TORTS OUTLINE

I. General
A. Starting point: Art. 2315: “every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.”
B. Prescriptive Period
1. One year.
2. Exceptions
a. Abuse of a minor: 3 year PP from date minor reaches majority, 10 year PP if it’s sexual
abuse or physical abuse that results in permanent incapacity/scarring
b. Contra non valentum: prescription does not run against those who cannot act
i. Legal cause prevented filing of suit
ii. Condition concealed from pl.
iii. D did something to prevent pl. from acting
iv. Pl. does not know and reasonably could not know about the cause of action.
C. Conflict of Laws
1. Serious Impairment Test
a. Unless a specific rule applies, the action should be governed by the state whose policies
would be most seriously impaired if the law were not applied.
i. i.e. policies of deterring wrongful conduct, repairing injury, etc.
ii. Weigh the policies in light of the relationship of each state to the parties and to
the dispute
b. If only one state has an interest, apply that state’s laws.
c. Domicile and conflicts provisions are governed by LA law.
2. Specific torts rules
a. Rules regulating conduct and safety:
i. Use the law of the state in which the tortious act occurred
a. If injury occurred there
b. If injury occurred elsewhere and the other state’s laws did not provide a
higher standard of conduct
c. If the tortfeasor should have foreseen its occurrence in that state
ii. Use LA law if tort occurred here and D was a domiciliary or had significant
contacts
b. Loss distribution/financial protection
i. State of injury if
a. Both Pl. and D were domiciled there at time of injury; or
b. They were domiciled in different states w/ substantially similar laws
c. They were domiciled in different state and both injury and tortious act
occurred in same state
d. Injured party is domiciled there
c. Products liability (always use this rule in PL case even if it’s a loss distribution issue,
etc)
i. Use LA law when
a. Injury was sustained in LA by an LA domiciliary or resident
b. Product manufactured or acquired in LA and caused injury in LA or
elsewhere to an LA domiciliary
d. Punitive damages: cannot be awarded in an LA court unless authorized
i. By the law of the state where the tortious conduct occurred and by either the law
of the state where the injury occurred or the law of the tortfeasor’s domicile; or

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 i. By the law of the state where the injury occurred and by the law of the
tortfeasor’s domicile
e. Juridical person as D: treat juridical person domiciled elsewhere as LA domiciliary if
they do business here and incur tort liability as a result of activity in LA.

II. Intentional Torts

A. Important Issues
1. Worker’s Comp: an intentional tort by an employer or co-employee is an exception to worker’s
compensation immunity
2. Damages: no heightened or additional damages are available
B. Intent: all intentional torts involve intent
1. Standard: intent is determined by the subjective state of mind of the defendant/tortfeasor.
2. Elements
a. Purpose: D desires the consequences of his act; or
b. D has substantial certainty that the consequences will result.
3. Transferred intent
a. Between Ds
b. Between torts
i. Exception: Intentional Infliction of Emotional Distress
C. Intentional Torts Against the Person
1. Battery: intentional contact that is harmful or offensive
a. Elements
i. Intent: purpose or substantial certainty of contact
ii. Contact: touching of pl’s person or something closely connected to pl’s person
iii. Harm/offense:
a. Contact must be harmful or offensive to a person of ordinary sensibilities.
b. Damage is not requires
2. Assault: intentionally created reasonable apprehension of an imminent battery
a. Elements
i. Intent
ii. Reasonable apprehension of an imminent battery
a. Imminence: future threats are not enough
b. Fear does not equate to apprehension
iii. Apparent means: D must reasonably appear to have the means to complete the
battery
3. False Imprisonment
a. Elements
i. Intent: purpose or substantial certainty of confinement or transferred intent
ii. Actual, complete confinement
a. Can’t have a reasonable means of escape
b. Indirect confinement may be enough
4. Intentional Infliction of Emotional Distress
a. Elements
i. Specific Intent
a. D must desire to inflict severe emotional distress or be substantially
certain that it will occur.
ii. Extreme and outrageous behavior
a. Beyond the toleration of reasonable members of society
iii. Causation
a. D’s conduct must cause Pl’s emotional distress

