CHAPTER ONE INTRODUCTION Question for Church: Do we need to know the details of the section/statutes/codes throughout (e.g. pg 130-131)?

? Basics Tort = an action by one person that harms another not a contract o Civil law enforced by party who claims his rights have been violated o 1) If there is a statute that determines relief, then tort law is not needed. o 2) If the parties had agreed in advance how the loss should be borne, then there is a contract o 3) If the parties do have a contract, but if the parties have not agreed or if the law does not permit them to (contra bones mores cannot contract away the tort imposed duty to avoid intentionally or willfully harming another) then contract law is inapplicable and tort law is reached o General Risk: Six types of conduct which tort law generally condemns = pg. 4 If conduct does not fall under these, generally tort law dictates that the loss should stay where it is, i.e., with victim o Goals of tort law: Deterrence (provides substitutive vengeance to victim through damage awards) Compensating the victim Spread the accident losses Societal goals e.g. satisfaction of communitys sense of justice (thus jury system) should be measured as the justice of a disinterested man o Specific Risk: but for inquiry into whether the actors conduct was a substantial factor in bringing about the victims harm Demurrer Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted (in LA exception of no cause of action) Summary Judgment filed if side does not feel that there is sufficient evidence to support a fact essential to claim. Case dismissed and then treated as res judicata Difference between 12(b)(6) claim and summary judgment: o 12(b)(6) -- they look solely at the complaint o Summary judgment based upon fairly limited presentation of evidence. A lot of time this happens in paperwork before the trial. Evidence is not sufficient to meet the elements. Key difference between contract and tort o Contract: Has promise, intent thus exchange, consideration in contract Individuals involved must know each other Plan for the future -- agreement

May not have knowledge of one another = accident Not a crime it is a private wrong Turn to legislature, sometimes from statute Action where the law feels that a remedy is appropriate Can be an accident lie a car accident or not asbestos for example Black letter rules dont apply as well Procedural posture is extremely important Can be intentional or negligent Intentional: o Purpose or knowledge with substantial certainty o Focuses on subjective intention of action o Focus on the defendant Negligent: o Objective standard How would a reasonable person react? o Not particular to thought of specific bus driver involved for example o Focuses on third party Reasonableness varies with facts and circumstances How do we tell if when a child gets hurt, if the bus driver is liable? In addition to intentional and negligent, we have strict or absolute liability o Strict = focuses on knowledge of the actor o Absolute = nature of action is inherently dangerous Products Liability sometimes even when there are contracts, torts can apply o E.g. when you buy a car Risk o There is always some level of acceptable risk o Cannot eliminate all risks, negligence is about determining which risks are acceptable Element: Those things a plaintiff must prove to establish existence of a tort. o Plaintiff has to prove all of them. o Important because that is how you define a tort o List elements and then determine whether facts meet those elements o Starting point of nearly every case Motion to dismiss for failure to state a claim upon which relief may be granted. o Typically occurs very early and often. o May be one of the first things filed. o Means that you are making a motion to dismiss because they do not meet the elements i.e. they must claim the elements in the pleadingnot just have facts to prove them What is difference between privilege and element?

o Tort:

o Privilege you have a right to do Who has to prove the existence of a privilege? A privilege is a defense, thus burden of proof on defendant o Element Burden of proof on plaintiff o Unclear whether lack of consent is an element or presence of consent is a privilege. Important in determining the burden of proof Battery, Assault, and False Imprisonment are all dignitary offenses.

A. Anatomy of Tort Litigation A Primer for Beginners a. see book if need basis of trial technicalities CHAPTER TWO INTENTIONAL TORTS ~Intentional torts do extend liability past what would be covered under negligence. ~Also may have a different statute of limitations (prescriptive period in LA) depends on court. ~Most tort lawsuits in the U.S. are based on negligence theory of recovery rather than intentional tort theory (may reasons why plaintiff would choose intentional though: workers compensation, application of comparative fault principles or intentional tort defenses, also statute of limitations may differ, etc.) A. Intent a. Definition: Purpose or knowledge to a substantial certainty b. Can have substantial certainty but not have a purpose. i. E.g. blindfolded with a pistol, spin around and fire weapon. Battery because you have a substantial certainty that you will hit someone/something. Was there a purpose? Not necessarily. ii. Need to draw a line between substantial certainty and negligence (later in class) c. Garratt v. Dailey (example of indirect contact) i. Garratt (woman) is suing Brian Dailey (5 year old) ii. Restatement regarding liability for battery is determined by the following: 1. act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and 2. the contact is not consented to by the other or the others consent thereto is procured by fraud or duress, and 3. the contact is not otherwise privileged iii. No question in this case of consent or privilege, thus question of intent iv. Why focus on intent and not negligence? 1. If negligence -- Reasonable person of like age and development (5 years) is tricky here 2. If intent -- Better for plaintiff to focus on Brian as an individual v. Intent in this case

1. Purpose or knowledge to a substantial certainty that Naomi would attempt to sit down where the chair had been / would fall 2. You do not need to intend to do harm to commit an intentional tort (buy it will apply) vi. What is the tort in this case? 1. Battery vii. Where is contact? When she hits the ground viii. Was it harmful or offensive? Yes ix. Does it matter that she broke her hip in order to prove the tort? No harm is not required x. Why is hurt not required? Interest is to be free from unwanted contact (embarrassing/offensive) xi. Holding: remanded for clarification. 1. Trial court applied the wrong standard. 2. Need to determine whether Brian had substantial certainty of contact xii. Tender years doctrine states that children under a certain age cannot have negligence (general terms). Intent is person specific (specific terms) d. Caudle v. Betts (e.g. of how harm does not need to be intended to constitute battery) i. Caudle and Betts were at a company Christmas party horsing around with charged condensers. Betts shocked Caudle in the back of the neck. ii. District court dismissed and court of appeal affirmed. This court reversed (found Betts guilty of battery) iii. Did Betts intend to cause injury? No 1. pg. 21 Do not need to intend to do harm. Intent instead to contact in a harmful or offensive manner 2. pg. 20 A harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact, is a battery. 3. Do need to intend to contact (that normally is harmful or offensive by some third party standard) a. Consent is presumed in some cases (e.g. tapping someone on the shoulder) are not considered harmful or offensive b. If you tap someone on the shoulder and their arms falls offbut you didnt know their arm was already injured, was it battery? No, because this type of contact is not normally harmful or offensive iv. Workers Compensation 1. A system where workers can recover in an administrative scheme can recover certain damages 2. Exclusive remedy for workers on the job except for when it is an intentional act allows worker out of the exclusivity provision of workers compensation 3. For vicarious liability to attach to the action, it has to be done within the scope of the employment relationship.

4. If intentional can sue both company and individual, but company can only be held liable if the action was done during the scope of employment relationship (however, no double damages will be awarded) 5. Caudle argues that he should be able to recover in court because the act is intentional a. Betts is owner in this case, but in most other cases, the owner would not be liable because the action was not done within the scope of employment v. Limits to unintended consequences 1. Is there a limit to the scope of liability? Yes 2. Scope of liability extends further for intentional torts as opposed to negligence. However limit is gray area. vi. Holding: Battery was committed and plaintiff was entitled to recovery. 1. Reversed and remanded e. Davis v. White i. Davis fires a gun at a man named Tipton and hits an innocent bystander (White). ii. Issue: Can intent be established when a third party is injured instead of the intended party? Yes iii. Why is this an intentional tort? 1. Doctrine of Transferred Intent a. One who intends a battery is liable for the battery when he unexpectedly hits a stranger instead of the intended victim b. Transfer from one tort to another and/or from one person to another c. Extends liability of intentional torts for unintended consequences. d. Can transfer the intent, but be careful in extending it too far. e. There is nothing that is physically transferred. f. Way of transferring liability. g. You have requisite intent and this doctrine extends liability to unforeseeable events. h. This doctrine is not a rule it is used by courts to extend liability for intentional torts (better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim) iv. Case shows the significance of claiming an intentional tort the judgment debt cannot be extinguished in bankruptcy B. Battery a. An intentional tort that protects a persons interest in being free from physical contact with his or her person b. Plaintiff must prove a voluntary act (that causes a harmful or offensive contact with the plaintiff) and intent on part of defendant

c. Not necessary to prove actual harm d. Elements of a battery i. Unconsented/unprivileged (??) some jurisdictions this is treated as a defense instead ii. Intent of harm or offensive conduct iii. Contact iv. Harm or offense 1. Doesnt have to be harmful or offensive, just one or the other. e. Need intent to contact in some offensive/harmful way when measured by some objective measure (reasonable persons standard). i. Need intent in addition to actual contact and actual harm or offense f. Leichtman v. WLW Jacor Communications, Inc. i. Leichtman (antismoking advocate) was guest host on radio show and claimed that defendant employee Furman lit a cigar and repeatedly blew smoke into Leichtmans face. ii. Restatement Second states that an individual is subject to liability to another for battery if: 1. He acts intending to cause a harmful or offensive contact with the person of the other and 2. a harmful contact with the person of the other directly or indirectly results or 3. an offensive contact with the person of the other directly or indirectly results iii. Case was reversed which means that it was not dismissed, but does not mean that there was necessarily battery it at least gets past the motion to dismiss phase; however this court felt that a battery had been committed iv. Holding: Reversed and Remanded v. What is contact here? 1. Contact does not have to be person to person e.g. shooting, throwing something 2. How doe we know that particulate matter is enough? a. Would argue this by starting big and working way down to particulate matter. b. Pg. 25 State Supreme court ruled that particulate matter is sufficient to form contact for a battery c. Where do we draw the line? No required that particulate matter be established. Water does not have particulates and works. What about stench? Sound? i. Ultimate goal = protect person 3. It is up to the courts to make the physical impact argument, biological argument, case precedent. a. For this particulate matter case, we cant say for sure that there wasnt a battery vi. Offensive? Definitely offensive behavior. vii. Intent? Yes. It was obvious that there was intent to contact in a harmful or offensive way (they knew he was an anti-smoking advocate)

1. Blowing smoke however is not offensive in all cases viii. Can employer be held liable? Yes 1. Action was within the scope of employment. Thus vicarious liability. ix. Did not grant summary judgment for Cunningham either because they could not say for sure that he wasnt liable. He could have been or he could not have been liable. Summary judgment is a preliminary motion. Court was not certain as to his liability and thus could not dismiss him yet. g. Funeral Services by Gregory, Inc., d/b/a The Kimball Funeral Home v. Bluefield Community Hospital i. Gregory embalmed a body from Bluefield Hospital that had AIDS. Gregory was never explicitly notified of the contamination. Two years later he filed a lawsuit under several theories, but since he missed the statute of limitation he was left with only battery ii. Appellate court dismissed the battery claim and this court AFFIRMS (no evidence of actual exposure to the virus iii. What is the best theory that the plaintiff has in this case? Fear of emotional distress. Can be either intentional or negligent. iv. This case is based on battery because the statute of limitations ran out on fear of emotional distress v. Battery under restatement second: 1. acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact and 2. a harmful contact with the person of the other directly or indirectly results vi. Battery: have to have had contact with contaminated bodily fluids vii. Negligence: if he would have known that the body had AIDS, he would have handled the body / procedures differently viii. This case is not well-suited for battery contact is an issue 1. Not sufficient support for contact do not know whether there was contact with bodily fluids, let along contaminated bodily fluids 2. We dont know what type of contact occurred. Contact with contaminated body may not be sufficient. May have to be contaminated body fluidpathway to contamination ix. What is the theory you would use to argue that he should have taken precautions? Consent to contact x. Intent? Purpose or substantial certainty? 1. No, because they just forgot (negligence) 2. This case should fall under negligence (however negligence has to have actual harm, not just the fear of) xi. This case is not a battery forced into this context because of statute of limitations C. Assault

a. Defn: protects a persons interest in being free from apprehension of harmful or offensive contacts with his or her person b. Deals with a specific mental interest rather than a generalized fear like IIED c. Words alone do not constitute an assault (must be combined with other circumstances or acts) d. Difference between battery and assault: i. Battery involves contact ii. Assault is freedom from apprehension of an imminent battery iii. Elements are same except for the result e. Battery and assault can occur together or separate i. If you know that it was coming and were hit, than you have battery and assault ii. If you didnt know the contact was coming, but were hit, then you have battery and not assault iii. If you saw it coming, but ducked before you were hit, then you have assault f. What is needed for an assault? i. Restatement of Torts (Second) someone is liable or assault when: 1. An actor is subject to liability to another for assault if a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. the other is thereby put in such imminent apprehension 2. An action which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm. ii. Intent to batter will transfer to the intent to assault and vice versa. 1. e.g. if I thought the gun was unloaded, shot at someone, but it was actually loaded I can get both battery and assault because the intent to assault will transfer to battery 2. Actually, the intent will transfer among the five trespatory torts (battery, assault, false imprisonment, trespass to land, and trespass to chattel (Church doesnt really agree) you cannot transfer to or from intentional infliction of emotional distress iii. You can also have intent to cause apprehension (e.g. walk in with an unloaded gun) iv. Assault must be imminent (cannot be for a future event) g. Dickens v. Puryear (case dealing with IIED) i. Puryear lured Dickens into rural area, beat him into semi consciousness, attached him to a farm implement, and threatened Dickens. They then told him to go home, pull his phone off the wall, pack or they would kill him. He was then set free ii. He filed a claim for IIED iii. Statute of limitations had expired for assault and battery.

iv. A motion for summary judgment was granted for defendants because it was viewed by the trial court that this case was grounded in battery and assault and that stat. of limit. had expired. However plaintiff feels that it falls under IIED. This court agrees with plaintiff. v. Issue is whether there was intentional infliction of emotional distress (IIED) or only assault and battery? Are these mutually exclusive? Assault (imminent no significant delay) and IIED (future) are mutually exclusive (one or the other) vi. Distinction between assault and IIED need to distinguish between statute of limitations. 1. Assault refers to imminent threat 2. IIED refers to future threat vii. Why do you suppose the statute of limitations is different? 1. Might take a little longer for people to realize and file. 2. More extreme type of behavior often involves repeated behavior viii. When they grabbed this guy and attached him to the farm implement, what types of torts? 1. Battery = definitely 2. Assault = most likely 3. False imprisonment = dragging him and attaching him to farm implement 4. IIED = at the end of the encounter, they threatened to kill him if he didnt do as they ordered when he got home a. The apprehension (not same as fear) clause isnt imminent: it is a future threat b. Not imminent enough to make an assault (imminence depends upon the facts of the case) ix. Assault elements: 1. Intent to assault or intent to battery 2. Reasonable apprehension of attempt to battery (reasonable on part of plaintiff) 3. Words alone cannot constitute assault (have to think battery is coming) x. Some actions in this case did fall under assault and battery (cutting of hair, beating, etc.); however threat for future death was not imminentit was a future threat (thus IIED) xi. Holding: Remanded there was IIED, thus summary judgment was an error D. False Imprisonment a. Protects a persons interest in having ones body free from restraint or confinement b. Another classic trespatory tort c. Many times authority related d. Privilege is a factor in these cases e. Elements of False Imprisonment mentioned in class: i. Intent to confine or transfer from assault and/or battery intent

ii. Actual confinement iii. Consciousness of confinement plaintiff (debatable) f. Elements of false imprisonment in book: i. Defendant intended to confine him ii. Plaintiff was conscious of confinement (or if not aware of it, suffers harm as a result of it) iii. Plaintiff did not consent to the confinement and iv. Confinement was not otherwise privileged (often in false arrest cases) g. Some courts say that physical force is not always needed can be threats, duress of goods h. Parvi v. City of Kingston i. Where does the false imprisonment occur here? 1. Focus on intention of police officers. a. Jurisdiction of taking them to location b. Should have done something to secure reasonable safety otherwise privilege could collapse c. Privilege could never have existed (if cops had intent from beginning to drop two men off in unsafe location??), or could have ended when they dropped them off at a non-safe place this is not a classic case of false imprisonment (Church says) ii. Need intent for false imprisonment also a conscious awareness on part of victim (he doesnt agree with this) iii. What about if Janitor locks one door (w/ intent) and leaves the other open. You dont realize that the one door is open and have a panic attack. Is this false imprisonment? Probably not because you have a separate door that you can see reasonable avenue of escape iv. Privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question v. In this case a new trial was ordered court reversed order dismissing the plaintiff false imprisonment privilege of police needs to be further analyzed E. Intentional Infliction of Emotional Distress a. fill-in tort: not a classic tort, but someone is behaving like a jackass i. Elements are heightened as well as burden of proof on plaintiff cannot just be ticked off b. Elements are standard: i. Extreme or outrageous conduct (no reasonable person would be expected to tolerate it) 1. may arise from abuse of a position of authority (e.g. workplace usually must be repeated behavior) ii. Extreme/severe emotional distress (harm needed here) iii. Intent to create distress (purpose or substantial certainty) iv. Causal relationship between the behavior and the distress

c. Examples: Telling someone that somebody is dead when they are not, playing games with dead bodies, cases of repetition (sexual harassment), some public utilities incidents (expected to live up to a higher standard) d. Limit this area because we are concerned about false claims: view is that everyone is expected to put up with some tyrades e. Extreme and Outrageous means to be out of the ordinary f. Nickerson v. Hodges i. Woman had been in insane asylum before (causal relationship between behavior and distress, they knew that she had this condition and thus had substantial certainty that distress would be caused) ii. Need to know information about the individual so that it can be understood just how likely it is for tort to occur iii. Defendants found liable. g. White v. Monsanto Company i. Woman had panic attack after boss had reprimanded her and a few other employees for not following instructions he used profane language ii. Question is whether this is IIED so that woman can collect outside of workers compensation iii. Not considered extreme or outrageous conduct by the courts because it was addressed at a group and not just White iv. Was there purpose or substantial certainty to cause distress? 1. Probably not because addressing the groupunless he knew that White was sensitive to said behavior 2. Background is important v. Boss not found liable. 1. Conduct was not extreme or outrageous to an ordinary person 2. No intent to inflict distress of a severe nature (purpose or substantial certainty) vi. Just need intent to create distress 1. Evil intent or that you intend that they suffer injury is not necessary vii. Knowledge of actor that other person would be particularly susceptible to emotional distress does matter if there is no such knowledge than conduct is analyzed as to how it would effect a person of ordinary sensibilities F. Property Torts: Trespass to Land, Conversion, and Trespass to Chattels a. Intentional torts that protect property interests b. For each of these three, the elements are i. Act ii. Intent to accomplish the result iii. Result (see below, as each is slightly different) c. Trespass to Land i. Protects the possessory interest in real property ii. Result element = entry onto the land iii. 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 iv. Need to establish intent 1. Intent to enter property perioddoesnt matter if you accidentally stumble into the wrong apartmentbecause you had intent to enter it is still trespass 2. LA draws distinction between good faith and bad faith trespass for good faith you are responsible only for damage done v. Need some sort of entrance even if you dont physically enter (e.g. bullet, water, etc.) 1. Water case = if you have purpose or substantial certainty that water will enter the land, then you have intent vi. As with most other intentional torts, no requirement to prove damages they are presumed vii. Herrin v. Sutherland 1. If bullet doesnt land on the property and just wizzes by, is it trespass to land? 2. Property extends above and below reasonably restatement on page 51 extended tort of trespass a. Doesnt require damage or interference or anything else (unless it is air travel) d. Conversion and Trespass to Chattels i. Technically separate torts yet dont really differentiate ii. Protect the possessory interest in personal property (chattels) iii. Elements of both: 1. intent to interfere or to take (even in mistake) 2. interference with use or ownership iv. Conversion Result element= exercise of dominion and control over the personal property v. Trespass to Chattels Result element= interference (intermeddling) with possession of the property vi. Whether it is conversion or trespass to chattel is a measure of degree: how substantially did the defendant interfere with plaintiffs possessory interest vii. Remedy for conversion: recovery of the full value of the property that has been destroyed or stolen viii. Unlike most intentional torts in trespass to chattels, damages must be proven ix. 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

x. xi.

xii.

xiii.

xiv. xv.

4. Harm done 5. Expense and inconvenience caused If interference is substantial enough to be a conversion, the defendant is said to have exercised dominion and control over the property. 1. Conversion is interference with ownership remedy is forced sale If interference is not substantial enough for conversion, then it is intermeddling and is considered trespass to chattel 1. Trespass to chattel is physical interference with enjoyment remedy is less Compuserve Inc. v. Cyber Promotions 1. Compuserve bringing suit for trespass to chattel (doesnt really fit under conversion) 2. Chattel is Compuserves harddrive 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. 6. In this case value was shown to have been diminished 7. Held that there was trespass to chattel Dual Drilling Company v. Mills Equipment Investments, Inc. 1. Does LA have a remedy similar to common law tort of conversion (a strict liability remedy)? LA says civil law remedy was adequate, but then adopts common law conversion anyway. However in LA, fault is needed. This case was remanded so fault (percentages) could be established. 2. Mistake, yet still conversion 3. Conversion when any one of these is satisfied (in LA??, both I think): a. Possession acquired in an authorized 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 4. This case fell into one of these, thus there was conversion. He doesnt really care which we categorize situations as...conversion and trespass to chattel are very close doesnt matter whether interference with ownership or with enjoyment Mistake people make: You throw a rock trying to hit my dog, but hit mewhat is this? Battery (transfer from trespass to chattel to battery). Cant assault an animal. Maybe assault if I see it coming. However if it is a seeing eye dog and you kick itit could be a battery because dog is extension.

