Misc torts Flashcards
Respondent Superior
According to respondeat superior, an employer will be vicariously liable for tortious acts committed by his employee if such acts occur within the scope of the employment relationship.
Consent
Consent is a manifestation of willingness that some action occur. Victim gives permission for what would otherwise be tortious instead of privileged. In order to meaningfully consent to an act, π must appreciate the true nature of the intended contact.
Self defense
The use of force to protect oneself from a real or threatened attack
Generally, a person is justified in using reasonable force to prevent harm so long as they
reasonably believe that the danger of bodily harm is imminent and that force is necessary to avoid the danger.
Perfect self defense: the use of force by one who accurately appraises the necessity of and amount of force needed to repel or prevent an attack
Imperfect self defense: use of force results from a good-faith but ultimately mistaken belief that use of force is necessary. Still privileged so long as both amount of force and belief of necessity are reasonable. (Jurisdictions are split on this).
Defense of others
Defense of others allows a person to use reasonable force as defined by the circumstances to defend another person to the extent that he reasonably believes the other would be privileged to defend himself. (Note that jurisdictions are split over the effect of mistake…shoe stepping vs. RP)
Defense of property
Defense of property allows a person to use reasonable force not threatening death or serious bodily harm to protect one’s property if the intrusion on the property is otherwise not privileged. Must first ask to leave, or have a reasonable belief that asking would not do anything.
Recapture of Chattels
Recapture allows a person to act promptly to recover possession of chattel that has been taken from him tortiously, including using reasonable force to recapture chattel if he first requests that it be returned or reasonably believes request won’t be heeded.
Public Necessity
Public necessity allows a person to use reasonable force or commit some other tort to reduce a threat or risk to public if he reasonably believes that a serious threat or risk to the public is imminent
Private Necessity
Private necessity allows a person to trespass on land or chattels as the necessities of the situation demand provided there is a serious, imminent threat but this is an incomplete privilege. The party who damages property out of private necessity must compensate owner for damage. (not only for trespass but almost always is).
Discipline
A parent or someone in loco parentis may exercise reasonable force as is necessary to preserve order in the place in which the privilege is allowed (home, school bus, day care, etc.). This privilege also extends to those temporarily responsible for children.
Justification
Justification allows a person who recognizes he intentionally committed some unlawful act to be absolved of liability if it was reasonable or justified given the circumstances. BOP on D to show this.
Negligence
To establish a prima facie case for negligence, the π must prove the following elements: the existence of a duty on the part of the ∆ to conform to a specific standard of care for the protection of the π against an unreasonable risk of injury; breach of that duty by the ∆; that the breach of duty by the ∆ was the actual and proximate cause of the π’s injury; and damage to the π’s person or property.
Res Ipsa
According to res ipsa loquitur, a jury may infer P’s damage due to D’s negligence. This requires evidence that the injury ordinarily doesn’t occur in the absence of negligence, that the instrumentality of harm is within the D’s exclusive control, and that the harm did not occur from the π’s own negligence.
To be liable, must have actual or constructive knowledge that a hazard is present.
Actual knowledge: party subjectively knew
Constructive knowledge: party objectively should have known.
Contributory Negligence
A P is contributorily negligent when his conduct falls below the standard of care to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.
Contributory Negligence
A P is contributorily negligent when his conduct falls below the standard of care to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.
Scientific Reliability
Factors in determining scientific reliability (balancing, illustrative not exclusive):
Whether the scientific theory or technique employed by the expert is generally accepted in the scientific community
Whether the theory has been subjected to peer review
Whether the theory has been tested
Whether the error rate is acceptable (statistical analysis)
(some jx) Whether experts are testifying about matters directly out of research they have conducted independent of the litigation, or whether they have developed their opinions based on other works expressly for the purpose of testifying
Scientific Relevance
Determining the extent to which scientific conclusions “fit” the issues of the case Preponderance of the evidence - Expert needs to testify that more likely than not the defendant’s conduct was the “but for” cause of the plaintiff’s harm. Needs a greater than 2X increase in contracting the birth defect to be considered relevant The court has backed off a little, epidemiological studies no longer required. They can base the decision on: Chemical similarity Animal testing (caused cancer in animals)—still interspecies issue Clinical Trials (GOLD STANDARD) (reproductive effects difficult to test for because fetuses can’t give consent) After approval, watch for side effects and publish case study (FDA Database)
Substantial Factor Test
Ask McGarity for more info
∆’s negligent conduct is a CIF of the π’s injury if it was a substantial factor in producing the π’s harm.
