Torts Flashcards

1
Q

elements to prove an intentional tort

A

P must prove:
1)act, tortious conduct
2) intent, requisite mental state, and
3) causation

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2
Q

intent for intentional torts

A

1) actor acts with the purpose of causing the consequence, or
2) actor knows that the consequence is going to come about to a substantial likelihood

children/mentally incompetent person can be held liable

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3
Q

Battery

A

D causes: must result in contact
1) harmful or offensive contact
i)harmful: causes injury, pain, or illness
ii)Offensive: person of ordinary sensibilities would find it offensive
person doesnt need to be aware of it
iii) contact: need not be direct

2) with the person of another, and
includes anything connected to Ps person

3)acts with the intent to cause that contact or the apprehension of that contact
what has to be intended is the contact, not the offense

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4
Q

transferred intent for intentional torts

A

when the intent to commit one tort satisfies the required intent for a different tort
1) different tort against same person
2) same tort against different person
3) different tort against different person

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5
Q

Damages for battery

A

no proof of actual harm is required: can recover nominal damages

eggshell P rule: liable for all harm that flow, even if worse than expected

many states allow punitive if D acted:
outrageously or,
with malice

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6
Q

consent defense to battery

A

no batter if there is express or implied consent

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7
Q

Assault

A

1)causes reasonable apprehension
P must be aware of Ds action

2) of imminent harmful or offensive conduct
must be without significant delay- future harm is not sufficient

3)D intends to cause apprehension of such contact or to cause such contact itself

***mere words without more do not constitute an assault

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8
Q

damages for assault

A

no proof of actual damages required- nominal
punitive may be available

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9
Q

Intentional Infliction of Emotional Distress

A

D intentionally or recklessly engages in extreme and outrageous conduct that cause P severe emotional distress

extreme and outrageous conduct: exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society
more likely if
1)position of authority/influence
2) p is a member of a group that has heightened sensitivity

causation: Ds actions must be a cause in fact of Ps harm

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10
Q

IIED and Public figures

A

public figures must show that the words contain a false statement of facts that was made with actual malice: knowledge that the statement was false or with reckless disregard of its potential falsity

The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct is speech in the context of a matter of public concern

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11
Q

IIED and Conduct toward 3rd parties

A

If the defendant directs extreme and outrageous conduct toward one party and a different party experiences severe emotional distress because of that conduct, the doctrine of transferred intent may apply, but only in certain circumstances:
1)Related bystanders: An immediate family member of the victim who is present at the time of the conduct and contemporaneously perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress

2) Ds Purpose: If the defendant’s purpose in harming an individual is to cause severe emotional distress to a third party, the third party can recover for IIED without showing that he was a close family member of the harmed individual or that he contemporaneously perceived the conduct.

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12
Q

Damages for IIED

A

P must prove severe emotional distress beyond what a reasonable person should endure

hypersensitivity: only applies if D knew about it

Physical injury not required

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13
Q

False imprisonment

A

1)D intends to confine or restrain another within fixed boundaries
2) The actions directly or indirectly result from the confinement, and
3) P is conscious of the confinement or harmed by it

time of confinement: immaterial

Intent
D must act:
1)with the purpose of confining the P, or
2) knowing that Ps confinement is substantially certain to result
not liable for confinement due to Ds negligence

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14
Q

methods of confinement for false imprisonment and the exception

A

use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
*may be false imprisonment when D refused to perform a duty to help someone escape

Merchant’s privilege: a merchant can, for a reasonable time and in a reasonable manner detain a suspected shoplifter

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15
Q

False imprisonment damages

A

P can recover nominal damages
actual damages are also compensable

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16
Q

defenses to intentional torts

A

actual consent
presumed consent
self-defense
defense of others
defense of property
parental discipline
privilege of arrest

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17
Q

actual consent defense to intentional

A

P by words or actions manifests the willingness to submit to Ds conduct
conduct may not exceed the scope of consent

consent by mistake: valid unless D cause mistake or knew of it and took advantage

consent by fraud: invalid if it goes to an essential matter

capacity matters

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18
Q

presumed consent as defense to intentional

A

P is silent but in context their silence and continued participation can reasonably be construed as consent

