was physical as opposed to
economic
2. tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of others
56
e. However where there is some consent, but not for what was done, then you have
informed consent.
f. Malpractice Crisis
i. QHCP qualified healthcare provider
ii. Insurance
iii. Medical Review Panels
1. Did they breach the standard of care and did the breach cause
damage?
iv. Cap on damages liability limited to $500,000 for pain and suffering
g. Informed consent theory:
i. Failure to adequately provide information to allow patient to decide on their
own. Duty on physicians to at least provide the information.
ii. Standard is that doctor needs to provide information that a reasonable
person would find important to make a decision and reasonable patient
wouldnt have gone through with procedure with the information (causation)
h. The Standard of Care
i. Sheeley v. Memorial Hospital
1. How do we establish custom? Three ways:
a. Local
i. Nobody uses the conspiracy of silence
ii. Strict
iii. Modified similar
iv. Specialists
v. Abandoning/limited local rule
b. Same or similar locality
i. Can go to a similar community
ii. Deals with geographic and practice area
c. Nationwide
2. Depends on facts and circumstances whether nationwide rule applies
or similar locality rule
3. OBGYN specialist can testify for family practice as long as procedure is
universal
ii. Matthies v. Mastromonoco
1. More than a minimal conversation is required.
2. Material risk those that would have some weight in a decision of a
reasonable person
3. Duty to make sure that person understands the forms.
4. Informed consent doctrine is for more than just battery.
a. It is to put the choice in the hands of the patient.
b. Nearly every jurisdiction has converted to this.
c. Even if the patient doesnt want to make a choice, the doctor still
must inform them.
5. What is the duty and how much information do they have to provide?
a. Enough that a reasonable patient can understand.
b. They must act as a reasonable physician.
6. Harm suffered must be from the risk that the physician exposed.
7. Causation: would you have undergone the procedure if you had been
given the proper information.
iii. Pizzalotto v. Wilson
1. Implied consent because she was unconscious. Consent form she
signed said nothing about this.
59
i. Woman steps in a hole in a grassy area between Toys R Us parking lot. She
claims Toys R Us is strictly liable for not maintaining the grassy area.
1. They have to show that Toys R Us either knew or should have known.
2. If 2317 would have been applied, Toys R Us would have likely been
found responsible because you would assume they knew the holes
were there.
a. If they knew the holes were there, did they exercise enough care
in fixing them?
3. 2317 is construed as a negligence case, and so you proceed with
duty/risk analysis. The court says that this is not a strict liability case.
4. Knowledge of the condition is an essential element for finding liability.
Plaintiff did not meet her burden of proof.
ii. Vicarious Liability
1. Parental relationship
2. Negligence of Child
3. Course and scope
iii. Negligence of Parent
1. Duty/risk
iv. Stricit liability
1. Assume knowledge of dangerous child
v. Absolute liability
1. Whether negligence or not, responsible for all harm.
c. Johnson v. Entergy
i. Reasoning:
1. Alleged act of negligence putting pole too close to the road
ii. Holding:
1. Not responsible under negligence because of the narrow chance of this
happening and no proof that this had happened in the past not on
constructive notice
B. Children
a. See 2318 in book
b. Turner v. Bucher
i. Reasoning:
1. If this was decided under vicarious liability, it would not be imputed
because child is not legally responsible for his negligence (negligence
at a young age is not legally faulty)
2. Standard: Parent (that child resides with) is responsible for anything
that would have been a tort if the kid (under the age of discernment)
were an adult i.e if activity would be negligent but for the fact they
were a child
a. It doesnt matter whether parent could have prevented it
b. Liability can be escaped if parent shows that harm was caused
by the fault of the victim, by fault of third person, or by a
fortuitous event
3. Court says the parent with whom the child resides is legally at fault
and therefore liable for the damage. Regardless of whether the parent
could or could not have prevented the damage.
4. This isnt clearly vicarious liability, negligence of parent, strict liability,
or absolutely liability. Its a case of parental liability.
5. Parental responsibility:
67
a. If the kid screws up and hes not an adult, the parent is at fault.
C. Curators(caretakers) and Insane Persons
a. In 2001, it was converted to a negligence standard (thus duty/risk is used)
b. See 2319 in book (not strict liability at all)
c. Brady v. State (prior to the amendment in 2001)
i. Reasoning:
1. Policy considerations used for proximate cause of duty/risk analysis for
negligence:
a. Ease of association b/w risk and the particular injury
b. Adminstrative burden that could result from recognizing the
scope of the duty
c. Economic ability of each party to liquidate the loss
d. Moral culpability of each party
e. The type, and the social and economic utility of the defendants
activity and
f. The historical development of statutory and/or jurisprudence
2. A clerical worker was injured at a mental hospital when one of the
patients fell on her.
