Torts Flashcards
Main ? to ask..
Is this D going to be liable to this P for the tort at issue?
Depends on the facts
Always ask..
Can P prove elements of prima facie case?
Are there any affirmative defenses available to D?
Are P’s super sensitivities taken into account?
NO, unless D knows about them in advance
Who is liable for torts?
Everyone can be liable for tortious conduct
GA: Children under 13 are statutorily immune from liability
When does a person intend for the consequences of his actions to happen?
A person intends for the consequences if it was his purpose to bring about the consequences OR if he was substantially certain of the circumstances
Baseball player throws a bat into the stands, it hits a woman. Did he intend to hit her?
Yes, he was substantially certain that throwing a bat into the stands would hit someone. It doesn’t matter that he didn’t necessarily intend to hit her.
Transferred Intent
Intent can be transferred
1) from an intended victim to the actual victim
2) from the intended tort to the actual tort
Unavailable in intentional infliction of emotional distress cases
Battery
Elements:
1) harmful or offensive conduct
2) with the person of P
Offensive = unpermitted
P’s person = anything connected with P
Consequences dont have to be instantaneous. Time lag = ok
Assault
Elements:
1) apprehension of
2) immediate battery (harmful/ offensive conduct of P’s person)
If someone points an unloaded gun at you, does this create a reasonable apprehension?
Yes, because an apparent ability creates reasonable apprehension.
H0wever, if you knew the gun was unloaded there is no apprehension.
Apprehension
Apprehension = must be reasonable
- Apparent ability creates apprehension
Apprehension does NOT = fear/intimidation (those go to damages). Don’t need to be afraid or intimidated in order to be apprehensive.
Apprehension = knowledge/awareness (absolute certainty is not needed)
Words alone = insufficient
Words + conduct = sufficient
Words + conduct can UNDO sufficiency (Smile while you say it rule”: Laughing while shaking your fist saying “If you weren’t my best friend, I would punch you in the mouth”
False Imprisonment
Elements:
1) sufficient act of restraint
2) within a bounded area
Threats =sufficient (future threats = insufficient)
Inaction is enough if there is an understanding that D would act (does D have a preexisting duty to help P move about?)
P must be aware of the confinement
Confinement length of time = irrelevant except for damages
Bounded Area for FI
Mere inconvenience is not enough
Area = NOT bounded if there is
1) a reasonable means of escape
2) P is aware of this means of escape
Shoplifting Detentions and FI
GA: By statute, a shopkeeper in Ga may detain a person for a reasonable amount of time upon reasonable suspicion of shoplifting
Intentional Infliction of Emotional Distress
Elements:
1) Outrageous/Extreme Conduct
2) directed at P
3) some manifestation of the distress (most likely physical)
Damages: proof of severe emotional distress is required
Intent: no intent to create emotion distress, just Conduct MUST be directed at the P
Recklessness can suffice
No transferred intent
Intentional Infliction of Emotional Distress Outrageous Conduct
Conduct = outrageous if it exceeds all bounds of decency tolerated in a civilized society
Continuous conduct may rise to the level of being outrageous if it is repeated often enough. (One time occurrences of this conduct normally isn’t outrageous by itself)
Insults alone= insufficient (but could become sufficient if it is continuous)
Types of Ps susceptible to Intentional Infliction of Emotional Distress
1) Young children
2) Elder people
3) Pregnant Women
Super sensitivities of these Ps are not taken into account unless D knew about them*
Types of Ds susceptible to Intentional Infliction of Emotional Distress lawsuits
1) Common carriers
2) inn keepers
3) People in a professional/confidential relationship
Trespass to Land
Elements:
1) act of physical invasion
2) to land or real property
Just show that the D was on P’s prop without permission.
–No need to show knowledge of crossing a prop. line.
