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Torts > Torts Final > Flashcards

Torts Final Flashcards

1
Q

What are the 2 goals of tort law

A

Compensation: P being awarded $
Deterrence: Stop others or the same person from repeating a harm
* Sub goal: Providing a process to resolve disputes

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2
Q

What are the criticisms of tort law?

A

 Compensation isn’t always enough value, for things like pain and suffering or infliction of emotional distress
 Tort law isn’t a great deterrence, but it is there

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3
Q

3 types of torts

A

Intentional
Negligent
Strict Liability

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4
Q

What is Injury defined as?

A

bodily integrity violated

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5
Q

What is harm defined as?

A

physical or mental ailment

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6
Q

Intentional Battery Elements

A

Act: external manifestation of actor’s will (non-reflex)
Intent: to make contact (with purpose or substantial knowledge)
Harmful/Offensive Contact to P
Cause in Fact
Injury (Presumed)

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7
Q

What is an Act in intentional torts?

A

An external manifestation of an actor’s will
- any voluntary movement
- not a reflex or a seizure
- think about the snowball hypo

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8
Q

What is Intent in intentional torts?

A
  • Purpose (Desire): have to have desire (snowball hypo)
  • Knowledge to a substantial certainty (95%) that contact will occur
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9
Q

Minority rule on Intent in intentional torts?

A

Dual Intent
- purpose/ know to substantial certainty
- appreciated harmfulness (subjective for ppl not of sound mind)

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10
Q

Majority Rule on Intent in intentional torts?

A

Single intent

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11
Q

What is transferred intent?

A

If an actor has a desire to do something/ knows it will happen but hits someone else, intent can transfer.

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12
Q

What is offensive contact in intentional torts?

A

 Offensive contact is bodily contact if it offends a reasonable sense of dignity
* Subjective- the individual
* Objective- society

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13
Q

What is the offensive test in intentional torts?

A

Offensive Test: Would it offend a reasonable person (RP)?
-On a bus, it probably would not offend a reasonable person

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14
Q

What is the harmful test in intentional torts?

A

Harmful Test: Look for physical impairment

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15
Q

Types of transferred intent in intentional torts?

A
  • Person to person (want to hit A, hits B on accident)
  • Tort to Tort (want to cause apprehension to A, hits A)
  • Both Person and Tort (want to cause apprehension to A, hits B on accident)
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16
Q

Intentional Tort: Assault (Elements)

A

1) Act- external manifestation of D’s will
2) Intent to cause apprehension
- purpose/ know to subs. certainty
3) P reasonably suffers apprehension of imminent H/O contact
- Imminent=near immediate
4) C/F
5) Injury (Presumed

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17
Q

What is apprehension in intentional torts?

A

Apprehension is not fear, it is anticipation

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18
Q

Intentional Tort: False Imprisonment (Elements)

A

1) Act- external manifestation of an actor’s will
2) intent (purpose/ know to SC) to confine or restrain
3) P is confined or restrained in a bounded area
4) C/F
5) Injury presumed in conscious confinement, if unconscious, need actual harm (asleep or knocked out and unaware)

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19
Q

What is a “bounded area” in false imprisonment?

A

There is no reasonable means of escape.

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20
Q

What is the purpose of damages in false imprisonment?

A

Damages compensate for loss of liberty

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21
Q

Example of no false imprisonment

A

Lady went back into a store willingly, so she could not prove detention

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22
Q

Intentional Infliction of Emotional Distress (IIED)(Elements)

A

1) Act
2) Intent to cause ED (purpose/ know to SC)
3) Extrem/Outrageous (E/O) conduct
4) C/F
5) Severe Emotional Distress (no presumed injury)

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23
Q

How is someone’s severe emotional distress determined?

A

It is a subjective test, a RP standard
- there is a “thick skin” idea for Ps that can be shown to have thick skin overriding RP (D must prove)
- If D knows of P’s particular vulnerability/sensitivities (RP overridden)
- Expert (doctor) opinion helps prove SED
- 6 non-exclusive factors as well

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24
Q

IIED Extreme/Outrageousness Test

A
  • Would a typical community member stand up and say “Outrageous!”?
  • Mere words do not equal extreme/outrageous
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25
Q

Indirect IIED Elements

A

1) Act
2) Intent (to the indirect P who suffers ED)
3) E/O Conduct
4) C/F
5) SED (same subjective and objective exceptions)
6) P present and a family member, OR P present and suffers physical manifestation

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26
Q

Trespass to Land Elements

A

1) Act
2) Intent: to enter land (yours or not)(purpose/know to SC)
3) Interference with P’s exclusive control of land
4) C/F
5) Injury (presumed but with nominal damages)

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27
Q

Trespass to land: what if a mistake?

