Strategy for Negligence
1. Identify negligent act
2. State that "Louisiana utilizes the duty risk approach"
2. List elements in order
3. Discuss each element
4. Talk about comparative fault last (added by HAC)
Exception to identifying negligent act
Res Ipsa Loquitor
3. Scope of the risk
4. Breach of duty
1. more likely than not that but-for [negligent act] injury would have occurred.
2. More probable than not that [negligent act] was a substantial factor in causing the injury.
Reasonable ordinary prudent person under the circumstances. Take into account physical disabilities, but not mental disabilities.
Reasonable ordinary child of like age and development, unless engaged in an adult activity.
Other ways to establish duty (4)
1. Negligence per se
3. Res Ipsa Loquitor
Note: Hand formula can be used to establish duty, but leave that analysis to breach--as breach analysis would normally be short.
Negligence per se admissibility requirements
Law applies to:
1. Class of persons; and
2. Class of risks
Safety standard as duty
It is more likely to be used under an application of custom for duty as opposed to Negligence per se.
Use custom. It is the exclusive method to establish duty in a professional malpractice case.
Res Ipsa Loquitor requirements
1. Event doesn't ordinarily occur absent negligence
2. Evidence sufficiently eliminates other responsible causes
3. Indicated negligence w/in scope of duty
4. No direct evidence of negligence
4 analyses for scope of the risk
2. Ease of association
3. Superseding & intervening causes
4. "Pitre" policy factors
It is foreseeable that this general risk could happen to this specific π.
Ease of association
Is this injury easily associated with this negligent act?
Analysis of intervening cause
If intervening cause is:
1. less foreseeable, and
2. highly faulty
Then it is more likely superseding.
Pitre policy factors (6)
1. Need for compensation
2. Historical development of precedent
3. Moral aspect of defendant's conduct
4. Efficient administration of law--would it open floodgates of litigation?
5. Need for deterrence
6. Capacity to bear or distribute losses (corporate entities and gov. can do this better)
Definition of breach
∆'s conduct fell below standard of care (i.e. did not fulfill duty) creating an unreasonable risk of harm.
Use hand formula as an example: "The Hand formula is often used in analyzing breach. If the burden of acting with he standard of care is less than the expected loss (the product of the risk and the loss), and the standard of care is not taken, then the ∆ breached."
π suffered a compensable injury, whether it be personal or property. Write what it is and move on.
Lost chance of survival
Evaluated under injury element. Available only in medical malpractice cases.
Fear of contracting a disease
Evaluated under injury element. It is only available if there is a special likelihood of distress (e.g., exposed to a toxic chemical).
Negligence for acts of a third party (3)
1. 3rd party criminal activity (shopkeeper)
2. Care-taker (e.g., jailer or mental ward)
3. Parents' negligent supervision (not art. 2318 vic. liab.)
Duty for care-taker/parent/shopkeeper
Act as a reasonable ordinary prudent care-taker/parent/store under the circumstances.
Shopkeeper negligence for 3rd party criminal activity
1. Duty to act as a reasonable ordinary prudent shopkeeper
2. Criminal behavior is not superceding and within scope of the risk when it is foreseeable. Look to previous criminal activity within the ∆'s location.
3. Allocate fault between negligent shopkeeper and 3rd party tortfeasor.
Slip and Fall elements (4) (often on bar)
Merchant has duty to keep shop reasonably free of hazardous conditions (includes raised sidewalk).
1. Condition presented unreasonable risk of harm
2. Harm was reasonably foreseeable
3. Merchant had actual or constructive knowledge of the condition (greater duration of condition more likely had constructive knowledge).
4. Merchant failed to exercise reasonable care in cleaning the spill or removing the condition (sweep policy alone is not reasonable care)
Definition of merchant for slip and fall
Entity selling goods at a reasonably fixed location. NOT a business that provides services and not goods (e.g. bank).
NIED elements (5)
1. π (a) sees accident or (b) comes upon the scene before a substantial change
2. Direct victim must suffer such harm it can be reasonably expected that π will suffer emotional distress
3. Emotional distress must be severe and debilitating
5. π must be part of the collective class
Class for NIED
Spouse, Ascendants and descendants to 2dº, and siblings. CAN BE Direct Victims as well (e.g., parent in a car with child and sees child impaled when their vehicle is hit).
