Louisiana Law Firm Torts Outlines - Contracts Law Outline George S. Mentz class action lawsuits

Law Student Outlines Selected by Prof. George Mentz

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Torts Outlines for Law Students

1. Continuum of Torts
2. Parts of Prima Face Case
a. Intent
• Specific intent – acting for the purpose of bringing about the consequences.
• General intent – acting with state of mind to commission common torts. (Ex . Reckless, Negligence)
• Two ways to prove intent
• Acting for the purpose of causing consequences
• Have knowledge (w/ substantial certainty)
? {Objective standard} when a reasonable person in the position of the defendant would believe that a certain result was substantially certain to follow his acts.
? Garratt v. Dailey (child moving chair case)
Child moved chair from under old lady, old lady fell and suffered injuries but child didn’t intend to harm her. Intent could not be proved thru acting for purpose theory. The court used second way to prove intent (sub. Certainty)
***Key case***
? Spivey v. Battaglia (headlock case)
Battaglia knowing of Spivey’s shyness puts her into a headlock to tease her. An injury results. No acting for intent or knowledge with sub. certainty that an injury would result from his actions. So no int. tort.

? Ranson v. Kittner (mistaken dog case)
Kittner shot Ranson’s dog on accident while hunting. He mistook it for a wolf. Intent was proved b/c he intended to kill the animal thru a volitional act.
Mistake doesn’t absolve liability

• Age / Insanity / Voluntary drunkenness not a defense
? McGuire v. Almy (Crazy woman battery case)
Insane woman tells nurse she is gonna kill anyone who comes in her room. Then insane woman beats her nurse with a chair leg. Intent to do the act is applied to prove intent. Insane person held to same standards as a normal person {objective}
• Cannot have intent & negligence
b. Act
• Volitional action – action that you make a decision to do and do.
c. Damages
• Must be shown (physical, mental, emotional)
d. Causation
• Show that the results were caused by the acts

3. Battery - The use of force against another resulting in harmful or offensive contact
a. Intent
b. Must be harmful or offensive contact
• Directly / indirectly
• Anything closely associated with person’s body is seen as part of person’s body (ex. Glasses, cane, coat, things held in hand, etc…)
• Fisher v. Carrousel Motor hotel (extension of body case)
Fisher has a plate snatched from his hands by a hotel employee. Man made racial remarks while snatching the plate. Battery b/c plate was an extension of his body & contact was offensive b/c it harmed his personal integrity (feelings).
• Least touching of another in anger is battery (Cole v. Turner)
c. Damages
• Physical invasion of victim’s person (cannot be words)
• Need not show physical harm but must show damages

4. Assault -the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact
a. Intent
b. Offer to offensive contact ( of imminent contact)
• Reasonable apprehension of immediate harm (use apprehension instead of term fear. (anticipation of harm or injury){fear is factored in determining damages}) Objective view

c. Apparent ability
• Western Union v. Hill (man reaching over counter case)
Western Union employee made sexual advances toward Mrs. Hill. Then he reached over the counter in an attempt to grab her. He didn’t touch her. The employee claimed that he couldn’t have touched her b/c the size of the counter was to large for him to reach across (no apparent ability). But court ruled that he did have apparent ability b/c he could have actually reached across the counter and grab her.

WORDS ALONE CANNOT MAKE AN ASSAULT
ATTEMPTED BATTERY ? ASSAULT (can be but isn’t always)

You need an assault to have a battery but you don’t need a battery to have an assault

5. False Imprisonment – intentional confinement within fixed borders that ? has defined
a. Intent
b. Act or omission of confinement to bounded area
c. Awareness of confinement
• Parvi v. City of Kingston (Drunk is left @ golf course case)
Police pick up drunk and drop him off @ an abandoned golf course to “sleep it off.” He wanders onto a interstate an gets hit by a car. He doesn’t remember his confinement. The court rules that present recollection is not needed if actual damages result from the confinement.
d. ? suffers injury as a result of confinement
• Big Town Nursing Home v. Newman (old man held @ nursing home)
Newman was admitted into Big Town and signed papers on admission that stated that he could leave at anytime. He tried to leave but was kept against his will. By the time he escaped he had lost 30lbs.

Restraint must be against victim’s will
• Hardy v. Labelle’s Distributing (Woman vol. Stays to clear name)
Hardy is accused of stealing a watch. She is asked to go to the manager’s office and take a polygraph test. She stayed voluntarily to clear her name. The court says that she was not restrained so false imprisonment would not apply.
? does not have to do unreasonable things to escape
• Includes exposure of self, material harm to clothing or anger of substantial harm to another.
• Means of escape is not reasonable if ? doesn’t know it exists
• If ? can remain imprisoned unharmed but chooses to escape and gets harmed; then he cannot recover for those injuries

Use of Force not required
• Enright v. Groves (False arrest for dog leash)
Groves confronts Enright about leash law and tells her to produce ID or go to jail. She doesn’t produce ID and is brought to jail. False imprisonment applies b/c he arrested her for not producing ID instead of what she was charged with (dog leash).

Duty to act & Failure to act can be liable
• Whittaker v. Sandford (woman kept on boat)
Sanford provided transportation for whittaker across the atlantic. Upon arrival in port Sanford would not furnish a boat so she could leave. Ct. rules that false imprisonment applies b/c Sanford breached his duty to take active measures to release Whittaker.

6. Intentional infliction of Emotional distress
a. Conduct must be intentional / reckless
b. Conduct must be extreme / outrageous
c. Must be a causal connection between the wrongful conduct & the emotional distress
d. Must be severe
Don’t count – insults, indignities, threats, annoyances
• State Rubbish v. Siliznoff (man threatened b/c won’t pay mob)
Siliznoff was threatened w/ bodily harm, ruin of his truck & destruction of his business if he didn’t pay State Rubbish. State Rubbish then forced Siliznoff to sign papers to join their union. Siliznoff then became ill b/c of the fright from the dispute. Since the defendant was intentionally subjected to this distress and bodily harm resulted this is intentional infliction of emotional distress

7. Trespass to Land -
a. Intent
b. Must show damages
c. Physical invasion
Air Space (near the ground) is included {bullets flying across land}

{?’s argument} Attractive nuisance doctrine – in order to recover, have to show they did not understand risk involved for this dangerous condition & did not understand this risk.

8. Trespass to Chattels
a. Intent
b. Act intermeddles with right of possession (intermeddles – physical contact)
c. Disjunctive condition
• Chattel is impaired (damaged)
• Possessor is deprived of the use of the chattel for substantial time
o Must show damages
• Bodily harm caused by dispossession of chattel
Damages = actual damages to chattel

9. Conversion
a. Intent
b. Interference of control of chattel
i. must be serious
1. Factors of seriousness
a. extent / duration of actor’s exercise of control
b. intent to assert a right in fact inconsistent w/ owners rts.
c. good faith
d. extent & duration of interference
e. the harm done to chattel
f. Inconvience / expense caused
• Intent & good faith very important
• Must be major interference

10. Doctrine of transferred intent
• Need one of the five trespass actions to apply doctrine
• Need the tort intended or the one accomplished to fall within a trespass action. (Tort intended can be different from tort accomplished)
? Five original trespass actions
• Assault
• Battery
• False imprisonment
• Trespass to land
• Trespass to chattels (movable properties; ex. dog)
• Talmage v. Smith (stick thrown @ boy case)
***Key Case*** for transferred intent
Smith threw a stick at one boy and hit Talmage (who he didn’t see). Smith still liable for damages b/c intent was transferred from the first boy to Talmage.