Propelling an object onto the prop = sufficient (must be a physical object to sufficient, propelling light/sound is insufficient for trespass to land claim)
Land = includes airspace & subsurface so long as owner an reasonably use the space
Mistake of boundary lines = no defense
Trespass to Chattels and Conversion
Elements:
1) act of physical invasion
2) to personal property
–If there is only damage, then its Trespass to Chattels (vandalism)
- -If there D took possession of prop, its Conversion (stealing)
- —-»>Conversion damage can include serious interference with possessory rights (slashing tires & breaking windows = conversion. If the damage is severe then its no longer trespass to chattels. Look at the severity)
Personal Prop = anything you can own other than land/buildings
What are the intentional torts?
1) Battery
2) Assault
3) Trespass to Land
4) Intentional Infliction of Emotional Distress
5) Conversion
6) Trespass to Chattels
7) False Imprisonment
Defenses to Intentional Torts
1) Consent
2) Self Defense
3) Defense of Others
4) Defense of Property
5) Necessity
6) Discipline
**There are no incapacity defenses
Consent: defense to an intentional tort
Affirmative Defense
IF P consents to the conduct, D is not liable for it.
If D exceeds the scope of the consent, then D can be liable.
P must have capacity to consent
–Ppl who lack capacity = children, mentally disabled, ppl forced/coerced to consent, ppl consenting through fraud/mistake
Children can consent to age appropriate invasions of their interest. Ex. Two 8 year olds can wrestle w/out it being battery**
Can be express or implied (arises from custom and usage OR through P’s own conduct)
Self Defense
Affirmative Defense to an intentional tort
A person is justified in using reasonable force to prevent what she reasonably believes to an imminent threat of force against her.
Threat must be in progress or imminent (about to happen)–No revenge
What is reasonable belief for self defense purposes?
A reasonable person in the defendant’s position would have believed that he was in danger
What force can be used in self defense?
A person may use only the degree of force reasonable necessary to avoid the threatened harm.
Use of deadly force is reasonable only when the defender reasonably believes that he faces a threat of death or serious bodily injury.
Retreat?
- -General rule: U have a duty to retreat unless in your own home
- -GA: No duty to retreat when death or serious personal injury is threatened, including injures to TP. No duty to retreat regardless of where you are.
Defense of Others
Affirmative Defense to an intentional tort
A person may defense another person in the same manner and under the same conditions as the person attacked would be entitled to defend himself.
Threat must be in progress or imminent (about to happen)–No revenge
Mistaken Belief: Defender is not liable if he reasonably believes that another person was endangered, even if that other person was not in fact in danger.
Defense of Property
Affirmative Defense to an intentional tort
A person may use reasonable force to defend his real or personal property.
Threat must be in progress or imminent (about to happen)–No revenge
Use of Deadly Force
- -General Rule: May never be used to defend prop. alone
- -GA: Stand Your Ground rule: allows the use of deadly force to protect owner’s habitation or personal prop (including businesses & automobiles) and all other prop when necessary to prevent the commission of a forcible felony.
Necessity
Affirmative Defense to an intentional tort
Only used on intentional torts ag. prop!!!
Types:
1) Public Necessity
2) Private Necessity
D shakes his fist in P’s face and says, “At the end of the day, I’ll beat you!” Has an assault occurred?
No, while these gestures seem to indicate an immediacy needed for an assault, the words itself negate that immediacy. Thus, no assault.
Jailer refused to release a prisoner at the end of his jail sentence. Is jailer liable for FI?
Yes, jailer had an affirmative duty to take steps to release prisoner. Breaching this duty = sufficient for a cause of FI.
For FI, ones means of escape is not reasonable if it is ??
1) dangerous
2) hidden
3) disgusting
4) humiliating
Is it possible to be on another’s land unintentionally and not create a claim of trespass to land?
Yes, when D didn’t mean to be in that place but D was propelled to that place anyway.
Ex. D walking down sidewalk. D has a heart attack. D falls onto P’s prop without P’s permission.
Public Necessity
Arises when D invades P’s prop in an emergency to protect the community as a whole OR a significant group of ppl.