NIED v. Fear of disease
Two separate theories of recovery. NIED (Lejuene) is strictly for seeing someone else harmed. Fear of disease is when one is personally afraid of one's self catching a disease.
Medical Malpractice defined (on last several exams)
Injury result of medical treatment.
Determining Med Mal standard of care
Custom: must exercise care ordinarily possessed and exercised by members of the profession in good standing in the same (QHCP) or similar (non-QHCP) community.
So you need an expert unless Res Ipsa Loquitor applies.
(1) A state health care provider; or
(2) A private health care provider with $100k liability insurance and pays state fee.
1. QHCP's liability limited to $100k;
2. π's total recovery limited to $500k plus future medicals; and
3. π must proceed through medical review panel, which consists of 3 doctors and one lawyer. (Two cars driving in opposite directions veer across the middle line and collide. One car has 3 doctors in it, the other 1 lawyer. Fortunately, no one is hurt. The lawyer tells the doctors "phew, that was a close call" and offers the doctors a swig from his flask. The doctors pass the flask, and return it to the lawyer. One doctor ask the attorney why he doesn't have a drink. The lawyer responds: "I will after the cops get here.").
Prescription for Med Mal
1 year from date of knowledge or constructive knowledge of injury and not more than 3 years from alleged negligent act. 3 year period is NOT peremptive.
Coleman factors for determining if action is covered by med mal statute (6)
1. Was wrong treatment related or caused by dereliction of professional skill?
2. Is expert medical evidence required to prove breach?
3. Did wrong involve assessing patient's condition?
4. Was there a patient doctor relationship?
5. Would injury have occurred if patient did not seek treatment (i.e. treatment is but-for cause)?
6. Is allegation an intentional tort?
Special theories for med mal:
Lost chance of survival (be alerted when you see percentages of risk of death).
Failure to disclose a material risk of treatment that eventually manifests.
Uniform Consent Law and peculiar patient.
Uniform Consent Law
We adopted the Uniform Consent Law that develops a list of what risks are material for what treatment, and thus must be disclosed.
Peculiar patient and informed consent
Any peculiar material risks to that particular π must also be disclosed--these would be outside the Uniform Consent list of risks. E.g., someone with AIDS has lower immunity and thus normal procedures may pose risk of death.
Attorney Malpractice (very unlikely to be asked) standard
Duty to exercise level of care exercised by attorneys in good standing in the same or similar community.
Attorney malpractice burden
Once plaintiff establishes a prima facie case that attorney's negligence caused loss, then burden shifts to attorney to prove π would not have won his case regardless of attorney's negligence (negating but-for cause).
P(x) for attorney malpractice
1 year, and 3 year peremptive period.
Standard for Other Professional malpractice
Custom based std. of care.
1. Does Dram shop law apply?
2. Negligence analysis of all negligent parties to whom dram shop does not apply (including drinker).
3. Are punitive damages available?
Providers of Alcohol (Dram shop) proximate cause
drinking, not serving or selling, is the proximate cause of alcohol related injuries.
Protected providers of alcohol
Sellers and social host are not responsible for off-site injury unless drinker is under legal age.
Providing alcohol to underage drinkers
Do a regular negligence analysis.
Liability for building elements
2. Actual/constructive knowledge of ruin, vice or defect.
3. Damage could have been prevented by reasonable care.
4. ∆ Failed to exercise reasonable care.
EXCEPTION: can K w/ tenant where tenant assumes liability by assuming responsibility to repair vices and defects.
Liability for Things strategy
1. recognize it's a special code article.
2. mention how the amendment to the article changed the standard to negligence.
3. List elements
Liability for thing elements (code art.)
Same as liability for building, but includes "custodians" as well as owners.
2318 Parents' liability elements (Problem Child liability)
1. Parent with whom child resides; and
2. Child's act was negligent from a reasonable person standard, not taking into account his age.
Strict liability definition
Liability without knowledge or constructive knowledge of unreasonable condition.
Strict Liability for Dogs elements
1. Owner could have prevented (owner could be someone who feeds the dog everyday); and
2. Was not provoked.
Absolute Liability definition
Liability without fault.
