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					                                                                                              Torts
                                                                                    Professor White
                                                                                   Semester Outline
CHAPTER 1. INTRODUCTION

Tort law generally comes after legislative law (damage-allocating statute) and contractual law. If
there is no applicable damage-allocating statute or contractual provision and the victim seeks to
impose the loss upon the actor, traditional tort law rules apply. Over many years and millions of
cases, the common law has developed an approach to resolving tort claims which focuses upon
the general risk which the actor’s conduct created, and the specific risk which the victim
suffered. LA. Law applies this same “general risk/special risk” concept.

TORT- a civil wrong, other than a breach of contract, for which the law will provide a remedy in
the form of damages
            Article 2315- Every act whatever a man that causes damage to another obliges
              him by whose fault it happened and repair it. This is the most important article in
              the LA. Civil Code, and is the fountainhead of tort liability in LA.

Goals or functions of Tort Liability:
   1. Compensation of the victim for harm resulting from another’s conduct
   2. Placing the cost of such compensation on those who, in justice, ought to bear it, but only
       on such persons
           A. spreading the loss over as large a number of people as possible while maintaining
               fairness
   3. Preventing future losses and harms
           A. deterring undesirable conduct
           B. not over deterring desirable conduct

FAULT- This is what you have to prove in order to prove liability. It encompasses intentional
torts and negligence. Also have liability without fault (strict, absolute, or vicarious). In 1996 La.
eliminated strict liability for custodians of unreasonably dangerous things, owners of
unreasonably dangerous buildings, and owners of animals (but dog owners are still strictly
liable). Also, La. limited absolute liability to those engaged in pile driving or blasting with
explosives.
        Intentional, wanton and reckless conduct and negligence: blameworthy
        Strict, absolute, and vicarious: not blameworthy

Six Types of Condemned Beahvior

The first inquiry in the traditional tort approach is identifying the general type of risk that may
apply…is there a general principle of tort law which condemns the actor’s conduct? If there is,
then the other question is whether the general risk protects against the specific risk that caused
the damage, i.e., should the actor be liable to this victim for these damages occurring in this
particular manner? There are six types of conduct which tort law generally condemns:
1) where the actor’s conduct is intentional,
2) where the actor’s conduct was willful or wanton,
3) where the actor’s conduct was negligence,
4) where the actor’s relationship to a person makes the actor liable for the wrongful conduct of
that person (vicarious liability),
5) where the actor’s relationship to a thing makes the actor liable for the damage-causing
condition of the thing (strict liability), and
6) where the actor participates in an activity which subjects him or her to liability for the
damages caused by that activity (absolute liability).
*This preceding paragraph is important…It is a sketch of what we will want to ask ourselves
when answering an exam problem
- - When the actor’s conduct does not fit within one of these six general risks, traditional tort law
dictates that the loss should stay where it is…with the victim.




                                                  2
CHAPTER 2 INTENTIONAL TORTS

-- A voluntary act while intending consequences that interfere with the interests of another in a
manner that the law prohibits; an actor has intent sufficient to commit an intentional tort if he
subjectively desires the prohibited consequences of his actions regardless of how unlikely their
occurrence is, or if she has knowledge that that the prohibited consequences are substantially
certain to follow from her conduct no matter what results she subjectively desires; the
determination is a subjective inquiry
             assault, battery, false imprisonment, trespass to land, trespass to chattel,
                conversion
             is the most blameworthy type of tortuous conduct because the unlawful
                consequences the tortfeasor inflicts on the victim by his conduct are intended

 -- To prove his case and recover, the P must prove that the D acted with the particular mental
state of intent. (intent is often difficult to prove)

A. INTENT
These next couple of cases consider the meaning of intent as an element that must be proven for
all intentional tort cases.

       Garratt v. Dailey (Wash 1955)

Overview: Brian, an infant, deliberately pulled chair from under Naomi. Jury finds that Brian
was trying to push the chair toward Naomi.
Held: The intent necessary is that the actor desires the consequences of his act, or that he
believes that the consequences are substantially certain to follow. Had the P proved that D
moved the chair while she was in the act of sitting down, Brian’s action would patently have
been for the purpose or with the intent of causing the Ps bodily harm.
* “It is not enough that the act itself is intentionally done and this, even though the actor realizes
or should realize that it contains a very grave risk of bringing about the contact or apprehension.
Such realization may make the actor’s conduct negligent or even reckless, but unless he realizes
that to a substantial certainty, the contact or apprehension will result, the actor has not that
intention which is necessary to make him liable.” (from the Restatement)
* But, here, IT would be established if it was proven that when D moved chair, he knew with
substantial certainty that the P would attempt to sit down where the chair had been.

Notes
1. There are two ways to satisfy intent under the definition: one who has either 1) purpose or 2)
knowledge to a substantial certainty has intent.
       HYPO A: D sees P, is enemy, walking far away. D says to people around him, “There is
       no way I can hit him, but it’s worth a try.” D throws rock and hits and injures P. Did D
       have intent to commit a tort? (Purpose)

       HYPO B: D walks up to a group and says, “I have acid in this bucket, and I am going to
       throw the bucket at you. I love you all, and I sincerely hope that it does not hurt anyone.”




                                                  3
       D throws acid toward the group, and several people are burned. D cries and tries to
       administer first aid. Did D have intent to commit a tort? (knowledge)

2. Tender years doctrine. Law conclusively presumes that a child is not capable of negligence.
(Rule of 7’s)???

       Caudle v. Betts (La. 1981)

OV: At Christmas party, D shocked the back of Ps neck with a condenser and chased P with it
until he locked himself in his office. P complained of pains after the incident. He sued D
individually and D’s car company
Held: It is sufficient if the actor intends to inflict either a harmful or offensive contact without
the other’s consent. It’s not purpose to have ultimate consequences but purpose to cause
touching.

       Funeral Services v. Bluefield Comm Hospital (W. Va. 1991)

OV: Mortician embalmed corpse that he was unaware was infected w/AIDS
Held: Was mortician who embalmed a corpse, unaware that it was infected w/AIDS, subject to a
battery? No
-- There seemed to be intent b/c of subst. cert. that there would be contact with the blood
-- In order to recover, though, P must show that there was harmful or offensive touching b/c he
was exposed to a contagion. In effect, there wasn’t contact beyond what he consented to
Bottom Line: People come into contact w/ harmful things all the time. Can’t recover based on
D’s fear. Must show exposure. Probably a better case for hospital’s negligence.

       Davis v. White (Va. 1982)

OV: D shot P in stomach w/gun. D intended to shoot someone else, but missed and hit P.
Held: D committed a wrongful act that was intentional. These actions cannot be excused solely
b/c they missed intended victim.
-- Under doctrine of transferred intent, one who intends a battery is liable for that battery when
he unexpectedly hits a stranger instead of the intended victim
-- There need be no actual intent to injure the particular person who is injured.
-- Transferred Intent can be from one tort to another or from one person to another
Note: Transferred intent is not a rule, and Courts do not always transfer intent. In a La. case, a D
wanted to scare a co-worker w/ a rifle that he thought was unloaded and accidentally shot P.
Court said no battery b/c D did not have intent to commit battery.

Specific Intentional Torts

B. BATTERY

    Protects a person’s interest in being free from physical contact w/ one’s person
    Operative Principle: intent to cause a harmful or offensive touching




                                                   4
      An (1. act) which is (2. intentional) as a (3. harmful or offensive touching) and (4. not
         consented toP must prove this as a cause of action)
      Victim does not need to be aware of the contact when it occurs
      Do not have to prove damages w/ intentional torts (only w/ negligence). But, may be
         able to recover compensatory damages (pain and suff., med. exp., consortium), or
         punitive (designed to punish).
1) An act is a voluntary movement of the body
2) Intent → purpose or substantial certainty of contact
3) Harmful or offensive contact → context is important
4) Not consented to → P has to prove this as an element of the cause of action
-- If prove 1-4, might not get damages, although you “win” (i.e. nominal damages)
-- maybe get punitive or compensatory damages

       Caudle v. Betts (LA. 1987)

OV: D found liable for shocking an employee in fun:
Held: The intention need not be malicious nor need it be an intention to inflict actual damage. It
is sufficient if the actor intends to inflict either a harmful or offensive contact w/out the other’s
consent. A D’s liability for harm resulting from a battery extends to consequences which the D
did not intend and could not have foreseen
* Battery does not require direct bodily b/w the actor and victim; contact may be with an
inanimate object controlled or precipitated by the actor.
* Sequence: 1) Did you intend touching? 2) Was it harmful or offensive? 3) Damages?