Private Necessity:
arises when D invades P’s property in an emergency to protect an interest of his own which includes physical safety of himself or his own prop.
Not an absolute defense.
D remains liable for actual harm to P’s prop., & D is never liable for nominal/punitive damages & prop owner can NOT expel/eject D from the prop as long as emergency continues (called sanctuary)
Discipline
Defense to an intentional tort (not affirmative)
Allowed for parents or teachers
No liability for corporal punishment of minors so long as it is not excessive.
Defamation
Elements:
1) defamatory statement (can be written or oral)
2) of and concerning the P
3) publication to TP
4) damages
It must injure the P’s reputation
Must reasonably be understood to refer to the P (no group defamations)
Publication to TP: Tp must be capable of understanding the statement, publication must be at least negligent if not intentional
Defamation Damages
Defamation = spoken = SLANDER= P must prove special damages
Defamation = written = LIBEL= presume damages
- -Ga requires special damages unless its
1) against a trade/office or profession
2) accuse P of a serious crime
3) accuse P of a loathsome disease
4) “disparaging words productive of special damages”
When can a P presume damages in a slander case?
When its slander per se.
Slander pre se =
1) against a trade/office or profession
2) accuse P of a serious crime
3) accuse P of a loathsome disease
4) statement imputing unchastity to a woman
GA: only recognizes the first 3 plus a category of “disparaging words productive of special damages”
Defenses to Defamation
1) the Truth: D bears the burden of proving truth
2) Absolute privileges (rare): applies no matter how bad D is
a. Judicial proceedings
b. Statements made in legislative debates
c. Communications between spouses
3) Qualified privileges–can be overcome by showing malice
a. Public duty (legal duty)
b. Private duty (e.g. K duty)
c. Statements made in furtherance of your own interest
d. Comments of counsel
e. Statements about public figures
Constitutional limitations on Defamation
1st Amend. protects speech on matters of public concern.
If claim involves speech of public concern, Supreme Ct added to additional elements:
1) falsity; P must prove statement was false
2) Fault: P must prove some level of fault
- –Public P: must prove actual malice = knowledge of falsity OR reckless disregard for the truth
- –Private P: prove fault amount to @ least negligence
Damages: At least against media Ds, all Ps must prove actual malice to recover presumed or punitive damages.
Appropriation
Invasion of Right of Privacy claim
Define: Use of P’s name/picture for commercial advantage without permission.
P’s likeness MUST be used for advertising, promotional or commercial purposes
Damages: to recover you will probably need to show economic loss by D using your likeness.
Intrusion
Invasion of Right of Privacy claim
Interference with a P’s seclusion in a way that would be objectionable to a reasonable person.
P must be in a place where she has a reasonable expectation of privacy
False Light
Invasion of Right of Privacy claim
The dissemination of information that is in some way inaccurate AND that would be objectionable to a reasonable person.
Isn’t always necessarily limited to be shown in a bad light. Someone who is upheld to being hero made have a claim for false light b/c that person has a right to control the way the public sees him.
Public Disclosure of Private Facts
Invasion of Right of Privacy claim
Dissemination of
1) factually accurate information that
2) would normally be confidential and
3) the disclosure of it would be objectionable to a reasonable person
Newsworthy disclosures are NOT actionable
Defenses to Invasion of Privacy
1) Consent (remember need capacity to consent)
2) Absolute privileges–applies ONLY to False Light/ Disclosures
a. Judicial proceedings
b. Statements made in legislative debates
c. Communications between spouses
3) Qualified privileges–applies ONLY to False Light/Disclosures
a. Public duty (legal duty)
b. Private duty (e.g. K duty)
c. Statements made in furtherance of your own interest
d. Comments of counsel
e. Statements about public figures
Fraud
Elements
1) Falsity
2) Scienter: knowledge of falsity by D
3) inducement/intent to induce P to act/not to act by D
4) reliance by P and reliance must be justifiable
5) damages
**Exception to notice pleading, must be plead w/ PARTICULARITY
Need an affirmative misrepresentation (silence is not enough unless the transaction involves the sale of residential real estate and seller knows of the defect. In those cases silence becomes actionable for fraud)
Intention to indue reliance: statement must be material
When is it justifiable to rely on a statement by D?
