Duty Risk Analysis

Under La. C.C. art. 2315, “Every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.” Negligence is conduct
that falls below the standard of care establish by law for the protection of others against
an unreasonable risk of harm. In order to establish a prima facie case for traditional
negligence, the following elements must be established by a preponderance of
the evidence: (1) Duty, (2) Breach of Duty, (3) Causation, and (4) Damages.

Louisiana’s duty risk analysis consists of: (1) Cause-in-fact, (2) Duty-(Traditional and
Scope of Duty), (3) Breach of Duty, (4) Defenses; and (5)
Damages.

Cause-in-fact:
Cause-in-fact is a factual analysis to determine the actual cause of the harm. Two
methods are used to analyze cause-in-fact: the But-For analysis or the Substantial
Factor test. The But-for analysis asks if it is more probable than not that but-for the
breach of duty by the defendant the harm would not have occurred. The
Substantial factor test is used to determine whether the defendant’s conduct was
substantial or significant factor in causing the plaintiff’s damages. A substantial factor is
a factor that is significant enough to have contributed to the harm.

Here, the but-for analysis is the proper test to determine cause-in-fact. Janet
orchestrated an implosion on her new property as a cheaper way to demolish the
building. Implosions are generally considered to be an ultrahazardous activity. Janet’s
negligence, performing an uncontrolled implosion, directly caused the large splinter of
wood to be projected into the air and piece the dog, which ultimately led to to it’s death.
But-for Janet failing to control the implosion, the splinter of wood would not have killed
the dog. There is a direct causal relationship between her negligence and the dog’s
death. Janet’s negligence was the proximate cause of the harm.

Duty
Duty is a question of law. Duty is comprised of two parts: traditional duty and scope
of duty. Duty requires an individual to exercise reasonable care to avoid causing harm
to others.

Traditional Duty: Traditional duty asks whether the defendant exercised reasonable
care. The sources of traditional duty are:
· Reasonable care – The degree of care that a reasonable person would
exercise given the circumstances. A reasonable person is a person of ordinary
sensibilities, care, and prudence.
· Violation of a statute: act is considered negligent because it violates a
statute or regulation without justification. (Bend on the River)
· Res Ipsa Loquitur (“the thing speaks for itself”): In the absence of direct
factual evidence, a reasonable mind could infer that circumstantial evidence
 indicates that the defendant's negligence was the most plausible cause of the
harm, and the injury would not otherwise have occurred without his negligence.
(Boudreaux v. American Insurance Company)
• Custom: is the industry or community standard or norm that one must
exercise to prevent an unreasonable risk of harm. (Lundin)
• Special duty – A special duty is present when a higher degree of care to
prevent harm is required of the defendant.

Here, Janet failed to exercise reasonable care when she ordered her employee to
implode the building. A reasonable person of ordinary sensibilities, care, and prudence
would exercise a higher degree of care when performing ultrahazardous activities like
implosions. Imploding a structure is an inherently dangerous activity that must be
performed in a controlled environment with the utmost care for the safety of the public
and the people performing it.

Moreover, res ipsa loquitur applies here. Here, the circumstantial evidence indicates
that Janet’s negligence was the most plausible cause of the harm. The large splinter of
wood piercing through Banjo in Meagan’s yard clearly indicates that the negligence of
Janet was the proximate cause by a preponderance of the evidence. Here, the
circumstantial evidence and harm speaks for itself and indicates that Janet is liable for
the harm.

Furthermore, violation of a statute could apply here if Janet does not have the proper
license to perform explosions or did not execute the implosion as per the rules and
regulations governing demolition activities like implosions. Here, the facts do not provide
enough information to prove that Janet has violated a statute.

Violation of a custom could apply if Janet failed to follow the industry standards or
norms regarding the handling and detonating of explosives. Here, there are not enough
facts to fully support the allegation that Janet failed to follow a custom, but a reasonable
assumption can be made that some aspect of the implosion was not carried out properly
because of the resulting damage. This should not have occurred and likely would not
have occurred had a professional demolition crew been hired for the task.
Scope of Duty:
Scope of duty is a policy question that determines whether this defendant should be
held legally liable to this plaintiff for this injury.

