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From Grace's Flashcardlet > Torts I > Flashcards

Torts I Flashcards

1
Q

§ Intentional Torts

A
  1. Battery
  2. Assault
  3. IIED - Intentional Infliction of Emotional Distress
  4. False Imprisonment
  5. Trespass to Land/Chattel
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2
Q

§ What are the elements of Battery?

A

(1) Volitional Act with
(2) intent to make
(3) a harmful/offensive
(4) contact on π’s body.

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3
Q

§ Battery - ACT

A
  • Act is a volitional manifestation of actor’s will.
  • Reflexive muscle movement, sleepwalking, is not a volitional act.
  • Age or the mental state of the actor does not change the test.
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4
Q

§ Battery - Intent

A

Intent requires purpose or knowledge of substantial certainty that the contact would occur.
• Single Intent jdx : Intent to make a contract is enough.
• Dual intent jdx : intent to make a contract + intent to cause that specific harm
• Under some circumstances, transfer of intent is possible between battery, assault, FI, and trespass to land/chattel.

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5
Q

§ Battery - Harmful / Offensive

A
  • Harmful contact results in physical injury on a reasonable person standard
  • Offensive contact is a contact that offends a reasonable person’s sense of dignity.
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6
Q

§ Battery - Contact

A

• Contact can be direct / indirect touching
• If an indirect contact, it must be on something intimately connected to π’s body.
** If the D sets forth a motion that harms the P, contact is established. **

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7
Q

§ Assault - Rule

A

(1) Intentional creation
(2) of a reasonable apprehension
(3) of an imminent harmful/ offensive contact on π’s body.

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8
Q

§ Assault - Intent

A
  • When the actor voluntarily acted with purpose or with knowledge of substantial certainty that the apprehension of imminent harmful or offensive contact would occur.
  • Transfer of intent is available under certain circumstances
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9
Q

§ Assault - Apprehension

A
  • Invasion of body/mind- but not a fear or terror.
  • Must be normally aroused in the mind of a reasonable person. - objective standard
  • However, if the π had a hypersensitivity and the ∆ knew about it and used it to cause apprehension in π, the subjective standard would apply.
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10
Q

§ Assault - Imminent

A
  • The threat of harm must be imminent without significant delay of time.
  • Conditional threat usually doesn’t satisfy , unless coupled with a specific action
  • Words alone are not enough.
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11
Q

§ False Imprisonment

A

• The ∆ intentionally committed an act of restraint in a bounded area.

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12
Q

§ False Imprisonment - Elements

A
  • Intent to confine or restrain
  • Act or omission to confine or restrain
  • in a bounded area
  • π’s harm
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13
Q

§ False Imprisonment - Intent

A

• ∆’s purpose or knowledge of substantial certainty to confine or restrain the π to a bounded area.

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14
Q

§ False Imprisonment - Act/Omission to act that confines or restrain

A
  • Duration of confinement is immaterial, where the means of confinement can be satisfied by: physical barrier, direct/indirect force, and failure to provide means of escape.
•  methods of confinement
	ºº Physical barrier
	ºº Physical force to π, immediate family member, or π's physical property. 
	ºº Direct threat of force
	ºº Indirect threat of force
	ºº Failure to provide means of escape
	ºº Unlawful arrest
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15
Q

§ False Imprisonment - Bounded Area

A
  • π’s freedom of movement must be limited.
  • No reasonable means of escape.
  • π must be harmed during the period of imprisonment, whether the π was aware of the imprisonment.
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16
Q

§ Intentional Infliction of Emotional Distress

A

• ∆’s intentional or reckless outrageous conduct that results in severe emotional distress on π.

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17
Q

§ IIED - Elements

A

(1) Intent
(2) Outrageous conduct
(3) Severe emotional distress

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18
Q

§ IIED - Intent

A

• The actor must have intent to cause distress
AND
the actor must intend it to be severe.

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19
Q

§ IIED - Intent #2

A
  • Intent element can also be satisfied with recklessness.

* Conscious disregard of a substantial probability of severe emotional distress.

