Term
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Definition
| An actor intends the consequence of her action if desires the consequences or is substantially certain that the consequences will result |
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Term
| When is intent satisfied? |
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Definition
| Intent element is satisfied when the offender either desires the consequence of his act or when he knew the consequences were reasonably certain to result from his act. |
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Term
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Definition
Yes, under certain circumstances?
A intends to shoot B but misses and hits C. The intent will transfer from B to C. |
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Term
For which torts can intent transfer?
Which ones cannot it not transfer? |
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Definition
Can transfer for torts, battery, assault and false inprisionment and perhaps tres
Look up the rest in outline |
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Term
| Does LA do heightened damages for intentional torts? |
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Definition
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Term
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Definition
Identify the Tort
List the Elements
Apply the facts |
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Term
| Intent can transfer between...? |
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Definition
| people and torts but not to or from IIED |
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Term
| Prima facie case for Battery |
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Definition
Intent to contact
contact
harm or offense |
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Term
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Definition
| purpose or substantial certainty of contact which is harmful or offensive. |
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Term
| What constitutes contact for battery? |
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Definition
| touching of π's person or contact with something closely connected t the person |
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Term
| What constitutes "harm or offense" for battery? |
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Definition
1. Damage is not required
2. RP - the contact must be harmful or offensive to a person of ordinary sensibilities. |
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Term
| What is the prima facie case for assault? |
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Definition
1. Intent to create
2. Reasonable apprehension of an imminent battery
3. Apparent means |
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Term
| What constitutes intent for assault? |
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Definition
| Purpose or substantial certainty of causing the reasonable apprehension of an imminent battery. |
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Term
| What constitutes reasonable apprehension for assault? |
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Definition
Not the same thing as fear.
Need imminence, not just a threat. |
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Term
| What is the prima facie case for false inprisonment? |
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Definition
1. Intent to confine
2. Actual Confinement |
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Term
| What constitutes intent for false imprisonment? |
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Definition
Purpose or substantial certainty of confinement
Indirect confirment can be actual confinement. |
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Term
| What constitutes confinement for false imprisonment? |
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Definition
Actual, complete confinement is necessary
1. Reas means of escape will eliminate liability
2. Indirect confinement may be actual confinement. |
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Term
| Prima facie case of intentional Infliction of Emotional Distress |
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Definition
1. Specific Intent - purpose or substantial certainty of emotional distress.
2. Extreme or outragous
3. Causation to severe distress
4. Severe emotional distress |
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Term
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Definition
6 months from the "last act."
Prescription does not start until the conduct end |
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Term
| Prima facie case for Intentional Trespass to Land |
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Definition
1. Intent to Enter
2. Physical entrance on the land of another |
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Term
| What constitutes an act of physical invasion for trespass to land? |
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Definition
1. Knowledge
- knowing you entered the land of another is irrelavant
2. Entrance by objects
-Car, water, bullet etc... |
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Term
| Prima facie case for trepass t chattel and conversion |
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Definition
1. Intent to interfere with dominion or use and enjoyment
2. Substantial interference. |
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Term
| What is the difference between trespass to chattel and conversion? |
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Definition
The remedies.
Conversion - pay full price of the chattel
Trepass - damages will compensate or use |
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Term
| prima facie case for intentional interference with Contractual relationship |
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Definition
1. Contract with π and Third Party
2. ∆'s knowledge
3. ∆'s intentional interference
- ∆'s intetional inducement or causation of the TP to breach the K or intentional redition of its performance impossible or mord budernsome
4. Causation of damages |
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Term
| Prima facie case for Defamation |
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Definition
1. False and defamatory statement
2. An unprivlege publication to a TP
3. Fault --> neg or greater
4. Injury |
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Term
| For the purposes of defamation what is the difference between statement and opinions? |
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Definition
Defamation attaches to statements, not opinion.