It is normally justifiable to rely on the opinion of one who has superior skill or knowledge in the subject matter of the transaction.
GA: Absent a confidential relationship, P generally has a duty to investigate D’s statements tot he extent reasonably possible. This includes the duty to read a K b4 signing.
Negligent Misrepresentation
Liability confined to commercial transactions
Liability confined to a particular P whose reliance is contemplated. (confined to a P who is in privity with the K)
Intentional Interference with Business Relations Types
1) Inducting Breach of K: occurs when an intentional act causes a TP to breach an existing K with P
2) Interference with K Relations: D may be liable if interference with P’s K relations make performance more difficult, even if the interference doesn’t actually cause a breach
3) Interference with Prospective Economic Advantage: D may be liable for interfering with P’s expectation of economic benefit from TP, even in the absence of an existing K.
- –GA: has two additional requirements: D must be a stranger to K (no relation to K parties) and malice must be shown (intent to harm)
Malicious Arrest/Prosecution
deals with criminal proceedings
Does NOT deal with false arrest or false imprisonment
Abuse of Process
Involves civil proceedings
GA: Replaced Abuse of Process with Abusive Litigation Statute
Abusive Litigation Statute
Specific to Ga
Requires underlying litigation be 1) malicious & 2) without substantial justification
Safe Harbor: must provide opposing party 30 to withdraw the abusive litigation before you can proceed.
The underlying litigation MUST BE terminated before/prior to any claim under this statute (this is a pre-req to the claim)
Negligence
Elements
1) Duty
2) Breach
3) Causation
4) Damages
To whom is a duty owed?
You owe a duty to ALL people who are foreseeable VICTIMS of your failure to take precautions.
As a matter of law: rescuers and viable fetuses are foreseeable Ps.
How much care must you exercise?
Must exercise degree of care that a reasonably prudent person under same/similar circumstances would
D is expected to use superior skill or expertise for P’s benefit
D’s physical disabilities are attributed to the reasonably prudent person
Reasonably prudent person standard = fixed–apply the standard to the circumstances then/there prevailing.
–Ex. if its raining while driving, then the standard = what would a reasonably prudent person do while driving in the rain?
Gross Negligence
May mean either
1) absence of slight care or
2) recklessness (deliberate and conscious disregard of a known high probability of harm to another)
applies to
1) releasees (sign a release),
2) guest passengers,
3) bailments for the benefit of the bailor,
4) naked depository
Slight Diligence
Common Carrier Doctrine: imposes a greater duty on those companies and their employees who are common carries towards their passengers. Even insulting lang can sustain an action under this doctrine
applies to
1) bailments for the benefit of the bailie,
2) innkeepers (care to guest prop), and
3) carriers of passengers
Child’s Standard of Care
Majority Rule: Child must exercise a degree of care that a reasonable child of like age, intelligence, and experience under similar circumstances would exercise.
GA: Children under 13 are statutorily immune from liability.
Child Standard of Care Minority Rule
Rule of 7s:
- -child under age 7 = incapable of negligence
- -child between 7-13 = rebuttable presumption of being incapable of negligence
- -child 14 yrs or older = rebuttable presumption that child is capable of negligence
Children engaged in Adult Activities: duty of care
A child engaged in an adult activity is held to the adult standard
(Except if in Ga and under 13, child is still statutorily immune)
Professionals: Standard of Care
A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.
This is a general/national standard (doesn’t matter where you are)
Ga: Same except that for facilities you apply the locality standard (E.g. suing a hospital–hospital’s standard of care would be compared to other similarly situated hospitals.)
