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Torts 2 > Torts 2 > Flashcards

Torts 2 Flashcards

1
Q

Name the three basic types of damages and
explain the purpose for each one

A
  1. Nominal: to vindicate P’s rights
  2. Compensatory: financial equivalent of
    loss/to make P whole again
  3. Punitive: to punish and deter
    wrongdoer
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2
Q

What must P prove as a prerequisite to obtaining pain and suffering?

A

Consciousness

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3
Q

What is the standard for getting a remittitur?

A

The jury damage award exceeds the highest amount the jury could have reasonably come up with based on the evidence

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4
Q

What factors does the court consider when determining whether a P who is suffering from a permanent personal injury failed to mitigate P’s damages?

A
  1. Risk (most important)
  2. Probability of success
  3. Money or effort
  4. Pain (some courts)
  5. Public Policy
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5
Q

What are the 3 methods used to calculate a beneficiary’s pecuniary losses in a worngful death claim.

A
  1. Loss to dependents
  2. Loss to the estate
  3. Lost inheritance
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6
Q

Explain Loss to dependents

A

Pecuniary losses are measured by the financial support the decedent was giving the beneficiary before death
(i.e., the value of bills paid and services rendered)

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7
Q

Explain Loss to the estate

A

Pecuniary losses are based on what the decedent would have earned in a normal lifetime (had decedent not prematurely died) minus what the decedent would have spent to maintain themself

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8
Q

Explain loss to inheritence

A

Pecuniary losses are based on a hybrid of loss to dependents and loss to the estate

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9
Q

What are the 3 methods that can be used to calculate general compensatory damages for property that fluctuates in value

A
  1. Time of loss theory
  2. Rule of highest intermediate value
  3. Highest replacement value rule
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10
Q

Explain time of loss theory

A

P recovers the fair market value of goods at the time and place of the loss

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11
Q

Explain rule of highest intermediate value

A

P recovers damages based on the highest value of the goods have reached during the period from the time of the wrong until the time of trial (or date P files suit)

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12
Q

Explain Highest replacement value rule

A

(aka NY rule)
P recovers the highest value the goods have reached between time P learns of the loss and could have reasonably replaced

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13
Q

Frolic

A

does NOT fall within the scope of Respondeat superior because it’s considered both “personal business” and a substantial deviation from the employment

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14
Q

Detour

A

falls within scope of respondeat superior because its considered sufficiently related to the employment

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15
Q

Slight Deviation rule

A

if an employee wholly abandons - even temporarily - the employer’s business for personal reasons, the employer is not liable under respondeat superior for any act that occurs during that lapse

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16
Q

Exceptions when an employer liable even when independent contractor used

A
  1. The landowner (or principal) retains control of the manner and means of the doing of work which is subject to the contract
  2. Incompetent contractor
  3. activity is inherently dangerous
  4. illegal activities
  5. Agents with apparent authority
  6. Non-delegable duties (safety statutes)
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17
Q

Vicarious Liability

A

the liability of a person or entity not at fault, for the torts of another person or entity

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18
Q

Types of Vicarious Liability relationships

A
  1. Respondeat Superior
  2. Independent contractor
  3. Joint enterprise
  4. Bailment
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19
Q

Is vicarious liability a form of strict liability?

A

Yes.

Liability does not depend on negligence or intent to harm.

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20
Q

5 factors to determine if person is an employee

A
  1. engaged in distinct operations of business
  2. skill required for the job
  3. time employed
  4. method of payment
  5. parties believe they are creating relationship
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21
Q

5 Factors to determine employee working within scope of employment

A
  1. act commonly done by employees
  2. there were previous relations between employer and employee
  3. employer had reason to expect such act to be done
  4. similarity between act done and act authorized
  5. act is seriously criminal
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22
Q

What is the common law standard for determining if punitive damages are appropriate?

A

common law malice: ill will, bad motive

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23
Q

8 Factors courts use to determine if the standard for punitive damages has been met in PL

A
  1. how great was the danger that the D exposed public to?
  2. cost or feasibility of reducing that danger?
  3. manufacturer’s awareness of the danger, magnitude of danger, and feasible alternative?
  4. nature and duration of, and reasons for, manufacturer’s failure to act appropriately to discover and reduce danger?
  5. extent to which manufacturer purposely created danger?
  6. extent to which D is subject to a federal safety regulation?
  7. probability damages might be awarded against D in other cases?
  8. amount of time that has passed since the action occured?
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24
Q

What are the 3 guideposts used to determine if a punitive damages award is grossly excessive, and, thus, violates D’s right to due process.

