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TORTS I. Introduction A. Basis of Liability: art. 2315: act causing damage to another obliges him to repair it B.

Most Frequently Tested: know these and youll pass 1. Negligence 2. Vicarious Liability (if you see employer/employee, its VL) 3. Workers Compensation Immunity 4. Products Liability (LPLA applies, not negligence law) 5. Wrongful Death & Survival 6. Strict Liability 7. Absolute Liability (blasting, pile driving) 8. Intentional Torts 9. Choice of Law 10. Medical Malpractice 11. Public Duty II. Intentional Torts A. Importance: Comp immunity exception, expands scope of liability (unforeseeable), proof of dmg often not required, NO heightened additional damages for tort B. Intent: subjective state of Ds mind: purpose or substantial certainty 1. Desired consequences of act or knew consequence reasonably certain to follow act 2. Transferred (intend 1, complete other): A, B, FI, trespasses, conversion; not IIED C. Intentional Torts Against Persons 1. Battery: intentional contact that is harmful or offensive a. intend the contact, not the damage/harm/offense b. contact P or something closely connected to P c. Harm or Offense: harmful or offensive to person of ordinary sensibilities 2. Assault: intentionally created reasonable apprehension of imminent battery a. Intend the reasonable apprehension b. Reasonable apprehension of imminent battery - future threats may be IIED, not assault; not fear, just apprehension c. apparent means to complete the battery 3. False Imprisonment: intend actual confinement a. reasonable means of escape eliminates liability 4. IIED: intend severe emotional distress to occur, extreme & outrageous a. prescription doesnt start until it finishes if IIED happens for long time D. Intentional Torts Against Property 1. Trespass to Land: intentional interference with immovables a. Intent to enter 1. GF (necessity): actual dmgs only; BF (no necy): even nominal dmgs b. Entrance on property of another 2. Trespass to Chattel and Conversion (a TTC resulting in forced sale) a. Intent to interfere w/ U/E b. Interference: substantial dominion or damage to chattel of another c. Damages: conversion is value of chattel, TTC is damage or lost use 3. Intentional Interference w/ Contractual Relationship (no NICR in La.)

a. Contract b. Knowledge of K by D c. Intentional Interference (causes breach) d. Causation of damages E. Reputational and Informational Torts 1. Defamation a. Elements: 1. False and defamatory stmt (not opinion, hyperbole, satire) re another a. Truth absolute defense b. if defamation per se, presumption of falsity, malice, and injury c. if not, P must prove these things 2. Unprivileged publication to a. oral or written 3. Fault (N or more) on part of publisher and 4. Injury b. Constitutional aspects 1. P: public official, figure (must prove actual malice: actual knowledge/reckless disregard for T/F), or private individual (N by CCE reqd if public concern, and by POE if private concern)? 2. Subject matter: private or public concern? c. Privileges/defenses: truth, stmt in court/legislature, others conditional b/c circums. 2. Invasion of Privacy: four categories: stmt need not be false, malice not required a. Intrusion on Seclusion 1. Intentional intrusion 2. Upon seclusion, solitude, or private affairs (if reas. expec. of privacy) 3. Highly offensive to reasonable person b. Appropriation of Name of Likeness (can be a phrase, identity, etc.) 1. D appropriates 2. To his benefit 3. Ps name or likeness 4. Without consent 5. Causing actual damages c. Publicity Given to Private Life of Facts 1. Publicity to public (size depends on circums., more than one person) 2. About private life 3. Highly offensive and not reasonably important to public d. False Light Publicity : e.g., pretending someone endorses something e. Defenses: fair/accurate reporting, consent, post NSF checks; lack malice/truth no 3. Malicious Prosecution a. Elements 1. Original criminal/civil proceeding with P as D and D as P 2. Bona fide termination in favor of present P 3. Absence of probable cause (this is malice) for prior proceeding, and 4. Damages to P (can be presumed if others met) b. Malice: knowledge of falsity/reckless disregard for truth 4. Abuse of Process: ulterior purpose and willful improper act in use of process 2