A

Not a defense, and it does not matter if damage was foreseeable

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28
Q

Trespass to Chattel (Personal Property) Elements

A

1) Act
2) Intent (purpose/know to SC) to dispossess or intermeddle
3) Dispossession or intermeddling of P’s personal property
4) C/F
5) Dispossession= injury presumed (no time limits and not very forgiving)/ Intermeddling needs actual harm/damage

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29
Q

What is Dispossession?

A
  • D has mindset “this is mine”
  • No harm required
  • Injury Presumed
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30
Q

What is Intermeddling?

A
  • touching or messing with the chattel
  • need actual damages or harm
  • damage or substantial loss of use
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31
Q

What is Conversion?

A
  • More serious Trespass to Chattel
  • D ends up buying the chattel if liable
  • if chattel is destroyed: think conversion (total destruction is an important factor
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32
Q

Conversion Elements

A

1) Act
2) Intent (purpose/ know to SC) to interfere
3) Serious Interference with P’s personal property
4) C/F
5) Injury presumed (but practically actual damage)

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33
Q

How to determine if Conversion is severe enough?

A

1) Duration of control
2) Actor’s intent to control
3) Was it good faith or bad faith?
4) The extent and duration of resulting interference
5) What was the harm to the chattel?
6) What was the inconvenience and expense caused to the other?

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34
Q

Defenses to Intentional Torts Types:

A

Consent
Justification
To IIED

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35
Q

Defenses to Intentional Torts: Consent

A
  • Consenting to the contact, not the injury (rules of the game and paper clip kid)
  • Can be both:
    -implied: from conduct (would P’s conduct reasonably manifest consent?) (silence can manifest consent through actions)
    - express: written or well known (if there is fraud it is negated)
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36
Q

Intentional Tort Defenses: Justification Defense (3 types)

A

1) Self Defense
2) Defense of Others
3) Defense of Property

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37
Q

What is required for ITD Justification Defenses?

A

1) Reasonable belief of a need to defend
- subjective
- objective (RP)
2) Response must be proportional

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38
Q

Intentional Tort Defenses: Of Self Reasonable Belief Factors

A
  • What is the reputation of P?
  • Is P being belligerent?
  • Is there a size and age difference between parties?
  • Did D have a lack of ability to retreat? (duty to retreat first)
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39
Q

Intentional Tort Defenses: Of Self what is considered proportional

A
  • just depends on the situation, but usually deadly force is not great
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40
Q

Intentional Tort Defenses: Of Others Factors to consider

A
  • What is the reputation of P?
  • Is P being belligerent?
  • Is there a size and age difference between parties?
  • Did D have a lack of ability to retreat? (duty to retreat first)
  • this is privileged if there is a reasonable belief a family member will be assaulted
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41
Q

Intentional Tort Defenses: Of Property Factors to consider

A
  • your things are not worth a life
  • Is P being belligerent?
  • Is there a size and age difference between parties?
  • Did D have a lack of ability to retreat? (duty to retreat first)
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42
Q

Defense to IIED (First Amendment)

A
  • needs to be of public concern/policy/interest
  • helps if it can be proven it is not a personal attack
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42
Q

Defense to IIED (First Amendment)

A
  • needs to be of public concern/policy/interest
  • helps if it can be proven it is not a personal attack
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43
Q

Insurance Coverage

A
  • does not cover intentional torts
  • negligence is covered by insurance
  • must disclose if you have insurance to Federal court in intitial disclosures
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44
Q

Negligence Elements

A

1) Duty (judge decides if duty exists and what it is)
2) Breach (of duty): Did D act as a RP would have?
3) C/F
4) Proximate Cause
5) Actual Harm

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45
Q

Negligence: Duty

A

a. Does duty exist?
- if not a special rule, assume duty and apply 3 factors (relationship between D and P, whether the P was foreseeable, public policy)
- special duties: Premises liability; Duty To Help/Protect/Rescue (look at what P alleges D should have done); NIED Rules [impact, zone of danger, Dillon] (did P suffer ED?); Economic Loss; Wrongful Pregnancy/Birth/Life; Primary Assumption of the Risk
b. Act consistent with the applicable standard of care (SOC)?
- (default SOC) how a RP would act under similar circumstances
- Standard of cares can also be kid, doctor, professional (have to say on exam)