       Leichtman v. WLW Jacor Communications (Ohio 1994)

OV: A person in radio studio blew smoke in an anti-smoking advocate’s face.
Held: The blowing of the smoke was a battery, no matter how trivial the incident
BL: This is a battery, but the damages will be nominal at best
* If the contact is not harmful but just offensive (as here), it must be offensive to a person of
ordinary sensibilities).
Issue Spotting: Court says that the employer is not legally responsible for the intentional torts of
its employees that do not facilitate or promote its business…But, the employer may be
responsible under “respondeat superior” b/c its employee is acting w/in course and scope of
employment. VICARIOUS LIABILITY.

C. ASSUALT

    Protects a person’s interst in being free from apprehension of harmful or offensive
     contacts w/ her person
    Must be an (1. intentional act) that (2. places plaintiff in reasonable apprehension) of (3.
     imminent bodily harm).
    Can suffer an assault w/out a battery, i.e., if I swing at you and miss and you see it
    Can suffer battery w/out assault, i.e., if I punch you from behind and you don’t see
     it…can also suffer both (swing and hit and P seeing it)
    Alternate Definition: An attempted but failed battery



                                                  5
       Dickins v. Puryear (N.C. 1981)

OV: Ole Man Dickens messed around with D’s daughter. Ds people beat P with sticks,
handcuffed him to machinery, roughed him up. D threatened him w/ castration and death
Held: Beating and Cuffing were batteries. The threats of castration and death were not an assault
b/c threat wasn’t imminent (D threatened him w/ death in future if P didn’t do certain things like
go home and pull phone out of wall)

NOTES:
1) Apprehension is defeined in Restatement as belief “that the act may result in imminent contact
unless prevented from so resulting by the other’s self-defensive action or by his flight or by the
intervention of some outside force. It is not the same thing as fear.
--- i.e.: I could threaten you. You may not fear me, but you have a right to be free from
apprehending such contacts, and the law does not require you to flee to avoid your threatened
contact
2) Imminent means “no significant delay.” See p. 36 for hypo
3) Words alone usually aren’t sufficient. Have to show that you can do it. There are some
scenarios in which words alone will do it.

C. FALSE IMPRISONMENT

    Protects a person’s interest in having one’s body free from constraint or confinement.
    Has 4 elements: 1) Intent to confine; 2) person is conscious of confinement or is harmed
     by it; 3) P did not consent to the confinement; 4) the confinement was not otherwise
     privileged
    Classsic Privileges: privilege of officers to arrest (turns on probable cause that crime was
     committed), shopkeepers to detain
    In many jurisdictions, Court says if there is a reasonable means of escape, then there is no
     false imprisonment

       Parvi v. City of Kingston (N.Y. 1977)

OV: Police officers drive two men outside the city limits who were acting boisterously.
Held: Men were struck by a car after the pigs dropped them off. One killed, one injured.
Elements 1 and 3 are not a problem here. As for 2, Court highlights that memory of confinement
is not the same as consciousness of confinement (latter is more important). As for 4, officers are
not privileged to arrest someone for the sole purpose of running him out of town. A person who
has had too much to drink is not a chattel to be transported from one locus to another at the whim
or convenience of police officers.
BL: Court says that officers didn’t use their power and privilege to arrest in a criminal sense,
rather, they confined them in a tort sense.

La. C. Cr.P. Art. 215 Detention and Arrest of Shoplifters




                                                6
       A. (1) A peace officer, merchant, or a specially authorized employee or agent of a
          merchant, may use reasonable force to detain a person for questioning on the
          merchant’s premises, for a length of time, not to exceed 60 minutes, unless it is
          reasonable under the circumstances that the person be detained longer, when he has
          reasonable cause to believe that the person has committed a theft of goods held for
          sale by the merchant, regardless of the actual value of the goods. The merchant or
          his employee or agent may also detain such a person for arrest by a peace officer.
          The detention shall not constitute an arrest.
          (2) A peace officer may, without a warrant, arrest a person when he has reasonable
          grounds to believe the person has committed a theft of goods held for sale by the
          merchant, regardless of the actual value of the goods. A complaint made to a peace
          officer by a merchant or a merchant’s employee or agent shall constitute reasonable
          cause for the officer making the arrest

       Derouen v. Miller (La. App. 3rd Cir. 1993)

OV: A Winn Dixie employee suspected that P shoplifted. He asked P to go to the back of the
store with him. He then called the police. P was in back of store 15 minutes b/f police arrived.
P was put in the car by police, arrested, and brought to station.
Held: In question here is 4th element. Court says that the detention of Miller, based on
reasonable cause, should have been followed by questioning.
BL: The amendment (Art. 215) protects merchants who have conducted a reasonable post-
detention inquiry and held the person for arrest. Not so in this case.

Note: La. courts have defined statutory term “reasonable cause to believe” as “articulable
knowledge of particular facts.”

E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
    IIED is the tort that is toughest to discern
    Courts are concerned about how to verify that a P has suffered severe emotional distress,
      and how a judge or jury is to quantify damages for such an injury.
    How do you determine an outrageous act, or severe emotional distress?
    Three elements: 1) Intentional act 2) Extreme and outrageous 3) Severe emotional
      distress
    Context is important

   Nickerson v. Hodges (La. 1920)

OV: Dumb ass woman, in the famous words of Neil Young, “has been searchin’ for a [pot] of
gold.” P became very upset when she found out it was a joke. She had invested a lot of hope
and energy into it.
Held: Court: This was no doubt intended as a practical joke. However, results were quite
serious. Court cites her mental suffering, humiliation, disappointment, and conviction. Court
said if she were still alive they would award her a substantial sum.
BL: This lady is vulnerable. Extreme and outrageous turns on context. They turn a practical joke
(a normal occurrence) in such a way that makes it outrageous. CONTEXT!



                                                7
       White v. Monsanto Company (La. 1991)

OV: Boss became angry and yelled profanities at a group, including P, a church-going woman.
P was very upset and had a panic attack
Held: Denied recovery b/c the brief isolated experience of improper behavior was the kind of
unpleasant experience persons must expect to endure from time to time. The D’s knowledge that
P is susceptible to distress is a factor, but the mere fact that the other will regard the conduct as
insulting or will have feelings hurt is not enough.
BL: Liability can only arise when there is a desire to inflict severe emotional distress or where he
knows that such distress is substantially certain to follow. Conduct was uncalled for, crude, and
rough, but not tortious.

Note: Hard to recover in the workplace. Must involve a pattern of deliberate, repeated
harassment over a period of time (i.e., sexual harass.) Also vulnerable victims (child).


F. PROPERTY TORTS: TRESPASS TO LAND, CONVERSION, AND TRESPASS TO
CHATTEL

       a. Trespass to Land

                  Protects the possessory interest in real property
                  Elements: 1) An act, 2) intent to accomplish entry onto the land (simply intent
                   to put one foot in front of the other and walk), and 3) the accomplishment
                  Operative Principle: the unlawful physical invasion of the property of another

       Herrin v. Sutherland (Mont. 1925)

OV: D repeatedly discharged a gun over P’s said premises, “thereby preventing plaintiff from
the quiet, undisturbed, peaceful enjoyment of his dwelling-house, ranch and property.
Held: D committed a technical trespass at least. W/in reasonable limitations, land includes not
only the surface but also the space above and the part beneath
BL: P as owner of the soil owned upward to an indefinite extent. Though there is a cause of
action, this is a case of nominal damages.

