Torts Midterm Final Version Flashcards

Question

D's burden of proof required for duty to P in Primary Implied AoR?

Answer 1

a) D has NO DUTY to avoid the inherent risks of the activity b) D DOES NOT have to prove that the P **voluntarily** and **knowingly** assumed the risk

Answer 2

a) occurs when the P **knowingly** and **voluntarily** **assumes the non-inherent risks** posed by the D's wrongdoing

Answer 3

1. the P **knew of the risk** created by the D's conduct / negligence 2. the P **appreciated** and **understood** the risk; and 3. the P **voluntarily proceeded** to encounter a danger / risk posed by the D's carelessness

Answer 4

a) some jurisdictions serve as a total bar to recovery b) some jurisdictions are split - merging AoR with comparative fault / providing both defenses for consideration by the finder of fact

Answer 5

a) Comparative Fault jurisdictions generally do not treat express AoR like contributory negligence and, consequently, **do not apportion damages between parties** b) contributory negligence jurisdictions, express assumption of risk is a complete defense c) most states have kept express AoR as a complete bar to recovery

Answer 6

a) most jurisdictions, primary implied AoR also serves as a complete bar to recovery based on the theory that the D does not owe a duty of ordinary care to the P b) P can only **sue** for **intentional torts** or **recklessness**

Answer 7

a) some jurisdictions **completely bar AoR as a defense** (especially when assumption is reasonable) b) others **merge AoR with comparative fault** and reduce the P's recovery by her % of fault (especially when the assumption is unreasonable) Thus, any type of "fault" by the P (both the P's negligence as to her own safety and AoR) is treated as a % discount (or can be a bar in modified comparative fault jurisdiction) c) additionally, there are jurisdictions that treat AoR and comparative fault as **two different issues** to be considered by the finder of fact | Courts are split on how to treat secondary implied AoR

Answer 8

a) statutory bar on claims, regardless of the merits, for failure to file the claim within the designated time period b) SoL are set by statutes c) different claims can have different SoL's

Answer 9

a) clock starts when all the elements of the tort are present to the claim "Accrues" b) i.e., when a legal cause of action **FIRST COMES INTO EXISTENCE**

Answer 10

discovery rule delays the starting of the clock UNTIL: 1. all elements of the tort are present; AND 2. the P **discovers** (or a reasonable person would discover) that: (a) that an **injury** has been **incurred**; and (b) there is sufficient reason to believe that the D's **conduct is causally linked to that injury** or enough of a role to trigger the need for further investigation

Answer 11

1. **insanity** (i.e., inability to manage affairs or comprehend legal rights); 2. **minority**; 3. **threats** or **fraud** by the D; and 4. **special statutory** tolling provisions

Answer 12

- outer limit on the right to bring a claim that is **measured** from the **D's conduct** instead of when the P is injured or the claim otherwise accrues - think warranties, D is only liable for up to a set out time

Answer 13

a) once the triggering event set out in the statute occurs regardless of whether that act is tortious or has yet produced any harm to P b) typical act or event triggering a statute of repose will be the **sale of the product**, the **completion of the construction project**, or the **conclusion of a course of medical treatment**

Answer 14

a) **cut off a P's claims** because of the **status of the D** rather than something the P has or has not done

Answer 15

a) charitable b) spousal c) parental

Answer 16

a) almost every U.S. jurisdiction has **greatly weakened** or **eliminated** many of these immunities

Answer 17

a) prevented family from suing each other in tort b) spousal immunity has been eliminated, in part or whole, by most states, suits against spouses are often treated differently than suits between strangers c) several jurisdictions have **guest statutes that apply to motor vehicle accidents** and require family members and/or social guests of the driver to prove that they were **injured** from **gross negligence** or **recklessness**

Answer 18

a) most states have now **substantially limited parental immunity**, but many states have **retained** some degree of immunity - particularly with respect to **negligence claims** b) a vast majority of states now **permit suits by children against parents for careless operation of a vehicle**

Answer 19

a) barred tort actions against charitable organizations for negligent wrongs b) most states have now rejected across-the-board charitable immunity and / or modified it c) charities remain **liable** for **recklessness** or **gross negligence** d) charitable hospitals can now be held **vicariously liable** for employee **negligence** e) many state have given charities other protections (e.g., damage caps, charity asset protection, etc.)