11. Defenses to Intentional Torts
a. Consent – a ? is not liable for tortuous act if ? consented to ? (must have capacity)
• Express – expressly shown a willingness to submit to ?’s conduct
• Implied - (two kinds)
1. Apparent – reasonable person standard
a. Usage and custom can apply
2. Implied by law – ex. Surgery of unconscious man
a. Medical - no consent ok if unconscious or urgency of med. emergency
b. Mohr v. Williams - doctor has consent to operate on left ear. during surgery notices problem w/ rt. ear and also operates on it. Ct. found doctor guilty of battery b/c no consent b/c condition not life threatening & he exceeding consent given
• Doesn’t apply if induced by fraud or duress
• Capacity is required (drunks, young kids are deemed incapable of consent)
• No consent to criminal act (Majority view)

b. Self Defense – when a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary
• Need only reasonable belief not actual necessity
• Once original threat is over defense must stop
• Reasonable mistake is grounds to use force
• Retaliation not allowed
• Retreat not necessary (only if use of deadly force & would not put ? in more harm) {no retreat needed in own home}
• Not available to aggressor
• Can be used if 3rd parties are injured accidentally in the defense
• Deadly force can only be used if threatened w/ death or great bodily harm
1. Can also be used to protect others or to protect dwelling (dwelling - if person inside is threatened or to prevent felony inside)
a. Katko v. Briney - ? rigged spring gun to kill trespassers & severely injured ?. Ct. ruled that ? was not commiting violent felony so level of force was unwarranted.

c. Defense of Property
• Reasonable force can be used to prevent a tort against your property
• Request to desist usually required (unless circumstances make it futile or dangerous)
• No deadly force (carjacking is exception)
• Only can be used to Prevent the commission of tort
1. Once tort is completed this cannot be used
a. Exception - Only can be used if in “hot pursuit”

d. Necessity
• A person may interfere with the real / personal prop. of another where the interference is reasonably and apparently necessary to avoid injury & the threatened injury is substantially more serious than the invasion
• Act for the public good (defense is absolute)
1. Ex. Shooting a rabid dog
• Private necessity – act to solely benefit any person or to protect any property from destruction / serious injury. Liable for any damage he causes. (ex. Ship mooring to dock in storm)
• Necessity trumps defense of prop. if conflict

e. Recovery of Property
• Force is permitted as long as it is not unreasonable or if there is a breach of peace
• Must be in “fresh pursuit”
• Must demand to have chattel returned unless dangerous to do so
• Must be reasonable

f. Discipline
• Parent/teacher may use reasonable force in discipling children; taking into account age, sex, & seriousness of offense.

12. Negligence
a. Parts of Prima Face
• Duty
• Breach of Duty
• Actual (cause in fact) & Proximate cause (Legal)
• Damages
b. Duty of Care (Standards of care)
• Learned Hand formula = B< P x L
Burden is less than probability times severity of injury; ? is negligent
o US v. Carrol Towing – Barge breaks b/c of neg. mooring. Barge sinks another barge. Ct. rules ? is neg. b/c of learned hand formula
• Reasonable person Standard of Care
• Physical characteristics looked at objectively (Ex. epileptic driving a car when not taking medicine; this is negligent)
• Mental handicaps / insanity not a defense
• Once a child engages in adult activity (ex. driving a car) now will be looked at w/ reasonable adult standard not res. child.
• Knowledge of average member of community is considered ( if knowledge is superior then it must be used)
• Emergency doctrine – a person in an emerg. demanding prompt action is not required to exercise due care under normal circum. (Cannot be used if emergency is caused by actor’s own neg.)
• Professionals – held to higher standard of care; required to use knowledge / skill of member of profession
a. Ex. Doctor, Lawyer, Mariner (Doctors have duty to inform patient. “informed consent”)
b. Common Carriers (Innkeepers, shopkeepers, etc..)
i. held liable for even slight neg.
c. Automobile driver to guest ( charged w/ knowledge of whether car is safe)
• Custom & Usage – a customary practice that is so widespread that it has become mandatory and has the force of law.
a. ? has to show just a general practice; not universal
b. Used to determine reasonable duty of care
• Palsgraf case VERY IMPORTANT
An employee of RR negligently aided man to jump onto moving train; causing man to drop package. Package explodes causing scale a substantial distance away to fall on ?. Ct held Cardozo view; but Andrews view favored view today.

• Duty to foreseeable / unforeseeable ?
1. Foreseeable – duty is owed
2. Unforeseeable – two opinions
a. Cardozo View – Zone of danger; only if res. person would have foreseen a risk of injury in the circumstances.
b. Andrews View – Duty of care to society; ? owes duty of care to anyone injured as a proximate result of his breach of duty.

c. Breach of duty ( twofold; 1st it must be shown what in fact happened, 2nd it must be shown that the ? acted unreasonably)
• Custom & Usage
• Violation of Statute ( Negligence Per Se)
1. Minority views violations of statute as presumption of neg. Can only be rebutted with excuse for violating statute
2. Two part test
a. ? must fall w/in protected class
b. Statute must be designed to prevent this kind of harm
3. Zeni v. Anderson - ? walking on snowpath instead of sidewalk. ? strikes ? w/ car. Ct. ruled ok to violate statute if:
a. actor’s incapacity makes violation reasonable.
b. he is justifiably unaware of the need for compliance
c. unable to comply due to circumstances
d. an emergency ( not caused by him)
e. compliance would create great risk to self and others

• Res Ipsa Loquitor – ‘the thing speaks for itself’
1. If injured by object that is within ?’s sole control & no proof except for object itself
2. Cause must be an explained event (must be under sole control of ?)
a. Burne v. Boadle - ? gets hit by barrel that rolled out of ?’s window while walking down street. Ct. used Res Ipsa Loquitor. Barrel is enough prima face evidence
3. Negligence must be attributable to the ?
4. Cannot be used w/ multiple ?
a. Summers v. Tice - ? & friend shot guns @ same time and one of them struck ?. Could not determine who shot bullet that struck ?. Ct. ruled that the 2 ?s would be held jointly.
b. Ybarra v. Spangard - ? goes in for appendix surgery & comes out w/ back injury. ? couldn’t prove who injured him so he uses RIL. Ct. rules that RIL can be used against sev. ?s if medical case. EXCEPTION TO MULTIPLE RIL RULE
c. Sindell v. Abbott Lab. ? takes DES while pregnant & later daughter develops cancer from it. ? has no way of proving what company manufactured drug taken by her mother. ? brings to court companies that make up “substantial market share” that made drug in her area. Ct rules to split liability btw. these companies.

d. Causation – (cause in fact & proximate cause)
• Cause in Fact
1. But for test – an act is the cause of injury & the injury would not have happened but for the act.
2. Substantial factor test – used when several causes concur to bring injury.
a. Hill v. Edmonds - ? was a passenger in a car (that was neg. for hitting truck ) and hit a unlit truck (neg. also) parked in the middle of the road Ct. ruled that each tortfeasor is responsible for the entire result when separate acts of neg. combine to produce directly a single injury. Would not be split & cannot be paid twice in full.
3. Injury must be more than likely probability caused by ?’s neg. not just a possibility
a. Kramer v. Wilkins - ? cuts head from falling glass from broken transom. ? is neg. in not fixing this. ? develops cancer at spot of cut. ?’s doctor says there is a possibility that cut caused cancer. Ct. rules must be more than likely probability caused by ?’s neg. not just a possibility.

4. Daubert v. Dow - ? claims he suffered limb reduction b/c of mother taking drug produced by ? when pregnant. Ct rules Fyre test no good to determine expert witness. Uses FRE 702; says must reflect scientific knowledge if the findings are “derived by scientific method”, amounts to good science, and logically advances a material aspect of the proposing party’s case. To determine Ct. analyzes reliability in 4 parts:
a. Whether methodology been tested?
b. Has it been subject to peer review / publication?
c. Whether theory has been gen. accepted in scientific community?
d. Whether there is a known or potential error rate.