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46
Q

Negligence: Breach of Duty

A

a. RP SOC: LH, NPS, custom, RIL, notice
b. Prof. SOC: Accepted practice (custom), NPS, RIL, Informed Consent (doctor only)

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47
Q

Negligence: C/F

A
  • But for
  • Substantial Factors and Sufficiency tests for multiple stuff causes (2 fires
  • Alt. liability burden shift (2 shooters)
  • Market share burden shift
  • MedMal: all or nothing (MIN) and loss chance of recovery (MAJ)
  • Market share Liability burden shift (DES cases)
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48
Q

Negligence: Proximate Cause

A
  • Direct Consequences (MIN)(eggshell P)
  • Foreseeability (MAJ)
  • remember effect of intervening facts (and whether they’re superseding causes for foreseeability test)
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49
Q

Negligence: Actual Harm

A
  • There is NEVER a presumed injury for negligence
  • Need actual harm or there is no negligence
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50
Q

Negligence: Duty: SOC: What requires a higher SOC?

A
  • Something requires a higher SOC b/c of stuff like dangerous instrumentality, emergencies, superior skills, physical disabilities
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51
Q

Negligence: Duty: SOC: Circumstance Emergencies

A
  • emergency has to be unexpected, but if it meets that requirement than an emergency is a relevant consideration
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52
Q

Negligence: Duty: SOC: Circumstance Superior Skill/Knowledge

A
  • A RP with special skills needs to use those skills to avoid causing injury
  • considerations: training, time doing it, etc.
  • there is a floor (RP) but there is no ceiling (superior skill/knowledge)
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53
Q

Negligence: Duty: SOC: Circumstance Physical Disabilities

A
  • Physical: can get a RP SOC with the same disability (but you have to take preventative steps in the same way a disabled RP would)
  • Mental: Don’t matter (higher chance a person with a mental disability will be liable)
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54
Q

Negligence: Duty: Child SOC

A
  • How a reasonable kid of the same age, experience, and intelligence would have acted under similar circumstances
  • can revert back to regular SOC if it is a dangerous activity
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55
Q

Negligence: Duty: Professional SOC

A
  • How a reasonable professional, exercising that level of skill and knowledge common to the profession, would have acted under similar circumstances.
  • If acting within a profession, then professional SOC is applied
  • there is a floor but no ceiling
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56
Q

What type of workers get Professional SOC?

A
  • Be elitist (white collar workers):
  • doctors
  • lawyers
  • architects
  • but even plumbers
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57
Q

Negligence: Duty: Doctor SOC

A
  • How a reasonable doctor (in same community) exercising that same level of skill and knowledge common to the profession, would have acted under similar circumstances.
  • Community = strict locality, modified locality, or national (statute)
  • Doctors prefer strict liability
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58
Q

Negligence: Breach

A
  • Did the D act inconsistent with the applicable SOC?
  • There is a breach if D acted unlike a Rp would have acted under similar circumstances (assumes RP SOC)
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59
Q

Negligence: Breach: Methods of Demonstrating Breach

A

1) Learned Hand (LH)
2) Negligence Per Se (NPS)
3) Custom/Accepted Practice
4) Res Ipsa Loquitor (RIL)
5) Notice/Constructive Notice/Mode of Operation
6) Informed Consent (MedMal)

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60
Q

Negligence: Breach: Method: Learned Hand Test

A
  • D breached if : B < P x L
  • Breach = (Burden of Precaution) < (Probability of Injury) x (Severity of Injury)
  • Foreseeability Matters (Probability in LH)
  • Jury Instructions for LH
    • D acted unlike a RP would have acted under similar circumstances (find breach)
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61
Q

Negligence: Breach: Method: NPS Requirements

A

1) Statute Specific, regarding, what is required or prohibited
2) Whatever happened to P (accident/injury) has to be what the statute was designed to protect
3) P has to be a member of the class the statute was designed to protect

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62
Q

Negligence: Breach: Method: NPS Evidentiary Effects MAJ/MIN

A
  • MAJ: Unexcused Violation= jury must find breach (P wants)
  • MIN: Violation of Statute= jury may find breach (D wants)
63
Q

