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Torts- Augustine Adams > Final Exam > Flashcards

Final Exam Flashcards

1
Q

What is a tort?

A

Twisted, wrong, injury
Duty+Breach = damages

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2
Q

Civil law vs Common law

A

created by legislature, more narrow
vs.
created by judges, more up to interpretation

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3
Q

Purposes of Tort Law (simple)

A

PEDRC
Peaceful means
Encourage
Deter
Recognize
Compensate

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4
Q

Purpose of Tort Law (expanded)

A

-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

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5
Q

Questions in torts law (policy)

A

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?

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6
Q

What is intent?

A

-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

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7
Q

Assault

A

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)

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8
Q

Battery

A

Intent
Action
Cause (linked to contact)
Harmful or offensive contact

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9
Q

Intentional Infliction of Emotional Distress

A

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

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10
Q

Trespass to Land

A

Unauthorized
Entry (intent to contact)
Land of others
Presume damages

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11
Q

Privileges (mnemonic)

A

Can
Dancing
Pirates
Play
Accordion
Doing
Jumprope?

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12
Q

Privileges (list)

A

Consent
Defense of self, others, property
Public necessity
Private necessity
Authority of Law
Discipline
Justification

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13
Q

Consent

A

Judged on objective manifestations
No fraud
Can withdraw
Can be limited
Consider age, relationship, balance of power
Implied
Informed

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14
Q

Defense

A

Self- proportionate response
Others- step in their shoes?
Property- can’t kill

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15
Q

Public necessity

A

Benefit the public
Foreseeable/imminent
Anyone can do it (not just gov. officials)

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16
Q

Private necessity

A

Incomplete privilege (you can do it but still have to pay damages)

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17
Q

Authority of Law

A

Arrest w/ warrant - reasonable
Arrest w/o warrant- needs to be justified

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18
Q

Discipline

A

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

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19
Q

Justification

A

Catch all privilege
All evidence/context considered
I acted reasonably and am justified because…

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20
Q

Elements of Negligence

A

Duty
Breach
Cause
Harm

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21
Q

Duty (short)

A

Ordinary Care
Reasonably prudent person under the circumstances
Relationship
Statute

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22
Q

RPP under the circumstances - duty

A

Subjectify for
Physical capacity (blindness)
Age UNLESS adult activity
Mental Illness ONLY if physically incapacitated and unforeseeable
Emergency may elicit different behavior

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23
Q

Professional- duty

A

-RPProfessional
-Expert witness can be helpful
-Custom not definitive

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24
Q

Doctor- duty

A

Custom is definitive
Standards: locale based (similar size hospital or geographic area) or national (board certified standards)
Expert witness required

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25
Q

Informed consent doctor- duty

A

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

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26
Q

Statute- duty

A
  1. Is there an applicable statute?
  2. Is plaintiff type of person law intended to protect? Is injury the type of harm law intended to prevent?
  3. Perry factors (Indirect cause of harm, too broad, no common law duty or notice, inaction is criminal, etc)
  4. 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)
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27
Q

Breach

A

Direct evidence
Res Ipsa
Circumstantial
BPL analysis

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28
Q

Direct evidence- breach

A

Fact pattern suggest obvious breach with obvious evidence

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29
Q

2 tests for Res Ipsa

A

Common Law
Restatement

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30
Q

Common law res ipsa test

A

1- accident
2- exclusive control of defendant
3- wouldn’t happen w/o negligence

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31
Q

Restatement res ipsa test

A

1- Not ordinary w/o negligence
2- Other responsible causes sufficiently eliminated
3- Within scope of def. duty to plaintiff

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32
Q

Procedural treatments of Res Ipsa

A

1- Matter of law
2- Rebuttable presumption
3- Inference/evidence of negligence

33
Q

Circumstantial evidence- breach

A

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

34
Q

What do you need for causation?

A

Factual causation/ Cause In Fact causation
Proximate cause/legal cause

35
Q

Cause in fact

A

But for or substantial factor

36
Q

Sine qua non- But for causation

A

Harm would not occur w/o
Speculation is not enough

37
Q

Substantial factor causation

A

1- multiple forces combine to cause harm
2- Any sufficient alone to cause harm
3- Impossible to tell which force caused harm

38
Q

Medical - causation

A

Goal: judge determines reliable and relevant expert/scientific testimony
Can use statistic doubling for causation in fact
trust the experts

39
Q

Medical- loss of chance - causation

A

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

40
Q

Market share liability- causation

A

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)

41
Q

Proximate/Legal Cause

A

Foreseeability
Natural/probable cause
Direct vs Remote
Scope of Risk
Intervening/superseding cause
Eggshell

