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CHAPTER TWO INTENTIONAL TORTS

Negligence and Intentional = FAULT


Consent must be expressed, implied, or apparent
Twin goals of Tort Law = compensation and deterrence
Bystander damages
Element is a piece of proof that has to be covered
A. Intent
a. Definition: Purpose or knowledge to a substantial certainty of offensive contact.
i. Applies to ALL intentional torts.
b. PURPOSE OR SUBSTANTIAL CERTAINTY standard of intent
c. Can have substantial certainty but not have a purpose. Both are not required.
d. Reasons intentional torts are important
i. Cannot discharge through bankruptcy
ii. Statute of limitations differs per crime
iii. Insurance some companies wont cover intentional torts
iv. Tender years doctrine
v. Punitive damages some states allow you to recover punitive damages if
you can prove intent
vi. Scope of damages
vii. Negligence is easier to prove
e. Garratt v. Dailey (example of indirect contact) pg.16
i. Garratt (woman) is suing Brian Dailey (5 year old)
ii. Battery case - act is done with the intention of bringing about a harmful or
offensive contact or with the knowledge of that offensive contact is likely to
be produced.
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. Need to determine whether Brian had substantial certainty of contact
vi. Tender years doctrine states that children under a certain age cannot have
negligence (general terms). Intent is person specific (specific terms)
vii. Court remands case and decides Brian had intent.
viii. Vicarious Liability responsibility of the superior for acts of the subordinate
1. LA 23:18 parents are responsible for the torts of their children under
certain circumstances NOT ALWAYS
f. Caudle v. Betts (e.g. of how harm does not need to be intended to constitute
battery) pg. 20
i. At an employee Christmas party, Betts chased Caudle around with an electric
condenser to shock him. This resulted in Caudle locking himself in an office
to hide. Caudle then sustained long-term injury and nerve damage from the
electric shocks. Trial court and appellate court found no tort committed
because no injury was intended, but the Supreme Court court reverses.
1. Is there intent? Same standard of intent as Garratt v. Daily
a. Damage compensatory in Louisiana.
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ii.

iii.

iv.
v.

b. Pretty much same language but they expanded on it


2. Do not need to intend to do harm. Intent instead to contact in a
harmful or offensive manner
3. Do need to intend to contact (that normally is harmful or offensive by
some third party standard)
a. You have to intend a certain type of contact
i. Contact that is harmful or offensive but you dont have to
intend harm! CONFUSING
b. Consent is presumed in some cases (e.g. tapping someone on
the shoulder) and not considered harmful or offensive
c. Damages are not necessary to constitute battery
d. Betts is still responsible for the unforeseeable consequences
Workers Compensation
1. Because Caudle is an employee, his exclusive remedy for negligence is
workers comp.
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. If intentional can sue both company (vicarious) 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)
Scope of liability extends further for intentional torts as opposed to
negligence. However limit is gray area defendant on how much money the
employer or liable party is worth.
Vicarious liability says the employer is
liable.
1. Insurance may not cover injuries inflicted by defendant
a. Some companies exclude intentional torts
Vicarious liability doesnt involve fault on the part of the employer. Was
there an employee/employer relationship? Was there a tort? Yes then
vicarious liability.
Court reverses and remands to court of appeal.

g. Davis v. White pg.23


i. White argues with Tipton, who mounts his motorcycle and speeds away.
White tries to shoot Tipton, but misses and hits Davis, who is washing is car.
Davis brings suit against White for battery.
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. Transferred intent is NOT a rule just a guideline.
e. Person to person transfer Davis v. White
f. Tort to Tort transfer meant to frighten him, but actually shot
him.
i. It is important to keep this an intentional tort, because its
not dischargeable through bankruptcy.
Thus, using
negligence instead of battery is a bad idea.
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ii. He attempted to assault, but battered. The intent to


assault transfers to the intent to batter. The attempt to
batter Tipton transfers to the intent to batter Davis.
iii. Expands scope of liability to include unintended victims
iv. Intent for battery and assault are interchangeable
ii. Case shows the significance of claiming an intentional tort the judgment
debt cannot be discharged through 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. Intent to contact in a defined way
ii. Contact
iii. Lack of consent
1. Consent can be an affirmative defense.
iv. Harm or offense you dont have to intend the harm that occurs just the
contact.
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. Bad breath could go around in circles with no answer. Its a gas, so could be a
tort, but at the same time there are many gases we are reasonably expected to
breathe in on a daily basis.
g. Leichtman v. WLW Jacor Communications, Inc.
i. Antismoking advocate goes in for radio interview, and one of the hosts (upon
encouragement by the other) repeatedly blows smoke in the advocates
face. Leichtman files suit for battery.
ii. No such thing as a smokers battery tort. Its been discussed, but doesnt
exist. Its either a battery or it isnt.
1. Contact does not have to be person to person e.g. shooting, throwing
something
a. State Supreme court ruled that particulate matter is sufficient to
form contact for a battery
b. Water does not have particulates and works.
What about
stench? Sound?
2. It is up to the courts to make the physical impact argument, biological
argument, case precedent.
3. Action was within the scope of employment. Thus vicarious liability.
h. Funeral Services by Gregory, Inc., d/b/a The Kimball Funeral Home v. Bluefield
Community Hospital
i. Funeral company sends workers to pick up a body. Hospital suggests they
wear extra protective gear, but doesnt explain why. They didnt discover
until later that the patient had AIDS, so the embalmer is suing the hospital
for battery because he was unaware that the body was HIV positive. Trial
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court said there was no battery because there was no harmful or offensive
touching. Appellate court rules that exposure is critical to this case.
1. Battery: have to have had contact with contaminated bodily fluids
2. Statute of limitations time limit that forces you to bring a lawsuit
within a reasonable time after an actionable action has taken place.
a. Embalmer cant push for negligence because the statute of
limitations had run, and thus, he had to push for intentional tort.
3. Negligence: if he would have known that the body had AIDS, he would
have handled the body / procedures differently
4. The embalmer consents to touching dead bodies, so this cannot be
used for offensive contact. In this case, the contact is more offensive
than otherwise because the body was contaminated.
5. Its hard to say that the hospital intended not to tell him. This draws
the line between negligent behavior and intentional behavior.
6. What is the theory you would use to argue that he should have taken
precautions? Consent to contact
7. Case should fall under negligence no intent (however negligence has
to have actual harm, not just the fear of)
ii. The appellate court rules that he cannot recover because there is no battery.
C. Assault
a. Definition: protects a persons interest in being free from apprehension of
harmful or offensive contacts with his or her person
b. Words alone do not constitute an assault (must be combined with other
circumstances or acts)
c. Battery and assault: Elements are same except for the result
d. Intent to batter will transfer to the intent to assault and vice versa.
i. Intent will transfer among the five trespatory torts (battery, assault, false
imprisonment, trespass to land, and trespass to chattel you cannot transfer
to or from intentional infliction of emotional distress
e. Assault must be imminent (cannot be for a future event)
f. Dickens v. Puryear (case dealing with IIED)
i. Plaintiff was soliciting sex from defendants daughter, and giving her drugs
and alcohol.
Dad and friends organized and tied plaintiff to a farm
implement, beat him to a pulp, and threatened to castrate him. They told
him if he didnt leave the state, they would kill him.
1. Statute of limitations has expired for assault and battery. The issue
here is intentional infliction of emotional distress. (IIED)
ii. Assault (imminent no significant delay) and IIED (future threat) are
mutually exclusive (one or the other)
iii. IIED = at the end of the encounter, they threatened to kill him if he didnt do
as they ordered when he got home
1. Not imminent enough to make an assault
2. We would prefer assault, because its much easier to prove. IIED is
new, and thus has lots of limitations as to proving it.
iv. Assault elements:
1. Intent to batter (intent to cause a harmful or offensive contact with
person of the other or third party) or intent to assault (imminent
apprehension of such a contact and
2. Person put in imminent apprehension of attempt to batter or assault
(reasonable on part of plaintiff)
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a. Words alone cannot constitute assault (have to think battery is


coming)
3. You must have the reasonably apparent means to complete the
battery.
D. False Imprisonment
a. Protects a persons interest in having ones body free from restraint or confinement
b. Many times authority related
c. Privilege is a factor in these cases
d. Elements of False Imprisonment mentioned in class:
i. Intent to confine or transfer from assault and/or battery intent
ii. Conscious awareness
1. Not all courts require this.
iii. Actual confinement
1. some courts require that conscious awareness and lack of consent be
present as well.
e. Some courts say that physical force is not always needed can be threats, duress
of goods
f. It may not be actual confinement if there is a reasonable means for escape.
i. If there is a reasonable means of escape, there is no actual confinement.
g. Parvi v. City of Kingston
1. Focus on intention of police officers.
a. Should have done something to secure reasonable safety
otherwise privilege could collapse
2. Releasing the two actually couldve begun the false imprisonment,
because the police were placing the two where they didnt want to be.
ii. 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
iii. Privilege protects the actor from liability only if the acts are done for the
purpose of protecting or advancing the interest in question
iv. Court ruled that plaintiff was aware of his confinement at the time of his
confinement. Being drunk didnt affect this.
h. Note 6 on pg. 40 not false imprisonment in all courts, but could be.
i. Note 7 on pg. 40 preemption sometimes a federal regulation can prevent tort
recovery if the airline does all that is required.
E. Intentional Infliction of Emotional Distress
a. fill-in tort: not a classic tort
b. Elements are heightened
i. Plaintiff can abuse IIED you hurt my feelings.
ii. Tort was expanded because we saw that real harm was being done, but
people couldnt cover.
c. Differences between IIED and other torts
i. One must show harm via severe emotional distress.
ii. Statute of limitations may be different
iii. Intent is more particularized
1. Must have purpose or substantial certainty of ACTUALLY INTENDING
HARM
d. Elements of IIED:
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e.
f.
g.
h.

i.

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
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)
Limit this area: view is that everyone is expected to put up with some tirades
Extreme and Outrageous means to be out of the ordinary
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. Just because someone is dead doesnt mean that others cant bring an action
for damage done to them or the heir.
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. To satisfy element two, an expert testimony is very helpful.
1. i.e. a doctor explaining that the plaintiff is mentally unstable and that
is a direct result of the actions of the defendant.
iv. Not considered extreme or outrageous conduct by the courts because it was
addressed at a group and not just White also reason why probably no intent
to inflict distress.
v. Background is important
vi. Just need intent to create distress
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
1. Note 4 on pg. 48 If we open it up and make it too easy, people will
claim IIED about everything.
2. Dont mix up negligent infliction of emotional distress with emotional
distress damages.