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 iv. Severe emotional distress
b. Prescription: will begin to run once the conduct ENDS (important for continuous
conduct)
D. Intentional Torts Against Property
1. Trespass to Land
a. Elements
i. Intent: purpose/substantial certainty to enter another’s property
a. Lack of knowledge is not a defense
ii. Physical entrance
b. Good faith/bad faith distinction
i. Good faith: trespass w/ necessity or w/out knowledge. D responsible only for
actual damage.
ii. Bad faith: may be responsible for nominal damages even if there is no actual
damage.
2. Trespass to Chattel/Conversion
a. Elements
i. Intent to interfere w/ owner’s dominion or use and enjoyment of the land.
ii. Interference
a. Substantial dominion, or
b. Damage to the chattel of another
b. Distinction: conversion is more severe damage requiring a “forced sale”
c. Damages
i. Conversion: value of the chattel
ii. Trespass: compensate Pl. for damage or use (i.e. lost rental value)
3. Intentional Interference with a Contractual Relationship
a. Elements
i. Contract or legally protected interest between Pl. and third party
ii. Knowledge by D of that contract
iii. Intentional interference:
a. D’s intentional inducement or causation of the third party to breach the
contract; or
b. Intentional rendition of its performance impossible or more burdensome.
iv. Causation of damages to Pl because of the breach.
E. Intentional Torts Against Reputation
1. Defamation
a. Elements
i. False and defamatory statement concerning another
a. Must be a statement (capable of being proved true), not merely an
opinion, innuendo, suspicion, hyperbole, satire, etc.
b. Defamatory = tends to harm the reputation of another so as to lower the
person in the estimation of the community, deter others from associating
with him, expose him to contempt or ridicule, etc.
ii. Unprivileged publication to a third party
a. May be oral or written
b. Only need to communicate it to one person
c. Exception: communicate to fellow employee
iii. Fault (negligence or greater) on the part of the publisher
iv. Resulting injury to Pl.
b. Defamation per se: words that are by their nature defamatory without considering
extrinsic information or facts

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 i. Example: accuse D of criminal conduct.
ii. For defamation per se, falsity and malice (fault) will be presumed (D may rebut).
Injury is also presumed.
c. Standard:
Public Official Public Figure Private Figure
Public concern Actual malice Actual malice Clear & convincing evidence
Private concern Actual malice Actual malice Preponderance
i. Public official: person employed by government who is involved in the public
decision-making process
ii. Public figure: someone who is in the public eye/famous
iii. Actual malice: knowledge of the falsity or reckless disregard concerning its
validity.
d. Defenses
i. Truth: absolute defense to a claim of defamation
ii. Privilege
a. Absolute: Statements by judges, legislators, witnesses, and attorneys
during a judicial or legislative proceeding  can be defeated when the
statement is outside the scope
b. Conditional/Qualified (must be within the scope of the issue)
1. Peer review
2. Reporting a suspected crime
3. Non-court statements by lawyers concerning cases in litigation
2. Invasion of Privacy
a. Intrusion Upon Solitude/Seclusion (peeping Tom, etc).
i. Intentional intrusion (physical or otherwise)
ii. Upon seclusion, solitude, or private affairs (Pl. must have REOP)
iii. Highly offensive to a reasonable person
b. Appropriation of Name or Likeness (Vanna White robot)
i. Appropriation by D
ii. To his benefit
iii. Of the Pl’s name or likenes
iv. Without Pl’s consent
v. Causing actual damages
c. Publicity given to private life and private facts
i. Publicity to public
ii. About Pl’s private life
iii. Highly offensive and not of reasonable importance to the public
d. False light
i. Using Pl’s name or picture
ii. In a way that makes it appear as thought he has consented to endorse the
advertised product (with or without being paid)
iii. When he has not actually consented to do so
e. Defenses
i. Qualified privelege: fair reporting
ii. Consent (express or implied)
iii. Statutory immunity for merchants posting NSF checks
3. Malicious Prosecution
a. Elements
i. Original criminal or civil proceeding
ii. Where current Pl. was D.