D. Animals
a. Amended in 1996 all animals but dogs became negligence
b. See 2321 in book
c. Dogs remained strict liability, but not pure strict liability
i. Must be a situation where you could have prevented it
ii. Also provocation can be a defense
d. Pepper v. Triplet
i. Facts:
1. Bandit
ii. Reasoning:
1. To establish claim in strict liability against a dog, plaintiff must prove:
a. Person or property was damaged by owners dog
b. Injuries could have been prevented by the owner (plaintiff must
show that dog presented an unreasonable risk of harm) and
c. Injuries did not result from the injured persons (or injured
persons animal) provocation of the dog
2. To determine whether dog is unreasonable risk of harm is basically a
balancing test of policy considerations whether risk of injury
outweighed the dogs utility
E. Buildings
a. Amended in 1996 to be negligence instead of strict liability
b. See 2322 in book
c. Weber v. Ochsner (post 1996 amendment)
CHAPTER 10 ABSOLUTE LIABILITY
2. Reasoning:
a. Under redhibition, could recover economic damages
b. Court says that an individual can recover under mental distress
without having physical damages if the principle objective is a
nonpecuniary interest (e.g. antique car)principle objective is a
non-pecuniary interest
3. Note: If you suffer some physical injury, you can recover mental
distress associated with that injury
b. Strict Liability
i. Halphen v. Johns-Manville Sales Corporation
1. Four
strict
liability
theories
and
whether
manufacturers
intent/knowledge should matter/is material
a. #1 -- A product is unreasonably dangerous per se if a reasonable
person would conclude that the danger-in-fact of the product,
whether foreseeable or not, outweighs the utility of the product
i. Manufacturers knowledge, intent does not matter
ii. However, a warning may reduce the danger in fact
b. #2 A product is unreasonable dangerous in construction or
composition if at the time it leaves the control of its
manufacturer it contains an unintended abnormality or condition
which makes the product more dangerous that it was designed to
be
i. Subject to liability without proof that there was any
negligence on its part in creating or failing to discover the
flaw
ii. Evidence of knowledge was available to the manufacturer
has no relevance because product failed to conform even
to manufacturers own standards
c. #3 A product may be unreasonably dangerous if the
manufacturer fails to adequate warn about a danger related to
the way the product is designed
i. Manu. required to warn for dangers inherent to normal use
which is not within the knowledge or obvious to ordinary
user
ii. Manu. is held to the knowledge and skill of an expert
iii. Manu. has a duty to test and inspect its product
iv. Evidence as to knowledge and skill of an expert may be
admissible in determining whether duty was breached
d. #4 A product may be unreasonably dangerous because of its
design for any of three reasons
1. A reasonable person would conclude that the danger
in fact, whether foreseeable or not, outweighs the
utility of the product
2. Although balancing under the risk-utility test leads to
the conclusion that the product is not unreasonably
danger per se alternative products were available
to serve the same needs and desires with less risk of
harm
3. Although the utility of the product outweighs its
danger in fact, there was a feasible way to design the
product with less harmful consequences
71
b. Design Defect
c. Warning
d. Warranty more of a contract theory; written, verbal warning
and a breach thereto
3. (c): Timing: Discusses when the characteristic of the product that
renders it unreasonably dangerous must exist
a. Ruling is that defect has to exist at the time the product left the
manu. for construction/composition
b. Ruling is that defect has to exist at time it left manu. or arose out
of reasonably anticipated use for design defect and warning
elements
iv. 2800.55 Construction or Composition Claim:
1. Where the product does not live up to the companys own
specifications bad batch
2. Unreasonably dangerous product only care about the product (no
interest in what Coke knew about the danger)
3. This is strict liability
4. Note: strict liability and negligence are different because strict liability
does not have a knowledge requirement
v. 2800.56 Design Defect:
1. Risk/Utility Balance
2. Involves a number of different decisions at different times in the game
3. Can have state of the art defense
4. Hand formula analysis
a. Have to show existence of an alternative design
b. Balance the expected loss with the cost of the design change
5. Problems:
a. There is not an alternative design for everything. E.g. lawn darts
i. Manufacturer is let off.
vi. 2800.57 Warning:
1. Also a balancing act
2. When do we not require a warning?
a. If danger is so obvious that a warning is not necessary.
b. For those uses that are out of scope of reasonable use.
3. Warning is serving some purpose
a. Creates an atmosphere where people are aware of the risks
associated with products
4. It is possible that a warning could be used to cure a design defect
expect people to take warning into account
vii. Notes:
1. Like a negligence action, an injury must be proven
2. In summary, Construction/Composition = strict liability; design defect
and warning = negligence in essences; warning = contract case.