2 possible circumstances for absolute liability
1. Pile driving
2. Blasting (blast this Allgood points to crotch)
Obligations to neighbors (667) elements
1. ∆ had actual/constructive knowledge of risk
2. Harm could have been prevented by exercise of due care
3. ∆ failed to exercise due care
(SAME AS LIABILITY FOR BUILDING)
Products Liability elements (likely on the exam)
1. ∆ must be a manufacturer
2. Damage proximately caused by a characteristic of the product making it unreasonably dangerous
3. Product unreasonably dangerous through 1 of 4 characteristics (on card infra)
4. Injury caused by a reasonably anticipated use
Who is a manufacturer? (3 ways)
1. Produces, makes, fabricates, refurbishes;
2. Hold themselves out as manufacturer (sears putting their name on a product);
3. Seller who controls design/specifications of the product (sears getting craftsman to make a product to sears's specifications so sears can sell it)
3. Component part manufacturer.
Don't do a whole analysis if you have already done so on another negligence theory, just state whether it is or isn't likely met.
4 ways a product is unreasonably dangerous
1. Construction or composition
2. Design defect
3. Inadequate warning
4. Breach of express warranty
Construction or Composition characteristics
1. Existed at time let manufacturer
2. Product contains material deviation from identical products
3. ∆ held strictly liable (don't need to prove actual/constructive knowledge)
Design defect characteristics (most common one)
1. Existed at time left manufacturer
2. Must identify an alternative design (make-up on exam)
3. Weigh the decrease in the risk v. the lower utility or higher cost of the alternative design
Defense to design defect
State of the art defense--∆ can defeat claim by proving design was made with the best available technology
Inadequate warning characteristics
1. Existed when it left the manufacturer
2. Balance (a) the likelihood and gravity of danger, (b) manufacturer's ability to anticipate the risk, and (c) feasibility and utility of warning
3. If manufacturer later learns of risk, he has continuing duty to warn
Defenses to inadequate warning (4)
1. Seller didn't pass on warning
2. Manufacturer couldn't have reasonably known of the risk
3. Danger is obvious (putting finger in spinning fan blade)
4. User knew of risk before injury
Breach of Express Warranty elements (unlikely on exam)
1. Existed when left manufacturer
2. Manufacturer gave express warranty to some condition
3. Buyer induced to purchase through warranty
4. Failure to live up to warranty causes injury
Reasonably anticipated use
The product was used in a way that is reasonably anticipated, even if it is an anticipated misuse (e.g. driving lawnmower laterally on a hill)
Non-manufacturer liability for product
Regular negligence standard (e.g., store was told by manufacturer not to sell anymore because they were dangerous, and store sold anyway).
Vicarious Liability Elements
1. Employment relationship
2. Course and scope
3. Employee fault
Strategy for vicarious liability
1. Evaluate employee's negligence
2. Talk about vicarious liability
3. Talk about employer's liability for supervision, hiring, and training.
Employee v. Independent Contractor (3 possibilities)
1. Control test: did entity have right to exercise control over how work is done? Yes=>Er
2. Borrowed Ee: did Er give control over Ee to Borrowing Er who actually controlled Ee?
3. Dual employment: 2 masters: (1) lending-payroll and (2) Er exercising control (e.g. temp agency and contractor).
Course and Scope
Enterprise/risk theory--the risks are generated by an employee's activities that benefit the enterprise.
What is the term for Ee activities outside of the course and scope of employment?
Frolic and detour
Vicarious liability for intentional acts
Conduct is so closely connected to work in time, place, and cause that the risk is properly attributed to the enterprise.
Contra Non Valentum (4)
1. Legal cause prevents filing of suit (crt. closed due to natural disaster)
2. Administrative or contractual constraints delay the cause of action
3. The ∆'s act prevents the π from filing
4. Discovery doctrine--plaintiff didn't have actual or constructive knowledge of the cause of action.
Limitations on Conta Non in torts
1. 3 year med mal P(x) on discovery doctrine
2. 3 year attorney malpractice peremption
Louisiana requires the factfinder to allocate a percentage of fault to each responsible person. To determine the fault of each party, the factfinder should apply the Watson factors
1. Whether the conduct resulted from inadvertance or awareness of danger
2. Level of risk created by the conduct
3. Utility of the conduct
4. Capacity of the actors: superior capacity gets greater allocation of fault
5. Extenuating circumstances requiring haste
6. Relationship between fault and harm
5 types of immunities from tort liability
1. Worker's comp
4. Recreational Land
Note: Other statutory immunity (e.g. mardi gras krewes in a parade) exist.