A
  1. Reprehensibility
  2. the ratio between compensatory and punitive: multipliers < 10 are more likely to comport with due process
  3. compare and contrast the punitive damages award with civil penalties in similar cases
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25
Q

Employer

A

an employer is a principal who employs an agent to perform services in his affairs and who controls or has the right to control the physical conduct of the other who performs the service

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26
Q

Employee

A

an employee is an agent employed by an employer to perform service in the employer’s affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the employer

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27
Q

Independent Contractor

A

a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking

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28
Q

6 Factors used to determine if an employee was engaged in a slight or substantial deviation.

A
  1. employees intent
  2. Nature, time, and place of deviation
  3. time consumed in deviation
  4. the work for which the employee was hired
  5. the incidental acts reasonably expected by the employer
  6. the freedom allowed the employee in performing his job responsibilities
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29
Q

Manufacturing defect

A

a product contains a manufacturing defect when it disappoints consumer expectations by straying from its intended design

30
Q

Design defect

A

a product contains a design defect when the foreseeable risk(s) of harm posed by the product could’ve been reduced or avoided by adopting reasonable alternative design (RAD), and the omission of the RAD makes the product unreasonably dangerous

31
Q

Warning defect

A

a product contains a warning defect when the foreseeable risk(s) of harm posed by the product could’ve been reduced or avoided by providing reasonable instructions or warnings, and the omission of the instructions or warnings makes the product unreasonably dangerous

32
Q

Wade Risk/Utility test - 7 factors

A
  1. usefulness and desirability of product
  2. probability and magnitude of potential injury
  3. availability of substitutes
  4. manufacturer’s ability to eliminate the unsafe character
  5. user’s ability to avoid the danger
  6. user’s awareness of the danger
  7. manufacturer’s ability to spread the loss
33
Q

Learned intermediary rule

A

a prescription drug manufacturer has a duty to warn the prescribing physician of its product and it’s the physician’s duty to convey that warning to the patient.

this rule applies to prescription drugs, as well as medical devices and bodily implants that are usually accompanied by medical advice and supervision

34
Q

3 Exceptions to Learned intermediary rule

A
  1. Mass inoculations and other instances of unsupervised dispensation of prescription drug
  2. birth control prescriptions and devices
  3. when prescription drugs are advertised directly to the consumer
35
Q

Define a “used product”
(as in used in product liability law)

A

a product that is used for some period of time and then commercially sold or otherwise distributed to a buyer that is NOT in the commercial chain of distribution

36
Q

3 things that can make a warning unreasonable (i.e, defective)

A
  1. warning isn’t displayed in a way as to reasonably catch the attention of the person(s) expected to use the product
  2. warning fails to fairly apprise a reasonable user of the nature and extent of danger
  3. warning fails to instruct the user how to use the product in a way that avoids danger
37
Q

Elements of a joint enterprise

A
  1. An agreement, express or implied, among members of the group
  2. a common purpose to be carried out by the group
  3. a community of pecuniary interest in that purpose among the members
  4. an equal right to a voice in the direction of the enterprise, which gives an equal right of control
38
Q

Common law rule regarding the vicarious liability of bailors for the torts of their bailees

A

Bailors are not vicariously liable for the torts of their bailees.

39
Q

Two exceptions to the common law rule regarding the vicarious liability of bailors?

A
  1. family purpose doctrine
  2. owner consent statutes
40
Q

Family purpose doctrine

A

The family purpose doctrine holds a vehicle owner liable for damages caused by their family members when they use their vehicle. The owner does not have to give permission; the doctrine holds that the owner should have control over their vehicle similarly to firearms because of the dangers they pose.

41
Q

Owner Consent statutes

A

?

42
Q

Contribution

A

an equitable remedy whereby one who is jointly liable with another tortfeaser may recover from the other tortfeasor any amounts he has paid to P in excess of his “fair share”

43
Q

Indemnity

A

an equitable remedy where a tortfeasor is entitled to full reimbursement from another joint tortfeasor for amounts he has paid P for liability. The basis of a right to indemnity is that the tortfeasor asserting the right has only a derivative liability based on the misconduct of the other joint tortfeasor, with whom he has a relationship.

44
Q

Restatement (2d) 402A elements

A
  1. D was in the business of selling the product
  2. D sold or otherwise supplied the product in question
  3. product was expected to and did reach P wthout substantial change (i.e., product was defective when it left D’s hads)
  4. product’s defect was the cause of P’s physical harm
45
Q

Product

A

a tangible personal property distributed for use or consumption

46
Q

Wild animal

A

an animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept

47
Q

Domestic animal

A

animal that is by custom devoted to the serivce of mankind at the time and in the palce in which it is kept

48
Q

Domestic animal

A

animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept

49
Q

6 Factors used to determine whether an activity is abnormally dangerous

A
  1. existence of high degree of risk of some harm to the person, land, or chattels of others
  2. likelihood that the harm results form will be great
  3. inability to eliminate the risk by the exercise of reasonable care
  4. extent to which the activity is not a matter of common usage
  5. inappropriateness of the activity to the place where it is carried on
  6. extent to which its value to the community is outweighed by its dangerous attributes
50
Q

Elements of fraudulent Misrepresentation

A
  1. An intentional misrepresentation
  2. of fact
  3. that is material and
  4. intended to induce and
  5. does induce justifiable reliance and
  6. causes P’s harm
51
Q

Opinion

A

a statement that cannot be proven true or false.

it is a statement that expresses only:
(a) the belief of the maker, without certainty as to the existence of a fact, or
(b) the maker’s judgment as to quality and value

52
Q

Absent a statute, when does a party to a
business transaction owe a duty to disclose?