Note: The intent required for trespass is easily satisfied- it does not necessarily involve
blameworthiness: it is the intent to enter the land. So, if I go onto land thinking it is my friend
Matt’s, but it is Jim’s, I have committed a trespass, even though I didn’t want to.



       b. Conversion and Trespass to Chattels
              Both protect possessory interest in personal property (chattels)
              Historically, this applied to tangible personal property, but this doesn’t seem
                to be a limitation on tort applicability (see Compuserve v Cyber)


                                                  8
                    Conversion: 1) An act, 2) Intent to the exercise of dominion and control over
                     the personal property, 3) Accomplishing
                  Restatement: factors to consider on whether or not interference is great
                     enough to constitute conversion- a) extent and duration of control, b) D’s
                     intent to cliam a right to the property, c) D’s good faith, d) harm done,
                     e)expense or inconvenience caused. If interference is substantial enough, D is
                     said to have “exercised dominion and control” over prop.
                  If interference is not substantial enough, will probably be characterized as
                     “intermeddling,” and thus treapass to chattel
                  Trespass to Chattels: 1) An act, 2) Intent to interfere (intermeddle) w/
                     possession of the property, 3) Interfere
                  Whether a D has committed a conversion or tres. to chat. is often a matter of
                     degree, that is, how substantially did D interfere with P’s possessory interest?
                  Remedies: Conversion- the full value of the property that has essentially been
                     destroyed or stolen from the possessor. A converter is said to have “bought”
                     the thing he converted
                     Trespass to chattel- unlike most intentional torts, there is a requirement that
                     P prove that he suffered actual damages
Simple hypos: #1 I pull your dog’s ear and injure it, probably trespass to chattel. I take your dog
and throw it from balcony, I probably have “converted” your dog.
#2 I take your car w/out permission and drive it for an hour b/f returning it, most likely trespass
to chattel. I take it and keep it for a year or two, though, conversion.

        Compuserve Inc. v. Cyber Promotions, Inc. (Ohio 1997)

OV: P was receiving massive amounts of junk mail from D. P requested they stop. Volume
increased. P received customer complaints.
Held: Court: This is trespass to chattels. P has a possessory interest in computer systems. More,
D’s actions are clearly intentional. Even though it isn’t physically damaged, this type of
intermeddling damages or impairs value of property.
BL: “One who intentionally intermeddles w/ another’s chattel is subject to liability only if his
intermeddling is harmful to the possessor’s materially valuable interest in the physical condition,
quality, or value of the chattel, or if the possessor is deprived of the chattel for a substantial time,
or some other legally protected interest is affected.”

        Dual Drilling v. Mills Equipment (La. 1998)

OV: D’s asserted both dominion and a right of ownership over a rig which it did not legally
possess. This was done out of mistake.
Held: Intent is important here. It is not whether or not D intended to cut a rig not its own, but
whether it intended the cutting. This seriously interfered w/ P’s property rights. So, P certainly
has the right to recover the property’s value. D ordered to pay for the full value of the rig at the
time of the conversion.

Note: The gist of conversion is that D has so seriously interfered with the P’s rights in a chattel
that the appropriate remedy is a forced sale to the D; thus, P recovers the full value of the chattel.


                                                   9
Important Notes on Intentional Torts:

1) CAUSATION- P must establish that D’s IT was both a cause-in-fact and a legal cause of his
damages. A D who has committed an intentional tort may be liable for damages even if those
damages are remote. An intentional tortfeasor is liable for all consequences which “directly
follow” from his action, whether foreseeable or not. (Caudle v. Betts). In Pitre v. Opelousas
General Hosp., ct. said a D who intentionally or recklessly causes injury is in bad faith and is
liable for all damages.

2) DAMAGES- La. generally does not permit recovery of punitive damages. There are cases
when D’s conduct is so significantly outrageous, cts will do more than “make the victim whole,”
in effect awarding disguised punitive damages. Exceptions- drunk driving accidents and sexual
abuse of persons 17 or younger.



G. DEFENSES TO INTENTIONAL TORTS

       1. Consent
              The most common defense to IT’s
              All intended wrongs have in common the element that they are inflicted w/out
                the consent of the victim
              Prosser: Consent is not a defense or a privilege, but a negation
              “volenti non fit injuria- to one who is willing, no wrong is done.” This is a
                fundamental principle of the common law
              If you have a failure of consent, then you don’t automatically have a tort.
                Lack of consent is not a cause of action, but it is an element to the defense of a
                cause of action
              Problems of consent have mostly to do with locating when consent has been
                given, determining for what behavior consent has been given, and identifying
                circumstances when consent, though given, was defective.



There are 2 different kinds of lack of information:
   1) Mistakes of law
   2) Mistakes of fact

   Fricke v. Owens-Corning Fiberglass Corp. (La. 1990)

OV: Man was face down at bottom of vat. 76 year-old (B) was moving too slow to rescue, so
other man(F) moved him out of his way and went himself. He ended up dying.
Held: Plaintiffs argue that B’s acts and omissions causing F to go down into the vat amounted to
an IT. It is sufficient, remember, if the actor intends to inflict either a harmful or offensive
contact w/out other’s consent. Court says that F consented to whatever harmful or offensive


                                                10
contact that B desired or believed to a substantial certainty would befall F when he went to
rescue. Neither man knew the vat contained lethal vapors. Further, there was no indication that
B knew of the nature of the harm and didn’t tell.
BL: F consented for himself. No one can consent for another.
* There are some possible flaws to consent here: 1) Lack of info, 2) Misrepresentation of facts,
3) Responsibility to inform substitute, 4) Incapacitation

Notes:
1) Consent is assent by the subject of an offensive act, agreeing to that act. It may be
communicated by language or physical act. It reflects the notion of autonomy in tort law.

 A. ESTABLISHING CONSENT

       Cole v. State of LA. (La. 2002)

OV: Prison guard sustained injuries during a prison riot simulation seminar.
Held: DPSC held that he consented to strikes by volunteering for exercise. Court: This is absurd.
It is conceivable that he consented to minor injury, but not such brutality. Even if we assume he
initially consented to harmful touching, this consent was vitiated. When a person voluntarily
participates in an altercation, he may not recover for the injuries that he incurs, unless force in
excess of that necessary was used and its use is not reasonably anticipated. The force here
against P was “unnecessary and unanticipated.”
BL: The use of unnecessary and unanticipated force vitiates consent.

Notes:
1) Tort litigation often arises in similar situations. P expects some contact, maybe even injury,
but sues when injury exceeds his expectations.
-- In Andrepont, P was hit in mouth by a baseball bat. 1st Cir. held that consent went way
beyond what was reasonably given.
-- In White, 4th Cir. found that Ps injuries were w/in the scope of the consent. Fight outside a
bar, P hit in mouth w/ a cast on D’s arm. Held: P was well aware of the cast when he went to
fight. Also, rejected that his consent was vitiated by his inebriated state.


B. “IMPLED CONSENT” AND MEDICAL TREATMENT

    In medical treatment cases, courts often speak of implied consent.
    Consent is rather deemed to have been evidenced by the P’s behavior or other evidence.
     (Circumstances reveal that the person would have consented)
    Medical Malpractice Statute (p. 71) says written consent to medical treatment means a
     handwritten consent which sets forth the nature and purpose of the procedure and the
     known risks.

   Pizzaloto v. Wilson (La. 1983)




                                                11
OV: Doctor removed a woman’s reproductive organs w/out her consent. Woman signed a
standard consent form; form made no mention of the procedure that doctor performed.
Held: Court says woman did not expressly or impliedly consent to a removal of her reproductive
organs. Regardless of the reasonableness of the surgery or its eventual necessity, a physician
may not act beyond his patient’s authorization, except when a situation seriously threatens the
health or life of the patient.
BL: The doctrine of consent to medical treatment is rooted in the idea that a person has the right
to make major decisions regarding his own body.

Notes:
1) Today, La. law treats most medical malpractice as negligence cases even though those cases
might be viewed as a failure of consent. Early development of liability for failure to obtain
informed consent was based on concepts of battery and unconsented touching. Now we view it
as a breach of the doctor’s duty to disclose info. in obtaining consent.
2) In cases of medical emergency, consent can be implied




C. DURATION OF CONSENT

    Is there an expiration date of consent?
    Simple rule applies: Consent ends the moment it is withdrawn

   McAndrews v. Roy (La. 1st Cir. 1991)

OV: D published before and after pictures of P ten years after the pics were taken. D consented
10 years earlier, but D made no effort to contact P to still if it was still OK.
Held: D argues that it was incumbent upon to P to revoke consent if he no longer desired that
pics be used. Court says it was reasonable for P to assume that D decided not to use them. D
should have sought renewal of permission. It would place an unreasonable burden on P to hold
that he was under a duty to revoke a gratuitous authorization given many years before.


D. FAILURES OF CONSENT

       K v L (Cal. 1980)

OV: K says L falsely represented that she was taking birth-control pills, and his reliance on that
caused a pregnancy and an unwanted baby girl.
Held: Court says this is a private matter and Court should not define a standard of conduct for
these types of wrongs.
BL: La. courts have refused to recognize a claim for fraudulent inducement to sexual acts

Notes:
1) Fraud is ordinarily a defect to consent



                                                12
-- Doe v. Magic Johnson- Court held that a person who has knowledge of his infection w/ a
venereal disease and knows that the partner does not, commits a battery by having sex w/out
informing partner of infected status.