Worker's Comp Immunity
The Workers Compensation Act provides an exclusive remedy for the Ee against his/her Er or Co-Ee where the terms of the statute are met. The compromise allows the injured Ee to recover damages pursuant to the statute, but the Er and Co-Ee will be immune from civil tort lawsuits, except for intentional acts.
Requirements for Workers Comp Immunity
1. Employment relationship
2. Nature of the injury
3. Must be a covered event
1. Payroll Ee;
2. Borrowed Ee--payment of wages; or
3. Statutory Er (NEVER use for vicarious liability)
1. Work "integrally related" to principal's business; or
2. two contract theory
NOTE: Amended statute requires a written agreement
Nature of the injury
Employee injured in the course and scope of employment.
1. Scope: Arises out of employment--origin of the risk is employment related.
2. Course--time and place of employment
Exceptions to workers comp (3)
1. Intentional torts
3. Personal disputes unrelated to employment
Sovereign Immunity in Louisiana
Louisiana has waived immunity from tort actions.
Louisiana Governmental Claims Act
Procedure that must be followed for actions against the government in Louisiana.
1. Jury trials are prohibited unless government waives prohibition.
2. General damages are limited to $500k.
3. Discretionary/policy-making actions are immune.
Public Duty Doctrine
Used to establish public liability for a thing.
Public Duty Doctrine elements (5)
2. Defect creates unreasonably risk of harm
3. Actual/constructive knowledge of the defect by the public entity
4. Failure to take corrective action within a reaosnable amount of time.
Recreational Land immunity
Undeveloped land used for non-commercial recreational purposes
Amateur rescuers at an emergency scene are immune from negligence, but not gross negligence or intentional torts.
5 types of damages available
4. Loss of Consortium
5. Hedonic damages (although this is a type of compensation)
A small award available for some intentional torts where no loss can be proved but a legal right was violated.
1. Special damages--those pled and proved with certainty; e.g., loss of wages.
2. General damages--non-pecuniary, speculative; e.g. pain and suffering.
1. Drunk Driving
2. Sexual abuse of a minor
3. Child pornography
Loss of Consortium
Available to a certain class (same class that gets a W.D.) for the loss of services, love, affection and sex.
Loss of π's ability to engage in pleasurable activities (hedonism=pleasure); e.g., recreational horseback rider can no longer ride due to negligent paralyzation.
Property damages election
π can choose either:
1. Diminution in value; or
2. Cost of restoration
Exception to recovering cost of restoration
If the cost of restoration is out of proportion with the value of the thing, then cost of restoration can only be elected if:
1. the thing is particularly valuable to a person; or
2. π can prove he will repair the thing.
Collateral source rule
Damages won't be reduced by funds received from a third-party source, e.g., insurance company.
Brought by an exclusive class of beneficiaries for their own damages.
Bright by an exclusive class of beneficiaries to recover damages for the injuries the decedent suffered before dyeing.
Classes for WD and SA
1. Spouse and Children
3. Brothers and Sisters
For SA only: 5. Succession Representative
P(x) for WD and SA
One year from date of death (unless already prescribed within the decedent's lifetime).
Signal for Choice of Law
It will tell you about the law of another state.
Strategy for tort choice of law:
1. Recognize the problem is a choice of law problem.
2. Recognize that La. Civ. Code governs choice-of-law and Louisiana courts will apply those articles.
3. Apply the "serious impairment" test and applicable specific provisions.
Serious Impairment test
Apply law of state whose policies would be most seriously impaired if its law were not applied.
Factors for serious impairment (3)
1. Contact between parties and events with each state;
2. Interstate system and uniformity;
3. Distinct policies, usually deterrence and compensation; e.g., La. has distinct policy for deterring non-compete agreements.
Specific Applications (4)
1. Rules regulating Conduct and Safety (torts), then apply law of state where tortious act and injury occurred. (Also state of tortious act if injury occurred in another state with equal or lower standard of care). If injury occurred in state with higher standard of care, use that state's law if tortfeasor could reasonably foresee injury occurring there.
2. Loss distribution (torts)--same as above.
3. Products Liability, La. law if victim domiciled here.
4. Punitive damages--(1) La. law if authorized by (a) law where tortious act and (b) law where injury occurred or ∆ domiciled. OR (2) if authorized by law of state where injury occurred and ∆ domiciled.