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US Torts > Additional Tort Factors > Flashcards

Additional Tort Factors Flashcards

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U.S. Geography flashcards
1
Q

What is a common carrier?

A

one who undertakes to transport all people indiscriminately and is in the business of transporting people

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2
Q

For common carrier relationships, do the courts use a reasonable care standard, or a special duty rule?

A

Depends on the jurisdiction, but the majority is the reasonable care standard. The main idea is to ensure that passengers feel safe traveling. Howevver, invitees are afforded a special duty

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3
Q

For trots arising out of transportation issues, what are the three statuses a person can be in which define a carrier’s duty?

A

Trespasser (lowest duty), licence (lowest duty), invitee (highest duty)

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4
Q

What duty is inferred from the relationships of trespasser, listened, and invitee upon the carrier/property owner?

A

Invitees (those invited onto the property for the benefit of the owner) are owed a special duty, such as to ensure a reasonable level of safety. Licensees and Trespassers are only owed a duty to refrain from wanton/reckless behaviour that could endanger them

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5
Q

What status are social guests afforded?

A

Generally they are regarded as licensees because they do not provide a monetary gain for the landowner

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6
Q

What happens if an invitee declines to leave when asked by the landowner?

A

They become a tresspasser

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7
Q

Jeffry the mailman trips and falls over a metal spike in the ground, causing him injury as he his delivering the mail to Darla’s front porch on Darla’s land. The spike was visible. Is Darla liable?

A

Yes, if Darla knew about the spike, but did nothing about it under the Open and Obvious rule

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8
Q

Is a renter a property possessor, and therefore liable for hazards on their rented property?

A

Yes, unless hazard is not obvious to the renter

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9
Q

What is the firefighter rule?

A

Prevents first responders from suing due to negligence when they are on duty. First repsonders are assumed to be aware of the risks of their job.

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10
Q

What is required to win a malpractice suit?

A

An expert opinion that the decedents conduct was below the reasonable standard of care for that specific profession

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11
Q

Is a lack of informed consent part of malpractice?

A

No, it is its own suit. All medical procedures carry some inherent risk, but if this risk is not properly disclosed to a patient, then they can argue there was no true informed consent. Generally is defend by statute

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12
Q

What are the 4 types of immunities that protect parties from being sued?

A
  1. Spousal Immunity - doesn’t really exist anymore
  2. Parental Immunity - complicated issue
  3. Charitable Immunity
  4. governmental immunity
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13
Q

What is parental immunity and how strong is it today?

A

Parental immunity protects parents from liability for the acts of their children. Is somewhat reduced today depending on the jurisdiction. Either it exists with local exceptions, or it has been compelatly extinguished by statute

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14
Q

How does the Eastern District of Michigan approach parental immunity?

A

It fully protects parents, except for instances where there is negligence beyond the reasonable exercise of control over a child, or where the negligence concerns the deprivation of food or clothing from the child

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15
Q

Can parents be sued by their own children?

A

Yes, if the conduct is unrelated to parental responcibilities

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16
Q

What is governmental immunity?

A

Originally, the entire state was sovereign, meaning governments were entirely protected from being sued. However, that has evolved. if legislation allows for a type of government official to be sued, then they can be sued

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17
Q

In what situations can state officials be sued?

A

If a state official intrudes upon a person’s federal constitutional rights, and does so in a way that is enabled through their authority over state power, they are liable under Section 1983 of the civil rights act

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18
Q

Can you sue Federal officers for torts?

A

Only to the extent allowed by the Federal Tort Claims Act

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19
Q

If a Federal employee is alleged to be liable, what law provides the standard for the tort?

A

The local state law where the injury was inflicted. There is no separate federal tort definition

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20
Q

Can the US government be liable for injuries on government land?

A

Yes

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21
Q

Lucas breaks into Area 51 to see the aliens. Sargent Allen, acting on orders from his commanding officer, shoots and kills Lucas. Lucas’s family sue the government for wrongful death. Will they be successful?

A

Probably not. Area 51 is a military installation, and military property is exclusively Federal government property, so we’re dealing with the Federal Tort claims Act, so sec1983 remedies are unavailable. The Fed Tort Act, almost defiantly has provisions allowing the use of deadly force to protect state secrets, such as those possibly kept at Area 51. On top of that is the fact that Lucas’s trespassing constitutes a Federal offence, likely making any recovery unavailable because the victim was engaging in illegal activity at the moment of his injury/death

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22
Q

In the Area 51 scenario, could the plaintiff’s sue Sargent Allen directly instead of the government?

A

No. You can only sue the government itself

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23
Q

Under what conditions will the US government not be liable for the acts of its employees?

