Distinctions

Question 1

Battery

Answer 1

(1) Defendant acts
(2) Intending to cause harmful or offensive contact with plaintiff
(3) And defendant’s act causes such contact

*Operating on a patient without their consent is a battery, not negligence

Question 2

Operating on a Patient without Informed Consent

Answer 2

In PA this is not a negligence claim, it is a battery.

Informed consent: in order for a patient to give informed consent the physician must disclose the risks a reasonable person would need in order to decide to undergo the procedure

Question 3

Pennsylvania’s Stand-Your-Ground Statute

Answer 3

PA imposes a general duty to retreat.

Do not have obligation to retreat in face of attack if you are in your own home or place of work unless the you are the initial aggressor, or you are attacked in your place of work by a co-worker.

Do not have duty to retreat somewhere you usually would, and instead of right to stand ground and use force/ deadly force if:

(1) Actor is not engaged in criminal activity adn not in illegal possession of a firewarm
(2) Actor has a right to be in the place where she was attacked
(3) Actor believes the force is immediately necessary to protect herself; AND
(4) Person against whom the force is used displays a firearm, a replica of a firearm, or other deadly weapon

Question 4

Factors to Consider in Determining if a Duty of Care Exists

Answer 4

1. Relationship between the parties
2. Nature of the risk imposed and foreseeability of harm incurred
3. Consequence of imposing a duty on th peson
4. Social utility of the person’s conduct
5. Overall public interest in the advised solution

Question 5

Children and Negligence

Answer 5

Under age 7 presumed incapable of negligence

Between 7 and 14 rebuttably presumed to be incapable of negligence

Over age 14 presumed capable of negligence

Question 6

Landowner’s Duty

Answer 6

PA uses the three-part framework of invitees, licensees, and tresspassers

Question 7

Duty to an Invitee

Answer 7

Invitee: is someone who enters another’s land by invitation, often for business purposes (example: going to the mall)

Duty: Landowner owes greatest duty of care to invitees: duty to warn and use reasonable care as well as duty to conduct reasoanble inspections of property and remedy dangerous conditions

Question 8

Duty to a Licensee

Answer 8

Licensee: someone privileged by virtue or landowner’s consent to enter or remain on land; includes social guests

Duty: owes a duty to warn and duty to use reasonable care in conducting activities on the land

Question 9

Duty to Tresspassers

Answer 9

Tresspasser: one who enters or remains on land of another without privilege to do so

Duty to Discovered Tresspassers: owe a duty to discovered or anticipated tresspassers to warn or protect them from concealed dangerous artificial conditions. No duty to warn of natural conditions or of artificial conditions that do not involve risk of death or serious bodily harm

Duty to Undiscovered Tresspassers: owe no duty, not do they have a duty to inspect property for evidence of tresspassers. Only duty is to avoid wanton conduct, which is the reckless disregard of an extreme risk which makes harm highly probable; and willful conduct, an intentional act of extreme risk so obvious that the possessor must be aware of it

Question 10

Good Samaritan Statute

Answer 10

Protects people who are providing emergency medical care or rescue in good faith against civil damages for acts of ordinary negligence;

Must be proof of gross negligence or recklessness, or intentional or wanton conduct for plaintiff to recover

Question 11

Parents Duty

Answer 11

Parents are not vicariously liable for children’s torts, but a may be directly liable for (1) providing a child wiht a dangerous object if the child lack the maturity and judgment to control, or (2) failing to protect against a child’s known dangerous tendency (don’t let your pyro kid have matches)

Parents may be liable for up to $1,000 per person, up to a total of $2,500 in damages for torts committed by their minor children

Question 12

Tavern Keepers

Answer 12

Tavern keeprs or anyone with a liquor license are prohibited under PA Dram Shop Act from selling, furnishing, or giving any alcoholic beverages to minors or any visibly intoxicated persons.

If they do, they are liable for harms caused.

Question 13

Social Hosts

Answer 13

Adult social hosts are liable for knowingly serving alcohol to a minor who then injures himself or others, but are not liable for serving alcohol to intoxicated adults

Question 14

Comparative Negligence

Answer 14

PA follows a partial or modified comparative negligence statute: plaintiff’s recovery is barred if he was more than 50% at fault

Plaintiffs full damages are calculated by the trier of fact and then reduced by the proportion tha this fault bears to the total harm

Question 15

Assumption of Risk

Answer 15

For the most part this has been subsumed by comparative fault, but there are some situations where assumption of risk serves as a complete bar to plaintiff’s recovery. Mostly in context of recreational activity, like off-roading or skiing

Question 16

Intra-family Immunity

Answer 16

Abolished in PA

Question 17

For State Government and Municipalities

Governmental Immunity is Waived in:

Answer 17

1. Vehicle liability
2. Care, custody, or control of personal property
3. Care, custody, or control of animals
4. Real property
5. Trees, traffic control systems, and street lighting
6. Streets
7. Sidewalks
8. Utiliter service facilities

Question 18

Charitible Immunity

Answer 18

Abolished in PA

Question 19

Joint Liability

Answer 19

A defendant’s liability is several not joint, unless the defendant is greater than 60% at fault.

Question 20

Dog Bites

Answer 20

Plaintiffs cannot recover for a dog bite under strict liability, even if the dog’s owner knew of the dog’s previous biting

Question 21

Products Liability

Answer 21

PA law adheres to strict liability approach

Question 22

Defamation

Answer 22

Plaintiff may bring action for defamation based on:

(1) Defendant’s defamatory language
(2) Of or concerning the plaintiff
(3) Published to a third party who understands its defamatory nature as intended to apply to the plaintiff, and
(4) Damages plaintiff’s reputation

*PA also requires a showing of fault on the part of defendant

• If P is public official/figure and statement relates to public concern, P must establish that D acted with actual malice.
• If P is private figure, D must have acted with negligence.

Question 23

Res Ipsa Loquitur

Answer 23

1. The event is of a kind which ordinarily does not occur in the absence of negligence;
2. other responsible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence; AND
3. the indicated negligence is within the scope of defendant’s duty to the plaintiff.