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Torts FYLSE > Page 15 > Flashcards

Page 15 Flashcards

0
Q

Can you recover for injury that is just reputational in a survival action?

A

Some jurisdictions allow this

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1
Q

In a Survival action, what defenses are available to the person bringing the suit?

A

Any defenses that would’ve been available to the victim

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2
Q

Are punitive damages often given in survival actions?

A

Usually not if the person died before judgment was rendered

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3
Q

If the victim died immediately, is a survival action available?

A

No

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4
Q

What kind of things can be recovered in a survival action?

A
  • medical expenses
  • lost wages
  • pain and suffering
  • funeral expenses
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5
Q

What is “true type” in a survival action?

A

When a new cause of action for the surviving relatives is created. This allows recovery of pecuniary loss only.

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6
Q

What are the types of pecuniary loss available in a true type situation for survival actions?

A

Loss of value of:

  • companionship
  • support
  • services
  • contributions they would have gotten if the victim hadn’t died
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7
Q

How is pecuniary loss computed in a survival action depending on who the deceased person was?

A
  • wage earner: the estimated amount of earnings minus living expenses he would’ve made over the rest of his working years
  • child: speculation of contributions he would have continued after majority
  • not wage earner: amount required to replace the services performed in caring for children or family, or companionship
  • retired: reasonable award because every life has some pecuniary value
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8
Q

A jury presumes that you will stay what for the rest of your life in computing survival action damages?

A

A widow/widower

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9
Q

Can you recover punitive damages in a wrongful death action?

A

No

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10
Q

What is negligently inflicted economic loss?

A

When someone’s unreasonable conduct has caused purely economic loss to the plaintiff, most jurisdictions will not find a duty in this case

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11
Q

What is the liability of a negligent information supplier?

A

When information is supplied by someone in a negligent way that results in economic injury, there is an exception to the purely pecuniary ban if plaintiff and defendant are in a special relationship

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12
Q

What are some examples of people that can be liable for negligently supplying information?

A

Accountants, auditors, lawyers

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13
Q

How do you often know if a special relationship has been formed between the plaintiff and the defendant to be an exception to the purely pecuniary ban from the negligent supply of information?

A

Often evidenced by contract

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14
Q

When do you most often see liability for the negligent supply of information?

A

When third parties are harmed by defendant’s negligence

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15
Q

What is an example of third-party harm from negligent supply of information?

A

If you hire someone to do an audit on your company, and they do it negligently and show that your company is in good standing, so someone buys stock, and then your company goes bankrupt

16
Q

Because a third person that is injured by the negligent supply of information is not technically in privity with the defendant, what is the split?

A
  • traditional approach: duty only owed to those in privity, or known beneficiaries
  • quasi-privity: duty only to those that are virtually in privity
  • restatement II: duty to those D intended to influence. Followed by most courts
  • foreseeability approach: duty to all foreseeable plaintiffs
17
Q

For the restatement 2 approach to the negligent supply of information, who is included in the people that the defendant intended to influence?

A

The people the information was meant to be given to, but the group doesn’t have to be specifically identified

18
Q

In order for the foreseeability approach to apply to the negligent supply of information, the plaintiff must have received the audit from where?

A

Directly from the defendant’s client for a legitimate business purpose and the client must have intended the audit to influence the plaintiff. This approach is seldom followed

19
Q

Is an attorney liable to nonclient third parties for the negligent dissemination of information?

A

Not usually, unless there was fraud or bad faith, or if the attorney understood that the client’s intent was to benefit a third-party

20
Q

What is breach of duty for negligence?

A

Failure to meet the standard of care that is owed to another

21
Q

Who decides whether there was a breach of duty in negligence?

A

Jury

22
Q

What is the question to ask for a breach determination for negligence?

A

If the defendant’s conduct foreseeably risked some type of harm that should have been avoided

23
Q

What are the steps to proving breach?

A
  • prove what happened either through direct or circumstantial evidence
  • prove the conduct was unreasonable
24
Q

What is direct evidence of what happened for breach in negligence?

A

Something like a ladder rung being broken, or witness testimony

25
Q

What is circumstantial evidence that can prove what happened in a breach for negligence?

A

Something like a slippery substance on the floor

26
Q

Can you introduce evidence of similar incidents as proof of breach of duty?

A

Not unless they occurred under substantially similar circumstances

27
Q

What is the Learned Hand formula of risk calculation?

A

B < PL
If the burden of avoiding the harm is less than the probability of that harm times the seriousness of it, then the defendant has acted unreasonably

28
Q

What do the letters in the learned hand formula stand for?

A

B: burden (interest sacrificed)
P: probability (likelihood of injury)
L: injury (seriousness)

29
Q

What is involved in the probability section of the Learned Hand formula of risk calculation for breach?

A

How likely and foreseeable the harm was

30
Q

If there’s a very small chance of harm, is that usually considered a breach?

A

No

31
Q

If you leave golf clubs out, is that considered a breach?

A

Usually not, because the chance of harm is so small

32
Q

What is involved for injury in the Learned Hand formula for risk calculation for breach?

A

What a reasonable person would foresee and the likely harm (not the actual harm)

33
Q

The more serious the potential injury, the more likely what?

A

That there is a breach

34
Q

What is the burden of avoidance for the Learned Hand risk calculation?

A
  • value of the interest being sacrificed
  • costs associated with avoiding the harm
  • feasibility of alternatives
  • inconvenience
  • value society puts on the risk
35
Q

Liability is imposed when there was a reasonable means to do what in a breach situation?

A

Make the activity safer

36
Q

Sometimes the cost of the safety device makes it impossible to implement a safer alternative, does that mean that liability is still imposed?

A

Not necessarily

Torts FYLSE (61 decks)

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