Needs to be a statement, capable of being disproven. |
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Term
| Truth is an ____________ _______________ to defamation. |
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Definition
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Term
| What constitutes publication for the purposes of defamation? |
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Definition
| Statement communicated to a third party/conveyed to someone not a party to the lawsuit. |
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Term
| When is actual malice required for defamation? Who has the BOP? |
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Definition
When the statement relates t a public figure/official or a matter of public concern.
Te public official/figure must prove actual malice |
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Term
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Definition
| knowledge that the statement is false or reckless disregard concerning its truth or falsity. |
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Term
| What is level of proof required for defamation between private plaintiff and public matter? |
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Definition
| Injury and negligence by clear and convincing evidence. |
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Term
| Is actual malice required for a private plaintiff in a private matter? |
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Definition
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Term
| What are the types of privileges for defamation? |
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Definition
1. Absolute - Statements by judges, legislators, attorneys in legislative proceedings, but the statement needs to be germaine to the proceeding.
2. Conditional/Qualified - peer review, reporting of a crime, non-ct statements
-Can be overcome by actual malice. |
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Term
| What is the prima facie case for Invasion of privacy? |
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Definition
1. Intrusion on seclusion
2. Appropriation of name and likeness
3. Publicity Given to private life or facts
4. False light |
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Term
| What constitutes intrusion on seclusion for invasion of privacy? |
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Definition
1. intentional intrusion
2. upon seclusion
3. Highly offensive to RP |
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Term
| What constitutes publicity for invasion of privacy? |
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Definition
1. Appropriation by ∆
2. to their benefit
3. of π's name or likeness
4. without consent
5. actual damages |
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Term
| What constitutes public disclosure of private facts for invasion of privacy? |
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Definition
1. publicity to public
2. publicity about private facts
3. high offensive and not available to the public
-e.g. disease |
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Term
| What constitutes false light for invasion of privacy? |
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Definition
This occurs when the use of a person's name or picture makes it appear as though the person has consented to something without actually doing so.
defamation lite |
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Term
| Is truth a defense to invasion of privacy? |
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Definition
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Term
| Prima facie case fo malicious prosecution |
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Definition
1. an original criminal or civil proceeding
2. with plaintiff in the malicious prosecution action as defendant in the original proceeding.
3. Termination of the orig proceeding in favor of the malious prosecution π
4. Absence of probable cause for the original proceeding
5. Damages |
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Term
| Prima facie case for abuse of process? |
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Definition
Ulterior purpose; and
willful act in the use of process that is improper |
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Term
| How is malice shown for abuse of process? |
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Definition
| absence of probable cause |
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Term
| Defense to Intentional Torts |
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Definition
1. Consent
2. Self-defense
3. Defense of others
4. Arrest and Detention
5. Defense of other/recapture of chattel
6. Deadly force under statute
7. Necessity |
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Term
| What are the types of Consent? |
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Definition
Validity and Capacity - consent is not valid if obtained through fraud, duress or misrepresentation. It is valid if obtained through mistake.
Implied Consent - Consent may be implied by the facts and circumstances |
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Term
| What constitutes self-defense? |
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Definition
Reasonable grounds - an actor may defend herslef when she has reas grunds to believe it is necessary
Reas Force - an actor may only use reas force t defend himself. Excessive force will exceed the privilege. |
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Term
| What constitutes defense of others? |
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Definition
One may defend others to the same extent that the third person may defend herself.
Risk of the mistake is born by the defendant
Parent can defend children. |
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Term
| What constitues arrest and detention? |
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Definition
Officer - acting in accordance with the law
Store owners - Store owners are privileged to detain a person up to 60 mins where they have reas belief a theft has occurred.
**make sure thief takes it with them**
-there is a duty to investigate. |
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Term
| What constitutes defense of property and recapture of chattels? |
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Definition
- only belongs to possessor
reasonable force to protect ppty
recapture, hot pursuit and reas force |
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Term
| Deadly force and Statutory immunity Defense |
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Definition
There is statutory immunity when there are certain crimes that allow for deadly force when property is invaded.