- not directly related to action; if it is, its probably malicious prosecution F. Other Defenses and Privileges to Intentional Torts - make sure scope is not exceeded 1. Consent: e.g., voluntary fighting; express/implied; vitiates intent 2. Self Defense: reasonable force if reasonable person would conclude it necessary 3. Defense of Others: same, but you bear risk of mistake unless parent defending C 4. Arrest (officer w/warrant, only whats necy) & Detention (store O if probable cause) 5. Defense of Property (possessor has priv of reas force, not deadly, risk for mistake) 6. Recapture of Chattels (same, but O has priv to recapture, store O only if hot pursuit) 7. Deadly Force: no duty to retreat, presumption reas belief for home/car; atty fees if D! 8. Public (G not liable if harm avoided) and Private Necessity (actual dmgs only) III. Negligence: objective standard of care not met and causes injury to another A. Elements: memorize in order (analysis similar to CL, but language different) 1. Cause in Fact 2. Duty/Risk 3. Breach 4. Injury B. Actual Causation: can be either but-for or substantial factor 1. Causal chain is between the act and the injury; whether provable depends on injury C. Traditional Duty: standard of care 1. RPPLSC 2. Other tests for establishing duty: a. Negligence per se: in La., these are mere evidence of negligence 1. P in class of persons statute protects and risk in class prevented? b. Customary behavior: how people do behave as evidence of how people should 1. by P or D c. Risk/Utility Balancing: Learned hand: B < PL = N - P=poss. of resulting injury, L=magnitude of injury, PL = expected loss d. Res ipsa loquitur: event doesnt happen unless N, no other cause, w/in Ds duty 1. Similar to directed verdict: if reasonable minds cant differ as to above . . . 2. You get a jury instruction D. Scope of Duty/Scope of Risk: whether this D should be liable for inj to this P in this case 1. Factors to consider: a. Foreseeability: person and risk 1. Ps injury foreseeable as possible/probable injury to protected class of Ps 2. Risk in foreseeable general class of risk b. Ease of association b/w injury, act: LaSCt. uses language; concept=foreseeability c. Superceding and intervening causes 1. Superceding cause relieves D of liability 2. Intervening cause occurs b/w act & injury, may/may not become superceding a. More foreseeable an event/more culpable an actmore likely superceding - Cat 5, suicide, criminal act (unless duty is to prevent suicide/crime) d. Policy considerations - need to compensate loss, development of precedent, moral aspects of Ds act, deterrence, capacity to bear loss 3

E. Breach of Duty: conduct falls below objective standard of care required by duty F. Harm/Injury: actual damages must be shown; personal or property IV. Special Negligence Topics A. Generally: specific applications of the general La. duty/risk negligence formulation B. Controlling Third Parties 1. Jailers, Custodians, Chaperon, Parents may have duty to protect s from their charge 2. Business Os must use reasonable care to protect patrons, warn of known dangers C. Premise Liability: Slip and Fall 1. Duty of Merchant: reasonable care to keep place safe, free of haz conditions 2. P must prove: a. condition presented unreasonable risk of harm b. harm reasonably foreseeable c. merchant created or had notice (actual or constructive [time period]) of condition d. merchant failed to exercised reasonable care (lack of cleanup policy insufficient) 3. P may also sue owners employee directly if he caused injury D. Negligent Infliction of Emotional Distress: limited if unaccompanied by physical injury 1. Bystander Claim: just like Texas, except neednt witness it: you just have to come upon it before victims condition changes substantially; ascendents/descendents only 2. Fear of contracting a disease after exposure E. Medical Malpractice 1. Standard: care possessed/exercised by members of profession in good standing a. if specialtywhat specialists would do 2. Proving Negligence: a. RIL, e.g., sponge b. Lost chance of survival is compensable injury here: did P lose chance b/c Ds N? 3. Statutory Regulation: defines malpractice, health care provider, qualified health care provider (has $100k min insurance); a. QHCP get these benefits: 1. Med review panel before filing (prescription suspended) 2. Panel issues opinion whether evidence shows violation of std breached 3. $100k per P/incident, $500k total recovery (except fut meds), even if mult Ds 4. Paid from Patient Comp Fund 4. Informed Consent: unless emergency, doc cant act beyond patients authorization a. Doc must act as RPP in obtaining consent: disclose material risks unless obvious b. Would RPP in Ps position have consented if material risks had been disclosed? c. If written consent, raises rebuttable presumption of consent d. Prescription: 1y act or discovery, but never more than 3y (not peremptive) F. Professional Negligence/Malpractice (same stds. for other professionals) 1. Attorneys: shifting burden: once L takes case and doesnt file, C has presumption of harm, and L has burden to show C couldnt have succeeded; causation, dmgs are for j a. w/in 1y of act or discovery, but never more than 3y (this 3y is peremptive) G. Providers of Alcohol 1. Consumption, not sale/service, of alcohol, is proximate cause of any injury 2. Permitted sellers not responsible for injuries off premises under sold to D <21 3. No social host liability unless served to D <21 4