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20
Q

§ IIED - Intent : 3rd party recovery

A

• Where outrageous conduct is directed at a 3rd person…

1. immediate family member who is present at the time may sue for IIED
2. any other person who is present at the time, if such distress results in a bodily harm on him, may sue for IIED..
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21
Q

§ IIED - Outrageous conduct

A

• Objective standard
A reasonable person of that community would find the act goes beyond all bounds of decency.

• Subjective standard
if the actor knew about the π’s specific hypersensitivity and used it to cause distress.

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22
Q

§ IIED - Severe emotional distress

A

OBJECTIVE STANDARD
• No reasonable man could be expected to endure the distress.
º Intensity and duration can be considered

SUBJECTIVE STANDARD
comes into play when ∆ knew about π’s hypersensitivity and used it against π.

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23
Q

§ Defenses to Intentional Torts

A
  1. Consent
  2. Defense of self
  3. Defense of others
  4. Defense of property
    - ——–
  5. Shopkeeper’s privilege (only to FI)
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24
Q

§ Defense - Consent

A
  • Voluntary relinquishment of rights
  • Consent can be either expressed or can be implied.
  • Withdrawal must be expressed.

º If implied, it must be understood under a reasonable person standard.

º Consent cannot be induced by fraud.

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25
Q

§ Defense - Self and Others .

A

• The actor may use force proportionate to

1. the interest the actor is protecting
2. the injury or harm threatened by the other.

It must be viewed under a REASONABLE PERSON STANDARD.
e.g. whether the actor reasonably believed that he is in danger

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26
Q

§ Defense - of Self: Factors to consider

A
  1. Character and reputation of the attacker
  2. The belligerence of the attacker
  3. Large difference in size and strength between the parties
  4. Overt act by the attacker
  5. Threats of serious bodily harm
  6. Impossibility of a peaceful retreat.
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27
Q

§ Defense - of Others

A

• Defense of a 3rd party is privileged only if the ∆ had a well-grounded belief that an assault was imminent and that ∆ had used a reasonable force under the circumstance.

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28
Q

§ Defense - Shopkeeper’s privilege *ONLY on False Imprisonment

A

• A shopkeeper may detain a suspect if
1. Based on a reasonable reason
2. the detention is within a reasonable duration of time (10 ~ 15 mins)
even though it was a wrongful detention.

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29
Q

§ Defense - of property

A
  • NO deadly force

* Reasonably have to ask the trespasser to leave.

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30
Q

§ Negligence

A
  • Unintentional Tort where the actor did not intent to harm the π, but nevertheless resulted in a harm.
  • Where the ∆ failed to meet a standard of care imposed by a duty in the given circumstance
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31
Q

§ Negligence - Elements

A
  1. Duty
  2. Breach
  3. Causation
  4. Damage
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32
Q

§ Duty: What is Duty??

A
  • Obligation to act as a reasonable person would act under certain circumstances.
  • DUTY IS ALWAYS A REASONABLE PERSON STANDARD!!!!
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33
Q

§ Duty : What is Duty ? #2

Range of application of the Reasonable person standard

A
  • WHAT WOULD A REASONABLE PERSON WOULD DO IN THE LIKE CIRCUMSTANCE (whether the circumstance involves especially dangerous instrumentality, emergency, etc) ?
  • Especially dangerous instrumentality + Emergency + Mental disability DOES NOT change the reasonable person standard.
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34
Q

§ Duty: What is Duty? #3

Special treatment to duty

A

• Reasonable child standard - What would a REASONABLE child of same age, skill, knowledge, maturity do under like circumstance?

º Exception
when the child is engaged in inherently dangerous activity or an adult only activity.

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35
Q

§ Duty What is Duty? #3

Special treatment to duty

A

• Superior Skill or knowledge of the actor - Heightened standard.
- What would that person with superior skill/knowledge do in a like circumstances.

• Physical disability
- What would a reasonable person with a same disability would do in a like circumstance.

• Professional Standard
- To act within the standard of care
customary of the field in a similar circumstance.
* What is accepted in an actual practice of the profession
* Expert testimony may show what is custom,

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36
Q

§ Duty: To Whom is the Duty Owed?