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 iii. Bona fide termination in favor of current Pl.
iv. Absence of probable cause in that proceeding
a. Wanton/reckless disregard of the rights of the party sued
b. Knowledge that the charge is false
c. Charge brought with reckless disregard for the truth
v. Damages to Pl (often presumed if other elements met; usually nominal)
4. Abuse of Process
a. Elements
i. Ulterior purpose
ii. Willful act in the use of process that is not proper in the regular conduct of the
proceeding
b. Examples: having W arrested, etc.
F. Defenses
1. Consent
a. Consent may be an affirmative defense
b. Not a defense if obtained by fraud, duress, or misrepresentation; OK if obtained by
mistake as long as D didn’t know.
c. Voluntarily engaging in a fight is consent, unless D uses excessive force
2. Self-Defense
a. Objective standard: in light of the surrounding circumstances, the actor had reasonable
grounds to believe that the danger existed.
b. Can’t use excessive force, must be reasonable.
3. Defense of Others: same as self defense
a. Statutory privilege for parents to assault and batter in defense of their children
b. Risk of mistake borne by the party trying to defend another
4. Arrest and detention
a. Police officers acting in accordance with properly issued warrant
b. Store owners are privileged to detain a person for up to 60 minutes if they have PC and a
reasonable belief that the person has stolen something. Period can be extended if
reasonable
5. Defense of property and recapture of chattels
a. Person in possession of property is privileged to use reasonable force in the protection of
that property. Excludes deadly or excessive force. D bears risk of mistake.
b. Owner of chattel wrongfully taken and store owner in hot pursuit of thief are privileged
to recapture the property. Must use reasonable force; bear the risk of mistake.
6. Deadly force
a. Protect forcible offense against person or his property  carjackings, home invasions

III. Negligence
A. Elements
1. Cause in Fact
2. Duty/Risk
a. Traditional duty: standard of care applicable to D
b. Scope of the duty: should D be responsible to this plaintiff, for this injury, that occurred
in this manner, etc.
3. Breach of the Duty
4. Compensable Injury to Pl.

Negligence
Cause in Fact Duty/Risk Breach of Duty Harm/Injury

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 But-For Substantial Traditional Scope of the D’s conduct falls Actual Damages: personal
Factor Duty Duty, Scope below an objective injury or damage to
of the Risk standard of property
reasonable conduct
as defined by the
duty.
B. On exam
1. Identify negligent act
2. List the elements in order
3. Use the words “duty/risk”
4. Discuss and apply facts to each element
C. Causation
1. But-for: If it wasn’t for D’s negligence, Pl. would have not been injured
a. You can have more than one but/for cause
2. Substantial factor: D’s negligence was a substantial factor in the injury to pl.
D. Duty/Risk
1. Traditional Duty: standard of care applicable to D
a. D must behave as a reasonable person would behave under like circumstances
i. This is a higher standard than the average person.
ii. Takes into account physical limitations but NOT mental disabilities
iii. Children: behave as a child of like age/development
2. Other ways to determine appropriate standard of care
a. Negligence per se: non-tort statute used as a standard of care
i. Admissible if Pl. was part of the class of persons the statute was designed to
protect/the risk was within the class of risks the statute was designed to prevent.
ii. Treated as evidence of negligence.
b. Custom (strong evidence if used by pl., weak if used by D)
i. i.e. practice manuals, expert testimony about how people in the profession, etc.
behave
c. Risk/Utility balance: balance the cost of the precautionary activity against the expected
loss
i. Hand formula: B > PL
a. B = burden of precautionary activity
b. PL = expected loss (possibility of resulting injury * magnitude of injury)
d. Res ipsa loquitur: inference that because of the accident, there was negligence
i. Elements:
a. Event is the kind that ordinarily does not occur in the absence of
negligence
b. Other responsible causes (including conduct of Pl. and third parties) have
been sufficiently eliminated by the evidence
c. Indicated negligence is w/in the scope of D’s duty to pl.
ii. Does not apply if direct evidence sufficiently explains pl’s injury.
3. Scope of the Duty and Scope of the Risk
a. Foreseeable risk and/or foreseeable plaintiff
i. LA law only requires that the general type of harm be foreseeable
b. Ease of association  how easily the injury may be associated with the negligent act
*LA employs this test instead of the foreseeability test
c. Superceding and intervening causes
i. Intervening: occurs between action and injury
ii. Superceding: intervening act that will relieve D of liability

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 a. Foreseeable: the more foreseeable/probable an event is, the less likely it
will be considered superceding
b. Culpable: the more faulty the event is, the more likely it will be
superceding.
iii. Examples: suicide, act of God, criminal act
d. Policy considerations -- Pitre
i. Need for compensation of losses
ii. Precedent
iii. Moral aspects of D’s conduct
iv. Efficient administration of laws
v. Deterrence of future harmful conduct
vi. Capacity to bear or distribute losses
D. Breach
1. D’s conduct falls below the objective standard of reasonable conduct as defined by the duty.
E. Harm/Injury
1. Actual damage
a. Must be proven, by showing personal injury damages or damage to property
2. Lost Chance
a. Recoverable in medical malpractice cases