G. Defenses to Intentional Torts a. Consent i. Key is that consent is not a contract. ii. It is a manifestation to consent to something that would otherwise be a tort. iii. Can withdrawn at any reasonable time. iv. Can imply consent from surrounding facts and circumstances (depends on situation) v. Fricke v. Owens-Corning Fiberglass Corp. 1. Facts: Man laying at bottom of bin of mustard. Younger man goes to save the man at bottom and is also overtaken. 2. Issue: whether remedy is limited to workers comp or whether there is intent 3. Argued that Baumer knew with substantial certainty of contact (proof by guy laying at bottom). 4. Doesnt fall within realm of traditional battery. Usually would be seen as negligencebut want battery to get out from under workers comp. 5. Where do we find consent? Man (Fricke) made the choice to go down knowing the facts and circumstances (offered to go instead of older man Baumer). Fricke volunteered. 6. Found for defendant because there was consent. Thus no intentional torthowever, there could still be remedies under workers comp. 7. Will not vitiate unless there is unequal knowledgewhich there didnt seem to be 8. Consent and/or lack there of can be and is usually used as a defense instead of as an element of tort (no consent) Burden is on plaintiff if it is an element, otherwise on the defendant if it is a defense. vi. You can consent to virtually any intentional tortexcept IIED (e.g. sexual harassment). There are also cases where you can exceed consent. vii. 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. He said the safe word and yet they continued. Also facts regarding full force and regular, unpadded batons being used supported that this was extreme d. Cannot include damages into analysisneed to only consider contact.

e. Important: dont have to intend harmjust have to intend contact viii. Implied Consent and Medical Treatment 1. Basically a medical term e.g. if you perform surgery on me while I am sleeping without my consent = battery. If consent, then you would have a defense to battery 2. Consent often established through circumstantial evidence 3. Mix of negligence and intentional tort 4. Scope of consent statutorily mandated for the most part ix. Duration of Consent 1. Can withdraw consent at any time that is reasonable 2. What is reasonable depends on the circumstances of the case see McAndrews v. Roy pg. 68 x. Failure of Consent 1. Stephen K. v. Roni L. a. Case of fraud unequal information. b. Compare to AIDS case: if you have aids and know it, what have you committed? Battery. Is there consent? No, it isnt valid. 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. Result of this case: No tort, there was consent. e. Court doesnt want to meddle in this relationship. Also, concern for childs welfare if it is found that there was battery by mother, the child support is reduced f. Fraud will usually destroy consent (unequal information is the key) g. Unless case is extreme, court doesnt want to be involved disease cases are different because there is actual contact with the disease. There is a duty if you know you are infected to disclose, otherwise battery. Consent doesnt matter here because they didnt know of disease. h. Other than fraud, when should defendants failure to disclose information invalidate consent? i. See Note 4 pg. 72 ??? i. Consent can be defeated when shown it was extracted under duress j. What about incapacity and consent? i. If you can form intent subjectively, than odds are you can form consent. ii. Have to look at each case individually iii. Young children are the same k. Is consent to an illegal act nonetheless consent?

i. Statutory rape? Should consent by minor be valid in this case? Legis. Has made a judgment that under a certain age, consent is not going to be valid ii. Usual rule is that if you have a minor, they cannot consent; however no strong principle for two minors 2. Consent cases will always hinge on the particular matters of the case subjective. Just know the basicsthe possibility of consent in various cases. 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 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 question: Usually public would not have compensation, private would. However with 5th amendment, the government must compensate for taking v. Bass v. Louisiana 1. Today would be considered taking and would be compensated 2. Facts: There is a necessity for a levee 3. Question: compensation? Two types of takings: Formalized taking (can condemn private property to build new building at LSU, but must pay fair market value), and regulatory taking (limitations on land that makes land lose its value) 4. Defense of necessity involves a balancing test. Balance rights against each other. 5. Courts are leaning toward compensation 6. Is there reasonableness in action? Then probably privileged. 7. How is this case different from imminent domain? ID has more formal condemnation. Here they didnt actually take the property, he still has ownership. Church doesnt see why this case was treated differently. No question that today there would be compensation.

vi. In zero-sum cases, where one person can be rescued and one cannot, the defense of necessity is unavailable. c. Self Defense 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. 2. Self defense is a true defense 3. Requires the showing that there was an 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 made this type of force acceptable? Unavailability of escape b. 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. c. Reasonable force in response to reasonable threat. Reasonable appearance of threat to life and limb is okay. However right to use force is decreased if there is an adequate escape d. Not what is subjectively thought it is an objective standard e. Factors relied upon to determine reasonableness of actions: i. Character and reputation of the attacker ii. Belligerance of the attacker iii. Large difference in size and strength iv. Overt act by the attacker v. Threats of serious bodily harm vi. Impossibility of a peaceful retreat f. This person was a bully, had reputation, he continued to move forward even when the person said they were calling the police g. Under the circumstances, the response seemed reasonable (no other options really) h. Kid shooting tried to limit the effect of the gunshot. i. Typically justified to use assault to defend yourself difficult when escalates to battery. 5. Self defense is different than defense of others a. Right doesnt really change for the two: as defender of others you have the same right as the one you are defending right to life or limb b. You bear the risk of mistake if by chance they are not entitled to the right of self defense

6. Landry v. Bellanger a. LA used to have the aggressor doctrine, but it is now gone i. Under this, if you were deemed the aggressor and someone punched you, there is not a battery ii. Problem: like trying to figure out who started it? iii. Justified too much violence provoking with words counted b. LA now has comparative fault c. Fact: Landry was punched, hit head on curb d. Holding: Bellangers response was in self defense response to aggravation to chest hits e. Bellangers force was reasonable, even though outcome wasnt really f. Case found that instead of aggressor doctrineself defense should be used. i. Mere words are not enough (however can be considered when figuring damages) g. Held that fault should be apportioned (comparative fault) because both had intent (i.e. recovery of plaintiff should be reduced as opposed to plaintiff had been negligent instead and the other was intentionalthen intentional members recovery should be barred) however, Landry would be completely barred from recovery if Bellangers behavior was considered self defense (this is a complete defense) which it was. If it wasnt self defense, then comparative fault would have applied. ii. Reasonable Response 1. Size of aggressor is not determinative each case depends on its own particular faces and circumstances 2. Sometimes shopkeepers can commit battery to keep the peace a. More force justified for a shopkeeper when they are defending others 3. Duty to retreat: You are never under a duty to retreat your own home, even if deadly force involved. If you are not in your home and it is reasonable to retreat, you only have to if a deadly force is involvedotherwise you can stand ground and repel the attack. 4. Hattori v. Peairs a. Facts: foreign exchange student was going to a party, went to wrong house and was killed. Obviously a misunderstanding. When husband said freeze, Hattori didnt understand b. Part of this is that it occurred outside the dwelling Peairs could have just gone inside. c. Force used was excessive under the facts. i. Fact that is was Halloween complicates things: student might have thought gun was part of costume

ii. Man saw something in students hand (it ended up being a camera) iii. Reaction was not reasonable (objective standard) d. Important to note: you do have the right to protect self dont just have to wall self uphowever excessive force is not justified d. Defense of Third Persons and Property i. Patterson v. Kuntz 1. Facts: Kid was shot by his neighbor because neighbor thought the kid was a prowler. 2. What made this shooting reasonable in the eyes of the court? a. It was reasonably apparent that force was necessary b. Facts and circumstances (history of prowlers) made it reasonable to respond the way he did c. Third parties need to have the right to self defense, otherwise right to defend others would not have existed and man would have been liable for the mistake 3. If force used would have been excessive, it is excessive regardless of whether it is under self defense or defense of others. Circumstances may justify more force, but defense of others does not create the right to use more force ii. Innkeepers have a duty to protect others. They may be justified in using more force or using it earlier. More leeway then when defending self or only a small group of others. iii. Facts and circumstances must be taken into account each time iv. Defense of Property 1. Force which is threatening to life or limb is never justified in defense of property 2. Katko v. Briney a. They didnt live at propertyit wasnt there home b. They set a spring gun which is never justified to defend property. Only if you are defending self or others and threatened with life or limb in order to respond in the same. i. Not even justified if there are warning signs. c. He knew that it was likely to cause injury and was intending to protect property. There was an intent to battery. d. You are justified to use reasonable force to defendjust not force that will endanger life or limb e. True Privileges i. Privileges created to promote public policy. License certain classes of actors to violate others rights in certain circumstances. ii. Discipline 1. Harrell v. Daniels a. Paddling was allowed in school and teacher paddled a student.

b. What did the child do to deserve paddling? What made it reasonable? i. Teacher warned him, he didnt quit ii. There was a witness to the paddling iii. Just 5 paddles, minimal force (bruises only because he moved), he was told not to move to avoid major risk iv. Past behavior of the child v. Credibility of teacher v. student. Court found teachers (2) more credible than student vi. Court found that there was a right to paddle. vii. Schools have more rights than parents in disciplining because there are other individuals interests in mind. viii. Contingent on reasonableness ix. Standards of reasonableness used: 1. age and physical condition of student 2. seriousness of misconduct soliciting punishment 3. nature and severity of punishment 4. attitude and past behavior of pupil 5. availability of less severe but equally effective means of discipline 2. Discipline by parents is also a basis for the defense of privilege. a. Parents immune from tort suits by child during the childs minority however can be brought after reaches age of majority iii. Shopkeepers Privilege and Privilege to Arrest 1. LA Code Article 215 on page 113 2. Can detain for 1 hour if there is a reasonable suspicion of theft and only theft. 3. Derouen v. Miller a. Woman had items (shrimp, coke) in her cart. The items and her purse were cramped. She moved the shrimp and coke and probably put the checkbook into her purse. Shopkeeper saw her put something in her purse. b. Key idea: She hadnt even left the building yet. Have to have a reasonable suspicion of theft. c. You cannot just keep for an hour for the hell of it. Can question during the hour and then if you determine that there is no theft, you must let them go. Need reasonable reason to detain. d. Have to engage in some effort to make a determination of whether there was a theft questioning!! e. Shopkeepers are held to standards: time, reasonableness, etc.

f. Shopkeepers can detain and use some limited batteries. 4. Fine line between the privilege and false arrest 5. Thomas v. Schwegmann a. Focuses on language of shopkeepers privilege Theft b. Thomas opened item but didnt take it. The statute (pg. 118) does not cover opening. c. Shopkeeper never allowed the crime to ripen. d. 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 or iii. The detention lasted more than 60 minutes, unless it was reasonable under the circumstances that the suspect be detained longer iv. Shopkeeper may have a right outside the statute, but the facts of this case do not support any right to detain v. Focus on statutory language is important in regards to reasonable suspicion that did not occur in this case iv. Spousal Immunity 1. Can sue for any intentional torts after marriage is terminated, but not during marriage. 2. Prescription period is suspended during the marriage 3. Kids are similar to spousal immunity they cant sue until they reach the age of majority 4. A parent may sue his child during the childs minority 5. Duplechin v. Toce CHAPTER 3 GROSS, WILLFUL, AND WANTON CONDUCT -Hybrid between acts considered negligent and behavior found to be intentionally tortuous -Highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent -Applies to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended -Will avoid the defense of ordinary contributory negligence on the part of the plaintiff CHAPTER 4 NEGLIGENCE Consists of 5 elements (from book): 1) duty 2) breach 3) cause-in-fact 4) proximate or legal cause (scope of duty) and 5) damages

Reasonable care = objective test what would the ordinarily prudent person do under the circumstances? External standard. How we expect people to behave (duty). If they dont behave this way it is a breach Negligence defined = conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It does not include conduct recklessly disregardful of an interest of others. Elements of negligence (his from class): 1) Duty: reasonable person; B<LP risk/utility balance test; custom; statutes (negligence per se) 2) Breach (to him this is easiest to determine) 3) Causation actual (cause-in-fact) and proximate 4) Damage/Injury -- Need damage for negligence unlike intentional torts (with the exception of IIED) no harm, no foul A. Duty = How we expect people to behave. a. Reasonable person: Duty of an individual is to behave as a reasonable person. Does depend on some circumstances e.g. emergency situations b. Customary: What is argument on custom and reasonable person? Customary behavior is somehow a reasonable behavior. T.J. Hooper argument was that it was not customary behavior, it was not reasonable behavior (custom as a shield). Custom as a sword; however, is a very strong argument (if all had a radio except for you for example) c. Statutes (Negligence Per Se): We use non-tort statutes to help us determine how a reasonable person would behave B. Causation a. Actual causation: is whether the act of negligence was the cause in fact of the injury. But for question. E.g. Environmental cases, medical malpractice. Actual causation is based on facts. b. Proximate cause: really has nothing to do with causation. It is a policy question. Should the defendant be responsible? In LA, it is done explicitly. Proximate cause in common law deals with proximity. In LA it is dealt with explicitly. C. Damage need to establish damages Louisiana Approach Duty/Risk: elements are rearranged 1) Cause-in-fact 2) Duty: a) traditional duty (just like common law duty analysis reasonable person) b) scope of the duty/risk (how far you are going to extend liability proximate cause from common law) 3) Breach 4) Damages/Injury Why is it decided differently in LA? In LA, duty is decided by judge. In common law, it is treated as an issue of causation for the jury. cause-in-fact for both common law and LA are the same proximate is similar to scope (causation in common, duty in LA) same analysiswe just do in a different order

Differences really dont matter A. Reasonable Care In General a. Misuraca v. City of Kenner i. What is argument in terms of common law elements? 1. Police officer acts reasonably: tells men to stop messing with the wire. He behaved in a reasonable manner under the circumstances and thus was not considered negligent. a. He could have done more, but he is not required to do the best thing b. Ultimately comes down to what makes sense. He fulfilled his duty. There was thus no breach. b. Roberts v. State i. Who is alleged to have been negligent? Burson blind operator ii. First: Identify the alleged act of negligence (only way you can draw causation chain) iii. Court says that there is no negligence other reasonable blind persons would have behaved in the way Burson did (facial sense familiarity with surroundings) 1. Physical handicaps are part of person we take those deficiencies into account. Need to determine what a reasonable blind person would do in similar circumstances iv. Argument that it was unreasonable for man to walk unattended others do not know he is blind v. Two different duties in this case: these are related reasonable behavior of one depends on reasonable behavior of the other 1. Duty of the blind person to behave as a reasonable blind person 2. duty owed to persons with disabilities blind persons c. Child standard is like age and development ordinary child at like age, intelligence, and experience i. Unless child is engaged in an adult, or inherently dangerous activity, then child is held to adult standard of care. ii. In these cases, parents might be negligent in letting the kids do these things negligent act becomes parents failure to supervise when they should have iii. Dont need expert testimony usually in experience of most jurors d. Insane person standard One who is insane must behave as a reasonable person. Basically, who should bare the loss of the insane persons actions, the victim or the insane individual? Insane person. i. Courts dont want people making false claims to relieve liability ii. Those who care for individuals with mental illness, must act as a reasonable person who knows that the individual has a mental illness. Could then sue caretaker for fault of mentally ill because we expect caretaker to take better care

e. Sudden emergency doctrine: in a sudden emergency, not of his own making, the reasonable person is held to the standard of care of a reasonable person in an emergency i. Under comparative fault, this is not a defensebut is considered when distributing fault B. Custom ASK ABOUT SWORD AND SHIELD WHICH IS WEAKER EVIDENCE? a. How does custom say what a reasonable person should do? b. The T.J. Hooper i. Says that it is custom for people not to have 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. Defendant says that they werent negligent because everyone else does it the same way (no radios) iv. Hand (Judge) says that the defendant is using the custom as a shield which is weaker than when plaintiff uses custom as a sword 1. Sword example: if plaintiff says everyone uses safety options but them strong evidence against defendant failure to comply is strong if used as a sword c. What is custom helps us to determine what reasonable people would do versus not do i. Sometimes custom still negligent (as in Hooper case) d. Custom applies pretty strongly when it applies to plaintiff establishing breach of duty and not so much for defendant establishing that there wasnt a breach of duty. ????? C. Risk/Utility/Economics and the Reasonable Person WHAT NEEDS TO BE IN THIS SECTIONI WAS GONEASK CHURCHALSO A COUPLE QUESTIONS FROM SARAHS NOTES a. United States v. Carroll Towing Co., Inc. i. B<PL = Hand Formula if this is the case, the precaution should be taken 1. B = Burden of adequate precautions 2. P = Probability 3. L = Loss 4. To take a risk (no precaution), the burden has to be more than the probability times the loss 5. Liability depends upon whether B is less than PL 6. Calculation shows how we expect reasonable people to behave a. When driving loss is high, but probability is low b. Balancing burden of not getting to school (that is high) you accept the expected loss for driving c. The probability is fairly low accept expected loss because burden is greater 7. Best explanation of behavior that exists b. Do I need to put Ford example here???

i. B > LP, so Ford wasnt negligent by not taking the precaution c. McCarty v. Pheasant Run, Inc. i. Church says that hand formula always works formula makes sense 1. Uncomfortable with numbers creating absolute 2. This case says that exact numbers arent always important it is the general concept that is important forms a basis 3. There is a burden with any precaution, this formula asks whether it is reasonable to take or not take the precaution. 4. Burden doesnt have to be financialit is the burden of the action 5. Judge Posner in this case believes in B<LP, but doesnt feel that there will always be numbers available d. Equate hand formula to reasonability i. Formula is rational, but not necessarily reasonable ii. Equation is a paradigm wont always have numbers e. It all comes down to the fact that you dont need to choose the best choice, just a reasonable choice f. There is some degree of expected risk, just because someone is injured doesnt mean someone had a duty to them g. What about with kids toys? i. Probability is probably higher ii. Have to take into account the behavior of the buyer (in all cases, not just kids) D. Violation of Statute, A/K/A Negligence Per Se a. Use of outside non-tort statutes b. Where we take things from criminal law, some municipal ordinances, etc. and try to determine how reasonable people behave. Legislative body helps us determine how a reasonable person behaves. c. Helps determine 1) Admissibility 2) Evidentiary Value i. Court will adopt a statute as the standard of care of the reasonable person under the circumstances when: 1. The plaintiff is within the class of persons the statute was enacted to protect and 2. the risk was within the class of risks the statute was enacted to guard against d. Boyer v. Johnson i. If you violate a criminal statute, are you negligent? 1. A violation of a criminal statute does not automatically create liability in a particular civil case. 2. Purely advisory mere guidelines for the court however it is persuasive and courts many times adopt (see above two circumstances) e. Wright v. Brown i. Dog bite case that dealt with determining class of persons and class of risks included in statute and whether statute should be used as standard of reasonable care

f. g.

h. i.

ii. Why are we dealing with negligence per se? Biting dog is supposed to be quarantined for 14 days by statute. Dog was let out early and bit again. iii. In Churchs mind, the statute is irrelevant except that it establishes a time period (duty thus mere evidence) Once we make a decision that a person violated a criminal statute (admissibility), then we have to decide what to do with it (evidentiary value) Under Boyer and Wright cases, the roles that criminal statutes play in determining negligence are: i. Admissibility 1. Class of person is this person part of protected class of statute 2. Class of risk is this risk one that is protected by statute Both of these class questions are pretty flexible -- For admissibility - basically is it adopted widely enough to label it as evidence of a standard of care? We apply admissibility in LA to determine duty ii. Evidentiary Value First establish this info. will be in a jury instruction, then if it is: 1. Mere evidence what type of jury instruction would you draft if it was mere evidence? You can use criminal statute if you would like as a guideline, but you are not required to. a. Do you provide a jury instruction at all? You establish through testimony that person had violated a criminal statute. The jury might feel that they are required to find civil liability of negligence because of violation of criminal statute thus there is usually a jury instruction. 2. Strict negligence per se if you find that person has violated criminal conduct in the statute, then you must find that person negligent most states have abandoned this 3. Presumption Who bears burden of proof on all elements? Plaintiff. Once the plaintiff has established that there was a violation of the criminal statute, the burden shifts to the defendant to show that their conduct was reasonable. a. Different types of presumptions: i. Bursting bubble plaintiff meets burden of proof, defendant just gives some evidence then it returns to plaintiff to prove by greater weight of evidence ii. Mandatory similar to strict negligence per se Violations of criminal statutes are very persuasive evidence. Principles to keep in mind: i. The more persuasive the legislative body that adopts the standard, the more likely that it is admissible. 1. When should OSHA standards not be admissible? Horseplay 2. OSHA standards are adopted by regulatory agencynot same amount of trustthus how would you get these admitted?

a. Say they are regulatory. b. Custom j. Sometimes courts will neither ask the jury to decide if defendant acted reasonably or adopt a statute as the standard of care thus the court articulates a rule of law and says what is views as reasonable care under the circumstances E. Special Duties a. Categories of operators that behave as a reasonable person would under those special circumstances. E.g. innkeeper as an innkeeper has an elevated sense of duty, electricity workers, etc. F. Res Ipsa a. Common sense evaluation of the strength of circumstantial evidence b. The Thing Speaks for Itself evidence is very strong that there can really be no other option c. Have to be able to point specifically to this defendants negligence and rid all others of responsibility d. Traditionally we apply to medical cases where wrong body part is operated on. Doctor is held responsible. e. What is needed for res ipsa? i. 1st = Reasonably exclude all other explanations others negligence and possible non-negligent explanations. ii. Defendants negligence falls within the scope of duty to the plaintiff f. Who gets to make the decision on res ipsa? Judge. Once res ipsa is shown, what do you get? i. Jury instruction that says jury can find negligence in absence of specific evidence of negligence. Allow inference. They are not required to infer, but are allowed to. g. Res Ipsa does not involve any kind of presumption!! h. Res Ipsa is important on cases where it is not soo obvious and during appeal (appeal court has right to make this decision) i. 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. (Same standard as for a directed verdict). Then you should provide instruction. ???? is this right pg. 153??? ii. Could a reasonable juror come to the conclusion that the injury more probably than not came from the defendants duty along? If yes, then give res ipsa jury instruction j. Elements of res ipsa: i. Within scope of risk of the defendants duty ii. All other negligent, nondefendent possibilities/causes have been ruled out sufficiently k. Boudreaux v. American Insurance Company i. Fire started and suffocated Boudreaux who was in an adjacent premises.