A

o US is not liable for legislative/judicial actions
o Any claim based on an act/omission of an employee for exercising or failing to exercise a regulation or duty shall not result in liability – if a government official believes they are operating under a valid law, and they’re not, they cannot be sued. However, the officer must be “exercising due care”
o If it’s a discretionary function on the part of the employee, there is no liability

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24
Q

Can non-US Citizens sue the US government for constitutional violations?

A

Yes

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25
Q

Is the US government liable for intentional torts and negligence?

A

It depends. To the extent allowed by the Federal Tort Claims Act, all government employees can give rise to actions for negligence. However, only law enforcement officers can make the US government liable for intentional torts.

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26
Q

Postman Dave gets into an argument with homeowner Samson. Dave stomps on Samson’s mail, and punches Samson in the face. What is Samson’s best bet to recover?

A

Sue Dave personally because the US government is not liable for intentional torts if the employee is not involved in law enforcement

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27
Q

Can a plaintiff be awarded punitive damages in a suit against the government?

A

No. No punitive damages allowed

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28
Q

Is there liability for negligent transmission of letters?

A

No

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29
Q

Blackhouse is a government military supply contractor. Its operators accidentally fire an RPG off of a corporate weapons testing range, and it accidentally blows up a person’s car. Who gets sued?

A

It depends. If the testing of that RPG was done on the government’s behalf and the contractor was organized under government command, then the government is liable, if not, then the company is liable.

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30
Q

What about suing the State for violations done by state officers under state tort claims?

A

Cannot sue the state itself, but can sue the local jurisdiction (ex. a city). Can only sue a state officer directly for gross negligence (In Michigan. States vary on this point)

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31
Q

Do first responders automatically have a duty to the public?

A

No. Only if there is an immediate emergency

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32
Q

What is contract malfesence?

A

The use of a contract to define a duty of care

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33
Q

What is nonfeasance?

A

if the tort duty is unsatisfied

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34
Q

Contractors dig a hole as agreed in the contract. The contract doesn’t specify if signs are needed, and someone falls in the hole. Is this malfesense or nonfeasance?

A

Malfesense. The contract was still satisfied

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35
Q

Is there a legal duty to warn of an impending attack by a 3rd party?

A

No

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36
Q

What are the 4 types of special relationships that confer a special duty?

A
  1. Carrier passenger
  2. Inkeeper guest
  3. Buissness invitor invitee
  4. Voluntary custodian protectee
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37
Q

What are the 4 tests used to determine if a landowner owes a guest a duty of care?

A
  1. Specific harm rule. A lawnoers does not owe a duty to protect unless they are aware of specific immininet harm about ot occur. This is generally considered too narrow today
  2. Prior similar intersts test. Foreseeability is established by the occurrence of previus crimes on or near the premises. Past criminal conduct will serve as putting the landowner on notice of future risk.
  3. (most common approach) Totality of the circumstance test. This takins into account addiitoanl factors such as the condition and location of land. Focuses on the level of crime in the surrounding area.
  4. Balancing test. Foreseeability of harm must be balneced against the burden imposed on the buissness to ptotect agains that harm. If there is a high foreseeability of harm and the proboable harm is great, the burden imposed upon the defendant may be substantial.
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38
Q

If someone is affected by the failed performance of a contract, do they have a claim against the failed contract performer? What if they’re not a party to the contract?

A

Yes, they have some limited form of a claim depending on the circumstances, even if they are not a party to the contract

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39
Q

What is the difference between suing in tort and contract?

A

Tort providers compensation for injuries, contract returns parties to their pre-contract positions. parties can sue for either

40
Q

What are the 4 elements of inflicting severe emotional distress?

A
  1. Extreme and outrageous conduct
  2. Intended to cause or disregarding a substantial possibility of causing severe emotional distress
  3. A causal connection between conduct and injury, and
  4. Severe emotional distress.
41
Q

Can mere words constitute extreme and outrageous conduct in the context of inflicting severe emotional distress?

A

Yes, but only if it goes far beyond mere vulgarity

42
Q

What about requests for sexual contact?

A

Generally one request isn’t considered extreme and outrageous, but multiple requests could be

43
Q

What is negligent infliction of emotional harm?

A

If a person places others unreasonably within a zone of danger that will cause them emotional harm

44
Q

What is generally needed to win on a charge of emotional distress caused by injury to another?

A
  1. They are a reasonably foreseeable bystander victim based upon an intimate family relationship with a seriously injured victim of the defendant’s negligence, or
  2. That the plaintiff was a direct victim of the defendant’s negligence because plaintiff was within the same of danger of the negligence.
45
Q

Does a pregnant mother owe a duty to her unborn child?

A

No

46
Q

What abut children who will be born but were not conceived at the time of the injury?