2) Duress is also a defect to consent (consent extracted under duress)
-- Mobsters making someone an offer they can’t refuse
-- Courts have also struggled with this in sexual harassment cases in which P claims she
consented b/c of a fear of losing a job or being demoted
3) Incapacity and Consent
-- Insane people may not be capable of consenting to an IT… “If a person has such a want of
reason, memory, and intelligence as prevents him from comprehending the nature and
consequences of his acts, he cannot at the same time intentionally inflict injury.”
-- Mental disability does not completely preempt the ability to consent to a tort.
-- Courts are prepared to consider, though, mental ability and family circumstances in terms of
evaluating the consent given.

4) Consent and Minors
-- Generally, children may consent to IT’s
-- This is likely subject to considerations related to the child’s age and level of understanding
-- Very young children are probably not capable of consenting for legal purposes…children of
“tender years” or younger than the “age of discernment” gives courts problems searching for
intent or the ability to consent


       2. PRIVILEGES

A. NECESSITY

    May be invoked when D, in the course of defending himself or his property or others or
     their property, from some threat of imminent harm for which P was not responsible,
     intentionally does some act reasonably deemed necessary toward that end which results
     in injury to D’s property, and which otherwise would be a trespass or conversion
    There are two types: Public and Private



 Public Necessity

-- Arises when natural forces or third parties require the destruction of the property of some to
save the lives or property of other people
-- Classic case: Fire roaring through a city. Public Nec. would trump compensation here.

       Bass v. State of LA. (La. 1882)

Held: State has the exclusive right to determine the propriety, location, and mode of building
levees w/in her borders.



                                                13
BL: There is an implied assent on every member of community that his own individual welfare,
in cases of public necessity, shall yield to that of the community. The laws, while maybe not
enjoyable, are not unconstitutional, so no compensation is made

 Private Necessity

-- When there is no public interest involved and the actor uses or destroys someone else’s
property to protect his own interests (but he must compensate the owner for damages).
-- Is limited to risks of death, serious bodily harm, or substantial property damage; “mere
inconvenience or delay does not rise to the level of necessity.”
-- Compensation is usually available. In Vincent v. Lake Erie, D’s were liable for damage to
dock caused by ship moored there to avoid storm
* Very important to distinguish from a tort (trespass, conversion, etc.). This is a privilege that
the D may invoke


B. SELF DEFENSE

    One is privileged to use reasonable force to defend oneself against a real or reasonably
     apparent attack by another. Key inquiry is reasonable belief under the circumstances
     (threat must be reasonable)
    Privilege extends only to repelling the attack, not to retaliation when no longer threatened
     (response must be reasonable)
    Is an issue for trier of fact- Considerations: relative size of the parties, their ages,
     strength, reputation for violence, degree of harm reasonably feared, and the presence or
     absence of weapons
    If excessive force is used, the victim can be liable for battery (or worse). Thus, if Jim
     attacks Fred with his peg leg, threatening to kick him, Stan is not privileged to shoot him

   Slayton v. McDonald (La. 1997)

OV: After an argument on a school bus, P showed up at D’s home. P threatened him and would
not leave. D shot P in the knee.
Held: Court said use of the dangerous weapon was justified b/c fear of D was genuine and likely
to produce similar emotions in reasonable men. Court looks at various factors to find that self-
defense was reasonable (reputation, size, threat, etc.). Court also held there was no reasonable
opportunity for retreat
* Although D used a deadly weapon, he used it in a way that he calculated would stop the attack
w/out fatal injury
* Court used aggressor doctrine- (since we no longer use it, there doesn’t seem to be any use in
elaborating on it).

       Landry v. Bellanger (La. 2003)

OV: D asked P to step outside of bar to talk about dispute. D punched P, knocking him out. P
suffered a fractured skull and brain damage and sued for battery.



                                                 14
Held: Court repudiates aggressor doctrine as a defense to intentional torts. Says rather that self-
defense is a valid defense to a battery, and in this case relieves the D of liability. D was acting in
self defense and is therefore w/out fault in causing P’s injuries
* Court: Comp. Fault, duty/risk, and privileges concepts should apply
* Self-defense, unlike the Agg Doc, is a true defense in that it operates as a privilege to
committing the IT
* So, absent this privilege, any provocative or aggressive conduct on the part of P should be
incorporated onto the allocation of fault by the trier of fact

Note
1) WORDS (Provocation) NOT ENOUGH. Self-defense can’t be based on mere words.
Provocation by words, however, can be considered in mitigation of damages. No matter how
calculated they were to excite or irritate, they cannot justify a battery.

 2. Reasonable Response

       Dean v. Nunez (La. 1982)

OV: D wanted P to get rid of tape recorder at meeting. D got up to do this, and P out his arm up
to stop him. D then punched P.
Held: Court says that D was not provoked and did not act in self-defense. P’s push was justified
in defense of his person and his property. And the only provocation was argumentative words.
D was not in danger of receiving bodily harm- his actions cannot be justified as self-defense.

Notes:
1) Size of aggressor is not determinative: La. 3rd Cir. Found a football player’s punch of a
cheerleader justified when she stabbed him with a fork.

       Hattori v. Peairs

OV: Japanese kid was shot when he was searching for a Halloween party and showed up at the
wrong house. Homeowner yelled “Freeze,” but Yoshi kept going forward.
Held: Self-defense was not acceptable. There is nothing to show that fear on D’s part was
reasonable.
BL: Under these facts, there is nothing to show that D’s resort to deadly force was reasonable or
necessary to protect himself and his family.
* After this case, La. Legis. Enacted a statute articulating a use of force doctrine in defense of
self or property cases.

La. R.S. 14:19. Basically says that the use of force is justified to defend person or property when
the force is both reasonable and apparently necessary to prevent offense. This doesn’t apply
when the force results in homicide. That is covered on p. 115- (14:20)




                                                 15
General Notes on Defense of Property and Defense of Others
    Others- One may use reasonable force to defend another. D’s actions must be
      reasonable- this privilege is lost if excessive force is used. Again, key inquiry is
      reasonable belief under the circumstances.
    This typically arises in situations involving family members
    Property- One is justified to use reasonable force to protect one’s property. Note, though,
      that force that may be reasonable to protect person may be unreasonable to protect
      property.
    Retreat and Standing ground- Law is contradictory, but generally: Don’t have to retreat
      from your home. Also, in the interest of society, one should try to retreat unless he
      believes it cannot safely be made. Obviously, the benefit of the doubt is given to the D
      b/c of the predicament the assailant has placed him in. (see p.111)

   Patterson v. Kuntz

OV: D shot neighbor’s son whom he took to be a prowler harassing family for over a year.
Held: D was justified in believing that his wife and daughter might be attacked and that he acted
like an ordinarily prudent man would act when confronted with a like problem. Court says D
was not required to wait until person exerted force to accomplish his end
BL: In U.S., man’s right to maintain his home free from outside interference & intrusion and to
repel invasion therein by the use of force is well-recognized and gen. understood



C. TRUE PRIVILEGES

    These privileges literally privilege some behavior over others.
    Typically they license certain classes of actors to violate other’s rights in specially
     defined circumstances

 1. Discipline

       Harrell v. Davis

OV: Teacher was having trouble incessant trouble w/ student. She paddled him five times and
had another teacher witness paddling.
Held: Corporal punishment of students is permissible if reasonable in degree and administered
by teacher or school principal for disciplinary reasons. Thus, Court concludes that corp
punishment here was not conducted in an unreasonable manner
BL: Factors to be considered in deciding whether a teacher’s corp punishment was reasonable:
age and physical condition of student, seriousness of misconduct solicicting punishment, nature



                                                16
and severity of punishment, attitude and past behavior of pupil and availability of less severe but
equally effective means of discipline.


Notes
1) Discipline by parents is also a basis for the defense privilege. Parents are immune from tort
suits by a child during the child’s minority. A suit may be pursued after the child reaches
majority (in which case the parents would have to resort to the defense of discipline to avoid
liability).

 2. Shopkeeper’s privilege and privilege to arrest

       Thomas v. Schwegmann Supermarkets (La. 1990)

OV: Security guard approached lady and accused her of stealing a box of nails.
Held: Court says that guard, citing his experience, should have inspected or examined the box
before he detained, questioned and accused P of stealing glue. Therefore, Schwegmann did not
have reasonable cause to detain Thomas and thus the civil immunity from liability does not
apply.

