Louisiana Bar Exam - Torts

Battery

(1) Intent ("substantially certain") of harmful or offensive contact

(2) Contact

(3) Harm or Offense

Assault

(1) Reasonable apprehension of an imminent battery

(2) Intent

(3) Apparent means to complete battery

False Imprisonment

(1) Intent to confine

(2) Actual confinement (no reasonable means of escape)

IIED

(1) Specific intent (desire to inflict severe emotional distress)

(2) Extreme/Outrageous behavior

(3) Causation of Plaintiff's severe emotional distress

(4) Severe emotional distress (must prove harm)

Trespass to Land

(1) Intent to enter property (don't need to know it belongs to another)

(2) Entrance

Good Faith = without knowledge or with necessity (only actual damages)

Bad Faith = with knowledge or without necessity (nominal damages)

Trespass to Chattel and Conversion

(1) Intent to interfere with dominion or use

(2) Interference

Chattel = compensate for damage

Conversion = replace full value

Appropriation

(1) Appropriated

(2) To Defendant's Benefit

(3) Plaintiff's Name or Likeness

(4) Causing Actual Damage

Intrusion

(1) Intentional intrusion

(2) Upon seclusion

(3) Offensive to reasonable person

Defamation

(1) False Statement

(2) Published

(3) Damages (but not for libel or slander per se)

If matter of public concern, First Amendment applies and Plaintiff must show intent/recklessness if Plaintiff is public figure or negligence if Plaintiff is private figure

Publicity of Private Life

(1) Publicity to public

(2) About private life

(3) Highly offensive and not of reasonable importance to public

Defenses to Intentional Torts

(1) Consent

(2) Self-Defense

(3) Defense of Others

(4) Deadly force okay as of 2006 to prevent forcible offense against person or property

(5) Defense of Property

(6) Arrest Privleges

Negligence

(1) Cause-in-fact

(2) Duty/Risk

(3) Breach of Duty

(4) Injury

Cause in fact

But for - would harm to the victim have occurred in the absence of defendant’s negligence?

Substantial factor - did the defendant's conduct significantly contribute to the harm suffered by the victim? Utilized when there are multiple actors/factors

Duty

Reasonable Person Standard - the defendant must exhibit the level of care shown by an ordinary reasonably prudent person under like circumstances

Scope of the Duty

Scope of the duty asks whether this defendant is responsible to this plaintiff for this injury and whether the harm to the victim was a reasonably foreseeable result of defendant’s conduct

Pitre Factors

Need for compensation of losses

Historical development of precedent

Moral aspects of defendants conduct

Efficient Administration of law

Deterrence of future harmful conduct

Capacity to bear/distribute losses

Breach

When the defendant’s conduct falls below the standard of care owed to the plaintiff

Injury

The victim must have suffered an actual, compensable injury

Res Ipsa Loquitor

(1) Event doesn't happen without negligence

(2) Other responsible causes are eliminated

(3) Negligence is within scope of Defendant's duty

If Plaintiff proves res ipsa, burden shifts to Defendant to prove he is not negligent

Slip & Fall

(1) Condition of unreasonable risk of harm

(2) Harm reasonably foreseeable

(3) Defendant had actual or constructive knowledge

(4) Fail to exercise reasonable care

NIED

(1) Witness accident or come on scene shortly thereafter

(2) Direct victim harm so great it is reasonable that Plaintiff had harm

(3) Serious and reasonably foreseeable emotional distress

(4) Claimants: Spouse, kids, grandparents/kids, parents, sibling

Medical Malpractice

Unintentional tort based on health care rendered to patient

Standard of Care - possessed and exercised by members of profession in that community and specialty

Qualified Healthcare Provider - minimum $100,000 insurance coverage for medical malpractice and suit must go to medical review panel first (prescription is suspended during review panel); $500,000 cap on damages

Prescription - 1 year from discovery, 3 years from act

Informed Consent - patient must consent (save in emergency); doctor must disclose all material risks

Coleman Factors

Was the wrong treatment related/caused by dereliction of professional skill;

Does the wrong require expert medical evidence to determine breach;

Does the wrong involve an assessment of the patient’s condition;

Was there a patient-physician relationship;

Would the injury have occurred had the patient not sought treatment; and

Was the alleged tort intentional?

Providers of Alcohol

Permitted sellers and hosts are not liable for injuries off premises unless they served to a minor

LPLA

Exclusive remedy against manufacturers for personal injuries

Elements:

(1) Defendant is a manufacturer (person in the business of manufacturing product for placement into trade or commerce)

(2) Proximate cause (injury caused because product unreasonably dangerous for reasonably anticipated use)

(3) Unreasonably dangerous in either construction/composition, design, warning

(4) Reasonably anticipated use

Dogs

Owner Strictly Liable if:

(1) Owner could have prevented damage

(2) Injury wasn't provoked

For other animals, owner must first know that animal's behavior would cause damage

Vicarious Liability

(1) Employment relationship (can be borrowed employee)

(2) Course and Scope of employment (no frolic and detour)

(3) Underlying fault (usually negligence)

Employer/employee bound in solido

Possible negligent hiring if employer did not exercise reasonable care in hiring

Comparative Fault

Factors:

(1) Conduct inadvertent or aware of danger?

(2) How great was the risk?

(3) Significance of what was sought by conduct?

(4) Capacities of actors?

(5) Extenuating circumstances?

(6) Relationship between fault/negligent conduct and harm?

Worker's Compensation

Exclusive remedy for an employee against his employer/co-employee, unless there is an intentional tort (for intentional torts, can recover in both, but offset tort damages with WCA benefits)

Elements:

(1) Employment Relationship

(2) Injury must arise out of employment AND in course of employment

Exclusions: horseplay, personal disputes unrelated to employment

Damages

Nominal = small award when no real loss (only some intentional torts)

Compensatory = return Plaintiff to position he would have been in if not for injury (Special = determined with great certainty; General = speculative)

Punitive = Punish Defendant (only allowed in DWI, Sexual Abuse of Minor, Child Pornography)

Wrongful Death and Survival Actions

Wrongful Death actions are intended to compensate the beneficiaries for their own losses resulting from the decedent's death.

Survival Actions recover damages suffered by the victim from the time the injury until death.
Classes: spouse/children, parents, siblings, grandparents
(higher class beneficiary excludes lower classes; all within one class may recover)

Defenses = victim's fault, beneficiary's fault

Wrongful Death - Damages recoverable

Loss of consortium, loss of financial support, and emotional distress expenses.

Survival Actions - Damages recoverable

Loss of wages, medical expenses, and funeral costs.

Conflicts

Law of state whose policies would be most seriously impaired governs tort action

To determine serious impairment:

(1) Contacts of Parties

(2) Policies and Needs of Interstate System

(3) Deterrence of Wrongful Conduct