Jurisdictional Splits Flashcards
Intent
Single: intent to cause contact
Double: intent to cause contact and intent to cause a specific harm
IIED
Courts are split on what is considered to be extreme and outrageous conduct, as well as what constitutes as severe emotional distress (subjective standard)
Implied Consent in Sports
- within the rules
- within the norms - rough play is foreseeable
- whatever happens on the field is consent
Relativizing for Children
- 5 and above relativize
- 14 is the cut off
Statutory Duty to Rescue
Most courts will create a duty from a criminal statute
Negligence per se
Strong Majority:
- judge decides if statute is relevant
- if they find it important to the case, a directed verdict is given on the standard of care
* jury then determines whether the actor violated the statute and if there is a causal link to the harm
Fair Number:
- deviation/compliance with the statute is relevant to show negligence, but it is NOT conclusive
Handful:
- violation of a statute creates a prima facia case for negligence which can be rebutted by proof that a reasonable person would have acted the same way (MAR-CAM CORP)
Res ipsa
ELEMENTAL SPLIT
Common Law:
1) accident normally does not occur without negligence
2) must be caused by agency or instrumentality within the agent’s exclusive control
3) Plaintiff did not act or voluntarily contribute to the accident
3rd Restatement:
- only requires 1) and 3)
APPLICATION SPLIT
1) treat as evidence
2) creates presumption, but can be rebutted
3) creates super presumption - burden shifts to defendant
Admissibility of Expert Testimony
State courts are not bound by either the Frye or Daubert test, they can pick
- Frye is the traditional test but it is less favorable
Loss of Chance Recovery
Courts vary on allowing full, partial, or zero recovery - WONNELL likes partial
- also are undecided about if the defendant has to die as a result
Substantial Factos
2nd: “act of god” = defendant is NOT liable
3rd: multiple sufficient causes = liability
Market Share Liability
Courts doe not like this because it is hard to distinguish between who actually did what [unfair]
Proximate Cause
- 2nd Restatement - rarely accepted by Courts
- Cardozo
- Andrews / 3rd Restatement
Pure Emotional Distress
1) impact rule
2) zone of danger rule
3) 3rd Restatement and the THING test
4) physical manifestation
5) incorrect handling
6) recklessness
Physical Manifestation
Some courts require physical manifestation to prove severe emotional distress
Wrongful Birth
Abortion controversy is quite relevant because courts in pro-life states normally do not allow recovery for these suits
Wrongful Life
Courts struggle to conceptualize non-existence and some even refuse to recognize these suits altogether
- abortion controversy is also relevant
Wrongful Death
Not all courts accept wrongful death suits
- those that do recognize them, limit it to only viable fetuses that would have a higher chance of survival if not for the negligent conduct
Wrongful Pregnancy
Some courts say parents can only recover for extraordinary medical expenses
ROWLAND modern approach to owner liability
- some states have adopted ROWLAND but most have not
- the majority of states have instead removed the distinction between licensee and invitee
– trespasser category still exists since they are the cheaper cost avoider
Landlord Liability
Traditional Approach (common law): a landlord has no duty to look after the safety of their tenants except in certain situations
Untraditional Approach: landlords owe a general duty of reasonable care to their tenants (SARGENT)
- enforced by the “implied warranty of habitability”
– if there are hazards that make a place uninhabitable the landlord can be held liable
– can sometimes concern a statutory argument based on building codes = negligence per se
Third Party Liability
Specific Harm Rule: owner has no duty to protect visitors from violent third parties unless they are aware of specific, imminent harm prior
Previous similar incidents: no duty unless there is evidence of previous/similar crimes and other circumstances
Balancing Test [California] - addresses interest of owners and customers by balancing foreseeability of harm vs. burden of imposing duty of care (WAL-MART)
Design Defects
Courts will either apply CET, RAD or some mix of both
- if clear consumer expectations exist they will use CET
* plaintiff can prevail even if there was no RAD
* does not require expert testimony
- if there is no clear consumer expectations they will use RAD
* plaintiff has to prove there was a RAD to meet their prima facie case
* requires expert testimony
Strict Liability and animals
3rd Restatement states the a negligence standard should apply when the animal has not shown dangerous tendencies but MANY courts disagree with this
Contributory Negligence and Comparative Fault
Contributory negligence is very rare nowadays; majority of states follow a comparative fault framework
Comparative Fault and Joint and Several Liability
Most states that have adopted comparative fault no longer recognize joint and several liability
Comparative Fault Types
Pure and impure/modified
Comparative Fault and Intentional Torts
Majority: tortfeasor bears 100% of the loss
Minority: defense if there was reckless conduct or the plaintiff is suing a third party for failing to protect them
Avoidable Consequences - Mitigating Damages
Some courts think it is fair to lower damages if the plaintiff did not take basic safety steps, like wearing a seat belt - looking a pre-accident behavior to determine who was the cheaper cost avoider - but MOST courts disagree, claiming that the focus should be on the fact that they got hurt and deserve compensation
Statute of Limitations
Courts are uncertain what triggers the clock to actually start
* e.g., discovering part of the injury OR discovering negligent behavior
Statute of Repose
Split is between the legislature and the state courts as some state courts have been reluctant to accept statutes of repose because it does not account for situations in which the plaintiff has NO idea they have even been affected yet
Nuisance and the Cost Benefit Analysis
Injunctions: harm is greater than benefit
* some jurisdictions do NOT allow injunctions to terminate the activity
Damages: benefit is greater than harm
