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SULC Torts II SPR2006

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Terms

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Roberts v. Benoit Case
“The government has a duty to minimize the risk of injury to members of the public requiring deputies to carry service revolvers off duty.

In determining the exact risks anticipated by the imposition of the duty to use care in employing others, it has been suggested that this duty should be confined to cases in which three factors are present:
1) The employer and the plaintiff have been in places where each had a right to be when the wrongful act occurred.
2) The plaintiff met the employee as a direct result of the employment; and
3) The employer would receive some benefit from the meeting had the wrongful act not occurred.
Vicarious Liability
(ART. 2320) provides that an employer is liable for the tortuous acts of its employees in the exercise of the function in which they are employed
LeBrane test
The determinative question is whether the employee’s tortious conduct was so closely connected in time, place, and causation to his employment duties as to attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest.
Ermert Test
Explained that vicarious liability is imposed based upon the attribution of business-related risks to the enterprise, specific conduct may be considered within the scope of employment even though it is done in part to serve the purpose of the servant.
Art. 2315
the standard negligence analysis is the duty-risk analysis, which consists of the following four-prong inquiry, to recover on a negligence theory all four inquires must be affirmatively answered.
1. Was the conduct in question a substantial factor in bring about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred?
2. Did the defendant owe a duty to the plaintiff?
3. Was the duty breached?
4. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?
Cause-in-fact
In reviewing the factual finding the fact finder must determine whether the plaintiff has met his burden of establishing a factual, casual relationship between the defendant’s action and his injuries, i.e. the cause-in-fact.

Cause in fact is generally the a “but for” inquiry, if the plaintiff probably would have not sustained the injuries but for the defendant’s substantial conduct, such conduct is a cause in fact.

Cause-in-fact is found to exist when the defendant’s conduct was a “substantial factor” in bring about plaintiff’s harm.
Duty
A defendant cannot be expected to be liable to virtually everyone who may suffer in any manner from his negligent conduct. The law must place some reasonable limit by ascertaining or defining the scope of the duty owed by the defendant Estate of Rayo Lejeune
Duty - Sheriff Foti
Although an employer [sheriff Foti] would owe a duty to protect certain persons under certain circumstances from this risk, he is not an insurer against every risk of harm which is encountered in connection with his employee [a negligently hired deputy].Roberts v Benoit.
I would find that the defendant’s duty to exercise reasonable care in hiring, commissioning and training armed employees extends to all persons who might foreseeably be injured by that employee, whether the employee is on or off duty. Roberts v Benoit.
employer facilitates the arming of an employee while negligently failing to screen and train that employee
When an employer facilitates the arming of an employee while negligently failing to screen and train that employee, and then encourages the employee to carry his gun when off duty, it is foreseeable that he may injure someone, whether or not the injured party has some connection with the employee’s employment. Roberts v. Benoit
There are at least three possible theories of liability in an action against an employer resulting from the negligent conduct of his employee
Vicarious liability, negligent entrustment (the negligence of the employer in entrusting a dangerous instrumentality to an incompetent person) and negligent Hiring (the negligence of the employer in hiring; training or retaining an incompetent employee)
In order to recover on the theory of negligent hiring, a plaintiff is required to prove that
1. employment relationship existed
2. employee was incompetent
3. That the employer knew or should have know of the employee’s incompetence
4. that the employee was negligent on the occasion giving rise to the plaintiff’s injuries
5. and that the employer’s negligence was a cause in fact and a legal cause of the harm to plaintiff. Roberts v. Benoit
In order to prevail on a negligence claim under articles 2315 and 2316 a plaintiff must prove five separate elements;
1. the defendant had a duty to conform to a conduct to a specific standard(the duty element)
2. the defendant failed to conform his conduct to a appropriate standard (the breach of duty element)
3. the defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries(the cause in fact element)
4. the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element)
5. actual damage (the damage element)
To meet a cause in fact element, a plaintiff must prove
only that the conduct was a necessary antecedent of the accident, that is, but for the defendant’s conduct, the incident probably would not have occurred. Once it is determined that conduct is a cause in fact of the injury all causation inquires are complete. Roberts v Benoit.
Ease of association asks
how easily the risk of harm can be associated with the rule which was breached.
Negligent Infliction of emotion distress
The compensable elements of damage in a loss of consortium claim are loss of society, sex, and service and support. Vidrine v. Government employee Ins.