Answer 20

a) jurisdictional in nature b) holds that courts lack the authority to order the federal or state government into court at the behest of a private citizen c) this blanket immunity DID NOT extent to local or municipal governments

Answer 21

a) renders **injurious conduct attributable** to the federal government actionable under ordinary principles of tort law (28 U.S.C. 1346(b)) b) provided for a partial removal of immunity and set up special procedural rules designed to provide greater protection from liability for governmental entities than are enjoyed by private citizens

Answer 22

a) **discretionary function exception** (DFE): FTCA does not waive immunity for "the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused b) **feres**: military servicemen bar barred from bringing claims against the government for the injuries that arise out of, or incident to, their service c) law enforcement proviso renders U.S. government **potentially liable for certain intentional torts** of federal law enforcement and investigative officers (e.g., assault, battery, false imprisonment, false arrest, abuse of process, and malicious persecution)

Answer 23

a) allows immunity to be retained if official's actions involved an "element of judgment or choice" on a matter of "policy"

Answer 24

1. the conduct at issue must be **discretionary**, involving "an element of judgment or choice;" and 2. the judgment at issue be of the kind that the discretionary function exception was **designed to shield**.

Answer 25

a) social b) economic c) political policy

Answer 26

a) absent certain special circumstances, municipalities owe no duty to citizens for injuries resulting from the negligent performance of municipal functions

Answer 27

a) although the government owes certain duties to the public at large, it does not owe those duties to any individual member of the public

Answer 28

a) the municipality undertakes / **begins a rescue**; or b) the municipality has a **special relationship** with the injured party

Answer 29

1. an assumption by the municipality, through **promises or actions**, of an affirmative duty to act on behalf of the party who was injured; 2. **knowledge** on the part of the municipality's agents that inaction could lead to harm; 3. some form of **direct contact** between the municpality's agents and the injured party; and 4. that party's **justifiable reliance** on the municipality's affirmative undertaking

Answer 30

- **minimal damages** awarded to a P to show that he was **correct** - usually in instances where the P has **not suffered substantial injuries**

Answer 31

a) P proves the elements of a tort, but there is no evidence of actual damages b) **NOT PERMITTED** in **CONVERSION** cases

Answer 32

a) money damages that the D pays a P as **compensation** for the injury / loss suffered at the hands of the D

Answer 33

a) P entitled to fair, adequate, and reasonable compensations from the D in light of the losses suffered, but there must be a correlation between the amount owed and the losses the P actually suffered b) the purpose is to **make the P whole or restore the status quo ante** c) **economic damages** (past & future earnings and costs) and **non-economic damages** (victimization, disfigurement, & past / future pain and suffering)

Answer 34

a) monetary damages that a D must pay to the P as **punishment** for egregious conduct and / or for deterrent purposes

Answer 35

a) only in certain cases where the D's conduct goes **above and beyond wrongful behavior** b) NOT ALLOWED when the D was merely careless, and thus **not available in negligence cases** c) even when available and D's conduct meets the intention / wanton threshold, the **jury has discretion** to award or not award

Answer 36

a) **instructs** jury regard the award of damage b) can use **remittitur** to reduce an award or **additur** to increase and award if jurisdictions allow. can also **allow a new trial**

Answer 37

a) determine the types of damages b) determines amount damages

Answer 38

a) compensate P for past / future lost earnings and costs related to the injury incurred due to D's conduct b) at times may be easily quantifiable

Answer 39

a) compensate P for victimization, disfigurement, and/or past/future pain and suffering incurred due to D's conduct b) no metrics to quantify

Answer 40

a) holds the principle who committed the wrongful act liable for her conduct b) i.e., negligent hiring or supervision

Answer 41

a) holds the principal, who did not personally engage in any wrongful conduct, liable for the actions of another who engaged in the wrongful conduct b) i.e., employer is liable when an employee, within the scope of employment, harms a third party. **NOT LIMITED TO EMPLOYMENT SITUATIONS**

Answer 42

a) a form of vicarious liability wherein an employer is subject to liability for torts committed by employees **while acting within the scope of their employment**

