Torts Post Midterm Flashcards

Question

J&S | Steps

Answer 1

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)

Answer 2

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

Answer 3

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

Answer 4

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

Answer 5

factual assertions about characteristics of the product in verbal or written form Including the Salesman’s verbal assertions, ads and brochures

Answer 6

Disclaims implied warranties

Answer 7

Comparative ass. of risk NOT Eggshell plantiff

Answer 8

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) ## Footnote Applies even if Seller execised reasonable care (negligence is irrelevant) No privity/contractual realtionship is necessary

Answer 9

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

Answer 10

May be held vicariously liable for torts of another, even if you bore no fault

Answer 11

w/in scope of employment

Answer 12

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)

Answer 13

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

Answer 14

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”

Answer 15

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?)

Answer 16

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

Answer 17

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

Answer 18

Foreseeable Plaintiff (minority) * Whether the plaintiff would be foreseeably distressed

Answer 19

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

Answer 20

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

Answer 21

Only applies in MD, DC, VA, NC, AL

Answer 22

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 ## Footnote Failure to mitigate damages will not bar recovery