A

Still no duty

47
Q

Is there an action for the birth on an injured child?

A

Yes. However, remedies would be limited only to the extraordinary added cost of caring for the injured child. The child itself being born would not result in damages. And, no awards for emotional distress

48
Q

When is there an action for a wrongful death?

A

Whenever the death of a person is caused by a wrongful act, neglect or default and that party would have had a claim if the act was not fatal then there is an action.

49
Q

What are the 4 factors that limit the valuation of a life?

A
  1. The present net cash value of the life expectancy of the deceased
  2. The loss of companionship and society of the decedent
  3. The pain and suffering of the decedent between injury and death
  4. Punitive damages
50
Q

What determines if an employer is vicariously liable for the acts of their employees?

A

if the act was “within the scope of employment”

51
Q

What can employer liability extend to, if the act was found to be within the scope of employment?

A

acts of negligence, criminality, and acts that go against employer instructions

52
Q

What is the coming and going rule? What is the exception to the rule?

A

If an employee is merely “coming and going” to their place of work, then the employer has no liability for acts that occur within this period. However, the exception is when the traveling is explicitly for the benefit of the employer such as:
o When the employee is “on call” with the employer
o Where the employer requires the employee to drive their personal vehicle to work so that the vehicle can be used for worl-related tasks
o Where the employer instructs the employee to care out some job related errand during the commute
o Where the commute serves a dual purpose for both employer and employee

53
Q

Do incidental actions an employee does while they are on the job (blowing their nose, using the restroom, chewing gum) still cover vicarious liability onto the employer?

A

Yes. Anything done for the convenience or comfort of the employee so long as that employee is still attending to the job is within the scope of employment

54
Q

What is the 2 step test used to determine if an employee’s intentional tort falls within the scope of employment?

A

The conduct must have either been:

  1. Required by or is incidental to employee duties, or
  2. Is reasonably foreseeable in light of the employers business.
55
Q

In what situation would someone working for someone else committing a tort not confer liability onto the person they are working for?

A

If the worker is a contractor

56
Q

What are the 7 factors the court uses to determine if a worker is an employee or contractor?

A

. To determine if an individual is an employee or contactor:

a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business; * * *

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer; [and]

(i) whether or not the parties believe they are creating the relation of master and servant.

57
Q

What is strict liability?

A

Liability that attached to people regardless of intent or most circumstance. If it happens, the party is liable

58
Q

Joey has a dog, Bennie who has rabies and Joey knows this, but can’t bear to but Bennie down. Bennie bites Joey’s neighbour. Is Joey strictly liable?

A

Probably yes. Animal owners/possessors are strictly liable for the acts of their animals if the act is abnormal for the type of animal that it is. Having rabies would probably make a dog abnormally dangerous

59
Q

Donald is a fan of the Netflix series Tiger King, and foolishly buys a Tiger kitten. While Donald is showing off his pet, one of his guests is seriously scratched by the kitten. Is Donald strictly liable?

A

Yes. Wild animals are presumed to be dangerous by nature, and anyone in charge of the animal will be strictly liable for the acts that it does.

60
Q

What is nuisance exactly? Provide an example

A

The act of substantially interfering with someone else’s quiet enjoyment of their own property which does not rise to the level of trespass to property. Ex. blasting very loud music at your neighbours at 3am

61
Q

What must the plaintiff prove in order to win a nuisance case?

A

plaintiff must prove negligence, or an intent to interfere with the plaintiff’s interests, or the creation of a nuisance through abnormally dangerous activity

62
Q

Give an example of an abnormally dangerous activity for nuisance liability

A

ex. blasting a rock quarry that throws debris. There’s no real way to provide a reasonable measure of saty

63
Q

What is the 2 part test to determine if an activity is abnormally dangerous for nuisance?

A
  1. The activity must create a foreseeable and highly signifigent risk of physical harm even when reasonable care is exercised by all actors, and
  2. The activity is not one of common usage for the locale
64
Q

Who is liable for product defects?

A

those involved in the regular business of selling (manufacturing or distribution) the particular product at issue can be liable

65
Q

what are the 3 types of product liability?

A
  1. defective manufacture
  2. defective design
  3. defective information (misrepresentation)
66
Q

give an example of defective information

A

a car windshield which is advertised and shatterproof, which then shatters

67
Q

what is an implied warranty?

A

an implicit guarantee of quality. ex. food from the grocery store is always assumed to be safe to eat

68
Q

What constitutes a defective product?

A

A product that defies a reasonable consumer’s expectations. Ex. one wouldn’t expect a laptop to spontaneously combust

69
Q

what is necessary for a successful product liability suit?

A

That the product was defective, and that it resulted in harm to people or property OTHER than the product itself

70
Q

What can you sue on if a defective product only does harm to itself and nothing/no one else?