Answer 43

a) an employer **CANNOT BE LIABLE** for acts of an **independent contractor**

Answer 44

1. tortfeasor was an **employee**; and 2. the employee was **acting within the scope of his/her employment** when the incident occurred

Answer 45

a) person or entity hired by employer to **perform specific tasks** b) employer generally **does not have meaningful right of control** over the manner and means of performance of the work - line between employee and independent contractor can be elusive because independent contractors can be subject to some degree of control

Answer 46

- E S S S T P W R 1. the **extent of control** that actor and employer have agreed the employer may exercise over deatils of the work; 2. whether actor is engaged in a distinct occupation or business; 3. whether the type of work done by actor is **customarily done under supervision**; 4. the **skill** required in actor's occupation; 5. whether actor or employer **supplies the tools and other instrumentalities** required for the work and the place in which to perform it; 6. the **length of time** during which actor is engaged by an employer 7. whether **actor is paid by the job or by the time worked** 8. whether actor's **work is part of the employer's regular business** 9. whether employer and actor **believe that they are creating an employment relationship**; and 10. whether employer is or is not in business 11. extent of control that the employer has exercised in practice over the details of the actor's work

Answer 47

a) certain duties are nondelegable and consequently the employer would remain vicariously liable for the actor's negligence despite its exercise of due care b) i.e., inherently dangerous activities, general contractor remain liable for acts of an independent subcontract, **business owner's duty to keep its premises and instrumentalities safe for customers**

Answer 48

a) **narrow test**: was the employee **furthering the employer's interest** or **acting for the employer's benefit**? b) **broad test**: was the employee's **conduct characteristic of the employment**? (based on the idea that the employer should be liable for losses that may fairly be regarded as the costs of doing business)

Answer 49

a) often look at whether the employee's conduct was characteristic of employment (**broad test**)

Answer 50

a) includes the duty to **indemnify** and defend

Answer 51

in exchange for regular payments (premiums), the insurer issues a policy that: 1. promises to **indemnify** (pay for) liabilities incurred by any insured, but only to the extent specified in the policy; 2. promises to pay for and manage the defense of any liability claim brough against an insured that plausibly might fall within the insurer's promise to indemnify

Answer 52

a) generally defined to mean an **accident** that results in injury b) i.e., bodily injury or property damage

Answer 53

a) injury must be an **unexpected** or **unintended** consequence of the insured's conduct b) if an injury is expected or intended, it is not deemed to be from an accident and coverage is denied

Answer 54

a) if language in a contract is **unambiguous** when applied to the claim at issue and in the context of its entire policy, then the term is interpreted according to its plain meeting b) if language has **ambiguity**, coverage provisions are **construed in favor of the insured** and **exclusion provisions are interpreted narrowly** against the insurer

Answer 55

- liability insurance policies provide some security against the risk that one might incur liability by virtue of accidentally injuring someone else. thus they protect the insured against accidentally-caused losses

Answer 56

- preventing intentional/planned losses, a policy that indemnifies insured for intentional/planned losses could be deemed contrary to public policy and void - not meant to indemnify insured for planned or intended losses - could incentivize insured to take more risks or willfully cause harm

Answer 57

Definition: a claim brought by the estate of the deceased victim to seek **compensation** that the deceased, had she survived, could have received for the harms suffered as a result of the D's actions - direct actions meaning the **compensation sought is for injuries/losses incurred by the tort victim** (deceased) - estates stands in the shoes of the deceased when litigating the claim

Answer 58

Answer: prior to survival actions, the common law held that a cause of action for the tort died with the victim and/or tortfeasor - because a tortious D could escape liability if the victim was killed - this rule had the effect of rewarding a tortious D that caused a fatality and disadvantaging the deceased's estate - such a result was seen as unjust, especially considering that the only reason the deceased was not alive to pursue the claim was due to the severeity of the injuries resulting from the D's actions

Answer 59

- funeral expenses - **compensation** for the D's losses **during her life** (economic and non-economic damages including pain and suffering and emotional distress) - lost earnings from the **date of accident until the date of death** are usually recoverable, but the estate is **not entitled to compensation for future lost earnings**