F. Property Torts: Trespass to Land, Conversion, and Trespass to Chattels


a. 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)
b. Trespass to Land
i. Protects possessory interest in real property
ii. Result element = entry onto the land
iii. Elements
1. Intent to (movement) enter
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2. entrance
iv. Ways trespass can occur:
1. Entering land in possession of another or causing third party or thing to
enter the land
2. remaining on land after the possessor withdraws consent
3. failing to remove something from land possessed by another that one
is under a duty to remove
a. Lumber cases where entry to remove timber where there is no
permission/consent
v. Intent (purpose or substantial certainty) to enter property perioddoesnt
matter if you accidentally stumble into the wrong apartment -- it is still
trespass. Just intent to put one foot in front of the other.
vi. LA draws distinction between good faith and bad faith trespass for good
faith you are responsible only for damage done
vii. Need some sort of entrance even if you dont physically enter (e.g. bullet,
water, etc.)
viii. Herrin v. Sutherland
1. Property extends above and below
a. Doesnt require damage or interference or anything else (unless
it is air travel)
ix. Walking through the woods and crossed a property line unknowingly
1. You have trespassed.
x. Get drunk, drive to the wrong house, walk inside, and someone else is there.
1. You have trespassed.
xi. Note 5 on pg. 51
1. This is an unforeseen consequence, so by that principle you are
responsible for the heart attack.
xii. Tree cutting
1. Trees are expensive
2. This is trespass.
c. Conversion and Trespass to Chattels
i. Protect the possessory interest in personal property (chattels)
ii. Elements of both:
1. intent to interfere or to take (even in mistake)
2. interference with use or ownership
iii. Conversion Result element= exercise of dominion and control over the
personal property
iv. Trespass to Chattels Result element= interference (intermeddling) with
possession of the property
v. Whether it is conversion or trespass to chattel is a measure of degree: how
substantially did the defendant interfere with plaintiffs possessory
interest
vi. Remedy for conversion: recovery of the full value of the property that has
been destroyed or stolen
vii. Unlike most intentional torts in trespass to chattels, damages must be
proven
viii. Factors to determine whether substantial enough to be conversion:
1. Extent and duration of control
2. Defendants intent to claim a right to the property
3. Defendants good faith
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4. Harm done
5. Expense and inconvenience caused
ix. Compuserve Inc. v. Cyber Promotions
1. Trespass to chattel
2. Chattel is Compuserves harddrive and its servers
3. Intent purpose or substantial certainty that entrance will occur
4. Where is intermeddling?
Definite cost to compuserve (slower
harddrive)
5. There must be damage shown for trespass to chattels impaired
condition, quality, or value, deprivation of use, etc.
x. Dual Drilling Company v. Mills Equipment Investments, Inc.
1. Mistake, yet still conversion
2. Conversion when any one of these is satisfied:
a. Possession acquired in an unauthorized manner ??
b. Chattel is moved from one place to another with intent to
exercise control over it
c. Possession of chattel is transferred without authority
d. Possession is withheld from the owner or possessor
e. Chattel is altered or destroyed
f. Chattel is used improperly
g. Ownership is asserted over the chattel
xi. He doesnt really care which we categorize as...conversion and trespass to
chattel are very close
xii. Mistake people make: You throw a rock trying to hit my dog, but hit methis
is battery (transfer from trespass to chattel to battery).
xiii. Solidarily bound you as a plaintiff get full recovery.
1. Plaintiff can sue any party in the group.
G. Defenses to Intentional Torts
a. Consent
i. Key is that consent is not a contract.
ii. You consent to some amount of contact in certain situations
1. Ex: football, heavy contact sports.
a. When this expected contact is exceeded, it becomes a battery.
b. If a linebacker chokes a quarterback, expected contact is
exceeded and battery exists.
iii. Manifestation to consent to something that would otherwise be a tort.
iv. Can withdraw at any reasonable time.
v. Can imply consent from surrounding facts and circumstances
vi. Fricke v. Owens-Corning Fiberglass Corp.
1. Mustard
2. There was consent.
3. Consent will not be vitiated unless there is unequal knowledge
4. Consent is usually used as a defense instead of as an element of tort
(no consent)
5. Fricke wants an intentional tort, because if its intentional then its
outside of workers compensation, and thus he could recover more
money.
a. Vicarious liability holds a firm responsible for the torts of their
employees when
i. There is an employment relationship
ii. They are acting within the scope of the relationship
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vii. You can consent to virtually any intentional tortexcept IIED (e.g. sexual
harassment). There are also cases where you can exceed consent.
viii. Establishing Consent
1. Cole v. State of Louisiana
a. Facts: Fake riot of prison for training purposes that went too far.
Man playing a prisoner was hurt after he had said the safe word
to stop.
b. Issue: Did they exceed the scope of consent? Yes
c. There was consent to some contact. But in this case the contact
became extreme.
ix. Implied Consent and Medical Treatment
1. Consent often established through circumstantial evidence
2. See section later
x. Duration of Consent
1. Can withdraw consent at any time that is reasonable
a. Consent is NOT a contract
2. What is reasonable depends on the circumstances of the case
xi. Failure of Consent
1. Stephen K. v. Roni L.
a. Case of whether or not there is consent
i. Stephen consented under false information.
ii. She induced his consent by saying she was on birth
control.
iii. Thus, the touching exceeded what was expected.
b. Compare to AIDS case
i. Doe v. Johnson
ii. Magic Johnson retired from professional basketball because
he had contracted AIDS.
Woman had sex with him
unprotected.
Court holds that a person who has
knowledge of his infection with a venereal disease and
knows his partner does not, commits a battery by having
sexual intercourse without informing his sexual partner of
his infected status.
c. You know that the contact is likely to be harmful and offensive.
Similar to if you know someone is particularly sensitive. It makes
the consent not valid.
d. Fraud will usually destroy consent (unequal information is the
key)
e. Duty if you know you are infected to disclose, otherwise battery.
f. Consent can be defeated when shown it was extracted under
duress
g. Remember incapacity can effect consent too.
i. Young children are the same
1. Very young children cannot consent for legal
purposes.
2. Some dog bite cases show that young people can
consent.
ii. Usual rule is that if you have a minor, they cannot consent;
however no strong principle for two minors
iii. Courts will almost ALWAYS rule in the best interest of the
child.
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2. Consent cases will always hinge on the particular matters of the case
subjective. Just know the basicsthe possibility of consent in various
cases.
3. Duress defeats consent as well.
4. Illegal Acts certain acts render consent invalid
a. Ex: statutory rape
b. Necessity
i. Most difficult area of defense where something normally would be
considered a tort is considered privileged
ii. Where a natural event or violent act by a third party imposes on the
defendant the necessity to harm the plaintiff
iii. Differs from self defense in that necessity arises from events unrelated to the
behavior of the plaintiff
iv. Two types:
1. Public
a. Usually undertaken by public official
b. To save lives or property of other people
c. Takings
i. Government seizes property of a private citizen
2. Private
a. Harms another to avoid harm to self or third party
b. Limited to risks of death, serious bodily harm, substantial
property damage
3. No universal rule to distinguish between public and private: the more
people the better to make it public
4. Compensation: Usually public would not have compensation, private
would.
However with 5th amendment, the government must
compensate for taking
v. Bass v. Louisiana
1. Defense of necessity involves a balancing test. Balance rights
2. Is there reasonableness in action? Then probably privileged.
vi. In zero-sum cases, where one person can be rescued and one cannot, the
defense of necessity is unavailable.
c. Self Defense you have the right to defend yourself against a reasonably
apparent danger using reasonable force.
i. Generally
1. Even if all prima facie elements have been proven, the defendant may
prevail if actions were justified self defense is one way.
a. Self defense is ALWAYS a complete defense. Once you establish
it, there is no liability at all.
2. Self defense is a true defense
3. Requires actual or reasonably apparent threat to the claimants safety
requiring and justifying force, though the force used may not be
excessive in degree or kind. Ordinarily not triggered by threats and
assaults.
4. Slayton v. McDonald
a. What type of force was used? Potentially lethal.
i. When someone enters your home, your right to use this
force increasesbut not always right. Have to have some
sort of threat to you have to have a threat to life or limb.
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b. Reasonable force in response to reasonable threat. However


right to use force is decreased if there is an adequate escape
c. Objective standard
d. Factors relied upon to determine reasonableness of actions:
i. Character and reputation of the attacker
ii. Belligerence 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
e. Typically justified to use assault to defend yourself.
5. Self defense is different than defense of others
a. 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
b. LA now has comparative fault
c. Mere words are not enough (however can be considered when
figuring damages)
d. 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.
e. Because this case is an intentional tortfeasor v an intentional
tortfeasor, 2323 doesnt apply. Instead, earlier versions apply.
Regardless of theory, you allocate a percentage of fault. This
doesnt happen here though, as the court explains that selfdefense is a complete defense.
ii. Reasonable Response
1. Each case depends on its own particular faces and circumstances
2. 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 involved
otherwise you can stand ground and repel the attack.
4. Hattori v. Peairs
a. Excessive force is not justified
iii. Duty to Retreat
1. Normally, if you have the right to use deadly force as self-defense,
retreating is not an issue.
2. In most cases, you dont have the duty to retreat, but the
reasonableness of your response may at some point lead to a duty to
retreat.
a. Ex: if someone slaps you in the face, you cant shoot him or her.
Just slap them back.
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d. Defense of Third Persons and Property


i. Theyre filming a movie, someone pulls out a gun on someone else, you think
its a real robbery, so you pull out your gun and shoot the actor. That
mistake is your mistake. The other party did not have the right to defend
themselves, and you dont have that right either.
ii. Patterson v. Kuntz
1. Facts: Kid was shot by his neighbor because neighbor thought the kid
was a prowler.
a. Facts and circumstances (history of prowlers) made it reasonable
to respond the way he did
2. Circumstances may justify more force, but defense of others does not
create the right to use more force
3. What is reasonable is more likely to be defined as reasonable when it
involves your family as opposed to an extraneous third party.
iii. Innkeepers may be justified in using more force or using it earlier.d
iv. Defense of Property
1. Force which is threatening to life or limb is never justified in defense of
property
a. Katko v. Briney - spring gun
b. Cant use deadly force to protect property.
e. True Privileges
i. License certain classes of actors to violate others rights in certain
circumstances.
ii. Discipline
1. Harrell v. Daniels
i. Schools have more rights than parents in disciplining
because there are other individuals interests in mind.
ii. Contingent on reasonableness
iii. 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
iv. The court decided that the punishment was reasonable.
2. Discipline by parents is also a basis for the defense of privilege.
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. Key idea: She hadnt even left the building yet. Have to have a
reasonable suspicion of theft.
b. Need reasonable reason to detain.
c. Have to engage in some effort to make a determination of
whether there was a theft questioning!!
d. If there is some legislative action, you always turn to that
legislative action to see what the intent of the action was.
e. Shopkeepers can detain and use some limited batteries.
4. Fine line between the privilege and false arrest
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5. Thomas v. Schwegmann
a. In order to recover for false imprisonment from a merchant,
plaintiff must show that detention occurred under one or more of
the following circumstances:
i. Unreasonable force was used
ii. No reasonable cause to believe that the suspect had
committed a theft of goods existed, because the nails
didnt even have glue in the package.
iii. The detention lasted more than 60 minutes, unless it was
reasonable under the circumstances that the suspect be
detained longer
iv. Spousal Immunity
1. Can sue for any intentional torts after marriage is terminated, but not
during marriage.
2. Kids are similar to spousal immunity they cant sue until they reach
the age of majority
3. A parent may sue his child during the childs minority
CHAPTER 4 NEGLIGENCE
CAUSE IN FACT
BUT FOR
SUBSTANTIAL FACTOR
LOST CHANCE
SHIFT BURDEN
DUTY
TRADITIONAL DUTY
REASONABLE ORDINARY PRUDENT PERSON
CUSTOM
NEG PER SE
RISK UTILITY
RES IPSA WHICH NOBODY REALLY USES
SCOPE OF DUTY
RISK RULE
POLICY
EASE OF ASSOCIATION
INTERVENING/SUPERSEDING CAUSE
BREACH
INJURY (lost chance is more of an injury issue)
Consists of 5 elements (from book): 1) duty 2) breach 3) cause-in-fact/actual cause 4)
proximate or legal cause (scope of duty) and 5) damages
Scope of the risk and proximate cause are the same thing.
Louisiana tends to treat this a little bit differently than other common law jurisdictions.
Negligence defined = conduct which falls below the standard established by law for the
protection of others against unreasonable risk of harm.
For negligence, you must identify the specific act of negligence.
Elements of negligence (his from class):
13

1) Duty: reasonable person; reasonable person under like circumstances.


B<LP risk/utility balance test; custom; statutes (negligence per se), res ipsa
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. How do we determine what the duty is?
1) Reasonable person: Duty of an individual is to behave as a reasonable
person under like circumstances Does depend on some circumstances
e.g. emergency situations
2) 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 of not being reasonable (if all had a radio except for you
for example)
1. From an evidentiary standpoint, custom is established by expert
testimony.
3) Risk-Utility balance
4) Statutes (Negligence Per Se): We use non-tort statutes to help us
determine how a reasonable person would behave
1. Is it admissible?
2. Rule.
5) Res Ipsa Loquitor
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.
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
In LA, duty is decided by judge. In common law, it is treated as an issue of causation for
the jury.
-proximate is similar to scope (causation in common, duty in LA)
An owner may be responsible in certain circumstances for allowing
overcrowded conditions and ill configured aisles and pathwayswhere the
patron is placed in locations where the only available route is excessively
congested
A. Reasonable Care In General
a. Misuraca v. City of Kenner
14

b.

c.
d.

e.

i. Reasonable -- not required to do the best thing; reasonable man under


like circumstance
ii. Were trying to find those risks that are unreasonable.
Roberts v. State
i. Blind operator
ii. First: Identify the alleged act of negligence
1. Physical handicaps are part of person what a reasonable blind
person would do in similar circumstances
2. Physical handicaps play a big role in what a reasonable person
would do under the circumstances.
iii. Children must act as a reasonably prudent child possessing actors
judgmental capacity. Must act as a reasonable child of similar age and
development.
iv. Insane people cannot determine the reasonable standard.
1. We expect those who care for the insane to take the responsibility.
2. Insanity is not a defense, but sudden insanity is.
v. Constructive knowledge
1. Should have known.
Child standard is like age and developmentalso experience
i. Unless child is engaged in an adult, or inherently dangerous activity, then
child is held to adult standard of care.
Insane person standard One who is insane must behave as a reasonable
person.
i. 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
Sudden emergency doctrine -- Reasonable person in an emergency

B. Custom
a. The T.J. Hooper
i. Radios
ii. Just because it is custom not to have them, doesnt make it reasonable
1. Hand Formula: Burden of having them is lower than the expected
PL (L is huge)
iii. Custom as a shield which is weaker than when plaintiff uses custom as a
sword
1. Sword example: if plaintiff says everyone uses safety options but
them strong evidence against defendant
iv. Sometimes custom still negligent (as in Hooper case)
C. Risk/Utility/Economics and the Reasonable Person
a. United States v. Carroll Towing Co., Inc.
i. B<PL = Hand Formula if this is the case, the precaution should be taken
1. PL = expected loss
2. B = Burden of adequate precautions
3. P = Probability of thing accident
4. L = Loss
5. To take a risk (no precaution), the burden to take precaution has to
be more than the probability times the loss
6. Calculation shows how we expect reasonable people to behave
7. Asks whether it is reasonable to take or not take the precaution.
15

8. BETTER APPLY ON EXAM, OR YOU WILL BE FAILED.


MUST
UNDERSTAND THE CONCEPT.
b. Dont need to choose the best choice, just a reasonable choice
c. Have to take into account the behavior of the buyer (e.g. kids toys duty is
probably higher)
d. Ford Pinto Case
i. 12.5 million @ $11 per item.
ii. Ford couldve put this $11 plastic piece on their Pinto gas tanks that would
have prevented the following injury.
iii. Death and destruction
1. 180 burn deaths
2. 180 serious injuries
3. 2100 destroyed items
iv. They valued profit over life and limb, and were held both criminally and
tortially responsible.
v. This was a good thing, because it was one of the first examples of a
legitimate cost-benefit analysis being performed.
vi. Risk utility balancing is very important.
D. Violation of Statute, A/K/A Negligence Per Se
a. Use of outside non-tort statutes
b. 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
ii. A violation of a criminal statute does not automatically create liability in a
particular civil case.
iii. Purely advisory mere guidelines for the court however persuasive
c. 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)
d. 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
-- 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 jury instruction -- can use criminal statute if you
would like as a guideline, but you are not required to.
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 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:
16