• Proximate Cause – (test based on foreseeability)
1. Direct/Indirect; ? responsible for all injuries if neg., no matter if injuries are foreseeable.
2. Direct Cause (uninterrupted chain)
a. Foreseeable harm = ? liable
b. Unforeseeable harm = ? not liable
i. Bartolone v. Jeckovich - ? is injured in accident by neg. act of ?. ?’s physical injuries are minor but suffers psycho. breakdown. ? argues that this was preexisting & not foreseeable. Ct. uses eggshell rule: ? is liable in tort of the aggravation of a ?’s existing injury or condition, regardless of whether the magnitude of injury is foreseeable.
ii. ? creates risk of harm; but entirely different & totally unforeseeable type of harm results. He is still liable.
iii. ? liable for all injuries resulting from original

3. Indirect Cause – ( intervening forces; force came into motion after time of ?’s neg. act)
i. Foreseeable results caused by foreseeable intervening forces = ? liable
ii. Dependent intervening forces – normal responses or reactions to situations created by defendant’s negligence
1. Subsequent Med. Malpractice - ? is liable for aggravation of ?’s condition caused by malpractice
2. Negligence of Rescuers
3. Efforts to protect person or property
4. Subsequent Disease
5. “Reaction Forces”
6. Subsequent Accident – original injury must be sub. factor in causing the 2nd.

b. Independent Intervening forces –
i. May be foreseeable if ?’s neg. increased risk that these forces would cause harm to ?.

ii. Common Situtations
1. Neg. Acts of 3rd party
a. ? is liable for harm caused by 3rd person if it was a foreseeable risk created by ?’s conduct.
b. Derdiarian v. Felix Contracting - ?working on ?’s worksite. 3rd party has seizure (b/c of neg.) and crashes into worksite; injuring ?. Ct rules that ? was neg. b/c actions of 3rd party were foreseeable. Precise way that the accident happens doesn’t need to be foreseeable just the risk.

2. Criminal Acts of 3rd party
a. ? not liable for the criminal acts of 3rd person
b. Watson v. Kentucky RR - ? negligently lets tank car spill gas on street. 3rd party flicks match and explosion ensues. Ct. rules if 3rd party’s acts were intentional then ?’s liability is terminated; if unintentional then would be liable b/c it was foreseeable.
i. Exceptions
a. If ? has a duty to protect ?
b. ?’s neg. destroys ?’s protections against crime
c. ? negligently creates a risk that ? will come into contact w/ criminal
d. ? is responsible for custody of criminal
? is liable if his neg. created a foreseeable risk that 3rd would commit crime / tort.

3. Acts of God
a. ? is liable if they are foreseeable.
c. Foreseeable results caused by unforeseeable intervening forces = ? is usually liable.
i. Exception = when intervening force is an unfor. crime or int. tort of 3rd party. ( then superseding force)
1. superseding force cuts off ? liability
2. Wagon Mound case
d. Unforeseeable results caused by foresee. interv. forces = ? not liable
e. Unforeseeable results caused by unforsee. interv. forces = ? not liable
i. Superseding force- force that breaks casual connection

e. Damages
• Must be actual harm or injury

Torts II Outline
Spring 2002

CHAPTER 8: DUTY OF CARE

Duty of Care

Duty- a legal obligation imposed on one person for the benefit of another.

GENERAL DUTY OF DUE CARE
• In negligence cases, the duty owed by the defendant (D) is to conform to the legal standard of reasonable conduct in light of the apparent risk (i.e., conduct that a reasonable person of ordinary prudence would follow under same/similar circumstances.

LIMITED DUTY
• In some situations, D will not be under the full obligation of reasonable conduct toward the plaintiff (P), even in light of a foreseeable risk.

• Of course, negligent breach of duty, causation and damages must be proven in any instance as well.

• Negligent breach of duty is the focus of our analysis though (foreseeability, that’s all).

Introduction (pp. 398-99)

I. Limited Duty

This chapter deals with duty & liability in several areas:
1.) inflicting damages of a kind other than physical injury— mental disturbance &
economic loss

2.) liability for omissions as opposed to affirmative acts— failure to act
(misfeasance vs.
nonfeasance)

3.) duty to unborn children

4.) privity of contract
-interference w/ existing and prospective contractual relations

A. Mental Disturbance and Resulting Injury (pp. 446-61)

• Mental disturbance is the negligent infliction of severe mental suffering on a plaintiff (P).

BURDEN OF PROOF FOR PLAINTIFF

PRIMA FACIA OF MENTAL DISTURBANCE:
1.) Actual physical injury
2.) Harm suffered was result of D’s negligence
3.) Harm suffered was reasonable (objective symptomology)

• Traditionally, a P could recover for the negligent infliction of emotional distress only if he suffered physical injury as a result of a physical contact with the D.

Daley v. LaCroix—Physical impact rule rejected
LaCroix (D) negligently crashed his car into Daley’s (P) home. Although no physical impact with P resulted, P suffered substantial emotional & nervous injury as a consequence of the accident.

Most jurisdictions still require physical injury, but actual physical impact with the D is not required.

Thing v. LaChusa—Contemporaneous observance of an event
A child was injured when he was struck by an auto driven by LaChusa (D). The child’s mother (P) was nearby, but neither saw nor heard the accident. P became aware of the accident when her daughter told P that her son had been hit. When P arrived @ scene, she saw him bloody & unconscious lying in the road & believed he was dead.

Where a 3rd party is injured, a P can recover for emotional distress if the P:
1.) Is a close relative to the injured party;
2.) is present @ time of injury & is aware that it is causing injury to the victim; and
3.) suffers severe emotional distress as a result.

• Harm suffered by P must be reasonable; courts ignore the subjective sensitivities (eggshell psyche/plaintiff) & look at whether a reasonable person in P’s position would have suffered the same or comparable harm.

• Zone of danger rule, allowing recovery where P was in D’s foreseeable zone of danger and the threat of physical injury was present + manifestation of physical injury from emotional disturbance caused by D’s negligent act, has been abandoned by most jurisdictions.

Louisiana Cases

1900 Partnership v. Bubber, Inc.
Howard sues for damages to property he manages but doesn’t own.

Bubber Inc. Doctrine

An award for mental anguish allegedly resulting from property damage is permissible only when the property is damaged by:

1.) an intentional or illegal act;
2.) an act for which the tortfeasor will be strictly or absolutely liable;
3.) acts constituting nuisance; or
4.) when the owner is present or nearby & suffers psychic trauma as a result.

Chappetta v. Bowman Transportation, Inc.
Ms. Chappetta was driving her father’s car & is run over by a tractor-trailer.

Courmier v. Travelers Insurance Co.
P sued for damages she experienced because her child was injured in a car accident for which she was partly responsible.

LeJeune v. Rayne Branch Hospital
Wife sues hospital for negligent infliction of injury on another person while in hospital b/c her husband had been chewed on by rats.

Louisiana Bystander Recovery Rules

Mental pain and anguish claims arising out of injury to 3rd persons:

A claimant need not be physically injured nor suffer physical impact, nor need be in the zone of danger to which the directly injured party is exposed. He must however:

1) either view the accident or injury causing event or come upon the accident scene soon
thereafter and before substantial change has occurred in the victim’s condition.
2) the direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that one in the plaintiff’s position would suffer serious mental anguish from the experience.
3) the emotional distress sustained must be both serious and reasonably foreseeable to allow recovery (must be severe & debilitating, e.g., neuroses, psychoses, chronic depression,
phobia and shock).
4) close relationship (LeJeune ct. leaves this to be decided another day; but says that
perhaps recovery should be restricted to all close relatives- immediate family).

Clomon v. Monroe City School Board
P sues for distress she suffered when her car struck a boy leaving a school bus.

LA C.C. Art. 2315.6 Liability for damages cause by injury to another

A. The following persons who view an event causing injury to another person, or who come
upon the scene of the event soon thereafter, may recover damages for mental anguish or
emotional distress that they suffer as a result of the other person’s injury:
1) The spouse, child or children, and grandchild or grandchildren of the injured
person, or either the spouse, the child or children, or the grandchild or
grandchildren of the injured person.
2) The father and mother of the injured person, or either of them.
3) The brothers and sisters of the injured person or any of them.
4) The grandfather and grandmother of the injured person, or either of them.

B. To recover for mental anguish or emotional distress under this Article, the inured person
must suffer such harm that one can reasonably expect a person in the claimant’s position
to suffer serious mental anguish or emotional distress from the experience, and the
claimant’s mental anguish or emotional distress must be severe, debilitation, and
foreseeable. Damages suffered as a result of mental anguish or emotional distress for
injury to another shall be recovered only in accordance with this Article.

