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Torts 2 > Torts > Flashcards

Torts Flashcards

1
Q

NEGLIGENCE

A

A tort grounded in a person’s failure to conform his/her conduct to the standard of care established by law

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2
Q

Elements of Negligence

A

DUTY
BREACH
CAUSATION
DAMAGES

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3
Q

Negligence- Duty

A

A legally recognized relationship between the parties that requires D to act in a certain way

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4
Q

Palsgraf v. LIRR

A 
-There can be no liability for  negligence unless – 
  D owes a duty to the P
-The existence of a duty depends on –
A foreseeable risk of harm &
A foreseeable plaintiff
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5
Q

Duty Principle

A

In general, a duty arises when D creates:
a foreseeable risk of harm
to a foreseeable plaintiff

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6
Q

Foreseeable Risk Requirement

A
  • “The risk reasonably to be perceived defines the duty to be obeyed”
  • “It is the risk to another or to others within the range of apprehension”
  • D owes a duty only to persons w/in the zone of danger
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7
Q

Palsgraf Dissent

A

D owes to “the world at large” the duty of refraining from those acts that may unreasonably threaten the safety of others

“Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured.”

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8
Q

STANDARD OF CARE

A

The “standard of care” for negligence is –

the level of conduct demanded by law to avoid liability

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9
Q

REASONABLY PRUDENT PERSON

STANDARD OF CARE

A

D is held to the standard of care of

  • a reasonably prudent person (RPP)
  • in the same or similar circumstances
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10
Q

Vaughan v. Menlove

A

In determining breach –

D’s conduct is to be evaluated using an objective “man of ordinary prudence” standard

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11
Q

Intelligence & Judgment Qualities & the Reasonable Person Standard

A 
D’s Low Intelligence or knowledge
 -Not taken into account (e.g., hay rick case)
 -Objective RPP std applies
D’s Superior Intelligence or knowledge
-Often taken into account
-Despite seeming inconsistency
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12
Q

Restatement 2nd Section 289

Persons with inferior qualities

A

The individual who is “habitually wool- gathering, inattentive, absent minded, forgetful, ignorant or inexperienced, slow- witted, … or a fool” must:

“conform to the standard of the society in which he lives” or

“if he cannot conform … must still make good the damage he does”

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13
Q

Restatement 2nd Section 289

superior qualities of actor

A

“If the actor has in fact more than the minimum of these qualities,* he is required to exercise the superior qualities he has in a manner reasonable under the circumstances.”.

“The standard becomes, in other words, that of a reasonable man with such superior attributes.”
_________
* Attention, perception, memory, knowledge, intelligence, & judgement

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14
Q

REASONABLE PRUDENT

PERSON

A

The RPP is EXPECTED to –

  • notice the obvious & apparent
  • know matters of common knowledge
  • understand what community understands

The RPP is …

NOT expected nor required to be perfect or infallible

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15
Q

Delair v. McAdoo

A

The RPP Standard
-The Reasonable Person notices what is apparent
-The Reasonable Person knows of common (driving) hazards
-The RPP knows
of matters of
common knowledge

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16
Q

Emergency Doctrine

A

*Cordas v. Peerless Transportation

In an emergency, the SOC is that of a RPP acting under emergency circumstances

[Unless, D’s own risky conduct created the emergency]

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17
Q

Areas of flexibility in the RPP Standard

A

Superior intelligence/knowledge

Physical characteristics

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18
Q

*Flexibility

Roberts v. Louisiana

A

A blind man “must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.”

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19
Q

*Flexibility

RPP Standard of Care Physical Traits & Disabilities

A

-Persons with physical disabilities held to standard of a RPP with the same physical disability acting in similar circumstances

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20
Q

Breunig v. American

Fam. Ins. Co

A

D’s mental illness usually is not taken into account in evaluating the reasonableness of D’s conduct

[Persons w/ mental disabilities are not allowed a standard of a RPP w/ the same mental disability]

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21
Q

SUDDEN ONSET EXCEPTION*

A

“We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder …”

*Minority Exception

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22
Q

STANDARD OF CARE

A

REASONABLY PRUDENT PERSON

  • D held to the standard of care of
  • a reasonably prudent person in the same or similar circumstances
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23
Q

AREAS OF FLEXIBILITY in the reasonable prudent person standard

A

D’s superior intellig., experience, or skill
D’s physical characteristics

But, courts will not consider …

D’s low intillig., experience, or skill
D’s mental illness or disabilities

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24
Q

Voluntary Drug/Alcohol Abuse

& the RPP Std of Care

A

D’s abuse of drugs or alcohol is not a circumstance taken into account by RPP standard of care

[The applicable standard of care is not
whether D was driving as well as a RPP
high on drugs!!!]

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25
Q

Alternative Standards of Care

A

Children
Professionals
Land Possessors

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26
Q

Child Standard of Care

A

Children are held to the std of

A reasonable child of like age, intelligence & experience

Under similar circumstances
Exceptions:
Inherently Dangerous or Adult Activity
Rule of 5

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27
Q

Restatement Exception for child std. of care

A

Child standard of care does not apply when child engages in …
an activity normally undertaken only by adults (adult activity) &
the activity normally requires adult qualifications

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28
Q

Professional

Standard of Care

A

The professional D must exercise …

the knowledge & skill of an ordinary member of profession in good standing
Under similar circumstances

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29
Q

LP DUTY TO PERSONS

OFF THE PREMISES

A

Generally Land possessors owe –
NO DUTY to persons outside the
premises for natural conditions
on their land

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30
Q

Taylor v. Olsen

A

Tree Exception to Natural Conditions Rule:
[Duty] Landholder owes a duty to offsite P for risks posed by trees on D’s premises
[SOC] Duty owed depends on all of the relevant circumstances