IV. Special Negligence Topics

A. Controlling Third Parties  same duty: to behave as a reasonable, ordinary, prudent person
1. Caretaker/jailer/chaperone: duty may extend to the risk that a person under their care will injure
a third party
2. Parents: duty to control their children. Art. 2318.
3. Business owner/operator: exercise reasonable care for the safety of persons frequenting the
business
a. Keep the premises safe from unreasonable risks
b. Warn of known dangers
4. Third party criminal activity
a. Criminal behavior of others is within the scope of the duty (not superceding), when it is
reasonably foreseeable. Tip: look for previous criminal activity at or near the defendant’s
location (string of armed robberies, etc).
B. Premises Liability (“Slip and Fall”)
1. Governed by statute  but you can also bring an action against the employee who caused pl’s
injury.
2. Elements:
a. Condition presented an unreasonable risk of harm
b. Harm was reasonably foreseeable
c. Merchant created or had actual/constructive knowledge of the condition
d. Merchant failed to exercise reasonable care
3. Applies to: merchants, and common areas.
a. Merchant: must sell things, not just provide services.
C. Negligent Infliction of Emotional Distress
1. Only applicable if emotional distress is the ONLY injury.
2. Bystander case: witness an event that causes injury to another and causes you distress
a. View accident or come upon the scene soon thereafter
b. Direct V must suffer such harm that pl’s distress can be reasonably expected
i. Injury serious enough to cause serious mental anguish to a bystander
c. Distress must be severe

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 d. Pl. must fall within the list of permissible claimants
i. Spouses/children
ii. Grandchildren/grandparents
iii. Parents (not in-laws)
iv. Siblings
e. Causation of the emotional distress by D’s negligent conduct
3. Fear of contracting disease after exposure: rare in LA, but recovery is permitted.
D. Medical Malpractice
1. Standard of care: care ordinarily possessed and exercised by members of the profession (or
specialty) in good standing in the community  judged exclusively by custom.
2. Malpractice
a. Definition: any unintentional tort or breach of contract based on health care or
professional services rendered or which should have been rendered by a health care
provider to a patient. Also includes all legal responsibility arising from defects in blood,
tissue, transplants, drugs, and medicines, or from defects in or failure of prosthetic devices
implanted in or used on or in the person of the patient.
b. Factors:
i. Was the wrong “treatment related” or caused by a dereliction of professional
skill?
ii. Does the wrong require expert medical evidence to determine breach?
iii. Did the wrong involve an assessment of the patient’s condition?
iv. Was there a physician-patient relationship?
v. Would the injury have occurred if the patient had not sought treatment?
vi. Is the alleged tort an intentional tort?
3. Health Care Provider: basically any person or entity licensed by the state to provide
medical/dental/psychiatric care.
a. Qualified Health Care Provider: a health care provider who has obtained a minimum of
$100,000 insurance coverage for malpractice liability.
i. Must submit the claim to a medical review panel before filing a claim. Panel =
three health care professionals with unlimited licenses to practice in LA and none
non voting attorney chair.
ii. Review panel will issue an opinion, which can then be used as evidence
iii. Prescription is suspended while the claim is under consideration.
iv. Recovery is capped at $100,000 per plaintiff and $500,000 total, other than for
future medicals.
4. Damages cap
a. Capped at $500,000. Each individual provider is responsible for the first $100,000.
Remainder will be paid out of a compensation fund.
b. Applies per event, not per defendant.
5. Informed Consent
a. Physician may not act beyond a patient’s authorization unless he is at risk of death or
serious health risks. Must obtain consent.
b. Standard: Doctor must act as a reasonably prudent person when obtaining consent
i. Duty to disclose: doctor must disclose all material risks to which a reasonable
person would attach significance in deciding whether or not to undergo surgery.
There is no duty to disclose commonly understood, obvious, or already known
risks.
ii. Causation: Would a reasonable person in pl’s position have consented to
treatment had the material risks been disclosed?

