Torts (Delaware) Flashcards
Intentional Torts: Battery - Corporation’s Liability for President’s Conduct
A corporation can be held liable for a battery in conjunction with its president’s tortious conduct.
Intentional Torts: Battery - Self-Defense (Duty to Retreat)
Other than initial aggressors, there is NO DUTY TO RETREAT if one is in their HOME or PLACE OF WORK.
Punitive Damages - When Is This Available? + Medical Malpractice
Punitive damages are available for INTENTIONAL TORTS and RECKLESS, WANTON or WILLFULL conduct.
This INCLUDES medical malpractice from malicious intent or willful or wanton conduct.
Interference with Business or Contractual Relations
To recover for interference with contract, plaintiff must show:
1) there was a CONTRACT,
2) which defendant had KNOWLEDGE of,
3) an INTENTIONAL ACT caused BREACH of contract,
4) with NO JUSTIFICATION, and
5) it caused INJURY.
Negligence: Professional Standard
General practitioners and specialists are held to a NATIONAL standard.
Negligence: Child - Age for Negligence
Children 4.5 years or younger CAN NOT be held negligent.
Negligence: Liability of Parents for Children’s Conduct
Parents are generally NOT vicariously liable for torts of their children, BUT may be held liable for their own negligence when the children cause harm.
Negligence: Statutory Modification - Liability for Negligent Driving by Minor
Adults liable for negligent driving of a minor under 18 IF they signed the license application.
Negligence: Statutory Modification - Automobile Owner for Driver
Vicarious liability is imposed on the owner of a motor vehicle who allows a minor under the age of 18 to drive the vehicle.
Negligence: Statutory Standard of Care (Safety v. Licensing)
Violation of a statute enacted FOR SAFETY of others is negligence per se, BUT licensing statutes are generally NOT considered to set a standard of care and do not violate negligence per se.
Negligence: Causation - Factual Causation Tests in Delaware
1) But-For, and
2) Substantial factor (most typical in WORKERS COMPENSATION)
Negligence: Causation - Proximate Causation
Only foreseeable plaintiffs can recover, foreseeability is a question for the jury.
Negligence: Negligent Infliction of Emotional Distress Elements (Bystander Case)
Plaintiff must show:
1) defendant NEGLIGENTLY CAUSED FRIGHT to the plaintiff,
2) plaintiff was in the ZONE OF DANGER, and
3) the negligently inflicted fright or shock caused PHYSICAL CONSEQUENCES.
Medical Malpractice: Res Ipsa Loquitur Cases
Res ipsa loquitur applies by creating a rebuttable presumption in medical malpractice cases where:
1) a foreign object is left in the patient’s body,
2) an explosion or fire originating in a substance used in treatment of the patient occurred in that treatment,
3) surgery is done on the wrong patient or wrong body part.
Medical Malpractice: Affidavit Rule + Exception
Medical malpractice cases generally require AFFIDAVIT OF MERIT signed by medical expert (EXCEPT in res ipsa cases). This affidavit shows defendant BREACHED STANDARD OF CARE and was PROXIMATE CAUSE to harm
Duty of Care Limitations: Continuous Storm Rule
Landowner has NO DUTY to clean ice/snow until a storm has ended.
Duty of Care Limitations: Filed Rate Doctrine
A contract could validly exclude liability for negligence, but the plaintiffs might still be able to recover upon a showing of GROSS NEGLIGENCE or worse.
Duty of Care Limitations: Open and Obvious Conditions
NO DUTY exists to warn of an open and obvious condition such as a depression in a sidewalk.
Defenses: Modified Comparative Negligence
Delaware has adopted modified (partial) comparative negligence. A plaintiff is barred from recovery ONLY IF their fault is MORE THAN 50% of the total fault.
Defenses: Assumption of Risk (Primary v. Secondary)
Primary Assumption of Risk - Plaintiff KNOWINGLY and VOLUNTARILY assumes a risk, which bars duty owed to plaintiff
Secondary Assumption of Risk - Plaintiff’s conduct is UNREASONABLE when they encounter an UNKOWN RISK.
Defenses: Firefighter Rule + Exceptions
An injured firefighter cannot recover against a party whose negligence caused the fire.