The tests used to determine the scope of duty:

• Foreseeability: Foreseeability examines whether a reasonable person
would have anticipated the result of his actions given the circumstances.
(Palsgraf)
• Intervening Causes: event that occurs after the defendant's
negligent conduct that is reasonably foreseeable and contributes to the
plaintiff's injury.
• Superseding Causes: event that occurs after the defendant's
negligent conduct that is not reasonably foreseeable and breaks the chain
 of causation relieving the defendant of liability for the harm. (Bend on the
River)
• Ease of Association: Evaluation of how easily the court can associate the
plaintiff’s damages with the defendant’s conduct.
• Pitre Policy Factors: These factors are used to determine if the defendant
acted within the scope of his duty to the plaintiff.
(M.) Moral Aspects of Defendant’s conduct
(E.) Efficient administration of law
(D.) Deterrence
(C.) Plaintiffs need for compensation
(A.) Ability to bear or distribute losses
(P.) Precedents

Here, the potential risk of harm when imploding a building is foreseeable. A reasonable
person would have anticipated the result of his actions given these circumstances. It is
foreseeable that imploding a building could cause debris to be projected into the air,
possibly causing injury. Imploding buildings is inherently hazardous.

Moreover, the large splinter being projected into the air was an intervening cause
because it was an event that occurred after the defendant’s negligence that is
reasonably foreseeable and contributed to the harm inflicted upon Banjo.

Furthermore, a court could easily associate Banjo’s injury with Janet’s negligent
conduct due to the evidence that Janet did orchestrate an implosion and a large piece
of wood came down from the sky piercing Banjo. The facts clearly indicate that Janet’s
negligence caused the harm by a preponderance of the evidence.

Breach
After establishing the duty of care owed to the plaintiff by the defendant, it must be
determined that this duty was breached. A Breach of duty is the failure of the
defendant to exercise a reasonable standard of care owed to the plaintiff to prevent an
unreasonable risk of harm. A breach can be identified by using the risk-utility
balancing and reasonable person test. This test weighs the probability and gravity of
harm against the burden of taking appropriate precautions.

Here, Janet breached her duty of care by ordering her employee to implode the
building, which led to the death of Banjo. It is evident that she failed to exercise
reasonable care when she decided to implode the building herself, rather than hiring a
professional demolition company. Although the facts state that her employee properly
secured the area, the implosion was clearly not properly controlled enough, otherwise
the wood would not have projected into the neighbor’s yard. There is no room for
mistake when conducting ultrahazardous activities, yet mistake occurred. This
establishes a breach of duty to public safety.

Defenses
Under La. C.C. art. 2323, Louisiana employs a pure comparative fault regime, where
the factfinder allocates fault percentages to each responsible party and holds them
liable for damages for their percent share of fault. To make this determination, the court
developed the Watson Factors. including: IRS CER
(1) whether the conduct resulted from (I)nadvertence or involved an awareness of
the danger,
(2) how great a (R)isk was created by the conduct,
(3) the (S)ignificance of what was sought by the conduct,
(4) the (C)apacities of the actor, whether superior or inferior,
(5) any (E)xtenuating circumstances which might require the actor to proceed in
haste, without proper thought, and
(6) the (R)elationship between the negligent conduct and the harm to the plaintiff.

Here, absolute liability would be imposed. Under Louisiana law, absolute liability holds
that the defendant is always liable for the harm caused, notwithstanding negligence or
intent. Absolute liability is imposed for activities that pose exceptionally high risks to the
public. There are no defenses in absolute liability cases.

Here, Janet’s conduct posed an exceptionally high risk of harm. Implosions are
extremely hazardous and are capable of large scale damage and injury. Janet’s
negligence is not defensible or justifiable given the circumstances.

Damages
The three types of damages are compensatory, nominal, and exemplary damages.
Compensatory damages is a monetary amount award to a plaintiff to compensate for
the harm caused. This includes general and special damages. General damages are for
non-tangible losses like pain and suffering, etc. Special damages are quantifiable
damages such as medical bills. Nominal damages are damages awarded when the
plaintiff proves a violation of a right but does not prove actual harm. Exemplary
damages are damages awarded to plaintiffs that are designed punish the defendant and
deter future, similar negligent actions.

Here, Meagan would be able to recover compensatory damages. This includes special
and general damages. The special damages would be the veterinary bills, and
funeral/burial costs. General damages could be recovered for Meagan’s emotional
distress, and the pain and suffering that the dog experienced before death.
Furthermore, underr Louisiana law, dogs are considered property. Therefore, Meagan
could also likely recover for loss of property due to the death of the dog. The amount
recoverable is typically based on the market value of the dog.