ii. We do not know anything on the part of the action of the defendant. iii. 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. l. Sometimes use res ipsa when there is a whole group of defendants. Res ipsa allows an inference of negligence. Forces them to come forward with evidence of non-negligence Note: Negligence can refer to the whole tort or simply the first two elements (duty). More probable than not = anything over 50%. CHAPTER 5 CAUSE IN FACT A. Introduction a. Causation is an element of the prima facie case of negligence i. One who does not cause harm is not liable causation is fundamental to negligence b. Factual or actual causation (cause in fact) i. Whether the alleged act of negligence was the cause in fact of the injury ii. Standards: (they are often treated as same, even though they arent evidentiary standard is important (50% v. 50%+) 1. But for 50%+ standard -- but for the defendants negligence, would the injury have occurred? If no, then negligence and vice versa a. I.e. the injury would have occurred regardless of the negligence, then you do not meet the but for requirement 2. Substantial factor Not same as but for 50% standard. Began in multiple factor casesnow has expanded a. 50% standard is important because if it goes above this percent, then it is more probable than not (does this then fall under but for) b. For those cases when you didnt quite meet the burden of more probable than not = 50%+ c. Arose in cases like Summers v. Tice and Landers case (later in outline) d. Three cases: i. Negligent cause and non negligent cause Anderson case ii. Two negligent, each of which was capable of causing harm by itself Landers case iii. Two negligent, only one which caused alternative liability Summers case

e. Class question: What if two spill and combine to create reaction. Both are but for causes. You can have multiple but for causes. Multiple chemical sensitivity. iii. A lot of authors equate proximate cause and actual cause as the samehe does not agree iv. Actual cause is based solely on facts. v. There are some policy questions here now too not completely sterile vi. Factual cause doesnt care about foreseeability c. Proximate causation (next chapter) i. Is a policy question for the jury whether this defendant should be responsible when actual cause has already been established B. But-For Causation a. Perkins v. Texas and New Orleans Railroad Company i. Facts: 1. Car was hit by a train. 2. Driver in the car was negligent (undisputed) 3. Plaintiff in this case was a passengerso he could recover because he is not barred under the contributory negligence in state at the time. Driver could not recover (We now have comparative negligence which doesnt completely bar recovery) 4. Train was going 37 in a 25. 5. Negligence here is the failure to stop in a reasonable time. ii. Issue: 1. Whether the excessive speed of the train was a cause in fact of the fatal collision? iii. Reasoning: 1. Because you were speeding at some time does not mean there should be liability. It has to be close enough to call it a cause. 2. Language is importantpg. 157 It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. It need not, of course, be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. 3. pg. 157 Under the circumstances of the instant case, the excessive speed was undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. On the other hand, if the collision would have occurred irrespective of such negligence, then it was not a substantial factor. iv. Holding: 1. Court found that train wasnt cause in fact of injury because even if they were going 25 miles an hour, the train wouldnt have been able to stop and the members in the car probably

could not have gotten out of the way (warehouse blocked view). v. Dissent: 1. Dissent makes mistake by equating excessiveness (37 miles per hour) with cause in fact. Majority is correct in this case by saying that speed can be excessive but could still not be a cause in fact. vi. Notes: 1. Note 3: Ship mate fell overboard and immediately disappeared beneath the water. Rescue boat was launched, but delayed because of way it was attached to ship. When it was launched, it was equipped with only one oar. Were the problems with the boat cause in fact? a. First have to establish negligence reasonable person, hand form, custom, etc. to evaluate if there is a duty. This part is fairly easy. It is easy to show negligence of one of these duties. Was there causation (cause in fact)? No. More probable than not that he would have drowned regardless of negligent action. vii. You can always have more than one but for cause viii. On exam: should always talk about both but for and substantial factor tests to some extent they can be used interchangeablybut not completely 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. 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. Issue: 1. Is the radiologist responsible? Is he the but for cause? iii. Reasoning: 1. Using the but for test, he is not responsible. 2. He did breach his duty, but he was not the but for cause. 3. 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. 4. Even if the radiologist would have met the duty, the injury would still have occurred. Yes the doctor screwed upbut not negligence because there was no causation. 5. This is excellent example of but for test. iv. Holding: 1. Doctor breach of duty is not but for cause of injury c. Breithaupt v. Sellers

i. Facts: 1. Plaintiff was not wearing hunters orange and was shot by another hunter ii. Issue: 1. Whether the accident would have occurred regardless of whether Breithaupt wore Hunter Orange. iii. Reasoning: 1. Do we apply negligence per se regarding the statute in this case? a. Class of person? b. Class of risk? c. Makes sense maybe to use statute as mere evidence 2. Whos negligence are we analyzing? a. This is a question of contributory/comparative negligence b. Trial court found that plaintiff had contributed to injury through his negligence and thus was barred from recovery 3. Statute is very disturbing and this court agreed a. One of the reasons contributory negligence was gotten rid of b. Hunters who violate the statute do you, for that reason alone, deserve to be shot 4. If you are showing that the plaintiff is faulty, you have to show that his negligence was cause in fact of his own injury. Why wasnt cause in fact established? a. Failure to wear orange probably didnt matter. b. If the plaintiff could see facial features in scope, the other guy should have known he was shooting at a human iv. Holding: 1. Found against defendant his negligent shooting was cause in fact of injury 2. Contributory negligence was not substantial in causing injury thus should not bar recovery 3. Actually, remanded to trial court for new trial to let jury decide if hunter that shot acted reasonably (first trial assumed that what he did was reasonable) v. Notes: 1. You cannot evaluate cause in fact until you identify the alleged breach 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. Facts: 1. One negligent party and a whole bunch of non-negligent fires still use of substantial factor test ii. Notes: 1. Cause-in-fact usually is a but-for inquiry, which tests whether the accident would or would not have happened but for the defendants substandard conduct. 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 case: plaintiff owned a lake that he had spent considerable sum to stock with fish. Salt water disposal companys pipelines broke, in addition an oil company caused salt water and oil to be discharged into the lake. All fish were killed. Practically a single indivisible injury. a. No good evidence as to which leak occurred first. Thus how could you prove that action was more probable than not (greater than 50%) to cause the harm? You cant say which is more likely to cause the event. 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? Is this going to be substantial factor? Shouldnt be. c. Court found Joint and severable liability: plaintiff can recover full amount from either one. LA in addition to other states have come a long way in getting rid of this 3. Summers v Tice case a. Three men were hunting, plaintiff was shot in the eye. b. Two men shot guns in plaintiffs direction c. Plaintiff could not prove which shot caused injury need substantial factor test d. Were the shooters negligent? Probably. b. Jenkins v. St. Paul Fire and Marine Insurance Co. i. Facts: 1. Attorneys did not bring claim in the prescriptive period. Very big problem. 2. It was negligence. It was a breach of duty they had a duty to meet the prescriptive requirement. 3. How would you measure reasonable care?

a. How a reasonable attorney would behave. 4. Custom is easy especially for professionals almost requirement that you show evidence of custom 5. Plaintiff is suing attorney for negligence to file on time. ii. Issue: 1. Whether the client, after proving the attorneys negligence, must also establish the validity of the underlying claim by proving that the attorneys negligence caused him damages and by further proving the amount of damages. i.e. whether case within a case approach is best approach: that plaintiff must prove negligence and that claim would have been successful. iii. Reasoning: 1. If we apply the but for to this, what would the plaintiff have to prove? Case within a case approach but for the negligence, the plaintiff more probably than not would have been successful in the trial in question 2. Used to be very difficult for plaintiff to bring case against attorney effective shield for attorneys iv. Holding: 1. This court changes things: Still case within a case but burden is shifted. One plaintiff shows negligence on part of defendant defendant has to show that they wouldnt have won. a. This test is only relevant when right on 50% line ??? v. Dissent: 1. Dennis approach is much more pro-plaintiff. 2. Argues that injury is losing the chance to litigate, not the case a. Similar to Smith case (next case) and lost chance b. Even if the case would have been lost in trial, something was taken away settlement value. c. What is the best evidence that this case wasnt a dog? That they initially took the case as an attorney. 3. However this is not the theory used by the majority. Some jurisdictions use it, but most use burden shifting approach of majority. c. Smith v. State of LA Dept. of Health and Hospitals i. Facts: 1. A routine x-ray was taken of the chest which showed a cancerous mass. 2. The hospital failed to inform Smith or his family of the results, Smith was simply discharged. 3. 15 months later, Smith returned to hospital, complaining of three week history of chest pain, etc. 4. Second x-ray was completed and revealed mass had doubled in size. Smith and his family now learned of the mass. 5. By this time cancer was diagnosed as nonoperable 6. Smith died nineteen months after original x-ray

7. Hospital admitted that employees and physicians were at fault and breached the standard of reasonable care. 8. Hospital expressly reserved right to contest causation and damages. 9. Action followed seeking survival and wrongful death damages ii. Reasoning: 1. Negligence was failure to inform 2. How do we establish duty? Custom 3. What was Smiths chance of survival at the time of the first xray? a. Differed, but it was positive. He had a chance. Not 50% or more. 4. If chance of survival is less than 50%, then it is a separate injury lost chance of survival 5. His chance of survival at the time of the second x-ray was less than one 6. If we apply the but-for, more probable than not standard, would have died anyway? Yes. We would lose the case. a. Same result if we adopt the but for from Jenkins where burden is shifted. 7. In this case, they did not redefine the causation standard, they redefined the injury. a. Instead of death, it was lost chance of survival b. Redefined the injury to meet the causation standard c. This and Jenkins case are definite policy issues. i. This was a clear wrong there was clear negligence. 1. However, shouldnt get to recover full damages for death when you would have died anyway. 8. Question is of damages in this case. Once you show causation, how do you establish damages? a. 1st approach: This court does not just take a pure percentage of a wrongful death suit if it was litigated to the end like the trial court did. b. 2nd approach: This court says that it is up to the jury to decide what is appropriate. They can value it any way they would like in essence we are giving them too much discretion. c. 3rd approach: allow full survival and wrongful death damages for the loss of life partially caused by malpractice, without regard to chance of survival d. On test need to say that there are three different ways for the jury instructions see page 173 if want more details on three

e. Regardless, once you hit 50%, you should get the full award not a portion (however some juries dont do this) 9. This case is different then Jenkins and burden shifting approach lost chance is limited to medical malpractice cases a. We limit lost chance to medical malpractice cases. It is a lost chance of survival and not just litigation. b. As in next case, why do we not have a lost chance in asbestos cases? i. There are some types of asbestos injury that can only be gotten from asbestosbut not all cases. ii. No way to parse out when there is a mixture such as smoking c. In medical cases, we know that if there is this type of treatment, there is a usual outcome. We have a good statistical basis from which to start not so in other areas, thus reluctant to extend. iii. Holding: 1. The negligence of hospital employees was proved by a preponderance of evidence that it deprived a chance of survival. 2. Plaintiffs were not required to prove a reasonable or substantial chance of survival simply that any chance of survival was lost because of defendants negligence a. Place on continuum matters he would be surprised if there was ever an award given for loss of 1% chance however under this case it would be awarded. iv. Notes: 1. Only in cases where somebody dies, do we talk about lost chance if you dont die you dont really have an injury 2. Lost chance is a new area of recovery uncertain as to boundariesbut havent yet seen abuse that was predicted a. Argued that lost chance should apply to environmental cases i. Some conditions cannot be traced back directly to chemicalbut it can be proved that chemical does cause this condition ii. However, there are other causes for the condition as well. iii. Problem: indeterminate plaintiff problem which of the cancer cases are due to the exposure to chemical and which are just the background cases of cancer we expect to arise from individuals backgrounds? 1. e.g. 100 people have been exposed. Normally 20 cancers expected, but there

are 30. We dont know which of 10 are caused by chemical. 2. Options: 1) Could just give everyone money only way to really do it (better to hold responsible party liable than let them go) 2) add up risk factors and find 10 individuals that are most likely to suffer the result 3. Courts have done neither, but closer to first 4. Problems: people react differently to different levels iv. Indeterminate defendant case: next case Black v. Abex d. Black v. Abex Corp. i. Facts: 1. Case deals with brake and clutch products that were manufactured with asbestos. 2. Man that worked in the manu. business died and wife sued 48 companies based on claims of market share and alternative liability ii. Reasoning: 1. First issues is Market Share Liability a. Mentioned case Sindell v. Abbott i. Companies involved in that case used same formula as any of the others so the product was fungible (substitutable). Thus companies had to pay in proportion to their share of the market. b. This case is different Court says that market share liability cannot be used the products were not fungiblethey had different levels of asbestos in the products different levels of risk c. Causation problem because of indeterminate defendant problem difficult to tell where injury came from synergistic effect dont know real source (e.g. toxic mold) 2. Second issues is alternative liability a. Almost essential that all parties are known (market share is similar because you need to know the market and who has all the shares not quite as difficult though) b. Alternative liability has joint and severable liability (one party could be responsible for all damages) not same with market share (just responsible for own share of market)

c. Alternative liability does not apply in this case because all manu. are not included (Summers case is e.g.) iii. Holding: 1. Both market share liability and alternative liability claims were dismissed. Neither were applicable. iv. Notes: 1. Usual standard is that tort litigation is inappropriate for this type of relief because injuries to each person vary. 2. For test: Need to know different theories and indeterminate problems (plaintiff and defendant). Need to know exposure problems too (who, what, where exposed kids especially at risk) ??? 3. Problem is that asbestos rulings get applied to other areas, but issues are different and need to be treated differently CHAPTER 6 LEGAL CAUSE/SCOPE OF THE DUTY 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. Inherently a policy question c. Most cases divided by application of the risk rule whether the injury was reasonably foreseeable (there are other policy issues as well) d. Who decides the policy issues? If issues are analyzed as questions of duty then often it is the judge, if analyzed as questions of causation then often it is the jury. e. Best to think of legal cause/scope of duty as a fifth, independent element of negligence theory f. Once we meet standard of causationshould we impose liability? Policy question. g. Can be many but for causes that shouldnt necessarily be held responsible (e.g. Chicago fire) B. Introduction to the Risk Rule a. Foreseeable Plaintiff i. Palsgraf v. Long Island Railroad Co. 1. This case is an example of Forseeability of Person have to foresee the risk to that particular person a. That person was not foreseeable. b. The injury to that person was not foreseeable. 2. Facts: a. Man running with small package that is not identifiable. b. Railroad employees help him to get onto the train because he is falling 3. Reasoning: a. This case introduced the idea of reasonable foreseeability

i. The risk reasonably to be perceived defines the duty to be obeyed ii. I.e. duty established by whether the risk was reasonably foreseeable b. Court felt that the plaintiff must show that a wrong was committed to her specificallynot a wrong to someone else, nor conduct wrongful because it is unsocial c. There is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others d. Two important opinions: Cardozo opinion and Andrews dissent shows importance of difference between LA can common law difference deals with how far foreseeability should extend i. Cardozo says that it is a question of duty (LA approach) owe a duty only as it is owed to this person 1. Does not see liability for railroad ii. Andrews represents traditional duty approach (common law) policy analysis is a part of causation here 1. Sees that there was foreseeability and thus liability on part of railroad 4. Holding: a. Railroad not responsible because risk was not reasonably foreseeable and thus there was no duty 5. Andrews Dissent a. He thinks that majoritys duty to the specific person approach is too narrow b. He feels that if the act is wrongful, the doer should be responsible for the proximate results i. Polemis case: 1. individual was responsible if there was direct causation without intervening cause (superceding) 2. This case takes very strict stance: actual cause and proximate cause are same thing not policy question 3. Idea from Polemis case has been pretty much abandoned c. Damages must be connected with the negligence that the latter may be said to be the proximate cause of the former d. Needs to be a natural and continuous sequence between cause and effect thus he feels in this case that woman should have been able to collect 6. Notes:

a. What would be an intervening cause? i. E.g. I spill gas at a gas station and then someone comes by and drops a match which ignites the gas. Dropping the match is an intervening cause. ii. It is a question of time. b. Superceding cause is a term of art applied to acts that cut off liability of the original actor i. Why cut off liability? One person is more evil/less moral ii. Intervening act is more likely to become superceding if it is intentional iii. Exceptions: If the result of negligence of the original actor is foreseeable then liability is not cut off 1. E.g. bus driver is negligent by knowingly dropping passenger off in a high crime area a. You can foresee the existence of crime b. Criminal actor is worst actor, but that does not mean that original actor should be relieved of liability 2. In LA, we apportion liability c. While Polemis rule from before this case is no longer used, intervening and superceding wording is however d. Began with Polemis idea (referenced in Dissent) and then moved into foreseeability (of person and of risk) b. Foreseeable Risk i. Wagon Mound 1. Facts: a. Oil spillage. There is a cotton rag (basically acts as a wick) floating around. There is welding going on, which has sparks. Eventually the spark caused the oil to ignite. 2. Whether Polemis rule is invalid? 3. Reasoning: a. Challenges Polemis which said that if the defendant is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not this rule is too harsh b. No actionable breach of duty unless it can be shown that at the time of the act, the consequences of the act were reasonably foreseeable (reasonable man test) c. What is the foreseeable risk from oil? Not fire, it would soil the dock. d. In this case, it was the unique combination of the welding with the rag (wick).

e. Those who left the oil didnt foresee the risk because they thought the only risk was making the dock dirty. f. Specific v. General risk i. If the requirement is that you need to have harm occur in the specific mechanism, then Wagon mound (the welders) could argue that they 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 4. Holding: Polemis rule is too harsh. The test should not be whether result is direct, but instead whether it is reasonably foreseeable to the ordinary man. Thus company that left the oil was not held responsible because result was not reasonably foreseeable. 5. Notes: a. Jurisdictions must decide the standard of foreseeability: i. Foresee risk to the particular plaintiff v. class of plaintiffs ii. Forsee the specific mechanism or manner of harm v. foreseeability of the general hazard iii. Foresee the harm v. just the hazard b. Usual rule is that you only need to foresee the general risk of harm c. Why do we impose a foreseeability limitation (why dont we follow Polemis)? i. Concerned liability may be extended indefinitely (but to Church this doesnt really relate to foreseeability) ii. Hand formula gives a good reason: if we impose liability for unforeseeable risk, people will be taking precautions that are not justified under this formula. Force people to take too many precautions. 1. He has two problems: a. If it is truly unforeseeable, no prediction can be made and thus no precautions can be taken regardless. b. If it is truly unforeseeable, it is less likely to be negligent in the first place d. Determining Whether an Intervening Force is a Superceding Cause i. See pg. 194 195 for list C. Proximate Cause and Scope of the Duty in Louisiana a. Development of the Duty-Risk Approach i. Dixie Drive It Yourself v. American Beverage Co. 1. Facts: a. Dixie Gulf States Langtre

Lease Employment b. American Bev. RC Cola Driver Ownership Employment c. Dixie leased a truck out to a third party (Langtre) d. Langtre is an employee of Gulf, who leased the truck from Dixie. e. Driver of RC truck is employed by RC Cola who is owned by American Beverage Co. f. RC truck broke down and took no precautions to warn. g. Langtre has also been negligent in some way in driving didnt slow down in time h. Dixie is suing American Beverage to recover the value of the truck i. American Beverage says that they are not responsible that Langtre is j. American Beverage argues that they dont have a duty they argue that Langtre is the intervening/superceding cause 2. Reasoning: a. Why wouldnt you name Langtre as a defendant? Vicarious liability between Gulf and Langtre (employee in course and scope of employment) but there is not vicarious liability between Dixie and Gulf because there is no employment relationship (it is a lease) i. Imputing liability from employer to employee = vicarious liability. Same idea for ownership and subsidiary piercing the corporate veil (when need to decide if/when owner is liable for subsidiary torts). ii. American Bev. wholly owns RC Cola subsidiary which is indication that you could hold ownership company liable for subsidiary actions b. Dixie did nothing wrong why 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 c. 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 iii. Question of negligence of both partiesthus multiple causative factors d. Court found that negligence of Amer. Bev. Driver was cause in fact of accident. e. Court found that Langtre was negligent, but the question is now whether Langtres negligence was superceding to Amer. Bev. drivers negligence. f. Is this seen as a question of causation or duty? Define duty from statute then shift over to causation issues regarding Langtre g. 2 principles: i. Applied intervening/superceding actual cause question (responsible for everything except) 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 (at this time it was joint and severable (which is what they were ordered to do and which has been gotten rid of since) i. Comparative fault applies to plaintiffs fault in effort to reduce plaintiffs recovery defendants defense versus ii. Joint and severable liability, which is allocation of damages (one may pay whole thing) 4. Notes:

a. LA shifts more toward policy with duty analysis away from causation (foreseeability intervening/superceding cause) b. Intervening/superceding cause still important in LA duty/risk analysis: if there is a superceding cause, the duty does not extend to this plaintiff c. 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: a. Celeste Hill was a babysitter. b. After hurricane, repair company leaves ladder next to house. c. Some third party moves the ladder, which Hill falls over when trying to protect the child. d. She sues the repair company 2. Reasoning: a. Hard to categorize third party as intervening or superceding: it is intervening, but not superceding because she knew the ladder had been moved (foreseeable). It was also not that faulty to take the ladder down and put it on the ground. b. What about Hill? Was she negligent? She knew the ladder was there, but court forgives (Momentary Forgetfulness Doctrine -- but could just as easily use the reasonable person standard for emergency situation) c. This case is analyzed as a scope of the duty question is the risk of injury from a ladder lying on the ground (by a combination of defendants act and third party) within the scope of protection of the rule of law which would prohibit leaving a ladder against a house sounds like negligence per seexcept here there is no actual statute ??? d. Foreseeability is not always a reasonable guideA risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of the duty owed because of that conduct. Neither are all risks excluded from the scope of duty simply because they are unforeseeable. Ease of association (foreseeability) of the injury with the rule replied upon, however is always the proper inquiry ??? 3. Holding: a. Lundin is not responsible for Hills injury not within the scope of the duty i. Third party action not reasonably foreseeable to defendant

ii. Rule of law that imposes a duty not to leave a ladder against a house does not encompass the risk encountered here b. Decision was really made because of policy issues hurricanemost efficient for companys to leave equip thus more freedom should be given i. Important to talk about foreseeability and ease of association and then try to determine why the decision was actually made 4. Notes: a. Go through following steps to determine scope of the risk/duty on exam: i. Foreseeability ii. Intervening/Superceding iii. Ease of association (something considered more than just foreseeability) iv. Policy factors (laid out in following case) b. A Return to Proximate Cause and Variations to the Risk Rule Common Law Approach: (pg. 204 for description) Duty (Traditional) o Reasonable Person o Custom o Hand Formula o Res Ipsa o Neg Per Se Breach Cause o Actual o Proximate foreseeability, intervening/superceding, policy questions Injury LA Approach: Cause (Actual) but for, substantial factor (same as common law cause) Duty o Traditional as in Common law Reasonable Person Custom Hand Formula Res Ipsa Neg Per Se o Scope (risk, duty) = proximate cause Foreseeability Intervening/superceding Ease of association