Sub fac test generally overlaps with but-for test but there are situations in which courts impose liability even though there’s not a but-for relationship between ∆ ‘s neg and π’s harm mostly in the context of multiple causes like the Anderson two-fire case.
Lesson from Gentry v. Hereford Ranch, Inc.
Speculation cannot prove cause in fact.
If multiple but-for causes, testimony relevant but π must isolate the cause of the injury only where an alternative cause relieves the ∆ of liability. ∆ may point to other causes to excuse himself from liability.
∆ can try to point to other possible causes to persuade jury that it isn’t responsible. Π’s expert has to say probable, ∆’s expert just has to persuade jury that their alleged cause was not more likely than not.
Burden of Proof for expert testimony
Π’s BOP: to demonstrate through expert’s testimony by preponderance of evidence that but-for ∆’s negligence π’s harm probably would not have occurred. If so, then CIF.
∆’s BOP: doesn’t have to prove “probable” cause. Experts can merely cast doubt on π’s experts by testifying that there are many other possible causes. Can speculate.
General Causation
Whether the substance or chemical is capable of causing the particular disease which the π is seeking compensation for. Just a question of whether it is capable of causing disease in human beings generally. If not, no need to move onto specific causation.
Specific Causation
Whether the particular substance or chemical that the ∆ manufactured caused the harm to that particular π
Can be proved by testimony of doctor who examined plaintiff
Ultimately π obliged to prove both general and specific causation.
Easier to get cases resolved by multiple plaintiffs, look at general.
> 2X harm - In cases in which π’s do establish general causation, then each individual π is still going to have to prove specific causation. Π must show that exposure more than doubled the risk of contracting the disease. Courts started to interpret that as saying no π could recover unless they could show that the relative risk is greater than 2X.
Concurrent Causes
Where two separate acts of negligence combine to cause a single indivisible harm, each actor is jointly and severally liable for all of the damages. Summer v. Tice (two shots one bullet in eye)
Negligent Act and Unknown Cause
Where the negligent ∆’s conduct combines with an unknown activity/cause to bring about the π’s harm, the ∆s will be held joint and severally liable. Anderson v. Minneapolis
Enterprise Liability
Sindell Case:
If substantially all of the manufacturers that created the defective products during the relevant time are named as defendants, and it cannot be determined which manufacturer caused the precise harm complained of, the manufacturers will be held proportionately liable in accordance with their market share in the market of the good that caused the injury.
Market share split - Can be held jointly and severally liable even though only one of them could have caused the harm. Held responsible for their market share. Likelihood that a certain ∆ supplied the product that injured π calculated by ∆’s market share for the product. Each ∆ liable for proportion of judgment represented by its market share unless it demonstrates that it could not have made the product causing π’s injuries. Only for torts involving drugs in which the plaintiff can join all defendants who contributed substantially to the market (varies by state). The burden shifts to the defendant to prove that its product could not have caused the harm
Remote damages
∆ will not be held liable for events too remote in time or space Ryan v. New York R.R. Co.
The more proximate in time and space a ∆ is to a particular injury, the more proximate of a cause the ∆x could be
Eggshell skull doctrine
Take π as you find him, may be liable for aggravating pre-existing illnesses Bartolone v. Jeckovich
Foreseeability of Injury:
The defendant whose conduct poses risk is only responsible for the damage that is foreseeable at the time of the negligence. Wagon Mound I
Zone of Danger
A duty of care is owed only to foreseeable πs—the class of persons who were foreseeably endangered by the ∆’s negligent conduct. Someone who is not within the zone of danger from the ∆’s conduct cannot recover
De minimus risk
if ∆’s conduct presents trivial risk, not liable if harm results. Applies to low probability risks with modest consequences.
Directness test
continuous unbroken sequence of events leading from defendant’s negligence to plaintiff’s harm Polemis (dropped ship plank and petrol fire)
