Negligence and other Torts Flashcards
Nuisance
Elements:
1) SUBSTANTIAL (subjective) Interference w/person’s ability to use and enjoy prop to an unreasonable degree
2) A RPP would be annoyed
3) Balance: severity of harm > benefit of D’s act
- Defense: Coming to the nuisance
- Not a defense: hyper-sensitive P is not a RPP
Tort Remedy for Trespass
Nominal
Restitutionary
Injunction
Affirmative Duties
- NONE: no duty to rescue, no duty to act, unless:
1) Causing the peril: duty to act as a RPP
2) Rescuer: Once you act, MUST act/rescue as a RPP
3) Pre-existing (legal) relationship between P and D: duty to act as a RPP (e.g. common carrier + passenger) and CANNOT delegate duty (even if hiring indep contractor)
- NO need to put owns life at risk to conform to duty
Breach of Duty
1) ID the D’s conduct
2) “Conduct was unreasonable because D’s act/omission interfered w/D’s vision, ability, etc”
Loss of Consortium
- Uninjured spouse gets a separate derivative claim against D
- Any defenses D has against injured P can be asserted against consortium spouse
- Recovery for:
Services
Loss of society: companionship
Loss of intimate relationship: sex
Causation
1) Factual: link between D’s breach and P’s injury
Test: but-for
- D is NOT a cause, D’s action is a cause
- NOT THE cause but a cause
- Counter-argument by D: even if careful, P would still have been injured because P was CoN
- Multiple Ds:
– Merger cause (multiple forces by two Ds merge to cause one injury): If one is SUBSTANTIAL factor one D is liable, otherwise both equally
– Unascertainable cause (multiple forces and equally could have caused injury): BOP shifts to Ds to prove their act is not the cause
2) Proximate Cause: D is liable to the extent it is foreseeable D would be liable w/o intervening causes
- Intervening cause ALWAYS foreseeable: subsequent MedMal, Neg Rescuer, Reaction (crowd), illness or accident
- E.g. subsequent illness, accident, MedMal, or Neg rescue IS foreseeable thus D is liable for those subsequent consequences
Affirmative Defenses for Neg
- First argue no D, B, C, D, then
1) Comparative Neg: D can show P failed to exercise proper care for his own (SoC: RPP and Statutorily provided)
- Partial: P recover ONLY if D is > 50%
- Pure (default MBEs unless otherwise stated): P’s recovery is reduced by P’s portion of fault
2) Contributory Neg: bars ALL recovery if P is 1% liab UNLESS D acts is reckless or wanton
3) Assumption of Risk: Express or implied
- P MUST have been aware AND understood the risk AND voluntarily participated
- No AR if violation of Public Policy or reckless or gross Neg by D
4) Last Clear Chance: D’s Neg MUST have been able to avoid harm to P AT THE TIME of the accident
Strict liability under Products Liability
- “One who sells a product in a defective condition unreasonably dangerous to user/consumer is held SL for the resulting harm or injury that occurs”
- NOTE: Other causes of action (W of merchantibility, W of fitness, RIL, SL, etc) also may be at play
Elements:
1) D is a merchant (deals routinely w/chattel of a kind)
- Casual Sells: e.g. garage sale not liable in a product liability action
- Services ONLY provides product incident to services = NO SL under products liab
- Liability flows up the latter of distribution: manuf, distributor, etc
2) D produced or sold a defective product:
- Manufacturing: prod defers from ALL others from the same assembly line and is more dangerous than expected by consumers (different and unexpectedly dangerous / Safety precautions are IRRELEVANT because strictly liable)
- Design: ALL products of a line are identical according to manuf specs but perform unreasonably dangerous to users and there is a practical AND economical alternative design (balance benefit of alternative design vs risk / Safety precautions are IRRELEVANT because strictly liable)
- Warning (analyzed as design defect): inadequate clear and complete warnings of potential risk AND consumer is unaware of risk
4) Causation: Defective product was actual and proximate cause of P’s injury (but-for and proximate)
- Actual: Product is not altered by P + Product left defective from D’s control
- Proximate: P makes a foreseeable use OR misuse of the product
5) Damages
- Defenses: CCAR: Contrib, Comp Responsibility (same as CompNeg): D can show P failed to exercise proper care for his own (SoC: RPP and Statutorily provided), Assumption of Risk (P knew the risk and voluntarily acted)
Outline for ALL Neg questions
Duty (SoC)
Breach
Causation (Factual/But-For and Proximate Cause)
Damages
Defenses: CCAR (Contrib, Comp, Assumption of Risk)
“Prima facie Neg: Duty on on the part of the D to conform to a specific std of conduct for the protection of the P angainst an unreasonable risk of injury, breach of such duty by the D, that such breach is the catual and proximate cause of the P’s injury, and damages to the P’s person or prop.”
Res Ipsa Loquitor: breach of duty
- Duty and Breach are implied
- Injury is one of a type that would not have occurred but-for the breach of this D’s duty (Injury normally associated to w/type of D’s Neg)
- D was in exclusive control of Instrument that caused the injury
- P did not CoN
- Jury MUST still decide if D is Neg under RIL
Negligence Products Liab claim
1) Manufacturer
- Duty: users, consumers, and bystanders
- Breach
- Causation
- Damages
2) Retainer who buys from a reputable manuf w/no reason to anticipate that the prod is dangerous will not be liable in a products liab action based on negligence. Otherwise, D, B, C, D
Tort Remedy for dispossession of RealProp
Compensatory
Restitutionary
Ejectment (no injunction)
Constructive Trust and Equitable Lien
Statutory SoC
- Specific std eliminates jury’s decision as to reasonableness and takes away excuses from the D
- Violation is conclusive
- Statute MUST: class of person + class of risk
1) Seek to protect a CLASS of people to which P belongs
2) From a specific CLASS of risk - Exceptions: complying is more dangerous than not complying, impossible compliance (e.g. driver has heart-attack and runs red light)
- If statute does not apply use Neg
Last Clear Chance (Neg)
- P’s defense to Contrib Neg claim and allows recover
- D’s Neg MUST have been able to avoid harm to P AT THE TIME of the accident
NIED
- No bodily trauma BUT emotional distress has subsequent physical manifestation (MUST prove damages)
- Analysis:
1) Find duty
2) Find breach
3) NIED from the breach - Types:
1) Direct: D’s action puts P in zone of physical danger (near miss)
2) Bystander: D’s action injures/kills TP, and as a result P is ED - P MUST have been present and had contemporaneous awareness that TP was harmed (close kinship only: parent, siblings)
3) Buss relationship: between P and D w/high probability that Neg performance will produce ED on P - E.g. MD lab + patient, funeral home + client