1)emergencies: fair to assume that someone in need of rescuing would allow rescuer to touch
2)injuries arising from athletic contests- within the scope
3) mutual consent to combat

capacity matters

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19
Q

self defense for intentional

A

force that is proportionate to defend against an offensive contact
duty to retreat not a thing anymore

initial aggressor: not permitted to claim unless the other party has responded to nondeadly force with deadly force

injuries to bystanders: not liable for these injuries as long as the injury was accidental and the actor was not negligent toward bystander

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20
Q

defense of others for intentional

A

may use reasonable force in defense of others if that person would be entitled to use self-defense

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21
Q

Defense of property

A

reasonable force may be used if the person reasonably believe it is necessary
deadly force cannot be used for property

recapture of chattels:
1) reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you request its return, unless that would be futile
2)if original taking was lawful: only peaceful means may be used

cannot use force to regain possession of land, only legal process

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22
Q

parental discipline

A

parents may use reasonable force as necessary to discipline children

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23
Q

Privilege of arrest

A

Private citizens
Permitted to use reasonable force to make an arrest for felonies if:
1)the felony has actually been committed, and
2)the arresting party has reasonable grounds to suspect that the person being arrested has committed the felony
**not a defense if there is a mistake as to whether this was the person or if a felony actually occurred

Police
must reasonably believe that a felony has been committed and that the person arrested committed it
allowed to make a mistake as to whether a felony has been committed

misdemeanor
1)arrest by officer may only be made if the misdemeanor was committed in the officer’s presence
2) arrest by private person may only be made if there is a breach of peace

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24
Q

trespass to chattels

A

an intentional interference with Ps right to possess personal property by:
1) dispossessing the P of the chattel
2)using or intermeddling with Ps chattel, or
3) damaging the chattel

intent: only the intent to do the interfering act is necessary, do not need to intend to interfere
*mistake of law is not a defense

