Final Test Flashcards
Privity
Requirement that the plaintiff must contract directly with the defendant in order to recover for losses.
Immunity
Absolute defense derived from the defendant’s status or relationship to the plaintiff.
Statute of repose
Statute in product liability cases that limits the time period during which a suit can be filed.
Fellow-Servant Rule
Doctrine that shields employers from liability for damages incurred for injuries to an employee due to the negligence of a co-worker.
Incidental damages
Loss such as out-of-pocket expenses, incurred by a plaintiff in mitigating the damages caused by the defendant’s breach of warranty.
Class action
Lawsuit in which representative members of a large group of injured persons sue on behalf of those injured persons.
Subrogation
The right of an insurer to institute suit in the name of the insured against the responsible party to collect monies paid by the insurer to the insured.
Last-clear-chance doctrine
Doctrine that allows the plaintiff to recover in a contributory-negligence system despite the plaintiff’s own negligence.
Informed Consent
Knowledgeable assent based on disclosure of all relevant facts that allows one to make an intelligent decision.
Proprietary function
Function performed by the government that could just as easily be performed by a private entity.
Discretionary function
Act of a government employee requiring the use of judgment.
Scheduled injuries
Injuries, such as loss of sight or of an appendage, for which stated benefits are paid under a workers’ compensation insurance policy.
Umbrella Policy
Policy that provides a secondary source of coverage after the deductible has been paid, usually coordinated with the limits of the underlying policy.
Structural Design Defect
Weakness in a product resulting from the manufacturer’s choice of materials that do not make the product reasonably safe.
Split-limits coverage
Insurance coverage that sets forth a maximum amount an individual can recover for damages and an aggregate amount available for damages independent of the total claims involved.
Abnormally dangerous activity
Activity having a high degree of risk of serious harm that cannot be eliminated with due care and whose value is outweighed by its dangerous attributes
Warranty of merchantability
Implied warranty that goods are fit for the ordinary purpose for which they are used.
Coordination of benefits
Insurance policy provision precluding payment to the insured if the insured has other insurance available.
Manufacturing defect
Product defect arising out of a deviation in the manufacturing process.
Contributory Negligence
The defense completely barring plaintiff from recovering against defendant if plaintiff from recovering against defendant if plaintiff contributed to her own injuries to any extent whatsoever. Texas abolished this defense in 1973.
Comparative Negligence (Pure)
Plaintiff can recover the percentage of damages caused by the defendant no matter how extensive plaintiff’s own comparative negligence is.
Example: If the plaintiff is 99% at fault, she can still recover 1%.
Comparative negligence (Modified or 50% approach)
- Not as great as standard- Plaintiff can recover as long as her percentage of fault is not as great as that of the defendant.
Example: The plaintiff can recover as long as her percentage of fault does not exceed 49%. - ‘Not greater than’ standard- Plaintiff can recover as long as her percentage of fault is not greater than that of the defendant.
Thus: The plaintiff can recover as long as her percentage of fault does not exceed 50%. Texas takes this approach but states it in the negative: Plaintiff cannot recover if her own percentage of fault exceeds 50%–that is, if it is 51% or more.
Comparative Negligence (Proportionate Responsibility)
Known in Texas as the ‘Modified approach’ which states that a plaintiff cannot recover in a negligence case if her own percentage of fault exceeds 50%–that is, if it is 51% or more.
- If plaintiff’s percentage of responsibility = 51% or more the plaintiff cannot recover at all.
- If the plaintiff’s percentage of responsibility = 50% of less: the plaintiff’s recovery is reduced by that percentage.
Sovereign and Governmental Immunity
A common law practice that shields federal and state governments from tort liability unless they waive that immunity.
No-Fault Insurance
Automobile insurance coverage where the insurance carrier of the vehicle pays for damages to the vehicle’s occupants regardless of whether or not the driver of the vehicle was responsible for the injuries sustained.