V. Strict Liability: mostly eliminated: things and buildingsN, personsvicarious liability A. Things: elements: 1. Ruin/vice/defect 2. Custody=not actual possession, just right to control of thing that benefits you 3. Knowledge (actual/constructive) of RVD 4. Damage could have been prevented by reasonable care 5. D failed to exercise reasonable care B. Buildings: elements 1. Building/appurtenance 2. RVD creates unreasonable risk of harm 3. Knowledge (actual/constructive) 4. Ownership (can delegate this liability to your lessees) 5. Causation by RVD C. Obligations of Neighborhood: sort of like nuisance: activities on your land damage U/E 1. Knowledge (actual/constructive) that landowners activity would cause damage a. Also, if landlord knows of tenants activities, landlord is liable 2. Damage could have been prevented by reasonable care 3. Landowner failed to use reasonable care. D. Children: parents liable unless emancipated (marriage, judgt etc.) even if C lives w/other E. Animals: N for all except dogs; STRICT LIABILITY FOR DOGS (defense: provocation) VI. Absolute Liability: Ultra-hazardous Activity: Blasting and Pile Driving VII. Products Liability A. Louisiana Products Liability Act: exclusive PI remedy v. manufacturers of products 1. D is manufacturer a. if you hold yourself out; if seller controls manufacture; component parts maker 2. Unreasonably dangerous characteristic of product (in 1 of 4 ways): a. Construction or composition (when left manufacturers hands) b. Design (when left manufacturers hands or reasonably anticipated modification) - safer, alternative design existed c. Inadequate Warning (when left manuf or reasonably anticipated modiciation) - likelihood of danger, feasibility of warning, would P appreciate the danger - defenses: danger obvious, P knew, M didnt know danger, removed label d. Breach of Manufacturers Express Warranty (when left M hands, reas antic mod) - product didnt conform to EW that induced P to use, or false W caused injury 3. Reasonably anticipated use by P or another person a. What manufacturer could anticipate at time of manufacture 4. Proximately caused damage B. Liability for Non-Manufacturers: apply duty/risk N law or redhibition K action: elements: 1. Not fit for intended use 2. P wouldnt have bought if knew of defect 3. Vice existed before sale 4. Damages turn on D-sellers knowledge of vice: 5

if unaware, price + expenses; if aware, damages + fees

VIII. Vicarious Liability: masters liable for servants A. Elements: 1. Employment relationship (on payroll or borrowed, not independent contractor) 2. Employee in course and scope 3. Employee Negligent B. Employment Relationship: control test 1. Borrowed Servants: same: right of control? Actual control? Loaning ER relinquish control? Doing borrowing ERs work? 2. Dual Employment: lending ER liable for EE if lending ER has econ int in lending 3. Independent Contractors: control test a. But ER still liable if: inherently dangerous or UHZ activities, authg unsafe work C. Course and Scope: not FROLIC and DETOUR 1. Factors: Payment, Control, Time/place/purpose of act, relationship between EEs act and ERs biz, benefits received by ER, EEs duty to perform act, ERs expectation 2. High ranking employees: considering authority, was conduct reasonably foreseeable? 3. Intentional Torts: ER liable if act primarily employment rooted, reasonably incidental to duties D. Indemnity: ER and EE are bound in solido when there is a vicarious liability 1. ER cant seek contribution or indemnification from EE after a conventional release E. Negligent Hiring: reasonable care to hire EEs who wont pose s a serious risk of harm IX. Defenses/Immunities to Tort Liability A. Comparative Fault: LOUISIANA IS PURE COMPARATIVE FAULT 1. Simply reduce Ps recovery by the amount of his negligence, even if 99% 2. Applies even where strict and absolute liability 3. Fault of all is compared, even phantom, immune, insolvent, settling, and non-parties B. Assumption of Risk: assumed by comparative negligence unless express WAIVER C. Liberative Prescription: 1y for most torts; 3y from maj if C abuse (10y if permanent) 1. Interruption to one is interruption as to all joint obligors 2. Interruption to successor of joint obligor as to all if obligation is indivisible D. Limitations of Liability/Immunity 1. Sovereign immunity is waived, but procedure is set out for suing government a. No jury trial unless waived b. $500k general damages cap (pain, suffering) c. immunity for discretionary/policymaking acts 2. Public Duty Doctrine: limits liability for faulty provision of govt services; prove: a. Custody/ownership of defective thing by public entity b. Unreasonable risk of harm from defect c. Knowledge (actual/constructive) of defect by public entity d. Public entity failed to take corrective action w/in reasonable time e. Causation 3. Family Immunities: during relationship spouses v spouse, C v parents prohibited 4. Recreational land immunity act 5. Charitable and Public Service Activities 6

