Torts 2 Flashcards
What is the 4th element of negligence?
Damages is the 4th element of negligence
What are the three categories of damages available?
Nominal, Compensatory, and Punitive
Punitive damages generally require what evidentiary standard?
Punitive damages generally require “Clear and Convincing” evidence.
Compensatory damages for negligent personal injury are based on what harms?
Compensatory damages are based on: Past physical and mental pain; Future physical and mental pain; Past and future medical expenses; Loss of earnings; Permanent disfigurement or disability.
Loss of consortium may also be available.
Does defendant need to foresee the extent of the plaintiff’s harm for negligent personal injury damages?
No. Foreseeability of the extent of harm to the injured is not required. The negligent actor takes the plaintiff as he finds him (eggshell skull).
Foreseeability is only required that some harm could occur, not how much harm will occur.
How is recovery for negligent property damage calculated?
Compensatory damages for property damage is based on the comparison of value of the chattel prior to the damage and after the damage.
Value prior is based on the Market Value at the time and place of the harm.
According to Pacific Mutual v. Haislip, at what point are punitive damages likely to “destroy” the defendant?
Punitive damages are intended to “sting, not destroy” the tortfeasor. Damages greater than 10% of net worth are likely to destroy the tortfeasor, per Pac. Mutual v Haislip.
All punitive damage awards are subject to judicial review. What factors are considered in this review?
Judicial review will consider the ratio of punitive-to-compensatory damages. Generally a single digit ratio is the threshold (ex. 3:1).
The court will also consider the “Green Oil” factors.
What are the “Green Oil” factors for judicial review of punitive damages?
1) Relationship of the award to the harm incurred;
2) the Reprehensibility of the conduct;
3) Amount required to remove profit and apply a loss;
4) Financial status of the defendant;
5) the cost of litigation;
6) Comparable sanctions and other civil awards.
Who has a duty to mitigate harm?
The plaintiff has a duty to mitigate her harm. A plaintiff can not recover for harm that occurs after the conduct if her actions could have reduced or stopped the harm.
What is the Collateral Source Rule?
The common law Collateral Source rule prevents evidence of outside benefits (like insurance) the plaintiff has received.
The Collateral Source rule has been abrogated or abolished by statute in many jurisdictions.
What is the theory behind subrogation, and how does it work?
Subrogation is based on the theory that a plaintiff can’t recover twice for the same harm.
If a plaintiff has been satisfied by insurance benefits and receives a damages award, the insurance company can recover its losses from the plaintiff via subrogation.
What is the effect of a plaintiff’s contributory negligence in a contributory negligence state?
Contributory negligence is an absolute bar to claim in certain states. This includes a plaintiff’s failure to remove himself from danger (riding with a known drunk driver).
How does the Last Clear Chance doctrine impact contributory negligence?
Under the last Clear Chance doctrine, a negligent plaintiff may still recover if he can show the defendant had the last opportunity to avoid the harm. A defendant may also use as a defense to show the plaintiff could have avoided the harm.
What are the required elements of an Assumption of Risk defense?
Assumption of Risk occurs when the plaintiff assumes the risk of harm from an activity, and can be implied or expressed assumption.
Implied assumption of the risk requires the plaintiff has subjective knowledge of the risk and voluntarily participates (unless there is no reasonable alternative).
Express assumption of the risk is generally written, must be clear and conspicuous in terms, and not against public policy.
What defense theory shares liability based on the amount of fault?
Comparative negligence shares liability based on the amount of fault.
What are the types of comparative negligence?
Pure comparative negligence allows a plaintiff to recover on any amount of the defendant’s fault.
Modified comparative negligence only awards the plaintiff when the plaintiff’s fault is less than 50%, or 50% or less.
When does the statute of limitations begin to run for negligence claims?
Accrual begins based on state statute, but generally begins when the plaintiff knows or should have known of the harm.
Regarding the statute of limitations, what is tolling and what circumstances can trigger tolling?
Tolling the statute of limitations is when the accrual of time pauses for some reason.
Tolling can occur when the plaintiff is a minor, insane, the harm is hidden by fraud, or the defendant obstructs the filing of a claim.