A

Generally, a person does not have a duty to care for another, unless special relationship applies.

Palsgraf v. Long Island RR.

Cardozo : Duty is owed to foreseeable π within the zone of danger.

Andrews: Duty is owed to everyone in the world.

  • Special Relationship: a person owes a duty of there is a special relationship and may heighten standard of care
  • ex. common carrier-passenger, inkeeper-guest, employer-employee, landlord-tenant, invitor-invitee
  • 7 factors to determine special relationship:
    1. foreseeability of harm
    2. Degree of certainty
    3. closeness of connection between D’s conduct and injury
    4. moral blame
    5. policy of preventing harm
    6. extent of burden to D
    7. availability, cost for the risk involved
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37
Q

§ Breach

A

• ∆ has fallen below the standard of care established by the duty.

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38
Q

§ Breach #2

A

• Four ways to prove breach

1. Learned Hand Theory
2. Negligence Per se
3. Industry Custom
4. Res Ipsa Loquitur
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39
Q

§ Breach

Learned Hand Theory

A

•Burden of prevention < Probability of harm x Loss
ºº If the burden of prevention is lower than the risk, the ∆ has breached his duty.
ºº If the burden of prevention is higher than the risk, there is no breach.

40
Q

§ Breach - Negligence Per se

A

• Negligence per se - the statute sets the duty.
π must prove:
1. that the harm caused was the type of harm that the sttt tried to prevent.
2. that the π was the class of people that the sttt tried to protect.
3. there was a violation of the statute.

41
Q

§ Breach - Negligence Per se #2

A

• Defense to negligence per se

  1. lack of notice
  2. extrinsic evidence that makes the compliance of the sttt impossible.
  3. anything which the driver has no control which places his car in the violation of the sttt
  4. emergency not of the drivers own making
  5. excuse specifically provided by the sttt.
42
Q

§ Breach - Industry Custom

A
  • The industry custom can be persuasive in setting the standard of care, but it is never conclusive.
  • If the industry custom has lower than reasonable person standard, then the violation of custom is automatically a breach.
  • If the custom is higher than the reasonable standard, the violation of it may not constitute as a breach of reasonable person standard.
  • Adopting a certain groups’ industry standard would be making a subjective standard.
43
Q

§ Breach - Res Ipsa Loquitor

A

• When the π does not know what happened, and can only rely on the circumstantial evidence to prove breach.

44
Q

§ Breach

Res Ipsa Loquitor - Elements

A

To prove res ipsa, π must show

  1. That the type of injury doesn’t happen without negligence.
  2. the accident is one that ordinarily doesn’t happen if instrument was used properly
  3. ∆ had the exclusive control over the instrumentality
  4. ∆’s access to information about the event is superior to π’s
45
Q

§ Causation

A
  • But- For causation

* Proximate causation

46
Q

§ Causation

But for cause

A

• But for the breach of the D, the harm more likely than not would have occurred.

Whether the injury would not have occurred “but for” the ∆’s substandard conduct.
• Proof that an actor’s conduct is more likely than not a necessary event in the chain of causation

47
Q

§ Causation

But for cause #2

A

Three factors to consider

  1. likely ways of harm to come about
  2. likely ways of each course of event
  3. role of the act in question played in each question.
48
Q

§ Causation

Alternatives to But for case.

A

• When there are more than one ∆s and but for cause is hard to distinguish between the multiple ∆s.

  1. Multiple sufficient cause
  2. Concert of Action
  3. Alternative Liability
  4. Indivisible harm
  5. Market share liability
  6. Lost chance or increased risk of eventual harm.
49
Q

§ Causation

Multiple Sufficient cause

A

• Two concurrent tortfeasors combined to create harm to π, and are held jointly and severally liable.
º Even without the other, the injury would still have occurred.
• π have to prove
1. the number of factors contributed to produce harm
2. extent of the contribution by ∆.