Carjacking
Home Invasion |
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Term
| Prima facie case for negligence |
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Definition
1. Cause in Fact
2. Duty/Risk
3. Breach of the duty
4. Compensable injury |
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Term
| What constitutes cause-in-fact? |
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Definition
1. "but for" test - but for the conduct would the injury have occured?
2. Substantial Factor - was the neg a substantail factor in causin π's injury? |
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Term
| Difference between But for and substantial factor |
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Definition
Use substantial factor when you have multiple cause of negligence
SF acts if there is a greater than 50% chance that the neg caused the injury. |
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Term
| What are the questions to ask for duty/risk? |
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Definition
1. Was there a traditional duty?
2. What is the scope of the duty/scope of the risk? |
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Term
| How do you establish traditional duty? |
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Definition
The Reasonable person test: Actor is expected to behave as a reasonable, ordinary, prudent, person under like circumstances.
-reasonable = better than average
2. Negligence per se
3. Custom
Res ipsa loquitor |
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Term
| What is the difference between how people with physical or mental disabilities are treated under traditional duty? |
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Definition
Phys. disabilities: treated as someone with a similar physical disability.
- we don't expect blind people to drive
Mental - not taken into account for duty unless it comes on suddenly. |
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Term
| When is negligence per se used to establish traditional duty? |
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Definition
Typically there is a non-tort statute that needs to be complied with and was not.
The statute establishes the standard of behavior
Ask if the class of person was the kind that statute was designed to protect, and whether the class of risk was the type that it was designed to prevent.
Statute serves as evidence and creates no presumptive effect. |
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Term
| When is custom se used to establish traditional duty? |
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Definition
using a custom as a sword by π is strong, using as a shield by ∆ is weak.
Sword = everybody does it
Shield = nobody does it
Safety standard and protocols
IN professional negligence: Custom is the EXCLUSIVE method of gauging conduct, don't talk about RP |
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Term
| When is res ipsa used to establish traditional duty? |
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Definition
1. The event is the kind that ordinarily does not occur in the absence of neg
2. Eliminated other responsible sources of conduct
-including conduct of π and TPs
3. Indicated neg is within scope of duty/risk |
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Term
| What does res ipsa allow for? |
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Definition
Allows for an inference of negligence but does not mandate it
- does not apply in the presence of direct evidence |
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Term
| What constitutes scope of the Risk/scope of the duty? |
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Definition
Asks the question, should ∆ be held responsible?
1. Foreseeable risk and Foreseeable π
2. Ease of association
3. Superceding and Intervening causes
4. Policy Consideration |
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Term
| When is a π or risk forseeable? |
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Definition
Must be in the class of person or risks that are reasonably forseeable.
Only the general type of risk has to be forseeable. |
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Term
| What does "ease of association" mean? |
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Definition
| LA term to imply something different then the forseeablility test. The EOA test asks how easily this injury may be associated with the neg act. |
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Term
| What are intervening and superceding causes? |
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Definition
| Is an event that occurs between the ∆'s negligence act and the π's injury. A superceding cause is an is an interveneing cause that relieve ∆ of liability. |
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Term
| When is a intevening cause superceding? |
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Definition
Look for:
1. Forseeability - the more forseeable or proable the event, the less likely it will be considered superceding
2. Culpability - the more fault the intervening act, the more likely it will be superceding. |
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Term
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Definition
Factors that explicitly recognize that policy factors play a role in determining the scope of the risk.