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
e. Wright v. Brown
i. Nothing is known about dog owner, because the case isnt concerned with
the owner. Dog owner may be responsible and may own a percentage of
fault, but he also might not be.
ii. Plaintiff must establish that this was a failure to exercise reasonable care.
iii. Is the dog bite within the scope of the risk? Or was the negligence the
legal cause of the injury?
1. The court decides that the statute does not protect the town from
negligence. Judgment set aside.
f. Rains v. Bend of the River
i. 18 year old stole a pistol from his father, bought ammunition underage,
then committed suicide. Parents bring suit for negligence to recover
damages.
ii. Does Bend of the Rivers selling of the ammo violate the reasonable care?
1. If someone walks into your store and says hey, I want to kill myself,
so sell me this rope, then you are negligent if you sell them the
rope. If you dont know however, the situation is different.
iii. Is the injured party the type of party that the statute was designed to
protect?
1. Yes. Its designed to protect people from gunshot types of injuries.
2. i.e. protects underage people from themselves and protects the
general public.
iv. Independent and intervening cause/superseding cause suicide
1. Normally, if someone takes their own life, we dont hold those who
are negligent responsible for that.
v. Court couldve said that this is not within the class of risk and thus the
statute does not apply. Instead, they allowed the statute to come in and
said the issue is not within proximate cause.
vi. In particular types of cases, courts will treat negligence per se differently.
vii. Note 8: pg. 152 Chinese drywall establishes limit on insurance
companies to cancel policies.
g. Violations of criminal statutes are very persuasive evidence.
h. Principles to keep in mind:
i. The more persuasive the legislative body that adopts the standard, the
more likely that it is admissible.
E. Special Duties
a. Categories of operators that behave as a reasonable person would under those
special circumstances.
i. E.g. innkeeper -- elevated sense of duty, electricity workers, etc.
b. All of these are just particular aspects of reasonable ordinary prudent people
under similar circumstances. There are no special duties.
F. Res Ipsa
a. Common sense evaluation of the strength of circumstantial evidence
17

b. We dont know exactly what the negligence was, but were going to allow the
jury to apply negligence based on the circumstances surrounding this instance.
c. The Thing Speaks for Itself evidence is very strong that there can really be
no other option
d. Have to be able to point specifically to this defendants negligence and rid all
others of responsibility
e. Who gets to make the decision on res ipsa? Judge. Once res ipsa is shown,
what do you get?
i. Jury instruction allows jury to infer. Not required to infer, but are allowed
to.
f. Elements of res ipsa:
i. Within scope of risk of the defendants duty to plaintiff
ii. The event does not ordinarily occur in the absence of negligence.
iii. The evidence must sufficiently eliminate other more probable causes of
the injury, such as the conduct of the plaintiff or a third person.
g. Standard as to providing jury instruction:
i. Whether facts and inferences point so strongly and overwhelmingly in
favor of one party that reasonable men could not arrive at a contrary
verdict.
ii. Whether a reasonable juror could come to the conclusion that the injury
more probably than not came from the defendants duty alone
h. Boudreaux v. American Insurance Company
i. There are other possibilities to cause this, but we dont have to
completely eliminate all of these. Reasonable juror has to be more
probable than not that defendants negligence was cause.
ii. Not an assumption you are allowing (not demanding) the jury to infer
negligence from the circumstances.
1. Negligence failure to exercise due care
a. Duty
b. Breach
c. Still have to establish causation and show injury (prove other
elements). Res Ipsa only allows an inference that they were
negligence.
d. Could reasonable minds differ in evaluating whether it was
more probable than not that the defendant was faulty?
iii. Fire is unexplained. Courts have split over this in the past.
i. Designed to apply to a very rare set of cases where the ONLY possible
explanation for injury is defendants negligence. Its the only exception to
identifying a specific negligent act.
j. The only thing you really get from this is a jury instruction saying, you may
infer, but you need not infer.
i. Res Ipsa really doesnt help you that much.
k. Res Ipsa ONLY applies in cases where there is NO DIRECT EVIDENCE.
l. Linnear v. Centerpoint Energy
i.
Plaintiffs started using Res Ipsa as a crutch. We dont want to allow
plaintiffs to use Res Ipsa as a crutch for a case that simply cant be
proven.
ii. The court basically listed that Cnagelosi gives elements for Res Ipsa then
ignored them.
1. The appellate court said could reasonable minds differ in proving
negligence?
18

2. When this is applied, anytime the jury can conclude negligence, Res
Ipsa should apply. This is wrong.
3. Supreme Court thus announces:
a. Res Ipsa cannot apply when there is direct evidence.
b. The appellate court erred in its application of the Cangelosi
doctrine.
4. Now, courts must look at each individual element and reason
whether reasonable minds could differ on the findings of each
individual element.
Then, and only then, does the Res Ipsa
instruction get read to the jury.
m.Not 5 on pg. 164: Res Ipsa creates NO presumption. It allows an inference.
More probable than not = anything over 50%.

CHAPTER 5 CAUSE IN FACT


A. Introduction
a. Causation is an element of the prima facie case of negligence
b. Actual causation (cause in fact)
i. Standards:
1. But for 50%+ standard But for defendants act, injury
wouldnt have occurred
2. Substantial factor Not same as but for 50% standard.
a. 50% standard is important because if it goes above this
percent, then it is more probable than not (but for)
b. For those cases when you didnt quite meet the burden of
more probable than not = 50%+
c. 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
d. You can have multiple but for causes. (Multiple
dependent Causes)
ii. Factual cause doesnt care about foreseeability
c. Proximate causation
i. Policy question when actual cause has already been established
ii. The term cause in fact is used in preference to proximate cause
because it brings the issue in the instant case into sharper focus.
d. In 90% of the Louisiana cases, substantial factor and but-for are the same thing.
B. But-For Causation
a. Perkins v. Texas and New Orleans Railroad Company
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. Speed can be excessive but could still not be a cause in fact.
ii. On exam: should always talk about both but for and substantial factor
tests to some extent they can be used interchangeablybut not
completely
19

1. E.g. if you spill gasoline and someone else drops a match both are
but for causes. As for substantial factor test? Means but for in this
case.
iii. Duty
1. Negligence per se
b. Salinetro v. Nystrom
i. Facts:
1. Doctor gave x-rays, didnt ask woman if she was pregnant.
2. Duty established because a reasonable radiologist would have
asked if she was pregnant. There is a breach of duty.
ii. Reasoning:
1. Using the but for test, he is not responsible.
2. She didnt know she was pregnantso she would have answered no
anyway. Thus the x-ray would have been taken regardless and
injury would have occurred.
iii. You cannot evaluate cause in fact until you identify the alleged breach
c. Breithaupt v. Sellers
i. The argument is that the plaintiff failed to take adequate care to protect
himself.
ii. A jury wouldve been entitled to find that the failure to wear hunters
orange was not a cause in fact to the plaintiffs own injuries.
1. Some type of summary ruling is thus inappropriate if it takes that
away from the jury.
iii. Note 3: court of appeals made the mistake of ruling on fact.
iv. Note 4: If the plaintiff is faulty in failing to take adequate precautions to
take care of themselves, it is a complete bar to the plaintiffs recovery.
C. Other Standards for Causation
Causation:
1) But For
2) Substantial Factor
3) Alternative Liability
4) Market Share
5) Lost Chance
a. Anderson v. Minneapolis, St. Paul and Sault Ste. Marie Railway Co.
i. One negligent party and a whole bunch of non-negligent fires still use of
substantial factor test
ii. Notes:
1. Where there are concurrent causes of an accident, the proper
inquiry is whether the conduct in question was a substantial factor
in bringing about the accident
2. Landers: lake
a. No good evidence as to which leak occurred first. Thus cant
prove that action more probably than not (greater than 50%)
caused the harm. They both have 50/50 chance. This is why
we have substantial factorotherwise both companies would
have gotten off.
b. What if there were 4 actors? Shouldnt be substantial factor.
3. Summers v Tice case
20

a. Plaintiff could not prove which shot caused injury need


substantial factor test
b. Jenkins v. St. Paul Fire and Marine Insurance Co.
1. Motion to Dismiss because it was not timely filed
a. The client says that they didnt do anything wrong here
b. Did the Attys breach a duty?
i. Yes, due to lack of attention
2. Standard is, would the Plaintiff have won if the attorney would not
have been negligent?
3. Attorneys did not bring claim in the prescriptive period. It was
negligence.
4. Burden of Proof shifts to Defendants attorneys.
a. The plaintiffs have to show that the attorneys were faulty and
that the attorneys accepted the case.
5. Measure reasonable care by how a reasonable attorney would
behave.
6. Custom is easy especially for professionals almost requirement
that you show evidence of custom
ii. Reasoning:
1. If we apply the but for to this, what would the plaintiff have to
prove?
2. Once the client has proved that his former attorney accepted
employment and failed to assert the claim timely, then the client
has established a prima facie case that the attorneys negligence
caused him some loss.
3. Case within a case approach but for the negligence, the plaintiff
more probably than not would have been successful in the trial in
question
4. Note 2: No. An ethical violation does not create a malpractice
claim.
5. Note 3: Expert testimony is typically required unless its something
the jury can figure out on its own.
6. Note 9: We are going to read that Jenkins burden shifting approach
to failure to apply on a very specific set of facts. Supreme Court
announced the rule, but only for THAT TYPE of case.
7. Does Louisiana abandon the but for test when dealing with this?
iii. 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.
iv. Dissent:
1. Dennis approach that injury is losing the chance to litigate, not the
case
a. We ought to reward reasonable settlement value (almost
identical to lost chance in the smith case)
i. This does not change the but-for standard
c. Smith v. State of LA Dept. of Health and Hospitals
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,
ii. Reasoning:
21

1. Negligence was failure to inform. If we are treating death as the


injury, then the but for standard is not met. Hes going to die
anyway.
2. How do we establish duty? Custom
3. Smiths chance of survival at the time of the first x-ray?
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. If we apply the but-for, more probable than not standard, would
have died anyway? Yes. We would lose the case.
6. In this case, they did not redefine the causation standard, they
redefined the injury.
a. Lost chance of survival
7. Once you show causation for lost chance of survival, how do you
establish damages?
8. 3 different methods of valuation of the loss of a chance of survival
in professional malpractice cases.
a. 1st 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.
i. Louisiana uses this method.
nd
b. 2 approach: allow full survival and wrongful death damages
for the loss of life partially caused by malpractice, without
regard to chance of survival
i. this isnt fair because if one causes a 10% loss, he
shouldnt pay for the entire death.
c. 3rd approach:
compute the compensable chance as the
percentage probability by which the defendants tortious
conduct diminished the likelihood of achieving some more
favorable outcome like the Court of Appeals did in this case.
d. On test need to say that there are three different ways for
the jury instructions
9. Regardless, once you hit 50%, you should get the full award not a
portion
10. Lost chance is limited to medical malpractice cases and maybe
occasionally some other professional cases.
a. Doctors job is to provide for a chance for survival.
b. Lawyers job is to provide a chance to win.
11. Lost chance of survival is only pursuable when someone dies.
iii. Holding:
1. 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
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. The law changes when the judge changes the jury instruction.
3. Environmental cases
22

a. Problems with causation:


i. indeterminate plaintiff problem which of the cancer
cases are due to the exposure to chemical and which
are just the background cases of cancer?
1. Problems: people react differently to different
levels
ii. Indeterminate defendant problem: 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.
ii. Reasoning:
1. First issues is Market Share Liability
a. 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
i. Fungible substitutable
ii. Because there are different products, there are different
risk levels associated with various products.
Thus,
insulation cannot be substituted with brake pads
because there are different levels of exposure.
iii. Requirements for market share liability at bottom of p.
188.
b. Plaintiff then narrows it down to friction products.
i. Court rules that theyre still not fungible.
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.
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
tortfeasors are not included (Summers case is e.g.)
i. Summers case is different though, because Summers
was a big deviation from causation. When there are
many, it seems less and less fair to say that this
defendant should be fully responsible (when there are
48 involved).
d. DES drug marketed by a number of manufacturers to help
pregnant women cope with morning sickness.
i. DES is fungible because it is chemically identical
regardless of the circumstance.
e. Market Share liability rarely works.
3. Mrs. Black cannot recover.
4. There could be some sort of defendant class for a class-action suit,
grouping all defendants from asbestos cases.

23

5. Could also adopt some sort of government run fund that the
defendants are required to contribute to, and based on that, certain
claims are paid.
iii. Notes:
1. For test:
Need to know different theories and indeterminate
problems (plaintiff and defendant).
Need to know exposure
problems too (who, what, where exposed)
2. If in fact these were the only 48 defendants who produced asbestos
to which Black was exposed, then we know that the GROUP caused
his death, but we know nothing about any one defendant. Thus, we
dont know causation.
a. It may be true that any one defendant didnt cause anything.
b. Under a but for standard, plaintiff cant establish that
against any defendant.
c. This is an indeterminate defendant problem.
3. Even through normal, non-negligent conduct, were going to
observe 10 cases of cancer out of a population of ####. Now we
also know there is a negligent spill where there is a release of
chemical, and thus there are now 25 cases of cancer. There are 15
cases of cancer caused by exposure (just assume). The cancer is
non-signature in that we cant isolate the different forms. Its all the
same cancer. If all 25 sue, each individual plaintiff will argue but for
the chemical spill, they would not incur injury. Probability of our
observed cancer is 15 out of 25 (60%). Thus, its greater than 50%
so its a substantial factor, and it is more probable than not that this
case of potential cancer came from exposure. Thus, ALL 25 can
meet the causation standard because of the numbers. This is an
indeterminate plaintiff problem.
4. If it was below 50%, nobody can establish causation, so the
defendant is paying for 0 cases of cancer when they caused 3.
iv. Louisiana does not allow medical monitoring cases.
v. Emotional distress: I know that Im at a higher risk for developing cancer
and that causes me stress. In this case, it would be negligent infliction of
emotional distress.
CHAPTER 6 LEGAL CAUSE/SCOPE OF THE DUTY when do we want to cut off
liability? How far away?
A. The Concept of Legal Cause
a. Fundamental question: should this defendant be responsible in this case (this
plaintiff who was harmed by this instrumentality, in this manner, at this location,
at this time, etc.)?
b. Scope of the risk is a question of the relationship between the duty and the injury.
c. Policy question
d. Best to think of legal cause/scope of duty as a fifth, independent element of
negligence theory
e. Mother Goose example: Note 2
i. Yes. If the nail had been there when it was supposed to have been there, the
kingdom wouldve been saved.
ii. If each one of the steps is negligent, then they are ALL the but for cause.
24