In Professional Negligence Actions: Ga requires what?
Special pleading requirement, Ga requires that the P attach an affidavit of an expert specifying at least one act of negligence and the facts supporting such a conclusion.
Informed Consent
Majority Rule: requires informed consent in medical practice. Failure to obtain it would be the basis of a med mal. negligence action.
GA: Does NOT recognize the need for informed consent. Informed consent is only needed for diagnostic and surgical procedures.
What must P prove in a legal malpractice suit?
P must prove causation. Called a case within a case.
P must prove she would have won the underlying case but for the lawyer’s neg.
Lawyer’s defense: underlying case = un-winnable
Besides negligence, what tort occurs when a doctor operates on the wrong leg of a patient?
Battery
Premises liability: Duty to Undiscovered Trespasser
Duty on Activity: Cant set up a death trap
Duty on Conditions: No duty to repair or warn
Premises Liability: Duty to Discovered Trespasser
(knows or should know trespasser is there)
Duty on Activity: can’t injure them willfully or wantonly
Duty on Conditions: No death traps
Premises Liability: Duty to Licensee
Duty on Activity: ordinary care
Duty on Conditions: No duty to inspect, Duty to warn/repair
Premises Liability: Duty to Invitee
Duty on Activity: duty to inspect & ordinary care
Duty on Conditions; Ordinary care & duty to inspect
Who is a licensee?
Someone whose presence on the premise is expected or anticipated. Not at owner’s invitation
Is a social guest on the property as a licensee or as an invitee?
Licensee
Premises Liability: What must P show about the hazardous condition?
P must show land possessor’s knowledge of hazard was superior to P’s.
In a static condition question, a land possessor can satisfy her legal obligations how?
1) repairing
2) positing a warning
Children and Attractive Nuisance
Ordinary standard of care
This involves a child TRESPASSER and an ARTIFICIAL condition amounting to an attractive nuisance (e.g. swimming pool = artificial condition, pond = NOT an artificial condition)
If the entrant is injured by an open and obvious condition, who will win?
The D. The entrant will almost always lose.
What is the standard of care owned to people on recreational property?
Owner is liable only for willful and wanton misconduct.
HOWEVER, recreational prop must be
1) made available to the public
2) at no charge (can’t be charged to use the recreation, can be charged for parking, etc.)
3) must be for recreational purposes
Statutory Standard of Care
Negligence Per Se
To apply must be within class of person protected by the statute and the risk must have been contemplated by the statue.
GA: No tort action implied from criminal violation
Defenses to Negligence Per Se
1) Compliance with the statute is more dangerous than violating the statue
2) Compliance is impossible under the circumstances
GA on Negligence Per Se
No tort cause of action is implied from the violation of any civil or criminal statute.
Liability must flow from
1) public duty recognized as a CL tort duty
2) private duty (K created)
3) express statutory authorization for liability–only applies to statutes enacted after July 2008.
Affirmative Duty to Act
1) No duty to rescue
Unless
a) D put P in peril
b) Relationship between P and D is either close family relationship, common carriers/innkeepers or invitors
Duty to Control TP: D must have actual ability and authority to control.
Volunteers: One under no duty to act who volunteers to act must do so in a non-negligent manner
Negligent Acts when Volunteering are:
1) volunteered response = unreasonable
2) volunteer increases the danger
3) volunteer misleads P into thinking danger is gone
4) Volunteer deprives P of other help
Negligent Infliction of Emotional Distress
No duty —- thus no liability
Exception
1) Zone of Danger: If P is in the zone of danger and has a physical manifestation, then P can recover.
* **GA doesn’t follow this!! GA has the Impact Rule requiring there to be a physical impact on the person of P which result in a physical injury OR other personal injury besides emotional distress.
2) Bystander Recovery: P can recover if P personally observes it, is in close relation to the victim and has physical manifestation as a result of witnessing the act.
* ***GA applies Common Force Rule instead. This requires that a bystander may recover for emotional distress only if the bystander is a parent who witnesses the death of a child and is also herself impacted but the common force.
