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TORTS (JOHNSON) > An Overview of Modern Tort Liability > Flashcards

An Overview of Modern Tort Liability Flashcards

1
Q

Defenses

A

“a defense based on the plaintiffs carelessness depends on the nature of the defendants conduct”

ex. Carelessness = defense in negligence action
Carelessness =/= defense in intentional tort action
Carelessness = OR =/= defense in SL action, depending on whether the state has adopted comparative fault

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2
Q

A-I Consequences of classification for I,R,N,SL

A

(I, R, N, SL) What types of defenses may be asserted and how damages will be calculated
- scope of liability (I,R)
- punitive damages (I,R,SL) not (N)
- defenses (depends* MT10)
- respondent superior more likely(N) not (I)
- insurance (R,N,SL) not (I)
- immunities (depends* MT12)
- Worker’s Compensation def for (N,R) not (I)
- statutes of limitation
- bankruptcy

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3
Q

Standard of proof in tort litigation

A

Plaintiff must prove the case against the defendant by a more likely than not “preponderance of the evidence”

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4
Q

Types of Damages

A

Punitive = intended to deter similar tortuous acts
= only sometimes available in cases of high culpability (I,R)
= Or in (SL) cases with evidence of a high degree of blameworthiness
=/= never available for cases of negligence (N)

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5
Q

Legislatures- 5 Areas of Statutory Tort Reform

A
  1. No fault auto insurance
  2. workers compensation laws
  3. medical malpractice standards
  4. defining the scope and significance of defenses
  5. limiting the kinds and amounts of damages that may be recovered
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6
Q

Fault based liability

A

Intentional Injury “willful”
Reckless (extreme lack of care) “wanton”
Negligence (ordinary lack of care)

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7
Q

Deep pocket rationale

A

The key concern is which of several arguably responsible parties is best able to absorb the loss because of its wealth - spread the loss so that the loss does not fall heavily on anyone person

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8
Q

2 objectives of Tort law for the cost of accidents

A

Tort law seeks to
1. Allocate rationally and fairly the cost of past accidents (through fault-based liability / the deep pocket rational)
2. Minimize the cost of future accidents by determining persons from engaging in activities that are likely to give rise to harm (incentivize for safety)

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9
Q

Categories of tort liability

A

Intentional Injury
Failure to Exercise Care (recklessness & negligence)
Strict Liability

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10
Q

4 types of Remedies for tort liability

A

Damages
Injunctions
Restitution
Self-help

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11
Q

Competing Public Policies in Torts

A
  • having predictable legal rules that are administratively convenient & efficient
  • dangers of impeding economic growth
  • promoting individual responsibility
  • discouraging the waste of talent and resources
  • maintaining coequal branches of government
  • adequate compensation for victims
  • limiting liability in proportion to fault
  • making those who benefit from dangerous practices bear resulting losses
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12
Q

Liability without fault

A

Strict liability

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13
Q

Elements of Intentional injury

A
  1. Liability is based on fault
  2. Elements (either is sufficient to establish a tort) “willful”
    - Purpose = “subjective desire” to cause a result that the law forbids (ex. unconsented contact w leg)
    - Knowledge = “substantial certainty” that a forbidden result will occur
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14
Q

Elements of Recklessness

A
  1. Liability based on fault (extreme lack of care)
  2. Elements “wanton”
    - conscious disregard of a serious risk
    - risk totally disproportionate to utility
  3. Key: punitive damages may be awarded
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15
Q

Elements of Negligence

A
  1. Liability based on fault (ordinary lack of care)
  2. Elements:
    - Conduct posing an unreasonable risk of harm
  3. Key: foreseeability
    - if a risk is reasonably to be perceived as the result, then must exercise due care to prevent the risk
    - otherwise = negligence
    - no reason to foresee the risk = unavoidable accident = no negligence = not compensable
    -
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16
Q

Elements of Strict Liability

A
  1. Liability not based on fault
  2. Eliminates usual requirements of
    - foreseeability
    - blameworthy conduct
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17
Q

4 Main areas of strict liability

A
  • Harm caused by animals
  • product defects
  • abnormally dangerous activities
  • employees
18
Q

Contributory negligence (defined as applies under Comparative Negligence / Fault)

A
  • Failure to exercise care for self-protection that contributed to the plaintiff’s injury or loss
  • Key: Defense against negligence claim - but not a total bar to recovery
  • replaced in most (45) jurisdictions by comparative negligence / fault
19
Q

Systems of Comparative Negligence

A
  • Adopted in about half of jurisdictions
    1. Pure = a contribute to really negligent plaintiff is not barred from recovery but damages are reduced in proportion to the plaintiff’s fault
    2. Modified = 50% threshold; plaintiff
  • is barred from recovery if contributory negligence exceeds or “equals or exceeds” 50% of the total negligence in the case
  • can recover if contributory negligence is below the 50% threshold but damages will be proportionally reduced (I don’t think the word “proportionately” is used correctly here but just remember in a modified system if negligence is less than 50% P can recover whatever % they’re not at fault for - so exactly like pure except it just doesn’t work with over 50% fault)
20
Q