Negligence: Breach: Method: NPS Excuses

A

1) Violation is reasonable because of actor’s incapacity
2) Neither knows or should have known the occasion for the compliance
3) Unable after reasonable care or diligence to comply
4) Confronted by an emergency not due to their own misconduct
5) Compliance would involve a greater risk of harm to the actor or others
* Excuses apply to both the majority and minority rules

64
Q

Negligence: Breach: NPS: How to apply

A
  • MAJ NPS: No extra “reasonable person” language
  • MIN NPS: Adds “reasonable person” language
  • Standard RP SOC: No statute mentioned at all
65
Q

Negligence: Breach: NPS: Professional NPS

A
  • Common with building designers, architects, and engineers
66
Q

Negligence: Breach: Custom

A
  • (TJ Hooper tugboat incident/case)
  • Deviation from custom = evidence of breach
  • Compliance with custom = evidence of no breach
  • If cost is lower than the benefit (cheap and useful) then it is reasonable
67
Q

Negligence: Breach: Accepted Practice

A
  • Prof SOC
  • Deviation From Accepted practice = Very strong evidence of breach
  • Compliance with Accepted Practice = Very Strong evidence of no breach
  • LH does not overrule accepted practice
68
Q

Negligence: Breach: Res Ipsa Loquitor (RIL)

A

1) D has exclusive control of the instrumentality
2) Occurrence does not normally happen unless someone acted unreasonably
- Trigger for RIL: Nobody knows what happened
- RIL is mutually exclusive (its own thing)
- Jury can make an inference of breach

69
Q

Negligence: Breach: Actual Notice/Constructive Notice/ Mode of Operation: What are the 3 types.

A
  • Most applicable for grocery stores or slip and falls
  • Actual notice
    o Employee is made aware of the situation (spill)
    o Employee sees it (the spill) themselves
  • Constructive Notice (evidence it has been there a long time)
    o How gross is the spill
  • Mode of Operation
    o Dangerous condition likely to result due to the style of the business
    o Constant risk
70
Q

Negligence: Breach: Informed Consent (MedMal)

A
  • Traditional Prof. SOC (slight majority)
    • what a reasonable doctor (exercising a reasonable level/skill) would have disclosed
    • EV Effect: Need an expert or will lose
  • Materiality (large minority)
    • disclose material risks that would matter to a RP
    • EV Effect: Might win without expert
71
Q

Negligence: Breach: Informed Consent (MedMal) Why the difference?

A

Doctors prefer the traditional prof soc, however, medical risks are a patient’s decision, which is where materiality is beneficial

72
Q

Establishing Breach RP SOC Methods

A

1) LH
2) NPS
3) Custom
4) RIL
5) Notice

73
Q

Establishing Breach Prof SOC Methods

A

1) Accepted Practice (custom)
2) NPS
3) RIL
4) Informed Consent

74
Q

Negligence: C/F Default Test

A
  • “But For”
    • satisfied if P’s injury would not have occurred but for the D’s breach
75
Q

How to apply the C/F “But For” Test

A
  • Pretend D acted consistent with SOC
  • Does P’s injury still happen
  • Yes? (No C/F, injury was inevitable)
  • No? (C/F satisfied)
76
Q

Negligence: C/F Rules

A
  • Breach and C/F have to apply the same conduct, no switching
  • No foreseeability in C/F
  • Malpractice “But For” requires an expert
77
Q

Negligence: C/F: Multiple Sufficient Causes

A
  • 2 conducts, either which alone would have caused the same damages, instead combine to cause damages
  • Example: 2 fires become 1 to burn down a house
78
Q

Negligence: C/F: Multiple Sufficient Causes MAJ Test

A
  • Substantial Factor
    • D’s conduct is the C/F of P’s harm if it was the substantial factor in causing the harm
      • older factor typically not the substantial one
79
Q

Negligence: C/F: Multiple Sufficient Causes MIN Test

A
  • Whether the conduct was sufficient to cause the P’s harm
80
Q

Negligence: C/F: Alternative Liability Test

A
  • 2 or more conducts, but only 1 caused the harm (don’t know which one)
    • Test: 2 or more tortious actors creating a similar risk of harm, but only one actor’s conduct caused harm, burden shifts to D to disprove C/F (to show D wasn’t cause of conduct)
  • Think of the 2 shooters case
    • If neither D can disprove, then C/F is met
    • If they can prove one over the other, then C/F is met
81
Q

