Torts Post Midterm Flashcards
Res Ipsa Loquitar Means
the thing speaks for itself
Evidentiary standard allowing circumstantial evidence to prove negligence
The majority of courts allow it to be pleaded together (w/ negligence acts) as an alternative ground for Negligence
Res Ipsa Loquitur
Elements
1) accident is of such a nature that it would not happen without negligence
2) that the instrumentality causing the injury was in the exclusive control of the D (Relaxed over the years)
3) The plaintiff was not at fault
Minority, medical practice position - become right of control rather than actual control where purpose of RIL would otherwise be defeated
Ex. Ybarra v. Spangard Minority
Here, number or relationship of Ds and instrumentalities doesn’t matter, control does
Damages
Nominal
Awarded for torts where there is no harm (ex. trespass)
Damages
Compensatory
To make the plaintiff whole (awarded in negligence suits)
Damages Compensatory
Pecuniary Loss
Property – damage to property, diminution of value, cost of repair or replacement, or cost of appropriate substitute
Personal injury – medical treatment, lost wages, diminished earning capacity
Damages Compensatory
Non-Pecuniary Loss
Pain and suffering- included loss of enjoyment
Loss of Consortium
Damages
Punitive
Awarded when D acts with malice (ill will, hatred, reckless disregard to the rights of the P)
Awarded to punish the D and deter others from repeating the wrong
Limited By Due Process
1. Degree of reprehensibility of the defendant’s misconduct
2. Disparity between compensatory and punitive damages
The multiplier should not be higher than 10x
Ex. State farm
3. Difference between punitive damages and civil or criminal penalties
Damages
Duty to Mitigate
Definition
Both before and after harm, plaintiff nust endeavor to reduce their damages (ex. Wear a seatbelt)
Duty to Mitigate
Contributory Negligence
failure to mitigate in anticipation of harm will reduce damages, but not bar recovery (not assumption of the risk)
Duty to mitigate
Comparative negligence
Failure to mitigate assumed
Traditional Approach
Collateral Source Rule
Jury is not to know about any awards by insurance to the plaintiff- limits permissible evidence
Collateral Source Rule
Subrogation Clauses
insures will include clause in insurance policies to reimburse them for payout to plaintiff from any tort damages
What is
NIED
Synthesized
Negligently through extreme and outrageous behavior, causes severe emotional distress
NIED- Impact
Must be physically impacted by the negligent act evolved through pain and suffering damages for NEID for emotional distress that manifested itself physically
Duty
NIED
3rd party ZONE OF DANGER
Zone of Danger (majority)
* Suffered impact OR were in the zone of physical risk of the impact
Must manifest Physical Symptoms
NIED
Breach
Through extreme and outrageous behavior that goes beyond the bounds of human decency, such as to be intolerable in a civilized community
Context and relationship-relevant
NIED
Causes
Cause in fact(but for) and proximately (foreseeable type of harm)
Same analysis as negligence
NEID
Harm
Severe emotional distress
Majority - must show that the emotional distress (including future harm) CAUSED bodily harm
Ex. heart attack, stomach trouble
HIV exposure- must show actual blood exposure
Minority
Bodily harm is not required
Future fear of cancer (firestone)
1) P is exposed to a toxic substance which threatens cancer and
2) P’s fear stems from knowledge, corroborated by scientific opinion that it is more likely than not that the P will develop cancer
Emotional distress
Must be objectively reasonable
Damages
No Punitive damages (compensatory/economic, pain and suffering
It cannot apply to harm to property. Only PI
Defenses to Negligence
Contributory Negligence
Any negligence on P’s part acts as a complete bar to recover (contributing cause cooperating w/ d’s negligence to cause p’s harm)
CONTRIBUTING CAUSE BARS RECOVERY
Defenses to negligence
Comparative Negligence
P’s recovery is limited in proportion to their own fault
Pure- can recover even if the P is 99% negligent
Modified - D must be greater to or equal to 51% negligent (and p is less than 50) (Majority rule)
Impacts implied assumption of risk, which is considered as part of comparative negligence (express remains)
Even a reckless defendant can use comparative negligence
COMPARING LEVELS OF FAULT
Must evaluate Duty, breach, and causation and then apportion damages
Defenses to negligence
Assumption of risk
elements
1) Fully understands risk- must be obvious/not hidden
2) voluntarily exposes self to risk - impulse to save/moral imperatives not necessarily voluntary, not is exigent circumstances (latrine case)
Coercion or having no options makes the choice involuntary
Must be particular risk, NOT all risks
Subjective standard
Negligence Defenses
Assumption of the risk
Implied/secondary + exceptions
Indicated by P’s behavior. Can provide a partial defense if not assumed into/analyzed as part of a comparative scheme (majority rule)
Contact Sports exception- participants and spectators assume risk that others will not exercise ordinary care. Only liable for reckless behavior that so totally falls outside the range of ordinary activity involved in the sport.
CA – interpreted as no duty on part of D (primary AoR)
Firefighters exception – police and firefighters assume the risk of negligence creating the hazards of the job
NOT A Complete defenses
Negligence Defenses
Assumtion of the risk
Explicit/primary
Agreement, often written
Can be caged in terms of D’s Duty
D’s negligence is not foreseeable
Can be invalidated if against public policy
Complete Defense
Joint and Several Liability
Generally
Each D is responsible for the entire harm (joint) and as between Ds, responsible for harm according to fault (several liability)
J&S
Steps
1) P can go after one D for entire harm, and collect whatever they can from them
2) D’s can then go after other tortfeasors not joined by P for proportionate share by
* Impleading other d’s in the same suit
* OR going after other defendants through comparative contribution claims (NOT negligence claims) w/in 14 days of answering P’s complaint.