Society’s is broader than loss of sexual relationships. It includes general love, companionship. And affection that the spouse loses as a result of the injury. ‘Support is the lost of family income that would go to support the uninjured spouse. ‘Service’ is the uncompensated work around the house or educational help with the children which presumably will, as a result of the injury, have to be obtained from another source and at a place. Vidrine v. Government employee Ins.
Estate of Rayo Lejeune 1
REASONING: Early jurisprudence in this country allowed claims for mental anguish only if accompanied by physical injury (the “impact rule”) bioth where the plaintiff’s claim arose from fear of injury to himself as well as where it arose from witnessing some peril or harm to another person. Recovery was denied absent “impact” because of several perceived fears. It agrued that emotional damages could not alone serve ad the basis of recovery; that it would open a floodgate of litigation; and that it was too remote from the negligent act, thus was not “proximate caused” by the defendant’s act. Estate of Rayo Lejeune.

INVALIDATING REASONING: The fear that the courts may be flooded with litigation is not sufficient justification to disallow those claims that are legitimate. It is the duty of the courts to discern valid claims from fraudulent ones. Estate of Rayo Lejeune
Estate of Rayo Lejeune 2
In the case a mother had actually witness an automobile strike and throw her child into the air. The mother’s own safety was not threaten by the offending automobile. Yet, she “sustained great emotional disturbance and shock and injury to her nerves system” that resulted in “great physical and mental pain and suffering” and was awarded damages. While finding that recovery for damage for these types of injures must be determined on a case-by-case, the court focused on the foreseeability of the mental distress injury to the plaintiff, from the defendant’s perspective, in determining whether a duty on the part of the defendant existed. Estate of Rayo Lejeune
Estate of Rayo Lejeune 3
The courts limited its ruling to particular facts before it, but formulated Estate of Rayo Lejeune

OLD: Guidelines to access to foreseeability
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related as contrasted with an absence, of any relationship or the presence of only a distant relationship. Estate of Rayo Lejeune
NEW: Guidelines to access to foreseeability
(1) is closely related to the imjury victim
(2) is present at the scene of the injury producing event at the time it occurs and is aware that it is causing injury to the victim; and
(3) as a result suffers serious emotional distress – a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. Estate of Rayo Lejeune
Estate of Rayo Lejeune 4
Various cases since Dillion have tended to broaden Dillion’s holding and have not actually witnessed the injury but have come upon the accident scene soon thereafter, and also to plaintiffs who had not experienced any physical consequences of their emotional anguish. Estate of Rayo Lejeune
Restatement 2nd of torts requires that the plaintiff
suffer a physical impact from the defendant’s negligent conduct, but it provides an exception to that requirement for those who are family members of the direct victim was injured.
The pertinent duty-risk question are:
(1) was the affirmative conduct a cause-in –fact of the resulting harm?
(2) Was there a duty to protect this plaintiff from this type of harm arising in this matter?
(3) Was the duty breached?
Innumerable acts which constitute faults under whatever form they appeared
. The framers conceived of fault as a breach of a preexisting obligation, for which the law orders reparation when it causes damage to another, and they left it to the court to determine in each case the existence of an anterior obligation which would make an act constitute fault. Estate of Rayo Lejeune
Ease of association
between the duty owed and the risk encountered is a proper focus of inquiry in finding the existence of a duty.
Foreseeability
Foreseeability alone cannot be the sole inquiry because all risks are not foreseeable and some risks that are foreseeable may not be included because not within the scope of the duty. Hill v. Lundin
Mental pain and anguish claims arising out of injury to third person are allowed with the following restrictions:
(1) A claimant need not be physically injured not suffer physical impact in the same accident in order to be awarded mental pain and anguish damages arising out of injury to another. Nor need he be in the zone of danger to which the directly injured party is exposed. He must, however, 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 is reasonable expected that one in the plaintiff’s position would suffer mental anguish from the experience.
(3) The emotional distress sustained must be both serious and reasonably foreseeable to allow recovery. Serious emotional distress, of course, goes well beyond simple mental pain and anguish. Compensation for mental pain and anguish over imjury to a third person should only be allowed where the emotional injury is both severe and debilitating.
(4) A forth restriction concerns the relationship of the claimant and the direct victim. Considering the significant delimiting effect of the first three
Pain and anguish
Pain and anguish sustained by a non-traumatically injured person because of injury to a third person is compensable in circumstances that fit the four guidelines recited hereinabove. Estate of Rayo Lejeune
Serious mental distress
May be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case. Estate of Rayo Lejeune
Learned Hand Test
Probability of harm from Plaintiff conduct.
P+G vs. B+U
Probability + Gravity of Harm verse the burden of prevention + social utility of the conduct
P+G>B+U = BREACH
P+G<B+U =NO BREACH
Res ipsa loquitor
the thing speaks for itself