A
  1. When there is a fiduciary relationship;
  2. When matters known to him are
    needed to prevent his partial or
    ambiguous statements of the facts
    from being misleading;
  3. When he acquires information that he
    knows will make untrue previous
    misrepresentations that were true or
    believed to be true at the time he
    made them;
  4. When he learns that a false
    representation not made in the belief
    it would be acted upon will be relied
    upon by the other party;
  5. If he knows the other party is about
    to enter a transaction under a
    mistake as to facts basic to the
    transaction and where the other,
    because of the relationship, would
    expect a disclosure of those facts.
53
Q

Justifiable reliance

A

a subjective standard that considers the particular P’s level of intelligence, background, experiences, etc., and circumstances if the particular case, when determining if P depended on D;s misrepresentation when making their decision to enter a transaction

54
Q

Materiality (or when is a matter material)

A
  1. it is something that a reasonable person would attach importance to when determining their choice of action regarding the transaction in question, or
  2. the maker of the representation knows or as reason to know that its recipient regards (or likely to regard) the matter as important in determining their choice of action, although the reasonable person would not regard it as so
55
Q

When does a defendant owe a duty of care to a third party (i.e., someone D is not in privity of contract with) for negligent
misrepresentation?

A
  1. “New York” aka “Ultramares” aka “Near Privity” Test: When the D knows (a) the identity of the specific person who will be using the information, (b) the specific purpose for which that specific person will be using the information, and (c) the D has had actual contact with them.
  2. Restatement Test: When the D intends to supply the information to a small group of which the P is a member, or if D knows their client will do so.
  3. Foreseeability Test: The D owes a duty to those who will foreseeably rely on the information (2 states).
56
Q

What kind of damages may a successful plaintiff recover in a fraud claim?

A

Compensatory Damages
1. General damages measured by either using the out-of-pocket measure or the benefit-of-the-bargain measure (depending on the jurisdiction):
a. Out of pocket = the price paid minus actual value of what the P received
b. Benefit of the bargain = the value of the object as represented minus its actual value.
2. Consequential damages (i.e., indirect losses sustained because of the misrepresentation)

Punitive Damages

57
Q

Defamatory communication

A

A communication that tends to harm the
reputation of another so as to lower them in
the estimation of the community or to deter
third persons from associating or dealing
with them. (WEEK 10)

58
Q

Publication

A
  1. D intentionally or negligently disclosed the defamatory communincation to a thrid person (i.e., someone other than the person being defamed, and
  2. the third person both
59
Q

Res 2d 402A

A
  1. 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 cased to the ultimate user or consumer, or to his property, if
    a. the seller is engaged in the business of selling such a product, and
    b. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold
  2. The rule stated in Sub (1) applies although
    a. the seller has exercised all possible care in the preparation and sale of his product, and
    b. the user or consumer has not bought the product form or entered into any contractual relation with the seller
60
Q

Three types of action for a defective prodcut

A
  1. Negligence
  2. Breach of Warranty
  3. Product Liability (SL)
61
Q

What p must prove in product liability case under 402A

A
  1. D was in business of selling product
  2. D sold or otherwise supplied the product on question
  3. the product was expected to and did reach P without substantial change (i.e., product was defective when it left Ds hand)
  4. product’s defect was the case of Ps physical harm
62
Q

What is a prodcut

A

a tangible personal property distributed commercially for use or consumption

63
Q

what is NOT a product

A

services

human blood or tissue=

64
Q

Res Ipsa
(in PL)

A

it may be inferred that the harm sustained by P was cased by a product defect existing a the time of sale or distribution, without proof of specific defect, when the incident that harmed P:
1. was of a kind that ordinarily occurs as a result of product defect; and
2. was not, in the particular case, solely the result of cases other than product defect existing at the time of sale or distribution

65
Q

In design defect was factors are used to determine foreseeable risk?

A

Risk/Utility factors = Wade factors

66
Q

Sophisticated User

A

the manufacturer does NOT have a duty to warn a sophisticated user about a product bc a sophisticated user would already know about the dangers

67
Q

Allergic reaction General rule (failure to warn)

A

Warning is required when the harm causing ingredient is one to which a substantial number of person are allergic.,

the more severe the harm, the more justified is a conclusion that the number of persons at risk need not be large to be considered substantial so as to require a warning

68
Q

Rebuttable Presumption

A

Generally, in warnings cases there is a presumption that if a warning had been given, it would have been read and headed

69
Q

Manufacturing defect in food (minority view)

A

some jurisdictions allow SL only if defect is “foreign” to the food product

70
Q

Manufacturing defect in food (majority)

A

Consumer Expectation - simple - dangerous to extent for ordinary consumer

Torts 2 (2 decks)

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