iii. We wont impose liability on the nail maker because it extends liability too
far.
iv. Was the defendants negligence the proximate/legal cause of this..?
a. Polemis case:
i. Takes very strict stance: actual cause and proximate cause are same
thing not policy question
ii. Idea from this case has been pretty much abandoned
iii. Direct cause comes from this case, and is discredited in Both Palsgraf and
Wagon Mound.
b. From there, we switch to the foreseeability tasks, also known as the risk rules.
i. Foreseeability of injury: Wagon Mound
ii. Foreseeability of plaintiff: Palsgraf
c. Policy questions
i. Embodied in scope of the risk.
ii. Most cases in Louisiana are resolved on foreseeability, but we do highlight
the policy factors.
B. Introduction to the Risk Rule
a. Foreseeable Plaintiff
i. Palsgraf v. Long Island Railroad Co.
1. Forseeability of Person have to foresee the risk/injury to that
particular person
2. Facts:
a. The Plaintiff was standing on a railroad platform purchasing a
ticket, when a train stopped and two men ran forward to catch it.
One of the men nearly fell, and two railroad employees
attempted to help him. In the process, a package containing
fireworks fell and the contents exploded. As a result of the
explosion some scales at the other end of the platform fell and
struck the Plaintiff. Plaintiff sued and a jury found in her favor.
The Appellate Division affirmed this decision, but the Court of
Appeals of New York reversed.
b. They go after the railroad company because the railroad has
much more money than the guy who owned the package.
c. What did the railroad guys do wrong?
i. Pushed and pulled the guy onto the train.
d. Given that there is a wrong, is this injury that occurs because of
the concussion due to tipped scales due to the guy carrying
fireworks (etc.) within the scope of the risk of the negligent act.
Or, is the injury proximately or legally caused by the negligent
act?
3. Reasoning:
a. Duty established by whether the risk was reasonably foreseeable
b. Importance of difference between LA can common law
difference deals with how far foreseeability should extend
i. Cardozo -- question of duty (LA approach) strict -- owe a
duty only as it is owed to this person
1. Does not see liability for railroad
ii. Andrews represents approach of common lawcausation
focus -- broad
1. Sees liability on part of railroad
25

c. Polemis case:
i. Takes very strict stance: actual cause and proximate
cause are same thing not policy question
ii. Idea from this case has been pretty much abandoned
4. Notes:
a. What would be an intervening cause?
i. E.g. I spill gas at a gas station and then someone comes by
and drops a match which ignites the gas. Dropping the
match is an intervening cause.
ii. It is a question of time.
iii. A force MUST BE intervening first.
b. Superseding cause is a term of art applied to acts that cut off
liability of the original actor
i. Intervening act is more likely to become superseding if it is
intentional
ii. Exceptions: If the result of negligence of the original actor
is foreseeable then liability is not cut off
1. E.g. bus driver is negligent by knowingly dropping
passenger off in a high crime area
a. You can foresee the existence of crime
b. Criminal actor is worst actor, but that does not
mean that original actor should be relieved of
liability
2. In LA, we apportion liability
c. The more faulty an intervening act is, the more likely it is to be
superseding.
5. Difference between Cardozo and Andrews (dissent).
a. Both say we arent going to extend liability indefinitely. Cardozo
narrows the duty to the plaintiff, but Andrews implies that duty
was breached to society as a whole.
b. Cardozo says they can resolve the case without submission to
jury. Andrews says they should submit to jury because he sees it
as a question of cause.
c. Both seem to shift towards a risk rule. Neither one adopts the
Polemis rule.
b. Foreseeable Risk
i. Wagon Mound
1. Reasoning:
a. No actionable breach of duty unless it can be shown that at the
time of the act, the consequences of the act were reasonably
foreseeable (reasonable man test)
b. Specific v. General risk
i. Specific mechanism -- couldnt reasonably foresee that rag
would act as a wick
ii. However if all they had to see was risk of fire in general,
then they could be liable
2. Notes:
a. Jurisdictions must decide the standard of foreseeability:
i. Foresee risk to the particular plaintiff v. class of plaintiffs
ii. Foresee the specific mechanism or manner of harm v.
foreseeability of the general hazard
26

iii. Foresee the harm v. just the hazard


b. MOST places use the foreseeability of general harm.
c. Usual rule is that you only need to foresee the general risk of
harm
d. Determining Whether an Intervening Force is a Superseding
Cause
i. See pg. 194 195 for list
3. They are liable for damages of the oil unrelated to the fire.
4. Foreseeability
a. Class of person
b. Class of risk Wagon Mound says there must be some
foreseeability of risk.
5. Note 4 on pg. 203:
a. Some burns were foreseeable but the mechanism by which the
burns occurred was not (Hughes v. Lord Advocate)
b. Splashes were foreseeable.
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.
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 States Screw, 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. 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. Langtres fault was clearly the but for cause, but there can be
more than one but for cause.
27

c. Dixie did nothing wrong who can they recover from if we know
that both drivers were negligent? Gulf States because can be
imputed from Langtre (vicarious liability) and Amer. Bev. because
can be imputed all the way up from driver
d. Both defenses focus on negligence of Langtre.
i. Langtres perceived acts of negligence were failing to see
the obstructing truck and failure to realize that it was
stopped on the highway in time to avoid collision
1. Contributory existed at this time, which could bar
recoverybut doesnt apply here because you cant
impute from Gulf to Dixie and thus cant impute from
Langtre to Dixie.
2. How else does his fault come into play?
a. Argue that Langtres negligence was sole
proximate cause and thus Amer. Bev. off the
hook.
That Langres negligence is an
intervening and superceding cause
ii. Amer. Bev. Drivers perceived negligence:
1. Dealt with violation of a regulatory statute can
standard be imported to establish a duty
negligence per se?
a. Court says yes. Says statute was designed to
protect life and property on the highwaysthus
protected the class of person and class of risk
2. Also negligent in taking no action to warn
approaching traffic of stalled vehicle
e. Court found that negligence of Amer. Bev. Driver was cause in
fact of accident.
f. Court found that Langtre was negligent, but the question is now
whether Langtres negligence was superceding to Amer. Bev.
drivers negligence.
g. 2 principles:
i. Applied intervening/superceding actual cause question
ii. Applied negligence per se when there was not strictly a
statute involved (ends up forming basis for LA duty/risk
approach)
3. Holding:
a. Langtres action was not found to be superceding
b. Need to figure comparative fault between Gulf and American
(Gulf not plaintiff???)
i. Comparative fault applies to plaintiffs fault in effort to
reduce plaintiffs recovery
4. Notes:
a. Intervening/superceding cause still important in LA duty/risk
analysis: if there is a superceding cause, the duty does not
extend to this plaintiff
b. Realize that proximate cause and scope of the risk (whether this
defendants duty extends to this particular injury to this plaintiff)
are similar
ii. Hill v. Lundin & Associates
1. Facts:
28

2.

iii. Jones
1.
2.
3.

a. Babysitter -- Hurricane, repair company leaves ladder next to


house.
b. Third party moves the ladder
Reasoning:
a. Intervening, but not superceding because she knew the ladder
had been moved (foreseeable).
b. Ease of Association -- 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
i. Important to talk about foreseeability and ease of
association and then try to determine why the decision was
actually made
ii. Is this person within the class of person that the statute
was designed to protect
c. Momentary forgetfulness means absolutely nothing.
d. EMERGENCY DOCTRINE hill isnt faulty because there was an
emergency.
i. Better doctrine is the reasonably ordinary prudent person
under similar circumstances.
v. Robbins
What is the doctrine?
George or the gas station would be liable under vicarious liability.
a. Occurred between the course and scope
b. Employment relationship
Cause in Fact
a. But for
b. Substantial factor
c. Two factors that are relevant: reasonable person standard and
risk-utility balance
d. Would the injury have occurred if the action hadnt happened?
i. No. If he had not provided the gasoline to the 6 year old,
the injury would not have occurred.
ii. The 6 year old Penny was the cause in fact.
e. Duty/risk
i. Burden of not selling gasoline is very low.
ii. Dont sell gasoline to children.
f. Now, for the scope question.
i. Mothers fault or parents fault may have been an
intervening/superseding cause.
ii. But, to find mom negligent would have to identify a
negligent act.
g. Breach
h. Injury
i. Simply put, an injury exists. The girl got burned.

b. A Return to Proximate Cause and Variations to the Risk Rule


29

1st Identify the alleged act of negligence


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
Polemis direct cause rule abandonedtoo strict
Intervening/Superceding
Foreseeability of Plaintiff
Individual v. Group
Foreseeability of Risk
General v. Specific
Ease of Association b/w injury and rule of law giving
rise to duty
Policy Factors list these
Injury
LA Approach:
Cause (Actual) but for, substantial factor (same as common law
cause) more probable than not standard
Duty
o Traditional as in Common law
Reasonable Person
Custom
Hand Formula
Res Ipsa
Neg Per Se
Breach
Scope (risk, duty) = proximate cause
Polemis direct cause rule abandonedtoo strict
Intervening/Superceding
Foreseeability of Plaintiff
Individual v. Group
Foreseeability of Risk
General v. Specific
Ease of Association b/w injury and rule of law giving
rise to duty
Policy Factors list these

Injury
o Only question for prima facie case is do we have a
compensable injury that meets the prima facie
requirements for negligence?
30

o Doesnt have to be quantifiable.


i. Pitre v. Opelousas General
1. Facts:
a. Child with albinism
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
ii. Living as an albino is quite difficult. The claim is cause in
fact, but for the botched sterilization, I wouldnt have to
live with this defect. If this negligence the but for cause of
the injury? Yes.
iii. Duty defined by customary actions of reasonable ordinary
prudent physicians.
1. Expert testimony shouldve performed the
procedure correctly. Duty and Breach are relatively
straightforward here.
iv. Scope key inquiry for the childs claim.
1. When someone is diagnosed with the albinism, there
is no way to detect it in the first place so theres no
way for the doctor to test for it.
2. The real question is whether this is a foreseeable risk
encompassed with the duty. This isnt why she was
getting her tubes tied.
3. If the procedure were being performed because she
knew that she would have a child with a defect, it
would make the result foreseeable.
b. Wrongful birth defect involved.
i. Claim of parents if we had known that child was suffering
from a defect, we would have terminated the pregnancy
ii. The risk of this particular defect was not foreseeable by the
physician.
c. Wrongful conception healthy (usually botched sterilization,
abortion) damages almost always limited to costs of actual
birth
i. They should not have been able to conceive a child. They
were under the impression that they couldnt.
d. They couldnt recover for wrongful life or birth, but could recover
for wrongful conception.
i. The negligence is negligent failure to inform.
e. PITRE Policy FACTORS (helps answer how far we extend liability)
i. Need for compensation of losses
1. Physical, personal 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.
31

iii.

iv.

v.

vi.

2. If the theory you see goes against precedent, then


additional justification is needed
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?
3. The more you deviate from the standard of care, the
more likely it is that we extend liability further.
Efficient Administration of Law
1. If we extend liability in this case of albinism, it will
open the floodgates.
2. Reluctance to expand novel areas
Deterrence of future harmful conduct
1. Some egregious 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
3. Remember to consider the plaintiffs role in this one
Capacity to bear or distribute losses
1. When you spread losses, overall utility is increased
2. Imposing liability on corporate entities is justified
because they are better able to bear the loss by
raising prices on products
3. Discuss who should bear the loss when it comes to
allocating fault in comparative fault cases

3. Notes:
a. Talk about foreseeability first and then implicitly talk about policy
factors
b. Appropriate cases where a child can sue and also where parent
can sue for foreseeable injuries even if child is not yet conceived.
Just know that both children and parents have rights
c. Louisiana applies the duty/risk approach. If the hypo tells you
that you are in Louisiana, apply duty/risk. If you are in a common
law jurisdiction, apply the common law approach.
d. Most of the cases are resolved on foreseeability. The policy
factors are only for really, really difficult cases.
e. Ease of Association test
i. How easily can we associate this injury with the
defendants negligent conduct?
f. EGGSHELL or THINSKULL DOCTRINE
i. Imaginary plaintiff that has for instance a thin skull or
someone that is uniquely susceptible to an injury so the
defendant is responsible for all injuries including ones that
are not as forseeable.
ii. Cay v. State Department of Transportation
1. Analysis
a. Alleged negligence they built the railing too low
b. Cause in fact
i. More probably than not, this injury would not have
occurred if the railing was built to the proper height
standards.
32

c. Duty/Breach
i. Traditional duty
1. Reasonable person
2. Risk/utility
3. Negligence per se
4. Custom
ii. Reasonable ordinary prudent person/department under the
circumstances.
iii. AASHTO sets the custom of building railings to be 36.
1. Not a statute, but a custom.
iv. Did DOTD live up to the custom established in the
industry?
1. No.
v. Therefore, there was a breach of duty to build the bridge
up to the height of 36.
vi. A risk/utility balance was done, which set that the burden
of building railings at the higher height would avoid a lot of
accidents by falling. They applied the Hand formula in
making that determination.
d. Scope
i. Is there anything intervening and superseding?
1. Suicide in the case would be superseding.
ii. They apply foreseeability and ease of association test.
iii. The court rules that the harm was indeed foreseeable.
e. Injury
2. Another issue here is comparative fault
a. Lower court ruled that DOTD was 60% at fault, and Cay was 40%
at fault.
b. Manifestly erroneous standard.
i. Appellate court reallocates 90% fault to Cay and 10% to
DOTD.
3. Reasoning:
a. Bridge railing
b. Scope of the risk/scope of the duty
i. Is there anything that could be a intervening/superceding
cause?
1. Drunkeness
isnt
considered
an
intervening/superceding cause.
ii. Cannot supercede negligence through the fault of the
plaintiffif it is the fault of the plaintiff then there is simply
no duty (e.g. him jumping off the bridge no duty of the
DOT here)
iii. Drunkeness can still be a but for cause thus comparative
fault
c. Regardless what the negligent tort is (i.e. negligent infliction of emotional distress),
you must analyze the elements.
i. Tyson v. King
1. Defendant was driving his car and blacked out, drifting into plaintiffs
lane. Plaintiff was engaged in evasive maneuvers and sustained injury.
33