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trespass to chattels damages
1)dispossession or damage: actual damages, damages resulting from loss of use, nominal damages, cost of repair 2) use or intermeddling: may only recover actual damages
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conversion
intentionally committing an act depriving the P of possession of his chattel or interfering with the Ps chattel in a manner so serious as to deprive the P entirely of the use of the chattel Intent: must only intend to commit act that interferes **mistake of law/fact not a defense
27
conversion damages
can recover the chattel's full value at the time of the conversion
28
trespass to chattels v. conversion
courts consider the following factors: 1)duration/extent of interference 2)D's intent to assert a right inconsistent with the rightful possessor 3) D's good faith 4) expense or inconvenience to P, and 5) extent of the harm **more extreme more likely to be conversion
29
trespass to land
D intentionally causes a physical invasion of someone's land intent: need only have the intent to enter the land mistake of fact is not a defense physical invasion includes causing objects to invade the land rightful P: anyone in possession can bring an action
30
trespass v. nuisance
trespass: always involves an actual physical intrusion upon the land nuisance: may or may not involve a physical intrusion
31
damages for trespass
no proof of actual damages is required
32
necessity as a defense to trespass
generally available to a person who enters onto someone else's land or interferes with that individual's personal property to prevent injury/ other severe harm private necessity: D not liable for nominal but liable for actual landowner may not use force to exclude public necessity: private property is intruded upon/destroyed when necessary to protect a large number of people from a public calamity not liable for damages
33
two types of nuisance
private nuisance public nuisance
34
private nuisance
an activity that substantially and unreasonably interferes with another's use and enjoyment of land must be annoying to an ordinary, reasonable person: objective courts will balance the interference with the utility of the nuisance not a nuisance: blocking of sunlight or the obstruction of view exception: if it is out of spite
35
defenses to private nuisance
1)compliance with state or local administrative regulation not a complete defense- just evidence 2)coming to the nuisance courts are hesitant to find a nuisance if you moved somewhere knowing about that conduct- but just a factor, not a complete defense
36
public nuisance
an unreasonable interference with a right common to the public as a whole who can bring action: 1)public official can bring on behalf of the public to abate the nuisance 2) private individual can only bring if suffered special harm that is different from the general public
37
elements of negligence
1)duty: obligation toward another party 2)breach: failure to meet that obligation 3)causation: cause in fact and proximate cause 4) damages: the loss suffered
38
duty
a legal obligation to act in a certain way two aspects: is there a duty what is the nature of that duty- standard of care
39
general principals regarding duty
owed to all persons who may foreseeably be injured by Ds course of conduct generally no duty to act affirmatively
40
scope of duty
1)foreseeability of harm alone does not create a duty 2) foreseeability of plaintiff no liability to an unforeseeable P Majority approach (Cardozo): whether the P is a member of the class of persons who might be foreseeably harmed by the conduct Minority view (restatement) any time conduct could harm someone, there is a duty to everyone
41
special categories of Ps for duty
rescuers: a person who comes to the aid of another is a foreseeable victim of the original negligent conduct crime victims: considered foreseeable Ps in certain circumstances
42
affirmative duty to act
generally there is no duty exceptions: 1)assumption of duty: a person who voluntarily aids/rescues another has a duty of reasonable care in the performance of that aid 2)placing another in danger 3) by authority: person with ability and actual authority to control another has a duty to exercise reasonable care ex.: parent/child warden/prisoner 4) by relationship; D has special relationship with P- must use reasonable care ex.: common carrier/passenger, innkeeper/guest
43
standard of care
objective standard: reasonably prudent person under the circumstances mental characteristics are not taken into account but physical conditions are intoxication: held to same standard unless intoxication was involuntary children: reasonable child of similar age, intelligence, and experience exception: adult activities
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standards of care for specific situations
1) common carriers and innkeepers: traditional: utmost care majority of courts hold common carrier to higher standard but not negligence 2)Automobile drivers: general duty 3) Bailors: bailor must warn a gratuitous bailee of a known condition 4) emergency situations: reasonable person under the same circumstances
45
possessors of land standard of care- two types
two approaches Traditional structure: tripartite Modern (california way)
46
Traditional approach for standard of care for possessors of land
Invitees: comes into the land for economic purpose duty of reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect invitee Licensees: enters the land with express/implied permission duty to either make the property reasonably safe or warn licensees of hidden dangers Trespassers: no duty exception: refrain from willful, wonton, intentional, reckless misconduct discovered trespassers: duty to warn from hidden dangers flagrant trespassers (some states): lesser duty
47
Attractive nuisance doctrine
may be liable for injuries to children trespassing on the land if: 1)an artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass 2)land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death/serious bodily harm 3) children, because of their age, do not discover/cannot appreciate the danger 4) utility of maintaining the condition is slight compared to the risk of injury, and 5) the land possessor fails to exercise reasonable care
48
california way for standard of care for land possessors
Some states: reasonable standard under all the circumstances for all entrants- circumstances include the reason the person is on the property Restatement: reasonable care under the circumstances, except flagrant trespassers- cant acted in an intentional, willful, or wanton manner to cause physical harm
49
landlord tenant duty of care
