Final Exam Flashcards
What is a tort?
Twisted, wrong, injury
Duty+Breach = damages
Civil law vs Common law
created by legislature, more narrow
vs.
created by judges, more up to interpretation
Purposes of Tort Law (simple)
PEDRC
Peaceful means
Encourage
Deter
Recognize
Compensate
Purpose of Tort Law (expanded)
-PEACEFUL MEANS: Provide peaceful means of restitution so parties don’t take it into their own hands (implications for society)
-ENCOURAGE: Encourage socially responsible behavior
-DETER: Deter wrongful conduct
-RECOGNIZE: Vindicate individual rights of redress (recognizing the right)
-COMPENSATE: Restore injured parties to original condition by compensation/remedy
Questions in torts law (policy)
Should people always be compensated?
Are there rules/standards that should govern this?
How does this evolve?
What is social vision behind these rules?
Should this rule be better?
Does it satisfy the purposes of torts law?
What is intent?
-Substantial certainty of contact that was harmful or offensive or substantial certain of harmful or offensive conduct
-Objective regardless of mental illness, capacity, age
-Can transfer between people, objects, and 5 intentional torts
Assault
IICAP
Intent
Imminent (not a future threat)
Cause (connection between act and injury)
Apprehension (reason to expect/fear)
Present apparent ability to make contact (spatial and reasonable)
Battery
Intent
Action
Cause (linked to contact)
Harmful or offensive contact
Intentional Infliction of Emotional Distress
Intent
Act (extreme, outrageous, RP could not endure)
Causation (act connected to distress)
Severe emotional distress
Physical manifestation?? some jurisdictions but can be persuasive evidence
Trespass to Land
Unauthorized
Entry (intent to contact)
Land of others
Presume damages
Privileges (mnemonic)
Can
Dancing
Pirates
Play
Accordion
Doing
Jumprope?
Privileges (list)
Consent
Defense of self, others, property
Public necessity
Private necessity
Authority of Law
Discipline
Justification
Consent
Judged on objective manifestations
No fraud
Can withdraw
Can be limited
Consider age, relationship, balance of power
Implied
Informed
Defense
Self- proportionate response
Others- step in their shoes?
Property- can’t kill
Public necessity
Benefit the public
Foreseeable/imminent
Anyone can do it (not just gov. officials)
Private necessity
Incomplete privilege (you can do it but still have to pay damages)
Authority of Law
Arrest w/ warrant - reasonable
Arrest w/o warrant- needs to be justified
Discipline
Parents, others responsible for children
Non-children, authority figures
Consider
-age, sex, condition
-nature of offense and apparent motive
-influence on conduct of other children
-reasonably necessary and appropriate to compel obedience
-disproportionate, unnecessarily degrading, serious/permanent harm
Justification
Catch all privilege
All evidence/context considered
I acted reasonably and am justified because…
Elements of Negligence
Duty
Breach
Cause
Harm
Duty (short)
Ordinary Care
Reasonably prudent person under the circumstances
Relationship
Statute
RPP under the circumstances - duty
Subjectify for
Physical capacity (blindness)
Age UNLESS adult activity
Mental Illness ONLY if physically incapacitated and unforeseeable
Emergency may elicit different behavior
Professional- duty
-RPProfessional
-Expert witness can be helpful
-Custom not definitive
Doctor- duty
Custom is definitive
Standards: locale based (similar size hospital or geographic area) or national (board certified standards)
Expert witness required
Informed consent doctor- duty
Custom not definitive
Test:
1- doc failed to inform of material risks (RPPatient)
2- patient would not have consented if informed (actual patient)
3- adverse consequences occurred, patient injured
Statute- duty
- Is there an applicable statute?
- Is plaintiff type of person law intended to protect? Is injury the type of harm law intended to prevent?
- Perry factors (Indirect cause of harm, too broad, no common law duty or notice, inaction is criminal, etc)
- Court decides whether to create duty through procedural treatments:
a- negligence per se
b- rebuttable presumption (def. burden of proof, jury)
c- Evidence (persuasive, jury)
Breach
Direct evidence
Res Ipsa
Circumstantial
BPL analysis
Direct evidence- breach
Fact pattern suggest obvious breach with obvious evidence
2 tests for Res Ipsa
Common Law
Restatement
Common law res ipsa test
1- accident
2- exclusive control of defendant
3- wouldn’t happen w/o negligence
Restatement res ipsa test
1- Not ordinary w/o negligence
2- Other responsible causes sufficiently eliminated
3- Within scope of def. duty to plaintiff
Procedural treatments of Res Ipsa
1- Matter of law
2- Rebuttable presumption
3- Inference/evidence of negligence
Circumstantial evidence- breach
Used w/o direct evidence
Plaintiff must show:
1- actual or constructive (more likely than not) notice (assumed for something foreseeable)
2- Unreasonable risk of harm
3- No reasonable care by def. to reduce/eliminate
4- Failure proximately caused harm
What do you need for causation?