Answer 60

- if a D has a **valid defense that would have barred or reduced the recovery** the deceased would have received if she had lived, the D **can still pursue the defense against the estate** - D is entitled to allege that the estate's recovery should be barred/limited because the negligence by the deceased contributed to the injurred injuries/losses

Answer 61

- a deceased victim's pre-death pain and suffering **can be considered** when awarding compensation

Answer 62

- in **some jurisdictions**, the deceased victim's pre-injury terror is **compensable** - **illinois DOES NOT permit** compesantion for the deceased victim's pre-injury terror

Answer 63

- derivative claim brought by the deceased's immediate family members to seek **compensation for the loss of support they incurred** due to the tortious killing of the deceased - claim is derivative because it permits compensation to be sought by individuals who, rather than being victims of the tort, are entitled to recovery for the losses incurred because of the fatal tort committed against their relative

Answer 64

- relatives or by the estate on behalf of the relatives - when suit is brought by the estate, the recovery is distributed to the heirs rather than being included in the deceased's estate

Answer 65

- P's can seek the deceased's **lost future earnings** (usually from the **date of death until deceased would have retired**) along with compensation for **loss of society**, **companionship**, and **comfort** - in **some jurisdictions**, compensation may also be allowed for the **emotional distress suffered** by the P due to the loss of the deceased

Answer 66

- since wrongful death claims are derivative, recovery is allowed only to the extent that the deceased could have recovered in the action had she lived - therefore, any defense that could have been brought against the deceased is also applicable against the deceased's beneficiaries

Answer 67

- **negligence** by beneficiary can **diminish recovery** - **contributory negligence**: while defenses against potential beneficiaries did not bar a wrongful death action under traditional rules, a contributorily negligent beneficiary could recover nothing - **comparative fault**: in most comparative negligence jurisdictions, the negligent beneficiary's recovery would be **reduced by his fault**, reducing the overall award granted to the estate (note: recovery **could be barred** in modified comparative fault jurisdictions if the **beneficiary's percentage of fault exceeds the particular jurisdiction's threshold**)

Answer 68

- **child's civil cause of action** that seeks tort recovery for being born with deformities - **but-for the doctor's negligence**, the child would not have been born to experience the pain and suffering attributable to the deformities

Answer 69

- most courts refuse - Rationale: Courts are uncomfortable with the law taking a position on whether a child’s existence can be deemed an injury as measure against the counterfactual baseline of never having been born.

Answer 70

- In jurisdictions that permit wrongful birth actions, the plaintiff is generally awarded the expenses and costs associated with life care for the entirety of the plaintiff’s life.

Answer 71

- A civil cause of action **brought by the parents of a child** born with severe birth defects against a **doctor for negligent treatment or advice**

Answer 72

- While plaintiffs have experienced difficulties pursuing wrongful birth actions, courts tended to be more inclined to recognize such claims after Roe v. Wade was decided. - However, the validity of wrongful birth claims, as well as their scope, will greatly depend on whether the mother had a legal right to terminate the pregnancy under state law. - Post-Dobbs, mothers can no longer claim a right to abortion under the U.S. Constitution.

Answer 73

- When permitted, the available damages generally include the additional costs of raising a child with a mental/physical impairment (as compared to the costs of rearing a healthy child). - Some courts limit these damages to the period before the child reaches the age of majority. - Courts vary regarding whether recovery is permitted for the emotional distress suffered by the mother and her spouse/co-parent.

Answer 74

- A civil cause of action brought by a **parent of a child** **born healthy** after a **physician's failure to properly perform a medical sterilization procedure**

Answer 75

- Most states recognize actions for wrongful conception/pregnancy

Answer 76

- The damages are usually limited to compensation for the pain and distress associated with the pregnancy along with the expenses related to pregnancy and childbirth, including lost wages for the period of pregnancy and immediately after birth. - When permitted, courts may offset the recovery to account for the benefits of raising a healthy child. - If the child has a disease/medical problem, most courts permit the plaintiff to recover for the additional expenses of treatment. (Rationale: Parents were trying to avoid having a child with such a condition when underwent the surgery/procedure and the costs are not offset by the benefits of child-rearing.) - Some courts deny recovery, reasoning that the intangible benefits of raising a child cannot be reduced to a monetary figure.