1. Need for compensation of losses
2. Precedent
3. Moral aspect of ∆'s conduct
4. Efficient administration of law
5. Deterrence of conduct
6. capacity to bear or distribute losses
Discuss 2 on the exam and move on. |
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Term
| What is the definition of breach of duty? |
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Definition
| Conduct that falls below the objective standard of reas conduct as defined by the duty. Mention the burden less than the loss or injury and possibility of resulting injury/loss |
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Term
| What to write for the injury part of negligence analysis. |
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Definition
The injury element is met because ________________. (typically obvious but must be discussed anyway)
Lost chance but only for Med. Mal cases
Emotional Distress and Fear of Disease. |
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Term
| When should "lost chance" be brought up? |
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Definition
| Only available in a med mal cases and when there is a death. |
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Term
| What satisfies the injury requirement? |
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Definition
Compensable injury
Emotional Distress
Fear of Disease |
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Term
| What are the special negligence categories? |
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Definition
1. Caretakers
2. Parents
3. Third Party Criminal Activity |
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Term
| When is third party criminal activity within the scope of duty and not superceding? |
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Definition
| When its reasonably forseeable |
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Term
| What to look for with criminal activity? |
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Definition
The shopkeeper or other defendant behaving reasonably
Similar crimes
prior similar incidents but do not have to be exactly the same. |
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Term
| Is fault allocated to the criminal? |
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Definition
Yes, Along with the negligent shopkeeper
Fact finder allocates |
|
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Term
| what is the prima facie case for slip and fall? |
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Definition
1. Condition presented an unreasonable risk of harm
2. Harm must have been reasonably forseeable
3. the merchant either created or had actual or constructive notice of the condition that caused the harm.
4. Failed to exercise reasonable care
*only applies to merchants in public areas |
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Term
| What to look for, for "slip and fall"? |
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Definition
obstuctions
merchants
public area/curbs/other structures
evidenced by the condition |
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Term
| Can a slip and fall action be brought against an employee? |
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Definition
| Yes, if they caused customer's injuries. The slip and fall remedy is not exclusive. |
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Term
| What is the prima facie case for NIED? |
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Definition
1. π must view the accident or comp upon shortly thereafter
2. Direct victim must suffer such harm, that π's harm is reasonable expected
3. Distress must be severe
4. π must fall in listed claimants
5. Causation |
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Term
| What to look for in NIED? |
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Definition
NO Physical Injury, if there is a phys injury, that will be compensable through pain and suffering under another tort action.
Make sure the claimant is on the list of people who can recover
Fear of disease - significant risk/exposure |
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Term
| What is the prima facie case for Medical Malpractice? |
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Definition
1. Standard of Care/custom
2. Malpractice Defined
3. Damages Cap
4. Medical Review Panel
5. Informed Consent
6. "Lost Chance" of survival allowed
7. Prescription has not run |
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Term
| What constitutes standard of care/custom for med mal? |
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Definition
-same or similar community, look for a fuly licensed professional in the QHCP
-Expert testimony REQUIRED
-Res Ipsa may apply, but limited by SCOLA |
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Term
| Coleman Factors to determine whether an act is malpractice |
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Definition
1. Was the wrong "treatment releated" or caused by a dereliction of professional skill
2. Does the wrong require expert medical evidence to determine breach
3. Did the wrong invovle an assessment of the partient's condition?
4. Was there a patient-physician relationship
5. Would the injury have occurred if the patient had not sought treatment?
AND
Is the allege tort an intentional torts.
Apply these when you are uncertain if the act is med mal. |
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Term
| What is the damages cap for med mal? |
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Definition
| Damages are capped at $500K with each individual provider responsible for the first $100K. The remainder is paid by the patient compensation fund. |
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Term
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Definition
| Each malpractice case must be process through a Medical Review Panel consisting of three medical professional and a non-voting attorney. The panel will decide whether the defendant health care provider failed to act in accordance with the standard of care. |
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Term
| What is informed consent? |
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Definition
Is a doctrine unique to med mal and is a hybrid between battery and negligence.