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31
Q

DUTY OWED TO PERSONS

OFF THE PREMISES

A

Land possessors generally –

OWE A DUTY of reasonable care to persons harmed outside the premises

from artificial conditions & activities on their premises

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32
Q

Salevan v. Wilmington Park

A

Landholder owed a duty to offsite P
for activities on D’s premises [DUTY]

Duty owed is to take reasonable precautions to protect offsite public from wayward balls [STD OF CARE]

D failed to use reasonable precaution [BREACH] (~200 flying baseballs)

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33
Q

Bright Line Tests

A

Straight-forward application
More consistency
But rigid, somewhat arbitrary

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34
Q

Totality of Circumstances Tests

A

More flexible & adaptable

But less consistent, wide variability in outcomes

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35
Q

DUTY: LANDHOLDERS & ON SITE Ps

A

Status Categories
Trespassers
Licensees
Invitees

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36
Q

Trespasser

A

A PERSON WHO ENTERS OR REMAINS ON LAND IN THE POSSESSION OF ANOTHER WITHOUT CONSENT OR A PRIVILEGE TO DO SO

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37
Q

Licensee

A

A PERSON WHO ENTERS OR REMAINS ON LAND BY VIRTUE POSSESSOR’S CONSENT OR A PRIVILEGE & IS THERE FOR THEIR OWN PURPOSES.

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38
Q

Invitee

A

A PERSON WHO ENTERS OR REMAINS ON LAND WITH CONSENT OF THE POSSESSOR FOR PURPOSES RELATING TO THE POSSESSOR’S INTERESTS OR ACTIVITIES.

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39
Q

Status Categories

A

trespasser (unknown, known, frequent, children)
licensee
invitee

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40
Q

Nature of the Risk

A

natural condition
artificial condition
activity

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41
Q

Known Trespassers & Natural Conditions

A

Generally, Land possessors owe –

NO DUTY to known TR for risks
arising from natural conditions
on their land

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42
Q

Landholders generally owe a duty to known trespassers for artificial conditions when:

A

Landholder knows the trespasser is
approaching an artificial condition

The artificial condition is not evident
to the trespasser (hidden condition)

The artificial condition poses a risk of
serious bodily harm or death

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43
Q

Known Trespassers &

Activities

A

Land possessors generally owe –

a duty of reasonable care to known trespassers for activities carried out on their land

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44
Q

FREQUENT TRESPASSERS

A

Landholders may owe a limited duty
to frequent trespassers where:

Landholder is on notice or has reason to know of frequent trespassing

the risk is posed by natural or
artificial conditions or activities on
the premises

Duty rules similar to known TR rules

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45
Q

“FLAGRANT”

trespassers

A

Under RS3rd of Torts:

the duty owed by Landholders to flagrant trespassers is more limited than duty owed other trespassers

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46
Q

Limited Duty of Landowners & Occupiers – Trespassing Children

A

L/Os owe a duty (of reasonable care) to protect trespassing children from harm due to attractive nuisances

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47
Q

DUTY OWED TO LICENSEES

NATURAL & ARTIFICIAL CONDITIONS

A

A duty arises to licensees when P harmed by

A dangerous hidden condition &
L/P knew of the condition

The duty owed (SOC) is:

reasonable care
reasonable steps to warn or make safe

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48
Q

DUTY OWED TO LICENSEES

ACTIVITIES ON THE PREMISES

A

Land possessors generally owe a
duty to licensees to –

act with reasonable care with
respect activities on their premises

whenever LP knew or should have known of danger

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49
Q

Duty of Land Possessors to Invitees

BUSINESS INVITEES:

A

Persons invited to enter or remain on land
for purposes connected w/ possessor’s
business dealings

      (e.g., D’s clients & delivery people)
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50
Q

Duty of Land Possessors to Invitees

PUBLIC INVITEES:

A

Persons invited to enter or remain on land for a purpose for which the land is held open to the public

   (e.g., museum patrons & national park visitors
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51
Q

LICENSEES v. INVITEES

A

Landholder duty of reasonable care arises to LICENSEES for dangerous conditions that

Are non-evident (hidden) &
D actually knows of

Landholder duty of reasonable care arises to INVITEES for dangerous conditions that

Are non-evident (with some exceptions) &
D knows or should know of

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52
Q

Whelan v. Van Natta

A

Invitee status of P changes when P
exceeds the scope of invitation with
respect to —

Time (duration of the invitation)
Space (location of the invitation)

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53
Q

PUBLIC EMPLOYEES

GENERAL RULES*

A

Non-Emergency Personnel:
When on the premises for a purpose
connected w/ owner they are invitees

Emergency Personnel:
When on the premises in an emerg.
capacity they are licensees

  • These rules vary significantly depending on the jurisdiction!
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54
Q

Rowland v. Christian

A

Court rejects status approach
as the basis for landowner duty

New Unitary Standard:
Land Occupiers owe all persons entering
premises a duty of reasonable care

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55
Q

Nonfeasance

A

General Rule: No Duty for Nonfeasance
Exception 1: Special Relationships
Exception 2: Undertakings
Exception 3: Gratuitous Promises

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56
Q

THE STATUS OF THE STATUS APPROACH:

A

The Traditional Status Approach
The Unitary Approach
(substantial minority rule)
The Blended Approach

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57
Q

Misfeasance

A

risk-creating conduct
General Duty of Care
D owes a Duty to foreseeable Ps

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58
Q

NONFEASANCE

A

failure to act tobenefit P
General No-Duty Rule
D owes No Duty

Gen’lly, a FAILURE to take steps to
benefit or protect the P
from risks created by other persons or forces
P no worse off than if D not there at all

Exceptions
Special Relationships
Undertakings
Promise & Reliance

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59
Q

NEGLIGENT OMISSION

A

(risk-creating inaction)
A negligent omission is …

D’s failure to do something that
creates a risk to another
If D create the risk and then fails to act, D has a duty to the foreseeable Ps.