2. No collision between defendant and plaintiff.


3. The issue is whether the plaintiff can recover for injury even though
there was no collision between the two vehicles.
4. Scope is the difficult element here.
a. Is it foreseeable that injury can occur when people take evasive
maneuvers?
b. Obviously.
c. There is reluctance because of the floodgate issue policy factor.
This creates a to of room for unlimited liability in other cases.
5. Note 6 pg. 239 Hospital owes a duty to its patients and its visitors,
but the duty is slightly less than the duty of merchants.
6. An employer is generally vicariously liable for the actions of its
employees.
a. If it is an injury to a fellow employee and its not an intentional
tort, the recovery will be limited to workers compensation.
ii. Jones v. Robbins
1. Facts:
a. Six year old girl goes to gas station to get gas.
2. Reasoning:
a. What is the alleged act of negligence?
i. Selling gas to a 6 year old
b. 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
3. Notes:
a. Not comparative fault for mothers negligence 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.
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. Dont want people to have to act as police to their spouse.
1. One bite rule regarding dogs (and childrens acts to some extent)
iii. 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.
4. Businesses
a. Posecai v. Walmart
34

i. Involves a balancing test -- more precautions necessary in


higher crime areas.
ii. The greater the foreseeability and gravity of the risk of
harm, the greater the duty of care that will be imposed on
the business to protect customers.
iii. Like apartment rape case -- would even need to allocate to
phantom actor
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. Scope if different depending on whether the rescuer is an amateur or a
professional rescuer
ii. Amateur rescuer is usually within the scope of the risks of the negligent
defendants conduct
iii. Generally, original party will be held responsible for mere negligence of
rescuer matter of policy
1. Danger invites rescue
a. If grossly negligent rescue may not have been in the original
tortfeasors scope of duty
iv. Gann v. Matthews
1. Guy was drunk and disorderly, and the police officer who tried to arrest
him was injured because he bobbed at the wrong time and she kneed a
car.
2. C-I-F
a. But for his drunkeness, she would not have been injured.
3. Duty
a. Reasonable ordinary prudent drunk. Dont brag about having a
gun and pull out a box cutter.
4. Breach
5. Scope
a. Risks which are dependent upon the very act for which she was
hired are included in those risks for which she cannot be
compensated for.
b. i.e. she was a cop. She signed up for this.
6. Reasoning:
35

a. Professional Rescue Doctrine if the injury is within the scope of


the risk of employment, then there will not be any recovery
i. 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. She will be compensated through a compensation scheme like
workers comp.
v. Gonzales v. Kissner PROFESSIONAL RESCUERS DOCTRINE
1. The homeowner is responsible for his dog.
2. Ownership of dogs is one of the last areas of strict liability in Louisiana.
a. ONLY dogs. Doesnt apply to other animals.
b. This does not necessarily mean that the homeowner is going to
be responsible.
3. Note 2 pg. 246: No. Landowner should not be liable.
4. Note 4:
a. Suicide victim falls on pedestrian outside of Hotel Monteleone.
Court held that hotel owed no duty to the pedestrian.
b. Is the manufacturer of the oil rig responsible?
i. Important to distinguish between the manufacturer and the
operator.
d. Duty to Rescue
i. In America there is no duty to rescue
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
b. Even if you are behaving reasonably, even if you are creating
risk, you have a duty.
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
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.
36

f. Providers of Alcohol
i. LA R.S. 9:2800.1
1. Legislature states that the consumption of intoxicating beverages,
rather than the sale or serving or furnishing of such beverages, is the
proximate cause of any injury
2. Those that sell, provide, etc. alcohol to individuals over the legal
drinking age are not liable (unless they force or falsely represent that
beverage contains no alcohol affirmative act) for any harm caused to
intoxicated person himself or third party
3. You lose immunity when you serve to a minor.
ii. Berg v. Zummo
1. The issue is whether this is within the scope of the risk.
2. Facts:
a. What is an affirmative act?
i. There needs to be something in addition to just serving
(throwing someone out when unwarranted, telling
someone that they need to drink until they puke)
ii. Before we had the statute, the affirmative act requirement
would only assign liability on the bar if there were an
affirmative act. It said that there had to have been more
than just the serving taking place.
b. We are dealing with an underage so statute does not apply
c. Court gets rid of the affirmative act requirement for minors
i. Serving of alcohol itself is really an affirmative act.
d. Since there is no affirmative act, we go back to duty/risk.
3. Holding:
a. To determine liability of vendor who sells or serves to minor,
traditional duty/risk analysis is used (and no additional
affirmative act is required)
4. Notes:
i. Does the university owe a duty to protect students? If they
know of a particular instance, or history at a particular
place (fraternity) then likelihood of duty increases.
ii. Note 1: not a foreseeable result of serving alcohol that he
will grab the wheel.
1. You dont expect a 15 year old to act as such, so
there is no duty really.
iii. Note 4: If there is a licensed establishment that closes
down and then serves alcohol to an underage minor,
nothing changes. Theyre either a merchant or a social
hosts and the same rules apply.
iv. Note 6:
v. However if location off campus, then probably no duty.
b. Same duty risk analysis if it is a minor providing a minor
5. Punitive damages are awarded very sparingly in Louisiana.
a. Punishing the driver with punitive damages, not punishing the
bar, best deters drunk driving.
b. L.a. C.C. art. 2315.4 explains this.
g. Slip and Fall RS 9:28006 (on page 248)

37

i. A merchant (applies to someone selling goods, foods, wares, or merchandise


at a fixed place of business) owes a duty to keep his aisles and floors
reasonably safe.
1. Plaintiff has to plead and prove that this condition has been there for a
significant amount of time.
2. The defendant cant be everywhere at once, so if the banana peel
looks fresh then it is not reasonably known that someone will injure
himself or herself.
ii. If negligence claim, must prove:
1. Condition presented unreasonable risk of harm and was reasonably
foreseeable.
2. Merchant was aware of the condition or created the condition.
3. Merchant failed to exercise reasonable case.
iii. All of these are the same as negligence.
Statute is a little bit
unnecessary, but if there is a slip and fall case, you have to cite to the
statute.
iv. Ballas v. Kennys Key West, Inc.
1. Does 2800.6 apply in this circumstance?
a. The bar says no, because they dont sell wares, food, etc.
b. Court says that the statute does apply.
c. Plaintiff failed to carry out his burden of proving that the selling
of beer created unreasonable harm.
h. 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
In the Cox case, until the child is born alive, there are no damages for the
child.
i. Mental Anguish
i. Introduction
a. Who can recover: spouse, kids, grandkids, parents, sibling, and
grandparents. Exception is direct participant. But, can be
interpreted more broadly
2. Physical injury, courts typically allow mental anguish associated with
the injury these damages are considered parasitic
3. No physical injury thus separate tort Negligent Infliction of
Emotional Distress (NIED)
4. Courts distinguish: directed at the plaintiff and directed at a third party
a. 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
ii. Conduct Directed at Third Parties
1. Article 2315.6 on page 241!!!
38

a. Relatively narrow set of bystander cases where there is no


physical injury.
b. Strict
2. Trahan v. McManus
a. Reasoning:
i. LeJeune case where rats had gnawed on him.
ii. Misdiagnosis is not a traumatic event
iii. 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
iv. Claimant must realize at the time he witnesses, that
injuries are serious
v. 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)
vi. Event cannot happen over time
vii. HAS TO BE A BIG TRAUMATIC EVENT; the doctor letting the
son go from the hospital was not a traumatic event.
b. Holding:
i. Medical Malpractice Act 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.
c. Notes:
i. Claimant must be contemporaneously aware that the event
has caused harm to the direct victim
ii. 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 event
occurred or at a time not closely connected to the event
(practice test would be an example)
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
39

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
1. Woman driver was a direct participant in the
incidentnot just a normal bystander- hit kid bc neg
of school bus
2. Another way to interpret: violation of statutory duty
doesnt really make sense to Church
3. Either way it is an exception to 2315.6 (Therefore two
exceptions direct victims, direct participant)
4. 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
j. Misrepresentation
i. Louisiana uses a simple duty risk analysis for Misrepresentation.
ii. Barrie v. V.P. Exterminators, Inc.
1. Facts:
a. Negligent misrepresentation
2. 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. (specific
knowledge/specific person)
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
40

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.
Acot of 3rd party (specific group)
iv. THIS ALL APPLIES TO THE SCOPE ELEMENT
b. LA doesnt apply any of them.
c. They just go on ahead and use Duty/risk is used in this
exterminator case
3. 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. Tobacco companies fall into this section because they
misrepresented tobacco as actually being healthy.
i. They went from winning basically every case brought
against them to losing every case brought against them
every night.
ii. See Guidry v. U.S. Tobacco Co., 188 F. 3d 619 (5th Cir. 1999)
in Note 6 on page 285.
c. Note 7: FEMA trailer litigation.
i. Trailers had excess amounts of formaldehyde in them.
d. Spoliation destroying evidence because I know that there is
going to be litigation.
k. Negligent Hiring, Training, and Supervision
i. Roberts v. Benoit
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
2. Primary liability
a. 2315 negligence
b. scope of the risk/scope of the duty is the language for 2315
c. negligent hiring and training all falls under this.
3. On rehearing, the court discusses that he had a gun prior to being
deputized. So, cause in fact is called into question, but more probably
than not it would not have happened had he not been deputized.
4. The scope of the risk is attenuated at best. Benoit breached his
restriction to not use the gun while drinking, etc.
5. On the exam, you will always have to talk about these in the
alternative. (pg. 292-293)
6. Vicarious liability
a. 2320
b. Course and scope of the employment is the language for 2320
41

c. Course and scope ONLY applies to vicarious liability.


d. CIF, Duty, Breach, Scope, Injury
7. Notes:
a. When an employment relationship is mentioned, need to talk
about:
i. Workers compensation
ii. Vicarious liability
1. Employment
2. Course and scope
a. A single term that means the risk created is
employment rooted
iii. Negligent hiring, training
b. Note 4: negligent training. Sold guns without giving employees
any training about selling those guns. Emotional distress, so
must meet concerns under negligent infliction of emotional
distress.
i. What about K-Marts responsibility? Vicarious or primary
negligence. Either one seems to work.
ii. It is within the course and scope of employment
relationship, and it is within the scope of the risk.
iii. It was also a but-for cause.
8. THERE WILL BE A QUESTION FROM THIS MATERIAL ON THE
EXAM.
l. Negligent Entrustment
i. Analyzed under same theory as negligent hiring except parties in different
situation
ii. Joseph v. Dickerson
a. Need to turn to employee/employer type relationship mission
theory (two purposes: establish relationship and course and
scope).
i. Need negligence before you can impute anything
2. Holding:
a. No parental responsibility because she is not a minor.
b. No vicarious liability because Christina is not a minor, no
negligence was proven, and action was gratuitously performed
(no mission theory: no relationship established, course and
scope) (main point is that there was no underlying negligence).
i. Primarily, this isnt an employment relationship.
c. The exclusion was just a way for the insurance company to solicit
another policy. There was nothing wrong with Christinas ability
to drive.
d. No direct negligence of mother. Duty would encompass if Judith
knew that Christina was a bad driver -- Christina was capable.
3. Hunting case (Watson) with boy Shane is a good example of negligent
entrustment
m.Subsequent Injury
i. Involves multiple accidents
ii. Hinges on foreseeability.
iii. Strong rule of thumb: mere negligent treatment is foreseeable. Danger
invites rescue
42

iv. Only separate the two instances if there is gross negligence thus becomes
superceding cause. Original tortfeasor is still responsible for injury they
created, but not the subsequent injury (similar to second accident cases)
v. Rule: Joint tortfeasors shall not be responsible for more than his degree of
fault
vi. Medical negligence is usually within the scope of the risk of original negligent
conduct.
1. Its foreseeable, cause in fact, and the negligent conduct created the
risk, which then meant that the party was negligent.

