Torts Flashcards
Definition of neg
failure to heed to a duty of reasonable care to a person whom that duty is owed and causes an injury
Respondeat superior
Respondeat superior – employers are held vicariously liable for employees negligence
Injury - types
physical (bodily and property), emotional distress, loss of wealth
Duty - general
general duty to foreseeable π heaven v pender - duty “to act with reasonable care when pursuing an affirmative action” malfeasance
reasonable foreseeability
a person of ordinary sense would recognize that careless conduct on his part would create a danger to the person or property of another
common law duty to rescue and protect
no duty
exceptions to no duty
- imminent peril caused by ∆ 2. voluntary undertakings - if you start, finish with reasonable care 3. special relationships - rel pre tort gives a duty
invitee
person who goes on the premises of another on the answer to the express or implied invitation of the owner for their mutual advantage o Entitled to reasonable care o there is a Duty to keep premises safe and warn of hidden dangers
licensee
one who enters the property of another on his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner o Entitled to warning of hidden dangers the owner knows or should know about but not reasonable care
trespasser
enters premise without license, invitation or right, intentionally enters property without actual or implied permission o No duty of care is owed except to avoid willful and wanton injury (Extreme departure from ordinary standards of care and must involve a conscience disregard of a known serious danger)
trespasser exceptions (2)
o Limited duty to inform known adult trespassers of risk of physical harm posed by artificial conditions on the land o Attractive Nuisance – children don’t understand the danger of attractive things so there is a duty to protect them from them
rowland factors for a duty
- Foreseeability of harm 2. Degree of certainty that the π suffered the injury 3. Closeness between the ∆s conduct and the injury suffered 4. Moral blame attached to ∆ conduct 5. Policy preventing future harm 6. Extent of the burden to ∆ and community of imposing the duty 7. Availability, cost and prevalence of insurance for the risk associated
pure economic loss
injury that is not accompanied by bodily injury or property damage
generally no duty in pure economic loss because
o Expensive o Low proportionality between the injury and the tort o Heavy burdens would be placed on people and the system because everyone can be harmed by one act
types of pure economic loss claims
- blockages - aikens 2. Damage to person or object π being the 3rd party - hockey 3. Damaged product sold to π by ∆ - Manufacturer doesn’t have a duty for injury to business just to the person 4. bad info 3 Approaches that Prevail 1. NY standard – pro ∆ - π must be in privity of contract with ∆ or have been in mind when report was created 2. Foreseeability analysis – pro π – every foreseeable π 3. Restatement section 552 – mix between 2 – if ∆ intended to benefit from π it creates a duty DOMINANT APPROACH
policy can limit duty: case and reason
strauss, too big to fail
breach - jury instruction standards (3)
- lay 2. professional (need expert) 3. common carrier
breach standard - ordinary person
objective - dont want length of the foot adjudication - menlove wanting stupid person standard EXCEPT sudden incapacaties
breach standard - kids
somewhat subjective - judged on a reasonable child of similar age and circumstance
breach standard - physical disability
somewhat subjective - reasonably blind person
breach standard - mental disability
objective - WHY o Allocating losses between 2 innocent parties to the one who caused the loss o Providing incentive to family members and other guardians of people with mental disabilities to control the behavior of those people o Removing inducements for alleged tort feasors to fake mental disabilities to escape liability o Avoiding administrative problems that are created by requiring courts and juries to identify and asses the significance of the disability o Forcing people with disabilities to pay for damage they cause if they are to live active lives
custom generally
NOT STANDARD FOR BREACH - – conformity to custom and departure from it are treated the same… both may be used as evidence by jury to determine if there was a breach but CANNOT be used on its own - jury decides if its reasonable
med mal - custom
is standard for breach Proof of compliance – through an expert – does establish reasonable care. just needs to prove that he complied with SOME custom in the profession not the custom of the π expert
med mal - expert standards (2)
locality - must be from a SIMILAR locale but need not be from the same community national - holding everyone to same standard
med mal - custom is standard exceptions
helling - eye puff obvious things - myers, walmart, leaving things in patients
med mal - informed consent definition
no problem with the way the services were rendered just that patient was not informed about the risks
med mal - informed consent standards (3)
o Subjective – what individual patient would want to know (patient’s right to self-determination) - Too demanding on physicians – patients can benefit from hindsight o Objective – reasonable physician – professional standard - Too protective of doctors o Objective – prudent patient – what would normal people do? - Middle ground – objective standard as applies to individual patient
med mal - informed consent - exceptions
- unconcious person 2. holding back for paternalistic reasons (jury decides if its okay)
Hand formula
B < PL b - burden p - prob of injury l - extent of injury if its less then not doing it IS a breach
Disproportionate Cost Test
- At the time of the act, the likelihood the conduct would cause the kind of harm π sustained was not probable – no obligation to take precaution against it 2. If risk of harm was not too far-fetched but still really small – obligation to take precaution UNLESS taking them would cause a burden completely disproportionate to the harm 3. Risk was substantial or material then actor was obligated to do everything possible to prevent harm even if it is very expensive