*Avoid discussing negligent failure to warn or batter in medical cases this is an informed consent issue. |
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Term
| What does informed consent require? |
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Definition
1. Duty to disclose material risk
2. Materiality
3. Uniform Consent Law - Panels decided in conformity with uniform consent rule creates a rebuttable presumption |
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Term
| What is the prescription for Med Mal? |
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Definition
1 yr from discovery of injury
3 yr period which caps discovery |
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Term
| Attorney malpractice standard of care |
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Definition
An atty is under a duty to exercise the level of care exercised by an atty in the same/similar community
e.g. missed a date. |
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Term
| Can the burden in atty malpractice shift? |
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Definition
| Yes, once a π establishes a prima facie case that the atty's negligence caused a loss, the burden shift to the ∆ atty to prove the client would not have succeeded. |
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Term
| Time period for bringing atty malpractice/ |
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Definition
| 1 year and is prescriptive |
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Term
| What types of off-site injuries are social hosts/sellers responsible for? |
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Definition
| Ones where a minor is the drinker |
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Term
| BOLO for alcohol serving scenarios |
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Definition
Drinker of alcohol it typically the negligent actor
Always consider a punitive damages for DUI |
|
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Term
| What is strict liability in LA? |
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Definition
| Strict liability is the same as negligence, except that we assume that ∆ knew of the dangerous condition. |
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Term
| When is an owner or custodian of a THING responsible for damage from its "ruin, vice or defect" ? |
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Definition
Where he
1. had knowledge or constructive knowledge of ruin, vice or defect
2. Damage could have been prevented by reas care.
3. Failed to exercise reasonable care. |
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Term
| When is an owner or custodian of a BUILDING responsible for damage from its "ruin" ? |
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Definition
1. Actual or constructive knowledge of the ruin
2. Damage could have been prevented
3. ∆ failed to exercise reas care
*Note just ruin, not vice or defect |
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Term
| What's special about landlord/tenant when it comes to strict liability for buildings? |
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Definition
| Landlords are strictly liable for personal injury to the tenant unless express shifting of liability |
|
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Term
| When are parent responsible for the acts of children residing with them? |
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Definition
| When the act of the child would be negligent if performed by an adult. |
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Term
| What are the element for parent/child strict liability? |
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Definition
1. Parent/child relationship
2. Child fault when measured by an adult standard.
Ask: Was the conduct negligent if performed by an adult?
If the child was neg, then the parent is vicariously liable. |
|
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Term
| When are owners of animal labile for their dogs and/or animals and what type of liability applies? |
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Definition
Owners of animal are held to a neg standard, unless the animal is a dog. Owners of dogs are strictly laible for damages which:
The owner could have prevented
the injured person did nto provoke the dog |
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Term
| When does a dog NOT present an unreasonable risk? |
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Definition
| If the dog is inside the house/yard/chained then no unreas. risk. Owner has taken reas. precaution but maybe not if chain is adequate of dog is running free |
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|
Term
| What is absolute liability? |
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Definition
Imposes liability without fault
Precautions taken do NOT matter
*Is different from strict and negligence |
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Term
| When does absolute liability apply? |
|
Definition
Pile driving and blasting or a showing that:
1. There was actual or constructive knowledge of the risk
2. Damage could have been through reas. care
3. Failed to exercised reas. care |
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Term
| What governs La products liability? |
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Definition
| The Louisiana Products liability act establishes the exclusive remedies against manufacturers f products for personal injury actions |
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Term
| What is the prima facie case for products liability? |
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Definition
1. ∆ must be manufacturer
2. Damage must be proximately caused by unreas. characteristic of the product.
3. Unreasonably dangerous in 1 of the 4 following ways: construction or composition, design defect, failure to war, breach of expressed warranty
4. Has to result form reasonably anticipated use |
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|
Term
| What constitutes a manufacturer? |
|
Definition
1. Any entity that manufactures a product for placement into trade or commerce.
2. Anyone holding themselves out as manufacturer
3. Component parts manufacturer |
|
|
Term
| How do you analyze proximate cause in products liability? |
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Definition
This is not the same as scope of the risk, focus on actual cause and particular aspects of proximate cause/scope of the risk, such as superceding.