CHAPTER 7 GENERAL DEFENSES


a. Topics covered in this chapter:
i. Plaintiff Fault
ii. Contributory Negligence
1. Last clear chance
iii. Comparative Fault
1. Pure Louisiana has pure
2. Modified
iv. Assumption of the Risk
1. Louisiana has turned it into comparative fault, with the exception of
express waivers.
v. No duty
vi. Allocation issue how much does each defendant pay?
vii. We used to have solidary liability, but now we have joint shared.
1. Allotted shares
a. Watson factors more of a comparative fault cause, but they
allocate among defendants as well.
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 (nobody really uses now) bars recovery of plaintiff
because of their own negligence
iii. ^shifts to Comparative fault works to reduce plaintiffs recovery for their
own fault; only addresses the issue of the plaintiffs fault.
iv. Allocation of fault allocating among the various defendants responsible
only for fault allocated to them
v. A few cases that used to be contributory negligence are still no recovery
called no duty cases e.g. baseball park cases. Used to be assumption of
the risk.
vi. Assumption of the Risk/Waiver Doctrine (nobody really uses anymore)
(consent in intentional torts) one who voluntarily assumes the risk of
43

negligence does NOT get any recovery. It operates as a complete bar (if you
assume the risk, then no recovery).
vii. Li v. Yellow Cab
1. Pure comparative fault theory LA
a. Woman crossed three lanes of traffic and was hit by a cab. She
was negligent in that she crossed with oncoming traffic.
b. Both were negligent.
c. Definition apportions liability in direct proportion to fault in all
cases
d. Article 2323 see page 288
i. We should know that comparative fault (deals solely with
fault of plaintiff in reducing their own recovery) and
allocation between defendants should be distinguished
ii. Also says that you need an empty chare for absent parties
remaining parties can only be responsible for their own
percentage of fault
iii. Also says that if the victim is negligent, but the other party
is intentional, then the victims recovery shall not be
reduced
viii. Dumas v. State
1. Reasoning:
a. In past, original party would be 100% responsible for death
(solidarily liable) and would be responsible to pay for all damage
(even those of negligence of treatment)however legislature got
rid of solidary liability and courts are told to assign a percentage
of fault to each responsible party
b. Court gets rid of solidary liability and replaces with comparative
faultthus each joint tortfeasor is only liable for his degree of
fault and cannot be held solidarily liable with another tortfeasor
for damages attributable to that other tortfeasors fault
c. Solidary liability and joint and severable liability are the same
thing have been eliminated in LA
2. Notes:
a. Regardless of theory (strict, absolute, negligence) fault with be
allocated. One exception is vicarious liability.
b. E.g. If you have multiple parties one negligent, one intentional,
and one comparatively negligent plaintiffthe one negligent
defendant will be responsible for his fault, but the intentional
defendant will be responsible for both his own fault and that of
the plaintiff (it is still split up though)
c. Exceptions where plaintiffs activity may bar recovery:
i. When contributory negligence is deemed the sole legal
cause of the accident
ii. Statute bars recovery
iii. Contributory negligent trespasser is barred from recovery
against a merely negligent landowner
ix. Watson v. State Farm
1. Facts:
a. Earl Creel gets a rifle for 12-year-old son Shane, and Shane
shoots a man while hunting on his farm.
44

b. You can have more than one but for cause as well as more than
one proximate cause.
c. You can also have an injury that is within the scope of the risk of
many parties
d. Start with the party closest to the negligence (Shane). Alleged
negligence was that he didnt take reasonable care to ascertain
what he was shooting at.
i. His carelessness was cause in fact, and the scope of the
duty is satisfied.
ii. All elements are satisfied so Shane is without doubt
negligence.
e. Earls negligence or PARENTAL RESPONSIBILITY:
i. Negligent entrustment, negligent training, and negligent
training.
ii. His negligence was cause-in-fact, there was a duty, and he
breached it. It was within the scope.
f. **Factors are listed which may influence the degree of fault and
can be used as guidance (similar to policy factors): This list is
the best determination of how you allocate fault between parties.
However policy factors should also be consideredbut need to
be careful how you argue policy factors to the jury. Watson
Factors.
i. Whether the conduct resulted from inadvertence or
awareness of the danger
ii. How great a risk was created by the conduct
iii. The significance of the conduct
iv. The capacities of the actor, whether superior or inferior,
and
1. Focuses on age to give dad more than son
v. Any extenuating circumstances which might require the
actor to proceed in haste, without proper though
vi. Could add a 6th = relationship between the conduct and the
causation
g. FOR EXAM dont give numbers. Dont say Earl should be given
40%. Say that Earl should be given a Fairly high percentage.
h. TALK ABOUT WATSON FACTORS ON EXAM.
i. Pick out a couple and talk about them briefly, correctly,
efficiently
ii. ***Talk about what the fact finders are going to be given
b. Assumption of Risk
i. Murray v. Ramada Inns, Inc.
1. Reasoning:
a. Assumption of risk negligence equivalent of consent in
intentional torts
i. Knowing and voluntary you know risk and walk in
regardless
b. Discussion of express, implied primary, and implied secondary
assumption of the risk that used to exist:
i. What used to be express assumption of the risk is still
express assumption: You can sign or orally commit it is a
45

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 duty on both sides in these
cases
iv. Certified question how will we treat a statute? How will
we treat assumption of the risk?
1. 3 different types of assumption cases
a. waiver - express
i. I know what the risk is and I am
voluntarily accepting it and entering into
it.
b. implied primary
i. assumption of the risk
ii. THIS MORPHS INTO NO DUTY THEN NO
BREACH
c. implied secondary
i. comparative fault
2. The only form Louisiana recognizes is Waiver or
Expressed Consent.
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.
ii. Pitre v. Louisiana Tech
1. This case is a question of Duty
2. Facts:
a. Sledding in parking lot.
3. 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 risk was too obvious that reasonable care would
have notified victim (no duty for open and obvious risks
doctrine)
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. Broussard v. State
1. This case is a question of Breach; partial issue of Facts
a. Must give this to the jury because reasonable minds could differ.
2. Has to be Open and Obvious even to idiots
a. Doctrine
46

i. The court says that there is no Open and Obvious doctrine


anymore. They say Open and Obvious is just one piece of
the risk/utility, hand formula analysis.
b. Standard
i. Risk/utility, hand formula type analysis
1. Probability open and obvious, history of tripping,
necessity of the plaintiffs conduct
2.
iii. Wolf v. Ford
1. 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 (just mention the test and
that it exists):
iv. LA has statute to lay out its factors 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
v. Ramirez v. Fair Grounds Corp.
1. Reasoning:
a. Clause is null and void that tries to limit liability regarding
personal injury.
b. 2004 is strict you get rid of the whole thing if you run the risk of
including things excluded under 2004.
c. Dont get to keep things that benefit you when you went against
public policy
d. Mitigation
i. 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
ii. Mitigation and comparative fault are different one after injury, one before
iii. Pre-Accident Conduct
1. Seat Belt Statute (pg. 332)
2. Safety Helmet Statute (pg. 332)
iv. Post-Accident Conduct
1. Jacobs v. New Orleans Public Service
i. Need not make extraordinary or impractical efforts
ii. Recovery will not be limited because of a refusal to
undergo medical treatment that holds little promise for
successful recovery
iii. Expense and inconvenience of treatment are also
considerations
47

iv. An unreasonable refusal of medical treatment which does


not aggravate his injury will not restrict a victims recovery
b. If you show that there was a failure to mitigate, then all the
damages after the injury are attributed to the plaintiff
c. Doesnt completely bar recovery of initial injury
e. Stale Claims
i. Laches and Statutes of Limitations
1. 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.
2. 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.
ii. General Statutes of Limitations (Prescriptive Statutes) See page 334
for statutes
1. 3496.1 and 9:2800.0 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. children
iii. Suspension and Interruption of Prescription
1. Best way to interrupt the prescription period is to FILE SUIT!!!
2. Solidary obligors if you file suit against one, you meet the
prescriptive period against all.
a. 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 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
48

5. Corsey v. State Department of Corrections


a. 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. 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
iii. 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
b. Notes:
i. The fourth type of contra non (knew or should have known
equity provision) is only used in exceptions where needed
e.g. latent diseases.
ii. Contra non valentum cannot extend the peremptory
period, but can extend prescription
1. Most important thing to remember is TO FILE!!!
iv. Latent diseases:
1. As a result, there are relaxed requirements regarding claim splitting
2. At what point should you reasonably know or should have known you
had an action? You need to know there is a causal connection. If you
have a pretty good suspicion of causation than statutory period has
probably begun.
v. Renfroe v. State
1. Facts:
a. State, Jefferson, and GNOEC
b. Criteria for determining whether relation back is allowed:
49

i. Amended claim must arise out of the same transaction or


occurrence set forth in the original petition;
ii. 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;
iii. 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;
iv. 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
2. 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
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)
Louisiana
Strict liability (2317 and 2317.1; 2318 and 19; 2321 and 2322 and Absolute
liability
2317 LIABILITY FOR A THING
2318 PARENTAL RESPONSIBILITY
2319 CURATORS OF THE INSANE
2321 ANIMALS
2322 - BUILDINGS
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. Imputation of liability need negligence to impute.
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
50

1. Slightly inconsistent with the Code article, but the Code will prevail.
Most courts cite the Code article and apply the law, ignoring the
statute.
iv. Note:
1. An employee who negligently causes personal injury to a third person
is liable for damages for that injury, regardless of whether his employer
also is liable under respondent superior.
v. Workers compensation does not cover injury sustained from a co employee.
b. The Employment Relationship
i. Hickman v. Southern Pacific
1. Employment relationship:
a. If there is right to control, then it is probably an employment
relationship
b. Thus a few simple factors to look at for employment relationship
would be:
i. Right to terminate/duration of employment (at will or
specific task/time)
ii. Whose equipment or tools are used?
1. If theyre using their own tools, it leans towards
independent contractor.
iii. Specific price instead of wages
1. If there is a specific price, its a contract and there is
an independent contractor relationship.
iv. Right to control right to control specific mechanisms,
work specifics, means of production
2. If you are an independent contractor, then there is no vicarious liability
unless it deals with ultrahazardous or inherently dangerous activity or
the principal retains operational control over the contractors acts or
expressly or impliedly authorizes those acts
3. Fundamental test: The single most important factor to consider in
deciding whether the employer/employee relationship exists for
purposes of 2320 is the right of the employer to control the work of the
employee.the Right of control necessarily encompasses supervision,
selection and engagement, payment of wages or salary, and the power
to dismiss
a. Roofing work done to your house independent contractor.
b. Payment for completion of the job independent contractor.
ii. Morgan v. ABC Manufacturing
1. Facts:
Goldin
Worktec
|
|
Morgan
Hines See book page 511 for diagram
a. There is some negligence on the part of Hines, a temporary
employee from Worktec (temp agency)
b. Goldin is the employer of Morgan
c. Worktec is the employer of Hines
d. Morgan is the injured party and he wants to recover from
Goldin (workers comp) but this is limited.
If Hines is an
employee of Goldin, then Hines is a co-employer to Morgan, and
workers comp doesnt apply.
51

e. Why is workers comp. limited??? maybe because of mere


negligence???
f. 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 rules that you can have two vicariously responsible
employers
c. Similar to General contractor relationship
d. Two tests used to determine whether an employee is borrowed:
i. Whose Business Test: 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
e. You can have more than one employer. Worktec lends out its
employees as a product, and should be responsible for its
product.
c. Course and Scope of Employment
i. 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
ii. Reed v. House of Dcor
1. Factors to determine course and scope (sounds a lot like factors of
employment relationship, but these are more incident specific):
a. Payment of wages by the employer
b. Employers power to control
c. Employees duty to perform the particular act
d. The time
e. The place and purpose of the act in relation to service of the
employer
f. The relationship between the employees act and the employers
business
g. Benefits received by the employer from the act
h. Motivation of the employee for performing the act and
i. The reasonable expectation of the employer that the employee
would perform the act
2. Determination of the course and scope is largely based on policy are
the risks fairly attributable to the employeris it foreseeable?
3. Going-to and Coming-from rule
a. If Church runs over someone on his way to interview faculty
candidates off campus, is LSU vicariously liable?
i. Maybe.
b. On his way to do something clearly work related off campus, but
stops by his house to let the dog out. In the course and scope?
52

i. How far away is the house and how long did it take to
deviate?
ii. Maybe.
c. Driving to Monroe to deliver CLE on behalf of LSU and get in a
wreck.
i. Probably within course and scope.
d. If you are engaged in a frolic and detour, you are not within the
course and scope.
iii. Michaleski v. Western Preferred Casualty Company
1. Notes:
a. Comparative fault if third party is shown to be negligent as well.
No allocation to employer if the employer is only liable through
vicarious liability (they just get the employees negligence
imputed). If they are directly liable through negligent hiring,
then you could allocate between vicarious and direct which
matters sometimes regarding which insurance policy will cover.
iv. Timmons v. Silman
1. Facts:
a. Lawyer -- post office
2. Reasoning:
a. Proximity of the mission (both to office and to task) is very
important, time to deviate is important, whether it happened
frequently and boss knew.
b. Foreseeability of risk is also a factor intersection that was
extremely dangerous (in this case not foreseeable by employer
because she was on frolic and detour)
c. All employees slack it is expected and foreseeable.
d. Factors to determine if deviation is substantial or insubstantial
(non-exclusive):
i. When and where, in relation to the business errand, the
employee deviates from the employment related errand
and commences with his/her personal errand
ii. Temporal and special boundaries of the deviation
iii. The nature of the employees work
iv. Additional risks created by the deviation, and
v. Surrounding circumstances
v. Richard v. Hall
1. Facts:
a. SSI -- Loch Leven
2. Reasoning:
a. Lease at Loch Leven was not a business development tool
b. Important principle: the higher in the corporate chain you are,
the more likely your activities will be seen within the course and
scope of the business
c. No negligence in this case
3. Notes:
a. Generally a parent corporation is not liable for the torts of its
subsidiary; however corporate veil may be pierced
b. Mission of the owner theory generally an owner of a vehicle is
not personally liable for damages by another person driving their
automobileexceptions:
53

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
c. All the theories ask the same question is this risk fairly
attributable to this individual (owner)?
i. Vicarious for intentional torts:
1. 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
d. 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. 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
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
f. WILL BE ON EXAM. KNOW ALL THREE PARTS OF IT AND HAVE YOUR TESTS READY
TO WRITE.
CHAPTER 8 DAMAGES
A. Generally
a. Three types of damages: Nominal, compensatory, and punitive
b. Compensatory: amount designed to place the plaintiff in the position she would
have been in if the tort had never occurred
c. Punitive: amount, in addition to compensatory damages, that is designed to
punish and deter the defendant and others like her
d. Twin goals: compensation and deterrence
B. Personal Injury Damages
a. Special Damages
i. 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.
2. 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.
54