3rd restatement cost benefit analysis
o Foreseeable likelihood o Foreseeable severity of harm might ensue o Burden of precautions to prevent the harm
res ipsa - elements
- Circumstance bespeaks negligence 2. ∆ has control and could have stopped the injury 3. Injury did not arise from acts of carelessness on the part of the π
res ipsa - smoking out
used to induce defendants to provide information concerning accident, lest they all be held liable
actual cause normal test
but for
but for exceptions
- loss of chance 2. multiple nec 3. multiple sufficient (normally just fires)
daubert test
- relevance 2. reliability - was scientific evidence.. - tested - subjected to peer review and publication - rate of error known - accepted by relevant scientific community
toxic torts
present the problem of proving that you got it from the toxin OR there is a general linkage then you must prove that your illness is the instance of the linkage
identification of tortfeasor (2 alt)
- summers – hold all ∆ liable because we KNOW one of them was the cause and neither are innocent 2. market share - dangerous product ∆ will pay however much stake they had in the market of the product when the injury occurred
doomed plaintiff
if they were going to die anyway but your act is the reason for the death happening earlier still liable
proximate cause - definition
fitting of breach to injury
approaches to prox cause (2)
- foreseeability - type of harm reasonably foreseeable during bad conduct 2. scope of risk - Injury must come from what makes the behavior tortious – What happened to the π is in the scope of what could happen because of ∆ bad conduct
prox cause - coming to rest
Liable for risks that stem out of negligence until the conditions are back to normal. If risks happens after they are back to normal it is NOT the proximate cause
superseding cause
always used to defeat liability
intervening cause
If original defendant should have foreseen that the intervening ACT was foreseeable or the kind of harm suffered was foreseeable, defendant’s original negligence is still the proximate cause
dram shop laws
protect bar owners from liability in drunk driving situations
negligence per se
Violating statute = breaching duty relieves the π burden of proving the ∆ breached the ordinary standard
neg per se elements
- violate purpose of statute 2. π must be in protected class of statute
neg per se exceptions
o Youth or physical incapacity o Reasonable efforts by the ∆ to comply with the statute o Justified ignorance of the ∆ as to facts rendering the statute applicable o Excessive vagueness or ambiguity in the statutory standard o Compliance poses a greater threat of danger to π or others than non compliance
apportionment (3 approaches)
neg defense - not borught up until entire prima facie case is satisfied 1. Contributory Negligence: if plaintiff is contributorily negligent at all, no damages awarded at all 2. Pure Comparative Fault: any degree of negligence, no matter how small, does not bar recovery. Even a 5% fault can recover 5% damages o NY has this rule.. no fractional limit 3. Modified Comparative Fault: if plaintiff is more than 50% negligent, you can’t recover at all, but you can recover up to and including 50% (both variations) o “Not as great” if π and ∆ contribution are equal there is no recovery o “Not greater than” if ∆ contribution is greater than π then she can recover
assumption of risk express
contract will it be upheld? • The existence of a duty to the public • Nature of the service performed • Whether the contract was fairly entered into • Whether the intention of the parties is expressed in clean unambiguous language
assumption of risk implied
One can infer from π conduct that she made a certain kind of informed choice that now she loses her chance to complain MUST BE 1. knowing and 2. voluntary
eggshell skull rule
once ∆ harms π they cannot complain that too much damage was done because the π was too fragile
eggshell skull π duty
to mitigate…The ∆ is only liable for the damage that the π could not have stopped by acting reasonably
eggshell psyche
if the injury is only psychological and a reasonable person would not have suffered it then it is not actionable
eggshell jury approaches (2)
permissive - jury can discount injury mandatory - must consider all injuries
compensatory damages
Designed to price the π injuries and are considered an absolute entitlement - Ultimate test is what fairly and reasonably compensates the π
factors for comp damages
- Nature and extent of the injuries - Diminished earning capacities - Economic conditions - π age to help determine lost wages - Comparison to the compensation in other cases with comparable injuries
lawyers litigating comp damages: 2 things they say to juries
- per diem - what would you want to be my client for a day 2. golden rule - what would you want to be payed to be my client permanently
damage elements (4)
past, future, economic, non-economic
collateral source rule
Juries can not be told about the πs compensation from another source (normally insurance company) for the same injuries - NY eliminated this for med mal suits
punitive damages
meant to punish the ∆, only available where ∆ was wanton or willfull in harming the π - mere or gross negligence is not enough
constitutional limits on punitive damages
gore 1. degree of reprehensibility 2. ratio to comp damages 3. sanctions for comparable conduct
punitive damages - wealth
wealth of π is never considered - ∆ is considered to make sure they feel the blow of the pun
strict liability elements and def
- unusual act 2. causation of harm Notwithstanding the innocence of the ∆ we should hold him liable anyway because of the condemnation of the result
strict liability carnis test
non-natural use of land
strict liability 2nd restatement abnormally dangerous
a. High degree of risk to person or land b. Harm results will be great c. Inability to eliminate the risk by reasonable care d. Not a common usage e. Inappropriateness of the activity at the place f. Value to community *Any one of these not sufficient, several necessary for strict liability.