 Policy Factors Breach Injury Difference in two is really who should make decision: judge (duty) of jury (causation) What is the paradigm between proximate cause and duty/risk? Start withPolemis direct cause rule, intervening/superceding cause, foreseeability of risk rules (plaintiff, etc.), policy factors ??? I DONT UNDERSTAND THIS WHEN DO WE START WITH THESE THINGS?? Judges have more freedom under duty analysis i. Pitre v. Opelousas General 1. Facts: a. Tubal ligation done on Tammy Pitre b. Report showed that operation wasnt successful, but Pitres were never notified. c. They had a child with albinoism 2. Reasoning: a. Wrongful life childs claim that is associated with the defect i. If you would have done this operation correctly, I wouldnt have been born with this defect damages here are associated with pain and suffering of conditionnot life in general b. Who gets to recover in this case? i. Hannah doesnt recover albinoism is not clearly associated with negligence here. Defect was not anticipated as a result of botched sterilization or anticipated knowing background of parents c. Wrongful birth defect involved. Claim of parents if we had known that child was suffering from a defect, we would have terminated the pregnancy not in this case because albinoism isnt foreseeable d. Wrongful conception healthy (usually botched sterilization, abortion) damages almost always limited to costs of actual birth e. Dennis discusses policy considerations to determine the moral aspect of the defendants conduct (when is negligence immoral) Lists on pages 205 (in terms of duty) and 209 (in terms of cause). This is 209 list: i. Need for compensation of losses 1. Physical injuries require need for compensation (other injuries are not treated the same) ii. Historical Development of Precedent

1. If you have cases on the books, there is no need to reinvent the wheel. Need to consider precedent. 2. If the theory you see goes against precedent, then additional justification is needed iii. Moral aspects of the defendants conduct 1. The more faulty the defendants conduct, the further we are willing to carry liability 2. How big of a mistake was it? iv. Efficient Administration of Law 1. If we extend liability in this case of albinoism, it will open the flood gates. 2. Reluctance to expand novel areas v. Deterrence of future harmful conduct 1. Some aggregious conduct -- need for compensation is great, but we need to deter the actors as well 2. Even if system may be flooded (e.g. asbestos) something needs to be done vi. Capacity to bear or distribute losses 1. Imposing liability on corporate entities is justified because they are better able to bear the loss by raising prices on products 2. Discuss who should bear the loss when it comes to allocating fault in comparative fault cases f. This case boils down to not being foreseeable. g. Policy: i. Efficient administration dont want people to be able to bring claims for any condition that results from botched sterilization 3. Holding: a. Child cannot recover for wrongful life, nor can parents recover for wrongful birth (albinoism was not reasonably foreseeable result)however parents can recover for wrongful conception (expenses incurred during pregnancy, but not future economic cost of raising child (child is a blessing) 4. Notes: a. Availability of insurance in the open market is significant it tells us about forseeability b. Ultimately you will talk about foreseeability first and then implicitly talk about policy factors c. Start with direct cause (Polemis), intervening/superceding, foreseeability of risk, policy factors ??? WHEN??? Scope of risk/scope of duty ???

d. There are appropriate cases where a child can sue and also for foreseeable injuries even if child is not yet conceived. (Negligence occurred and it was foreseeable that an injury to a child that could be conceived sometime in the future) e. Basically need to know that both children and parents have rights f. Policy factors in LA are unique they are explicitly recognized ii. Cay v. State Department of Transportation 1. Facts: a. Sister took brother to Jonesville and left him there. b. He went to the bar and then leaves and falls over a bridge c. A suit is brought against the DOTD. 2. Reasoning: a. What is the alleged act of negligence? i. Bridge railing should have been higher. st b. 1 element in duty/risk Cause in fact (but-for, substantial factor) i. But for the railing not being so low, would the accident have occurred? More probably than not is the standard. ii. If he didnt jump than more probably than not if the railing would have been higher, he wouldnt have died. iii. Evidence indicates that he probably didnt jump or get pushed thus cause in fact is proven. c. 2nd element of duty/risk Traditional duty i. What would a reasonable department of transportation do? 1. Was this a place where they would reasonably expect pedestrians to cross? 2. When did they build it? State of the art defense perhapsnot really in this case ii. Custom 1. Again, state of the art argument. 2. What do DOTs from other states do? 3. Standards themselves serves as custom and maybe negligence per se iii. Negligence per se 1. Not here the standards are only recognized if a state chooses to adopt them. Seems here that state didnt adopt iv. Hand formula 1. Dont really know numbers in this case

2. Balance the cost of replacing the railing against the probability along with the expected loss. 3. Cant really determine probability, but loss would be pretty high amount of pedestrian traffic is important (probably pretty high in this case) v. Res Ipsa 1. Doesnt really apply in this case d. 3rd element Breach basically a one line deal e. 4th element Scope of the risk/scope of the duty i. Is there anything that could be a intervening/superceding cause? Drunkeness isnt considered an intervening/superceding cause. Doesnt seem to be anything that the facts indicate. 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 iv. Foreseeability 1. Is it foreseeable that drunk people would cross the bridge just as nondrunk would? 2. This event is within the scope of the risk once you meet the burden of proof showing that lower bridge is negligence v. Ease of association 1. Must be ease of association between the injury and the rule of law giving rise to the duty 2. In this case there is an ease of association between accidental fall over the railing of the bridge and the failure to build the railing to correct height vi. Policy Factors 1. State may be better able to bear the loss 2. Need for compensation to family for their needs vii. Courts are much more willing to extend the scope of the risk farther because of comparative fault 1. Only way to say that DOT is not liable in some way (comparative fault) is if the risk was not in the scope of the duty (e.g. jumping to suicide)

viii. Courts have large discretion for allocation of fault it is indeterminate 3. Holding: a. DOTDs liable for death of Cay. The injury was within the scope of the risk/scope of the duty. Negligence was cause in fact of accidental fall b. There was comparative fault though drunkenness of Cay was also considered a cause in fact 4. Dissent: a. Discussion of policy factors: i. DOTD better able to sustain the burden iii. Jones v. Robbins 1. Facts: a. Six year old girl goes to gas station to get gas. She is turned back twice because she has a glass container instead of plastic. She finally is sold the gas. 2. Reasoning: a. What is the alleged act of negligence? i. Selling gas to a 6 year old 1. Does it matter that he knew girl? Still negligence, but could soften it (or make it worse because he said that he knew children were often unsupervised) b. Analyze by using Custom, Hand Formula, Reasonable gas station worker i. Under any of these it was a duty which was breached failed to act reasonably c. Does the duty not to sell to six year old extend to the sister? i. He knew or should have known that there was a substantial risk that gasoline could be misused d. This case deal with whether you have to foresee the specific mechanism or just the general risk associated? This case focuses on general risk. i. The gas station owner knew or should have know of the substantial risk in general ii. Risk to six year old and anyone that could be exposed to danger of unsupervised 6 year old is within the duty of the attendant e. Is mothers action (not watching them) an intervening/superceding cause? Probably not after we define the scope of the duty 3. Holding: a. Gas station attendant breached his legal dutythe risk was within the scope of the duty and thus he is liable for damages. 4. Notes:

a. Mother is also at faultbut this is not comparative fault because she is not a plaintiff claiming her own injuries. If it is anybody other than the plaintiff (mother here) it is a question of allocation. i. If it is the plaintiff and they are injured and they were negligent, then it is comparative fault b. Children are to be judged at a standard of like age and development, thus children probably not considered negligent. If they were negligent, then percentage of fault would need to be assigned. D. Some Specific Proximate Cause/Legal Cause/Duty Risk Issues a. Controlling Third Parties i. Generally, courts do not impose a duty upon a person to control the conduct of a third person actor to prevent tortious conduct by that actor unless the person has a special relationship with either the actor or the actors potential victim ii. What about wife that knows husband is a known sex offender? 1. Time since last offender mattered (it had been years) and he had had treatment 2. There wasnt any duty (under duty/risk) or it wasnt foreseeable (under proximate cause) 3. However sex offender cases are special because tend to be repeat offenders iii. What about just violence (they know person gets drunk and is a violent/mean drunk)? It is possible to find a duty. However the policy is to promote marriage dont want people to have to act as police to their spouse. iv. One bite rule regarding dogs (and childrens acts to some extent) if they bite once, you are on risk that they may do it again. Until they bite, you do not have a duty to warnnot foreseeable, reasonable. 1. However depends on circumstances sometimes one bite by dog or one kick by child is not enough to impose a duty to warn v. Who else are we concerned about? 1. Employers liable if in scope of the employment (vicarious liability always on the exam) 2. Parents and teenagers Duty to make sure certain things dont happen reasonable person standard 3. Jailers duty Jailer has duty to act reasonable in taking care of prisoner and third parties. E.g. jailer could be responsible for suicide of inmate, escape and harm done to third party, etc. 4. Businesses a. Posecai v. Walmart

i. Involves a balancing test to determine whether business owes a duty of care to protect its customers from criminal acts of third parties. ii. Balancing test (important!!) Balances expected loss (e.g. higher where crime is higher). More precautions necessary in higher crime areas. iii. The greater the foreseeability and gravity of the risk of harm, the greater the duty of care that will be imposed on the business. iv. Like apartment rape case (Viscii case) where apartment was held liable within the scope of the risk (lack of locks, lighting). v. Need to consider comparative fault would even need to allocate to phantom actor as well 5. Duty of spouse to refrain from sexual contact or warn of symptoms a. Immunity of spouse evaporates upon divorce 6. Is duty owed to a roommate that has threatened suicide? a. Basic rule is that if they are threatening suicide, you shouldnt give them a gun. Difficult case because of risk of harm on self if you interfere. b. The Employment Relationship i. When you see an employment relationship, you should think about three things: 1. Vicarious liability employer duty to third party through employee liable if scope of employment 2. Workers compensation duty that employers owe to employees for safe conditions 3. Duty to third party from employers directly not vicarious liability ii. E.g. Workers are negligent in where they place a ladder. Third party and coworker are injured. First, Coworker would get workers compensation. Second, involves action by third person. Third person is going to have action against employee under regular negligence. If employee is found to be negligent, then company can be held vicariously liable. Third, could find company liable outside of vicarious liability. They hired him and he wasnt capable, they didnt train him properly, didnt provide proper equip, etc. (e.g. if childrens hospital hires a known sex offender) iii. Can have both vicarious liability and direct third party duty of employer c. Duty to Rescuers i. Need to distinguish between the duty to rescue and the duty owed to a rescuer by the negligent party ii. Scope if different depending on whether the rescuer is an amateur or a professional rescuer iii. Amateur rescuer is usually within the scope of the risks of the negligent defendants conduct iv. Generally, original party will be held responsible for mere negligence of rescuer matter of policy

1. e.g. party is injured in an auto accident, negligent action of medical professional may cause more harm. Original tortfeasor is held responsible for the entire damages. Question of allocation ??? 2. If a party is engage in a rescue, is damaged, and rescuers action was reasonable, then original tortfeasor is held responsible for both damages to original victim and the rescuer danger invites rescue a. If grossly negligent rescue may not have been in the original tortfeasors scope of duty 3. If you are a rescuer and an off duty doctor heightens your reasonable person standard v. Gann v. Matthews 1. Facts: a. Officer is trying to get person into handcuffs. b. He did not resist arrest, but was drunk so he swayed when she went to put move on him 2. Reasoning: a. Professional Rescue Doctrine if the injury is within the scope of the risk of employment, then there will not be any recovery i. A professional rescuer who is injured in the performance of his duties, assumes the risk of such an injury and is not entitled to damages. ii. However, professional rescuers do not assume the risk of all injury without recourse 1. Independent risks: May recover for an injury caused by risk that is independent of the emergency of the problem he has assumed the risk to remedy 2. Dependant risks: usually bar recovery unless: a. Risks encountered are so extraordinary or b. Conduct of defendant is so blameworthy that recovery should be allowed as deterrence b. Court makes a point to show that he wasnt resisting arrest (distinguishes from Worley case where recovery was allowed because of resist) so the risk wasnt extraordinary/blameworthybut Church thinks that even if he was resisting arrest that should be foreseeable by a police officer (within scope of the duty) c. Professionals are treated differently than amateurs because we want to allow amateurs greater recovery to encourage them 3. Holding:

a. In this case, she was barred from recovery this was a dependent risk and neither of the exceptions was met d. Duty to Rescue i. In America there is no duty to rescue because person may create more risk ii. However this principle is harsh, so there are exceptions: 1. Where you engage in some activity that creates need for rescue, you have a duty to rescue (even if not negligent) a. e.g. person is injured by dangerous horse you have nonnegligently stalled 2. Where your presence may deter others from rescuing a. e.g. if you sit there with a rescue donut and someone drives by, but thinks that you will rescue the drowning person 3. Where you undertake a rescue, you have a duty to complete that rescue as a reasonable person would do. a. e.g. if you botch a rescue and do so in a way that is not reasonable, than you can be held liable b. If you hand over the rescue, it is fine as long as handing it over is reasonable e. Grossly Negligent Actors i. Grossly negligent actors conduct may bar or reduce his recovery from a defendant. ii. Does it break the chain of causation between the original actor and a third person injured by a combination of the original act and the intervening grossly negligent actor? 1. General rule is that an actors conduct may be so grossly negligent that it is not foreseeable to a negligent actor whose fault coalesces with the grossly negligent conduct to cause harm. 2. In LA, court may hold that the grossly negligent conduct is not within the scope of the risks created by the negligent actor. f. Providers of Alcohol i. In many states, there are dram-shop statutes that impose liability on sellers strict liability is imposed upon the seller of intoxicating liquors irrespective of negligence ii. 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 for any harm caused to intoxicated person himself or third party 3. Limitation of liability does not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

4. Purpose of this statute: Dont want to impose liability drinking is the proximate cause, not the servingunless there is an affirmative act 5. Problem: no mention of minors iii. Berg v. Zummo 1. Facts: a. Boot serves alcohol to a minor Zummo b. Zummo beats Berg up and then hits him with his car after leaving the Boot 2. Reasoning: a. Usually would say that if you go out and beat someone up, that is not within the scope of the risk; however the court says that it is foreseeable that drunk kids would beat others up. b. Two issues: Whether Boot is responsible? Second, is whether punitive damages can be awarded (in LA, punitive damages are only by statute)? c. First issue responsibility/liability of Boot for damages i. Court found that the Boot did have a duty not to sell to minors it is illegal ii. Also, court found that risk that caused the accident was within the scope of the duty of the Boot reasonable that an intoxicated minor would beat someone up and hit them with a car d. Second issue whether punitive damages can be allowed (LA article 2315.4) i. In LA, punitive damages are only allowed by statute ii. Statute is interpreted narrowly if legis. wanted it broader they would have done so. iii. Statute has two elements: 1. Has to be injuries caused while operating a motor vehicle 2. Needs to be alcohol related individual intoxicated iv. Statute only applies to intoxication of the actor no mention of alcohol provider v. The statute does apply to Berg (the kid that was harmed) in that he was injured by motor vehicle. Thus punitive damages could be applied to injury caused by the vehicle, but not by getting beaten up. vi. Elements are met regarding the driver (however Church doesnt really think that statute was meant to cover this type of incidentwhere beating first). vii. Important idea is that statute does not apply to the Boot bar this is straightforward e. 2800.1 Proximate Cause issue

i. Court spends a lot of time on Thrasher case shows that statute really just codifies the established common law merely serving alcohol is not the proximate causedrinking is f. 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. Takes you outside the scope of the statute iii. Affirmative act troubles Church omissions can cause just as many problems g. In this case, we are dealing with an underage so statute does not apply but we focus on it because the trial court spent so much time on it h. Court gets rid of the affirmative act requirement for minors i. For minors, the serving of alcohol itself is really an affirmative act. Thus court uses as straightforward negligence (duty/risk) approach: i. Hand formula loss and probability versus the burden of taking precaution 3. Holding: a. 2800.1 doesnt apply statute says nothing about minors b. In this case, punitive damages dont apply statute is to punish drunk drivers, not servers. i. Punitive damages cannot be assessed against the vendor statute does not apply c. Court gets rid of affirmative act requirement for minors selling alcohol to minors itself is an affirmative act d. To determine liability of vendor who sells or serves to minor, traditional duty/risk analysis is used (and no additional affirmative act is required) e. Under traditional duty/risk, Boot was liable 4. Notes: a. Cases also exist that involve the duty that universities owe to students 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. However if location off campus, then probably no duty. b. Same duty risk analysis if it is a minor providing a minor g. Unborn Children

i. Parents may recover the damages they sustain when tortfeasor fault causes a prenatal injury to a fetus who is subsequently born dead because of the injury ii. Cox v. Gaylord Container Corp. 1. Woman messing around at work on a fork-lift while she was pregnant 2. What is the mothers right to recover from the employer? Workers compensation. She would probably have some right. 3. What about the unborn child? Could recover from mother (after immunity runs out when reaches age of majority). But if it can recover from mother, what about vicarious liability of employer? a. Court found that employer could not be held vicariously liable because of federal requirement that woman be able to say in the same position unless she asked to move. i. Employer had no choicecould not have prevented that act that caused the damage h. Mental Anguish i. Introduction 1. When a plaintiff is able to show physical injury, courts typically allow the injured party to recover mental anguish associated with the injury these damages are considered parasitic 2. However, this section deals with mental anguish when there is no physical injury thus separate tort Negligent Infliction of Emotional Distress (NIED) 3. Courts distinguish between negligent conduct directed at the plaintiff from cases where conduct is directed at a third party 4. Two divisions: a. Contact i. Actual contact ii. Within the zone of danger (risk of physical contact) LA has essentially eliminated the zone of danger requirement b. Severity i. Expert Testimony (really hard to win a case where there is no physical injury without expert testimony ii. Physical Symptom Requirement (needed some physical consequence in response to event outward manifestation) iii. Expected dont have to have an outer manifestation, we will give it where it is expected by a normal/reasonable person 5. Emotional Distress is very easily faked, thus reluctant when there is no physical injury 6. In many jurisdictions, there has been a yoyo -- moving away from above rules toward relaxation and back again because too many people recovering

ii. Conduct Directed at Third Parties 1. Article 2315.6 on page 241!!! a. Is the statute exclusive? Is this the only way to recover for NIED? No, it applies to a relatively narrow set of bystander cases where there is no physical injury. b. Article is strict c. The content: i. Need to be present or come across the event soon thereafter (no change in situation has occurred) timing requirements ii. Statute limits the parties dont want randoms to be able to recover even if they are present iii. Mental anguish must be severe, debilitating, and foreseeable 2. Trahan v. McManus a. Facts: i. This case is a medical malpractice case individual was negligently misdiagnosed and died seven hours later at home in front of parents b. Reasoning: i. References LeJeun case where husband was in coma and wife comes in and sees nurse cleaning up blood from where rats had gnawed on him. 1. She is related as needed 2. Seems to meet proximity requirement 3. Anguish is foreseeable 4. She would have to prove severity Main idea is that the statute is basically a codification of the LeJeun case. ii. One issue: does this action fall under the Medical Malpractice Act. 1. Fundamental argument is that the parents were not patients iii. Court says that even claims by bystanders falls under Medical Malpractice Act iv. Second issue: Whether bystander damages are recoverable in this instance where the event observed that allegedly caused anguish was negligent omission of the doctor v. Trial court found for doctor in that son would have died regardless of negligence, thus there would also be no wrongful death suit because of this causation question. Instead it would be argued as a lost chance case

vi. Appeal court reversed (so there would be wrongful death to the wife and kids, but not the parentsthus they are going for NIED). vii. Clearly parents fall within the category of person of the statute, however, the court decides that misdiagnosis is not a traumatic event not what the statute envisions. viii. Need for temporal proximity between tortious event, victims observable harm, and plaintiffs emotional distress arising from the awareness of the harm caused by the event immediate shock of witnessing a traumatic event which caused immediate emotional harm that is severe and apparent ix. Claimant must realize at the time he witnesses, that injuries are serious x. 2315.6 Must fit under the statute. Elements: 1. Closely, well-defined relationship (list in statute) 2. Be at scene or come upon shortly thereafter (no change in situation) very strict, timing is very important 3. Action has to be the type that a normal person would suffer distress 4. Distress must be severe and debilitating (may need expert testimony) xi. Action in this case was misdiagnosis this negligence event itself was not the traumatice kind that the statute was meant to cover c. Holding: i. Court finds that Medical Malpractice Act does apply Doesnt matter if third parties as long as the mental anguish arises from the injury to or death of a patient caused by the negligence of a qualified health care provider. Claimant need not be the direct patient. ii. Does not fall under 2315.6 because it is not the kind of traumatic event that the statute deals with. This event happened over time, which does not work. 1. Negligent discharge was not an emotionally shocking event d. Notes: i. Common law rationale for limiting recovery if that absent impact or near miss, the defendant could not have reasonably anticipated any harm to the plaintiff

ii. Claimant must be contemporaneously aware that the event has caused harm to the direct victim iii. Recovery of damages for mental anguish has almost never been extended to one who observed the victims suffering at a place other than where the injury-causing even occurred or at a time not closely connected to the event (practice test would be an example) iv. Two different areas where we allow recovery: 1. Where conduct is directed at actual victim (next case) -- corpse cases, public utility cases, bill collection, etc. a. This is an exception to 2315.6 b. 2315.6 doesnt cover mishandling of corpses because corpses are not alive 2. Where conduct is directed at third party (statute 2315.6 governs) iii. Conduct Directed at Mental Anguish Victim 1. General rule is that if the defendants conduct is merely negligent and causes only mental disturbance without physical injury, then defendant is not liable 2. There are exceptions of when recovery is allowed outside of the general rule pg. 252 a. Negligent transmission of a message, especially one announcing death b. Mishandling of corpses c. Failure to install, maintain, repair consumer products d. Failure to take photographs or develop film e. Negligent damage to ones property while the plaintiffs were present and saw their property damaged f. Cases allowing damages for fright or nervous shock, where the plaintiff was actually in great fear for his personal safety 3. Moresi v. State Department of Wildlife and Fisheries a. Notes: i. Direct Participant Exception Bus driver violated statute because he failed to put stop sign out. Driver of second vehicle is trying to recover from school for bus drivers negligence under emotional distress claim. 1. Woman driver was a direct participant in the incidentnot just a normal bystander 2. Another way to interpret: violation of statutory duty, so damages can be extended in this case doesnt really make sense to Church