Zone of Danger
Exception to the bar of recovery for negligent infliction of emotional distress
If P is in the zone of danger and has a physical manifestation, then P can recover.
***GA doesn’t follow this!! GA has the Impact Rule requiring there to be a physical impact on the person of P which result in a physical injury OR other personal injury besides emotional distress.
Bystander Recovery
Exception to the bar of recovery for negligent infliction of emotional distress
P can recover if P personally observes it, is in close relation to the victim and has physical manifestation as a result of witnessing the act.
**GA applies Common Force Rule instead. This requires that a bystander may recover for emotional distress only if the bystander is a parent who witnesses the death of a child and is also herself impacted but the common force.
What must P show in a breach of duty
P must point to a specific conduct–either an act or omission
How to prove specific conduct?
1) Evidence of Custom: always admissible (private guidelines/policy come under this rule)
2) Res Ipsa Loquiter: P MUST prove:
a) event is one that doesn’t ordinarily occur in the absence of negligence
b) injury causing instrumentality was within D’s exclusive control
Res Ipsa Loquiter
used by P who dont know what happened
P MUST prove:
1) event is one that doesn’t ordinarily occur in the absence of negligence
2) injury causing instrumentality was within D’s exclusive control
P must be free from any contributory negligence
GA: Res Ipsa = inapplicable in med mal. P must show a breach of professional duty in med mal. established by expert witnesses.
Causation; How to establish it?
Step 1: Cause in Fact
Step 2: Proximate Cause
Cause in Fact
But for Test: A D’s conduct is the cause in fact of an injury when the injury would not have occurred but for D’s act or omission.
Substantial Factor Test
Use in place of But For test when
1) multiple Ds
2) causes = commingled
Burden Shifting
Use in place of But for Test when
1) multiple Ds
2) cause = unknown
Proximate Cause
Limitation on D’s liability. A person is only liable for those harms that are within the risk of his activity.
Proximate Cause: Direct Cause by D
if the result of the D’s negligent conduct is foreseeable then D = liable
Proximate Cause: Intervening Cause between D’s negligent act and injury
Four Situations:
1) Foreseeable Result + Foreseeable Intervening Cause = P Wins, D = liable
2) Foreseeable Result + Unforeseeable Intervening Cause = Jury ?, D more likely to win
3) Unforeseeable Result + Foreseeable Intervening Cause = Jury ?, P more likely to win
4) Unforeseeable Result + Unforeseeable Intervening Cause = D wins
Examples of when an intervening cause will almost NEVER cut off liability (D = proximate cause)
Subsequent Medical Malpractice (D could foresee that the P might need subsequent medical treatment, and that treatment might be negligent/go wrong)
Negligent Rescue ( D could foresee that a TP might try to rescue P and that rescue might be negligent/go wrong)
Reaction Forces (e.g. D screams Fire, crowd scatters and crowd tramples P. D = proximate cause)
Subsequent Diseases or Accidents
Will D be held to the proximate cause of a TP’s intervening negligent act against P?
Yes, if D could anticipate the TP’s intervening negligent act
Is D the proximate cause of intervening criminal conduct against P?
No, unless P can establish prior similar instances of criminal conduct which would make D aware and able to foresee the possibility.
GA: requires evidence of substantially similar prior criminal conduct. Meaning that crimes against property cannot be used to show foreseeability of crimes against person, and vice versa.
Is D the proximate cause of P’s injuries when there is an intervening act of God?
Yes, if D can foresee the intervening act of God
Defenses to Negligence
1) Contributory Negligence
2) Assumption of the Risk
3) Comparative Negligence
Contributory Negligence
Defense to negligence
A P’s failure to use the relevant degree of care for his own safety.
Under CL: ANY negligence by P bars recovery completely.
Modern: P = contributorily negligent when his negligence is equal to or greater than D.