50
Q

§ Causation

Concert of action

A

• Concurrent tortfeasor, pursuit of common plan

51
Q

§ Causation

Concert of action - scenarios

A
  • pursuant to a common design with the others in tortious act.
  • Knowingly gives substantial assistance to other’s breach of duty
    1. nature of torts
    2. assistance
    3. relationship
    4. presence
    5. state of mind

• substantial assistance by a separate tortious conduct of breach.

52
Q

§ Causation

- Alternative liability

A

• Concurrent tortfeasors and the π cannot determine which one did the harm.

  1. concurrent tortfeasors
  2. cannot name who caused the harm
  3. substantial similarity btw the harm
  4. all parties(∆s) must presents
53
Q

§ Causation

- Market Share Liability

A
  • Apportioning dmg by each ∆s proportionate market share
  • liable to the risk
  • Similar risk btw products
  • several liability - by proportional shares
54
Q

§ Causation - Market Share Liability :: Elements

A
  1. Fungible products
  2. Dangerous designs
  3. inability to ID the specific mfgs
  4. joinder of enough of mfgs
55
Q

§ Causation

-Indivisible harm

A

• Concurrent tortfeasors, each of whom contributed inseparably to the π’s harm

56
Q

§ Loss of chance or future risk of harm .

A

• Loss of chance
- π must prove by preponderance of evidence that physician’s negligence caused injury which prevented π from getting more favorable outcome

• Risk of future harm
- The π must prove that the breach of duty was of substantial factor in causing a present injury which would result in the increased risk of future harm.

> > How did the court decide to award damages?
Total damage x (% of survival before neg - % of survival after neg)

57
Q

§ Proximate Cause

A
  • Injuries that occur must be a foreseeable result of ∆’s breach.
    There are four tests to the prox. cause.
    1. Directness test
    2. Substantial Factor test
    3. Foreseeable Test
    4. Risk Standard.
58
Q

§ Proximate Cause #1: Directness test

A
  • The harm must be directly traceable to the ∆’s conduct rather than the operation of some independent, unrelated cause.
  • Three things to look for the Directness Test
    1. Directly traceable — to ∆’s conduct.
    2. The injury occurred doesn’t have to be the exact type of damage
    3. whether there is an independent cause.

e.g.
I hit a person with a car which results in a broken leg
OR
I hit a person with a car which causes him to trip and hit a brick on the ground, which results in head injury
- I would still be prox cause to his injury because my neg. action is directly traceable, with injury doesn’t have to be specific.

59
Q

§ Proximate Cause #2: Substantial Factor Test

A
  • Whether the contribution of ∆’s act was relatively important compared with other but-for causes in producing the harm suffered by the π.
  • Factors to satisfy
    1. number of other factors contributed in producing the harm
    2. whether ∆’s conduct created continuous set of event that led to the harm.
    3. Lapse of time (suggestive, not determinative)
60
Q

§ Proximate Cause #3: Foreseeability Test

A

• Whether the harm was within the scope of the danger created by the ∆’s negligence.
- Was the harm reasonably foreseeable? — Foreseeability of general type of harm

Wagon Mound:
∆ is only liable for foreseeable risk to foreseeable πs.
º Zone of Danger (Palsgraf) sets up foreseeable πs.
º Wagon Mound sets foreseeable harms within that foreseeable zone.
- liability for unforeseeable risk should not be imposed even though it was within the ZoD.

61
Q

§ Proximate Cause #3: Foreseeability Test

- Thin skull doctrine

A

• Thin Skull doctrine : you take π as you find them
- The extent of injury suffered is not determinative for the foreseeability

e.g. if the π had a brittle bone syndrome, ∆ is liable for whatever damage the π suffers from his touching.

62
Q

§ Proximate Cause #3 : Foreseeability Test

- Shabby Millionaire

A

• Shabby Millionaire : ∆ have to pay whatever loss of income that π might suffer from his negligence.

63
Q

§ Proximate Cause #4: Risk Standard

A

• Incorporates Andrews’ duty standard ( Eliminates foreseeability from the duty analysis: DUTY TO EVERYONE!!!)
• ∆’s liability is limited to those phycial harms that resulted from the risk that made the actor’s conduct tortious.
• Consider all of the harms risked by the actor’s conduct and whether the harm that occurred was one of them .
- Focus on whether the type of harm was one of the risks created by ∆’s conduct.