3. Either way, seems to be an exception to 2315.6 (Therefore there are two exceptions direct victims as in Moresi and direct participant, not recovering as bystander? 4. Key is determining who is a bystander and who is a direct participant e.g. skating with friend that is hit by a car and experiences a near miss is not good enough to be a direct participant. ii. Ways you can recover in Exposure Only Cases: 1. Fear of Cases a. Where you dont contract the disease, you can recover for emotional distress i. Need actual presence of the disease policy decision to limit claims ii. Need a pathway b. Needs to be an extreme risk c. Fear of may be limited in time 2. Medical Monitoring a. E.g. exposure to asbestos, and thus need testing 3. Increased Risk hardly anybody gives this a. If you dont have the disease, you are not going to get this i. Misrepresentation i. Falls into category of torts, but includes some contracts issues as well ii. Barrie v. V.P. Exterminators, Inc. 1. Facts: a. This case deals with negligent misrepresentation much harder than intentional misrepresentation (fraud) b. Inspector says there are no termites, but there really were negligent inspection usually statutory duty to give inspection certificate of termite inspection c. Wasnt a contract party was not in privity no relationship between termite inspectors ad new owners (Barries) 2. Issue: Whether duty runs to subsequent purchasers? (This is why we have certificates for benefit of purchasers) 3. Reasoning: a. In states that recognize a tort duty in the absence of privity, three standards can be chosen from: i. Akin to Privity View: Extends liability only where there is a relationship where defendant is atune to the third party existence. Basically the only reason

that the person is not included is because of a technicality. Need to be aware of the third party and know that the contract is there to benefit them. Restrictive minority view. ii. Foreseeability View: Knew or should have know rule. Is this case, the exterminators knew that realtor would sell to the third party. Allows recovery to third parties to the extent that damages incurred by non-clients are reasonably foreseeable. Dispenses with privity notions altogether. iii. Restatement (2d) of Torts View: This view is very similar to that of foreseeability. This rule just seems to narrow the group. Majority rule. Misinformer needs only know its client intends to use the inaccurate information to influence a particular business transaction. Not required that plaintiff be identified or known to the misinformer b. LA doesnt adopt any of them. Decide to wait and see what each case presents (common law approach) if he had to guess he would say they would take foreseeability approach c. However, LA does allow recovery in tort for purely economic loss caused by negligent misrepresentation where privity of contract is absent d. Duty/risk is used in this case but similar to Restatement view 4. Holding: a. Termite inspectors had a duty and breached it. 5. Notes: a. Elements of a claim of negligent misrepresentation: i. Existence of a legal duty on the part of the defendant to supply correct information or to refrain from supplying incorrect information ii. Breach of that duty, and iii. Damages caused to the plaintiff as a result of the breach b. Most times is applied when the defendant had a pecuniary interest (ran business) j. Negligent Hiring, Training, and Supervision i. Roberts v. Benoit 1. Facts: a. Off duty police officer (actually a cook) who gets drunk and shoots someone. b. He was labeled a deputy in order to get higher pay c. Training was 8 hours. d. Encouraged to carry gun, but not required

2. Reasoning: a. Fundamental problem he shouldnt have carried a gun associated with law enforcement b. Negligence here is promotion to a position where you could have a gun training is not really the main problem c. Case of negligent hiring versus training promotion was the main problem (of course training didnt help) d. Question regarding actual cause he had another gun with him anyway thus hard to say that job promotion was the but for cause e. Also, he was drunk and not motivated by any job concern f. The employer received no benefit from the meeting from which the wrongful act occurred g. Basically uses a duty/risk analysis i. Found that defendants (negligent hiring) action were the but for cause Church disagrees ii. There was a duty of the employer 1. How do you define Fotis duty in this case? a. Reasonable sheriff. He would adequately train, not promote by title simply for monetary differences b. Custom c. Negligence per se statutes regarding training d. Hand formula expected loss is much higher than burden 2. Obvious breach of traditional duty iii. Scope of the risk 1. Ease of association was lacking a. Totally personal motivation b. No benefit to owner 2. Foreseeability of such activity by employee was lacking h. There was negligent hiring, but injury was not within the scope of the risk. More training may not have even helped in this case i. This seems to be a proximate cause analysis v. duty/risk j. Policy factors Church thinks liability should be imposed in this casedoesnt think floodgates would be opened and thinks all policy factors are met (e.g. it is foreseeable that deputy would be negligent when only 8 hours of training are given). i. However proximate cause is not the real question it is a question of actual cause 3. Holding:

a. Not within the course and scope of employment nor motivated by the job, thus no vicarious liability also, there was negligent hiringbut injury was not within the scope of the risk thus no liability under negligent hiring 4. Notes: a. When an employment relationship is mentioned, need to talk about: i. Workers compensation ii. Vicarious liability iii. Negligent hiring, training k. Negligent Entrustment i. Analyzed under same theory as negligent hiring except parties in different situation ii. Joseph v. Dickerson 1. Facts: a. Christina (daughter) was taking g-ma to the doctor. Mother had asked the daughter to take her. b. Christina was 19, had drivers license, and no negative driving record. c. Cant really say whether Christina was negligent or not. d. Daughter is not insured and is not included under mothers policy (Mom signed form excluding daughter from policy) e. Key is that they have to find mom responsible in some way. 2. Reasoning: a. Cant use vicarious liability because you have to have underlying negligence for this to apply (proof of negligence by Christina is lacking here not negligence per se that she drove without insurance because that has nothing to do with her ability to drive) also Christina is not a minor b. Need to turn to employee/employer type relationship mission theory (two purposes: establish relationship and course and scope). Does this theory apply in this case? i. No need negligence before you can impute anything c. Therefore in this case we are concerned with mothers own negligence. Theory of negligent entrustment. 3. Issue: Was Mother liable under negligent entrustment? 4. Holding: No. a. No vicarious liability because Christina is not a minor, no negligence was proven, and action was gratuitously performed (man point is that there was no underlying negligence). b. No direct negligence of mother. Duty would encompass if Judith knew that Christina was a bad driver, had a record, no license, etc. Thus, Mother did not breach duty Christina was capable.

c. Straightforward negligence case 5. Notes: Hunting case (Watson) with boy Shane is a good example of negligent entrustment l. Subsequent Injury i. Involves multiple accidents ii. Some original negligence results in an injury followed by negligent treatment which results in exacerbation of injury iii. Question: Who is responsible for what? Basically we decide what the original party is responsible for. iv. Hinges on foreseeability. v. Strong rule of thumb: mere negligent treatment is foreseeable. Danger invites rescuethus foreseeability. vi. If it is gross negligence, then it may be that we will separate and not make the tort feasor responsible for the negligent treatment vii. While negligent treatment is within the scope of the risk of the original negligenceallocation of damages is still an issue and must be distributed to both parties (comparative fault is different because comparative fault deals with allocation of fault) viii. Only separate the two instances if there is gross negligence thus becomes superceding cause. Original tortfeasor is still responsible for injury they created, but not the subsequent injury (similar to second accident cases) ix. Rule: Joint tortfeasors shall not be responsible for more than his degree of fault CHAPTER 7 GENERAL DEFENSES A. Victim Misconduct a. Contributory Negligence i. The circumstances in which victim conduct bars or reduces recovery include: 1. Victims own unreasonably risky conduct (contributory negligence, assumption of risk and failure to mitigate) or 2. His agreement in advance that the other actor need not protect the victim from certain harm (waiver) or 3. The failure to timely pursue the claim (prescription and preemption ii. Contributory negligence bars recovery of plaintiff because of their own negligence iii. Comparative fault works to reduce plaintiffs recovery for their own fault iv. Allocation of fault allocating among the various defendants responsible only for fault allocated to them v. Comparative fault has been adopted by the majority of jurisdictions vi. A few cases that used to be contributory negligence are still no recovery called no duty cases e.g. baseball park cases vii. Li v. Yellow Cab

1. Negligence equivalent to consent 2. Administration of rule, fact finding, last clear chance, willful misconduct, etc. difficulties of comparative fault doctrine are not insurmountable. 3. Assumption of the risk considered to fall under comparative fault doctrine now in those cares that still exist that used to be termed assumption of riskit is said that there is simply no duty e.g. baseball game. In this case, the risk is not within the scope of the duty 4. Last clear chance doctrine peculiar and very harsh. Some doctrines were developed saying that plaintiffs conduct is a complete bar to recovery unless the defendant had the last clear chance to avoid the harm. a. Means that there was some fault on the part of the plaintiffbut the defendant was more responsible so recovery should not be barred b. Doesnt exist anymore now a factor when considering allocation when doing comparative fault 5. Pure comparative fault theory both the court in this case and LA have adopted this. a. Definition apportions liability in direct proportion to fault in all cases b. Article 2323 see page 288 i. Statute should in theory be the defendants defense regarding plaintiffs fault in reducing recovery; however the statute actually discusses allocation among defendants including the plaintiffs fault as well ii. We should know that comparative fault (deals solely with fault of plaintiff in reducing their own recovery) and allocation between defendants should be distinguished iii. Also says that you need an empty chare for absent parties remaining parties can only be responsible for their own percentage of fault thus plaintiff will not recover 100% iv. Also says that if the victim is negligent, but the other party is intentional, then the victims recovery shall not be reduced 6. Some states have a modified theory where the person that had the most fault cannot recover but the other party can viii. Dumas v. State 1. Facts: a. Dumas was riding a bike, hit a pothole, fell, and died later that day

b. Wife and children sue state for wrongful death (hospital not a party) c. Situation where there is original negligence (by state) and then negligent treatment (by hospital). 2. 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. Jury is given free reign to decide percentages. Basically turning duty question over to the jury.Could argue to jury that certain guidelines should be used: i. How far did each party deviate from standard of care? ii. Look at statistical evidence (maybe indicating gross negligence by hospital thus could separate injuries and make each party solely liable for their own injury) normally people dont die from this sort of injury (lacerated head) d. Solidary liability and joint and severable liability are the same thing have been eliminated in LA 3. Holding: a. Both hospital and state need to be allocated fault (even though hospital is not a party to lawsuit) 4. Notes: a. Regardless of theory (strict, absolute, negligence) fault with be allocated. One exception is vicarious liability. b. With intentional tort, intentional tortfeasor may be responsible for the plaintiff share of the fault, but it is still split up. This difference with intentional torts doesnt affect vicarious liability. i. 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 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. Contributorily negligent trespasser is barred from recovery against a merely negligent landowner ix. Watson v. State Farm 1. Facts: a. Earl Creel gets a shotgun for 12 year old son Shane. b. Shane was given little to no training (had only fired it twice) c. Shane is placed on the hunting land all by himself d. Watson invited Creel to his property. e. Watson gets shot, but he knew hunters were there and declined to wear hunters orange when it was offered f. Jury decides that Watson is 100% at fault i. Essentially contributory negligencescary!!! 2. Reasoning: a. Watson was at fault thus comparative fault b. What about Shane? i. Reasonable 12 year old standard (like age and development)however could argue an adult standard because of the activity ii. Reasonable 12 year old should know to look to see what you are firing at. iii. He had a duty and breached itthus negligent as well. iv. Definitely within the scope of the risk v. Was negligence a but for cause? Yes. c. What about Earl? i. Definitely negligent. ii. Reasonable parent standard; Parental responsibility standard ??? 1. Should have trained his son on how to use a gun 2. He had a duty and breached it. 3. Also there seems to be no question that the risk falls within the scope of the duty. 4. Also a but for cause but for the failure to adequately train Shane, would the injury have occurred? Nomore probably than not the injury would not have occurred. At minimum it was a substantial factor d. All three peoples negligences are but for causes i. Point: Jury confused causation with some of the other elements ii. You can have more than one but for cause as well as more than one proximate cause.

iii. You can also have an injury that is within the scope of the risk of many parties e. Court says that it is impossible that Shane should bear no responsibility. Somebody how has control of the firearm has a heightened duty either Shane or Earl f. Court doesnt agree with the jury they allocate a new percentage of fault i. Unique in LA that appellate court can allocate percentages instead of remanding to trial court g. **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. i. Whether the conduct resulted from inadvertence or involved an awareness of the danger ii. How great a risk was created by the conduct iii. The significance of what was sought by the conduct iv. The capacities of the actor, whether superior or inferior, and v. Any extenuating circumstances which might require the actor to proceed in haste, without proper though h. In this case, 1) Watson was not inadvertenthe knew. 2) Also, there is a higher risk of firearmswhich Watson also knew. 3. Holding: a. Fault reallocated 20% Watson, 40% Shane, 40% Earl. i. However, Shanes mom is who would be vicariously liable for Shane because he is in her custodybut she is not a party to the lawsuitso most likely would not recover that 40%. If Earl and mother were still married or Shane lived with Earl, Earl would be vicariously liable for Shanes percentage b. Assumption of Risk i. Murray v. Ramada Inns, Inc. 1. Facts: a. Ramada Inn was negligent no diving sign and no lifeguard b. Person dove into shallow end and suffered a head injury 2. Reasoning: a. Assumption of risk is 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 waiver (waivers are limited in LA and most other states cannot waive responsibility for personal injuriescan only waive economic damages and a few others) ii. Implied primary nothing oral or written, but is implied in circumstances. Today we would say no duty. A reasonable defendant would assume that the plaintiff would know and take adequate care of themselves. Conclude that it is not within the scope of the duty (e.g. baseball game) iii. Majority of cases fall into the implied secondary cases which go to comparative fault c. We do not talk about implied assumption of risk basically we ask whether there is a duty, and if there is then comparative fault if negligence on both sides. d. Whether there was a duty should not hinge on the knowledge of this particular plaintiff it should be a reasonable plaintiff. As a defendant, you have a duty to protect the average person. 3. Holding: a. There was a duty on both sidescomparative fault (old implied secondary). b. Could argue that Ramada did not have a dutybut that is not what happened ii. Pitre v. Louisiana Tech 1. Facts: a. College student went sledding in parking lot. No protection was around the light poles. b. Kids sled using garbage cans lids and went down hill into backwards head first. c. Hit a light pole and college student got paralyzed d. School had sent out a memo encouraging sledding, but said to be cautious (not sled in street) 2. Reasoning: a. Example of the old implied primary case baseball park case, where risk is so obvious that there is no duty b. Court does a large hand formula and found that school didnt have a duty to protect from this risk risk was too obvious that reasonable care would have notified victim (no duty for open and obvious risks doctrine) c. Policy consideration: school shouldnt be in position to insure in this case

d. Cost to prevent would have been enormous as compared to the loss and very small probability hand formula e. Involves balancing the utility of the light pole with the risk associated 3. Holding: a. No duty obvious and apparent risk b. Represents a no-duty case called no duty for open and obvious risk doctrine (used to be implied primary) 4. Note: Good example of how to draft an answer on an exam duty/risk analysis c. Waiver i. A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendants negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy ii. Wolf v. Ford 1. Facts: a. Woman is suing an investment firm because of negligence, but there is an exculpatory clause that waives claims against the firm. Involves a contract. 2. Reasoning: a. Lists three instances where public interest will not permit an exculpatory clause in a contract grouped into three general exceptions: i. Not permitted to excuse liability for intentional harms or for more extreme forms of negligence (gross, wanton, reckless) ii. Contract cannot be product of grossly unequal bargaining power iii. In transactions affecting the public interest e.g. public utilities, common carriers, innkeepers, etc. b. Tunkl court developed a six-factor test to be used as a rough outline to help determine what type of transaction an exculpatory clause will be held invalid: i. Concerns a business of a type generally thought suitable for public regulation ii. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public iii. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards iv. As a result of the essential nature of the service, in the economic setting of the transaction, the party

invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services v. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence vi. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents c. Note: Adhesion contracts are not always unfair d. Court doesnt adopt the six factor test but say that it can be used as a guide. e. Instead they adopt a open-ended test: whether the exculpatory clause goes against public policy which is determined in a case by case basis (lots of freedom) f. This case is not a good case clause just relieves the employees from simple negligence investing money is risk. i. If you had a clause that provides exculpation for gross negligence, then it would probably not have been done with equal bargaining power iii. Wolf case raises a factor based analysis, but in LA we have a specific statute 2004 on page 330. 1. In LA (2004 statute), you cant exculpate yourself from intentional or gross negligence. Also, cant limit liability for physical injury which is what Ramirez deals with 2. Thus, why do carnivals say they are not responsible for physical injuries since it is not valid? Can be relevant regarding comparative fault because person was aware of the riskalso limits litigationputs people on warning of the risks iv. Ramirez v. Fair Grounds Corp. 1. Facts: a. Negligence was lack of hand rails to prevent people from falling off of loft b. Language of clause says that Fair Grounds will not be responsible for any risks including death, injury, etc. c. Clause mentions an indemnity clause where one party agrees to pay the damages of the other party that they have to pay to a third party (e.g. insurance) d. Fairgrounds clause names the applicant (Ramirez here) as the indemnifier. 2. Reasoning: a. Indemnity clause doesnt work here there is no third party

b. Not a true indemnity clause if there was a third party involved then it would be finebut in this case the Fairgrounds is trying to get the victim to indemnify for damages that they have to pay to the victim. c. Main idea of this case is that clause is null and void that tries to limit liability regarding personal injury. Clause is deemed to not exist. d. What if it was for monetary damages? Is the clause completely removed since it dealt with physical injury or do you keep the parts that are valid and strike the rest? i. 2004 is strict you get rid of the whole thing if you run the risk of including things excluded under 2004. ii. Dont get to keep things that benefit you when you went against public policy d. Mitigation i. Mitigation is how you handle the damages once the injury occurs. Victim has a duty to take care of injuries and not just let them worsen. ii. Basically you have a duty to mitigate damages as a reasonably prudent person not just sit on your butt need to try and lessen/control injury iii. Mitigation and comparative fault are different one after injury, one before 1. Timing is what separates mitigation from comparative fault for the most part iv. Pre-Accident Conduct 1. Seat Belt Statute (pg. 332 is the language E is pertinent section) a. What is failure to wear seatbelts? Church thinks it should not be mitigationshould be comparative fault (because it really deals with the prevention of risks) b. This provision is a public policy issued by legislation we adopted statute requiring seatbelts in order to keep getting funding from federal government straight public policy c. Contradictory statute because it requires you to wear a seatbelt, but then says that a failure to do so will not mitigate damages. d. This statute doesnt fall under comparative fault either. 2. Safety Helmet Statute (pg. 332) a. Church doesnt agree with this statute either doesnt account for the damage to the other party (seeing brain splattered on the pavement). There is an external benefit to wearing helmets. b. He thinks that this goes under comparative fault again and not really mitigation it is pre- accident conduct, not post which is usually what mitigation is. v. Post-Accident Conduct 1. Jacobs v. New Orleans Public Service

a. Pg. 333 talks about guidelines for mitigation: i. Accident victim has a duty to exercise reasonable diligence and ordinary care to minimize his damages after the injury has been inflicted ii. Need not make extraordinary or impractical efforts iii. Recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery iv. Expense and inconvenience of treatment are also considerations in determining reasonableness of persons refusal to submit to treatment v. An unreasonable refusal of medical treatment which does not aggravate his injury will not restrict a victims recovery b. Failure to mitigate has to be where there is some causation. c. Mitigation has to be something that would lessen the impact. d. Burden is on the plaintiff different than comparative fault??? Is this right see page 333 it says burden is on the tortfeasor in this case to show unreasonableness of refusal e. If you show that there was a failure to mitigate, then all the damages after the injury are attributed to the plaintiff f. Failure to mitigate will only limit recovery of damages you failed to mitigate doesnt completely bar recovery of initial injury e. Stale Claims i. Laches and Statutes of Limitations 1. Need to distinguish between peremption and prescription doctrines both set a time limit 2. In LA, prescription is usually 1 year from date of injury or in some cases you can extend this through contra non valentum to one year after the injury was discovered. 3. In LA, peremption is typically three years a. For medical malpractice and attorney malpractice b. Drop dead deadline cannot be extended c. Three years from date of negligencethats ityou cannot extend it. 4. Laches common law doctrine that we arent going to worry about ii. General Statutes of Limitations (Prescriptive Statutes) See page 334 for statutes 1. Notice that in 3496.1 and 9:2800.0 that we extend the statutory period because they deal with children. 2. Need to know that for a typical, run of the mill case that the 1 year prescription can be extended by contra non valentum