Negligence: C/F: Market Share Liability Test

A

1) Sue substantial share of the market
2) Burden shifts to Ds to negate C/F
- (if it can’t be proved it is not the cause)
- Product is exactly the same or ridiculously similar
3) Liable- $$ based on their market share
- Pretty much only applies to DES cases

82
Q

Lost chance of Recovery (But For) Rules MIN/MAJ

A
  • MIN: All or Nothing traditional approach
    - Injury: Death
    - Can’t recover $$ for death unless the death was inevitable (less than 51% chance survival), regardless of the malpractice
  • MAJ: Loss Chance of Recovery
    - Injury: Lost Chance of Survival
    - Damages based on that decreased lost chance of survival
83
Q

Lost Chance of Recovery (But For) Comparison

A
  • 40% chance of survival
    • MIN: nothing recovered
    • MAJ: Lost 40% chance recovered
  • 60% chance of survival
    • MIN: full damages for death
    • MAJ: Lost 60 % chance recovered
84
Q

Chance of Future Injury (But For) Rules MAJ/MIN

A
  • MAJ: All or nothing
    • Prove more likely than not that future injury will happen (51%)
    • Full damages for that future injury
  • MIN: Chance of Future Injury
    • Prove more likely than not that they have a [whatever %] chance of future injury
    • Damages based on the chance of the future injury
85
Q

Difference Between Lost Chance and Future Injury

A
  • Lost Chance = patient bad medically and the doctor kills them via malpractice
  • Future Injury = P suing now over a chance of future injury
86
Q

Negligence: Prox. Cause: Test: Direct Consequences (MIN)

A
  • Think of boiling water case
  • Satisfied if there is a direct connection between the D’s conduct and the P’s injury
    • D’s will be liable for any consequences that are a direct result of conduct
  • If there is an intervening act there is no direct consequence
    • Look For:
      - Direct Contact between cause and injury
      - Something in the middle (a tortious conduct)
87
Q

Negligence: Prox. Cause: Test: Foreseeability Test (MAJ)

A
  • University Wall Case
  • Satisfied if the general type of accident/injury was a reasonably foreseeable consequence of the D’s conduct
  • Policy Consideration: Negligent Ds should only be liable for the foreseeable injuries
88
Q

Negligence: Proximate Cause: Intervening Acts

A

Effects:
- Direct Consequences: Negates Proximate Cause
- Foreseeability: It Depends

89
Q

Negligence: Proximate Cause: Superseding Cause

A

Effects:
- If the intervening act was foreseeable, then proximate cause still exists (then D’s conduct is still proximate cause) (NO EFFECT)
- If the intervening act was unforeseeable, then the intervening act is a superseding cause. Superseding cause negates proximate cause (D’ conduct NOT Proximate cause) (Negates Prox. Cause)

90
Q

Is a car theft foreseeable?

A

A car theft is a crime but not automatically foreseeable

91
Q

What is foreseeable MedMal?

A
  • Regular Treatment
  • Regular Side Effects
  • MedMal in general
92
Q

What is unforeseeable MedMal?

A

Highly Extraordinary conduct

93
Q

Negligence: Duty: Rules

A

1) Duty owed? Does this D owe P a duty?
- Apply Special Rule
- If no special rule, evaluate the three factors
2) If yes, what is the duty? - RP - D obligated to act like a RP would have under similar circumstances (what SOC applies)
- Duty USUALLY Exists

94
Q

Negligence: Duty: 3 factors of duty being owed:

A

1) Any relationship between D and P?
- Not a general relationship
- Not: a driver and other drivers
- Can Be: driver and backseat passenger
2) Whether the P was foreseeable
3) Public Policy

95
Q

Negligence: Duty: Special Duty: Premises Liability

A
  • P hurt by dangerous condition on D’s Land
    • Whether D owes P a duty depends on P’s status
      • Trespasser: not legally present
      • Licensee: everyone else, including social guests/friends
      • Invitee: mutual benefit for landowner and entrant; mutual business; public invitee
96
Q

Negligence: Duty: Special Duty: Premises Liability: Trespasser Rule

A

If P is a trespasser: D landowner does NOT owe any duty in Negligence

97
Q

Negligence: Duty: Special Duty: Premises Liability: Trespasser Rule Exception

A
  • Kid Trespassers (attractive nuisance doctrine)
    • D sill owe duty to kid trespasser if:
      1) Artificial Conditions
      2) Know or have reason to know kids are likely to trespass
      3) know/reason to know risks of serious bodily harm
      4) kid b/c age doesn’t know the danger