Factual causation/ Cause In Fact causation
Proximate cause/legal cause
Cause in fact
But for or substantial factor
Sine qua non- But for causation
Harm would not occur w/o
Speculation is not enough
Substantial factor causation
1- multiple forces combine to cause harm
2- Any sufficient alone to cause harm
3- Impossible to tell which force caused harm
Medical - causation
Goal: judge determines reliable and relevant expert/scientific testimony
Can use statistic doubling for causation in fact
trust the experts
Medical- loss of chance - causation
1- loss of substantial chance of recovery/better medical outcomes
2- Plead w/ specificity lost chance, percentage/quality w/ expert
3- Recover based on unfavorable damages in proportion
Market share liability- causation
Mostly related to DES/drugs
Relaxes causation rules
Policy implications
Factors
1- Least cost avoider
2- Incentivizes corporate responsibility
3- Time lag (harm happens decades later, can still sue)
4- Access to info is disproportionate (manufacturers more likely to know)
Proximate/Legal Cause
Foreseeability
Natural/probable cause
Direct vs Remote
Scope of Risk
Intervening/superseding cause
Eggshell
Rescue Doctrine
- Def negligent to person rescued and negligence caused appearance of
- Peril imminent
- RPP would conclude peril existed
- Rescuer acted with reasonable care in rescue
Expansive Proximate Cause- People
Eggshell, take them as they are
Duty to all (causation must be direct for liability)
Not too many intervening causes or too far removed (generations)
Restrictive Proximate Cause - People
Cardozo:
-scope of risk /zone of danger
- time, space, foreseeability
-limits duty sooner
Restrictive Proximate Cause- Property
-Liable only for immediate results (maybe next adjoining)
-Foreseeability of exact type of harm
Expansive proximate cause- property
Possibility of harm foreseeable (don’t have to anticipate exact harm)
Foreseeable enough, even if risk was remote
Duty to a Trespasser
Unknown- nothing
Known- ordinary care (not willful/wanton)
Licensee
Social guest- warn of hidden dangers, take premises as they find them
Invitee
On premises for owner’s business
reasonable care (warn of hidden dangers too)
Rowland
Merges Invitee and Licensee categories, maybe trespasser known
NEID (1st person) - old rule
-Physical impact at time of trigger + manifestations
-severe E.D. (no duty to prevent fright)
NIED 1st person- New Michigan rule
(easier to recover)
Physical manifestations from E.D., impact unnecessary
Normal person, no hypersensitivity
Underlying negligent act
Affirmative Defenses
Contributory Negligence
Comparative Negligence
Assumption of the Risk
Immunities
Contributory Negligence
If P is negligent at all, no recovery
Comparative Negligence
Pure: proportional, only recover for % you did not cause, 99-1.
Modified: can only recover up to half or 49%
Assumption of the Risk
Express & implied (fold into comparative, but aware and voluntarily accept it)
Express assumption of the risk
- look at specific language, is harm in scope of clause contract?
- can assume risk UNLESS
-party protected by clause intentionally causes harm, reckless, wanton, gross, etc
-grossly unequal bargaining power (contracts of adhesion, could they go somewhere else?)
-Involves public interest
Immunity
Federal- FTCA waives in certain circumstances (discretionary function exception - retains immunity)
State/Local- jurisdiction specific waivers
Absolute vs Qualified
Compensatory Damages
(pay attention to the facts and hit all of those)
-Max recovery rule: judge can adjust if jury goes over it
-5 Cardinal Elements
Past physical and mental pain
Future physical and mental pain
Future medical expenses
Loss of earning capacity
Permanent disability & disfigurement
-Economic (reasonable medical expenses, etc)
-Non Economic (disfigurement, etc)
Punitive Damages
Only when conduct is really bad/egregious
Vicarious Liability
- Plaintiff harmed?
- Employer v contractor?
- Scope of enjoyment (foreseeable)?
Slight deviation (vicarious liability)
Detour- sufficiently related
Frolic- personally, wholly abandon job
Dual purpose venture = personal + business, typically liable
Vicarious Liability: Independent Contractors
Nondelegable duties: activity w/ high risk of harm cannot delegate duties
Strict Liability (3)
Blackburn (keep mischief from escaping)
Cairns (natural v non natural)
520 (RS) (6 factors)
Indiana harbor rule
Focus on the activity, the point of the thing
SL Animals
Custom informative
Pets- ok to trespass but one bite rule
Barnyard- not ok to trespass
Wild- always SL
SL limitations
- Proximate cause/foreseeability of harm “from that which makes activity abnormally dangerous” (Minks)
- Intervening/superceding causes (act of God or 3rd party)
- Comparative negligence/assuming the risk- voluntarily and unnecessarily put yourself in harms way knowing probably consequences
Products liability procedural treatments
- Negligence
- Warranty
- Strict liability
Products liability negligence
(focus on duty)
Duty to inspect if:
1. Reasonably certain/probable to place life/limb in danger if negligently made
2. Used by persons who won’t inspect
*proximity/relation is a factor
Products liability warranty theory
Express: irrespective of privity of contract, dealer and manufacturer could both be liable. Opinion v fact/guarantee (look @ wording)
Implied: Can’t use express to limit implied warranty, proximate cause analysis, no substantial changes/modifications
Strict Product liability 3rd RS
Focus on activity
3 types
manufacturing
design
warning/notice
Perry factors
CNHDPD
Common law duty
No fault liability
Harm (comes from violation of the statute)
Definition clear or vague?
Public on notice
Disproportionate liability
Duty to rescue
NO duty UNLESS
-special relationship
-created the harm
Roland
Combine licensee and invitee
Keep reasonably safe
Warn of danger
NEID 3rd person
Amaya- able to be hurt by def negligent in order to recover, zone of danger
Dillon- closely related, reasonably foreseeable
Thing
1. Closely related by blood or law Present at scene of injury and aware
2. S.E.D. (more than a disinterested party)
3. Not abnormal reaction to circumstances
Vicarious Liability Factors
(Slight deviation factors)
-Intent
-Setting
-Time consumed
-Work hired for
-Incidental Acts reasonably expected by employer
-Freedom allowed for employee’s responsibilities
SL: 520
HGICLV
High risk
Great harm
Inability to eliminate w/ due care
Common Usage
Location appropriate?
Value
Strict Product liability 402/Greenman
-in the business of selling (sellers + manufacturers)
-knowing it won’t be inspected
-defective product
-unreasonably dangerous
EVEN THOUGH
-all possible care
-no privity of contract