landlord must: 1) maintain safe common areas 2) warn of hidden dangers, and 3) repair hazardous conditions tenant remains liable for injuries arising from conditions within their control
50
standard of care for off-premises victim
land possessor not liable for injuries resulting from natural conditions Artificial conditions- must prevent unreasonable risk of harm to persons not on the premises
51
breach of duty generally
a violation of the standard of care 1)traditional approach: what a reasonably prudent person would do under the circumstances 2) cost benefit analysis: Burden versus probability of harm X severity of loss
52
breach of duty for customs
generally evidence of a custom is admissible but not dispositive professionals: lawyers, doctors, accountants, electricians admissible and dispositive compliance-no breach deviation from custom- did breach physicians modern trend: national standard informed consent: doctor must explain risks and patient must give informed consent not required if: 1)risks are commonly know 2)patient is unconscious 3) patient waives/refuses info 4) patient is incompetent, or 5) patient would be harmed by disclosure
53
negligence per se elements
1) a criminal law/regulatory statute imposes a particular duty for the protection/benefit of others 2) D violated the statute 3) P must be in the class of people intended to be protected by statute 4) accident must be the kind that the statute was intended to protect against, and 5) the harm was caused by a violation of the statute
54
defense to negligence per se
excuse 1)complying would be even more dangerous than violating 2)compliance was impossible or emergency justified violation 3)incapacity 4)exercised reasonable care in trying to comply 5) vagueness
55
Res ipsa loquitur and its elements
happens when circumstantial evidence of negligence is sufficient traditional elements: 1) accident was of a kind that does not ordinarily occur in the absence of negligence 2) it was caused by an agent or instrumentality within the exclusive control of the D, and 3) it was not due to any action on the part of P Modern trend: applies elements generously- accident is a type of accident that ordinarily happens as a result of negligence of a class of actors, and D is a member of that class
56
medical malpractice and res ipsa
In cases in which medical personnel acted negligently to harm a patient, a small number of jurisdictions shift the burden by holding ALL defendants jointly and severally liable unless they can exonerate themselves.
57
products liability and res ipsa
Many courts ignore the exclusivity requirement when it is clear that the defect originated upstream of the package’s wrapping.
58
comparative fault jurisdictions and res ipsa
Many comparative-fault jurisdictions (discussed later) loosely apply the third element (i.e., that the harm was not caused by any action by the plaintiff).
59
procedural effect of res ipsa
Creates a permissible inference that allows the case to go to the jury Jury may infer negligence, but need not
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two components of causation
cause in fact proximate cause
61
cause in fact
But for test: P must show that the injury would not have occurred but for D's negligence gets tricky if there are multiple or indeterminate causes of the injury
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common problematic circumstances for determining cause
multiple tortfeasors multiple possible causes loss of chance
63
substantial factor test for cause
Used when there are conceptual problems with causation due to multiple causes Test: Was defendant’s tortious conduct a “substantial factor” in causing the harm? “Multiple sufficient causes” doctrine (Third Restatement)
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alternative causation
Plaintiff’s harm was caused by only one of a few defendants (usually two) and each was negligent, and it cannot be determined which one caused the harm. Courts will shift the burden of proof to the defendants—will impose joint and several liability on both unless one can show he did not cause the harm
65
concert of action with cause
if two+ tortfeasors were acting together collectively and that causes Ps harm, then all Ds will be jointly and severally liable
66
Loss of chance of recovery
for medical misdiagnosis If a physician negligently reduces the plaintiff’s chance of survival, then that plaintiff can recover for the lost chance of recovery. Plaintiffs cannot recover full damages; but can recover the portion that represents their lost chance of survival
67
scope of liability and foreseeability of cause
person is liable for the kinds of risks that made her conduct negligent the issue is whether the injury that occurred was within the scope of Ds breach majority rule: no liability for an unforeseeable type of harm
68
intervening v. superseding cause
intervening: did not break the chain of liability superseding: broke the chain of causation whether the injury is within the scope of what made the conduct negligent in the first place third party criminal acts may or may not break the chain
69
foreseeability of the extent of damages
D is liable for the full extent of Ps injuries, even if the extent is unusual or unforeseeable the type of damages must be foreseeable
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types of damages for negligence
compensatory punitive
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compensatory damages for negligence
purpose is to make the P whole again: can include cost of physical injuries and emotional damages Personal injury: 1)medical expenses, both past and future 2) lost income and reduced earning capacity 3)pain and suffering, both past and future Property damage may recover the difference in the market value of the property before and after the injury may allow cost of repair or replacement value Mitigation: P must take reasonable steps to mitigate- more of a limitation on recovery
72
collateral source rule
benefits/payments to P from outside sources are not credited against the liability of any tortfeasor: evidence of such payments is not admissible Modern trend: most states have passed statutes that eliminate or substantially modify it to avoid double recoveryp
73
punitive damages for negligence
Purpose is to punish and deter future conduct if D acted willfully, wantonly, recklessly or with malice may be limited by statute: SC- usually should be within a single digit ratio of any compensatory damages
74
Negligent infliction of emotional distress
times when P can recover absent physical injury 1) Zone of Danger i)P was within the zone of danger of the threatened physical impact, and ii) the threat of physical impact caused emotional distress 2)Bystander recover i) is closely related to the person injured ii)was present at the scene of the injury, and iii) personally observed the injury 3)Special relationship i) negligent mishandling of a corpse ii) negligent medical info- like misdiagnosis ***most jurisdictions require some physical manifestation of distress: nausea, insomnia