- Look for "reasonably foreseeable" |
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|
Term
| What are the factors for unreasonably dangerous in Construction or composition? |
|
Definition
1. Defect exists at the time the product leaves control of the manufacturer.
2. A material deviation from identical products
3. Strict Liability - knowledge of the defect is irrelevant |
|
|
Term
| What are the factors for unreasonably dangerous in design defect? |
|
Definition
***IMPORTANT***
Mnemonic: LABS
1. Defect must exit at the time of the product leaves the manufacturer
2. Alternative design would have prevented the injury/damage
3. Balancing Test of the lost utility against the expected gain in safety.
4. State of the art defense - If no alternative design look for additional facts |
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Term
| What are the factors for unreasonably dangerous due to inadequate warning? |
|
Definition
1. Defect must exist when the product leaves the manufacturer
2. Balancing Test of the likelihood and gravity of the danger v. the feasibility and effectiveness of a warning. |
|
|
Term
| What are the defenses to inadequate warning? |
|
Definition
- Are the dangers obvious to the ordinary uses?
- User already knew or reasonably should.
- Manufacturer did not know of could not have known.
- Warning not passed on by seller. |
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|
Term
| What are the factors for unreasonably dangerous Due to breach of express warranty? |
|
Definition
1. The warranty was expressed (specific)
2. Claimant induced to use the product by the warranty
3. Expressed warranty was untrue
4. Damages |
|
|
Term
| What constitutes reasonably anticipated use under products liability? |
|
Definition
damage must arise from reasonably anticipated use of the product by π or another person.
e.g. The anticipated use of an exploding car could impact passenger and bystander. |
|
|
Term
| Can non-manufacturers by held liable under products liability? |
|
Definition
| Yes, outside of the LPLA. Usually their conduct will be evaluated under a theory of negligence. |
|
|
Term
| What is the definition of vicarious liability per LACC 2320? |
|
Definition
| Masters are answerable for the damage occasioned by servants in their exercise of the function in which they are employed. |
|
|
Term
| What are the elements of vicarious liability? |
|
Definition
1. Employment Relationship
2. Employee acting in the "Course and Scope" of the employment relationship
3. Underlying fault of the employee.
***Always discuss employee fault first, then employer fault*** |
|
|
Term
| What is the control test and how is it used? |
|
Definition
The control test is used in vicarious liability to determine if the worker is an employee or an independent contractor.
The Control test asks: Could the employer exercise control over how the work was done?
If the answer is yes --> evidence of employee
If no --> evidence of independent contractor |
|
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Term
| How do you determine if a borrowed employee is an employee of the borrowing company or an independent contractor? |
|
Definition
1. Right of Control
2. Actual control by borrowing employer
3. Relinquishment of control by the general employer
4. Whether borrowed employee is doing the work for the borrowing employer. |
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Term
| What do you look at for a "course and scope" of the employment analysis? |
|
Definition
- Was the employee acting within the employment relationship (doing their job)?
- Look for frolic and detour, where the employee deviates from course and scope, thus no VL.
- Is the risk fairly attributable to the business
- Did the employer receive benefit from the employee's action? |
|
|
Term
| Is an employer responsible for the intentional torts of an employee? |
|
Definition
Yes, when the conduct is so closely connected in time, place and causation that it constitutes a risk of harm attributable to the employer's business.
**Look at the facts**
e.g. bouncer can be liable for the injuries caused, if he acts excessively |
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Term
| In vicarious liability scenarios always look for... |
|
Definition
Negligent hiring, training, supervision
Was there a background check? |
|
|
Term
| Prescription generally begins at the time of the... |
|
Definition
|
|
Term
| The prescription period for most torts is... |
|
Definition
|
|
Term
| When does contra non valentum apply? |
|
Definition
1. Legal causes prevented the filing of the lawsuit.
2. Where ∆ conceals facts that prevent π from discovery of the claim
3. Where ∆ has done something to prevent you form filing.
4. Where the COA is not know or reasonably knowable.
-> this is known as the discovery doctrine, this is capped at 3 yrs. |
|
|
Term
| Who determines fault (in comparative fault) and what factors do they use? |
|
Definition
The fact finder allocates fault using the Watson factors.