Dufour v. Westlawn Cemeteries, Inc.
Roland, brother of P dies & was to be buried in a grave containing the remains of their parents. A relative noticed the body of the mother (Frances Dufour) wrapped in a plastic bag & lying in water. The casket containing Roland was dropped on top of mother’s body. Westlaw confirmed that Frances had been removed from her casket & reinterred @ the bottom of the grave.

LA C.C. Art. 1998 Damages for nonpecuniary loss

Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have know, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

Trahan v. McManus, M.D.
P went to the hospital upon learning that her son had been injured in a car accident. Attending Dr. discharged son having read the wrong chart. The son was actually suffering from shock & internal bleeding. He died in the presence of his parents about 7 hours after being discharged.

Pourciau v. Allstate Insurance Company
Tutt & Porciau were skating. Leleaux’s vehicle struck Tutt, fatally injuring the skater. Porciau narrowly avoided the collision.

Moresi v. State of Louisiana, Through The Department of Wildlife and Fisheries
State game agents, on the lookout for poachers, stopped & questioned Moresi & Alleman. They inspected the boat & duck limit. Youthful hunters told the officers that they had just left their father’s @ the camp. Officers returned w/ boys to the camp & discussed hunting violations w/ fathers. When boys returned to the camp some weeks, they found a business card from another game officer with a written note saying “We missed you this time, but look out next time!”

LA C.C. Art. 2315 Liability for acts causing damages

Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.

Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease.

Straughan v. Ahmed
P is a 74 year old female & a patient of D. She informed him that she discovered a lump in her right breast. He set up a mammogram & told her not to worry. Every visit for the next 2 years, she questioned him about the mass (cancerphobia); 2 yrs later a lump in her rt. breast was found & biopsy revealed cancer. She had a mastectomy.

Touchard v. Slemco Electric Foundation

Vallery v. Southern Baptist Hospital, et al.
Vallery was a hospital guard who was called to subdue an unruly pt. who bled on his arm while hospital employees watched. That night, he went home and had sex with his wife; the next day the hospital informed him that the pt. had AIDS & that he may have been exposed to HIV.

“Environmental Fear and the Courts” by Martha Churchill

B. Failure to Act (pp. 412-21; 428-435)

• A P can recover for a D failing to act only if the D has some duty to act.

Misfeasance- an affirmative act which harms or endangers P.

Nonfeasance- a mere passive failure to take action.

EXAMPLE: D owes no duty to go to the aid of a stranger in an emergency, at least
where D was in no way reasonable for that person’s injury or
predicament no matter how easily assistance could have been given.

• A person is typically required to control the harmful conduct of another only if there exists some special relationship between the two.
Hegel v. Langsam—University’s duty to students
Hegel (P) alleged that Langsam (D) permitted their minor child, a student @ the university, to become associated with criminals, to be seduced, to become a drug user and to absent herself from the dormitory.

• A university has no duty to control the private lives of its students.
The OHIO STATUTES cited do not apply to the fact situation here.

L.S. Ayres & Co. v. Hicks—Escalator injury
Hicks (P), a 6 year old child, caught his fingers in L.S. Ayers & Co. (D’s) escalator & D negligently delayed shutting down the escalator, which aggravated P’s injury and caused him to lose his hand.

• A storeowner has the duty to rescue a person in peril if the instrumentality causing the injury is under the control of the owner.

• Liability for failure to exercise proper care to effectuate rescue when P suffered injury by reason of the instrumentality under D’s control (the aggravation of Ps injury resulting), not for negligent operation of escalator (instrumentality).

Tarasoff v. Regents of University of California—Duty to warn
The Tarasoffs (Ps) are the parents of a girl who was murdered by a psychiatric patient of a psychologist employed by the U of Cali (D). Ps alleged that the murderer confided his intent to kill their daughter to the Dr. 2 mos. before the killing & that although the killer was briefly detained, no further action was taken to restrain him or to warn Ps.

• A therapist must exercise reasonable care in controlling the harmful conduct of a patient or in warning others about the dangerous propensity.

Louisiana Cases

Penton v. Clarkson
Penton shared an apt. w/ Clarkson. After an argument, he shot himself in the head. His parents sue Clarkson for wrongful death, citing duty to act to prevent suicide & summon family help.

Miller v. Everett
Carlin, a church pastor, was sued by parents of 4 minors after a person he was counseling molested the kids. Ps contend pastor had a duty to warn them.

Hackett v. Schmidt Sr.
Hackett filed suit against Schmidt & his wife based on his sexual molestation of their minor daughter.

Hutchinson v. Patel
P’s husband voluntarily committed himself seeking psychiatric treatment. He was admitted to care of Dr. Patel; after treating him for about 2 wks., Dr. released him. A month later, Hutchinson persuaded his wife to meet him, he shot her, and she was permanently paralyzed. He then committed suicide.

LA R.S. 9:2800.2 Psychologist and Psychiatrist; Limitation of Liability

A. When a patient has communicated a threat of physical violence, which is deemed to be significant in the clinical judgment of the treating psychologist or psychiatrist, or board-certified social worker, against a clearly identified victim or victims, coupled with the apparent intent and ability to carry out such threat, the psychologist…
Treating such patient and exercising reasonable professional judgment, shall not be liable for a breach of confidentiality for warning of such threat or taking precautions to provide protection from the patient’s violent behavior.

B. A psychologist’s…duty to warn or to take reasonable precautions to provide protection from violent behavior arises only under the circumstance specified in subsection A of this section. This duty shall be discharged by the psychologist or psychiatrist if he makes a reasonable effort to communicate the threat to the potential victim or victims and to notify law enforcement authorities in the vicinity of the patient’s or potential victim’s residence.

C. No liability or cause of action shall arise against any psychologist or psychiatrist based on an invasion of privacy or breach of confidentiality for any confidence disclosed to a third party in an effort to discharge the duty arising under subsection A of this section.

C. Unborn Children (pp. 461-75)

• In most jurisdictions, no duty of care is owed to an unborn child.
• Wrongful death statutes (which most states have) compensate a defined group of people (usually the accident victim’s family) for the loss they sustained as a result of a tortiously caused death.
• Recovery is allowed for lost economic support, companionship, sexual intercourse, etc. Damages are measured by the loss of the living claimants (monetary loss suffered due to death + value of lost comfort & society).
• A survival statute is very different. It simply lets a decedent’s estate sue (or be sued) for the same harms that the decedent could have sued for (or been sued for) had he lived. The action’s name comes from the idea that the decedent’s cause of action “survives” him. Estate steps into “his shoes” for the purposes of the lawsuit.
• Recovery for the claims the decedent had @ death (e.g., pain & suffering, medical expenses, loss of income up to death, etc.). Defenses may be asserted.
• Today, most tort actions survive the death of either P or D, not for intangible personal interests (defamation, malicious prosecution, & invasion of privacy).

Wrongful birth- The cause of action of parents who claim that negligent advice or
treatment deprived them of the choice of avoiding conception or terminating pregnancy.

Wrongful life- A tort action concerning childbirth, such as the birth of a child after
the negligent performance of an operation to sterilize the parent, or the
birth of a child with serious defects due to the doctor’s failure to advise
the parents properly.

Endresz v. Friedberg—Wrongful death
Endresz (P) was delivered of stillborn twins after being injured by an automobile accident which alleged occurred as a result of Friedburg’s (D’s) negligence.

The parents of a stillborn child may not maintain a wrongful death action against the person causing death.

Procanik by Procanik v. Cilio—Wrongful life
Procanik (P) was born with congenital rubella syndrome after Cilio (D), his mother’s Dr., failed to diagnose that his mother had contracted German measles in the 1st trimester of her pregnancy. D had failed to order further tests despite indications of the measles. As a result of D’s assurances that she had nothing to worry about, P’s mother was deprived opportunity to terminate pregnancy.