* NOT Permitted for intentional torts
* Can only go after Ds, whom P could have sued (does not apply to immune Ds such as states or federal government OR in modified comparative negligence jurisdictions to plaintiffs that are less negligent than the P)
J&S Settlement
Majority – deduct settling D’s percentage of fault from total liability
Minority/pro tanto rule- if settled with one D, the remaining D at trial will be responsible for the entire loss, despite fault
Products liability
elements
1) Negligence
Duty - manufacturers, distributors, wholesalers, retailers had a duty to any foreseeable party harmed by a dangerous product,
Breach – failed to act like a reasonable person/company,
Cause – but for and proximate
Harm - Personal Injury or property damage (Pillars v. Reynolds)
2) Warranty
expressed/implied
Implied Warranty
Products liability
implied warranty of merchantability- goods reasonably conform to their description and are safe for their intended use
Implied warranty for fitness for a particular purpose when buying goods for a special purpose and rely on assurance that the good is fit for it
Express Warranty
Products liability
factual assertions about characteristics of the product in verbal or written form
Including the Salesman’s verbal assertions, ads and brochures
Products liability
AS-IS
Disclaims implied warranties
Product liability
Defenses
Comparative
ass. of risk
NOT Eggshell plantiff
Strict product liability
Consumers Expectations test
1) Defective condition
2) unreasonably dangerous to the consumer or their property -> Applies to latent defect (the ordinary customer would not discover the defective condition)
3) Seller is engaged in the business of selling such a product (applies to new products or relatively nre product
4) It is expected to and does reach the user or consumer w/o substantial change in the condition in which it is sold (RIL/circumstantial evidence)
Applies even if
Seller execised reasonable care (negligence is irrelevant)
No privity/contractual realtionship is necessary
Strict products liability
Types of defects
Specific/Particular product was defective
Design defect- entire product line is defective b/c of design
Warning defect- failed to provide adequate warning or instructions effectively entire product line
Vicarious Liability Generally
May be held vicariously liable for torts of another, even if you bore no fault
Vicarious liability
Respondeant Superior
Employor-employee and partnerships
w/in scope of employment
Vicarious liability employer-employee
Bunkhouse rule
Activities during leisure time included if live-in employee making reasonable use of the premises
If time spent on premises is conceivable of some benefit to the employer
If activities a customary incident of the employment relationship
Exclusion
Conflict arising as a result of personal malice unrelated to work (Yet arising out of employment is included)
Vicarious liability
Coming and going rule
employer
Regular commutes not included unless
Special risk -Employment exposed to risks (On location b/c of work) (Risk is distinctive to what the public would be exposed to)
Special mission or errand- The request must be explicit or implicit (Small deviations are ok)
Transportation/Vehicle exception- D provided a car, or P is in uniform (ex. Military recruiment trip)
Travel Allowance/Expense Exception- Employer pays for the travel that is not a part of regular commute
Vicarious liability
Independent contractors
Generally
principals are not liable for torts of independent contractors
Independent contractor depends on whether employer has a “right of control over the manner in which the work is to be done”
Vicarious liability
Establish RIght of control
Ind. Contractors
Extent of control by agreement (more – employee)
Distinct occupation (more – IC)
Skill required (high – IC)
Who supplies the tools/equipment/materials? (employer – employee)
Length of time (longer-employee)
Method of payment (payroll – employee)
Work at the regular business location of employer (if so – employee)
Belief of parties (K/W2/1099?)
Vicarious liability
Exceptions to being liable for IC
1) principal controls manner and means of work
2) negligent hiring - hire incompetent contractor
(ex. contractor was incompetent or unskilled/ principal knew or had reason to know)
3) job inherently dangerous – requires special precautions for peculiar risks inherent to the job
Vicarious liabilty
Parents exception
Generally parents not liable for children
1) Parent entrusts dangerous instrumentality to the child
Ex. Fire arm
2) Child acts as a servant or agent, or acts w/ parental consent, direction, or sanctions
3) Parent knew child was danger to others and failed to execise control over them
NIED DUTY
Foreseeable P
Foreseeable Plaintiff (minority)
* Whether the plaintiff would be foreseeably distressed
NIED DUTY
Dillon
Dillon Facts (minority)
* Whether the P was near the scene of the accident
* Whether the P’s distress was caused by the sensory and contemporaneous observance of the accident
It does not require sight, just some sense of perception
* Whether the P has a close relationship w. The victim (Married, child, or parent)
CA ONLY
NIED DUTY
Modified Dillon/Thing test
Modified Dillon/Thing Test
* Closely related to the victim
* Present at scene of injury-producing event and aware it is causing injury
* Suffer more distress than a disinterested observer
Special Cases
* Allowed to recover where misinformation of relative’s death or mishandling of a corpse
CA only
Defenses to Negligence
Contributory Negligence States
Only applies in MD, DC, VA, NC, AL
Defenses to negligence
Exception to Contributory Defense
Exception
Last Clear Chance Rule
D’s negligence after P’s will nullify P’s negligence and P can still recover (Davies v. Mann)
Applies only in jurisdictions where they have contributory negligence; assumed
Failure to mitigate damages will not bar recovery