Comparative fault

A
  • adopted by many jurisdictions (about half)
  • like comparative negligence (pure and modified) but used for recklessness in strict liability
  • does not apply to intentional torts
  • uses contributory negligence principles to offset liability for recklessness and strict liability (not just negligence)
21
Q

Contributory negligence (defined as applies at Common Law)

A
  1. still “Always” a 100% bar to liability
    2.Keys:
    - can ONLY be raised as a defense in a negligence action (not recklessness or strict liability)
    - Not “everywhere” but “always” (as in, in any negligence case) in the 5 jurisdictions where this still applies (Maryland, DC, Virginia, North Carolina, Alabama)
22
Q

Assumption of the risk (at common law)

A
  • See, Consent (Ch. 16)
  • Can be raised in any action (I,N,R,SL)
  • 100% bar to liability
23
Q

Assumption of the risk (under comparative principles)

A
  • See, Consent (Ch. 16)
  • Can be raised in any action (I,N,R,SL)
  • Limited/Partial defense in N, R, SL actions
  • Can be “merged” with Comparative Negligence / Fault to = “complete” (100%) defense to liability in N, R, SL actions
  • 100% bar to liability for Intentional Torts
24
Q

2 most important categories of strict liability

A
  1. Products liability + 2. Respondeat Superior
  2. Products liability = the liability of manufactures for harm caused by defective products
  3. Respondeat Superior = employer liability for the torts of employees within the scope of employment
25
Q

Products liability

A

= the liability of manufactures for harm caused by defective products
- 1 of the 2 most important categories in strict liability

26
Q

Respondeat Superior

A

= employer liability for the torts of employees within the scope of employment
- 1 of the 2 most important categories in strict liability

27
Q

Scope of liability

A

High culpability = (I,R)
+ extended liability to a larger class of persons &
+ award of greater compensatory damages
+ more likely to be found responsible for subsequent related injuries

N, SL =/= Not High Culpability under Scope of Liability

28
Q

Vicarious liability (4 main examples)

A

= applies for another’s tortuous conduct
- respondeat superior
- principal-agent relationship
- partners & joint ventures
- statutory vicarious liability (automobile owner laws)

29
Q

Personal liability

A

= applies for the individuals own tortuous conduct

-intentional
-reckless
-negligence
-strict liability

30
Q

Liability insurance coverage exclusions

A

= harms intentionally inflicted by the insured
Key: puts pressure on both plaintiffs and defendants to characterize claims as arising out of negligence (N), recklessness (R), or conduct subject to strict liability (SL)

31
Q

immunities

A

Depend on the jurisdiction

Generally claims…
between spouses based on negligence = barred
between spouses for intentional wrongdoing = allowed
against the government for negligence = allowed
against the government for intentional torts = barred

32
Q

Workers comp (3 important considerations)

A

= if injury arises “out of and in the course of employment” employee is entitled to insurance award without proof that the injury resulted from tortuous conduct of the employer

  • in most states employees are required to participate
  • immunizes participating employers and fellow employees from suit in (N,R) actions for work-related accidents
  • does not preclude a claim for (I) intentional wrongdoing
33
Q

Liability insurance (4 things to note, 5 to consider)

A
  • cannot be mentioned to the jury except in Wisconsin
  • intentional (I) harms are excluded
  • Insurer has the right to accept or reject settlement offers
  • insurer must exercise reasonable care and settling claims within policy limits

Consider:
- not all defendants have it
- coverage is limited in amount
- may cover persons other than purchaser
- may include a duty to defend ??
- some policies are self liquidating ??

34
Q

2 possibilities for Liability of entities under vicarious liability

A

Vicarious liability for the torturous conduct of a person who
- caused harm
- could have prevented harm

35
Q

4 main types of vicarious liability for the torturous conduct of a person who caused harm

A
  • respondeat superior
  • non-delegable duty ??
  • principal-agent relationship
  • partners & joint ventures
36
Q

3 main types of vilarious liability for the torturous conduct of a person who could have prevented harm

A

Negligent
- hiring
- training
- supervision

37
Q

Statutes of limitations

A

= bars commencement of a suit after expiration of a certain period of time

Key: very important to consider when determining the claim or type of damage alleged because period of time allowed will vary based on this

38
Q

Bankruptcy

A

Generally…
- Ordinary negligence (N) = dischargeable
- intentional torts (I) = non-dischargeable
- fraud (requiring proof of being intentional or reckless)
(I,R) = non-dischargeable

39
Q

Conflict of interest in liability insurance

A
  • insured wants case settled to eliminate risk of being held liable for the amount of a judgment in excess of policy limits
  • insurer may prefer to gamble on the chance of success at trial rather than accept the certainty of loss that is inherent in a settlement
40
Q

“bad-faith” cause of action for conduct and settlement negotiations

A
  • no state will impose strict liability on an insurance company for failure to accept an offer within policy limits
  • however, failure to act reasonably opens insurance company to liability for amounts in excess of policy limits
  • “breaching its duty to consider the interest of the insured in proposed settlements”
41
Q

Insurance hypothetical – what is unreasonable?

A

TORTS (JOHNSON) (6 decks)

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