3. Plaintiff may not obtain an award for lost wages unless he proves
positively that he would have been earning the wages but for the
accident in question basically there needs to be causation.
4. Discounting: Damages are given in lump sumsso future wages have
to be discounted.
iv. Martinez v. U.S. Fidelity
1. Income taxes: Award is not taxable, however what do you give as an
award?
b. General Damages
i. Hard to calculate.
ii. Basically just give it to the jury.
iii. E.g. pain and suffering, mental anguish, and loss of enjoyment of life
iv. Basically awards are adjusted by degree of negligence or of causation
v. Hedonic damages are lost enjoyment damages. This is distinct from pain
and suffering.
vi. A dead person cannot get hedonic damages (lost enjoyment). Dead person
can recover for pain and suffering from the point of injury to the point of
death.
C. Property Damages
a. Roman Catholic Church v. Louisiana Gas Service Company
i. General rule is that when person sustains property damage due to the fault
of another, he is entitled to recover damages including the cost of restoration
that has been or may be reasonably incurred, or, at his election, the
difference between the value of the property before or after the harm.
ii. Unless there is a reason personal to the owner for restoring the original
condition (i.e. if the cost of restoration is grossly disproportionate to the
value of the property, you are going to get the lost value)
iii. Can get restoration if property is unique or there is some personal interest
heirloom, home.
iv. Rule for lost economics regarding businesses: have to provide enough
certainty to show there is a loss, but will allow some exceptions.
D. Interest and Court Costs
a. Interest on damages (not punitive) is from date of injury, when you experience the
loss. Interest rate is in statutes.
E. Loss of Consortium Damages
a. Recovered when victim is still alive.
b. Awarded to those that surround the injured party same persons that would have
a cause of action for wrongful death
c. Reluctant to award victim can recover lost earnings and parties in family will
benefit from this
d. Courts generally reduce the consortium plaintiffs recovery by the contributory
negligence of the trauma victim
e. Finley v. Bass
i. Elements of loss of contortium:
1. Love and affection
2. Society and companionship
3. Sexual relations
a. Can the defendant prove that you werent having sexual
relations before the injury? Difficult, but possible
4. Right of performance of material services
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a. Under a typical case, you can recover for material services you
now have to perform or that you have to hire out. As long as it is
work that you would not have performed but for the accident
5. Right of support from her husband
a. We assume that some of the victims award for lost wages will be
transferred to spouse so we dont want to double award.
6. Aid and Assistance
7. Loss of felicity
ii. Always need to be concerned with double recovery (e.g. lost wages and lost
support)
iii. If you meet any of them you can gain lost consortium
iv. Notes:
1. Trauma victim doesnt claim loss of consortium for them it is
hedonic damages (loss of enjoyment)
F. Punitive Damages
a. Causation requirement and willful and wanton requirement.
b. In LA, punitive damages are only allowed when justified by statute drunk driving,
sexual abuse.
c. No punitive damages unless there are compensatory damages
d. La. C.C. Art. 2315.4 see page 388
i. Myers v. Nunsett
1. Must establish three requirements (need all three):
a. DWI
b. cause in fact and
c. wanton and reckless disregard (mere influence and impairment
does not establish this, but a high alcohol level does)
e. La. C.C. Art. 2315.7 see page 390
f. Some General Concerns
i. Courts usually tell juries to consider the:
1. wealth of the defendant,
2. severity of harm with which the plaintiff was threatened,
3. relationship b/w the harm suffered and that which was threatened,
4. amount of compensatory damages awarded,
5. egregiousness of defendants conduct, amount of any other punitive
damage awards the defendant had to pay or is threatened with paying,
and
6. any criminal punishment the defendant suffered or may suffer as a
result of the same conduct forming basis of tort suit
ii. Basically, the punitive damages must bear a reasonable relationship to
compensatory damages or else they will be reduced
iii. Put the person in the position they would have been in if the tort had never
occurred.
g. Constitutionality of Punitive Damages
i. State Farm Mutual v. Campbell
a. Gore factors guideposts used to determine if constitutional:
i. The degree of reprehensibility of the defendants
misconduct. The following are helpful
1. whether the harm caused was physical as opposed to
economic
2. tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of others
56

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
h. Insurability of Punitive Damages
i. Creech v. Aetna
1. Punitive damages can be covered by insurance unless it is excluded in
policy
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. Most commonly applied in insurance proceeds
c. 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
I. Wrongful Death and Survival Action WILL BE ON EXAM
a. IF A VICTIM DIES MUST TALK ABOUT WRONGFUL DEATH AND SURVIVAL.
b. IF YOU TALK ABOUT ONE OF THESE, YOU HAVE TO TALK ABOUT BOTH.
c. See pg. 468 for language of statute and who is allowed to recover
d. Lower category of persons can recover only if the preceding category does not
have any living members remaining. If there is both a spouse and children, all can
recover.
e. If there is more than one person in a category that applies, the damages are split
equally between those persons.
f. Survival action -- prescribes one year from the death
i. If the prescription for tort suffered expires during my lifethere is nothing
left to survive so there is no action. Survival refers to survival of action
ii. Only one year extension if the action existed at the time of death
iii. You can marry into a wrongful death and survival claim.
1. Someone is injured, you marry then, you get to recover.
iv. If family member was tortfeasor, they cannot recover damages.
v. Dead persons damages payable to beneficiary.
vi. In car accident stay alive for 6 months medical expenses, car totaled, etc.
g. Difference b/w two:
i. Survival Action: survival of the dead persons action- for the decedent (the
small amount of time he lived between injury and death)
1. Succession representative can only bring action if there are no
beneficiariesgoes to will.
a. They represent the estate of the dead person.
2. Spouse but no children spouse gets it
3. Spouse and children they all get it
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4. If there is no spouse and there are no children THEN you proceed to


the next level
a. Surviving father and mother
5. This is the same for wrongful death and survival.
ii. Wrongful death: belongs to the listed beneficiariestheir cause of action
a. Spouse & Kids
b. Parents
c. Siblings
d. Grandparents
2. Legis. judgment says that wrongful death cannot be claimed by
succession representative not entitled to this.
3. YOU STILL HAVE A SPOUSE IF DIVORCE IS NOT FINAL
4. If the wife survives the husband by 4 minutes, she inherits the
wrongful death claim. When she dies, her parents inherit that claim
not the husbands parents. Cold hearted statute.
h. 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.
i. Blanchard v. Tinsman
i. Only need to survive other person by seconds
ii. 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.
iii. Notes:
1. Adopted child is recognized, step child is not.
i. Wrongful death is usually seen as a derivative thus it
doesnt survive either.
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.
2. 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
3. Wrongful death damages:
a. Loss of love, affection, services, support, society, and grief.
4. When victim dies, putitive damages if appropriate are recoverable
under survival action and not wrongful death.
5. 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.
b. Battery exceeding consent
c. Created a hybrid doctrine of informed consent.
d. Battery claims that still exist are where there is no consent whatsoever
58

e. However where there is some consent, but not for what was done, then you have
informed consent.
f. Malpractice Crisis
i. QHCP qualified healthcare provider
ii. Insurance
iii. Medical Review Panels
1. Did they breach the standard of care and did the breach cause
damage?
iv. Cap on damages liability limited to $500,000 for pain and suffering
g. Informed consent theory:
i. Failure to adequately provide information to allow patient to decide on their
own. Duty on physicians to at least provide the information.
ii. Standard is that doctor needs to provide information that a reasonable
person would find important to make a decision and reasonable patient
wouldnt have gone through with procedure with the information (causation)
h. The Standard of Care
i. Sheeley v. Memorial Hospital
1. How do we establish custom? Three ways:
a. Local
i. Nobody uses the conspiracy of silence
ii. Strict
iii. Modified similar
iv. Specialists
v. Abandoning/limited local rule
b. Same or similar locality
i. Can go to a similar community
ii. Deals with geographic and practice area
c. Nationwide
2. Depends on facts and circumstances whether nationwide rule applies
or similar locality rule
3. OBGYN specialist can testify for family practice as long as procedure is
universal
ii. Matthies v. Mastromonoco
1. More than a minimal conversation is required.
2. Material risk those that would have some weight in a decision of a
reasonable person
3. Duty to make sure that person understands the forms.
4. Informed consent doctrine is for more than just battery.
a. It is to put the choice in the hands of the patient.
b. Nearly every jurisdiction has converted to this.
c. Even if the patient doesnt want to make a choice, the doctor still
must inform them.
5. What is the duty and how much information do they have to provide?
a. Enough that a reasonable patient can understand.
b. They must act as a reasonable physician.
6. Harm suffered must be from the risk that the physician exposed.
7. Causation: would you have undergone the procedure if you had been
given the proper information.
iii. Pizzalotto v. Wilson
1. Implied consent because she was unconscious. Consent form she
signed said nothing about this.
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2. Treated as negligent theory


a. Important because it puts it under Medical Malpractice Act.
3. Note: 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 liability is limited. Negligent you are okaybut if it
is gross negligent then not free from liability.
v. Leyva v. Iberia
1. Essentially says that you can have national experts testify regarding
standards of a similar locality.
2. Expert testimony is not required in a res ipsa case. 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 know
doctor 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. Form is not always going to be adequate needs to be particular. Form
needs to be narrowly tailored to reasonable patient under these
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circumstances. Need specific material risks no vague or indefinite


statements. Needs to be in lay terms.
3. Statute Louisiana Medical Disclosure Panel
a. Panel to create forms that are more specific to each procedure
b. If the form is provided; however it doesnt mean compliance, but
there is rebuttable presumption. You still have to have some
additional warnings in person. If you comply with the standards
that are set by the committee in most cases this compliance is
enough but there are always unique cases.
c. Needs to be some question and answer time
4. EVERYTHING ABOVE APPLIES IF YOU ARE ANY TYPE OF PHYSICIAN
DONT HAVE TO BE A QUALIFIED HEALTH CARE PROVIDER
i. The Qualified Health Care Provider Statutes The primary features:
i. 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 factormainly
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
c. Strict locality standard doesnt really help that much anymore.
d. Requires that all cases be submitted to a Medical Review Panel
(MRP)
e. If you file it in court on the last day of the prescriptive period,
youre out.
f. Say you request the review panel with one day left
i. Prescriptive period is suspended, then proceedings take
place.
ii. Once that opinion is issued, you have 90 days within which
to file your tort law suit.
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
ii. Coleman v. Deno
1. EMTALA federal statute that prohibits patient dumping which is
when someone doesnt have insurance and you refuse to treat them.
a. EMTALA doesnt eliminate right to transfer patients, but you must
make sure that patient is stabilized.
b. Requires that a patient be stabilized before you move them.
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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) MEMORIZE THESE NEXT
FACTORS!!!!!! Coleman Factors
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 treatment, and
f. Whether the tort alleged was intentional
i. If intentional, it falls outside of the scope of the MMA.
j. 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
1. Usually governed under the terms of employment arrangements.
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
v. Pg. 652 CLAIMS AGAINST PUBLIC ENTITIES FOR DEFECTIVE CONDITIONS
1. Same approach for slip and fall.
2. As a governmental entity, the public city of Baton Rouge may be
immune.
3. The most a municipal entity can be responsible for is $500k.
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.
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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:
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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
nd
b. 2 Defined Damages has to be type listed in statute
i. Occupational diseases are included too
rd
c. 3 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
e. NOT COURSE AND SCOPE
f. Workers compensation elements:
i. Employee relationship
1. Pay roll
2. Borrowing
3. Statutory only exists where there is a statute.
a. Only a statute for workers comp.
b. Under workers comp scheme, payroll and
borrowed employees dont get developed as
much
ii. In the course of and arising out of employment
iii. Injury
iv. Covered event
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
64

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.
nd
b. 2 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.
v. Recreational Use
1. Encourages land owners to open up their property to recreational use.
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)
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do a full duty risk analysis for this


2318 Parental responsibility
2319 Curators and Insane
2320 Vicarious (will deal with in a separate chapter)
2321 Animals
2322 Buildings
Only place that we really have strict liability is IN THESE CODE ARTICLES and
PRODUCT LIABILITY
Absolute Liability is liability without fault
667 Obligations in neighborhood vicinity
669
Products (composition/construction defects) and Animals (dogs only) are all that are
strict liability presently. Children are weird not negligence, strict, or absolute
Differentiate between strict and absolute liability they are different
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.

TRUNCATED HAND FORMULA


Takes out traditional duty??
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 precautions
Has been limited to piledriving and blasting in LA
A. Things
a. Loescher v. Parr (deals with 2317 pre amendment in 1996)
i. Reasoning:
1. Tree was under care of defendant owner, was defective, and defect
caused the injury
2. 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.
3. It doesnt matter whether the owner knew or shouldve known. There
was an unreasonable risk and the tree shouldve been taken down.
Thus, the owner would have not been responsible under negligence,
but under 2317 they are.
a. Under the old version of 2317, we assumed that you knew. If you
knew the tree was rotten, then it was unreasonable because you
should have gotten someone to remove it
b.
ii. Note: After 1996 this would have been analyzed under 2317.1 under a
negligence standard
b. Monson v. Travelers Property and Casualty Insurance Company
66