Traditionally, an infant could not file a “wrongful life” claim to recover for being born with birth defects, where the mother would have terminated the pregnancy if the doctor had correctly diagnosed the condition.

--Most jurisdictions have changed this rule & allow recovery for wrongful life.

Louisiana Cases

Danos v. St. Pierre
Danos’ 6 month fetus was born dead b/c the maternal placenta separated prematurely when she was involved in a car accident caused by D. Seek recovery of damages for loss of unborn.

LA C.C. Art. 25 Commencement and end of natural personality

Natural personality commences from the moment of live birth and terminates at death.

Comment (b) A natural person exists from the moment that he or she is born alive, subject to
the exception established in Article 26, infra. A human being that is born dead is considered never to have existed. Live birth suffices. There is no requirement that the child be born capable of living.

LA C.C. Art. 26 Unborn child

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death.

Comment (b) An unborn child may be a person even if it is in a test tube (rather than its
mother’s womb)

Comment (c) An unborn child may be plaintiff in an action for the protection of its property
rights. If the child is born alive, it may be plaintiff in an action seeking
recovery for prenatal injuries.

Comment (d) The parents of a still-born child may maintain an action for its wrongful death
under Article 2315 of the 1870 Code despite the language of Article 28 of the
same Code (Danos). When a child is born dead, the fiction of its personality from
the moment of its conception is wiped out; however, this does not condone the
fault of a person who caused the loss of the foetus. In effect, the still-born child
is considered as a person for the purposes of a wrongful death action. Under
Article 26, the death of an unborn child on account of the fault of a person gives
rise to an action for wrongful death under Article 2315 of the Civil Code.

There is no wrongful death action “for the loss of a foetus not conceived at the
time of the mother’s traumatic injury.

Comment (e) A newborn infant whose brain was severely and irreversibly damaged at birth
and who was in a comatose state was recognized as a person in In re P.V.W.
That infant had the “right to discontinuance of artificially sustained life through
The mechanical invasion of the child’s body.” It is implicit in the court’s
decision that the child was born alive.

Comment (f) For actions for wrongful life, see Foutz, “Wrongful Life: The Right Not to Be
Born.”

LA C.C. Art. 2315.1 Survival Action

A. If a person who has been injured by an offense or quasi offense dies, the right to recover
All damages for injury to that person, his property, or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:

1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

2) The surviving father and mother of the deceased, or either of them if he left no spouse or surviving children.

3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.

C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D. As used in this article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

Pitre v. Opelousas General Hospital, et al.
Pitre underwent a tubal ligation; biopsy indicated the procedure was inadequately done. She later became pregnant & gave birth to Hannah, who was born w/ albinism. Ps sue stating Dr. failed to perform properly the tubal ligation which enabled her pregnancy.

Wartelle v. Women’s and Children’s Hospital, Inc.
Wartelle went into labor @ Children’s Hospital. A fetal monitor was attached; mother & child appeared to be fine. Monitor was removed & when it was reattached, fetus had died in utero. Wartelle filed a survival action pursuant to CC 2315.1, an action for wrongful death of stillborn pursuant to 2315.2, and an action pursuant to CC 2315.6 for their emotional distress & mental anguish.

LA C.C. Art. 2315.2 Wrongful Death Action

A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:

1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

2) The surviving father and mother of the deceased, or either of them if he left no spouse or surviving children.

3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B. The right of action granted by this article prescribes one year from the death of the deceased.

C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

E. Privity of Contract (pp. 399-403)

• Privity of contract theory is a shield to manufacturers & suppliers against injured users & parties other than the buyer.
• Unless injured P is the buyer, no recovery either in tort or in contract, no matter how negligent the seller’s conduct.

Winterbottom v. Wright—Privity of contract
Claim against a coach repairman by a passenger injured when the coach collapsed. The repairman had agreed with the owner to keep the coach in repair.

A person who is not a party or beneficiary to a contract cannot recover damages in tort resulting from a breach of the contract, unless the contracting party undertook a public duty to act.

H.R. Moch Co. v. Rensselaer Water Co.—Application of MacPherson Rule
Rensselaer (D) contracted w/ city of Rensselaer to provide water for, among other purposes, service @ fire hydrants. It specifically agreed to provide certain quantities of H2O @ a certain pressure to the fire hydrants. A fire broke out near H.R. Moch Co.’s (P’s) warehouse. D was notified of fire in a timely manner & failed to provide quantity or pressure of H2O contracted for. Fire spread & destroyed P’s warehouse.

THIS CASE DECISION WAS WRONG.

A contractual relationship may impose a duty to act resulting in liability for failing to act.

MacPherson Rule: when one manufactures a product that can be dangerous, knowing that the
product will be used by people other than the original purchaser, the
manufacturer can be liable to any person injured, even if that person is
not in privity with the manufacturer.

Clagett v. Dacy—Attorney’s liability to non-client
Clagett (P) was high bidder on 2 occasions, but on both occasions, the sale was set aside b/c attys. conducting sale failed to follow necessary procedures. Debtor satisfied debt & P lost any further opportunity to buy the property.

An attorney cannot be liable to a person who had no contractual relationship with him/her and who is not an intended beneficiary of the representation.

1. Interference with Existing or Prospective Contractual Relations (pp. 1076-80)

PRIMA FACIE OF INTERFERENCE W/ CONTRACTUAL RELATIONS: A PACK
1) D’s act;
2) w/ knowledge & intent to interfere (negligence insufficient);
3) adversely affecting but not necessarily inducing a breach of
4) D’s contractual rights

• Need to do more than offer money & K doesn’t have to actually be breached.

Rationale

1.) It encourages individuals to live up to their contractual obligations.
2.) It discourages practices which will disrupt business dealings.

• It is tortuous to interfere with any contract.
• Fair, commercially acceptable competitive tactics are allowable.
• Impropriety must be present
• The law wants to discourage needless & spiteful breaches of K, but it does not want to interfere w/ efficient breaches nor with the free market.
Lumley v. Gye—Inducing breach of an employment contract
Lumley (P) contracted for the exclusive services of a certain opera singer. Gye (D), knowing of the contract, induced the singer to break the contract & perform for him.

Bacon v. St. Paul Union Stockyards Co.—Preventing performance of employment at stockyard
Bacon (P) was a livestock dealer. The St. Paul Union Stockyards Co. (D) prevented P from entering the stockyard.

Louisiana Cases

9 To 5 Fashions, Inc. v. Spurney—LA axn for tortuous interference w/ contractual relationship
LWE contracted w/ 9-5 to supply uniforms for fair employees. LWE went bankrupt & 9-5 was unable to collect owed money. 9-5 filed suit against Spurney, CEO of LWE, alleging that he damaged 9-5 by acts & omissions that caused its performance of K to be more burdensome & costly. Specifically, Spurney didn’t appoint a liaison to 9-5 until 2 mos. After voting to approve the K, & didn’t actually sign the K until a few days before the fair opened. Spurney’s delay hampered 9-5’s ability to anticipate uniform needs & resulted in its ordering more material than required, resulting in a loss of profits to 9-5.

LA Tortious Interference With a Contractual Relationship

The action against a corporate officer for intentional and unjustified interference with contractual relations must satisfy 5 elements:

1) existence of a contract or a legally protected interest between the plaintiff & corporation
2) the corporate officer’s knowledge of the contract;
3) the officer’s intentional inducement or causation of the corporation to breach the contract
or his intentional rendition of its performance impossible or more burdensome;
4) absence of justification on the part of the officer
5) causation of damages to the plaintiff by the breach of contract or difficulty of its
performance brought about by the officer.

F. Pure Economic Loss (pp. 435-46)

• Tort actions cannot typically be maintained for pure economic loss.
There must be:
ACTUAL INJURY TO THE PERSON, or INJURY TO HIS PROPERTY.

State of Louisiana Ex Rel. Guste v. M/V Testbank—Economic loss
The M/V Testbank (D) collided w/ another ship in the MR-GO (Miss. River Gulf Outlet). Containers of PCP aboard D were damaged & spilled overboard. The Coast Guard closed the outlet to all maritime activity for almost 3 weeks. Numerous parties sued D including State of LA (P).