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 c. Uniform Consent Law: provides for written consent to medical procedures  rebuttable
presumption of consent
6. Prescription
a. One year prescriptive period with discovery that the injury was caused by medical
malpractice.
b. Three year preemptive period
E. Other Professional Malpractice
1. Attorneys
a. Burden shifting: client establishes that attorney accepted employment and failed to assert
a timely claim (this is prima facie case that attorney’s negligence caused him some loss) 
burden shifts to attorney to prove that the client could not have succeeded on the original
claim.
b. Prescription: one year from alleged act or from date of discovery of the act or from date
it should have been discovered. Three year preemptive period.
2. Other professions: judged by customary standard.
F. Providers of Alcohol
1. Proximate cause: consumption, not sale, is the proximate cause of injuries.
2. Nevertheless, liability for off-site injuries can still be attributed to sellers and social hosts if the
buyer/drinker was underage.
3. Can still award punitive damages to the drinker who was negligent.

V. Strict Liability
A. Things and buildings
1. Garde: we are responsible not only for the damage we cause, but also for that which is caused
by the act of persons for whom we are answerable or for the things we have in our custody.
2. Negligence standard: Owner or custodian of a thing is answerable for damage occasioned by
its ruin, vice, or defect that caused an unreasonable risk of harmonly upon a showing that
a. He knew or should have known of the ruin, vice, or defect which caused the damage;
b. That the damage could have been prevented by the exercise of reasonable care, and
c. That he failed to exercise such reasonable care.
3. Buildings:
a. Building or appurtenance
b. Ruin/vice/defect that creates an unreasonable risk of harm
i. Result of neglect in repairing it
ii. Result of vice in its original construction
c. Actual or constructive knowledge of the ruin/vice/defect
d. Ownership
e. Causation
4. Landlord/tenant: can contract away from strict liability in favor of a negligence standard by
having the lessee assume responsibility for the condition of the premises. But landlord will still be
liable for negligence.
B. Children (Art. 2318):
1. Parents responsible for the actions of children who
a. Live with them; and
b. Are not emancipated by marriage, judgment of full emancipation, or judgment of limited
emancipation that expressly relieves the parents of liability.
2. Child fault will be measured by an adult standard
3. On exam:
a. Use child standard
b. Use Art. 2318

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 c. Discuss negligent supervision
C. Animals
1. Owner of animal will be held to a negligence standard, unless that animal is a dog.
2. Dog owners will be held strictly liable for damages when
a. Owner could have prevented the injury; and
b. Injured person did not provoke the dog
3. Dogs inside, in fence, or on chain: no unreasonable risk of harm. Dogs that are loose or
inadequately chained: owner will probable be liable.

VI. Absolute Liability

A. Limited to ultra-hazardous activities:
1. Pile driving
2. Blasting w/ explosives

VII. Products Liability

A. Louisiana Products Liability Act
1. Exclusive remedy against manufacturers of products for personal injury actions
2. Elements
a. D is a manufacturer
i. Person or entity in the business of manufacturing a product for placement into
trade or commerce
ii. Person holding themselves out to be a manufacturer
iii. Seller who exercises control over design, construction, or quality
iv. Manufacturer of component part
v. Seller as importer or distributor for foreign manufacturer
b. Proximate cause: damage is proximately caused by a characteristic of the product that
made it unreasonably dangerous
i. Construction/composition
a. Defect exists at time product left control of manufacturer
b. Product contained material deviation from identical products which
caused the harm.
c. Strict liability: no knowledge of the defect required
ii. Design
a. Defect exists at time product left control of manufacturer or results from
reasonably anticipated modification
b. Alternative design existed that would have prevented pl’s injuries
c. Balancing test would favor the plaintiff (utility, new risks, extent of
reducing/preventing harm, state of the art defense)
iii. Inadequate warning
a. Defect exists at time product left control of manufacturer or results from
reasonably anticipated modification
b. Test for adequacy of warning
1. Likelihood and gravity of danger
2. Feasibility of providing warning given scientific/technical
knowledge at the time
3. Manufacturer’s ability to anticipate that a user or handler would
be aware of the danger and the nature of potential danger
c. Defense when no warning given
1. Danger was obvious to an ordinary, reasonable user,
2. User already knew or should have known of the danger