It is a rule of evidence that permits but does not compel an inference of negligence under certain circumstances

applies only in rare cases
Res ipsa loquitor – 3 prong test (must prove)
1. there was an accident
2. that the instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant
3. that the accident was such that in the ordinary course of events the defendant using ordinary care, that the accident would not have happen
Res ipsa loquitor Doctrine
is merely a rule of evidence under it an inference may arise in aid of the proof; *****It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting provided certain elements consistent with negligent behavior are present.
procedural effects of res ipsa loquitur
1. It warrants an inference of negligence which the jury may draw or not, as their judgment dictates.
2. It raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption.
3. It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to prove by a preponderance of all of the evidence that the injury was not caused by his negligence. RIL in the ordinary case, merely permits the jury to choose the inference of negligence. Sullivan v. Crabtree
McDougall v. Perry
When the facts of an accident in and of themselves establish that but for the failure of reasonable care by the person or entity in control of the injury producing object or instrumentality the accident would not have occurred
Exclusive control
is not limited to the actual physical control but applies to the right of control of the instrumentality which causes the injury
Larson v. St Francis Hotel
The doctrine of res ipsa loquitor applies only where the cause of the injury is shown to be under the exclusive control and management of the defendant and can have no application
To a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes for some of which the defendant is not responsible, and when it appears that the injury was caused by one of two causes for one of which defendant is responsible but not for the other plaintiff must fail, if the evidence does not show that the injury was the result of the former cause, or leave it as probable that it was caused by one or the other
§282 Negligence
Negligence is conduct which falls below the standard establish by law for the protection of others against unreasonable risk harm
§283 Conduct of a Reasonable man: The standard
Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances
§284 Negligent Conduct; Act or Failure to act
Negligent conduct may be either:
(a) an act which the actor as a reasonable man Should recognized as involving an unreasonable risk of causing an invasion of an interest of another, or
(b) a failure to do an act which is necessary for the protection or assistant of another and which the actor is under a duty to do.
§289 Recognizing Existence of Risk
The actor is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising
§291 Unreasonableness; How Determined; magnitude of Risk and Utility of conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm to another the risk is unreasonable and the act is negligent if the risk is of such magnitude as to out weight what the law regards as the utility of the act or of the particular manner in which it is done
§ 292 factors Considered in Determining Utility of actor‘s conduct
In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:
(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct
(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct
Negligence Per se-violation of a statute
The essence of the present inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the statute.
The concept of Legal cause
Proximate cause / legal cause / scope of the risk / scope of duty (all the same)
Should this defendant be responsible in this case?
Dixie Drive it yourself New Orleans Co. v. American Beverage Co.
In 38 Am.Jur., Negligence, section 167, p.841, the rule is succinctly stated as follows: "*** The general principle is that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the occurence of the accident, in the manner in which it happened, was the very thing which the statute or ordinance was intended to prevent."
Watson v. State Farm Ins
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned including:
1) Whether the conduct resulted from inadvertence or involved an awareness of the danger
2) How great the risk was created by the conduct
3) The significance of what was sought by the conduct
4) The capacities of the actor, whether superior or inferior
5) Any extenuating circumstances which might require the act to proceed in haste
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