 3. Absolute and “Good Faith” Immunity

    At common law, gov’t officials have traditionally been afforded immunity from suits for
     damages caused by the exercise of their governmental power.
    Absolute Immunity- applies typically to judges. Basically, no matter what they do in the
     course and scope of their job, they cannot be sued.
    Qualified Immunity- Available to all gov’t officials, but attaches only where the officer’s
     behavior was consistent with what a reasonable officer would have believed permissible
    Key to these immunities- prevent litigation

 4. Spousal Immunity

    Unless judicially separated, spouses may not sue each other

       Duplechin v. Toce (La. 1987)

OV: P sued her husband for a tort that occurred during the marriage.
Held: It is the time of the judicial proceedings that is important rather than the time of the tort.
Also, prescription is suspended b/w spouses during the time of the marriage.
* Interspousal immunity only bars the bringing of the suit. It does not destroy the cause of
action. When the immunity abates under the terms of the statute, the cause of action may be
pursued and the prescriptive period begins to run




                                                  17
                                 CHAPTER 4. NEGLIGENCE

    Operative Principle: a failure to exercise reasonable care under the circumstances
    In common law, the elements are: 1) Duty, 2) Breach, 3) Cause-In-Fact, 4) Proximate
     Cause, 5) Damages (have to show, unlike Intentional Torts)
    In La., we use a different nomenclature. The duty-risk approach: DamagesCause-In-
     FactDuty-Risk. Prof White stresses that this is basically the same thing as the common
     law system.

General Overview
  Duty- traditionally, one owes another a duty if he can “foresee” an unreasonable risk of harm to
the other arising from his conduct
 Breach- given the duty, did the D act reasonably? Inquiry focuses on what D did as compared
to what he could have done to avoid harm to the P
  Cause in fact- (factual inquiry) Was the D’s negligent act (duty/breach) a cause-in-fact of the
P’s damages? Most courts answer this question by resorting to the “but for” or substantial factor
tests.
  Proximate or Legal Cause- (legal inquiry) Given that the D’s conduct was the “but for” or
substantial factor cause of the harm to the P, as a matter of policy do we want to allow this P to
recover from this D for these damages arising in this manner? The law may elect to relieve the
D b/c to make him pay in the specific instance would offend some valid societal policy such as
fairness, the proper allocation of resources, or the promotion of some societal value.
  To be considered as part of the proximate cause: Intervening causes- causes that intervene after
the D’s carelessness has ceased but b/f the P suffers injury. If it is deemed “superseding,” then
the D’s carelessness is not a proximate cause of the P’s injuries.
  Damages- 2 questions: 1) Can the victim recover, and 2) If so, what is the measure of the
damages?

Louisiana
 In La., we have a different emphasis on proximate cause (which is in our duty-risk step).
Under the duty-risk analysis, P must prove that the conduct in question was a cause-in-fact of
the resulting harm, the D owed a duty of care to the P, the requisite duty was breached by the D,
and the risk of harm was w/in the scope of protection afforded by the duty breached
Big question: Whether damages caused were in the scope of the risk that defines the duty
Duty is defined by the risk that a reasonable person would foresee
 This depends on the particular circumstances. The risk defines the duty.
Duty is defined by the Court… It is a question of law

A. Reasonable Care- In General

       Misuraca v. City of Kenner (La. 2001)

OV: P alleges that officer was negligent in handling of accident scene, and this mishandling
caused the death of her husband (he played with a wire that electrocuted him after officer told
him not to play with it).




                                               18
Held: Court lays out what it has been said is officer’s duty, which was a duty to act reasonably to
investigate a one-car traffic accident. Considering the facts, the officer was reasonably
discharging his duty (no breach).

       Roberts v. State (La. 1981)

OV: P, a 75-year-old man, sued State b/c he bumped into the blind operator of an elevator and
injured his hip. The blind man wasn’t using his cane.
Held: P says that blind man traversed in a negligent manner. Court says that blind man was
acting as a reasonably prudent blind person under the circumstances. As for the cane, Court
points out that it is not uncommon for blind people to rely on other techniques when traveling
around.

Notes:
1) A child is generally held to the duty of acting as a reasonably prudent child possessing the
actor’s “judgmental capacity,” i.e. age, intelligence, education, experience, etc.

2) The Court in Boyle held that a “relatively small depression” in D’s sidewalk did not present an
unreasonable danger. P was the only person reportedly to have fallen there, it had been
developing for four to ten years, and the D owned over 22 miles of sidewalk.

B. Risk/Utililty/Economics and the Reasonable Person

-- Not a very important section. Tied to the efficiency of accident avoidance. Basic idea is that a
firm or person will protect against accidents only to the point that it is economically beneficial.

C. VIOLATION OF STATUTE, (NEGLIGENCE PER SE)

    Sometimes the Court will adopt a statute as the reasonable standard of care of the
     reasonable person under the circumstances
    Violation of statute is used by the Court to establish liability. Scope of the statute is used
     to define legal cause
    Statute=Duty. Violation of statute=Breach of Duty. Violation of statute is used by the
     Court to establish liability. Scope of the statute is used to define legal cause.

   Boyer v. Johnson (La. 1979)

OV: No facts given
Held: A violation of a particular criminal statute does not automatically create civil liability, b/c
the statute may have been designed to protect someone other than the P, or to protect the P from
some other evil other than the injury for which recovery is sought.
* Law is still confused and unsettled: Is jury bound by a statute the Court has adopted as the
reasonable standard? Or, is the jury limited to simply deciding whether D violated the statute as
a matter of fact. Or, does the violation create a rebuttable presumption? Or, is the violation just
more evidence of negligence? What does La. follow?




                                                 19
        1. Negligence as a matter of law- Sometimes, Courts neither ask the jury to decide
whether the D acted as a reasonable under circumstances nor adopts a statute as the standard.
Rather, the Court articulates what it thinks is reasonable behavior under the circumstances, or a
“rule of law.” Example: Justice Holmes held that when a vehicle approached a railroad crossing
the driver was negligent as a matter of law if he failed to “stop, look, and listen.”

D. SPECIAL DUTIES

    In some circumstances, courts will state that a defendant owes a “high” or the “highest”
     degree of care to the plaintiff.
    Examples: Innkeepers, common carriers. In one La. case, Court held that a carrier of
     passengers is required to exercise the highest degree of care and is liable for the slightest
     negligence b/c of heightened expectations and that they are professional carriers
    If you are a private carrier, you are held to the standard of an ordinary person
    Another ex: Court has said that a utility company has to exercise “utmost care” because
     of dangerous nature of electricity


E. RES IPSA

    In any tort case, P must prove each element of a cause of action. There are 2 levels of
     proof: facts, and whether they give rise to a tort. So, P must first show “what happened.”
    Proof may be by direct evidence (first hand knowledge), or by circumstantial evidence
     (no first hand knowledge, but knowledge of the circumstances from which, when
     combined with other, one reasonably could infer the existence of the fact).
    Res Ipsa: Although P cannot prove exactly what happened, he can prove that
     circumstances existed from which reasonable minds could conclude that the D was at
     fault and that fault caused the P’s damage. (more probable than not)
    Application of this doctrine is defeated if an “inference that the accident was due to a
     cause other than the D’s negligence could be drawn as reasonably as one that it was due
     to his negligence.

   Boudreaux v. American Insurance Co. (La. 1972)

OV: P was suffocated as the result of a fire in the kitchen of the restaurant below his apt.
Held: In Res Ipsa, the P need not negate all other possible causes of the injury. It suffices if the
circumstantial proof excludes other reasonable hypotheses w/only a fair amount of certainty, so
that it be more probable than not that the harm was caused by the tortuous conduct of the D.

       Cangelosi v. Our Lady of the Lake (La.1990)

Held: P must also establish that the D’s negligence indicated by the evidence falls w/in the scope
of his duty to the P.