3. Med mal and legal mal have 1 year prescriptive periods that can be extended through contra non valentumbut only up to the 3 year peremption mark 4. Special rules for special circumstances e.g. childrenalso criminal acts iii. Suspension and Interruption of Prescription 1. Best way to interrupt the prescription period is to FILE SUIT!!! a. Biggest claims for legal mal. is failure to meet deadline clear wrong 2. Solidary obligors if you file suit against one, you meet the prescriptive period against all. Easiest to name all though. a. I thought we got rid of solidary liability in LA? We did treated as solidarily bound only for purposes of prescriptive period b. Hitch: If you beat the prescriptive period for one and not the others and the one you beat the deadline for is let go/dismissed you have not beat the prescriptive period against the others. i. However, if you didnt know or shouldnt have known that they were liable than you can maybe claim an extension of discovery period. Basically need to find another doctrine other than solidary liability for an extension (e.g. relation back in Corsey case) 3. Abandonment a. Most common type is failure to take a step in the lawsuit for three years. b. After dismissal for abandonment, the plaintiff is not precluded from refiling suit (dismissed without prejudice, thus res judica does not bar) interruption is considered never to have occurred if plaintiff abandons c. However, since the suit was abandoned, it is considered as not having been filed, so the successor suit will almost always be barred by prescription 4. Suspended prescription a. Period is suspended between spouses during marriage and parents and child while child is a minor 5. Corsey v. State Department of Corrections a. Facts: i. Incident on June 18, 1972 and filed on June 25, 1974. ii. One of the injuries was brain damage iii. Should have filed by June 18, 1973; however this case is argued to fall within contra non valentum b. Reasoning:

i. Four categories of contra non valentum (prevent prescription from running): 1. Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs actions 2. Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting 3. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action and 4. Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant (principle will not except the plaintiffs claim from running of prescription if his ignorance is attributable to his own willfulness or neglect) ii. This case was put under the discovery doctrine (4th situation recognized under contra non valentum) even though it could have fallen under the third situation as well iii. Negligence itself caused the brain damage iv. LA distinguishes between personal disabilities of the plaintiff mental incapacity (which do not prevent prescription from running) and an inability to bring suit for some cause foreign to the person of the plaintiff (which does suspend its running) 1. However here, the mental capacity was produced by the defendants own tort thus contra non can be applied v. Plaintiff cannot invoke contra non valentum merely because of physical illness at least when illness arises independently of any fault on the part of the defendant vi. Usually, the third area of contra non valentum applies to when the conduct of the defendant in preventing the plaintiffs pursuit of the claim was separate from the wrongful conduct giving rise to the claim itself (affirmative act) but if it does fall out of same activity it should definitely apply then the court says. vii. In this case, either the third or fourth area of contra non could be applied

c. Holding: i. Contra non valentum is applied and prescription is extended d. Notes: i. What if he had just been incapacitated (insane)? Not the same result. Presumably somebody would have been around to file for him. ii. The fourth type of contra non (knew or should have known equity provision) is only used in exceptions where needed e.g. latent diseases. iii. Contra non valentum cannot extend the peremptory period, but can extend prescription iv. Most important thing to remember is TO FILE!!! If it is a mistake and you withdraw immediately then you will not be sanctioned. 1. If you dismiss it (file and withdraw) you kill yourselfdont withdraw unless you know you should DO ADEQUATE RESEARCH so you dont get sanctioned when they find out it wasnt a good case 2. If you file an action just prior to the end of the prescription period and it wasnt right you have to look at relation back (easier to relate back for claims than for parties) iv. Latent diseases: 1. Suppose that you file or settle over injuries and after 1 year you discover you have another set of injuries? Arguably it is separate thus prescription has run. Usually we talk about claim-splitting in this case want parties to bring suit with all injuries included. 2. However there is a problem with latent diseases in this sense. With latent diseases: a. Either file early and risk low recovery because injuries are there completely or b. Choose to wait to file and may forfeit chance 3. As a result, there are relaxed requirements regarding claim splitting in this case 4. However, at what point should you reasonably know or should have known you had an action? You need to know there is a causal connection. Basically if you have a pretty good suspicion of causation than statutory period has probably begun (if doctor assures you it is unrelated, then period probably hasnt begun yet). v. Renfroe v. State 1. Facts: a. Accident on April 28, 1998 b. Action v. State filed on April 22, 1999

c. Action amended adding Jefferson and GNOEC on July 19, 1999 2. Reasoning: a. This wasnt a solidary obligor case because the State was dismissed (wasnt their road) b. Rule of solidary obligor is strict suit timely filed against one defendant does not interrupt prescription against other defendants not timely sued where the timely sued defendant is ultimately found not liable to plaintiffs no solidary obligation would exist c. They thus try to rely on fourth doctrine of contra non valentum that he reasonably should not have know d. Court found that this is something that should have been known. i. Lesson: Should file against anybody you thought could be liable wouldnt be sanctioned if State was dismissed because they didnt have time to do adequate research e. Thus lose out on statute of limitations unless they can prove doctrine of relation back: Action against Jefferson and GNOEC relates back to action against state. i. Difficult in this case doesnt meet the last three criteria listed below (virtually no relationship exists) ii. Criteria for determining whether relation back is allowed: 1. Amended claim must arise out of the same transaction or occurrence set forth in the original petition; 2. The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits; 3. The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; 4. The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed 3. Holding: Prescriptive period passed 4. Notes: a. When would doctrine of relation back apply?

i. Parent and subsidiary (depending on how much of company is owned) ii. Wrong family member b. Relation back of claims is much easier i. E.g. if you brought a claim against a child for negligence and he parent included under vicarious liabilityyou could add negligent entrustment because they are already on notice (same with employer/employee) vi. Statutes of Repose (Peremption) 1. Peremption is a drop dead deadline cannot be extended through contra non valentum 2. Statutes regarding med. mal. and legal mal. are on page 346-347 CHAPTER 11 VICARIOUS LIABILITY (Imputed Negligence) A. Generally a. Imposes liability upon one person for the fault of another b. Employer/employee c. Parent/child (above age of discernment) d. Partnership e. Members of joint venture f. Imputed contributory negligence plaintiffs recovery is reduced or barred if the fault would have been imputed had plaintiff been sued for the faulty actors conduct. E.g. employer is suing employee??? g. Imputation of liability need negligence to impute. Need to find negligence on part of employee in cases we will be dealing with B. Employer-Employee a. Generally i. Three requirements for employer to be vicariously liable, there must be: 1. An employer/employee relationship and 2. Tort committed by the employee in 3. Course and scope of the employees work with the employer ii. Tort can be intentional or negligent, but must be within course and scope of employment iii. Statutory source is 2320 iv. Two major issues: When is one and employee and When is the employee in the course and scope of his employment v. 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. If the employer also is liable, then there will be solidary liability for the employees fault

2. In addition to being vicariously liable for the torts of an employee in the course and scope of employment, the employer may be negligent in hiring, training, or retaining an employee. b. The Employment Relationship i. If you are not an employee, but you are performing work you are an independent contractor ii. Hickman v. Southern Pacific 1. Employment relationship: a. Termination if you are an independent contractor, there is a contract for a specified period of time or for given performancethus right to terminate at will would sound like an employee b. Right of control Right to control the specific mechanisms of the workright to control work specifics and means of production (tools) i. In an employment relationship, you would have input on decisions, supervise individual actions ii. If there is right to control, then it is probably an employment relationship c. Thus a few simple factors to look at would be: i. Right to terminate ii. Whose equipment is used? iii. Duration of employment specific task or time period or not? 2. Right to control v. Actual control a. Right to control refers to employment relationship b. Actual control deals more with course and scope 3. 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 4. 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 5. There are special rules/statutes to determine if a state is liable for actions of employees iii. 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, similar workers comp issue (limited recovery) Why is workers comp. limited??? maybe because of mere negligence??? e. If order to get out from workers comp restriction, Morgan would have to sue Worktec for vicarious liability of Hines 2. Reasoning: a. Worktec makes the borrowing doctrine argument the one master rule. Argument that Morgan should be under Goldin and not Worktec b. Court says that the one master rule doesnt make sense because of growth of temp agencies they rule that you can have two vicariously responsible employers c. Similar to General contractor relationship: i. GC (Building) SC (Plumber) Employee (Joe) 1. A third party gets hurt by Joe. 2. Both SC and GC can be held solidarily bound d. Two tests used to determine whether an employee is borrowed (they conflict in this case and are thus abandoned but in other cases they still applywe should use them, plus when used in this case they were evidence that there were two employers) i. Whose BusinessTest: which employers work was being performed at the time of the accident ii. Right of Control Test: Which employer had the right to control the specific acts of the employee at the time of the accident 3. Holding: a. Both are vicariously liable. 4. Notes: a. Morgan has no relationship with Worktec whatsoever, but what if we looked at it from Hines view if he had been hurt instead: i. Then there would be workers comp claim against both Goldin and Worktec (and another question of whether Hines could separately sue Morgan because he is not technically a co-employee) c. Course and Scope of Employment i. 2320 doesnt include language of course and scope, but it is impliedly read in ii. There is a mixing of workers comp. concepts and vicarious liability course and scope they are different.

1. WC is employers liability to own workers 2. VL is responsibility to third parties iii. Course and scope is very fact specific no good way to determine really iv. Factors: 1. Going to and coming from rule: Generally not within the course and scope, but need to look if person is on call, running errands for job, being paid for travel general rule is that you are not within course and scope until you clock in 2. Frolic and Detour: Person is operating within the course and scope, but in this particular case they were on a frolic and detour (go home to feed the dog) no precision at all v. Reed v. House of Dcor 1. Facts: a. There really was no employment relationship b. Two men owned a business and rented out the space above it to Williams c. Business was closing and they told Williams he had to leave. d. Williams asks a guy across the street (Reed) to help him move a fridge out of the apartment to the new business and the fridge fell on Reeds foothe sued for negligence of employee and vicarious liability of House of Dcor 2. Reasoning: a. Court is faced with an instance where they have to just accept that there was an employment relationship b. They then turn to course and scope and find that it wasnt within the course and scope. i. He was an occasional employee at best. ii. Fridge was being moved out of Williams personal residence iii. Landlord tenant relationship was personalnot business related c. Factors to determine course and scope (sounds a lot like factors of employment relationship, but these are more incident specific): i. Payment of wages by the employer ii. Employers power to control iii. Employees duty to perform the particular act iv. The time v. The place and purpose of the act in relation to service of the employer vi. The relationship between the employees act and the employers business vii. Benefits received by the employer from the act viii. Motivation of the employee for performing the act and

ix. The reasonable expectation of the employer that the employee would perform the act d. Determination of the course and scope is largely based on policy are the risks fairly attributable to the employeris it foreseeable? e. Course and scope in this case relates back to the fact that he was only an occasional employee 3. Holding: Not within course and scope no vicarious liability vi. Michaleski v. Western Preferred Casualty Company 1. Facts: a. Leger was a oil wellworker. b. In his trade and the custom of this business was for employees to stay in trailers on site and eat meals, etc. there as well. c. No food was provided, so men would travel offsite to get food, but were provided an allowance to do so. d. The hours worked were long and hard 12 hours shifts. e. Man was going off site to McDonalds after a 12 hour shift to eat and because of exhaustion, hit a man (Michaleski) f. He wasnt on the clock at this time. g. Michaleski is suing the employer for vicarious liability 2. Reasoning: a. There is no question of an employment relationship in this case b. This doesnt fall within the general rule regarding going to and coming from work because he was paid for travel expenses. c. Question of policy: Whether this is a type of risk that the business should be responsible forwhether business benefits and whether it is foreseeable that risk would happened. i. Found that business has reason to expect that employee would go and get food because of long hours and lack of food on the job an allowance to get food was given as well ii. This risk is foreseeable and is the type of risk that the employer should bear. iii. Foreseeability is important to the analysis d. Legers negligence was the result of exhaustion, a foreseeable consequence of a hard twelve hour day. Since the risk of harm could reasonably be attributed to the employers business in course and scope 3. Holding: a. Man was in course and scope and thus there was vicarious liability 4. Notes:

a. Vicarious liability is the last vestage of solidary liability b/w employer and employee b. On exam, you should also raise the issue of direct negligence of employer (should make sure food is around after a 12 hour shift instead of sending them out) c. 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. vii. Timmons v. Silman 1. Facts: a. Silman got into a car accident with Tilman, and Tilman is suing Silmans employer for vicarious liability b. Silman was running an errand for her lawyer boss in her own vehicle; however she decided to go on a personal errand after the work errand. She went to the post office for her boss (post office was located in one direction from her work) and then went to the bank (in other direction from work). Thus she had to pass her work to get from post office to bank. 2. Reasoning: a. Cases are very fact specific basically need to decide if this is something that can reasonably be attributed to employer b. If she always stopped at bank on personal errand and employer knows it, then it could be different c. 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. d. The closer you are to the place and the mission, the more likely it is to be within the course and scope e. Foreseeability of risk is also a factor in this case she went through an intersection that was extremely dangerous and that is where the accident occurred risk not foreseeable by employer f. You can still impose vicarious liability even if the employer says I will not accept any deviation from work all employees slack it is expected and foreseeable. g. Fundamental Question: is this risk that employer should bear? h. 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 3. Holding: She was not within the course and scope of her employment. She deviated too far from business mission (on a frolic and detour) viii. Richard v. Hall 1. Facts: a. Defendant is VP of SSI b. SSI paid $10,000 for a lease with Loch Leven (landowner leases to several parties) c. Loch Leven (landowner) SSI Hall (VP) Lease 2. Reasoning: a. Lease at Loch Leven was not a business development tool not used to promote business, networking etc. (Distinguished from Ermert case because Ermert had a track record of using hunting place for business purposes) b. Even though SSIs name is on the lease, they can still be found not liable name is on lease for tax purposes. c. Even if there was evidence that they intended to use for business purposes, that didnt matter because it hadnt been used for that up to this point. d. Therefore, high burden on plaintiff because they need to show that the lease is in companys name and that the lease is actually used for business purposes. e. 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 f. Question is whether the employees tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employers business, as compared with conduct motivated by purely personal considerations entirely extraneous to employers interest g. What about recreational use statute regarding immunity? i. Purpose of immunity statute is for people to allow others to use land want landowners immune. ii. If Loch Leven was the defendant they wouldnt be able to declare immunity because they get paid profitable enterpriseassumed duty iii. SSI wasnt charging employees so they are immune

iv. There is really no reason to talk about this immunity because there was no negligence found in the first place 3. Holding: SSI was not found to be vicariously liable. Therefore Hall is responsible (he could potentially recover from SSI if they had their own contract regarding reimbursementbut this agreement could still not be used as evidence of vicarious unless it was the practice to do for all employees) 4. Notes: a. Generally a parent corporation is not liable for the torts of its subsidiary; however the subsidiary may not operate as a separate corporation and the corporate veil may be pierced to impose liability upon the parent corporation or the shareholders i. Single business enterprise theory ii. Piercing the corporate veil theory iii. Mission of the owner theory generally an owner of a vehicle is not personally liable for damages by another person driving their automobile exceptions: 1. When driver is on a mission for the owner (This exception only applies if the owner has legal right to exercise control over the actions of the driver) 2. when driver is an agent or employee of the owner 3. owner himself is negligent in entrusting vehicle to incompetent driver iv. Basically all the theories ask the same question is this risk fairly attributable to this individual (owner)? b. Vicarious for intentional torts: How do you determine whether employer is responsible for intentional actions? Employment relationship, same course and scope questionpart of the mission of the employerfairly attributable to the employer i. Little bit of cutting back of liability thus same course and scope inquiry, but slightly different ii. Eg. Is bar bouncer even if action goes beyond mere battery it will still be under the employer. Unless of course the action is extremeat some point if it becomes a brawl it falls outside of course and scope iii. E.g. in a sports game, activity is usually within course and scope but it is factually specific

iv. Look at whether employees motivation was purely personal and it not then whether the specific activity which caused the harm was in furtherance of the employers interest c. If you have an employee suing an employee if it is negligence then it is under workers comp.if it is intentional than it would fall under vicarious liability d. Sexual assault and vicarious: People get uncomfortable with this area because courts basically substitute vicarious liability for where they should be using direct negligence (negligent hiring, etc.) d. Parent Child i. Article 2318 pg. 542 discusses parents vicarious liability over minors residing with them ii. The residency requirement has sometimes been interpreted as pretty much non-existent thus jointly liable iii. Note discusses how you have vicarious only when the child is with you the point is that they will not impose vicarious on both parents say if parents are divorced e. Imputed Contributory Negligence i. Doesnt really matter anymore because we allocate through comparative fault ii. Where it might matter is if you have an employer suing for damage of property of which their employee contributed to the damage iii. Subrogation??? CHAPTER 8 DAMAGES A. Generally a. Three types of damages: Nominal, compensatory, and punitive b. Nominal: where plaintiff establishes the invasion of a right but no real damages c. Compensatory: amount designed to place the plaintiff in the position she would have been in if the tort had never occurred d. Punitive: amount, in addition to compensatory damages, that is designed to punish and deter the defendant and others like her e. Tort victim may also go for unjust enrichment (looks at defendants gain as opposed to plaintiffs loss) or seek and injunction f. Twin goals: compensation (compensate victims) and deterrence (deter certain behavior) g. Theory is that compensatory award should equal the harm and punitive damages should be just enough to deter the defendants behavior h. In practicethese are very difficult to calculate basically there is wide discretion left to the jury and the district court i. Lost earnings is a problem area future life is uncertain. B. Personal Injury Damages a. Special Damages

i. Easy to calculate. Either must be specially pled or have a ready market value relative certainty however there are some uncertainties (loss of future wages) ii. E.g. past and future medical expenses, loss of earnings or earning capacity, loss of services iii. Folse v. Fakouri 1. Damages should be estimated on the injured persons ability to earn money, rather than what he actually earned before the injury. a. Theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily 2. If you make a choice to work at a place where there is a pay cut (law professor) they wont look at potential you would have in a private firm 3. When they look at potential it is usually for those cases where someone hasnt had the chance to do anything. If there is any certainty (already have a career) that should be used. 4. Projected earnings will change a great deal depending on where you are in your life. 5. 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. 6. With medical awards as long as medical treatment is related to the injurythe tortfeasor must pay for all costs including overtreatment or unnecessary treatment unless these were received in bad faith 7. Discounting: Damages are given in lump sumsso future wages have to be discounted. Goal is to give the amount of money that will yield the stream of income you would have had. a. Need to discount by some interest rate so that you do not get too much (invest and get more money than should have) b. There are some standards: expert witnesses are usually used in order to explain standards to jury. Statistics can be relied onbut there are some subjective determinations (very difficult with children) iv. Martinez v. U.S. Fidelity 1. Income taxes: Award is not taxable. However do you discount and give net salary (discounted for taxes) or give gross salary? Not sure. a. Should probably forget taxes and give the victim the benefit of the doubt. 2. Sometimes huge awards are justified if the tort is particularly aggregious b. General Damages i. Hard to calculate. Cannot be fixed with mathematical certainty. ii. Basically just give it to the jury to determine.

iii. iv. v. vi. vii.