1. Whether the conduct resulted from inadvertance or awareness of conduct.
2. How great a risk created by the conduct.
3. The significance of what was sought by the conduct.
4. Capacities of the actors.
5. Extenuating circumstances which might require haste, without proper thought
6. The relationship between the fault/negligent conduct and the harm to the π. |
|
|
Term
| What is the phrase to use when mentioning fault allocation? |
|
Definition
Bill should bear a greater amount of fault because of the Watson factors, but it is up to the fact finder to allocate fault.
Remember to assign fault to non-present parties too. |
|
|
Term
| What do you write when you see an employee trying to recover against an employer? |
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Definition
| The Workers Compenstation Act provides an exclusive remedy for the employee against his/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 the co-employee will be immune from civil tort lawsuits, except for intentional acts. |
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Term
| What are the three requirements of workman's comp? |
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Definition
1. Employment relationship -paypall/borrow/statutory
2. Nature of the injury- arise in the course of employment
3. Compensable injury or occupational disease |
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Term
| What are the major exceptions to WC? |
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Definition
1. Horseplay exception
2. Personal dispute unrelated to employment
3. Intentional Act |
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Term
| What constitutes a statutory employment relationship for WC? |
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Definition
2 Contracts
Trade, business or occupation
Writing requirement: You have to say you're the statutory employer in the K. |
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Term
| What is the difference between "arising out" of and "in the course of employment" |
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Definition
Arising = the character or origin of the risk
In the course of= time and location |
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Term
| When do you mention sovereign immunity? |
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Definition
| when there is a governmental entity |
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Term
| What are the primary features of sovereign immunity? |
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Definition
1. General immunity
2. La. has waived tort liability in La. Const
3. Jury trials are prohibited unless govt waives prohibition
4. General damages are capped at $500K
5. Discretionary act or policies are immune |
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Term
| What are the main point of the public duty doctrine? |
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Definition
1. Custody or ownership of a defective thing
2. Defect created an unreas. risk of harm
3. The public entity had actual or constitutional notice of defect
4. The public entity failed to take corrective action within reasonable time.
5. Causation of damages |
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Term
| What are the four types of damages? |
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Definition
1. Nominal
2. Compensatory Damages ->general and special
3. Hedonic Damages
4. Puntative |
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Term
| When are punitive damages available? |
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Definition
1. Driving while intoxicated
2. Sexual Abuse of a minor
3. Child Porn |
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Term
| What is the property damage election? |
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Definition
A π who has suffered compensable ppty damage may elect to recover either decrease in value or cost of repair, unless the repair cost is out of the proportion is an exception to the exception
A π may recover a higher value when there is a personal reason or a likelihood π will conduct the repairs. |
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Term
| Will damages be reduced if funds are received from some TP source? |
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Definition
| No. If insurance pays it will not affect the π's damage recovery. |
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Term
| Who can recover loss of consortium? |
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Definition
| damage available to family members for missing companionship or sex |
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Term
| What is the difference between wrongful death and survival actions? |
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Definition
WD is an action brought by beneficiares for their own damage
Survival is an action brought by beneficiaries for the decedent's injuries suffered |
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Term
| What are the categories of beneficiares? |
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Definition
1. Surviving spouse and kids (inc separated but not divorced)
2. Surviving parents
3. Surviving Brothers and Sisters
4. Surviving grand parents
5. Succession representative for survival action only |
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Term
| What is the prescriptive period for WD and survival action? |
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Definition
| 1 year from DATE of DEATH |
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