                                                 20
                               CHAPTER 5. CAUSE IN FACT

    The goal is to show an unbroken chain linking a breach of duty to a harm
    This relationship consists of 2 elements: cause-in-fact and legal cause (proximate cause)
    In theory, cause-in-fact is a question of fact( linking breach of duty to damages) and legal
       cause (whether, as a matter of policy, the law should impose liability upon the D for that
       injury) is a policy determination
    4 scenarios
   1) No connection- If you can’t show a connection, you are not allowed to recover
   2) Connection might only be apparent- might be something else that better explains result
   3) Intervening/Superceding Cause- think of scope of the risk. Is intervening behavior so
   tremendous and unexpected that there is no way to link the original behavior w/result?
   4) Multiple Actors- Joint and Several liability (In La., liability en solido). In La., we don’t
   use joint and several liability anymore to decide who has to pay. Basically, P can sue party
   who has a better ability to pay and let the parties fight it out.

   A. But-For Causation
   -- This is the predominant test for cause in fact
   -- “But-for the D’s alleged wrongful act, the P would not have sustained his injuries.”
   -- Another way to think of this is to ask whether the damage could have been prevented by
   the exercise of reasonable care

       Perkins v. Texas and New Orleans RR Co. (La. 1962)

   OV: P’s husband was killed by a train going 37 MPH in a 25 MPH zone
   Held: The trainmen were negligent in operating the train at 37 MPH. But, if accident would
   have occurred irrespective of such negligence, then it was not a substantial factor in bringing
   about the harm. So, “but for D’s speeding, would this accident have happened”? Court:
   based on the evidence it’s almost certain that the accident would have happened regardless.
   BL: Take out train going at 37 and put it at 25 MPH. Would accident still have occurred?
   * White says today with this case we would use comparative fault

       Salinestro v. Nystrom (Fla. 1997)

OV: Doc took x-rays of lady. She was pregnant, although she was unaware of it. Baby died.
Held: Although doc’s behavior probably fell below standard of care in not inquiring a/b
pregnancy, this omission was not the cause of her injury. So, “but-for doc’s negligence, would
harm have occurred”? Yes, b/c woman was not aware that she was pregnant.

       Breithaupt v. Sellers

OV: P, who was not wearing hunter orange, was shot by another hunter.
Held: Court rejects neg. per se argument. Inquiry is whether the accident would have occurred
regardless of whether P wore orange. Court says that, b/c D could discern P’s facial features,
jury could have reasonable inferred that D should have known it was a man and not a deer. The




                                                21
jury could have inferred that the hunter fired w/out adequately looking at target and the accident
would have happened regardless of whether P wore orange.
BL: The mechanism to solve this is the intervening cause. Says superceding cause was D’s
failure to know what you’re shooting. So, steps in and cuts off negligence of not wearing orange.

B. Other Standards of Causation

       Anderson v. Minneapolis St. Paul (Minn. 1920)

OV: P’s property was destroyed by a train fire. There was also a fire sweeping through the state
that hit P’s property later that day.
Held: If a fire set by the engine of one RR company united w/ a fire set by the engine of another
company, there is joint and several liability , even though either fire would have destroyed prop.
BL: Either was a substantial cause, so both were responsible.

Note: When La. Courts use “substantial factor, they usually mean “but-for” causation.

       Jenkins v. St. Paul Fire & Marine Insurance Co. (La. 1982)

OV: P sues his atty for allowing prescription to run b/f filing a claim in P’s suit.
Held: Court asks whether the client must also prove validity of underlying claim…the “case
within the case” inquiry. Court says burden shifts to atty to prove that P could not have
succeeded on original claim.

       Smith v. La. Dept of H&H (La. 1996)

OV: Hospital failed to disclose cancer info on P’s initial x-rays, and patient died thereafter.
Held: Hospital’s negligence deprived P of a chance of survival. What is the value of that loss?
Court says the way to figure it out is to give it to the factfinder and have him focus on the lost
chance based on the malpractice and to value that lost chance as a lump sum award.\\
BL: P was already going to die. But, negligence caused at least a certain amount of lost chance
of that survival. So, give it to judge or jury and let them decide how much that is worth.

       Black v. Abex Corp (? 1999).

Held: Introduces idea of alternative liability, which is a mechanism by which P says he has no
way of determining who caused his harm, but they will treat possible tortfeasors as jointly and
severally liable and apportion fault (it is clear that one of the D’s causes all of the injury). The
classic case is Summers v. Tice (two hunters shot and one bullet hit P). Summers was unable to
establish cause-in-fact b/c couldn’t prove which hunter it was. To facilitate recovery, the ct.
shifted the burden of proof to each hunter to establish that his was not the pellet that struck P.
Since neither hunter could meet burden of disproving, they were held jointly and severally liable.




                                                22
                  CHAPTER 6. LEGAL CAUSE/SCOPE OF THE DUTY

    This has been a baffling area of the law. It is closely related to cause in fact
    Some things to keep in mind: The fundamental question is the same: Should this D be
     responsible in this case.
    Also, what are the policies? Most cases are decided by application of a “risk rule,” which
     asks whether the injury to this P was reasonably foreseeable. However, there are many
     other policy considerations that are important as well.

Introduction to the Risk Rule
       A. Foreseeable Plaintiff
       Palsgraf v. Long Island R. Co. (N.Y. 1928)

OV: Woman sues train station for negligence of guy trying to push someone on a train. In this, a
package fell and exploded, injuring the woman many feet away.
Held: Cardoza: focuses on duty-risk. Says a negligent party is responsible for those wrongs a
reasonable person should have perceived and taken steps to avoid. The risk defines the universe
of harm for which the negligent person is responsible. Here, he says, the P is too far away.
Also, the D sees nothing in the guy’s hand but garbage- just a bunch of paper.
  Dissent- Says that when one engages in an unreasonable act, then they are responsible for all
those things that follow it. It is proximate in time and space. Look at time and space and gather
whether this thing caused that. How far does this go? Judge Andrews says this is a question for
the jury.

       B. Foreseeable Risk
       Overseas Tankship v. The Wagon Mound (Wales 1961)

OV: Wagon Mound is 800 ft from dock. They have a spill of oil and the wharf eventually burns
down. Servants of the owner of the Wagon Mound are negligent
Held: Formula in Polemis is overturned (Says that if D is guilty of negligence, he is responsible
for all the consequences whether reasonably foreseeable or not). Court eventually defines
probable consequences as natural or necessary consequences of a certain actforeseeable.
Court turns to the reasonable man standard, asking if the danger is such that a reasonable man
would have foreseen it.
* They are saying we determine foreseeability objectively. But, still a problem for the Court.

III. Proximate Cause and Scope of the Duty in Louisiana

 A. Development of the Duty-Risk Approach

       Dixie Drive It Yourself v. American Beverage (La. 1962)

OV: RC Cola truck was stalled in the middle of the road. Driver did not put out safety flares.
Langtree, driver for Gulf States Co. (which leased from Dixie), reached 85 feet away b/f
realizing truck was stationary, and collided.




                                               23
Held: RC driver was guilty of neg per se. Langtree was in the class of drivers the statute was
meant to protect. But, court says the negligence of the two combined to bring about the harm to
the Dixie truck.
Issue Spotting: First, Gulf States is responsible for Langtree through vicarious liability. Second,
Gulf States was liable to Dixie through bailor-bailee relationship.
* Prof White says that today this would be decided by comparative fault

       Hill v. Lundin & Associates, Inc. (La. 1972)

OV: P tripped over a ladder left on the ground. Someone other than the D moved the ladder to
the ground from being upright on the house b/f the accident.
Held: SC for first time applies duty/risk. Court first rejects that leaving a ladder unattended is
negligence as a matter of law. So, a rule of law which would impose a duty upon one not to
leave a ladder standing against the house does not encompass the risk here encountered. The D
was under no duty to protect this P from the risk which gave rise to her injuries. The record does
not show that D could have reasonably foreseen that the ladder would be moved and put in the
position which created the risk.
* Prof Maraist: Key here might be ease of association…How easily could one associate the risk
that occurred with a rule that one was negligent in leaving a ladder up against the house? This
wsa not intended as a synonym for foreseeability in fact.