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60
Q

Hegel v. Langsam

A

Nonfeasance:
Univ. merely failed to take positive
steps to protect P from outside forces

No Duty:
Univ. had no duty to control the
private lives or associations of students

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61
Q

Duarte v. State

A

Nonfeasance:
University failed to take positive steps to protect student from murderer
Duty
University owed a duty to protect students
from violent assaults on campus

Based on a special relationship

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62
Q

SPECIAL RELATIONSHIPS

A

Entrustment
Ship Captain & Seaman In Distress
Hospitals & Patients; ERs & EEs
Common Carrier & Passenger

Legal Custodian & Charge
Jailor & prisoner
School & young student (not university)

Unique Position of Control & Quid Pro Quo
Innkeeper & Guest
Landlord & Tenant

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63
Q

Duty, Nonfeasance, & Special Relationships

A

A special relationship may give rise to a duty for nonfeasance to:

aid or rescue

warn or protect

control

Special relationships are typically based on entrustment, control, quid pro quo, or specialized knowledge

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64
Q

Types of Special Relationships

A

Entrustment
Ship Captain & Seaman In Distress
Hospitals & Patients; ERs & Ees

Legal Custodian & Charge (Control)
Jailor & prisoner
School & student

Quid Pro Quo or Unique Control of Premises
Innkeeper & Guest
Landlord & Tenant

Specialized Knowledge

Therapist & Patient

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65
Q

Commonwealth v. Peterson

A

As a General (No) Duty Rule:

A person does not have a duty to warn or protect another from criminal acts of a 3rd person

Exception:

There’s a special relationship between P & D
(business owner/invitee or landlord/tenant) &

The harm to P was particularly foreseeable
(an imminent probability of injury

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66
Q

Tarasoff v. Regents

of Univ. of CA

A

Duty based on Special Relationship (“Tarasoff Duty”)
A therapist may owe a duty to take reasonable
steps to protect others from their patients

The duty to protect 3rd parties is based on –

the special relationship between
therapist & patient
The duty arises when therapist determines/shld have determined patient poses a serious threat to others

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67
Q

Riss v. N.Y.

A

Police have no tort duty to protect individual citizens from threatened crimes

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68
Q

PUBLIC DUTY DOCTRINE

A

Any duty owed by government actors is

owed to the public at large
rather than to any specific individual

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69
Q

UNDERTAKINGS

A

One who voluntarily undertakes efforts to
aid or protect another person acquires a duty

Traditional Rule
Not to abandon efforts so as to leave the
person in a worse position than before the undertaking

Modern View
To exercise reasonable care in providing aid or
protection during the actor’s charge

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70
Q

Good Samaritan

Statutes

A

Good Samaritan Statutes …

Protect rescuers from civil liability for negligence,

Provided rescuer acting in good faith

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71
Q

Gratuitous Promise

& Reliance

A

A duty arises for nonfeasance when

D promises to
undertake efforts to help P &

P relies on D’s promise to his or
her detriment

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72
Q

Delong v. Erie County

A

Tort liability against County
for negligence in failing to rescue
may proceed where there is –

a gratuitous promise &
detrimental reliance

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73
Q

Hand Formula

A

If B < P x L then D acted unreasonably (breach)
If B > P x L then D acted reasonably (no breach)

P = Probability of harm occurring
L = Level of seriousness of the potential injury
B = Burden on D of avoiding harm (taking
precautions)
* Hand Formula only applies when SOC is Reasonable Care

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74
Q

Evaluating BREACH of the RPP Standard of Care

A

Hand Formula (B

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75
Q

Custom

A

A “custom” is …
A “fairly well defined” practice in the relevant business or industry
A widespread, common practice

In general, a custom/industry practice

May be used as EVIDENCE of what a
RPP wld do under similar circumstances

BUT it is NOT a conclusive test of breach

 (B/c the custom itself may be unreasonable or
   inapplicable under the circumstances)
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76
Q

Professional

Standard of Care

A

Doctors are held to the standard of
conduct of –

The ordinary physician (member of the medical profession) in good standing

Under the same or similar circumstances

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77
Q

Boyce v. Brown

A

In malpractice cases,

The CUSTOM of the profession is determinative on the issue of breach

The doctor’s compliance with custom shields the doctor from liability

The doctor’s deviation from custom proves the doctor’s breach

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78
Q

To prove medical malpractice P must –

A

Offer affirmative Ev of community practice (custom) using expert testimony

Unless the negligent conduct is so
grossly apparent that a layperson
would have no trouble recognizing it

But, another Doctor’s alternative course of treatment is insufficient Ev of breach

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79
Q

Typical professionals subject to a professional standard of care

A 
Medical Doctors
  Attorneys
  Dentists
  Veterinarians
  Architects &amp; Engineers
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80
Q

Criteria for evaluating “professional” status:

A

Formal training
Licensing
Self-regulating
Complex judgment

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81
Q

Violation of Statute

2-step analysis

A

Using Violation of Statute to evaluate
breach requires a 2-step analysis –

A determination that statute is relevant (Judge should adopt)

A determination of the effect of the violation on breach (Jury use)

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82
Q

JUDICIAL ADOPTION OF STATUTES

A

TYPE OF HARM to be prevented
Whether P’s injury is the type of harm
the statute was designed to prevent

 PROTECTED CLASS
     Whether P belongs to the class of persons 
     the statute was designed to protect
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83
Q

EFFECT OF VIOLATION

OF STATUTE

A

Negligence Per Se (w/ excuse)
Rebuttable Presumption
Evidence of Negligence

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84
Q

Traditional Negligence Per Se

A

Violation of a relevant statute is
conclusive evidence of breach

 Negligence per se means ….   negligence “in itself”
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85
Q

Ney v. Yellow Cab Co

A

Prong 1: Type of Harm
(Whether P’s injury is the type of harm the statute was designed to prevent)

A type of harm the statute was designed to protect against (auto theft related safety) was the type of harm P suffered (auto theft related harm)

Prong 2: Class of Persons Protected 
 (Whether P belongs to the class of persons the statute was designed to protect)

The class of persons the statute was designed to protect (general public) was same class P was member of (a member of the public)

How well did you know this?
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86
Q

Osborne v. McMasters

  • traditional neg.
  • Violation of a statute- effect
A

[CB at 218]
Traditional Negligence Per Se

   Violation of a relevant statute is
  conclusive evidence of breach 

 Negligence per se means ….   negligence “in itself”
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87
Q

Zeni v. Anderson

*Violation of a statute- Effect

A

REBUTTABLE PRESUMPTION

The violation of a relevant statute –

Establishes a prima facie case of
negligence (breach)

That may be rebutted by showing
an adequate excuse

88
Q

Restatement EXCUSES to breach based on a Violation of Statute
(“I’ve got LICE!”)