i. Woman steps in a hole in a grassy area between Toys R Us parking lot. She
claims Toys R Us is strictly liable for not maintaining the grassy area.
1. They have to show that Toys R Us either knew or should have known.
2. If 2317 would have been applied, Toys R Us would have likely been
found responsible because you would assume they knew the holes
were there.
a. If they knew the holes were there, did they exercise enough care
in fixing them?
3. 2317 is construed as a negligence case, and so you proceed with
duty/risk analysis. The court says that this is not a strict liability case.
4. Knowledge of the condition is an essential element for finding liability.
Plaintiff did not meet her burden of proof.
ii. Vicarious Liability
1. Parental relationship
2. Negligence of Child
3. Course and scope
iii. Negligence of Parent
1. Duty/risk
iv. Stricit liability
1. Assume knowledge of dangerous child
v. Absolute liability
1. Whether negligence or not, responsible for all harm.
c. Johnson v. Entergy
i. Reasoning:
1. Alleged act of negligence putting pole too close to the road
ii. Holding:
1. Not responsible under negligence because of the narrow chance of this
happening and no proof that this had happened in the past not on
constructive notice
B. Children
a. See 2318 in book
b. Turner v. Bucher
i. Reasoning:
1. If this was decided under vicarious liability, it would not be imputed
because child is not legally responsible for his negligence (negligence
at a young age is not legally faulty)
2. Standard: Parent (that child resides with) is responsible for anything
that would have been a tort if the kid (under the age of discernment)
were an adult i.e if activity would be negligent but for the fact they
were a child
a. It doesnt matter whether parent could have prevented it
b. Liability can be escaped if parent shows that harm was caused
by the fault of the victim, by fault of third person, or by a
fortuitous event
3. Court says the parent with whom the child resides is legally at fault
and therefore liable for the damage. Regardless of whether the parent
could or could not have prevented the damage.
4. This isnt clearly vicarious liability, negligence of parent, strict liability,
or absolutely liability. Its a case of parental liability.
5. Parental responsibility:
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a. If the kid screws up and hes not an adult, the parent is at fault.
C. Curators(caretakers) and Insane Persons
a. In 2001, it was converted to a negligence standard (thus duty/risk is used)
b. See 2319 in book (not strict liability at all)
c. Brady v. State (prior to the amendment in 2001)
i. Reasoning:
1. Policy considerations used for proximate cause of duty/risk analysis for
negligence:
a. Ease of association b/w risk and the particular injury
b. Adminstrative burden that could result from recognizing the
scope of the duty
c. Economic ability of each party to liquidate the loss
d. Moral culpability of each party
e. The type, and the social and economic utility of the defendants
activity and
f. The historical development of statutory and/or jurisprudence
2. A clerical worker was injured at a mental hospital when one of the
patients fell on her.
D. Animals
a. Amended in 1996 all animals but dogs became negligence
b. See 2321 in book
c. Dogs remained strict liability, but not pure strict liability
i. Must be a situation where you could have prevented it
ii. Also provocation can be a defense
d. Pepper v. Triplet
i. Facts:
1. Bandit
ii. Reasoning:
1. To establish claim in strict liability against a dog, plaintiff must prove:
a. Person or property was damaged by owners dog
b. Injuries could have been prevented by the owner (plaintiff must
show that dog presented an unreasonable risk of harm) and
c. Injuries did not result from the injured persons (or injured
persons animal) provocation of the dog
2. To determine whether dog is unreasonable risk of harm is basically a
balancing test of policy considerations whether risk of injury
outweighed the dogs utility
E. Buildings
a. Amended in 1996 to be negligence instead of strict liability
b. See 2322 in book
c. Weber v. Ochsner (post 1996 amendment)
CHAPTER 10 ABSOLUTE LIABILITY

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:
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o Limited to pile-driving and blasting in LA


o Limited to ultrahazardous and abnormally dangerous activities in common
law
o Basically, we will allow the activity, but if there are losses, you must pay for
them.
o Once it is shown that it is an absolute liability activity, just have to show
causation and damages
o Absolute liability comes from Article 667, 668, and 669 which are nuisance
articles.
o Common law:
Is it abnormally dangerous activity or ultrahazardous?
Other activites are included (crop dusting, transporting moving
houses, transporting chemicals)
Page 487 lists abnormally dangerous activities
o In LA:
Absolute liability is limited to piledriving and blasting
o Injury still has to be 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
o If there are precautions that could have been taken (insulating wires) then it
is not an absolute liability questionit is negligence
o Just know that nuisance is form of absolute liability, but treated differently
o Once you establish absolute liability, then you must show that the damages
were natural and anticipated.
Holland v. Keaveny
o Blasters demolished a house and bees swarmed killing a neighboring dog.
o Not negligent, because the blasters couldnt foresee that bees would swarm
and kill the dog after the blasting.
o Not absolute liability, because it could not have been reasonably anticipated
that the bees would have swarmed due to blasting and killed the dog.
Not a natural and anticipated result.
o Absolute liability
High degree of risk that cannot be eliminated through due care
Kent v. Gulf States Utility
o 520 of the Restatement on pg. 532
facts listed that are required for an activity to be abnormally
dangerous.
High degree of risk
Likely that the harm will be great
Inability to eliminate risk through due care
Activity is not a matter of common usage
Inappropriateness of the activity where it is carried out
Extend to which its value to the community is outweighed by its
dangerousness
o Injury must result from injury-causing activity such that the plaintiff cannot
protect himself from the risk of harm.
Briley v. Mitchell
Professional rescuers doctrine doesnt apply, as capturing a wild animal
is not easily associated with the job of a police officer.
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Under the current version of the Code article, we would impose a


negligence standard.
Butler v. Baber
Plaintiff alleges that defendants dredging damaged his oyster beds.
Does Louisiana apply Art. 667?
The court analyzed it as common law nuisance, so yes.
Nuisance/Interference of operating horse stables
Smells, stench, noise, etc.
Location is important.
Farm around a lot of farms isnt a
nuisance. Farm in the middle of New Orleans could be a
nuisance.
Just know that under Article 667 these sorts of actions are going to be
treated as negligence.

CHAPTER 16 PRODUCTS LIABILITY


A. Introductory Note
a. Privity required that the plaintiff be a party to the contract
b. McPherson v. Buick is the landmark case that eliminated the idea of privity.
c. 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
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 manufacturer 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 manufacturer 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, manufacturer defective products was liable in contract
for personal injury damages
4. Some doubt concerning whether non-purchasers could bring an action
in redhibition
iv. Even after the LPLA, we still talk about redhibition because statute says that
it is the exclusive remedy other than redhibition.
v. Young v. Ford Motor Company
1. Issue:
a. What types of damages are allowed under a redhibitory claim?
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2. Reasoning:
a. Under redhibition, could recover economic damages
b. Court says that an individual can recover under mental distress
without having physical damages if the principle objective is a
nonpecuniary interest (e.g. antique car)principle objective is a
non-pecuniary interest
3. Note: If you suffer some physical injury, you can recover mental
distress associated with that injury
b. Strict Liability
i. Halphen v. Johns-Manville Sales Corporation
1. Four
strict
liability
theories
and
whether
manufacturers
intent/knowledge should matter/is material
a. #1 -- A product is unreasonably dangerous per se if a reasonable
person would conclude that the danger-in-fact of the product,
whether foreseeable or not, outweighs the utility of the product
i. Manufacturers knowledge, intent does not matter
ii. However, a warning may reduce the danger in fact
b. #2 A product is unreasonable dangerous in construction or
composition if at the time it leaves the control of its
manufacturer it contains an unintended abnormality or condition
which makes the product more dangerous that it was designed to
be
i. Subject to liability without proof that there was any
negligence on its part in creating or failing to discover the
flaw
ii. Evidence of knowledge was available to the manufacturer
has no relevance because product failed to conform even
to manufacturers own standards
c. #3 A product may be unreasonably dangerous if the
manufacturer fails to adequate warn about a danger related to
the way the product is designed
i. Manu. required to warn for dangers inherent to normal use
which is not within the knowledge or obvious to ordinary
user
ii. Manu. is held to the knowledge and skill of an expert
iii. Manu. has a duty to test and inspect its product
iv. Evidence as to knowledge and skill of an expert may be
admissible in determining whether duty was breached
d. #4 A product may be unreasonably dangerous because of its
design for any of three reasons
1. A reasonable person would conclude that the danger
in fact, whether foreseeable or not, outweighs the
utility of the product
2. Although balancing under the risk-utility test leads to
the conclusion that the product is not unreasonably
danger per se alternative products were available
to serve the same needs and desires with less risk of
harm
3. Although the utility of the product outweighs its
danger in fact, there was a feasible way to design the
product with less harmful consequences
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e. Express warranty is also written into the LPLA.


1. The manufacturer makes an affirmative statement
saying the product meets a safety condition, but it
doesnt.
ii. 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.
iii. 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. 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
b. LPLA eliminates the unreasonably dangerous per se category
C. Louisiana Products Liability Act
a. Pg. 690!!! 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
i. It abrogates strict liability and is the controlling law on products liability.
ii. IT ONLY APPLIES TO MANUFACTURERS
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?
a. As a general proposition, Church doesnt think the LPLA fits well
with food preparation. But if it is prepared it could be argued.
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. If the statute does not consider an entity a manu. then maybe retailer
that has 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
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b. Design Defect
c. Warning
d. Warranty more of a contract theory; written, verbal warning
and a breach thereto
3. (c): Timing: Discusses when the characteristic of the product that
renders it unreasonably dangerous must exist
a. Ruling is that defect has to exist at the time the product left the
manu. for construction/composition
b. Ruling is that defect has to exist at time it left manu. or arose out
of reasonably anticipated use for design defect and warning
elements
iv. 2800.55 Construction or Composition Claim:
1. Where the product does not live up to the companys own
specifications bad batch
2. Unreasonably dangerous product only care about the product (no
interest in what Coke knew about the danger)
3. This is strict liability
4. Note: strict liability and negligence are different because strict liability
does not have a knowledge requirement
v. 2800.56 Design Defect:
1. Risk/Utility Balance
2. Involves a number of different decisions at different times in the game
3. Can have state of the art defense
4. Hand formula analysis
a. Have to show existence of an alternative design
b. Balance the expected loss with the cost of the design change
5. Problems:
a. There is not an alternative design for everything. E.g. lawn darts
i. Manufacturer is let off.
vi. 2800.57 Warning:
1. Also a balancing act
2. When do we not require a warning?
a. If danger is so obvious that a warning is not necessary.
b. For those uses that are out of scope of reasonable use.
3. Warning is serving some purpose
a. Creates an atmosphere where people are aware of the risks
associated with products
4. It is possible that a warning could be used to cure a design defect
expect people to take warning into account
vii. Notes:
1. Like a negligence action, an injury must be proven
2. In summary, Construction/Composition = strict liability; design defect
and warning = negligence in essences; warning = contract case.
3. LPLA provides exclusive theories of liability for manufacturers; however
LA courts continue to allow redhibition claims for economic loss.
4. LPLA excludes claims of negligence against manufacturers
5. LPLA is not retroactive (after Sept. 1, 1988) for purposes of the LPLA,
a cause of action accrues when the claimant suffers damage
viii. LPLA establishes
D. Application of the Statute
a. Bernard v. Ferrellgas
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i. Reasoning:
1. Design defect case.
2. What is the alternative design? Regulator and warning pilot light
3. Dangerous characteristic existed at the time the product left the
manufacturer control
a. Determine whether the product is unreasonably dangerous
i. If there existed an alternative design for the product that
was capable of preventing the claimants damage (injury
would have been prevented or risk substantially reduced
(basically substantial factor) but for failure to adopt
alternative design) and
ii. Risk/utility analysis: The likelihood that the products
design would cause the claimants damage and the gravity
of that damage outweighed the burden on the manu. of
adopting such alternative design and the adverse effect, if
any, of such alternative design on the utility of the product.
An adequate warning shall be considered in evaluating the
likelihood of damage
4. Simplyonce we know that there is an alternative design? Balance the
expected loss from the reduction in risk from the alternative design
against the lost utility
5. Risk doesnt need to be eliminated
b. Krummel v. Bombardier Corp.
i. Reasoning:
1. Warning question
2. Need a cost/benefit analysis both for design case and for warning label
casehowever the analysis for each case should differ.
a. For design defect:
Balance products design and expected
damage with the burden of alternative design
b. For warning cases:
Balance expected gain from providing
warning (provide warning where it is calculated to do good) with
cost of providing that warning
3. There is no duty to warn if you did not know and should not have
expected to find this out through research. Also, no duty to warn for
those things that everybody knows about.
ii. Notes:
1. Both design defect and inadequate warning cases require a form of
risk-utility balancing
2. Under design defect claim, there is an affirmative defense based on
the manu. inability to know about the alternative design at the time
the product left the manu. control state of the art defense
(2800:59(a)(2))
a. State of the art defense doesnt apply to strict liability.
3. Interesting that warning can be used against you you knew that it
was reasonably anticipated to use in a certain way and they is why you
warned against it.
4. Remington case
a. Shooting a gun is reasonably anticipated use.
b. Barksdale and the majority argue that reasonably anticipated use
does not include firing the gun without the part in the gun that
was removed from cleaning. Reasonably anticipated use is firing
74

the gun that is put back together the way it was supposed to be
put back together.
E. Liability of the Non-Manufacturer Seller
a. It is possible that an injured plaintiff may recover against other participants in the
distribution chain by applying several theories
i. 1st - If the plaintiffs contract is with the retailer/seller, he/she should have a
full range of actions that exist under the law of contracts
ii. 2nd - Negligence is always available. However analysis of duty changes
depending on the role of the distributor/wholesaler/retailer
iii. 3rd as a variation on negligence, a retailer may be under a duty to provide
operating instructions or warnings to the purchaser
F. Federal Preemption
i. Preemption doctrine of federal government adopting rules, regulations that
preempt state regulations
ii. Federal drug regulations can pre-empt state tort rights.
1. Ex. Drugs.
CHAPTER 17 REPUTATIONAL AND PRIVACY TORTS
A. Defamation
a. Elements:
i. False statement
ii. Damaging to reputation
iii. Published
b. Cannot be a statement of opinion has to be able to be proven or not proven
i. Needs to be a statement of fact
c. First Amendment plays a role: In these cases, actual malice must be proven
means that they knew it was false or treated information with reckless disregard
i. Whether statement is one of public concern
ii. Public figure
iii. Whether made by a media defendant
d. Truth is an absolute defense to defamation
e. The more random/outlandish the statement, the more likely that actual malice is
involved
f. If it is a truly private matter, then defamation is applied through simple intent do
not need actual malice
B. Invasion of Privacy
a. Four types of invasion:
i. Intrusion on seclusion taking pictures of very private events
ii. Publication of private facts
iii. False light creating the impression that you are involved in a movement
that you are not. E.g. appear in picture of pro choice rally and you are pro
life
1. Heightened standard of intent
2. Not a lot of these cases.
iv. Publicity Those who invest in their own publicity want to protect their
investment interest
1. Vanna White/Samsung case
2. Publicity and nonpublicity cases are separate nonpublicity cases are
the girls gone wild type cases where individual does not want
publicity
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b. If you have a true statement you cannot claim defamation, but could go for
invasion of privacy 1st amendment test from above still applies

76