What does “repose” mean with regard to the filing of a negligence claim?
Repose is the maximum amount of time after an act that harm can arise.
Ex., following a medical procedure, patient has adverse effect 5 years later. A claim is barred under the AL repose statute.
What are the prima facie elements of a Strict Liability claim?
1) The nature of an activity imposes an absolute duty to make the act safe;
2) Dangerous aspect of the activity is the actual and proximate cause of the harm;
3) the Plaintiff suffered the harm.
What liabilities exist with the owning or harboring of animals?
Defendant strictly liable for his trespassing animals if the harm is reasonably foreseeable. Strict liability applies for wild animals not native to the area.
Regarding domestic animals, strict liability only applies if the animal had a known dangerous propensity.
For strict liability, what is an Abnormally Dangerous Activity?
An abnormally dangerous activity is one that involves a substantial risk even when reasonable care is used. The Restatement considers 6 factors in determining liability as a matter of law:
1) High degree of risk;
2) Likelihood of harm from activity;
3) Reasonable care won’t eliminate risk;
4) Commonality of the activity;
5) Inappropriateness to the location/place;
6) the act’s Value to the community.
Is foreseeability a consideration in Strict Liability?
Strict Liability is available to foreseeable plaintiffs for harm normally anticipated from the activity.
Ex. No blasting liability when scared mink eats her young. Foster v. Preston Mill
What tort theories are applicable to Product Liability?
Product Liability is not a tort, but a generic term for harm related to products.
Liability arises under Negligence or Strict Liability generally, but can also arise from Intent and Warranty theories.
What types of defects are classified as Product Liability defects?
Product liability address three defects: Manufacturing defect; Design Defect; Warning Defect (sometimes combined with Design)
What defect occurs when a product comes from the manufacturing process different from the other products, in a manner that is unreasonably dangerous?
A manufacturing defect occurs when some part or component of the product is defective in a manner that is different from the typical product line.
What defect occurs when products of a manufacturing line are all effected and determined to be unreasonably dangerous?
A design defect effects all product of the same design, when the plaintiff shows that a less dangerous and economically feasible alternate design (Reasonable Alternative Design) was available.
When considering a Reasonable Alternative Design, what factors are considered by the court?
Reasonable Alternative Design considerations:
1) Usefulness and desirability of product;
2) Availability of safer products;
3) Dangers identified at the time of trial;
4) Likelihood and probable seriousness of injury;
5) Obviousness of danger;
6) Normal public expectation of danger;
7) Injury avoidability by careful use;
8) Eliminating danger vs. impairing function or undue expense.
What are the prima facie elements for a Strict Products Liability claim?
Elements of Strict Products Liability-
1) Commercial Supplier
2) A defective product
3) Actual and proximate cause of injury
4) Damages
An intervening cause can negate a strict liability claim.
What is a Commercial Supplier to be liable for a strict product liability claim?
A commercial supplier is the manufacturer, retailer, assembler, wholesaler. Basically anyone in the chain of distribution or production.
A casual seller, or seller of used products, is generally not liable for strict product liability.
What creates a Private Nuisance?
A private nuisance is substantial interference with the use and enjoyment of one’s land.
Substantial interference can be offensive, inconvenient, or annoying to the average person in the community. However, one’s hypersensitivity is not recognized.
What creates a public nuisance claim?
A public nuisance is an act that unreasonably interferes with health, safety, or property rights of the public. To maintain a claim, the plaintiff must suffer a unique damage outside the general public.
The preferred remedy for a Nuisance claim is what?
Legal remedies (money damages) are the preferred remedy.
When damages are inadequate or unavailable, injunctive relief may be available.
What is the theory of Self-Help under nuisance?
Self-help is available for private nuisance.
After the defendant is given notice of the nuisance, and refuses to act, the plaintiff may use necessary force to abate a private nuisance.
Does Coming to a Nuisance bar a claim for nuisance harm?
Not absolutely, if the plaintiff acted in good faith in purchasing and encroaching upon a nuisance. The court will balance conveniences of the parties involved.