A 
Incapacity
Lack of knowledge of facts needed to comply
Inability to comply
Compliance creates greater risk
Emergency
89
Q

Modern Rule
Negligence Per Se w/ Excuse
*Violation of statute: Effects

A

An UNexcused violation of a relevant
statute constitutes –

conclusive evidence of breach (negligence in itself)

90
Q

Evidence of Breach
(minority rule)
*Violation of statute: Effects

A

Violation of an applicable statute
offers –

EV of breach that the fact finder
may accept or reject

91
Q

Washington Pattern Jury Instructions

*violation of statute example thing

A

The violation, if any, of a [statute] [ordinance] [admin. rule] [internal gov’tl policy] is not necessarily negligence, but may be considered by you as evidence in determining negligence.

COMMENT
RCW 5.40.050 provides, in part: “A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence ….”

92
Q

NEGLIGENCE

ELEMENT 2 – BREACH & RES IPSA
3 things

A

Direct v. Circumstantial Evidence
Doctrine Prerequisites
Effects of Doctrine

93
Q

APPROACHES FOR EVALUATING BREACH

A

Hand Formula
Community/Industry Custom
Violation of Statute
Res Ipsa Loquitur

94
Q

PROOF OF NEGLIGENCE

DIRECT EVIDENCE of NEG.

A

Ev of negligence from personal

knowledge or observation

95
Q

PROOF OF NEGLIGENCE

CIRCUMSTANTIAL EV of NEG

A

Ev from which a jury may infer negligence

96
Q

RES IPSA LOQUITUR

The “thing speaks for itself”

A

Allows jury to infer the D breached

Without any proof other than the
happening of the event itself

97
Q

Res Ipsa Prerequisites

*Byrne v. Boadle

A

The event ordinarily does not occur w/o some negligence (e.g. a barrel rolling out of a window)

The instrumentality was in D’s control

Effect of Res Ipsa: A presumptive inference of negligence

98
Q

McDougald v. Perry

A

Prerequisites for Res Ipsa:

An injury causing event that does not
ordinarily occur w/o negligence

D’s exclusive control over the instrumentality

Effect of Res Ipsa: A permissive inference of negligence

99
Q

Larson v. St. Francis Hotel

A

Prerequisites for Res Ipsa:

  • An injury causing event that does not
    ordinarily occur w/o neg
  • Instrumentality in D’s “exclusive” control(P must eliminate “all possibility” event caused by someone other than D)
100
Q

Cruz v. Daimler Chrysler Motors

A

Prerequisites

The event is of a kind which ordinarily does not occur in the absence of neg.

Other responsible causes, including the conduct of the plaintiff & 3rd persons are sufficiently eliminated by the EV

Effect of Res Ipsa

A permissive inference of negligence

101
Q

Jurisdictional Split re Control Required - Res Ipsa

A

Traditional Approach
P must prove D’s “exclusive” control (Larson Case)
No possibility event caused by someone other than D

Modern Approach
Other responsible causes (other than D) “sufficiently eliminated” (Restatement)

More likely than not D had control of the instrumentality at the time of the negligence

102
Q

PROCEDURAL EFFECTS

Res Ipsa Loquitur may establish:

A

A permissible inference of breach
[majority rule]

A presumptive inference of breach
[minority rule]

103
Q

Res Ipsa Loquitur

2-step analysis

A

Using Res Ipsa Loquitur to evaluate
breach requires a 2-step analysis

A determination that facts of the case meet the res ipsa prerequisites

A determination of the procedural effect of res ipsa evidence

104
Q

ELEMENT #3: CAUSATION

A

I. Factual Cause (cont.)
A. “But For” Test
B. Exceptions to the “But For” Test

II. Proximate (Legal) Cause
A. General “Foreseeable” Harm Rule
B. Clarifying Principles
C. Superseding Intervening Forces

III. Joint Tortfeasors

105
Q

Factual Cause

A

Generally, P must show that -

But For D’s negligent conduct, P’s harm would not occured.

106
Q

MULTIPLE CAUSE SCENARIOS
(multiple negligent acts cause P a single injury)

*Causation

A

MULTIPLE “NONE ALONE” CAUSES
(in combination causes)

-Apply BUT FOR test

MULTIPLE “ANY ALONE” CAUSES
  (redundant causes)     -Apply SUBSTANTIAL FACTOR test
107
Q

“BUT FOR” EXCEPTIONS

*Causation

A 
Any Alone Causes (Subst’l Factor Test)
Who Done It Situations (Burden Shifting)
  - Summers v. Tice  
 - Enterprises
  - Market Share Liability
108
Q

Summer v. Tice

A

Where P cannot determine which of several
negligent Ds caused the harm,

The burden of proof shifts to Ds &

Ds must prove they were not a factual
cause of P’s harm

109
Q

Perkins v. Texas & New
Orleans RR
*factual cause

A

“It is fundamental that negligence is not
actionable unless …

“it is a cause in fact of the harm for which recovery is sought.”

“It need not . . . be the sole cause.”