A

No torts are available, but you can sue on breach of contract through warrenty

71
Q

what are the 3 elements of a successful manufacturing defect suit?

A
  1. The product was in fact in a defective condition, unreasonably dangerous for its intended use
  2. Such a defect existed when the product left defendant’s control, and
  3. The defect was the proximate cause of the injury
72
Q

what are the elements of defective design?

A
  1. The design of a product is itself unreasonably dangerous when put to the expected use of a reasonable consumer
  2. that defective design was the proximate cause of injury
73
Q

what is the crashworthiness doctrine?

A

allows plaintiffs to sue for injures that were exacerbated by a product’s defective desing

74
Q

What are the 2 things that determine if a product design is dangerous?

A
  1. It is more dangerous than an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner, or
  2. If the benefits of the challenged design do not outweigh the risk inherent in such a design
75
Q

When is a manufacturer liable for defective information?

A
  • A product becomes defective when the foreseeable risk of harm could have been avided by the provision of a reasonable warning, and the absence of that warning rendered the product “not reasonably safe”
76
Q

Dues a duty to warn exist for obvious dangers?

A

No

77
Q

What is a complete defence to product liability?

A

If the consumer is shown to have discovered the defect, but proceeded anyway

78
Q

Does complying with industry regulations remove liability?

A

No. Regulations are the bare minimum manufacturers must follow. A company can follow all the regulations and still create a defective product

79
Q

what is apportionment?

A

when the tortious conduct of multiple parites causes harm, apportionment addresses who pays how much

80
Q

what is cause apportionment?

A

when two or more tortfeasors casue divisible harms to the plaintiffs, most agree that causal apportionment should be used
o Ex. if A causes the victim to have a broken leg and B causes the same person to have a broken arm each tortfeasor would be entirely responsible only for the injury they specifically caused

81
Q

what is fault apportionment?

A

occurs when a plaintiff has suffered an indivisible injury at the hands of multiple parties and the loss cannot reasonably be split between the defendants. So, the loss is allocated based on percentage of fault
o Ex. A causes B’s car to crash and then C also crashes into B’s car because they were texting at the time. If the jury determines that 60% of the fault is with A because they started the crash in the first place, then that is what A will be responsible for paying

82
Q

What is joint and severable injury? Does it apply to divisible or indivisible injuries?

A

this applies for indivisible injures. If A is deemed 60% responsible, but B has no money, then the planitff can recover their full 100% damages from A. this is joint liability. Several liability on the other hand would make A only responsible for the 60%

83
Q

What is required to establish joint liability?

A

All of the tort fears must have committed the harm TOGETHER

84
Q

what does a jurisdiction using joint AND several liability mean?

A

several AND joint liability, meaning that the victorious plaintiff can extract their damages from any one of the tortfeasors

85
Q

What is contribution, and what needs to be proven for it?

A
  • Contribution, allows one tortfeasor who overpays what percentage they are responsible for to seek compensation from another tortfeasor who wouldn’t/couldn’t pay at the time
    o People claiming contribution must prove that both tortfeasors were liable to the plaintiff, so if one defendant is immune from suit, no contribution is possible
86
Q

What is indemnity?

A

if A is only 1% responsible but is made to pay the whole damages through joint and several liability and B pays nothing, then A could theoretically recover the whole some from A

87
Q

for sec1983 cases, what needs to be proven?

A

actual damages, such as peculiarly loss or mental distress at the least

88
Q

for property torts, how are damages calculated?

A

via the market value of the item when the tort occured

89
Q

for personal torts, how are damages calculated?

A

 1. Damages for reasonable incurred medical expenses eresulting from the trot
 2. Damages for lost earning capacity or wage loss resulting form the tort
 3. Damages for pain and suffering resulting fomr the tort, including mental anguish
 4. In some cases, an award to pay for the ocst of medical monitoring
 5. Any other specifically identifiable harm that has resulted from the tort

90
Q

for personal injury torts, when are punitive damages awarded?

A

when the defendant is shown to be malicious or reckless

91
Q

if someone is permanently disabled from tortes conduct, how are actual damages calculated?

A

from intelligence and likely job and earnings forecast, with inflation accounted for. One bite at the apple, so everything must be calculated at once

92
Q

what would justify a large compensatory award for pain and suffering?

A

evidence of a severe life change and psychological damage

93
Q

are large awards for pain and suffering constitutional?

A

it depends. General rule of thumb is that the rain between actual damages and pain and suffering be no greater than a single digit, but there is not hard rule

94
Q

what is needed for defamation?

A

A publication of information that damages the reputation of another

95
Q
A

US Torts (5 decks)

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