1. Attorneys can do things like claim the bloody stump. In cases like this hedonic damages (lost enjoyment) would maybe be justified. 2. Day in the life videos can also be shown 3. Also can have a per diem argument suggests dollar amount to compensate for a day and then multiply that by the expected duration of victims life. Or can ask how much you would pay per minute to be without this pain. Either way the awards can be staggering. a. Not the best way to calculate. E.g. pain and suffering, mental anguish, and loss of enjoyment of life For example, with pain and suffering you know there is damage, but dont know how much to award thus jury or fact-finder (judge) determines. Prefer not to adopt bright line awards some peoples hands are worth more, etc. If causation is uncertain, then awards are probably lower and vice versa. Basically awards are adjusted by degree of negligence or of causation Hedonic damages are lost enjoyment damages. This is distinct from pain and suffering. 1. In LA, we dont know if we have separate hedonic damages section however some feel that it is included in pain and suffering. Fundamental question is whether you get a separate jury instruction. 2. A dead person cannot get hedonic damages (lost enjoyment). Lost earnings are different others can recover lost support. Dead person can recover for pain and suffering from the point of injury to the point of deathbut not after 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. If however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact make the repairs, damages are measured only by the difference between the value of the property before or after the harm. (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. Church in uncomfortable with this especially in environmental cleanup cases where cleanup is extremely expensive but the value of the property is not great. iv. You can get restoration if property is unique or there is some personal interest need proof to say that it is an heirloom. Home is usually treated

as having extra personal value thus restoration damages. We give more here, but it is limited. v. Reluctant to use subjective valuation if there is a market value it is used. vi. 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. American rule: parties pay own court costs b. Some jurisdictions say that loser pays for the winners court costs. Court costs are easily calculated. Court costs are usually awarded to the winner, but not attorney costs. c. 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. Courts are reluctant to award victim can recover economic damages related to injurycan get lost earnings. i. Assumption is that when lost earnings are awarded to victim that those that surround the party will benefit from this as well 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 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. Can you recover loss of consortium when trauma victim is defamed? Could, but higher level of proof regarding the causal

relationship between defamation and loss of relationship (e.g. depression) 2. Usually cant marry into a cause of action there are some cases that suggest you can though. Usually marriage has to exist prior to the injury. Not limited quite like wrongful death (limited by categories)but tries to approach similar guidelines. a. Juries would probably give a fiancee damages 3. Loss of consortium awards are disfavored because of threat of double counting 4. Trauma victims loss of consortium is actually included under hedonic damages (loss of enjoyment we dont want to double count) F. Punitive Damages a. In all jurisdictions something more than mere negligence is required thus causation requirement and willful and wanton requirement. Also, dont want to allow the plaintiff to have a windfall b. Purpose is to punish and deter (deterrence is efficiency related) c. In LA, punitive damages are only allowed when justified by statute drunk driving, sexual abuse. Prior to 1996 there was also a toxic chemical statute d. Need some degree of causation. e. Reluctance to award thus punitive damages are not awarded everytime there is a drunk driver involved causation needs to be proven (legis. can change this if they see fit) f. Punitive damages are quasi-criminal thus constitutional limits g. Negligence for punitive damages purposes may be imputed to principal through the acts of the agent h. No punitive damages unless there are compensatory damages i. La. C.C. Art. 2315.3 see page 387: this is no longer in effect j. La. C.C. Art. 2315.4 see page 388 i. Myers v. Nunsett 1. Couldnt show that but for her being drunk the accident wouldnt have occurred. Drunk driving was not the cause in fact. 2. 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) 3. Even if all these elements are met, the jury can still decide not to award punitive damages. Jury issue, but judge still has great deal of discretion k. La. C.C. Art. 2315.7 see page 390 l. 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 m. Constitutionality of Punitive Damages i. State Farm Mutual v. Campbell 1. Facts: a. There are federal constitutional limits on where punitive damages can be awarded and how much. b. State farm said that they would support Campbell in their lawsuit that they shouldnt settle. The award from the trial was larger than the settlement would have been and State farm refused to cover th excess amount. State farm then instructed Campbells to sell home. c. Campbell filed suit alleging bad faith, fraud, IIED. d. State farm moved for exclusion of evidence 2. Reasoning: a. What is egregious about this? State farm had a policy to screw over customers take things to court when they should have settled. b. Lower court gave a large award because of the probability that State Farm would only get caught 1 in 50,000 times wanted damages to be big enough to deter c. Supreme court of Utah agreed saying it was an area of state concern however U.S. Supreme Court says that Utah is imposing the punitive damage award fore behavior that may be legal in other states d. Utah needs to focus on damage caused in Utah e. Due Process need notice and dont want awards to be arbitrary dont want to deter business too much. i. Due process and deprivation of property is read into states through 14th amendment f. 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

3. the target of the conduct had financial vulnerability 4. the conduct involved repeated actions or was an isolated incident and 5. the harm was the result of intentional malice, trickery, or deceit, or mere accident ii. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award and iii. The difference b/w the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases g. In practice, few awards exceeding a single-digit ration b/w punitive and compensatory damages, to a significant degree, will satisfy due process (cited 4 to 1 as an acceptable ratio) h. Court says that Utah looked at more factors than they should have should not punish for unlawful acts outside of their own state 3. Holding: a. Award of $145 million is unconstitutional. 4. Dissent: a. Says that award decisions should be left to states n. Insurability of Punitive Damages i. Creech v. Aetna 1. Question is whether a person who has punitive damages imposed against them can have them covered under their insurance policy? 2. Court says that company needs to pay in this case because compensatory and punitive (exemplary) damages are not distinguished. 3. Insurance company should have made an exception to punitive damages if they wanted to. 4. Rule: interpret insurance contracts in favor of insured 5. What about public policy argument (that if insurance policy pays punitive amount, that deterrence doesnt really work) seems you are buying rights to act willful, wanton, etc.? You have to pay through your policy if you choose to act this way. Payments each month for a higher sum may actually be more of a deterrent than the one time, low probability chance of having to pay punitive damages. 6. In LA, punitive damages are not that important but compensatory damages tend to look punitive because the jury decides G. The Collateral Source Rule a. Rule: Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasors liability, although they cover all of or part of the harm for which the tortfeasor is liable

b. Dont want tortfeasor to benefit!! c. Common law originadopted in LA d. Most commonly applied in insurance proceeds; however has been applied where the collateral source is a government agency or other gratuitous source (e.g. medicare) e. May permit a double recovery, but does not impose a double burden. Double recover is okay in this case because tortfeasor should not benefit from victims foresight, etc. i. However usually there really isnt a double recovery because you pay premiums and in the Louisiana railway case, the DOTD will probably have to pay the feds back anyway f. Louisiana Railway i. This is a different situation than where collateral source is usually applied traditionally involves insurance ii. Relationship b/w feds and state: really no windfall because state would have to reimburse feds anyway iii. Question is really who should get the money state or fed iv. Note: In LA, Plaintiff may not recover such expenses if plaintiff does not pay an enrollment fee, does not have any wages deducted, and does not otherwise provide any consideration for the collateral source benefits he receives (e.g. Medicaid) H. Mitigation of Damages a. Victim has to mitigate. b. Key is reasonableness I. Wrongful Death and Survival Action WILL BE ON EXAM a. DONT TALK ABOUT THESE UNLESS SOMEBODY DIES!!! b. Statutes are only relevant when somebody dies. If they are still alive it is a regular tort action with maybe some loss of consortium. c. Statutes are ways of maintaining the action we dont want the tortfeasor to benefit because their tort was so bad that they killed someone. d. IF YOU TALK ABOUT ONE OF THESE, YOU HAVE TO TALK ABOUT BOTH. IF THE INJURED PARTY DIES, THE ONLY THINK YOU CAN TURN TO ARE THESE STATUTES!!! e. See pg. 415 and 416 for language of statute and who is allowed to recover f. Categories are identical to both. g. Lower category of persons can recover only if the preceding category does not have any living members remaining. Thus if there is no spouse or no children, then the parents can recover. If there is no spouse, children, or parents, then siblings can recover, etc. h. If there is both a spouse and children, all can recover. i. If there is more than one person in a category that applies, the damages are split equally between those persons. j. Survival action -- prescribes one year from the death i. If the prescription expires during my lifebefore I die for the tort that was committed, what happens? There is nothing left to survive so there is no action. Survival refers to survival of action, not the person.

k.

l.

m. n. o. p.

ii. Only one year extension if the action existed at the time of death iii. E.g. if injury occurred three years ago (prescription for the injury was one year) and the person now dies, then there is no survival action. iv. If family member was tortfeasor, they cannot recover damages. v. These statutes are interpreted very strictly Difference b/w two: i. Survival Action: survival of the dead persons action 1. Succession representative can only bring action if there are no beneficiariesgoes to will. a. They represent the estate of the dead person. ii. Wrongful death: belongs to the listed beneficiariestheir cause of action 1. Legis. judgment says that wrongful death cannot be claimed by succession representative not entitled to this. Find beneficiary within the highest rank category you can. It then cuts off thus no one in the lower categories can recover once a higher ranked individual is found. i. If you dont have a spouse or childyou go to parentsbut only if no spouse or child. So on and so forth. Will never give double recovery but they are separate awards. However, lost wages are not awarded to dead person because family will recovery loss of support. If you are a participant in a murder then you cannot recover as beneficiary Moragne v. States Marine Lines i. Basically just recognize that there is wrongful death in maritime law. Blanchard v. Tinsman i. Michael dies, Cheryl dies minutes/seconds after (shortly) she never regains consciousness. However she is the beneficiary. Thus money goes to Cheryls beneficiaries Cheryls parents instead of Michaels parents. ii. Odds are Cheryl would get the support amount (lost wages) as if she had survived and that would all pass to Cheryls parents. iii. Need evidence that one survived (even if minutes) after the other. If that evidence is missing then each parents would get their own childs survival. iv. Basically Cheryls parents get their own recovery for Sheryl and Cheryls recovery from Michael. Cheryls parents inherit Cheryls actions related to Michael. v. Notes: 1. What does spouse include? a. Judicially separated or physically separated spouse Yes, until divorced b. Spouse living with another lover? Yes. c. Spouse who remarried after the victims injury? Yes. d. Spouse who married the victim subsequent to the injury? No. e. Putative spouse? No.

2. Even if you havent shown the parent relationship then can show through proof of affiliation 3. Adopted child is recognized, step child is not. 4. Statute of limitations is one year past death. As long as the survival action has not prescribed during life then you can have 1 year past death. a. E.g. Injury on Nov. 7th, 2005 and Death on Nov. 9, 2006. Wrongful death and survival action filed Nov. 11, 2006 i. To the extent that no one filed within the prescription (Nov. 7, 2006) then survival action does not exist anymore. Wrongful death is usually seen as a derivative thus it doesnt survive either. However there are some cases that say that wrongful death doesnt arise until the time of death he thinks that this is wrong. ii. Lets say the decedent files while they are still alive but then diethe survival and wrongful death beneficiaries can relate back to the original action. Party is on notice. 5. Types of survival damages (distributed equally among the beneficiaries): a. Loss of earnings from injury to death b. Victims pain and suffering c. Medical expenses, and d. Funeral expenses 6. Wrongful death damages: a. Loss of love, affection, services, support, society, and grief. 7. When victim dies, putitive damages if appropriate are recoverable under survival action and not wrongful death. 8. If the victim is still alive, the beneficiaries can still have an action for loss of consortium. CHAPTER 12 NEGLIGENT PROVISION OF SERVICES A. Medical Malpractice a. Malpractice (negligence) -- failure to properly treat (standard of care). Use custom to show what standard is. Medical treatment information is not within the realm of normal knowledge. b. Battery exceeding consent c. Created a hybrid doctrine of informed consent. Takes both from negligence and battery. d. Still have malpractice (negligence) claims and also some battery claims where there is no consent whatsoever e. However where there is some consent, but not for what was done, then you have informed consent. f. 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. Up to patient if they dont want to use the informationcan leave it up to doctorbut that is the patients choice. 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) iii. Should always look for this when you have any type of medical treatment on exam. g. The Standard of Care i. Sheeley v. Memorial Hospital 1. How do we establish custom? Three ways: a. Local i. Nobody uses the locality rule. Because localities were analyzed so strictly the conspiracy of silence came aboutdoctors didnt want to testify against friends. Almost impossible for plaintiffs to get testimony. b. Same or similar locality i. Can go to a similar community ii. Deals with geographic and practice area c. Nationwide 2. Dr. Leslies testimony is being offered. He is retired, but has delivered 4,000 babies. Argument against Leslies testimony takes opposing views: a. His skills are stale b. They also argue that his skills are too good board certified OBGYN as opposed to resident family practice doctor 3. Court says that that procedure is the same regardless of what practice area you are in. In terms of geographyit doesnt matter because procedure is same nationwide. 4. In some areas, certain localities will not have as good of equipment as larger areas and specialist thus there would be differences here. However just about everyplace has shifted from locality. Moved more toward nationwide same or similar is still used in a way in regards that testimony needs to come from person in same or similar community. 5. Usually person in small community cant testify in large community, but doesnt run the opposite way 6. Depends on facts and circumstances whether nationwide rule applies or similar locality rule 7. Holding: OBGYN specialist can testify for family practice as long as procedure is universal ii. Matthies v. Mastromonoco

1. Matthies was 81 year old and fractured her hip. Dr. decided to not put pins in it (because she had osteoporosis) so he ordered bed rest. Her condition worsened. She ended up going to care center. Hard to say whether she would have consented had she been given the information. 2. Key is that she should be given the choice. Proper consent to something that would otherwise be unauthorized or invasive touching. 3. Even for things that arent touching informed consent takes on life of its own --- patient should get the choice. If the patient is to make a choice they need to be informed. 4. More than a minimal conversation is required. In this case he discussed with family, but there is no evidence that she was incompetent. 5. Do not need to be informed of all risksonly those that are material. Material risk those that would have some weight in a decision of a reasonable person 6. There is a duty to make sure that person understands the forms cant just give them stuff to sign. Of course not as much time spent on minor surgeries/operations as there are with major ones. 7. Also encompasses drug interactions where patient is asking for certain drugs. 8. Materiality test involves subjective and objective features. Objective needs provide information that a reasonable person would find relevant. However causation is not proven if the person subjectively wouldnt have chosen the procedure anyway. 9. In this case what made the invasive and non invasive treatment material is that they were mutually exclusive iii. Pizzalotto v. Wilson 1. Laperotomy procedure where you get rid of adhesions. He goes in and discovers that she might be sterile. He thought that he would have had to remove the organs later on so he did it 2. To the extent that this was a predictable risk he should have asked her before. However if it wasnt foreseeable then he should sew her up (unless it was an emergency). If you find something that is life-threatening at that time or would substantially increase the risk to a dangerous level if you wake her then it is an emergency. Can claim an emergency, but dangerous as opposed to going down statutory list. Then you go through the list of statutory representatives. If they say nothen sew her back up. Usually dont turn to representative. 3. Called implied consent because she was unconscious. Consent form she signed said nothing about this. Cant interpret consent forms too broadly or you would be consenting to anything. 4. Duty based upon reasonable behavior. Both subjective and objective. Treated more as negligent theorynot battery.

a. Important because it puts it under Medical Malpractice Act. If battery it wouldnt because statute not well suited for intentional torts. 5. Note: What if information is adequate, person doesnt give consent, but doctor does anyway this is probably a battery. iv. Statutes: 1. Limited list of people that can consent as representatives. 2. Judicial representative comes before the spouse. 3. Emergencies are defined can proceed without consent if it is an emergency 4. Gratuitous service if you are rendering emergency care that is gratuitous your liability is limited. If it is negligent you are okay but if it is gross negligent then not free from liability. Want to encourage some activity so people are not reluctant. Pretty strong immunity for people that just make mistakes. Can apply to non-medical rescuers gross negligence may be easier to prove in this case though. 5. Notes: a. Where the patient consents to operation A, but does operation Bthat is battery. However some other cases dont agreethink it is under medical malpractice act, thus it is negligence. b. Burden of proof pg. 561. i. Also discusses how LA takes stance that seems similar to same or similar locality rule. Basically includes all localities. Not that strict. v. Leyva v. Iberia 1. Essentially says that you can have national experts testify regarding standards of a similar locality. 2. After tubal ligation, they did another surgery because they werent sure whether first operation was successful. Ended up having two more surgeries. 3. Still a customary standard need expert testimony. 4. Expert testimony is not required in a res ipsa case within the juries range. E.g. Cutting off the wrong limb, leaving instrument inside patient. If it is a technical issue then expert testimony is required. vi. Hondroulis v. Schumacher 1. Informed consent (every person should get choice) summary: (these are not elements) a. Duty to Disclose i. Material risks right hand side of hand formula (basically LP) need expert testimony here 1. Risk is material when a reasonable person in what the doctor knows or should know to be the patients position, would be likely to

attach significance to the risk in deciding whether or not to forego the proposed therapy. ii. reasonable patient jury question (expert testimony not needed) 1. Whether type of risk that reasonable patient would consider in deciding treatment b. Causation objective standard. However reasonable person in like circumstances subjective standard as well. i. Need causal relationship b/w doctors failure to disclose material info. And material risk of damage to patient. ii. Whether reasonable person in similar circumstances would have consented to treatment had info. Been disclosed c. Privileges i. Emergency however doctor should attempt to get consent if at all possible ii. Therapeutic Doctor foresees that info. Will cause emotional distress/psychological damage. Narrow exception. Even if patient says they dont want to knowdoctor should still disclose. Error should be on side of providing information. Strict standard. iii. If risk not reasonably foreseeable iv. If risks are commonly obvious or already known to patient (e.g. there will be some pain) 2. Note: even if there is only 1/1,000,000 chance of death, you still need to inform because a reasonable person may not consent. 3. Case shows that form is not always going to be adequate needs to be particular. Form needs to be narrowly tailored to reasonable patient under these circumstances. Need specific material risks no vague or indefinite statements. Needs to be in lay terms. Dont want information overload. vii. Qualified health care provider 1. Need insurance (need to obtain in private market or you can self insure (need to provide certification to state and they will tell you you are qualified)) 2. Benefits: a. Cap there are two: i. QHCP (personal) $100,000 (amount of insurance) ii. Patient compensation fund (govt run) Overall $500,000 cap, thus $400,000 excess b. Panel decides 1) standard of care/breach and 2) causation between breach and injury (but for, substantial factor mainly but for)

i. 1 Attorney (non-voting) they describe the standards that the panel must decide upon ii. 3 Physicians iii. Panel report serves as expert testimony (documentary form) thus even if plaintiff loses on panel they can still litigate 3. Once you become QHCP you need to pay premiums to Patient compensation fund in addition to getting insurance 4. $500,000 cap doesnt apply to medical expenses does apply to pain and suffering viii. Coleman v. Deno 1. EMTALA federal statute that prohibits patient dumping which is when someone doesnt have insurance and you refuse to treat them. EMTALA doesnt eliminate right to transfer patients, but you must make sure that patient is stabilized. 2. Viewed patient dumping in this case as negligence (judgment call as to treatment and judgment was wrong) which falls under Medical Malpractice Act however sometimes patient dumping can be intentional (heightened standard of intent) (treatment needed (person is not stable) and someone turns them away) 3. Standards to determine whether QHCP actions constitutes malpractice under MMA: a. Whether particular wrong is treatment related or caused by a dereliction of professional skill b. Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, and c. Whether the pertinent act or omission involved assessment of the patients condition d. Whether an incident occurred in the context of a physicianpatient relationship, or was within the scope of activities which a hospital is licensed to perform. e. Whether the injury would have occurred if the patient had not sought treatement, and f. Whether the tort alleged was intentional h. Other Professionals i. Attorneys 1. Duty is established by negligence per se (rules of disciplinary conduct governed by Supreme Court) and custom locality rule applies 2. Used to be a case within a case approach for causation, but has not shifted to burden shifting approach (once you show attorney was negligent, the burden shifts to attorney to show they wouldnt have won the case)

3. Most deal with prescription but some deal with lack of right to choose (this is hard to prove because some choices can be made by lawyer) 4. Attorney not liable to third parties unless intentional tortious conduct ii. Accountants pre-suit review, treated similar to other professionals iii. Architects e.g. buildings collapse, need expert testimony to show breach of standard of care iv. Clergy/Educational Malpractice difficult to win, needs to be way out of the bounds of normal conduct CHAPTER 12 GENERAL DEFENSES B. Immunity a. State is immune unless they waive the immunity b. Strict procedural requirements to bring suit against the state/fed and even then hard to recover damages because property cant be attached. There are funds set up for recovery purposes. c. LA has waived immunity for contracts and torts d. Defendants Status (Sovereign Immunity) i. Cannot attach property for claim against govt ii. No jury unless state waives it iii. $500,000 cap have to walk through procedure to get money iv. Discretionary act: If the decision is within the discretion of the public officials they are immune. Only liable if they make decision outside of discretion. 1. Exception: Agency forcing immunity does not apply when a statute, regulation, policy, etc. specifically prescribes a course of action where there is no element of choice or discretion v. Absolute and Qualified Immunity: 1. Absolute no true absolute immunity. Typically judges, non-party witnesses in court, legislators, prosecutors in that capacity. However even these need to be functioning within capacity to be immune and if they are in capacity and action if way outside scope they can still be held liable. 2. Qualified available to all govt officials, but only attaches when behavior was consistent with what a reasonable officer would have believed permissible e. Defendants Relationship to Victim i. Family Immunities 1. Spousal one spouse cannot sue the other. Once you are divorced you can file a lawsuit. 2. Kids kids cant sue parent until comes of age or becomes separate for some reason 3. Subscription period is suspended can still be extended through contra non (e.g repressed memories) 4. Parent can sue child in minority would be suing yourself however