64
Q

§ Proximate Cause : Intervening/Superseding Cause

A

• All approaches of proximate cause takes account of intervening or superseding cause.

º Intervening act : When a 3rd party’s conduct comes after the ∆’s act in the chain of event leading to the π’s injury
º Superseding act : When a 3rd party causes UNFORESEEABLE INTERVENING ACT that cuts off the chain of liability.

65
Q

§ Proximate Cause: Determining Superseding Cause

A

• Factors to consider to determine superseding cause :

1. Reasonably foreseeable ?
2. Reasonably anticipated ?
3. Whether the intervening act could have been anticipated and ∆'s taking the risk was was unreasonable.
66
Q

§ Damages

A
  • Joint and Several Liability
  • Several Liability
  • Vicarious Liability
67
Q

§ Damage : Joint and Several Liability #1

A
  • π may collect entire amount of damage from any ∆s whose negligence was a prox. cause to his harm .
  • Each ∆s are potentially liable for 100% of dmg.
  • π is not allowed to collect no more than the judgment amount
68
Q

§ Damage : Joint and Several Liability #2

Contribution

A

• Contribution is when one ∆ pays more than what he is responsible for, he can sue another ∆s for compensation.

• Two options
Traditionally: Pro Tanto rule – equal division between ∆s by their numbers
Modernly : Comparative contribution - by their % of faults.

69
Q

§ Damage: Several Liability

A

• ∆ is only liable for his/her apportioned amount of damage.
• ∆ only pays for the % of his fault.
(no more paying 100% when he is only 5% liable, and seeks contribution from other ∆s)

e.g. 
Total amt : $100,000
π 20% ∆1 30% ∆2 50%  
then
	∆1 : 30% x 100,000 = $30,000
	∆2 : 50% x 100,000 = $50,000
π gets $80,000
70
Q

§ Damage : Several Liability #2

Indivisible Harm

A
  • Apportioning damage for indivisible harm is a jury question.
  • (Total amount of damage sustained by the π) x (% of fault of each tortfeasors) = maximum recoverable against each tortfeasor
71
Q

§ Damage : Allocating liability to Absent/ Immune actors

A

Absent or Immune ∆ is not responsible to pay for the damage amount.

  • With J&S liability - absent/immune ∆ was not liable to pay, but π was able to collect 100% damage anyway.
  • Modernly, Even though the actor may not pay the damage amount, his conduct will be evaluated to calculate the damage.
72
Q

§ Damage : Neg ∆ + Intentional torts ∆

A

• Majority : apportioning damage to their comparative faults
º Minority : IF the neg. ∆ caused the situation, then he is 100% liable for the damage.

73
Q

§ Damage : Allocating the Risk of insolvency.

A

• Under the Several Liability Jdx

Spreading the insolvent ∆’s share among the solvent ∆s or among the π and any solvent ∆s.

74
Q

§ Damages : Vicarious Liability

A

• An actor is liable for someone else’s tortious conduct.

º Respondeat Superior
º Vehicle Vicarious Liability

75
Q

§ Damage : Vicarious Liability

- Respondeat Superior #1

A

• Employer may be held vicariously liable for the employee’s negligent act committed under the scope of employment.
• Employer cannot go after the employee for contribution.
• Indemnity is possible under VL.
- ∆’s right to full compensation for all dmg paid due to the tortious conduct of some other actors.
- Employer may get 100% of what he paid for
• Employer is not liable for accident by employee during his commuting.

76
Q

§ Damage : Vicarious Liability

Respondeat Superior #2 - Frolic v. Detour ?