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 3. Manufacturer did not know and reasonably could not have known
of the dangerous characteristic; or
4. Warning was not passed on by seller, or warning was removed.
d. Manufacturer has a duty to warn when he later learns or reasonably
should have learned of a dangerous characteristic
iv. Breach of express warranty
a. Defect exists at time product left control of manufacturer or results from
reasonably anticipated modification
b. Manufacturer made an express warranty (can be oral) to which the
product did not conform
c. Pl. was induced to use the product by the representation made
d. The express warranty was untrue
e. The falsity of the warranty was the proximate cause of pl’s injuries
c. When damage arose from a reasonably anticipated use of the product.
i. This can include a misuse
ii. Limited to what a manufacturer could reasonably anticipate at the time of
manufacture
B. Liability for non-manufacturers
1. Negligence
2. Redhibition (contract theory)

VIII. Vicarious Liability

A. Elements
1. Employment relationship between employer and employee
a. Payroll employee
b. Borrowed employee
2. Employee engaged in activities that are within the course and scope of the employment
relationship
3. Underlying fault of the employee
B. Employment relationship
1. How to determine if an employment relationship exists: control test  could the principal have
exercised control over how the work was done?
2. Borrowed employees
a. Borrowing employer is liable for the torts of a borrowed employer, assuming he has
control over the work and the borrowed employee is doing work for him at the time of the
tort.
3. Dual employment doctrine: when the lending employee has an economic interest in lending the
employee, he will remain liable for the lent employee’s torts.
4. Independent contractors: employer will not be vicariously liable for the torts of an independent
contractor  test is the same as above, whether the principal had the right to exercise control
a. Factors to consider:
i. Was there a contract between the parties?
ii. Did the contractor choose the means for accomplishing the task?
iii. Was the object of the contract a particular piece of work for a set price?
b. When employer may still be liable?
i. Inherently or intrinsically dangerous activities
ii. Authorizing the performance of work in a manner that will make the work unsafe
iii. Injuries resulting from an ultra hazardous activity
C. Course and Scope of Employment
1. Factors

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 a. Payment of wages
b. Control over work and work method
c. Time, place, purpose of act
d. Relationship between employee’s act and employer’s business
e. Benefits received by employer
f. Employee’s duty to perform the act
g. Reasonable expectation by employer that employee would perform the act
2. Exception to liability: Frolic and detour by employee
3. High ranking employees: this may increase the scope of liability if they are given more duties,
etc.
4. Vicarious liability for intentional torts: intentional tort can be the subject of liability when it is
so closely connected in time, place, and causation to the employment duties that it constitutes a
risk of harm attributable to the employer’s business (i.e. employer fires employee and the two
begin fighting  court says this is within the course and scope).
D. Indemnity
1. Employer and employee are solidarily liable when there is vicarious liability
E. Negligent hiring
1. Employer must exercise reasonable care to hire employees who, in performance of their
duties will not subject third parties to a serious risk of harm.

IX. Defenses/Immunities
A. Comparative fault
1. LA comparative fault statute: fault of all actors is to be compared, including non-parties,
immune actors, “phantoms,” etc. Basically everyone.
2. Pl’s recovery will be reduced proportionally by the amount of his/her negligence.
3. Applicable to strict and absolute liability cases.
4. Watson factors:
a. Whether the conduct resulted from inadvertence or involved an awareness of the danger
b. How great was the risk created by the conduct
c. The significance of what was sought by the conduct (utility)
d. Capacities of the actors
e. Extenuating circumstances
f. Relationship between the fault/negligent conduct and the harm to pl.
B. Assumption of Risk:
1. Only express assumption of risk (waiver) is a complete bar to recovery. Anything else will be
seen as comparative negligence.
2. Example: Louisiana Tech sledding hill = no duty to warn, everyone knows that sledding is
dangerous
C. Sovereign immunity
1. LA law has waived it, but the Louisiana Governmental Claims Act establishes a
procedure/limitations for recovery against governmental Ds
a. Jury trials are prohibited unless waived by D
b. General damages are limited to $500,000
c. Discretionary or policy-making actions are immune.
2. Public Duty doctrine: limits the liability of a public entity for risks arising out of the faulty
provision of governmental services. Pl. must establish:
a. Custody/ownership of the thing by the public entity
b. That the defect created an unreasonable risk of harm
c. Public entity had actual/constructive knowledge of the defect
d. Public entity failed to take action within a reasonable time