110
Q

FACTUAL CAUSE: “BUT FOR” TEST

A

Generally, P must show that –
“But for” D’s negligent conduct,
P’s harm would not have occurred

D is not a factual cause of P’s injury –
If P’s injury would have occurred anyway
(regardless of D’s neg. conduct)

111
Q

Applying the “BUT FOR” Test

A

Replay the event &
Take away D’s negligent conduct
-If P Unharmed => D is A FACTUAL CAUSE
-If P STILL injured => D is NOT A FACTUAL CAUSE

112
Q

Reynolds v. Texas
& Pac. RR
*Causation

A

What Done It?

The “mere possibility” that P’s injury might have happened without D’s neg. conduct …

is not sufficient to break causal link

113
Q

Post Hoc

*causation

A

One thing follows another

Does not satisfy factual causation

114
Q

Propter Hoc

A

One thing happens because of something else (“on account of this”)

115
Q

Hill v. Edmonds

A

In None Alone multiple cause scenarios,

The “But For” Test applies

Each actor is responsible if

their separate acts of negligence combine to produce a single injury

116
Q

Anderson v. Minn.

St. Paul RR

A

In Any Alone multiple cause scenarios,

Where 2 forces either of which alone could have independently caused the harm

Apply the Substantial Factor Test:

Applying the substantial factor test, each D’s neg. will be a cause in fact if …
it materially contributed to
bringing about P’s harm

117
Q

RS (2nd) BURDEN SHIFTING

A

The burden of proof shifts to Ds to prove
they were not a cause in fact where:

Small # Ds

Simultaneous negligent conduct

Conduct created similar risks

Only 1 D actually inflicted P’s injury
____________________

All Ds joined in lawsuit (some juris)

118
Q

Enterprise (Industry-Wide) Liability Theory

A

Enterprise theory shifts the burden to Ds to
show they were not a “but for” cause where:

The entire industry group is small
An industry-wide practice creates an
unreasonable risk of harm

The industry group jointly controls the risk

119
Q

Market Share Liability
Sindell v. Abbott Labs
*Factual cause- who done it

A

Under exception, if P can
-Join Ds constituting a “substantial share of market &
-Show these Ds made and marketed DES
then burden shifts to Ds to prove lack of causation (they did not make pills P took)

If D cannot meet burden,

  • D responsible for a share of P’s damages &
  • The portion is based on D’s market share of DES
120
Q

Policy Considerations: “A FFair DEAL

A

A = Allocation of Loss
FFair = Foreseeability & Fairness (moral blame)
D = Deterrence
E = Economic Burdens (on D & community)
A = Administrative Concerns
L = Legislative Considerations

121
Q

Atlantic Coast Line R. Co.

v. Daniels

A

Factual cause alone
can not be the basis
for negligence liability

122
Q

Proximate Cause Tests

A

Foreseeable Consequences (maj. rule)

Restatement Factors* (min. rule)

Direct Causation* (mostly obsolete)
______________________
* You will NOT be tested on this test.

123
Q

Overseas Tankship v. Morts Dock (Wagon Mound No.1) [CB at 323]
*Proximate cause

A

Foreseeable Consequences Test

D’s liability depends on the reasonable foreseeability of the consequent damage

Ds are only liable for anticipated, expected consequences of their negligent acts

124
Q

FORESEEABLITY TEST

A

What actual type of harm, actual consequence did P suffer
What were the expected risks of D’s neg conduct?
-Was P’s type of harm one of the expected risks?
If NO match = no proximate cause
If YES match = proximate cause unless SIF

125
Q

Foreseeable Consequences Test

A

D’s liability depends on the reasonable foreseeability of the consequent damage

126
Q

Clarifying Principles

A

Extent of Harm
Eggshell Skull Plaintiffs
Manner of Harm

127
Q

Extent of harm rule

A

So long as P’s type of harm was reasonably foreseeable,

-The extent of p’s harm need not be foreseeable.

128
Q

Eggshell Skull Plaintiff Rule

A

So long as a personal injury is reasonably foreseeable –

P’s particular/more extensive personal injury need not be foreseeable for proximate cause

129
Q

Bartolone V. Jeckovich

A

Eggshell rule
A D must take a P as he finds him
D may be held liable for aggravation of P’s pre-existing conditions

130
Q

Manner of Harm Principle

A

So long as Ps type of harm was reasonbaly foreseeable

-The manner (sequence of events) in which the harm occurred need not be foreseeable

131
Q

PROXIMATE CAUSE ANALYSIS

A

Foreseeable Consequences
P’s type of harm must be a reasonably
foreseeable consequence of D’s negligence

Intervening Forces
No superseding (unforeseeable) intervening forces
All intervening events must be foreseeable to  maintain causal link
132
Q

Proximate Cause - Superseding Forces

A

Superseding —> Unforeseeable intervening forces –>Cut off liability harms (no proximate cause)

NON- Superseding –> Foreseeable intervening forces –> D remains a proximate cause

133
Q

3 INTERVENING FORCES PATTERNS

A

LATER NEGLIGENCE BY OTHERS - often foreseeable (not superseding)
LATER INT’L/CRIM CONDUCT - often unforeseeable (superceding)
LATER ACTS OF NATURE -
often foreseeable (not superceding)
unless extraordinary & unanticipated

134
Q

*Derdiarian v. Felix Contracting

Foreseeable Intervening Act Rule

A

If intervening act is a Foreseeable outcome of D’s neg…
it is NOT superseding &
D remains a proximate cause

If intervening act is UNforeseeable
(extraordinary/far removed from D’s neg)…
it is Superseding &
it severs proximate cause

135
Q

Watson v. Kentucky & Indiana Bridge & R.R. [CB at 350]
*Proximate Cause - Intervening Forces

A

An intervening intentionally malicious act is an unforeseeable later act &

therefore a superseding intervening force that breaks the causation chain (no proximate cause)

136
Q

Type of Harm Foreseeable?

A

Foreseeable Consequences Test
Clarifying Principles

Extent of Harm Rule
Eggshell Skull Plaintiff Rule
Unusual Manner Principle
Rescue Doctrine (new!)