5. Guillot v. Travelers a. Wife is able to recover from husbands insurance company. Even though she is essentially suing husband, the court says that the immunity is only personal to spouse. Insurance company cannot claim the recovery. f. Defendants Activities i. Use of Land 1. Can only claim immunity if not using land for commercial profit. Also, land cannot be improved has to be in natural state (thus pool/man made lake would not fall under immunity) only applies to natural conditions of the land ii. Charitable and Public Service Activities 1. If you render aid, as long as it is just merely negligent you will not be responsible. Broad immunity. Applies to medical help and others. 2. Also limited immunities for certain tourist industries by statute parades. g. Workplace Immunity i. Introduction 1. If you have an intentional tort, you can get out from under immunity 2. Goal of employees is to get out from under immunity so they can recover more 3. Things needed: a. 1st Employment Relationship (you can have more than one employer) i. Payroll employer ii. Borrowing employer (not important, just mention these usually fall under statutory employer) iii. Statutory employer whatever statute says it is 1. DO NOT EVER TALK ABOUT STATUTORY EMPLOYER WHEN TALKING ABOUT VICARIOUS LIABILITY b. 2nd Defined Damages has to be type listed in statute i. Occupational diseases are included too c. 3rd Scope (must use appropriate language on test this is different then vicarious test) i. Arising out of -- risk (asks whether the risk is attributable to the employment relationship). Is this a risk that is higher to employee than anyone else? If the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. ii. course of relates to time, place, and employment activity. Employee sustains an injury

while actively engaged in the performance of his duties during work hours, either on the employers premises or at other places where employment activities take the employee iii. Treated on a sliding scale. If you have one strong, the other can be weaker. iv. Threshold doctrine going to and coming from work is dangerous so sometimes going to and coming from work would fall under workers comp. d. Couple exceptions: i. Intentional torts can be imputed to employer outside of workers comp. ii. Horse-play not all horseplay falls into horseplay exception. E.g. condenser case iii. Personal dispute unrelated to work ii. Intentional Acts 1. Clark v. Division Seven a. Courts sometimes willing to stretch intent for purposes of letting employees out from under workers comp. e.g. purpose or substantial certainty regarding battery and courts willingness to almost allow a gross negligence standard instead iii. Lack of Workers Compensation Coverage 1. Mundy v. Dept. of Health a. Woman stabbed on way to work in elevator in the hospital she worked at. b. Court says she wasnt in course of employment because she was on way to worknot clocked in so weak showing in this category. c. Didnt arise out of either because it could have happened to anybody not appreciably different risk for employees. Risk has nothing to do with employment. d. Could talk about sovereign immunity in a case like this, but they waived it here. 2. Problems with exceptions to workers comp ends up harming employer by making them more liable Holliday v. State of Louisiana a. Case deals with personal dispute she (and fetus) were killed at work by husband i. Unborn fetus claim is derivative to mothers claims (would fall under workers comp if it applies) b. Personal dispute exception allows claim to be brought outside of workers comp. larger burden for employer c. In horseplay you can still sue co-employee, which could be imputed to employer because horseplay is exception to workers comp. However court will probably find that

there is no vicarious liability because not within the course and scope. However it is possible. iv. Statutory Employer 1. Two ways to become a statutory employer: a. 1st way: 2 contract theory landowner GC SC employees i. Subcontractor is employer and is immune under workers comp. That immunity is then imputed up to GC through statute. Both GC and SC are going to be immune. b. 2nd way: no third party contract. E.g. if when Exxon contracts for lunch services and lunch lady gets hurt. Three things needed: i. Has to be written contract ii. Has to say that activity is essential to their business (fact specific), and iii. Has to say we are a statutory employer. iv. If these three things are included, it creates a presumption where person can try to bring proof that service is not essential. BEGINNING OF CHAPTERS WE DID DURING MAKE-UP CLASSES CHAPTER 9 STRICT LIABILITY Remember the existence of code articles in this area: 2317 Things (see 2317.1 amendment addition as well) 2318 Parent/child 2319 Curators and Insane 2320 Vicarious (will deal with in a separate chapter) 2321 Animals 2322 Buildings Products (composition/construction defects) and Animals (dogs only) are all that are strict liability presently. Children are weird not negligence, strict, or absolute (see statute and explanation) Need to differentiate between strict and absolute liability they are different and LA treats them as such o Negligence hand formula is the primary test B<LP Look to precaution that could have been taken o Strict Liablity Dont care if you knew or should have knownbut still need an unreasonable risk B-BK < LP where BK is the burden of knowledge. Information is costly thus dont care whether you knew in strict liability Burden is thus smaller in strict liability then in negligence Look to precaution that could have been taken

o Absolute liability There is still a balance, but balance concerning the ACTIVITY (whether activity is one that is considered an absolute liability activity). Main difference between strict and absolute is that in absolute there is not a balancing test of the risk associated Inherently involves a high loss, but also has a high societal value Once you show you are dealing with an absolute liability activityyou just need to show causation and injury Doesnt care about precautionsyou are liable if it is the right type of activity and there is causation and injury Has been limited to piledriving and blasting in LA A. Things a. Loescher v. Parr (deals with 2317 pre amendment in 1996) i. Facts: 1. Tree appeared to look safe, but it was rotten. 2. There was a minor wind storm that blew the tree over onto plaintiffs car ii. Reasoning: 1. There was nothing to put the tree owner on constructive notice (if it were under negligence, he would not have been found responsible) 2. Based on 2317could have also been analyzed under 2322 because it has to do with grounds, but the ultimate conclusion is that this is not a building under 2322 it is a thing under 2317 3. Plaintiff proved that tree was under care of defendant owner, was defective, and defect caused the injury 4. In order to escape strict liability, the owner would have to show that the damage was caused by the fault of the victim, by the fault of a third party, or by an irresistible force. a. Argued that windstorm was irresistible force but this failed because wind was not strong. Wind was not so high that tree would have fallen had it been strong or defective. Tree only fell from wind because it was defective 5. Best example of strict liability iii. Holding: 1. Found that he was responsible strict liability. a. Represented an unreasonable risk of harm b. Court didnt care whether he knew or should have known iv. Note: After 1996 this would have been analyzed under 2317.1 under a negligence standard b. Johnson v. Entergy i. Facts: 1. Person hits a telephone pole that was on the shoulder of the road while trying to miss hitting a deer ii. Reasoning: 1. Alleged act of negligence putting pole too close to the road

2. Treated as negligence as opposed to strict liability because after 1996 amendment a. Talk about knowledge of Entergy 3. Convert from strict liability in 2317 to negligence in 2317.1 iii. Holding: 1. Found that Entergy was not responsible under negligence because of the narrow chance of this happening and no proof that this had happened in the past not on constructive notice 2. Basically a question of fact whether placement of pole was an unreasonable risk which is for the jury thus no summary judgment in this case iv. Notes: 1. Cost benefit analysis with telephone placement is common in case law 2. Remember: only should be talking about strict liability in cases dealing with products, animals (dogs), and children B. Children a. See 2318 in book b. Turner v. Bucher i. Facts: 1. Kid struck a woman with his bike (6 year old) ii. 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) and thus nothing can be imputed. If kid is not legally faulty, need a different theory. 2. Standard in this case: Parent (that child resides with) is responsible for anything that would have been a tort if the kid (under the age of discernment) were an adult i.e if activity would be negligent but for the fact they were a child a. Regardless of whether parent was negligent it doesnt matter whether they 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. Disturbing standard!!! 4. This standard has never been overruledthus holds true today. 5. Not really strict liability and not absolutemore of a modified vicarious liability iii. Holding: 1. Parent is held liable for injury caused C. Curators and Insane Persons a. Before 2001, the statute used to say that there was absolute liability b. In 2001, it was converted to a negligence standard (thus duty/risk is used) c. See 2319 in book d. Brady v. State (prior to the amendment in 2001)

i. Facts: 1. Women was off duty and was injured when a patient had a seizure and fell on her at a street dance thrown by the state institution ii. Reasoning: 1. Not workers compensation because she was off duty 2. Elements of a cause of action founded on strict liability: a. Creation of an unreasonable risk of harm b. Damage resulting from the risk of harm and c. A curatorship b/w the person which caused the damage and the party from whom the plaintiff is seeking recovery 3. 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 iii. Holding: 1. Wasnt an unreasonable risk of harm for strict liability analysis 2. No duty to protect from this riski.e. risk is not within the scope of the duty (under negligence duty/risk analysis) 3. No strict liability and no negligence (if dealt with after 2001) 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 was well fenced in. 2. Bandit had a history of biting. 3. Neighbor goes into yard when owners arent home to get childs ball (custom was for them to wait until owners came home), and he was bitten twice ii. Reasoning: 1. Court focuses on unreasonable risk of harm of strict liability. They didnt see it as an unreasonable risk of harm owner was reasonable under the circumstancescouldnt have done anything different

2. After finding no strict liability, they do a separate analysis under negligence and find no negligence (doesnt really make sense because strict liability has higher standard anyway) 3. Need to know that all animals except dogs is determined under negligence 4. 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 5. 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 iii. Holding: 1. No strict liability no considered unreasonable risk of harm 2. No negligence duty is logically attenuated as regarding a trespasser E. Buildings a. Owner, vice, ruin and defect are the key words. b. Amended in 1996 to be negligence instead of strict liability thus reasonableness standard c. See 2322 in book d. Weber v. Ochsner (post 1996 amendment) i. Facts: Grate falls out of elevator and hits woman on the head ii. Holding: 1. No recovery because negligence wasnt shown they didnt know or were not under notice to know of the risk CHAPTER 10 ABSOLUTE LIABILITY Differences in burden of proof: o Negligence breach of duty and legal cause o Strict liability unreasonable risk of harm and legal cause o Absolute liability only legal cause connecting injuries to the unreasonably dangerous activity Absolute Liability: o Limited to pile-driving and blasting in LA o Limited to ultrahazardous and abnormally dangerous activities in common law o Involves activities which have high societal value, but also high risk of loss Basically, we will allow the activity, but if there are losses, you must pay for them.

o o o

o o

Once it is shown that it is an absolute liability activity, just have to show causation and damages Absolute liability comes from Article 667, 668, and 669 which are nuisance articles (obligation of neighborhood in LA) (where there is not physical entrance) amendment to 667 on page 474 in book limits the original to pile driving and blasting Two ways to analyze in common law: Is it abnormally dangerous activity or ultrahazardous? Other activites are included (crop dusting, transporting moving houses, transporting chemicals) Is it a nuisance? Type of absolute liability because of historical background, but treated differently which is confusing Page 487 lists abnormally dangerous activities In LA: Absolute liability is limited to piledriving and blasting Nuisance activities are dealt with as well too many Christmas lights (thus too many onlookers) However, absolute liability through nuisance articles (667, 668, 669) is limited to piledriving and blasting If something is not included under absolute liability, it is dealt with as straight negligence Would demolition still be considered absolute liability activity? If there is blasting. Injury still has to be within the scope of the risk Holland case found that there was not liability. Blasting was done and is considered abnormally dangerous, but stirring a nest of bees which kill a prize dog is not within the scope of the risk Result needs to come from the risk associated with what made the activity absolute liability in the first place Kent case deals with whether a certain activity is an absolute liability activity (as would be dealt with in common law jurisidictions) Problem was that wires were not insulated. Court found that this wasnt an area that wires were typically insulated so do duty...but this case should be assessed under negligencenot an absolute liability activity If there are precautions that could have been taken (insulating wires) then it is not an absolute liability questionit is negligence Good explanation of negligence v. strict liability and strict liability v. absolute liability on pages 480-483 if above discussion on these topics is not clear Property ownership is governed by nuisance articles just know that nuisance is form of absolute liability, but treated differently

CHAPTER 16 PRODUCTS LIABILITY A. Introductory Note a. Products liabililty involves contract and tort law hybrid that took the place of the doctrine of privity b. Privity required that the plaintiff be a party to the contract c. Originally told of the problem of privy: i. Someone purchased the product from someone. Contract between the retailer and purchaser. May have problems with users that are not the original purchaser. Historically dealt with this as a matter of foreseeability. ii. Problem at other end is that manufacturer is not an original party to the agreement. Either manufacturer may still own product and retailer is just a conduit or the retailer takes title. d. McPherson v. Buick is the landmark case that eliminated the idea of privity. i. Manufacturer knows the group that will use the products, so to insulate them doesnt make sense. e. In LA Civil Code, we had provisions that made privity less important. Those not in privity could still bring actions f. Need to distinguish the time period: Pre LPLA (1988) and post LPLA. i. Pre LPLA was governed by common law ii. Post LPLA is governed by the LPLA statute only iii. Notes: Since the LPLA only covers manufacturers and a few special non manu. sellers, most of the pre-Act law will apply to non-manufacturer defendants g. Need to keep a few things in mind: i. Who is the defendant? Different theories apply depending on if retailer, manufacturer, etc. ii. Who is the plaintiff? Different theories apply depending on if purchaser, user, bystander, etc. iii. What is the theory? Contract, negligence, strict liability, or statutory? B. Pre LPLA Liability a. Negligence and Redhibition i. Prior to the LPLA a plaintiff could proceed against a manufacturer in negligence, redhibition (contract), or strict liability in tort ii. A negligence claim was just like any other negligence claim plaintiff had to prove that manu. or retailer failed to exercise reasonable care in preventing or correcting the risk. 1. Lack of privity between the manufacturer and the plaintiff was not a defense iii. Could also recover against Manu. in contract plaintiff has to prove that the product had a redhibitory vice if product is dangerous is voids the contract 1. A seller who knows of a defect in his product is in bad faith and is liable

2. A manufacturer is presumed to know the defects in things it manufactures and thus is a bad faith seller as well. 3. Prior to LPLA, manu. of defective products was liable in contract for personal injury damages 4. Some doubt concerning whether non-purchasers could bring an action in redhibition iv. A redhibitory vice does allow damages that are tort in nature (see following cases) v. Even after the LPLA, we still talk about redhibition because statute says that it is the exclusive remedy other than redhibition. vi. Young v. Ford Motor Company 1. Facts: a. This case was before the LPLA, thus redhibitory ideas come into play. 1988 LPLA is not retroactive. b. Man buys a truck that ends up being a lemon 2. Issue: a. Can you get emotional distress damages for buying a lemon? b. More generally, what types of damages are allowed under a redhibitory claim (statute says that damages are allowed, but does not elaborate)? 3. Holding: a. No. The man did not have as his principle objective a nonpecuniary interest. 4. Reasoning: a. Under redhibition, could recover economic damages such as purchase price, repair cost, maybe economic damages associated with not being able to work because of being broken down (lost business) b. But can he recover emotional distress damages even though there is no physical damage? c. Court says no. d. 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)thus in this case the man could not recover. i. If there is destruction to property where there is sentimental value and the tortfeasor knew thisyou probably can recover e. In this case, the mans interest was viewed as solely pecuniary 5. Note: If you suffer some physical injury, you can recover mental distress associated with the physical injurybut here there was not physical injury b. Strict Liability i. Weber v. Fidelity

1. One of first strict liability cases in LA 2. Not a recision of a contract case 3. Involved defect in construction/composition ii. Halphen v. Johns-Manville Sales Corporation 1. Goes through the four strict liability theories and whether manufacturers intent/knowledge should matter/is material argued that this case gets rid of true unreasonably dangerous per se 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 iii. Pure strict liability ??? 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 manu. own standards iii. Pure strict liability ??? 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 i. A reasonable person would conclude that the danger in fact, whether foreseeable or not, outweighs the utility of the product ii. 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 iii. Although the utility of the product outweighs its danger in fact, there was a feasible way to design the product with less harmful consequences e. Evidence as to whether the manufacturer, held to the standard and skill of an expert, could know of and feasibly avoid the danger is admissible under a theory of recovery based on alleged alternative designs or alternative products. f. Such evidence is not admissible, however in a suit based on the first design defect theory, which is governed by the same criteria of proof that a product is unreasonably dangerous per se. 2. Plaintiff can elect to try a case upon any or all of the above theories of recovery however the admissibility of evidence is strictly followed 3. Reason for strict liability risk creating person or thing should bear the loss rather than innocent third party, manu. is better able to spread the cost of strict liability, and deterrence 4. Concern with Halphen was that it was strict liability for a lot of products a. Dennis says that if there is an alternative design, then you analyze that design. But there are some products that are just inherently dangerous 5. In response to Halphen case, Louisiana legislature passed the LPLA a. Biggest change in the LPLA is that they dont create the unreasonably dangerous per se area, otherwise the rest of the Halphen case was adopted by the LPLA C. Louisiana Products Liability Act a. Pg. 657!!! know the basics of each area b. Under this statute, the first thing you write is: The LPLA is the exclusive remedy for damages against a manufacturer. If the LPLA applies, it is the only thing you reference c. What are the requirements for an action under the LPLA? i. 2800.52: Manufacturer of a product list tells us what manu. is and what it isnt. Also says what product is as opposed to what service is. 1. What about food? Is it a service or a product? An apple is not a product. However, if you walk into a restaurant, there is both service and product. They did something to create the food manu. it. This is at the fringe. a. As a general proposition, Church doesnt think the LPLA fits well with food preparation ii. 2800.53: Statute also contains some inclusions (in addition to exclusions) and definitions

1. E.g. of sears and craftsmen Sears in considered the manu. of craftmen because they own craftsmen, they set specifications of the product, and they hold themselves out as the exclusive manu. in advertising 2. What about Sears and DeWalt saws? Sears is not the manu., however may be considered manu. if foreign manu. that has no presencethus Sears acts as manu which is again included under the statute. a. If the statute does not consider Sears a manu.? Retailer duty if they know or should have know and thus duty to pull off shelves and/or inspect defined as reasonable --what reasonable retailer would do. iii. 2800.54: Need a characteristic of the product that is unreasonably dangerous hand formula says that product shouldnt be marketed, that alternative design should be used 1. (a): Proximate cause a. Policy questions b. A lot of proximate cause questions are answered by statute thus do a very short, truncated proximate cause analysis 2. (b): Introduces four ways in which product can be unreasonably dangerous (and only these four ways) a. Contruction/composition 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. Failure in manu. process where the product does not live up to the companys own specifications bad batch it wasnt a choice the company made 2. Do not look into what Coke thought this is strict liability. 3. Unreasonably dangerous product only care about the product (no interest in what Coke knew about the danger) 4. Note: strict liability and negligence are different because strict liability does not have a knowledge requirement v. 2800.56 Design Defect: 1. Different because it involves a number of different decisions at different times in the game

2. Why do we care if there was a better alternative design? Hand formula analysis negligence type analysis a. Have to show existence of an alternative design b. Balance the expected loss with the cost of the design change 3. Problems: a. There is not an alternative design for everything. E.g. lawn darts i. This statute makes this class of cases that should never have been marketed in the first place not fall under this areathus manufacturer is let off. The product is unreasonably dangerous per se, but is not referenced/dealt with. Alternative design could be to just not make the product at all. ii. Why do we require that plaintiff shows an alternative design? Maybe more reasonable to show that it shouldnt have been marketed at all. b. What if it was the best the manu. could do? If airbag didnt exist, manu. shouldnt be held responsible 4. Involves choices made by those that design the productmore of a negligence standard 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. Some courts say that you are required to warn of a design defect (doesnt make sense) 4. Adopt theory that warning is serving some purpose a. Creates an atmosphere where people are aware of the risks associated with products (not always specific to product, sometimes to all products) 5. 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 D. Application of the Statute

a. Bernard v. Ferrellgas i. Facts: 1. Smoker was not manufactured under the LPLA wasnt for sale to someone else 2. Gas delivery system was manu. under the LPLA Ferrellgas made it to sell to the store that Bernard worked for. 3. Bernard was instructed to open the first valve, but not the second. 4. If both valves were open, an explosion ignited ii. Reasoning: 1. What is the alternative design? Regulator and warning pilot light 2. The court walks its way through the LPLA a. Court determined that the product was manufactured by the defendant and that the dangerous characteristic existed at the time the product left the manu. control (there was no alteration/medication) b. Thus court must 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 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 c. Analysis for these questions: i. There is an alternative designbut need to determine under cause if fact analysis Bernards death would have been prevented but for Ferrellgas failure to adopt alternative design 1. Court found that Ferrellgass failure to equip the smoker with a safety device was a significant factor in causing injuries ii. Risk/utility requirement (see three step process in Halphen case): Once it is determined that the defect in the design is the cause in fact, the court must determine whether the manu. had a duty to design the product differently. 1. Court found that a reasonable jury could find that risk and burdent outweighed the utility.

3. More simplywhat is the primary issue once we know that there is an alternative design? Balance the expected loss from the reduction in risk from the alternative design against the lost utility 4. Assumption is that there would be a significant reduction in risk and that is all that is needed. Risk doesnt need to be eliminated 5. This product was unique, not mass produced. Thus not the kind of case where there would be a duty imposed on mass producers 6. Duty/risk question is should this manu. be held responsible for this risk to this person? Court says yes. 7. What about the state of the art defense (did best under circumstances) ? Doesnt apply to strict liability 8. In this case it was a reasonably anticipated usemanufacturers are expected to know that some users will use products negligently in this case iii. Holding: 1. Court reaches the result that motion for directed verdict should be defeatedcompany should be liable b. Krummel v. Bombardier Corp. i. Facts: 1. Man was falling off jetski and planted his foot (intentionally), thus when it rolled over, his leg snapped. 2. Argument concerns the design of the footwell ii. Reasoning: 1. What is the major issue? They should have warned him of danger. Warning question 2. What if it was design defect case? There is an alternative design. Ask selfwe reduced risk in one sense, but did that increase risk in another sense. 3. 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 4. Could consider warning as a mere design choice Church says 5. 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. Should be under duty to warn for those areas where manufacturer has special knowledge or should have known through due care/due diligence 6. Court in this case said that in applying the risk/utility analysis that plaintiff must show evidence (statistics) concerning frequency of accidents like own, economic costs entailed by those accidents, and extent of reduction of those accidents if alternative design was used

iii. Holding: 1. Court found that Bombardier was not liableno evidence provided showing the severity of the risk or the frequency of foot entrapment iv. Notes: 1. What is good of putting a warning on an item even if you think/know people will not heed it? It can be used as comparative fault of customers negligence 2. Both design defect and inadequate warning cases require a form of risk-utility balancing 3. 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)) 4. Kampen case: Question of reasonably anticipated use a. Man used a jack to crawl under his care even though there was a warning that said not to. b. Was this a reasonably anticipated use? I think so c. 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. 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 a. Cipollone v. Liggett Group i. Involves cigarette industry ii. In this case, what remains of the inadequate warning of products liability when federal government has stepped in? 1. Preemption doctrine of federal government adopting rules, regulations that preempt state regulations iii. Need to read rule very closely does the state rule conflict with the federal rule iv. Has the federal scheme so covered the area so that there is no room for state regulations? 1. Not question that is really asked anymore because federal government explicitly says what they do and do not want preempted CHAPTER 17 REPUTATIONAL AND PRIVACY TORTS

U.S. focuses on ad hoc rules determining which types of information should be private gradually instead of saying all personal information is private and gradually make things public A. Defamation a. Elements: i. False statement ii. Damaging to reputation iii. Published b. In past, a statement about a womens chastity was presumed defamatory but we have abandoned most presumption rules. Used to distinguish between presumption cases and those that had to be proven. c. Cannot be a statement of opinion has to be able to be proven or not proven i. Needs to be a statement of fact d. First Amendment plays a role: if any one of these, we are going to protect the right to speak more carefully. 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 e. Truth is an absolute defense to defamation f. The more random/outlandish the statement, the more likely that actual malice is involved g. If it is a truly private matter, then defamation is applied through simple intent do not need actual malice B. Invasion of Privacy a. Came from one article by Prosser 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 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 c. Of course, the internet complicates things