Where a maritime accident resulted in the closure of fishing lanes, the fishermen who are affected cannot recover damages.

Robins Rule: P may not recover for economic loss if the loss resulted from physical
damage to property in which P had no proprietary interest.

Louisiana Cases

PPG Industries, Inc. v. Bean Dredging—LA coa for neg. interference w/ contractual relations
Bean Dredging’s operations caused damage to Texaco’s natural gas pipeline. As a result, Texaco was unable to fulfill its K to supply natural gas to PPG Industries, and PPG had to obtain fuel from another source @ an increased cost.

II. Misrepresentation (pp. 1009-23)

PRIMA FACIE OF MISREPRESENTATION: MS JARID

MISREPRESENTATION; SCIENTER; JUSTIFIABLE & ACTUAL RELIANCE; INTENT; DAMAGES

1) D’s misrepresentation of a material fact (past or present; normally words but can be actions, e.g., rolling back an odometer).

2) Scienter- D’s knowledge of falsity or reckless disregard for the truth (D is reckless when he knows he lacks the basis for determining whether his statement is true or not.

3) D’s intent to induce P’s reliance (or the reliance of a group to which P belongs for a particular transaction). This is the causation element of misrepresentation; P must in fact have relied on representation.

4) P’s actual reliance.

5) P’s justifiable reliance (as a general rule, P can justifiably rely on statements of fact as long as they aren’t obviously false, but not on opinions, although there are exceptions to the no-opinion rule.

LIABILITY ONLY FOR JUSTIFIED RELIANCE ON STATEMENT

MAY BE DUTY IMPOSED ON LISTENER TO INVESTIGATE STATEMENT

6) Damages flowing from reliance

• Misrepresentation is a common occurrence throughout the law of torts. Many torts, such a battery that occurs when a guard feeds a prisoner poisoned candy, are rooted in misrepresentation.

• Misrepresentation is also a separate tort, actionable when a fraudulent misrepresentation causes a P to rely to his detriment.
• The tort of misrepresentation is rooted in the common law action of deceit, which also encompassed many wrongs that now constitute a breach of contract.

• The study of this tort focuses on determining whether a misrepresentation has occurred.

Future Act Liability:

Predictions- not a stmt of fact, so no claim for misrepresentation.

Intentions- one makes a statement of fact that he has no intention of carrying out; he may be
liable.
Opinions: P can justifiably rely on opinion

1) stmt of quantity (e.g., tank hold 500 gal), not value or quality (if it’s not specific).

2) special relationship between parties creates trust & confidence (e.g. atty-client, family, principal-agent, partners).

3) D has special knowledge or access to facts not available to P (e.g. D is an art dealer, patent atty., etc.)

4) D feigns disinterest in a transaction in which he really has an interest (advise P to invest in a company w/o disclosing he’s a creditor & will profit).

Liability for Nondisclosure:

1) presence of an affirmative duty to disclose (i.e., b/c D has told a half-truth, received subsequent info & has knowledge of undisclosed facts.

2) specific query about the matter

3) existence of a special fiduciary relationship between parties

Damages for Intentional Misrepresentation

1) benefit of the bargain: difference between what P paid & what he would have received
had D’s representation been true.
Minority View- out of pocket expenses (what he paid & what he actually got); RELIANCE
2) consequential damages: any other expenses caused by the misrepresentation & any physical
harm.

3) punitive damages: if D intended to cause harm

INTENTIONAL MISREPRESENTATION VS. NEGLIGENT MISREPRESENTATION

Liability to all those who are Liable to limited group of Ps (only those
likely to rely on stmts are he intended to reach or knows/ should know
potential Ps the recipient intends to reach (advice of
professionals & lawyers who have duty of
due care to give reliable info & base
opinions on it.

A. Concealment and Nondisclosure

Swinton v. Whitinsville Bank—Failure to disclose…no fiduciary duty, caveat emptor
Whitensville Savings Bank (D) sold a house to Swinton (P) knowing it to be infested w/ termites, but made no mention of the fact to P. P couldn’t readily ascertain the condition & later incurred considerable expense for termite control.

Absent some special relationship between the parties, mere concealment or nondisclosure of material facts is sufficient to impose liability for misrepresentation.

Griffith v. Byers Constr. Co. of Kansas, Inc.—Persons to whom duty to disclose extends
Griffith & others (Ps) discovered that the new homes they had purchased were built on highly saline soil, which was impossible to landscape. Alleging that Byers Const. Co. (D) graded the land to prevent discover of the defective soil, Ps sued D on alternative theories of breach of implied warranty of fitness & fraud in the concealment of a material matter.

• In certain contexts, including residential real estate development, a party with knowledge has a duty to disclose material defects to parties who may be expected to act in reliance on the knowledgeable party’s nondisclosure. To be actionable, the fraudulent concealment must be material to the transaction. The soil condition of a new residential building site is clearly material.

B. Basis of Liability

1. To the Recipient
Derry v. Peek—Scienter-knowing falsehood or reckless disregard for the truth (intentional)
Derry & other directors of a railway company (Ds) issued a prospectus stating that their charter gave the co. the right to use steam power instead of horses. Ds honestly believed this to be the truth, but later, the Bd. Of Trade refused to consent to the use of steam & co. folded. Peek (D) had invested in the co. in reliance on this representation that it had right to use steam as stated in the prospectus.

Based on English law, negligence alone is insufficient to impose liability for misrepresentation. A speaker who honestly believes a statement to be true, even if the belief is negligent or unreasonable, it is not liable to the listener for misrepresentation.

One must establish scienter, knowledge of the falsity of the misrepresentation or knowledge that one has no knowledge one way or the other as to the truth or falsity of the representation made (i.e. recklessness), in order to sustain an action for deceit.

International Products Co. v. Erie R.R. Co.—Duty to give correct information (negligent)
International (P) imported certain goods for resale which Erie (D) agreed to store in D’s warehouse. On August 17th, P, in order to obtain insurance on goods, inquired where goods were & was informed @ Dock F. He told this to the insurer. In fact, goods had not yet arrived & when they did, they were stored in Dock D. Several mos. Later, when goods in Dock D destroyed by fire, P was unable to collect from the insurer b/c of the misdescription in the policy.
The American rule imposes liability for negligent false statements that include reliance, based on a case-by-case determination of whether a duty should exist.

When there is a duty owed to give correct information, the negligent giving of false info is actionable; for the misrepresentation to be actionable, the maker must have known that the information was requested for a serious purpose, would be relied upon, and that damage would result if it was incorrect. The relationship between the parties must justify reliance upon the information.

Louisiana Cases

Barrie v. V.P. Exterminators, Inc.
Barries entered into an agreement to purchase a home w/ condition that vendor provide a termite certificate showing free & clear. Secor empoloyed VP to perform termite inspection; VP issued a report indicating there was no physical evidence of infestation. Within 3 days of purchase, Barries found extensive termite damage in the walls. Claim termite inspector negligent in misrepresenting condition of property.

CHAPTER 9: OWNERS & OCCUPIERS OF LAND

III. Premises Liability

• Under Tort law, certain individuals have duties toward others which are more specifically defined than the general exercise of due care. Owners/occupiers of land are within this category.

• The modern trend of courts is to abandon category & entrant status and impose duty to protect all against unreasonable risks unlikely to be discovered; duty to repair or warn, whichever is reasonable under the circumstances.

Answering 3 questions will allow you to determine the duty of the owner:

1.) Is the condition on the property natural or artificial (most often only applies when the
individuals threatened are off the property)?

• Generally, the owner/occupier does not owe a duty to protect individuals off the property from the risk of harm posed by natural conditions.

EXCEPTION: trees on property that abut a public road, which calls for the exercise of reasonable care to protect others from unreasonable risk of harm.

• The same standard, exercise of reasonable care, for artificial conditions that pose a threat to individuals off the property is necessary.

2.) Are the individuals threatened by the risk of harm on or off the property?