Related doctrines: last clear chance and avoidance of the consequences
Assumption of Risk
Defense to negligence
Types:
1) Express: “I’ll take my chances”–completely bars recovery unless if barring recovery violates public policy
2) implied: Test = 1) Actual knowledge of the risk AND 2) voluntarily encountered by P.
- –absence of an alternative destroys voluntariness
- –emergency situations destroy voluntaries
Not available for intentional torts. Instead for intentional torts look for evidence of consent
Comparative Negligence
Types:
1) Pure = P recovers amount of D’s damages
2) Modified = P recovers nothing
- –Ga = modified comparative negligent state
When it exists, comparative negligence supplants all other affirmative standard of care defenses except assumption of the risk.
Strict Liability Animals
Domesticated: No strict liability unless D knows of 1) dangerous propensity OR 2) there exists a leash law that was violated
Livestock: ordinary care
Wild Animals: strictly liable unless the animals are indigenous (not owned by D)
Family Immunity
Modern Trend: Abolish spousal immunity, limit parental immunity in negligence cases. No immunity for intentional torts
Charitable Immunity
Abolished in most jurisdictions
Ga: retains it to the extent of charitable assets (insurance is not assets)
Governmental Immunity: Multi-state
Modern Trend: Lessening immunity for ministerial acts. Immunity still in effect for discretionary acts
Tort claims against the US are governed by what?
Federal Tort Claims Act
Georgia Governmental Immunity
Varies with type of governmental entity involved
1) State Entity: governed by Ga Tort Claims Act–non-libailiy for discretionary decisions, allows jury trials, 12 mo. anti-litem notice requirement, damages limited to $1 mil per person & $3 mil per claim. No punitive damages
2) Counties/School Districts: immune from tort claims except for auto injuries and nuisances (only if property damage occurs from the nuisance)
3) Municipalities: Not liable for torts except for auto injuries, nuisances (limited to prop damage) and applicable insurance
4) Hospitals: No governmental immunity except for punitive damages
5) Officials Immunity: Same level of immunity as entity they represent, generally only liable for ministerial or malicious acts.
What is a ministerial act?
An act that is clear, direct, specific, and leaves the official no discretion concerning the actions to be taken.
Notice requirements for claims against governmental entities
Atem litem notice to the responsible entity.
For state & counties, notice must be given w/n 12 mo of injury.
For municipalities, notice must be given w/n 6 mo. if injury.
Strict Liability in Abnormally Dangerous Activity
An abnormally dangerous activity is one that is incapable of being conducted except with a high degree of risk and if harms occurs, the injury will be severe. The activity must be uncommon in location.
Harm must be within D’s risk.
Strict Liability in Product-Related Injuries
Elements;
1) D must be merchant-seller (GA: D must be a manufacturer)
2) product must be defective
3) defect existed when product left D’s hands
4) P made a foreseeable use of the product (includes a foreseeable misuse of the product) (foreseeable is not the same as intended use)
How can a product be defective in a products liability case?
Can have either a
1) manufacturing defect: the product itself is an anomaly and the difference between eh product in hand and all the other products is what causes it to be defective.
2) design defect: a problem is common to each unit which could have been eliminated though a reasonable alternative design.
* *when a question refers to a feasible alternative to make a product safer, it signals that the D might be liable on a design defect theory.
Defenses to Product Liability
1) traditional jurisdictions: conduct that is the equivalent of contributory negligence will not bar recovery, conduct that is equivalent of assumption of risk will bar recovery
* **This is the GA rule
2) Comparative fault jurisdictions: apply comparative fault principles in products liability cases
What can insulate a D from strict liability?
An adequate warning label
When is strict liability unavailable?
When the product use is incidental to the performance of a service
Ga Breach of Warranty Cases
Ga retains the requirement of privity, except for products causing personal injury to a buyer’s family, household member and guests.