Exception:
1) known pre-existing hidden defects with OPPORTUNITY TO WARN,
2) acts occurring AFTER firefighter’s arrival or from perils not related to what makes firefighting dangerous,
3) ARSON.
Defenses: Failure to Wear Seat Belts + Exception
Failure of plaintiff to wear a seat belt in violation of the seat belt statute is INADMISSIBLE on the issues of comparative negligence, EXCEPT for the limited purpose of negligent design
Tort Liability: Guest Premises Statute
The limited duty owed by a landowner to adult LICENSEES and TRESPASSERS is to REFRAIN FROM WANTON OR WILLFUL CONDUCT
Tort Liability: Landlord-Tenant - Holdover Tenant Ability To Recover Negligence + Guests of Tenant
A holdover tenant CANNOT recover for landlord’s negligence in maintaining the leasehold premises (these are considered “guests without payment”).
However, guests of tenants ARE OWED a duty of reasonable care, as they are NOT “guests without tenants” under the statute.
Tort Liability: Duty To Business Invitees
A landowner is liable for any known dangerous or dangerous that the landowner should have known from a reasonable inspection.
Tort Liability: Liability of General Contractor To Independent Contractor
A general contractor has NO DUTY to an independent contractor on the worksite, UNLESS:
1) the contractor ACTIVELY CONTROLS the manner and method of performing the work,
2) it voluntarily UNDERTAKES THE RESPONSIBILITY of implementing safety measures, or
3) it retains POSSESSORY CONTROL over the work premises during the work
Tort Liability: Tavernkeepers Rule
NO DRAMSHOP ACT in Delaware, a liquor license holder or employee must refuse to sell or serve liquor to an intoxicated person, BUT THERE IS NO PRIVATE ACTION CREATED to sue them
Tort Liability: Social Hosts
Generally, NO LIABILITY is imposed on social hosts for serving liquor to intoxicated guests.
Products Liability - Strict Products Liability + Leased Products
Delaware DOES NOT RECOGNIZE products liability actions based on strict liability, suit must be in the form of negligence or breach of implied warranty of merchantability or fitness for a particular purpose.
However, injuries caused by a defective product LEASED to the plaintiff would likely be permitted under UCC.
Products Liability: UCC Warranty Theories - Implied Warranty of Merchantability
The general warranty guarantees that a product is fit for its ORDINARY USE
Products Liability: UCC Warranty Theories - Implied Warranty of Fitness for a Particular Purpose
Applies where the seller has reason to know of any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment.
Products Liability: Third Party Beneficiaries of Warranties + Corporations
This implied warranty extends to any NATURAL PERSON who may be reasonably expected to use a good and who suffers personal injury.
Corporations CANNOT recover for this.
Products Liability: Establishing Causation in Design Defects
Similar to medical malpractice claims, an expert witness is REQUIRED to establish a defective design in a product.
Products Liability: Sealed Container Defense
Seller of product in sealed container NOT LIABLE unless manufacturer not available.
Defamation Elements (Common Law)
Plaintiff must show the following elements:
1) defamatory language specific to plaintiff,
2) publication,
3) third party’s understanding of the communication is defamatory, and
4) damages
Libel: Damages + Per Se v. Per Quod
Libel is actionable without proof of special damages.
There is NO distinction between libel per se (defamatory on its face) and libel per quod (where extrinsic evidence is necessary to establish defamatory nature)
Invasion of Privacy Claims
1) APPROPRIATION of plaintiff’s picture or name,
2) INTRUSION of plaintiff’s affairs or seclusion,
3) Publication of facts placing plaintiff in FALSE LIGHT, and
4) PUBLIC DISCLOSURE OF PRIVATE FACTS
Workers’ Compensation: Exclusivity Doctrine + Employer Immunity
The Delaware’s Workers’ Compensation Act provides the exclusive remedy for ALL ACCIDENTAL PERSONAL INJURIES or death arising out of the employment relationship (including intentional physical injuries)
An employer is entitled to immunity from a tort action brought by an employee for injuries occurring in the course of employment. This MUST be pursued through statutory worker’s compensation claim.