Trespassers on the property (2 types)

• discovered or undiscovered?

• natural or artificial conditions?

3.) If on the property, is the individual a trespasser, a licensee, or an invitee?

• The duty the owner/occupier owes to individuals on the property depends on the status of the entrant:

TRESPASSER- one who is on the property without permission

Duty: No duty (lowest standard)
Exception: Discovered trespasser (owner knows or should know…worn foot-path),
then…must protect against unreasonable risks posing dangerous conditions known to the owner/occupier; duty to warn or make safe if a
warning would be insufficient or unreasonable under the circumstances.

• Warning may be a sign. This duty extends to artificial conditions that are unlikely to be discovered by discovered trespasser.

LICENSEE- one who is on the property with permission, but for his own interest, convenience, or gratification.

Duty: Duty to warn of hidden peril that owner/occupier knows of
And licensee doesn’t know about if time permits.

• This status applies to social guests, emergency personnel, uninvited salespeople, those getting out of the rain w/ no intent to purchase.
• The Official Guest/Visitor Doctrine extends licensee status to firemen & policemen.

INVITEE- one who is expressly or impliedly invited onto property to further owner’s/occupier’s economic interest (e.g., customers, business patrons), or enters for purposes for which land is held open to the public.

Duty: Duty to make premises safe (highest standard)
1.) must inspect reasonably; if warning is insufficient to remove danger,
premises must be made safe
2.) must make premises safe

• Museums, churches, airports, shopping centers, parks, etc
• Non-emergency public servants such as garbage collectors & postal workers fall into this entrant category.
• If invitee’s attention is diverted by a display or the like, invitee may be relieved of duty to look after himself and liability may extend to L/O.

PURCHASE INTENT & TIME
• Invitee may lose his status by staying on land longer than necessary to transact his business (e.g., loitering) or going beyond the area of invitation extended. Whether the L/O consents to this determines the new status of the former invitee.
• There must be intent to purchase at some point. Expiration of a reasonable time to accomplish purpose for which invitee entered changes entrant status of invitee.

LANDLORD & TENANT

• Duty to warn lessee of natural and artificial conditions unlikely to be discovered.

A. Outside the Premises

• Generally, a landowner owes no duty to protect individuals who are off the premises from natural conditions on the property.
• However, if the L/O engages in activities that pose a risk to outsiders, has altered the natural conditions on the land or has trees that abut public streets, etc., or has artificial conditions near the public passageways adjacent to land (maintaining buildings, fences and the like), there may be a duty.

Taylor v. Olsen—Consideration of circumstances
Taylor (P) was injured when her car ran into a tree that had fallen from Olsen’s (D’s) property onto the road.

An exception exists when trees from the property fall on a public road. The landowner must exercise reasonable care to protect persons on the road from unreasonable risk of harm.

• Where there are artificial conditions on a property, the owner must use reasonable care to protect those who are outside of the premises.

Salevan v. Wilmington Park, Inc.—Activities
Salevan (P) brought an action in damages for the personal injuries he received when struck by a baseball while walking on a street adjacent to the ballpark owned by Wilmington Park (D).

A baseball stadium operator may be liable for foul balls that injure persons off the property.

Louisiana Cases

Ozols v. Irving
Ozols was shot and killed in her living room when a bullet was discharged from a gun from a neighboring house. The neighboring house and gun were owned by Mrs. Irving; she had her room & gun locked up from her nephew, Eddie Kent (a kid).

II. On the Premises

A. Trespassers

Sheehan v. St. Paul & Duluth Ry. Co.—General rule
Sheehan (P) was walking along St. Paul & Duluth’s (D’s) tracks (not @ a crossing) & his foot slipped between the rail & a cattle guard. P was unable to extricate his foot & a train ran over it.

A trespasser, who is injured while being on property without permission, can recover from the landowner only if the owner knew or should have known of the unreasonable risk of harm.

A trespasser assumes all risk existing on premises. Once the landowner/occupier discovers the trespasser, he must exercise reasonable care in his activities for the trespasser’s safety. Where the landowner has reasonable cause to believe that a trespasser is present (e.g., if told by a witness), he must exercise due care; it isn’t essential that the landowner actually perceive the trespasser for there to be discovery.

B. Licensees

• A licensee is someone who is on property with permission of the owner but who is there for his own interest. Social guests are considered licensees.

Barmore v. Elmore—Duty owed
Barmore (P) & Elmore (D) were officers of a Masonic Lodge. P visited D @ D’s home to discuss lodge business. During the visit, D’s son attacked P and stabbed him several times, despite D’s attempt to restrain him.

An owner has the duty to warn licensees of hidden dangers that are unknown to licensees.

A social guest is considered a licensee, as opposed to a person who enters the owner’s premises in furtherance of owner’s business, who is an invitee-the owner must make premises reasonably safe for the use of invitee. A licensee, however, generally must take the premises as he finds them, although the owner has a duty to warn of any hidden peril.

C. Invitees

• An invitee is someone who is expressly or implicitly invited on to property in order to further the owner’s own economic interests.

Campbell v. Weathers—Business invitees
Campbell (P) entered Weathers’ (D’s) lunch counter where he was a regular customer and loitered for several minutes w/o making any purchases. P went towards the toilet in the back part of the store and fell through an open trap door in the dark.

Any individual in a retail establishment may be considered a licensee even if he does not make a purchase.

Whelan v. Van Natta—Beyond the scope of invitation
Whelan (P) entered Van Natta’s (D’s) store & bought cigarettes. He asked for a box & D told him back in where P could find some. While looking around the storage room, P fell down a stairwell. At trial, when P sued, D claimed that he didn’t know whether it was on when P fell.

An invitee may exceed the scope of invitation either by the expiration of a reasonable time w/in which to accomplish the purpose of invitation, or by going outside that part of the land to which the invitation extends. The area included w/in invitation depends on the purpose of the invitation. Once an invitee exceeds the invitation, he becomes a trespasser or a licensee, depending upon whether the possessor consents to his activity.

Wilk v. Georges—Invitee’s knowledge of the danger
Wilk (P) was injured from falling down while searching for a X-mas tree @ a nursery operated by Georges (D) claimed that the warning signs he erected were satisfy his duty toward P.

A landowner owes a duty of care to invitees to remove dangerous conditions, not merely to warn of their existence.

Where the possessor should anticipate an unreasonable risk of harm to the invitee, notwithstanding his knowledge or warning, something more in a way of precautions may be required.

D. Persons Outside the Established Categories
1. Children

Attractive Nuisance Doctrine

Requires that landowner:
1) exercise ordinary care;
2) to avoid harm to children (young enough not to appreciate risk-probably 12 & under)
3) which is due to a reasonably foreseeable risk
4) caused by a dangerous artificial condition on the land
• Must be an artificial condition or alteration of a natural condition that increased the likelihood of hazard (e.g. a natural pond covered w/ unnatural camouflage).

5) in an area where children are likely to trespass.
6) Also, risk of injury must outweigh the cost of remedying the dangerous condition.
• If a child knows of the danger, understands it, and can avoid it, L/O only owes him the same duty as he would owe an adult.

2. Persons Privileged to Enter Irrespective of Landowner’s Consent

E. Rejection or Merging of Categories

Rowland v. Christian—Rejection of Common Law Categories
Rowland (P), a social guest in Christian’s (D’s) apt. was injured when a cracked water faucet handle in D’s bathroom broke in P’s hand, causing severe injuries. D knew the handle was cracked and had asked the landlord to repair it, but she did not warn P of the condition of the handle.

In modern times, courts have abandoned the technical and semantic distinctions between trespassers, licensees, and invitees. Courts impose a general duty to protect against unreasonable risk of harm posed by concealed dangers.
Louisiana Cases

Cates v. Beauregard Electric Cooperative
Cates & friends rode horses on land w/ an abandoned house. Electric wires servicing house were 28’4’’ from ground. Noticing wire, Cates climbed up pole & was electrocuted; he believed it was safe b/c he had done the same before & wasn’t electrocuted.