 B. A Return to Proximate Cause and Variations of the Risk Rule

       Pitre v. Opelousas General Hosp. (La. 1988)

OV: A kid is born w/albinism that the mom didn’t want nor did she think she would have him.
 Held: Court uses duty/risk, along w/ traditional proximate cause in this case. When the case
presents difficult issues as to the nature and extent of damages ascribed to the D, once it has been
decided that D’s breach was cause in fact, it may be helpful to use a “legal cause” analysis which
affords the application of “foreseeability” rules. Here, Court says that doc isn’t on notice that
albinism will happen, so he doesn’t have a duty to make them aware. But, allow parents to
recover due to foreseeability, which is better than scope of the risk b/c a kid can be born with all
kinds of things.
* Court DOES NOT abandon duty/risk here. Rather, authorizes “legal cause” in some specific
risk cases. Has been no clarifying case since Pitre, and Courts mostly continue to use “duty/risk”

       Cay v. State, DOTD

OV: P fell and died from bridge that P claims had low guardrails and was unsafe for pedestrians
Held: Court uses ease of association. There is an ease of association b/w an accidental fall over
railing not built to a height above average person’s center of gravity(which was the duty). This
failure was a cause in fact of fall. But, Court says the degree of risk created by Cay’s conduct
(drunkenness) and his far superior capacity to avoid the accident is more blameworthy. So,
Court: 90% to Cay and 10% to DOTD




                                                24
       Posecai v. Wal-Mart Stores, Inc. (La. 1999)

OV: P was robbed at gunpoint in Sam’s parking lot.
Held: Business owners have a duty to implement reasonable measures to protect patrons from
criminal acts when those acts are foreseeable. 4 approaches: 1) specific harm rule, 2) similar
incidents test, 3) totality of the circumstances test, 4) balancing test. La. adopts the balancing
test. Seeks to address interests of both proprietors and customers by balancing foreseeability of
harm against the burden of imposing a duty to protect against criminal acts of 3rd persons.
* Considerations: existence, frequency, and similarity of prior incidents as well as location,
nature, and condition of the property.

Note:
1) It is important to distinguish scope of the risk from allocation of fault among D’s.
Scope of the risk asks whether this D’s duty extends to this particular injury to this P. A
finding that the scope of the risk does not encompass this injury results in a finding of no
liability.
Allocation of fault among Ds concerns the % of fault assigned to each D.

IV. Some Specific Proximate Cause/Legal Cause/Duty Risk Issues

A. Controlling third parties
    Generally, have no duty to protect a 3rd party. Exception: Special Relationship
    Common law identifies some special relationships: common carriers, innkeepers,
      kindergarten teacher, possessor of land
    Here, standard of reasonable care is heightened.

B. The Employment Relationship
     An employer may be vicariously liable to 3rd persons for the torts committed by an
       employee in the course and scope of employment.
     An employer has a duty to protect employee from a dangerous condition or person on
       premises

C. Rescuers
    Generally, have no duty to rescue. Exception: If you are the cause of the person’s harm.
       So, if I punch you out cold, I can’t just leave.

D. Grossly Negligent Actors
    A grossly negligent actor may bar or reduce his recovery from a D.
    Classic case is DUI. In Graves v. Page, motorist sued DOTD b/c vegetation growing
       obscured his view. SC: No, scope of the duty of the DOTD to maintain the shoulders and
       roadways does not encompass the risk that an intoxicated oncoming driver, traveling fast,
       will cross over into a motorist’s lane of travel. (so, neg. of driver cuts off neg. of DOTD).
    Also, state has no duty to bring old highways up to current safety standards, unless the
       highway has undergone major reconstruction




                                                25
E. Providers of Alcohol
     W/ a couple of exceptions, a server is not liable for what a drunk person does
     La. Statute (p. 237): The Legis. says that the consumption, rather than the sale, is the
       proximate cause of any injury

   Berg v. Zummo

OV: After a night at the Boot, Berg got it handed to him by Zummo and his buddies.
Held: Court said that Boot breached its duty in selling to Zummo, who was 17. Also, that a
minor might become intoxicated and get in a fight is w/in the scope of the duty. So, Boot was
liable for general damages.
* This only applies to minors. For majors, serving isn’t enough for vendor to be liable. Also
need an affirmative act (like kicking a drunk person out of bar). This is a heightened standard.

F. Unborn Children
     Cases say that parents may recover the damages they sustain when tortfeasor fault causes
      a prenatal injury to a fetus who is subsequently born dead b/c of the injury.

G. Mental Anguish
    Some problems w/ the cause of action on this case. 1) Fraud-people lying a/b their
      distress, 2) people get emotionally distraught all the time.
    Important case is LeJeune v. Rayne Memorial Hosp.(Rats case) Court outlines 4
      guidelines for recovery: 1) contemporaneously or immediately thereafter, 2)kind of injury
      to a person that would shock you, 3)serious and emotionally foreseeable reaction, 4) a
      close relationship

       Trahan v. McManus

OV: P’s son was injured in accident, and died seven hours later at home a/f hospital release.
Held: Recovery for mental anguish has almost never been extended to one who observed
suffering at a place other than where injury occurred, and at a time not closely connected to the
event. Legis. apparently intended to compensate for the immediate shock of witnessing a
traumatic event. Which caused the direct victim immediate harm that is severe and apparent.
BL: Key is contemporaneously or immediately thereafter.

But…In another case, a mother was allowed to recover for her son’s injury at an amusement
park even though she didn’t see him until he reached the aid station.
 A victim may recover for fear of contracting AIDS: 1) presence of HIV,2)channel of infection




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H. Misrepresentation
    Intentional Misrepresentation constitutes fraud, and is actionable, whether it causes
      personal injury or only economic harm
    Negligent misrepresentation which causes personal injury is also compensable, if
      personal injury was foreseeable (a truck driver negligently signals a following driver that
      it is safe to pass on a curve).
    Negligent misrepresentation that causes only economic harm is a little shaky
    Elements of negligent misrep: 1) existence of a legal duty to supply correct info or to
      refrain from supplying incorrect info, 2) breach, 3) damages as a result
    Example: Atty has legal duty to supply correct info to a non-client if he can show that he
      intended to rely on those legal services (malpractice)
    Nevertheless, the desire to compensate victims of undesirable conduct has led to some
      recovery

   Barre v. V.P. Exterminators, Inc. (La. 1993)

OV: Termite inspector issued a bad report to the vendor of a dwelling in prospect of a sale.
Held: Inspector has a duty to exercise reasonable care in providing info, so as to protect those
who sought info and those who also may rely on it. This is a case of negligent misrepresentation.

I. Negligent Hiring, Training, and Supervision
     These are alternatives to vicarious liability
     The key is what the person knew at the time. Does [person in question] have propensity
        to commit the torts in question?

   Roberts v. Benoit (La. 1992)

OV: Sheriff Foti hired Benoit as cook. Later, he commissioned kitchen crew as deputy sheriffs.
They had a gun course, where they were encouraged to carry a gun. He accidentally shot P.
Held: Ease of association b/w alleged neg. hiring, commissioning and training and the risk of
injury to this P under the circumstances is at best attenuated. Nothing in his record indicated a
likelihood that he would engage in this type of conduct.
BL: The risk that a deputy while off duty and under no requirement to carry a gun would engage
in horseplay with a loaded revolver while drunk, an action in violation of the Sheriff’s
regulations, and cause injury to the P is clearly outside the ambit of protection afforded by duty.

If you are an employer, are immune from negligent hiring or retention if you rely reasonably
on info provided by a former employer. You are not immune if further research is required by
law (background check).
Person providing info is immune unless he gives info in bad faith




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J. Negligent Entrustment

       Joseph v. Dickerson (La. 2000)

OV: Mom loaned her car to her uninsured daughter, who got in a wreck.
Held: Question for negligent entrustment is not whether she is an excluded driver, but whether
she is the type that will have an accident. Daughter was an otherwise competent driver. A
lender cannot be found liable for loaning the car to a competent driver. Mom did not breach her
duty (to act in a reasonable and prudent manner) in lending her car to daughter.
BL: Remember, key is what you know at the time you hand over your keys. This applies more
to a drunk driver, a minor, or an incompetent, for example.

K. Subsequent Injury
    As a negligent driver, if you are injured by a rescuer and then in hospital by malpractice,
      you are responsible for everything.




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                               Chapter 7. General Defenses

      In this chapter, we explore those situations in which the victim’s recovery is barred or
       reduced b/c of his conduct.
      The circumstances in which victim conduct bars or reduces recovery include the victim’s
       own unreasonably risky conduct (contributory negligence, assumption of risk, and failure
       to mitigate), or his agreement in advance that the other actor nee not protect the victim
       from certain harm (waiver), or the failure to timely pursue the claim (prescription and
       preemption).