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 e. Causation
D. Family immunity
1. Spouses cannot sue each other in tort, and parents cannot sue children
2. This only applies during the existence of the relationship.
E. Recreational land immunity: LA law immunizes underdeveloped property that is used for
noncommercial recreational purposes.
F. Charitable/Public Service Immunity
1. Applies to
a. Person who gratuitously renders aid at the scene of an emergency
b. Parade krewe
c. Health care providers for gratuitous services in community clinics
d. Donors of food to food banks
e. Sheriffs for prisoners working roadside or other detail
f. Providers of parking lots and spots at parking meters
g. School volunteers
h. Parish airports for damage done to aircraft
G. Worker’s Compensation
1. WHAT TO WRITE ON THE BAR EXAM: “The Worker’s Compensation Act provides an
exclusive remedy for an employee against his or her employer or co-employee where the terms of
the statute are met. The compromise allows the injured employee to recover damages pursuant to
the statute, but the employer and co-employee will be immune from civil tort lawsuits, except for
intentional acts.”
2. Elements
a. Employment (employer/employee) relationship
i. Payroll employee
ii. Borrowed employee
iii. Statutory employment: two exclusive ways to obtain it
a. 2 contracts (A contracts with B to build house, B then contracts w/ C to
provide plumbing)  contract must expressly identify the statutory
employer
b. Trade, business, or occupation  “integral relationship” test
*DO NOT talk about statutory employment when discussing vicarious
liability
b. Nature of the injury
i. Arises out of; and
a. Character/origin
ii. In the course of employment
a. Time/place
c. Compensable injury or occupational disease
3. Exceptions
a. Horseplay exception
b. Personal dispute unrelated to employment
c. Intentional act

X. Solidary Liability
A. This has basically been eliminated in LA, except for someone who conspires with someone else to
commit an intentional tort.

XI. Damages
A. Kinds

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 1. Nominal: available for some intentional torts  minimal damages awarded in the absence of
actual injury
2. Compensatory: return pl. to the position he would have been in if he had not been injured
a. Special: amount can be determined with certainty  must be specifically alleged in
petition (i.e. lost wages)
b. General damages: amount is speculative (i.e. pain and suffering)
c. Hedonic damages: lost enjoyment of life
3. Punitive damages: meant to deter conduct/punish D. Available for:
a. DWI
b. Child porn
c. Sexual abuse of minor
4. Property Damage: two alternate ways to calculate
a. Recover damages including the cost of restoration that has been or may reasonably be
incurred
b. Difference between the value of the property before and after the harm, unless
i. The cost of restoring the property to its original condition is disproportionate to
the value of the property or economically wasteful, damages are measured only by
the difference between the value of the property before and after the harm, unless
a. There is a reason personal to the owner for restoring the original condition
b. There is a reason to believe that the plaintiff will actually make repairs
5. Mental anguish: usually not recoverable in property damage cases because it’s outside the scope
6. Loss of consortium:
a. The highest of these classes (in this order) may recover:
i. Spouses
ii. Children
iii. Parents/siblings
b. May be recovered for
i. Loss of society
ii. Loss of service previously provided
iii. SEX
5. Non-recoverable:
a. Economic loss caused by damage to property
B. Collateral Source Rule: Pl’s tort recovery will not be diminished because of insurance benefits received
by pl. from sources independent of tortfeasor’s procuration or contribution. Applies to:
1. Insurance maintained by pl.
2. Gratuities to pl.
3. Employment/social legislation benefits

XII. Wrongful Death & Survival

A. General
1. ONLY TALK ABOUT IF THE DIRECT VICTIM DIED
2. Need an underlying tort  still need to prove fault/negligence
3. Heritable
4. Damages will be shared equally among the survivors
5. Settlement of decedent’s personal injury claim will not bar a wrongful death action (nor will a
general personal injury release/waiver) but it will bar a survival action.
6. One year PP from date of death. For survival, failure to timely file during the decedent’s lifetime
may bar the action.
B. Wrongful Death
1. Brought by beneficiaries to recover for damages they suffered.

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 2. Amount will be fixed according to the loss/grief.
C. Survival
1. Brought by beneficiaries to recover on behalf of V if V had lived
D. Designated beneficiaries (higher class will preclude lower class from recovering)
1. Surviving spouse and children
2. Surviving parents
3. Siblings
4. Grandparents
5. Succession representative
E. Defenses
1. V fault (comparative fault)
2. Beneficiary’s fault (conviction of crime involving intentional killing or attempted killing of D)

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