Workers’ Compensation: Personal Dispute Exception
Willful conduct that is directed at the employee for PERSONAL REASONS is excluded from the statute.
Workers’ Compensation: Horseplay
If an employee is injured by co-workers OUTSIDE THE SCOPE of the employment, then workers’ compensation WILL NOT APPLY, and the injured party can sue the co-workers.
Contribution and Release + Settlement
The right of contribution DOES NOT APPLY until the joint tortfeasor has paid their share
The plaintiffs release DOES NOT DISCHARGE THE OTHER tortfeasor, unless the plaintiff allows it.
If the plaintiff and tortfeasor settle, there is no right to contribution from other tortfeasors
Wrongful Death
Delaware permits recovery in wrongful death actions (surviving person sues for decedent’s rights in suit) by the surviving, spouse, parent, children and siblings for pecuniary loss
Survival of Tort Actions
Delaware’s survival statute includes all causes of action EXCEPT defamation, malicious prosecution, or actions based on penal statute.
Tort Immunities: Parental Immunity + Operation of Automobile
Parent-child immunity applies to conduct inherent to the parent-child relationship (e.g., exercise of parental authority and supervision)
Negligent operation of an automobile is NOT CONDUCT inherent to the parent-child relationship and therefore MAY BE the basis for a suit by the child against the parent to the extent of the parent’s automobile insurance policy.
Tort Immunities: Spousal Immunity
A spouse may sue the other spouse for a tort committed during marriage
Tort Immunities: Governmental Tort Immunity - State + Delaware Transit Authority + Emergency Vehicles
Delaware retains state government immunity for DISCRETIONARY acts and legislative and judicial decision making.
DelDOT - Immunity waived up to $300k per occurrence
Emergency vehicles - Immunity waived up to the amount of insurance the state has at the time.
Tort Immunities: Governmental Tort Immunity - Municipalities + Government Employee + Wavier and Limit of Damages
Municipalities retain immunity for GOVERNMENTAL and PROPRIETARY FUNCTIONS.
A government employee MAY be personally liable for acts in which the government entity is immune, ONLY IF the facts were not within the scope of the employment. ow were performed with WANTON NEGLIGENCE or WILLFULL and MALICIOUS CONDUCT.
The only conduct for which immunity is waived is for:
1) operation of motor vehicles and equipment,
2) maintenance and operation of public buildings, and
3) sudden and accidental discharge of pollutants into the environment.
A damages aware SHALL NOT EXCEED $300k, unless the municipality has insurance for more than that amount.
Good Samaritan Statute
Any person who gratuitously and in good faith renders emergency aid to someone is IMMUNE from liability for ORDINARY NEGLIGENCE, and is only liable for WILLFUL, WANTON OR RECKLESS CONDUCT.
Statutes of Limitation - Actions for 2 Year Limitations
1) Personal injury or property to damage
2) medical malpractice (can be extended to 3 from date of discovering injury)
3) Defamation and privacy
Statutes of Limitation - Actions for 3 Year Limitations
1) Medical malpractice if date from discovering injury,
2) injury unaccompanied by force
3) Interference with business relations
Statutes of Limitation: Special Rules for Sexual Abuse Cases
There is NO STATUTE OF LIMITATIONS for sexual abuse claims
Statutes of Limitation: Accrual of Cause of Action
That statute begins to run when the plaintiff had KNOWLEDGE of their physical condition caused by defendant’s negligence.
Misappropriation of Trade Secrets
Delaware’s Uniform Trade Secrets Act provides INJUNCTIVE relief for as long as the trade secret exists, and DAMAGE remedies for the misappropriation of trade secrets.
Uninsured and Underinsured Vehicle Coverage
Compensates for unknown or insolvent negligent tortfeasors, requires insurers to offer supplemental uninsured and underinsured motorist coverage.
Dog Bite Statute + Exception
Strict liability is imposed on dog owners, REGARDLESS of owner’s knowledge of any dangerous propensities
Exceptions: (i) trespassing or attempting a crime on the owner’s property, (ii) committing a crime against any person, or (iii) teasing, tormenting, or abusing the dog
Collateral Source Rule
Permits juries to be made aware of collateral payments from public sources (e.g., Medicaid)