Answer 77

- Some states do not consider implanted contraceptive devices (IUD) to be sterilization. - Doherty v. Merek & Co. wherein Maine’s statute permitted recovery for failed sterilization procedures. The Maine Supreme Court defined “sterilization” as a medical or surgical procedure that is performed for the purpose of “rendering an individual permanently incapable of procreation.” While vasectomies are surgical procedures, some jurisdictions do not consider them to be sterilization because they are often reversable.

Answer 78

Yes, prenatal injuries are actionable and allege the defendant tortiously injured the fetus.

Answer 79

- The action is based on the **doctor’s duty to both the mother and the fetus** to act in a manner that is not negligent. - Depending on who uses the word, “stillborn/stillbirth” can have different meanings. For clarity, I would provide a description (e.g., injury after viable and no live birth) instead of using “stillborn/stillbirth.”

Answer 80

- **Child is born alive**: The child (with parent(s) as guardian(s)) can bring suit and likely recover for **medical malpractice**, a **negligence-based claim**, or an **intentional tort** - **Injury Post Viability + child dead**: parents MIGHT BE able to bring wrongful death, if jurisdiction allows - **Pre-Viability Injury + child dead**: recovery NOT LIKELY due to proximate cause issues

Answer 81

1. D **enters or causes entry** onto land (or refuses to leave when consent to enter is withdrawn); 2. the land is **lawfully possessed** by another; and 3. the D **intended to enter or cause entry** onto the land

Answer 82

- surface - subsurface - air above ground up to a certain height (usually 50ft)

Answer 83

- **injunction** - **nominal** damages - **compensation** for property damage - loss of property value | injunction: order from a court to perform a specific act

Answer 84

- only requires an intent to enter the land space - intangible invasions (smoke, light, odor, noise) may be actionable if physical damage results, OTHERWISE it is nuisance

Answer 85

- yes, reasonable mistaken belief is irrelevant - all that is required is intent to be in the specific area

Answer 86

- entitles a person to commit a simple trespass to save herself/3rd party or her/3rd party's property from damage or destruction - limited, because while entry it permitted, she is not entitled to do wrongdoings - D liable to landowner for any damage or injury

Answer 87

- a private citizen is entitled to use and/or destroy another's property for the public good - emergency situations, usually done by, or at the behest of government - absolute privilege - i.e., fire chief ordering the burning of a citizen's property to control the spread of a fire

Answer 88

- personal property

Answer 89

- included only tangible property

Answer 90

- tangible and intangible - i.e., electricity, negotiable instruments, stock shares, and intellectual property - some courts use the merger rule for a limited expansion of the traditional rule to include intangible property that is merged in, or identified with, a document.

Answer 91

1. **intentionally** (purpose, desire, or knowledge to a near certainty) 2. **intermeddles** with chattel of another (or dispossesses another of their chattel); 3. causes **harm**, **destruction**, or a **substantial interference** with the other's use of the chattel

Answer 92

- actual damages and/or compensation for loss of use - **replevin**: getting what's yours back (if they decrease the value, don't want this, want actual damages) - substantial loss of use is needed, and the economic loss but be quantifiable - nominal damages are NOT AVAILABLE

Answer 93

a) extent and duration of control b) D's intent to assert a right to the property c) D's good or bad faith d) harm done e) expense or inconvenience caused

Answer 94

- consent - private necessity

Answer 95

1. **Intentionally** (with purpose, desire, or knowledge to a near certainty) to interact with the property in a certain manner 2. **exercises substantial dominion** over chattel lawfully possessed by another in a manner that is inconsistent with the other having superior possessory rights in that item; 3. **completely** (or near completely) **depriving the possessor** of possession or **causing an interference** with possession **so substantial** as to warrant the possessor in treating it as a complete deprivation, permanaently or for an indefinite period

Answer 96

a) extent and duration of control b) D's intent to assert a right to the property c) D's good or bad faith d) harm done e) expense or inconvenience caused

Answer 97

- consent - private necessity - public necessity

Answer 98

- P does not have to have actual possession of the property at the time of the conversion - need only have the right to immediate possession

Answer 99

- NO, interfering with another's possessory rights DOES NOT MATTER - STILL LIABLE for the mistaken belief that she owns the property - transfered intent = NO GOOD to conversion