A

• Whether employee’s action was FROLIC or DETOUR
Frolic: is outside the scope of employment and the employer is NO VICARIOUS LIABILITY for employee’s tortious act
Detour : is within the scope of employment and the employer is VICARIOUSLY LIABLE for employee’s tortious act.
• Determining whether it’s frolic or detour
1. Employee’s intent - whether the employee intended his action to be under the scope of employment.
2. Nature, TIme and place of conduct - whether the conduct was a continuation of his employment
3. Job that employee was hired to do - whether his job description and his conduct was connected.
4. Reasonable expectation from the employer : implicit encouragement is sufficient
5. Amount of freedom allowed : was employee’s conduct voluntary?
6. Amount of time consumed in personal activity ;

77
Q

§ Damage : Vicarious Liability

Respondeat Superior #3 - Independent Contractor ?

A

• VL does not apply in independent contractor relationship
Eight Factors to determine
1. Extent of control over the worker. - When, Where, How the work is done.
2. Nature of the worker’s business - The worker’s interest? or employer’s interest?
3. Specialization or Skilled occupation. - if special skill is needed, it is more of independent contractor.
4. Material and place of work - If the employer specifies the work area
5. Duration of employment - How long the worker worked for the employer?
6. Method of payment - How did the worker get paid?
7. Relationship of work done to the regular biz of the employer - is the worker’s job critical to the employer’s interest?
8. Belief of the parties. - What did the parties believe that they were?

78
Q

§ Damage : Vicarious Liability

Vehicle owner’s VL

A

• Vehicle owner would be VL for the automobile accident even though the owner was absent at the time of the event, IF

1. Death or injury to person or property occured
2. From negligence of the driver 
3. From the use or operation of the vehicle
	- within inherent nature of the automobile
	- within natural territorial limits of the automobile & actual use
	- nor mere contribution to the cause, but must be an proximate cause 
4. with owner's permission.
79
Q

§ Defenses : to Negligence action.

A
  • Applicable defenses always
    • Contributory Negligence
    • Comparative Negligence
    • Assumption of Risk
  • Applicable defenses depends of factual
    • Mitigation
    • Immunity
    • Statute of Limitation/ Repose
80
Q

§ Defense: Contributory Negligence

A
  • Bars recovery to a negligent π who contributed to his own injury
  • Complete bar – π cannot recovery anything
81
Q

§ Defense : Contributory Negligence #2

Last Clear Chance

A

• Allows a negligent π to recover if injured in a circumstance where ∆’s breach was especially egregious

  1. π’s own negligence placed herself in a position of peril which she cannot escape
  2. ∆ reasonably should have discovered the π’s peril
  3. ∆ had the time and means to avoid the accident after #2
  4. ∆ did not use every reasonable means at his command to avoid π’s injury
  5. π was injured as a result of ∆’s failure to avoid.

Essentially, when ∆’s negligence comes after that of π’s and that ∆ should have reasonably been able to prevent/avoid injury

82
Q

§ Defense: Comparative Negligence

A

• Modern form of defense.
• There are three types of Comp. Neg.
1. Pure : π’s recovery reduced according to his % of responsibility to his injury
2. 49% : π’s recovery reduced according to his % of responsibility to his injury, as long as he is 49% and less responsible.
3. 50%: π’s recovery reduced according to his % of responsibility to his injury, as long as he is 49% and less responsible.

• Learned Hand Theory may be used to determine the % of liability between π and ∆.

83
Q

§ Defense : Comparative Negligence #2

A

• Unit Rule :puts all ∆’s % together against π’s % to calculate damage s % to calculate damage
π: 25% v. ∆1 20%
π: 25% v. ∆2 30%
π: 25% v. ∆3: 25%

84
Q

§ Defense: ∆’s Reckless conduct under Contrib jdx and Compar jdx

A

• Under contrib. jdx, ∆’s reckless act would negate contributory neg. of π.
• If ∆ was reckless, π can still recover even though π was negligent.
** Recklessness overrides Negligence

Neg π v. Neg. ∆ : π can’t recover
Neg. π v. Reck ∆ : π can recover proportionally

• Under comparative jdx, π can nevertheless recovery proportionally

85
Q

§ Defense : Assumption of Risk

A

• Agreement to forgo a right to sue, that will bar π’s recovery.