137
Q

The rescue doctrine

A

As a general rule, if P is a rescuer injured attempting rescue necessitated by D’s negligence

  • P’s harm will be a foreseeable consequence of D’s negligent conduct
  • “Danger invites rescue”
138
Q

2 Part Proximate Cause Analysis: Part II

A

Intervening Forces

  • No superseding (unforeseeable) intervening force
  • All intervening events must be foreseeable to maintain causal link
  • 3 Rules of Thumb
139
Q

Palsgraf Dissent

A 
Proximate Cause ”Hints”
 -Something w/o which the event would 
     not have happened
 -Foreseeable
 -Natural &amp; continuous sequence
 -Not too attenuated (in time &amp; space)

-Direct connection (few intervening factors

140
Q

Palsgraf Dissent

A

“There is in truth little to guide us other than common sense”

“What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice,”

“The law arbitrarily declines to trace a series of events beyond a certain point”

					 –  J. Andrews
141
Q

Negligence Damages element

A

P must prove actual damages (monetary loss) as part of her prima facie case for negligence

142
Q

BASIC TORT DAMAGES

A

compensatory
punitive
nominal

143
Q

COMPENSATORY

DAMAGES

A

To make the injured party “whole”

As compensation, restitution, or indemnity (& nothing more)

144
Q

Personal Injury

Compensatory Damages

A

Pain & Suffering
Medical Related Expenses
Lost Earnings/Earning Capacity

145
Q

Property Damage

Compensatory Damages

A

Full market value
Loss in market value
Rental value

146
Q

PUNITIVE DAMAGES

A

An additional monetary sum awarded where
D acted w/ malice or reckless disregard:
- to punish the D
- to deter the D & others engaged in
similar conduct
Punitive damages are not awarded in ordinary negligence actions
Note: In WA, punitive damages are not available (unless explicitly provided for by statute)

147
Q

NOMINAL DAMAGES

A

Typically a small, symbolic sum awarded if P has no actual damages
to vindicate P’s rights &
to prevent D from acquiring
prescriptive rights

Nominal damages are not available in negligence actions. P must prove actual damages to prevail

148
Q

General Damages Rule

A
  • Single recovery rule
  • Avoidable consequences doctrine (Aka duty to mitigate)
  • Collateral Sources rule
  • Maximum recovery rule
149
Q

SINGLE RECOVERY RULE

A

All compensatory damages for P’s losses (past, present & future) must be awarded at the time of trial

TIME VALUE OF MONEY ADJUSTMENTS

Downward to Present Value
Upward for Inflation

150
Q

Doctrine of avoidable consequences (aka duty to mitigate) #1

A

P may not recover for any exacerbation of damages that

-P could have avoided by exercising reasonable care after D’s legal wrong brought about the harm

151
Q

Doctrine of avoidable consequences (aka duty to mitigate damages) #2

A

in personal injury cases, P cannot recover damages for injuries that
- P could have readily avoided (e.g. by obtaining appropriate medical treatment)

152
Q

Doctrine of avoidable consequences # 3

A

In personal injury cases, P cannot recover damages for injuries that
- P could have readily avoided (e.g. by obtaining appropriate medical treatment)

153
Q

Doctrine of avoidable consequences

A

Doctrine of avoidable consequences
V.
P’s own negligence (comparative/contributory negligence defense)

154
Q

COLLATERAL SOURCE RULE

*Montgomery Ward v. Anderson

A

Payments made to injured P from other sources are not credited against D’s liability [RS2nd]

Excludes Ev of payments to
P from sources collateral to D
wrongdoer

155
Q

Procedural Aspect

*Collateral source rule

A

Prohibits Ev of payments to P from sources collateral to D

156
Q

Substantive Aspect

*Collateral source rule

A

Payments from collateral sources are not credited against D’s liability
*Tort reform efforts have modified and/or eliminated this rule in many states

157
Q

Remittitur
*Anderson v. Sears
Roebuck & Co.

A
  • Procedurebywhichanexcessivejury verdict isreduced.

- The judge may order the plaintiff to remit a portion of the award (or face a new trial).

158
Q

MAXIMUM RECOVERY RULE

A

Trial Judge must determine:
-whether jury verdict exceeds maximum amount a reasonable jury would award
-A jury’s award may not be second-guessed
judicially if it is within the maximum amount
of damages reasonably supported by the
evidence

159
Q

PERSONAL INJURY DAMAGES

A 
Pain &amp; Suffering
  Medical &amp; related expenses
  Lost earnings v. lost earning capacity
  Disability &amp; Disfigurement
         (aka “loss of enjoyment of life”)

________________
* D & D may be included with pain & suffering

160
Q

Medical & Medical related costs

A

Medical & medical related cost awards reimburse P for expenses of

  • diagnosing & treating P’s injuries resulting from the tort
  • E.g., hospital bills, rehabilitation therapy, ongoing nursing care
161
Q

Lost earnings and lost earning capacity

A
  • Compensation for actual lost wages or income due to the injury (what P would have earned)
  • Compensation for P’s lost potential to earn income due to the injury (what P could have earned)
162
Q

Disability & Disfigurement (aka loss of enjoyment of life)

A

Disability & disfigurement awards compensate P for…

-Lost life experiences and lost life pleasures due to physical & mental impairment

163
Q

Legal Videos

A

“Day-in-the-life” videos constitute evidence (usually admitted during the damages phase):

To show jurors the impact of a catastrophic injury on victims & their families

  • “Settlement documentary” (videos are used pre-trial):
  • To present plaintiff’s case to mediators, jurors, and opposing counsel
164
Q

PROPERTY DAMAGES

A

Complete destruction
→ fair market value

Partial damage
→ diminution in fair market value or
→ reasonable cost of repair

Temporary deprivation of use
→ rental value

165
Q

JOINT TORTFEASORS are…

A

Defendants who either:

