duty risk formula

negligence defined and civil code

Negligence is the failure to exercise reasonable care under the circumstance. The foundation for all torts is article 2315 which provides that “every act whatever of man that cause damages obliges himself to whose fault it happen to be to repair it”.

common law duty risk

Under the traditional common law duty risk formula, in order to establish a prima facie case of negligence the following elements need to be met by the preponderance of the evidence: 1) duty, 2) breach, 3) causation, and 4) damages.

louisiana duty risk

However, under Louisiana jurisprudence duty risk analysis, in order to establish a prima facie case of negligence the following elements need to be met by the preponderance of the evidence: 1) cause in fact, 2) duty (traditional and scope of duty), 3) breach of duty, 4) defenses, and 5) damages.

cause in fact definition 

In order to prove a factual case of cause in fact under Louisiana law, there are two methods that may be employed: the (1) But for analysis or the (2) Substantial factor test.

but for analysis

The “but for analysis” ask whether the damage would have occurred in the absence of the defendant’s negligence.

substantial factor test

Whereas the “substantial factor” test ask whether the defendant’s conduct was a substantial factor in causing the plaintiff’s damage, despite the presence of other outside factors.

duty

The threshold issue in any negligence action is duty, which is a question of law that determines whether the defendant owed the plaintiff a duty. To prove the duty element the plaintiff must satisfy two sub-elements: 1) traditional duty and 2) scope of duty.

traditional duty

Traditional duty ask whether a duty exits, here the plaintiff must define the standard of care (duty) the defendant was required to act under: 1) Normal Standard of Care, 2) Volitation of statues, 3) Custom, 4) Res Ispa loqutior, and 5) special duties.

Normal Standard of Care

Normal Standard of Care is established by the reasonable man standard of care where one must behave as a reasonable prudent person under all circumstances.

Violation  of statues

Violation of statues is a non-tort statue to help define the standard of care/duty/breach of statue and must ask two questions: 1) is the plaintiff within the class of person that statue is designed to protect? 2) did the plaintiff suffer the type of damages the statue designed to protect against.

Custom

Custom is helps define any industry standard of care/duty over what every ordinary man is doing. it ask whether there is causation connection between the custom et the conduct that would likely prevented the harm?

Res Ispa Loquitor

Res Ispa Loquitor is that it “speaks for itself” and  the existence of the facts which he contends give him a cause of action. The plaintiff must show "what happened” through direct or circumstantial evidence.

Special duties 

Special duties is legally recongized relationship that looks at whether or not there is an affirmative obligation to protect another from risk of harm.

Scope of duty

Scope of duty  or proximate cause of an injury is the primary or moving cause that produces the injury and without which the accident could not have happened. It asks whether the defendant should be responsible for this plaintiff, for this injury.(vince v. Koontz) There are three test that may be use: 1)Foreseeability Test, 2) Ease of Association, and 3) Pitre Policy Factors.

Foreseeability Test

Foreseeability Test asks whether the defendant should have or could have reasonable foreseen the injuries that resulted from his actions. There are two sub elements: a) intervening cause and b) superseding cause.  intervening cause is an action occuring between the defendant’s act and the plaintiff’s damages. These event don’t break the chain of causation. Superseding cause is an intervening cause that is so unforeseeable that breaks the chain of causation and relives the defendant of liability.

Ease of Association

Ease of Association ask how easily can you associate the conduct of the defendant with the resulting harm?

the Pitre Policy Factors

Then there are the Pitre Policy Factors which include 1) Morality of the defendant’s conduct; 2) efficient administration of law; 3) deterrence; 4) plaintiff’s need for compensation; 5) ability to bear or distribute losses; and 6) precedents.

breach of duty

In order to establish a breach of duty, the plaintiff must prove that the defendant failed to conform to a certain standard of conduct.  There are two ways to test breach of duty: 1) Risk Utility Balancing test and 2) the learned hand formula.

Risk utility balancing 

Risk utility balancing test determines whether the defendant’s actions were justifiable with the risk of the outcome occurred.

The learned hand formula

The learned hand formula evaluates if the cost of precautions is less than the probability and severity of harm. It is used to measure the burden of prevention against the expected loss. If the burden of prevention is greater than the expected loss, the breach of duty did not occur. (P x L > B).

defenses

 In terms of defenses for the defendant, Louisiana courts employ a comparative fault scale that allocates fault based on percentages of each party’s involvement.

The Watson Factors

The Watson Factors are utilized to alleviate some fault placed on the defendant. These factors include: (1) Whether the conduct was accidental or done with awareness of danger (2) How great a risk was created by the conduct. (3) The significance of what was sought by the conduct (4) The capacities of the actor, whether superior or inferior (5) Were there urgent circumstances requiring quick action without thought?

damages

Thus, building on all of this the plaintiff could provide that damages have been suffered by his person or property. There are three types of damages that can be present: 1) Compensatory, 2) Punitive, and 3) Nominal.

Nominal damages

Nominal damages are awarded where plaintiff establishes the invasion of a right but no real damages

Compensatory damage 

Compensatory damage amounts are designed to place the plaintiff in the position she would have been in if the tort had never occurred.

Punitive damages  

Punitive damages  are granted for punishment and to deter similar actions that may occur in the future.