If all 4 met, landowner owes duty to kid trespasser

98
Q

Negligence: Duty: Special Duty: Premises Liability: Trichotomy

A
  • Trespasser: No Duty (unless attractive nuisance for kid trespasser – invitee duty)
  • Licensee: To act reasonably (warn/protect) with respect to dangerous conditions landowner KNOWS about
  • Invitee: To act reasonably (warn/protect) with respect to dangerous conditions landowner knows about AND SHOULD KNOW ABOUT (This is really just normal RP SOC) (most broad)
  • A door to door salesman: starts as licensee, becomes an invitee
  • Exception: Open and obvious dangerous conditions
99
Q

Negligence: Duty: Special Duty: Premises Liability: Modern MIN Rule

A

Modern MIN Rule: everyone gets invitee standard
- D owes duty (to licensees and invitees) for even open/obvious conditions, BUT open/obviousness will be relevant in determining breach

100
Q

Negligence: Duty: Special Duty: (No) Duty to Help: Trigger

A

Triggers with language of “D needed to help/should have helped”

101
Q

Negligence: Duty: Special Duty: (No) Duty to Help Rule

A
  • There is no liability for failure to help/protect/aid/rescue a person (b/c no duty exists)
  • Why no duty to help?
    - Potential for many lawsuits
    - Freedom to not help (individual freedom of choice)
102
Q

Negligence: Duty: Special Duty: (No) Duty to Help Exceptions

A
  • Special Relationship between P & D (common-carrier-passenger, employer-employee)
  • Voluntarily Helping (voluntarily assume the duty of reasonable care)
    • Good Samaritan statues
    • D is likely protected by Good Samaritan statute if D acted in good faith
103
Q

Negligence: Duty: Special Duty: Rescue Doctrine

A
  • Danger Invites Rescue
  • If you are nice enough to rescue then you can sue the tortfeasor that caused your injury (because without them, you would not have rescued, and would not have gotten hurt)
104
Q

Negligence: Duty: Special Duty: (No) Duty to Protect

A
  • 3 actors, similar to No Duty to Help
  • D, P, and person P needs protection from
105
Q

Negligence: Duty: Special Duty: (No) Duty to Protect Common law

A
  • Generally no duty to control the conduct of a 3d party to protect another from harm
106
Q

Negligence: Duty: Special Duty: (No) Duty to Protect Exception

A
  • Special Relationship between D and
    • Person who needs to be controlled; OR
    • P (person who needs protection)
      This needs:
      1) Immediate threat
      2) Readily identifiable person
107
Q

Negligence: Duty: Special Duty: (No) Duty to Protect what to examine

A

Examine foreseeability:
- Prior similar circumstances; OR
- Totality of circumstances
Look at the circumstances that have a direct relationship to the harm, then examine the area, both how it is built and the crime rate of the area

108
Q

Negligence: Duty: Special Duty: NIED (for when P suffers ED)

A
  • Cts. hesitant for emotional (not physical) injuries
  • MAJ jxs have NIED
  • No NIED in Arkansas
109
Q

Negligence: Duty: Special Duty: NIED 3 tests

A
  • Only need to satisfy 1
    1) Impact Test (MIN)
    2) Danger Zone Test (MIN BUT MORE)
    3) Dillon Test (MAJ)
110
Q

Negligence: Duty: Special Duty: NIED: Impact Test (MIN) elements

A

1) Physical Impact
2) [physical manifestation of ED]

111
Q

Negligence: Duty: Special Duty: NIED: Danger Zone TEst (MIN+) elements

A

1) P in the immediate area of physical danger
2) [physical manifestation of the ED]

112
Q

Negligence: Duty: Special Duty: NIED: Dillon Test (MAJ) elements

A

1) Near scene of accident
2) Sensory and contemporaneous observance of death/serious bodily harm
3) Close relationship between P and victim (familial)
4) [physical manifestation of ED]

113
Q

Negligence: Duty: Special Duty: Economic Loss MAJ Rule

A

MAJ Rule: When P’s only injury is economic- NO DUTY
- also means no tort liability

114
Q

Negligence: Duty: Special Duty: Economic Loss Exceptions

A
  • Special Relationship (business based)
  • Misrepresentation claim
  • Livelihood depends on a public right (fisherman only)
115
Q