42
Q

Rescue Doctrine

A
  1. Def negligent to person rescued and negligence caused appearance of
  2. Peril imminent
  3. RPP would conclude peril existed
  4. Rescuer acted with reasonable care in rescue
43
Q

Expansive Proximate Cause- People

A

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)

44
Q

Restrictive Proximate Cause - People

A

Cardozo:
-scope of risk /zone of danger
- time, space, foreseeability
-limits duty sooner

45
Q

Restrictive Proximate Cause- Property

A

-Liable only for immediate results (maybe next adjoining)
-Foreseeability of exact type of harm

46
Q

Expansive proximate cause- property

A

Possibility of harm foreseeable (don’t have to anticipate exact harm)
Foreseeable enough, even if risk was remote

47
Q

Duty to a Trespasser

A

Unknown- nothing
Known- ordinary care (not willful/wanton)

48
Q

Licensee

A

Social guest- warn of hidden dangers, take premises as they find them

49
Q

Invitee

A

On premises for owner’s business
reasonable care (warn of hidden dangers too)

50
Q

Rowland

A

Merges Invitee and Licensee categories, maybe trespasser known

51
Q

NEID (1st person) - old rule

A

-Physical impact at time of trigger + manifestations
-severe E.D. (no duty to prevent fright)

52
Q

NIED 1st person- New Michigan rule

A

(easier to recover)
Physical manifestations from E.D., impact unnecessary
Normal person, no hypersensitivity
Underlying negligent act

53
Q

Affirmative Defenses

A

Contributory Negligence
Comparative Negligence
Assumption of the Risk
Immunities

54
Q

Contributory Negligence

A

If P is negligent at all, no recovery

55
Q

Comparative Negligence

A

Pure: proportional, only recover for % you did not cause, 99-1.
Modified: can only recover up to half or 49%

56
Q

Assumption of the Risk

A

Express & implied (fold into comparative, but aware and voluntarily accept it)

57
Q

Express assumption of the risk

A
  1. look at specific language, is harm in scope of clause contract?
  2. 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
58
Q

Immunity

A

Federal- FTCA waives in certain circumstances (discretionary function exception - retains immunity)
State/Local- jurisdiction specific waivers
Absolute vs Qualified

59
Q

Compensatory Damages

A

(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)

60
Q

Punitive Damages

A

Only when conduct is really bad/egregious

61
Q

Vicarious Liability

A
  1. Plaintiff harmed?
  2. Employer v contractor?
  3. Scope of enjoyment (foreseeable)?
62
Q

Slight deviation (vicarious liability)

A

Detour- sufficiently related
Frolic- personally, wholly abandon job
Dual purpose venture = personal + business, typically liable

63
Q

Vicarious Liability: Independent Contractors

A

Nondelegable duties: activity w/ high risk of harm cannot delegate duties

64
Q

Strict Liability (3)

A

Blackburn (keep mischief from escaping)
Cairns (natural v non natural)
520 (RS) (6 factors)

65
Q

Indiana harbor rule

A

Focus on the activity, the point of the thing

66
Q

SL Animals

A

Custom informative
Pets- ok to trespass but one bite rule
Barnyard- not ok to trespass
Wild- always SL

67
Q

SL limitations

A
  1. Proximate cause/foreseeability of harm “from that which makes activity abnormally dangerous” (Minks)
  2. Intervening/superceding causes (act of God or 3rd party)
  3. Comparative negligence/assuming the risk- voluntarily and unnecessarily put yourself in harms way knowing probably consequences
68
Q

Products liability procedural treatments

A
  1. Negligence
  2. Warranty
  3. Strict liability
69
Q

Products liability negligence

A

(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

70
Q

Products liability warranty theory

A

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

71
Q

Strict Product liability 3rd RS

A

Focus on activity
3 types
manufacturing
design
warning/notice

72
Q

Perry factors
CNHDPD

A

Common law duty
No fault liability
Harm (comes from violation of the statute)
Definition clear or vague?
Public on notice
Disproportionate liability

73
Q

Duty to rescue

A

NO duty UNLESS
-special relationship
-created the harm

74
Q

Roland

A

Combine licensee and invitee
Keep reasonably safe
Warn of danger

75
Q

NEID 3rd person

A

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

76
Q

Vicarious Liability Factors
(Slight deviation factors)

A

-Intent
-Setting
-Time consumed
-Work hired for
-Incidental Acts reasonably expected by employer
-Freedom allowed for employee’s responsibilities

77
Q

SL: 520
HGICLV

A

High risk
Great harm
Inability to eliminate w/ due care
Common Usage
Location appropriate?
Value

78
Q

Strict Product liability 402/Greenman

A

-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

Torts- Augustine Adams (1 decks)

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