3. LPLA provides exclusive theories of liability for manufacturers; however
LA courts continue to allow redhibition claims for economic loss.
4. LPLA excludes claims of negligence against manufacturers
5. LPLA is not retroactive (after Sept. 1, 1988) for purposes of the LPLA,
a cause of action accrues when the claimant suffers damage
viii. LPLA establishes
D. Application of the Statute
a. Bernard v. Ferrellgas
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i. Reasoning:
1. Design defect case.
2. What is the alternative design? Regulator and warning pilot light
3. Dangerous characteristic existed at the time the product left the
manufacturer control
a. Determine whether the product is unreasonably dangerous
i. If there existed an alternative design for the product that
was capable of preventing the claimants damage (injury
would have been prevented or risk substantially reduced
(basically substantial factor) but for failure to adopt
alternative design) and
ii. Risk/utility analysis: The likelihood that the products
design would cause the claimants damage and the gravity
of that damage outweighed the burden on the manu. of
adopting such alternative design and the adverse effect, if
any, of such alternative design on the utility of the product.
An adequate warning shall be considered in evaluating the
likelihood of damage
4. Simplyonce we know that there is an alternative design? Balance the
expected loss from the reduction in risk from the alternative design
against the lost utility
5. Risk doesnt need to be eliminated
b. Krummel v. Bombardier Corp.
i. Reasoning:
1. Warning question
2. Need a cost/benefit analysis both for design case and for warning label
casehowever the analysis for each case should differ.
a. For design defect:
Balance products design and expected
damage with the burden of alternative design
b. For warning cases:
Balance expected gain from providing
warning (provide warning where it is calculated to do good) with
cost of providing that warning
3. There is no duty to warn if you did not know and should not have
expected to find this out through research. Also, no duty to warn for
those things that everybody knows about.
ii. Notes:
1. Both design defect and inadequate warning cases require a form of
risk-utility balancing
2. Under design defect claim, there is an affirmative defense based on
the manu. inability to know about the alternative design at the time
the product left the manu. control state of the art defense
(2800:59(a)(2))
a. State of the art defense doesnt apply to strict liability.
3. Interesting that warning can be used against you you knew that it
was reasonably anticipated to use in a certain way and they is why you
warned against it.
4. Remington case
a. Shooting a gun is reasonably anticipated use.
b. Barksdale and the majority argue that reasonably anticipated use
does not include firing the gun without the part in the gun that
was removed from cleaning. Reasonably anticipated use is firing
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the gun that is put back together the way it was supposed to be
put back together.
E. Liability of the Non-Manufacturer Seller
a. It is possible that an injured plaintiff may recover against other participants in the
distribution chain by applying several theories
i. 1st - If the plaintiffs contract is with the retailer/seller, he/she should have a
full range of actions that exist under the law of contracts
ii. 2nd - Negligence is always available. However analysis of duty changes
depending on the role of the distributor/wholesaler/retailer
iii. 3rd as a variation on negligence, a retailer may be under a duty to provide
operating instructions or warnings to the purchaser
F. Federal Preemption
i. Preemption doctrine of federal government adopting rules, regulations that
preempt state regulations
ii. Federal drug regulations can pre-empt state tort rights.
1. Ex. Drugs.
CHAPTER 17 REPUTATIONAL AND PRIVACY TORTS
A. Defamation
a. Elements:
i. False statement
ii. Damaging to reputation
iii. Published
b. Cannot be a statement of opinion has to be able to be proven or not proven
i. Needs to be a statement of fact
c. First Amendment plays a role: In these cases, actual malice must be proven
means that they knew it was false or treated information with reckless disregard
i. Whether statement is one of public concern
ii. Public figure
iii. Whether made by a media defendant
d. Truth is an absolute defense to defamation
e. The more random/outlandish the statement, the more likely that actual malice is
involved
f. If it is a truly private matter, then defamation is applied through simple intent do
not need actual malice
B. Invasion of Privacy
a. Four types of invasion:
i. Intrusion on seclusion taking pictures of very private events
ii. Publication of private facts
iii. False light creating the impression that you are involved in a movement
that you are not. E.g. appear in picture of pro choice rally and you are pro
life
1. Heightened standard of intent
2. Not a lot of these cases.
iv. Publicity Those who invest in their own publicity want to protect their
investment interest
1. Vanna White/Samsung case
2. Publicity and nonpublicity cases are separate nonpublicity cases are
the girls gone wild type cases where individual does not want
publicity
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b. If you have a true statement you cannot claim defamation, but could go for
invasion of privacy 1st amendment test from above still applies
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