Act in concert
Cause a single indivisible harm
Are vicariously liable

166
Q

Acting in concert

A

Ds are joint tortfeasors if…

  • they agree to engage in or aid one another in committing a tort or
  • they encourage one another to commit a tort
  • e.g., participate in drag race
167
Q

Indivisible injury

A

Ds are joint tortfeasors when…

  • their independent acts bring about a single indivisble harm
  • e.g., independent neg acts by D1 & D2 turn into a human fireball
168
Q

Vicarious liability

A

Ds are joint tortfeasors where

  • a relationship between them makes one liable for the torts of the other
  • e.g. employers may be held liable w/o fault for certain torts by their employees
169
Q

Joint & Several liability

A

Common law traditionally allowed
P to recover –

the entire amount of damages
from any one joint tortfeasor or

A share of the damages from
each joint tortfeasor

—– Under common law joint & several liability, multiple (solvent) Ds typically

Ended up responsible for pro rata shares
of P’s total damages either because

    • P’s collected evenly from all, or
    • the D held responsible by P then sued others for contribution
170
Q

Bartlett v. New Mexico Welding Supply

A

Adopts principle of comparative fault among liable Ds

Each D now only liable for a fault based share of P’s total damages

P must bear the risk of unknown or insolvent Ds

171
Q

Joint & Several Liability

modern and traditional rules

A

Joint & Several Liability
(traditional rule)
P may recover the entire amount of damages from any joint tortfeasor

Comparative Fault Among Ds
(modern rule)
P may recover only a fault-based share of damages from any joint tortfeasor

172
Q

DEFENSES TO NEGLIGENCE

based on Ps conduct

A

Contributory Negligence
Comparative Negligence
Assumption of the Risk

173
Q

CONTRIBUTORY NEGLIGENCE

A

P’s own negligence bars all recovery
from other negligent persons

Applies where P’s own conduct:

falls below “the standard of conduct” which
P should conform for her own protection

is “a legally contributing cause” w/ D’s neg
in bringing about P’s harm

174
Q

Butterfield v. Forrester

A

Contributory Negligence Defense

“One person being in fault will not
dispense with another’s using ordinary
care for himself”

175
Q

LAST CLEAR CHANCE DOCTRINE

A

Creates an exception to the
contributory negligence defense where:
- D had the opportunity to avoid the accident after the P no longer could
- If applicable, D remains liable despite
P’s prior negligence

176
Q

DEFENSES BASED ON

P’S OWN NEGLIGENCE

A

CONTRIBUTORY NEGLIGENCE
P’s own negligence bars all recovery
from other negligent persons

  Unless D had the Last Clear Chance to
   avoid the harm
177
Q

McIntyre v. Balentine

A

The McIntyre Court …
Rejected Contributory Negligence
Adopted Comparative Fault

Modified comparative negligence

  • P’s recovery is reduced by P’s own percentage of fault
  • Unless P’s own fault is > 49% then P’s recovery is completely barred
  • P recovers so long as P’s neg is < D’s neg (aka “the equal to or greater than fault bar)
178
Q

COMPARATIVE NEGLIGENCE

(modern majority approach)

A

P’s own negligence reduces P’s recovery from other negligent persons

Unless P’s negligence exceeds a set level of fault & then P’s claim is barred

179
Q

COMPARATIVE

NEGLIGENCE FORMS

A

PURE Comparative Neg (minority)

MODIFIED Comparative Neg (majority)
MODIFIED & MULTIPLE Ds
-combined fault rule (maj. rule)
-individual fault rule (min. rule)

180
Q

Pure Comparative Negligence

A

P recovers from Ds regardless of
P’s own negligence

But, P’s recovery reduced by P’s own
share of fault

181
Q

MODIFIED Comparative Neg.

A

P’s recovery is reduced by P’s own
share of fault,

Unless P’s neg exceeds the set level of culpability, at which point P’s recovery is completely barred

“Greater Than” Fault Bar (majority)
“Equal or Greater Than” Fault Bar
“More than Slight” Fault Bar (1 state)

182
Q

Assumption of the risk

A

Where P knowingly & voluntarily assumes responsibility for a risk:
- Generally P can not hold D liable

183
Q

DEFENSES BASED ON P’S CONSENT TO ACCEPT RISK

A

Express Assumption of the Risk
- P explicitly agrees in advance to assume
a risk

Implied Assumption of the Risk

  • P’s assumption of a risk is implied by P’s conduct
184
Q

Seigneur v. National

Fitness Institute

A

Express Assumption of the Risk
-Exculpatory clauses valid unless ambiguous or legislatively prohibited

Exceptions:
- Int’l or reckless, wanton, or grossly neg. conduct

  • Grossly unequal bargaining power
  • Public interest transactions
185
Q

Public Interest Transactions

A

Totality of the Circumstances Test

  • public service obligations
  • important to public good where exculpatory clause “patently offensive”

Tunkl Test Factors

   Suitable for public regulation
   Essential service
   Services held open to public
   Superior bargaining power
   Adhesion K
   Seller control over &amp; subjects P to risk
186
Q

Implied Assumption of risk

A

P’s consent to accept responsibility is implied by P’s conduct
P’s recovery barred if D proves P’s conduct shows –

P knew of the risk & its magnitude
P voluntarily encountered the risk

187
Q

Rush v. Commercial

Realty [CB at 644]

A

Implied Assumption
of the Risk Defense

P must know   of risk (subjective knowledge) 

 AND
 voluntarily encounter it
188
Q

Jurisdictional
Split

IMPLIED
A/R

A

P’s conduct is voluntary ….