A. Victim Misconduct
 1. Contributory Negligence
    The classic defense to a negligence claim. We don’t use it anymore in Louisiana
    Old system: Any P fault bars recovery
    Modified System: Substantial P fault bars recovery

       Li v. Yellow Cab Co. of CA. (CA 1975)

OV: P Li collided with a yellow cab
Held: Court overrules “all or nothing” contributory negligence in favor of a “pure” comparative
negligence system, whose fundamental purpose is to assign responsibility and liability for
damage in direct proportion to the amount of negligence of each of the parties. So, the contrib.
negl. of the person injured does not bar recovery, but the damages awarded will be diminished
in proportion to the amount of negligence attributed to the person recovering.

 La. Civil Code Article 2323. Comparative Fault (effective April 16, 1996) (p. 292)
   “Pure” Comparative Fault- allocate to parties and non-parties alike
   “Basic” Comparative Fault- allocate but still allow a defense where P fault is greater than
      or equal to D fault
   Simple hypo for basic. P-30% Defendant#1 - 20% Defendant#2 - 50%.
       P v. D(1) P=0%
       P v. D(2) P=50%

       Dumas v. State (La. 2002)

OV: P hit a pothole while riding bike in the park. He cut his head, and died as a result of the
subsequent treatment he received.
Held: Court says that language of Art 2323 leads to the conclusion that the State is entitled to
present as an affirmative defense evidence relating to the fault of another person it believes
caused injury to plaintiffs. The factfinder in the instant case is required to determine the
percentage of fault of all persons causing injury to Ps. If it concludes that Ps damages were
caused by more than one person, then each tortfeasor is only liable for his degree of fault and
cannot be held solidarily liable w/another tortfeasor for damages attributable to that other
person’s fault.



                                                29
 La. Civil Code Article 2324. Liability as solidary or joint and divisible obligation (p. 301)
      Watson v. State Farm Fire and Casualty Insurance Co. (La. 1985)

OV: Kid shot and killed P while hunting with a high-powered rifle. P was not wearing an orange
vest and was walking around.
Held: Court says that father’s negligence in either failing to provide son w/correct training or in
closely supervising him was a cause in fact of P’s death. Majority of fault must rest w/father and
son. Fault apportioned as follows: P-20%. Father and son-40% each

* In this case, Court gives factors that may influence the degree of fault assigned:
1) whether the conduct resulted from inadvertence or involved an awareness of the 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) any extenuating circumstances which might require the actor to proceed in haste

 2. Assumption of the Risk (p.314)
    Has been utilized to describe 3 types of P conduct: 1) P conduct was in reality a form of
      contributory negligence, 2) P expressly agreed to release D from liability (waiver), 3) P
      have been barred from recovery b/c have opted to place themselves in situations which
      involve unpreventable risks (sports spectator)
    Defenses of assumption of the risk and contributory negligence have been subsumed in
      La. by comparative fault principles.

       Murray v. Ramada Inns, Inc. (La. 1988)

OV: Murray was paralyzed after jumping into the shallow end of Ramada Inn’s pool
Held: Given the adoption of comparative fault, the common law doctrine of assumption of risk
no longer has a place in La. tort law. So, comparative fault principles should apply, and the
victim’s “awareness of the danger” is among the factors to be considered in assessing % of fault.
These types of cases will turn on their particular facts and may be analyzed in terms of
“duty/risk.”

B/C of Murray, there are now some important distinctions: In La., we no longer rely on the
fiction that the Ps in the baseball cases have consented to their injuries. Rather, we say that the
Ds were not liable b/c they did not breach any duty owed to the Ps.
So, we don’t say that Murray “assumed his risk” and thus consented to his injuries. Rather,
we take into account his miscalculation of the risk in assigning fault, b/c duty of Ramada is
determined by the state of care it owes to all potential Ps, and does not turn on a particular Ps
state of mind.

       Pitre v. Loozshiana Tech (La. 1996)

OV: Tech student is injured when sledding.
Held: Court takes us through the duty-risk analysis steps. 1) Was the conduct of which the P
complains a cause in fact of the resulting harm, 2) What, if any, duties were owed by the



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respective parties? 3) Whether the requisite duties were breached, 4) Was the risk, and, harm
caused, w/in the scope of protection afforded by the duty breached? 5) Actual damages?
Court: under the circumstances, Tech had no duty since the light pole was obvious and
apparent and the risks of colliding with it while sledding are known to everyone.
The obviousness and apparentness of a potentially dangerous condition are relevant factors to
be considered under the duty-risk analysis. If the facts of a particular case show that the
complained of condition should be obvious to all, the condition may not be unreasonably
dangerous and the D may owe no duty to the P.

       Wolf v. Ford (Md. 1994)

OV: Clause (waiver) at issue provides that investment firm will not be liable for losses to the
investor resulting from the firm’s negligence, but only for the losses resulting from its gross
negligence or willful misconduct.
Held: Court says that the allocation of risk of negligence b/w parties to a private contract is part
of the freedom to contract in private matters.

La. Civil Code Article 2004. Clause that excludes or limits liability
        Any clause is null that, in advance, excludes or limits the liability of one party for
intentional or gross fault that causes damage to the other party.
        Any clause is null that, in advance, excludes or limits the liability of one party for causing
physical injury to the other party
So, Wolf might hold up in La. b/c it involves economic harm (see negligent misrepresentation)

       Ramirez v. Fair Grounds Corp. (La. 1991)

OV: P fell through roof of stable. FG tried to avoid liability, citing the waiver that P signed
which in advance released D from any and all liability for damages suffered by P.
Held: Court cited Art. 2004 in saying clauses are null b/c they exclude liability in advance.

  4. Mitigation
        a. Pre-Accident Conduct
Statute says failure to wear a seatbelt shall not be admitted to mitigate damages nor shall it be
considered evidence of comparative negligence.
        b. Post-Accident Conduct
In Jacobs v. NO Public Service, Inc, Court said an accident victim has a duty to exercise
reasonable diligence and ordinary care to minimize his damages after the injury has been
inflicted. Key- it has to be a reasonable step
His recovery will not be limited b/c of a refusal to undergo treatment that holds little promise
for successful recovery or is an extraordinary or impractical effort
So, if I tear my ACL, and then stop going to rehab I was supposed to go to, the defense will
bring this up at trial as failure to mitigate damages and my recovery will be reduced




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5. Stale Claims
  a. Laches (operates independently of prescription)
-- Under laches, a claim is barred if the P failed to pursue the remedy judicially w/in a reasonable
time, and the D was prejudiced thereby. (Basically, laches emerges when a claim is too old).
-- For this defense, have to show that D was “prejudiced thereby”- there may be a difficulty in
getting witnesses, evidence, etc.
-- Another policy consideration: You have to just move on w/your life

       Corsey v. State Dept. of Corrections (La. 1979)

OV: P filed suit on June 25, 1974 for injuries that occurred on June18, 1972.
Held: Court considers whether prescription could run against P when, due solely to D’s
negligence, the tort-caused injuries to P so mentally incapacitated him that he lacked
understanding of what happened and his possible legal remedies. Here, the P was unable to act
until July 1973 b/c he was unable to know that he had a cause of action. So, his prescription was
interrupted or suspended until July 1973. (b/c it wasn’t known or knowable).

4 instances in which contra non valentem applies
1) Where there is some legal impediment to suit
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 D’s actions prevent the suit (lying to you and telling you that he isn’t responsible)
4) When the cause of action is not known or reasonably knowable to the P. A P will be deemed
to know what he could by reasonable diligence have learned.

       Renfroe v. State (La. 2002)

OV: P files suit against wrong party.
Held: The fact that certain part of the roadway was owned by some other party was “reasonably
knowable” w/in the prescriptive period. So, the supplemental petitions do not relate back to the
ones that were timely filed. The two parties did not share an “identity of interests” such that
notice to one would serve as notice to the other.
BL: Court is saying you have to do your research. This is the basis of much atty malpractice-
when the atty picks the wrong party and the suit prescribes
 Alexandria Mall- picking the wrong party was gravythey shared an “identity of interests”

General Notes:
1) State Sovereign Immunity- La. has waived this. So, you can sue state in state court.
2) Immunities- In La., child who is not emancipated cannot sue parents during marriage (nor can
he sue the parent who is entitled to his custody and control)
Interspousal Immunity- In Toce (p.363), Court said that the statute merely suspends the cause
of action until judicial separation or divorce. Also, prescription is suspended during marriage.
3) Use of land Immunity- If you let someone use your non-commercial land, you are immune
from suit, even if the defect in the land is the result of negligence
Commercial entity = not immune, except when activity is unrelated to its commercial program
4) You cannot be held liable for rendering good faith emergency care at a scene of an emergency



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