Negligence: Duty: Special Duty: Wrongful Pregnancy

A

Wrongful Pregnancy

MedMal in sterilaztion

Injury= a healthy baby

MAJ= Yes duty, but damages are limited to pregnancy expenses

116
Q

Negligence: Duty: Special Duty: Wrongful Birth

A

MedMal in diagnosis of fetal abnormalities

injury= Loss of chance to terminate

MAJ= Yes Duty

117
Q

Negligence: Duty: Special Duty: Wrongful Life

A

MedMal in diagnosis of fetal abnormalities

Injury= being born (kid’s claim)

MAJ= No duty

118
Q

Negligence: Duty: Special Duty: Primary Assumption of the Risk: No duty will exist if…

A

1) Risk that can’t be eliminated OR really expensive to eliminate
2) Risk is obvious (not subjective, general questionable if rich is obvious)
- consider a roller coaster’s speed or the darkness of a movie theater

119
Q

Actual Harm

A

1) A P has to be actually hurt, have actual damages, for a negligence claim

120
Q

Defenses to Negligence: 3 Step Analysis

A

1) Is the P at fault?
2) How much is the P at fault?
3) What is the effect of P being at fault?
- Look at:
1. Breach/ 2. C/F/ 3. Prox. Cause/ 4. Actual Harm

121
Q

Defenses to negligence:
What is the traditional jx. on fault from P?

A

Any fault from P= no recovery

122
Q

Defenses to negligence:
What is the non-traditional jx. (MAJ) on fault from P?

A

A comparative fault system

123
Q

Defenses to negligence:
Pure comparative fault:

A

Recovery reduced by P’s percentage of fault

124
Q

Defenses to negligence:
49% Modified Comparative Fault:

A
  • Recovery reduced by P’s percentage of fault
    OR
  • Barred From Recovery
  • Barred if > 49%
  • Reduced Recovery if 49% or less
  • In a statute: “was not as great as”
125
Q

Defenses to negligence:
50% Modified Comparative Fault:

A
  • Recovery reduced by P’s percentage of fault
    OR
  • Barred From Recovery
  • Barred if > 50%
  • Reduced Recovery if 50% or less
126
Q

How to determine how much P was at fault?

A
  • Compare the D and the P’s levels of unreasonableness
    • (who breached more)
    • Compare how unreasonably the P acted vs. how unreasonably the D acted
  • tree trimmer v. electric co. case
127
Q

Defenses to Negligence: Assumption of the Risk

A

Can be both express and implied

128
Q

Defenses to Negligence: Assumption of the Risk: Express

A
  • Public policy reasons why express assumptions of the risk may be unenforceable (think about a hitman)
  • Possible issues with the language of the release that was signed

If P expressly assumed the risk: they are barred from recovery

129
Q

Defenses to Negligence: Assumption of the Risk: Implied (IAR)

A

1) P knew and appreciated the risk
2) P voluntarily encountered the risk
- this is a subjective inquiry

130
Q

Defenses to Negligence: Assumption of the Risk: Implied (IAR)
Traditional Rule:

A

If P implicitly assumes the risk, traditionally barred

131
Q

Defenses to Negligence: Assumption of the Risk: Implied (IAR)
MAJ Rule:

A

If P implicitly assumes the risk: not barred from recovery

132
Q

Defenses to Negligence: Assumption of the Risk: Implied (IAR)
MIN Rule:

A

If P implicitly assumes the risk: barred from recovery

133
Q

What do states do with IAR: MIN

A
  • A min. of states still use the traditional bar for IAR
  • Underlying Thoughts: focus on subjectivity, P knew what she was doing
134
Q

What states fo with IAR: MAJ

A
  • A maj. Of Comp. Fault states: IAR no longer independently relevant. States no longer ask if the P impliedly assumed the risk. Instead these states ask whether the P was at fault/negligent/acted unreasonably.
  • Underlying thoughts: Don’t want Ps barred from recovery; emphasis is on fault (and just don’t care about IAR
135
Q

How to approach MIN rule for IAR:

A

Still need to figure out if the P impliedly assumed the risk. B/C that’s still a complete bar to recovery

136
Q

How to approach MAJ rule for IAR:

A

o Does it matter if P impliedly assumed the risk?
o No?- No Bar
o Yes?- Maybe Bar b/c comp. fault

137
Q

Defenses to Negligence: Failure to Mitigate Damages

A
  • All about post injury conduct (not listening to Doc’s advice)
  • Check the statute to see if Direct Reduction or Fault assignment
138
Q

Defenses to Negligence: Failure to Mitigate Damages: Traditional Approach (Direct Reduction):