  • unless coercion or duress (broadens defenses)
  • only if P had reason. alternatives (restricts defense)
189
Q

Meshing Implied A/R & Comparative Negligence

A

Jurisdictional Split

A/R Subsumed (modern trend)
Unreasonable A/R reduces P’s recovery according to Comparative Fault rules

A/R no longer bar on P’s recovery

A/R Retained (traditional rule)
A/R Remains Complete Defense (full bar)

190
Q

Express A/R Fully Retained

A

A/R Remains Complete Defense

P’s claim barred regardless of P’s negligence or lack of negligence

191
Q

Vicarious liability

A

The negligence of one person is imputed to another person based on the relationship between them

192
Q

Vicarious liability special relationships

A
  • employer/emplyee
  • employer/ IC
  • Joint enterprise
  • bailments
193
Q

Employment V/L framework

A

Step 1:
Is the tortfeasor an EE or IC?

Step 2:
if EE was s/he acting with scope of employment?
If IC, do any of the ecveptions to the general rule of no V/L apply?

194
Q

Vicarious Liablility Rule

A

Employees (EE)
in general an ER is liable for torts for an EE committed w/in the scope of employment

IC
in general an ER is not liable for torts of an IC

195
Q

Murrell v. Goertz

A

To determine tortfeasor’s status as EE or IC

Court applied “right of control” test

The more control over performance of
the work that ER has, the more likely
tortfeasor will be considered an EE

196
Q

Factors for evaluating EE v. IC status

A
  • Control ofver details of work
  • similarity of occupation or business
  • supervision
  • skills
  • Tools and place of work
  • Duration
  • Payment method
  • understanding of the parties
197
Q

Bussard v. Minimed - within the scope of employment

A

Within the Scope of Employment

While performing services for the
Employer (ER)

While engaged in personal acts
incidental to employment (comfort & welfare)

While participating in dual acts

198
Q

*Bussard v. Minimed

“GOING & COMING RULE”

A

An EE is ordinarily outside the scope of work while commuting to & from work

Exception: foreseeable dangers “arising from or related to” work

199
Q

O’Shea v. Welch

A

FROLIC & DETOUR RULE
(aka “Slight Deviation” Rule)

An EE is ordinarily outside scope of work while on a frolic (major deviation)

An EE is ordinarily within scope of work if merely on a detour (slight deviation)

Personal acts far removed in time, distance, purpose, or expectations of the employment are frolics

Personal acts closely related in
time, distance, purpose & expectations of employment are mere detours

200
Q

APPROACHES FOR DETERMINING

W/IN THE SCOPE OF EMPLOYMENT

A

Engaged in ER work or Personal Conduct Incidental to work (including dual acts)

  • Foreseeable dangers related to or arising from the employment
  • Mere Detour (v. Frolics)
  • ER Right of Control
  • Furtherance of ER Purpose
201
Q

Vicarious Liability & Intentional Torts

A

An ER may be held V/L for some intentional torts by its EEs

202
Q

Vicarious Liability & Damages

A

If an EE acts negligently, P may recover compensatory damages from a V/L ER

If an EE commits an intentional tort, P may recover compensatory damages from a V/L ER (no other damages)

203
Q

ANALYTICAL APPROACH

for V/L

A

STEP 1:
Is the tortfeasor an Employee (EE) or
an Independent Contractor (IC)?
STEP 2:

If EE, was s/he acting within the
“scope of employment”?

If IC, do any of the exceptions to
the general rule of no V/L apply?

204
Q

INDEPENDENT CONTRACTORS

A

GENERAL RULE:
In general, ERs are not liable for the torts of Independent Contractors

MAJOR EXCEPTIONS:
Nondelegable Duties (nondelegable liabilities)
Inherently Dangerous Activities

205
Q

Maloney v. Rath

*Nondelegable duty

A

Nondelegable Duty Exception

Nondelegable duty exists for
motorist’s safe maintenance of cars

Motorist can be V/L for mechanic/IC torts for unsafe car maintenance

206
Q

NONDELEGABLE DUTY EXCEPTION EXAMPLES:

A

Car Owner’s duty to safely maintain brakes

General contractor’s duty to construct
buildings safely

Landowner’s duty to maintain ppty in
a reasonably safe condition

A hospital’s duty to provide emergency care

207
Q

Inherently Dangerous activities

*IC

A

Activities that by their nature involve rave risks of harm

208
Q

Inherently dangerous activity exception

*IC

A

ER may be V/L for negligence of IC engaged for inherently dangerous activities

209
Q

INHERENTLY DANGEROUS ACTIVITY EXCEPTION EXAMPLES:

*IC

A

crop dusting w/ poisonous chemicals

transporting giant logs on a highway

painting lines in middle of road

unloading propane gas at filling station

210
Q

INHERENTLY DANGEROUS - ACTIVITY EXCEPTION

A

ER may be vicariously liable for neg of
IC engaged for inherently dangerous activities

EXCEPTION TO THE EXCEPTION:
COLLATERAL NEGLIGENCE

ER is NOT vicariously liable for collateral
neg. of IC engaged in inherently dang activity

“Collateral Negligence” is risk creating conduct unrelated to the inherent danger of activity

211
Q

JOINT ENTERPRISES

GENERAL RULE

A

Vicarious Liability

may be imposed upon those engaged in a joint enterprise

212
Q

Popejoy v. Steinle

*Joint enterprise test

A

Joint Enterprise Test

Agreement
Common Goal
Pecuniary Purpose
Equal Right to Control

213
Q

Bailment Relationships

A

Generally bailors are NOT vicariously liable for acts of Bailees

Exceptions:

bailor/passenger
family purpose doctrine (or family car doctrine)
automobile consent statutes

214
Q

Malchose v. Kalfell

A

Family Car Doctrine

Imposes V/L on owner-lender (bailor) of a car for

Negligent operation by a person driving with consent (bailee) for family purposes

215
Q

VICARIOUS LIABILITY

and Negligence

A

D is liable for negligence of another person based on their relationship (imputed liability)

NEGLIGENCE
D’s own conduct is negligent, falls below the applicable standard of care

“negligent entrustment” is D’s own negligence in entrusting chattel

Torts 2 (2 decks)

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