Torts Flashcards
Under tort law, what is a duty?
Everyone has a general legal duty to act reasonable so as not to harm others who behave in ordinary ways. Special duties can also derive from particular relationships (doctor-patient, attorney-client)
What prompted Biakanja v. Irving?
Notary public prepared a will and acted as an attorney, which ultimately caused the recipient of the deceased’s property to only receive 1/8 of the estate. Previous court found that the notary negligently prepared the will.
How did the court rule in Biakanja v. Irving?
Court needed to establish the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm, the degree of certainty that the plaintiff suffered injury, the closeness of connection between the defendant’s conduct and the injury, the moral blame, and the policy of preventing future harm.
Court found the defendant caused the harm and was negligent and improper in undertaking the will. Therefore, he is not protected by immunity from civil liability.
What is the formula for the breach of standard care?
Negligence of standard care is breached if, the burden of preventing the harm (A) was less than the gravity of the harm (B) multiplied by the probability it would occur (C); established by Judge Learned Hand
What is the “but-for” rule?
In tort law, a connection between the allegedly negligent act and consequences must exist. The test is called the “but-for” test. Would the harm have occurred even without the act or omission? Some courts require the act to be a substantial factor in causing the harm.
What is the difference between compensatory and pain and suffering or punitive damages?
Compensatory - damages recovered for loss due to injury, such as lost wages or medical expenses
Pain and Suffering - usually requiring an identifiable manifestation of pain and suffering, usually a multiple of compensatory damages or a per-day amount
Punitive - Meant to punish a defendant or deter future acts, may be overturned for lack of due process
What are joint and several liability, and what is comparative negligence?
Joint and Several - each person who causes harm is negligible; harmed person can pursue full recovery for each but need not pursue all
Comparative Negligence - if someone’s own negligence contributed, they might not receive damages; damages may be awarded based on % of fault or not at all if it exceeds 50%
What does contribution mean?
A wrongdoer who owes damages may seek recovery from other wrongdoers in proportion to their comparative negligence
What is strict liability?
Damages can be recovered even if there is no proof the harm was caused by negligence. Liability is imposed on the theory that those who partake in ultra-hazardous activities pose serious risks to others
What must an individual show to recover under product liability?
Prove that a product defect caused injury and that the injury resulted from a use of the product that was reasonably foreseeable
What are some examples of intentional harms?
Assault and battery, false imprisonment, intentional infliction of emotional distress, intentional interference with contractual relations, trespass and nuisance
What are fraud and misrepresentation?
Fraud is when a harm is caused by a misrepresentation known to be false and intended to be relied upon (victim must have been justified in relying upon it)
Misrepresentation is similar, but the representation need only be negligently made
Are employer’s liable for their employee’s actions?
Yes, if it is within the scope of their authority associated with work. They can also be held liable for hiring, retraining, or supervising if they negligently empowered employees to harm others.
What sovereign immunity and where does it come from?
It is the idea that the federal and state government are immune from damages liability unless the government waives its protection. It was adopted from the English law notion that the king could do no wrong.
What is the public duty doctrine and how does it relate to sovereign immunity?
It is an application of sovereign immunity. Public officials/workers acting in their capacity to serve the public are protected from claims. It does not cover specific duties undertaken to individuals.