A
  • Jury can’t award any damages due to P’s failure to mitigate
  • So jury has to subtract out any damages due to P’s failure to mitigate
139
Q

Defenses to Negligence: Failure to Mitigate Damages: Approach 2 (Apportion of Fault [fault assignment])

A
  • Assign P fault based on the unreasonable failure to mitigate
140
Q

Defenses to Negligence: Failure to Mitigate Damages: Effect of Direct Reduction

A
  • Subtract any damages due to P’s unreasonable failure to mitigate
141
Q

Defenses to Negligence: Failure to Mitigate Damages: Effect of Fault Assignment

A
  • Assign P % of fault based on unreasonable failure to mitigate
  • Language in statute will include “failure to mitigate”
142
Q

Defenses to Negligence: Statute if Limitations: Acrual Date

A
  • Can be date of accident
  • Can be date of injury
143
Q

Defenses to Negligence: Statute of Limitations: Special Tort Law accrual date: Discovery Rule

A
  • When a RP would have discovered that someone else might have caused her injury
    • About “putting some facts together”
    • pro plaintiff rule
    • hole in the roof gang case
144
Q

Defenses to Negligence: Statute of limitations: Fraudulent Concealment

A
  • Only if no discovery rule
  • It can delay the start of SofL
  • Applies if D prevented P from knowing facts or knowledge
    1) D knew of the wrongful act and concealed it (or failed to disclose)
    2) P did not know of the facts, and could not have known through reasonable care

Essentially turns it into discovery rule

145
Q

Apportionment: Joint and Several Liability (J/S) (MIN)

A
  • Traditional rule
  • Pro P
  • Rule: P can collect all of her damages from 1 D. (P has more than one source of satisfaction to her judgement)
146
Q

Apportionment: Joint and Several Liability (J/S) (MIN): What if one D pays all?

A
  • Contribution claim against other D
  • Amount of contribution available depends on fault assignment
147
Q

Apportionment: Several Liability (MAJ)

A
  • Modern Rule
  • D only has to pay their portion of damages
148
Q

Apportionment: Insolvent (broke) Defendants:

A
  • J/S Liability: D screwed if the other D can’t pay contribution
  • Several Liability: P screwed if D can’t pony up at all
149
Q

Apportionment: What is D is immune?

A
  • Mostly ER getting sued by EE
    • P can’t recover from an immune D if the immune D is assigned some fault
    • D will have to pay more if the immune D is not included (several liability)
150
Q

Apportionment: Negligence enabling Intentional Tort

A
  • Apportionment applied for intentional and negligent torts
    • intentional tortfeasor might usually carry more fault
151
Q

Apportionment: Assigning fault to Nonparties

A
  • Nonparty is someone not in the lawsuit at all
  • It is common for states to allow apportionment to nonparties
    • P hates
    • D likes
152
Q

Apportionment: Vicarious Liability

A
  • Respondeat Superior
  • ER is responsible for EE’s torts
    • Not because of fault but because of ER and EE relationship
  • ER will be liable because:
    1) EE (not independent contractor)
    2) Tort committed within scope of employment
153
Q

Apportionment: Vicarious Liability: Respondeat Superior: Within Scope of Employment

A
  • “going and coming” rule: commuting to and from work is not within scope of employment (outside scope)
  • Except if its a “special errand”: meaning travel ER requested or part of EE’s usual duties (within scope)
154
Q

Apportionment: Vicarious Liability: Respondeat Superior: Within Scope of Employment: Special Errand

A
  • Frolic: complete departure from special errand (outside employment scope)
  • Detour: minor deviation from special errand (within scope)
155
Q

Apportionment: Vicarious Liability: Respondeat Superior: Within Scope of Employment: Special Errand: Frolic v. Detour

A
  • EE’s intent
  • Nature/time/place of conduct
  • Work EE hired to do
  • ER’s reasonable expectations (act ER should have foreseen EE would do)
  • EE’s freedom in pursuing duties
  • Amount of time consumed in the activity
156
Q

Employee (Respondeat Superior) v. Independent Contractor (No Respondeat Superior)

A
  • Extent of control/degree of supervision
  • Distinct nature of the worker’s conduct
  • Worker’s specialization/ skill
  • Material and place of work
  • Duration of employment
  • Method of payment
  • Relationship of work done to the regular business of ER
  • Parties’ (and community’s) beliefs

Torts (1 decks)

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