Two types of AoR
	º Expressed
	º Implied 
		- Primary implied AoR
		- Secondary implied AoR
86
Q

§ Defense : Assumption of Risk

º Expressed AoR

A

• Expressed AoR is an open, expressive with some sort of form/release.
• Expressed AoR can be invalidated if
it violates public policy

if violates on the merit
87
Q

§ Defense: Assumption of Risk

Expressed AoR #2 - How it is invalidated

A

• Expressed AoR can be invalidated if
it violates public policy
1. agreement concerns an endeavor of a type generally thought suitable for public regulation
2. Service that is great importance to the public
3. Party holds itself out as willing to perform this service to any member of the public who seeks it.
4. Bargaining power of the party against the member of public
5. Standardized adhesion contract
6. Members seeking service must be placed under the control of the furnisher of the service.
if violates on the merit
1. It has to be clear and precise
2. It has to be fairly negotiated
3. It has to be voluntary

88
Q

§ Defense : Assumption of Risk

Implied AoR

A

• π is aware that the activity is inherently risky
º Primary AoR
º Secondary AoR (very similar to contrib neg.
1. π had subjective actual knowledge of the risk
2. π had subjective actual appreciation of its nature and extent
3. π voluntarily accepted it

* In Contrib jdx : 2nd Implied AoR is a complete bar to recovery
• In Comparative jdx : Proportional recover
89
Q

§ Defense: Mitigation

Rule Statement

A
  • Mitigation is a duty of π to reasonably reduce the effect of injury caused by the ∆’s negligence.
  • Undue diligence to mitigate damage would reduce π’s recovery

Two jdx on mitigation

- Miller Rule:  Proportional reduction to failure to mitigate
- Klanseck Rule: Raw number reduction to failure to mitigate
90
Q

§ Defense : Mitigation

- Seatbelt Defense

A
  • Majority Rule: Seatbelt rule doesn’t apply to mitigation - Question for the judge, not for the jury
  • Minority Rule: Not wearing a seatbelt could be a factor to reduce damage because it should be anticipated
91
Q

§ Defense: Immunity

A

• There are two types of immunity
1. Sovereign Immunity : Governmental immunity where the government cannot be sued in its court without its consent.
º Federal Govt Immunity
º Local Govt Immunity
2. Intrafamilial Immunity: Immunity between family members
º Inter-spousal immunity :
º Parent-Child Immunity

92
Q

§ Defense: Immunity

Federal Govt Immunity #1

A

• Generally, US is immune from suit except when the govt has waived its immunity.

- FTCA provides exception to this general rule, where immunity is waived for negl of its employee. 
- DFE bars suit only if two conditions are met
	1. the act must be discretionary- element of judgment or choice of the actor, and are not compelled by law. 
	2. the judgment or choice in question must be grounded in consideration of public policy.
93
Q

§ Defense: Immunity

Local Govt Immunity

A

• Local govt immunity : only when performing government function for the general benefit of the welfare of the citizen.

94
Q

§ Defense: Immunity

Intrafamilial Immunity #1: Interspousal immunity

A
  • CL : There was spousal immunity

* Modernly: There is no spousal immunity

95
Q

§ Defense: Immunity

• Intrafamilial Immunity: Parental Immunity

A

• CL: Parents are immune from child’s claim
• Modernly : Wisconsin rule: No immunity except which involves ordinary Parental authority : providing food, house, etc.
California Rule: What would a reasonable parents would do in a like circumstances. (Reasonable parent Stnd)
NY Rule: When there is breach of duty ordinarly outside of family relationship
Tennessee Rule: Allowing immunity if constitutes within parental authority.
** basically Parental authority is the focus in Wis. NY, Ten. and CA uses Reasonable Parent Standard

96
Q

§ Defense: Statute of Limitation/ Repose

A

• Sttt of limitation bars claim unless it was filed within certain period of time of injury
º doesn’t run until π reasonably discovers injury
∆’s fraudulent concealment of substantial information would toll SoL

• Sttt of Repose begins to run at the time of the tortious conduct in construction situation.
º Bars recovery even before injury occurs.
º Protects the interest of the builder.

From Grace's Flashcardlet (4 decks)

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