a. Immunity for Gratuitous Aid in Emergency (i.e. bystander at scene of accident) b. Immunity for Common Circumstances 1. parade and festivals 2. free services at community clinics 3. donors to food banks 4. sheriffs for prisoners work 5. parking lots/meters 6. school volunteers 7. dmg to aircraft at parish airports E. Workers Compensation 1. The WCA provides an exclusive remedy for an EE v. his ER or co-EE where the statute is met. The ER and the co-EE remain liable for intentional acts. This is a compromise statute to benefit all involved. 2. Injury must arise out of/in course of employt (time, place of accident, origin of risk) 3. Coverage voided by horseplay, personal dispute unrelated to employt, intentional act X. Solidary Liability A. Solidary/Joint and Several Liability 1. Eliminated by comparative fault allocation 2. exception: conspiracy to commit intentional tort creates solidary liability XI. Damages A. Kinds of Damages 1. Nominal 2. Compensatory: puts P back where he was before a. Special: amount can be determined with certainty, specifically alleged in petition b. General: amount is speculative c. Hedonic: cannot engage in pleasurable activities 3. Punitive: only available by statute, must prove wanton and reckless disregard, etc. a. DWI (even if just property dmg), sexual abuse of minor, child porn B. Collateral Source Rule: Ps tort recovery from D unaffected by non-D insurance 1. D gets no credit, P may receive double recovery 2. Insurance maintained by P, gratuities to P, employment benefits, SS, welfare C. Economic Loss: you dont get it (maybe if physical injury, unclear) D. Property Damage 1. Measure: diminution in value if partial destruction, FMV if total 2. Choice of remedies in property damage cases: a. Recover costs incurred to restore, or b. Value before and after, unless c. Cost to restore is disproportionate to its value, then only b. unless 1. Restoration for personal reason to O or 2. O will, in fact, make repairs 3. Mental Anguish: only if youre close nearby and have actual psychological trauma E. Loss of Consortium (society, services, and sex) 1. Hierarchy of Beneficiaries (if higher recovers, lower cant) a. Spouses and C b. Parents 7

c. Siblings d. Grandparents XII. Wrongful Death and Survival Actions A. Generally 1. Death required 2. Wrongful Death is brought by beneficiaries to recover for their damages 3. Survival: by designated beneficiaries to recover for decedents dmgs had he lived 4. Both rights are heritable B. Designated Beneficiaries: divided equally among those in a category 1. Hierarchy: all beneficiaries in one category may recover, but this precludes lowers a. Spouse/Children b. Parents c. Siblings d. Grandparents e. Succession Representative C. Defenses: comparative fault; if beneficiary at fault, they get nothing 1. Settlement of decedents PI claim prior to death bars survival; can settle WD prior! 2. Prescription: 1y from death XIII. Conflict of Laws Multistate contacts: domicile, transaction, location of subject matter A. General Provisions 1. Apply states law whose policies most seriously impaired, or only one state has int 2. Depecage: possible to apply state1 to issue1, state2 to issue2, etc. 3. Renvoi: whether to apply other states conflicts laws in addition to substantive law 4. Domicile: Louisiana law governs domicile. B. Tort Provisions 1. Serious Policy Impairment Test 2. Products Liability: La law applies when La. domiciliary injured anywhere 3. Punitive Damages: not awarded by a Louisiana court unless authorized by: a. law of conduct and either law of injury situs or Ds domicile b. law of injury situs and Ds domicile 4. Domicile for Tortfeasor Juridical Person: if domiciled elsewhere but tort liability incurred from doing business here, it shall be treated as a Louisiana domiciliary