strict liability 3rd restatement abnormally dangerous
1.Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors 2.Is not one of common usage
products liability elements
- P injured 2. A sold the product 3. A is a commercial seller of such products 4. At the time it was sold, it was in defective condition 5. The defect was an actual and proximate cause of Ps injury
products liability 2nd restatement
- One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate consumer or to his property if: a. The seller is engaged in the business of selling the product, and b .It is expected to and does reach the user or consumer without substantial change in the condition which it is sold 2.The rule stated in subsection (1) applies although a. The seller has exercised all possible care in the preparation and sale of the product, and b.The user or consumer has not bought the product from or entered into any contractual relation with the seller
products liability 3rd restatement
One is engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm caused by the defect
traynor reasons for strict product liability
a. Manufacturers owe consumers to be vigilant of product safety b. Manufacturers are best situated to take precautions (deterrence) c. Manufacturers can spread costs of accidental injuries d. Marketing the product is enough don’t need negligence e. Victim’s entitlement doesn’t depend on nature of conduct that caused it f. Analysis of disparities in power in litigation g. More open and direct law structure is preferable
implied warranty of merchantablilty
promise that the goods are safe and fit for ordinary use
express warranty
verbal, written, formal promise
manufacturing defect
diverges from the manufacturers own specifications for the product
design defect - factors juries consider
Factors that help juries decide if there was a design defect 1. Significance of risks of physical injury posed by particular design 2. How ordinary consumers would expect product to function 3. Whether there is feasible, safer, affordable alterative
design defect - risk utility
– utility of product outweighs its inherent danger 1. utility as a whole 2. utility to an individual user 3. likelihood the product will cause injury 4. Availability of a safer design 5. Possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced 6. Degree of awareness of the products potential danger that can be reasonably attributed to the injured user 7. Manufacturers ability to spread the costs of any safety related design changes
design defect consumer expectations
defective a product must be dangerous to an extent beyond which would be ordinarily contemplated by the ordinary consumer
failure to warn and protect
defective for a lack of adequate warnings when safety requires that the product be sold with a warning mislabeled product would apply
failure to warn and protect - learned intermediary doctrine
warning doesn’t have to go directly to the consumer, Manufacturer discharges the duty to warn by warning the doctorate and not the ultimate consumers because the doctor is better suited to decide what to do with the warning EXCEPT: birth control and when advertising right to consumer
overpromotion
- motus 2. justice department - drug companies cannot advertise for off label prescribing
trespass prima facie
- Actor set out to make contact with the land 2. Did make contact
trespass - contact with land
Contact with land = 1. Entering land 2. Remaining on land 3. Put object on land, and refuse to remove it
trespass above or below
- Air space – 2nd restatement - 50ft = trespassing, 500ft = not, 150ft = for the court - Underground – generally dealt with through contract
trespass - Minor intrusions
are actionable (even if there is no injury to the land). Punish because we have the exclusive right to our own property… SO there may be punitive damages where there are no compensatory
battery prima facie
- A acts 2. Intending to cause a contact with P 3. Of a type that is harmful or offensive; and 4. A’s act causes such a contact
battery contact
can be direct or indirect or something you are holding
battery offensive
objective test – must violate prevailing social norms of acceptable touchings
assault prima facie
- A acts 2. Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; and 3. A’s act causes P reasonably to apprehend such a contact
false imprisonment prima facie
- A acts 2. Intending to confine P 3. A’s act causes P to be confined, and 4. P is aware of confinement
false imprisonment negligent confinement
does not need to prove mental element (good for P), but injury must be real (bad for P)
defenses to intentional torts - consent
consent necessity self defense or of others recapture of property
transferred intent (3 ways)
- Same victim different tort 2. Across victims 3. Different victim different tort – shot some one, and someone else in the room thought they would be shot… battery for who you shot and assault to the other
IIED elements
- outrageous conduct
- severe distress - doesnt have to be physical
IIED outragous def and factors
conduct that exceeds all bounds of decency tolerated in a civilized socety
- power disparty
- repetitive conduct
- public rather than private
- knowlege if vulerabiity
NIED elements
- physical mainfestiation
- impact rule/ zone of danger
