Negligence

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The elements of Market share liability are (4)
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Terms in this set (15)
The elements of Market share liability are (4)
1) injury/illness created by a fungible product (identical product and risk) made by all defendants, 2) injury/illness due to design hazard, 3) inability to identify specific manufacturer of the product that caused injury, 4) joinder of manufacturers represents a substantial share of the market
Loss Chance of Survival elements (3)
1) the victim had a chance to survive at the time of the malpractice, 2) malpractice deprived the victim of all or part of that chance 3) value of that lost chance
Cangelosi factors are (3)
1) injury ordinarily doesn't occur in absence of negligence, 2) evidence is sufficient to eliminate all other reasonable possibilities, 3) alleged negligence falls within the scope of defendant's duty to plaintiff
The Pitre Policy factors are (6)
1) need for compensation of loss, 2) historical development of precedent 3) moral aspects of defendant's conduct 4) efficient administration of law, 5) deterrence of future harmful conduct, 6) spreading of losses
LA applies a specific 'slip and fall' statute in these cases, in which the plaintiff must prove
1) the condition presented an unreasonable risk of harm, and the harm was reasonably foreseeable, 2) the merchant created or had actual or constructive notice of the condition, and 3) the merchant failed to exercise reasonable care.
Claims for NIED of a bystander are governed by Civ. Code Art. 2315.6, which requires (5)
1) plaintiff must view the accident or come upon the scene before substantial change has occurred in the direct victim's condition, 2) victim must have suffered such harm that it can reasonably be expected that someone in the plaintiff's position would suffer emotional distress, 3) the emotional distress must be severe and reasonably foreseeable, 4) the plaintiff must fall within one of the familial relationships listed in the Code Article, 5) there must be some sort of fault on the part of the defendant. Plaintiff must be a spouse, child, grandchild, parent, grandparent, or sibling of the injured party.
Fault should be allocated in accordance with the Watson factors, which include: (6)
1) whether the conduct resulted from inadvertence or involved an awareness of the danger, 2) how great the risk was created by the conduct, 3) significance of what was sought by the conduct, 4) capacities of the actor, 5) any extenuating circumstances, 6) relationship between the negligence and the harm.
The LA Governmental Claims Act (LGCA) lays out the specific procedure that must be followed, which includes
1) have to serve the proper party, 2) only trial by judge is permitted, unless the state consents/wants a jury trial, 3) general damages are capped at $500,000.
Liability under the LPGA is governed by 2317, in conjunction with R.S. 2800, which ultimately produces a negligence standard consisting of three parts:
: 1) entity had actual or constructive knowledge of the hazard 2) reasonable care could have prevented harm and 3) they failed to exercise reasonable care
The Louisiana Product Liability Act (LPLA) is the exclusive theory of recovery for personal injury damages against the manufacturer of products. Plaintiffs must plead and prove the following: (5)
1) defendant is a manufacturer, 2) the defect must be the proximate cause of the damage, 3) product must be unreasonably dangerous, and 4) damage is a result of reasonably anticipated use, 5) plaintiff suffers injury.
. A product can be unreasonably dangerous in four ways:1) Construction/composition, 2) design defect, 3) failure to warn, 4) breach of express warranty.The State of the Art Defense can be used by the manufacturer to argue it should not be liable for a design defect, and to prove this it must be shown that at the time the product left his control: (3)1) he did not know and in light of then-existing reasonably available knowledge could not have known of the design defect, 2) he did not know and in light of then-existing reasonably available knowledge could not have known of the alternate design identified by the claimant, or 3) the alternative design identified by the claimant was not feasible, in light of then-existing reasonably available knowledge or then-existing economic practicalityStrict liability: liability imposed under Article 23___ is now analyzed under a normal negligence standard, which includes1) knew or in the exercise of reasonable care should have known of the vice/defect/risk which caused damage, 2) damage could have been prevented by the exercise of reasonable care, 3) failed to exercise such reasonable care.Vicarious liability is an employer's liability for the fault of its employee, and as set out in LA Civ. Code Art. 2320. In order to impute liability, the requirements are1) employment relationship, 2) employee acting within the course and scope of employment, and 3) employee faultThe Coleman Factors are used in determining whether the case is medical malpractice or a tort non-medical case, which are: (6): 1) Whether the particular wrong is 'treatment related' or caused by a dereliction of professional skill, 2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached (Church thinks this one is the key) 3) Whether the pertinent act or omission involved assessment of the patient's condition 4) Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform 5) Whether the injury would have occurred if the patient had not sought treatment 6) Whether the tort alleged was intentional