Private Nuisance
conduct that causes a substantial and unreasonable interference with the use and enjoyment of real estate
Remedies: Ct will weigh the equities of the parties in deciding whether to enjoin D’s activities
Public Nuisance
Conduct that causes physical or moral harm to the public in general
How can a private P maintain a public nuisance claim?
Private P must show that he suffered injuries different in nature than what the rest of the community suffered.
Vicarious Liability: Employer Employee (Respondent Superior)
Employer is vicariously liable or employee’s torts committed within the employee’s scope of employment.
Tort committed during a mere detour = employer still liable
Tort committed during a frolic = employer not liable
Employer is NOT liable for employee’s intentional tort `
Vicarious Liability: Independent Contractors
Employer not liable for independent contractors
Except:
1) independent contractor is engaged in inherently dangerous activity
2) non-delegable duties
Vicarious Liability of Automobile Owner/Driver
Generally no vicarious liability
Except
1) when driver is performing an errand for owner (liability based on agency principles)
2) family Car states: owner is vicariously liable for torts of members of his household driving w/ permission (GA is a family car state)
Vicarious Liability: Parent Child
No vicarious liability
GA: Parents may be vicariously liable for up to $10,000 in medical expenses an/or prop damages resulting from child’s willful or malicious acts
Joint and Several Liability
Applies to joint tortfeasors
Joint tortfeasors = two or more ppl whose separate and independent acts of negligence combine to produce a single indivisible injury. In such cases, each D can be liable to P for the entire damage incurred.
Concert of Action
Indivisible Harm
Joint and Several Liability in GA
Ga has eliminated joint and several liability when he P is at fault to some degree. —-> in such cases, trier of fact shall reduct P’s recovery by the % of P’s fault
Cases involving more than one D, trier of fact shall apportion fault among all person who contributed to the injury, including non-parties.
When can the fault of nonparties be considered for liability?
Only in Ga
Only when P has reached a settlement with the nonparty
OR
Only when D gives notice of intention to apportion to a nonparty at least 120 days prior to trial. Burden of proving nonparty’s degree of fault is on the D.
Indemnity
A passive (not really at fault) D can receive full reimbursement from active (really at fault) D.
Ex: Employer who has to pay full judgement can seek indemnity from at fault employee.
Contribution
Traditional Rule: Paying D recovers proportional shares from other Ds.
Comparative Contributions: Recovery is based on the relative fault of each tortfeasor
GA: No right of contribution. However, contribution may be available in the absence of apportionment, as when P’s cli a was resolved by settlement.
What do the rules of apportionment not apply to?
Apportionment do not apply to relationships such as employer-employee, principal-agent, ect. These relationships give rise to vicarious liability.
Wrongful Death Action
Lawsuits brought by a decedent’s beneficiaries for their own loss of support and companionship from decedent.
Ga Wrongful Death
Combines two types of claims: survival statute and full value of decedent’s life
Order of Claimants:
1) Spouses
2) Children
3) Parents
4) Personal Representatives
Damages = full value of decedent’s life measured from decedent’s standpoint
- –Solatium damages = not recoverable, (pain/suffering of survivors–Common Force exception)
- -Hedonic Damages = recoverable (intangible damages, e.g. loss of chance to see grandkids, etc)
Wrongful Death Damages Pre and Post Death in GA
Claims for damages up until moment of death blond to estate and pass according to decedent’s will. (These damages include special damages flowing directly form the death like funeral expenses)
Claims for damages after death belong to the statutory P and pass to decedent’s heirs at law. (this includes the full value of the life)
Survival Actions
Lawsuits brought by a decedent’s estate based on claims that decadent could have brought if he lived and are maintained by the deceased P’s personal representative.
Multi-State: applies to all pending tort claims—not limited to tort claims arising out of specific conduct relating to the death. However, claims pertaining to intangible personal interests do not survive the decedent’s death (e.g. defamation claim would die with decedent)
GA: Applies to all pending claims including claims related to intangible personal interests of decedent. (E.g. defamation claim would not die with decedent)
