An Overview of Modern Tort Liability Flashcards
Defenses
“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
A-I Consequences of classification for I,R,N,SL
(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
Standard of proof in tort litigation
Plaintiff must prove the case against the defendant by a more likely than not “preponderance of the evidence”
Types of Damages
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)
Legislatures- 5 Areas of Statutory Tort Reform
- No fault auto insurance
- workers compensation laws
- medical malpractice standards
- defining the scope and significance of defenses
- limiting the kinds and amounts of damages that may be recovered
Fault based liability
Intentional Injury “willful”
Reckless (extreme lack of care) “wanton”
Negligence (ordinary lack of care)
Deep pocket rationale
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
2 objectives of Tort law for the cost of accidents
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)
Categories of tort liability
Intentional Injury
Failure to Exercise Care (recklessness & negligence)
Strict Liability
4 types of Remedies for tort liability
Damages
Injunctions
Restitution
Self-help
Competing Public Policies in Torts
- 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
Liability without fault
Strict liability
Elements of Intentional injury
- Liability is based on fault
- 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
Elements of Recklessness
- Liability based on fault (extreme lack of care)
- Elements “wanton”
- conscious disregard of a serious risk
- risk totally disproportionate to utility - Key: punitive damages may be awarded
Elements of Negligence
- Liability based on fault (ordinary lack of care)
- Elements:
- Conduct posing an unreasonable risk of harm - 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
-
Elements of Strict Liability
- Liability not based on fault
- Eliminates usual requirements of
- foreseeability
- blameworthy conduct
4 Main areas of strict liability
- Harm caused by animals
- product defects
- abnormally dangerous activities
- employees
Contributory negligence (defined as applies under Comparative Negligence / Fault)
- 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
Systems of Comparative Negligence
- 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)
Comparative fault
- 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)
Contributory negligence (defined as applies at Common Law)
-
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)
Assumption of the risk (at common law)
- See, Consent (Ch. 16)
- Can be raised in any action (I,N,R,SL)
- 100% bar to liability
Assumption of the risk (under comparative principles)
- 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
2 most important categories of strict liability
- Products liability + 2. Respondeat Superior
- Products liability = the liability of manufactures for harm caused by defective products
- Respondeat Superior = employer liability for the torts of employees within the scope of employment