LA R.S 9:2791 Liability of Owner or Occupant of Property not used Primarily for
Commercial Recreational Purposes

A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating to give warning of any hazardous conditions, use of, structures or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.

B. This section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this section shall not apply when the premises are used principally for a commercial, recreations enterprise for profit; existing law governing such use is not changed by this section.

C. The word “premises” as used in this section includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.

D. The limitation of liability extended by this section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of use, or right of occupancy for any recreational purpose which may limit the use of the premises to the persons other than the entire public or by the posting of the premises so as to limit the use of the premises to other persons other than the entire public.

LA R.S. 9:2795: Limitation of Liability of Landowner of Property Used for Recreational Purposes

A. As used in this section:

1) “Land” means land, roads, water, water courses, private ways and buildings, structures, and machinery or equipment when attached to the realty.

2) “Owner” means the possessor of a fee interest, a tenant, a lessee, occupant or person in control of the premises.

3) “Recreational purposes” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.

4) “Charge” means the admission or price or fee asked in return for permission to use lands.

5) “Person” means individual regardless of age.

B. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure or activity, an owner of land, except an owner of commercial recreational developments or facilities who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:

(A) Extend any assurance that the premises are safe for any purposes.

(B) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owned.

(C) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.

(2) The provision of this subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.

C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.

D. Nothing in this section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this section to exercise care in his use of such land and his activities thereon, or from the legal consequences of failure to employ such care.

E. (1) The limitation of liability provided in this section shall apply to any lands or water bottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or water bottoms are used, and whether they are used for recreational or nonrecreational purposes.

(2)(A) The limitation of liability provided in this section shall apply to any lands owned, leased, or managed as a public park by the state or any of its political subdivisions and which is used for recreational purposes.

(B) For purposes of the limitation of liability afforded to parks pursuant hereto, “land” does not include buildings, structures, machinery, or equipment regardless of whether attached to realty.

(C) For purposes of the limitation as extended to parks in this section shall not apply to intentional or grossly negligent acts by an employee of the public entity.

F. The limitation of liability extended by this section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of use, or right of occupancy for any recreational purpose which may limit the use of the premises to persons other than the entire public or by the posting of the premises so as to limit the use of the premises to persons other than the entire public.

Keelen v. LA Dept. of Culture, Recreation & Tourism
Keelen’s 8 yr. old son drowned in a swimming pool in Fountainbleu State Park & she filed a wrongful death suit.

Naquin v. Louisiana Power & Light Co.

Johnson v. Lloyd’s of London
Johnson fell from his own deer stand on the premises of Bluff Hunting Club; he remained on the ground about 24 hrs. before found by other members of club. Check in board was @ hunting camp to help members acknowledge that a particular person was still in the woods.

Louisiana Slip & Fall Cases

LA R.S. 9:2800.6 Burden of Proof in Claims Against Merchants

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damages.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition
which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

C. DEFINITIONS
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice. Unless it is shown that the employee, knew, or in the exercise of reasonable care should have known, of the condition…

Welch v. Winn Dixie Louisiana, Inc.
Welch was shopping when she slipped and fell on a liquid on the floor. Ross, asst. manager, helped Welch into chair, saying @ the time h could not see anything on the floor. He then wiped up the floor w/ a paper towel & told Welch that it was cooking oil.

White v. Wal-Mart Stores, Inc.
White was shopping @ Wal-Mart. P walked down the aisle, then turned to shop the aisle again; after a few steps, P slipped in a clear liquid & fell.

Holmes v. Great Atlantic & Pacific Tea Co.

Simoneaux v. Humedicenters, Inc.

Smith v. Toys “R” Us

Badie v. Columbia Brewing Co.
P, lessee’s guest, fell from a balcony. Owner had warned lessee not to use it while he made arrangements to repair it.

Hero v. Hankins
Leaning against a railing of her apartment, P falls after it breaks, sustaining serious injury.
III. Lessor and Lesee

• Under common law, the tenant, and not the landlord, was responsible for protecting those entering the property from unreasonable risk of harm; now tenants & landlords owe same duty to entrants.

Borders v. Roseberry
As a result of a condition known to Roseberry (D), the landlord, water dripped from the roof of a house leased from D, and froze on the steps below, causing Borders (P), a social guest of the tenant, to slip and fall.
A landlord owed no duty to a social guest of the tenant to remedy known dangerous conditions.

• In modern times, a landlord may be liable under certain conditions.

Pagelsdorf v. Safeco Ins. Co. of America
Pagelsdorf (P) was helping an apartment dweller move her furniture. P leaned against a railing on a second story balcony and fell when the railing collapsed. The railing was rotted.

A landlord must exercise reasonable care in maintaining the premises in a safe condition.

Kline v. 1500 Massachusetts Ave. Apt. Corp.
Kline (P), a lessee of the Apartment Corp. (D), sustained serious injuries when she was criminally assaulted and robbed while in the common hallway of a large, unguarded office-apartment owned by D.

A landlord has the duty to take reasonable precautions to protect tenants from foreseeable criminal acts of 3rd parties.

• A landlord is also liable for negligently repairing property, or for failing to repair property that is under his control.

Exceptions to Landlord’s No Duty to Tenants:

1) Latent hazards: concealed, known dangerous conditions existing when tenancy begins &
lessor knows or has reason to know of danger; lessee is unaware.

2) Voluntary repairs: landlord liable for repairs voluntarily undertaken & negligently
performed.
(usually no duty in absence of agreement to repair).

3) Public admission: public is to be admitted (e.g., nightclub) & landlord knows it; he must
inspect & repair, not just warn.

4) Common areas: landlord liable for unsafe conditions in common areas (e.g., walkways,
hallways, recreational facilities) and areas under his control structurally
(e.g., heat, A/C, electrical things and other structural components).
Louisiana Cases

Rodriguez v. NOPSI
Rodriguez, while riding a streetcar, was harassed by 2 females. As the females exited, one attacked P w/ a seam ripper. He sued NOPSI, owner of streetcar, for damages & failure to do anything about the attack.

Banks v. Hyatt Corp.
An armed robber shot & killed Banks w/in 4 ft. of his hotel. His survivors charged Ds (Hyatt & Refco) w/ negligently failing to provide adequate security to protect from criminal acts of 3rd parties.

Harris v. Pizza Hut of Louisiana
Walker, a security guard for Pizza Hut, came on duty & immediately served himself a salad, conversed & read a book. An arm robber entered the restaurant & told Walker “don’t move pig.” Walker moved, shotgun fired, patron was killed & daughter of patron wounded.

Willie v. American Casualty Co.
P was abducted from a shopping center & sued the owner and operator.

Mundy v. Dept. of Health & Human Resources
P arrived at her place of employment (Charity) and proceeded to east elevators where guard usually was, but not always. After she entered the elevators & doors were about to close, a man jumped in & attacked her w/ a knife. She pressed the alarm button, but nothing happened.

Hardin v. Munchies Food Store
Tabor & Hardin were driving home when they stopped @ Munchies for cigarettes. While Hardin went in, Tabor waited in car; she was approached by King, who made crude sexual remarks to her. Hardin returned to the car & told him to leave her alone. King pulled out a pie & hit him in the head, they had an altercation. King had a butcher knife & Tabor couldn’t help.

Dye v. Schwegmann Brothers Giant Supermarkets, Inc.
Dye was murdered in Schwegmann’s parking lot during an armed robbery.

Frick v. Ensor
Frick attended a wrestling match. Landell, a wrestler, began to wrestle w/ another outside the ring & was taunted by a fan standing near Frick. Landell threw a punch, missed the heckler, and struck Frick.

Haskins v. State Farm
P’s son was shot & killed by person who had informed 2 friends that he could not pay a small debt and therefore planned to shoot him. These friends made no effort to inform intended victim or anyone else; they said he was frequently drugged & couldn’t be believed.

Posecai v. Wal-Mart Stores, Inc.
P was robbed @ gunpoint in Sam’s parking lot; Sam’s didn’t have security guards patrolling.