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Negligence recovery of economic loss
A P who suffers only economic loss without any related personal injury or property damage cannot recover in negligence put if can prove PI or property damage, then can recover economic damage
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loss of consortium
allows for loss arising from injury to a family member typically spouse can claim loss of consortium or companionship
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Survival Action
Brought by a representative of the decedent’s estate on behalf of the decedent for claims that the decedent would have had at the time of the decedent’s death Claims include damages resulting from personal injury or property damage
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Wrongful death action
Brought by the decedent's spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent's death can include loss of economic support and loss of consortium
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Wrongful Life and Birth Claims
Wrongful Life Claim by child for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect ***A few states permit a “wrongful life” action, but they limit the child’s recovery to special damages attributable to the disability Wrongful Birth Claim by parent for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect Many states do permit recovery for the medical expenses of labor as well as for pain and suffering. In the case of a child with a disability, may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well
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vicarious liability
when one person is held liable for another person's negligence joint and several liability: original tortfeasor is still held liable as well indemnification: party held vicariously liable may seek indemnification from the party who was directly responsible
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respondeat superior
employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of employment scope of employment detour: minor deviation, employer is liable frolic: major deviation, employer not liable generally employers are not liable for the intentional torts of employees exception: conduct within scope of employment
82
vicarious liability for independent contractors
generally employers are not liable when liable: 1)non delegable duties: i)inherently dangerous activities ii) duties to the public or specific plaintiffs, for certain types of work, such as construction work iii) shopkeepers have a duty to keep premises safe for the public 2)apparent agency doctrine IC will be treated as an employee if: i)injured person accepted the ICs services based on a reasonable belief that the IC was an employee, based on manifestations from the putative employer, and ii) The ICs negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability
83
vicarious liability and business partners
can be liable for the torts of other business partners committed within the scope of the business's purpose
84
vicariously liability and automobile owners
1) negligent entrustment: owner can be directly liable for negligently entrusting a vehicle or other dangerous object to someone who is not in the position to exercise reasonable care 2) Family-purpose doctrine: owner may be vicariously liable for the tortious acts of any family member driving the car with permission 3) owner liability statutes: may be vicariously liable for the tortious acts of anyone driving the car with permission
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vicariously liable and parents and children
General rule: parents generally are not vicariously liable for their minor children's torts Negligence of parents: parents can be liable for their own negligence with respect to their children's conduct
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Dram shop vicarious liability
1) commercial establishments Holds bartenders, bar owners, and servers liable for injuries caused when people drink too much alcohol and injure third parties In many states, liability is limited to serving minors or people who are visibly intoxicated 2) social hosts Liability for serving alcohol to a guest who is then injured or injures another Statutes vary and often limit liability to serving alcohol to a minor
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Federal and State Gov immunities from tort liability
Traditionally, state and federal governments were completely immune from tort liability-Immunity has been waived by statutes. Fed Gov Federal Tort claims act: expressly waives immunity and allows the fed gov to be sued for certain kinds of torts There are exceptions to this waiver of immunity (i.e., situations in which the federal government maintains immunity), including discretionary functions, traditional governmental activities, and certain enumerated torts. State govs and municipalities Most states have waived immunity to some extent. Municipalities are generally governed by the state tort claims statute. Governmental v. proprietary functions: * Governmental functions (e.g., police, court system)—immunity applies * Proprietary functions (often performed by a private company, e.g., utilities, parking lots)—immunity waived gov officials discretionary functions: immunity applies ministerial functions: no immunity Westfall Act—precludes any personal liability on the part of a federal employee under state tort law.
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Intra family immunities from torts
largely eliminated; a family member can be sued for negligently injuring another family member Core parenting activities—immunity still applies
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Charitable immunity from torts
eliminated in most states, though some states still limit recovery
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application of joint and several liability
two or more Ds are each liable for a single and indivisible harm to the P, each D is subject to liability to the P for entire harm Applications: 1) two+ tortfeasors 2) tortfeasors are acting in concert 3)alternative liability 4) res ispa loquitur used against multiple Ds 5) vicarious liability *Multiple defendants can be held jointly and severally liable, even if a jury apportions each defendant a different percentage of fault. *Some jurisdictions limit a defendant’s joint liability if he is less than 10% at fault. The defendant will be liable only for his share of fault.
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