torts rules midterm Flashcards
Contributory negligence
older, minority approach; any negligence by P results in total bar to recovery
comparative negligence
majority view; negligence by P results in reduced recovery
assumption of risk [AoR]
mostly abandoned; express v. implied; total bar to recovery
immunities
judicial proceedings, employer, families, charities, governments, tribes, public officers
Pure [Full] Comp. Negligence
no threshold; % of fault reduces
Modified [Partial] Comp. Negligence
50% allowed rule [tie to P; majority]
50% Bar rule [tie to D; minority]
express AoR
requries an explicit agreement in words assuming the risk; majority of jurisdictions still recognize with limits
Implied AoR
by conduct or actions P assumed the risk; majority of jurisdictions no longer recognize; may be subsumed in comparative negligence, leading to primary/secondary implide AoR analyses
general elements of AoR
- knowledge - P knows and appreciates the risk, including its nature and severity [subjective standard, requires actual knowledge and true appreciation of the risk]
- voluntariness - P takes on risk in an entirely voluntary way [genuine choice]
Issues with express AoR
- whether jurisdiction considers exculpatory contracts unenforceable due to lack og genuine voluntariness
- most jurisdictions: public necessities [i.e. hospitals, doctors, etc]
- other problem areas: products liabilities cases, employment injury cases
Issues with Implied AoR
- traditional approach - implied = complete bar to recovery [affirmative defense]
- comparative negligence/modern approach
primary implied under comparative negligence
no duty; trreatment of “obvious and necessary” risks compared to “obscure or unobserved” ones when establishing existence of duty = complete bar to recovery
secondary implied under comparative negligence
finding of fault reduced or bars percentage of recovery [D created the risk through negligence but the P appreciated the risk and still assumed it = reduction in damages]
what are other immunities
- tribal sovereign immunity
- public officers
- The FTCA through the Westfal Act
“Clean Hands” rationale
one justification for the rule is that a court will not aid a plaintiff without “clean hands”. the doctrine discourages plaintiffs from being negligent
proximate cause rationale
the general justification is that the plaintiff ebcomes the proximate cause of his own injuries
standard of care
the plaintiff is thus held to the same standard of care as the defendant
what are claims that defense is not usable
contributory negligence doctrine wont work for: intentional torts, willful and wanton negligence; or negligence per se
what is willful and wanton negligence
when the defendant is “willful and wanton” or “reckless” in his negligence, contributory negligence does not apply
what is negligence per se
if a statute was enacted to protect a class of which the plainitff was a member, contributory negligence does not apply
define last clear chance
if the defendant had the last conscious and actual opportunity to avoid the harm, and the plaintiff had no such opportunity, then the contributory negligence defense is negated. The doctrine depends upon whether one, both, or neither the plainitff and defendant were inattentive or helpless
who can recover when the plaintiff is helpless and the defendant is conscious
If P is unable to avoid the injury, and the D is aware of the danger but negligent, the P may recover
who recovers when the P is helpless and the D is inattentive
Nost courts allow the P to recover when the D could have but did not see the P
who recovers when the P is inattentive and the D is conscious
Most courts allow the P to recover when the P was not helpless but the D still could have avoided injury
who recovers when both parties are inattentive
few courts apply last clear chance where both parties were negligently inattentive
what is qualified assumption of risk
conduct was unreasonable and bars recovery
discovery rule
modern courts have held that the statute does not begin running until the P knew or should have known of the injury under the discovery rule = the statute of limitations starts to run when P discovers or ought to have discovered the injury
immunities for the parent-child relationship
limited to intentional, willful, or wanton injuries, wrongful death actions for another parent’s death, step-parents, car accidents, or where the child has been legally emancipated
define limited to agency
agent is acting within its function
does the police have immunity
yes; liabilityexists only where the police undertook the act and created reliance, where they enlisted the aid of the plaintiff or increased the risk of harm to the plaintiff
28 U.S.C. 2680
United States has waived its immunities from most tort claims. liability occurs when the US or its agents act in the same manner as a private person towards the individual under thoe circumstances
restatement (Third) of Torts: Liability for physical and emotional harm §37
An actor whose conduct has not created a risk of phsycial harm to another has no duty of care to the other unless a court determines that an affirmative duty exists
whats the differnce between act and failure to act
- action = better seen as “conduct that creates a risk of harm” (duty);
- no action = better seen as “conduct that does nto create a risk of harm” (no duty)
what is the general rule for failure to act
no act no duty; “An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that an affirmative duty exists”
what are special affirmative duty situations
(1) voluntarily undertaking a duty of care and (2) special relationships
- parent/child
- employer/employee
- common carrier/passenger
- shopkeeper/patron
restatement 2d of torts §323
“one who undertakes, gratuitously or for consideration, to render services to another which he shold recognize as necessary for the protection fo the other’s person or things, is subject to liability to the other for phsycial harm resulting frmo his failure to exercise reasonable care to perform his undertaking, if - (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered b/c of the other’s reliance upon the undertaking”
describe special relationships
if a defendant has a special relationship with the plaintiff, the defendant may be liable for failure to act if the plaintiff is in peril. such special relationships include parent-child, employer-employee, coon carrier-passenger, and shopkeeper-patron
damages; general rule
a p should be compensated for all damages, whether past present or prosepctive:
-includes compensation for economic damages
- includes non-economic damages
- nominal damages are not available in negligence cases
pure economic loss: damages rule
pure economic losses that are not accompanied by physical damage to person or property are not compensable
elements for IIED
(1) a volitional act
(2) act is “extreme and outrageous conduct” [objective]
(3) intent or reckless to cause severe emotioal distress [subjective]
(4) substantial cause of actual damage
restatement third of torts: liability for physical and emotional harm §37
“An acotr whose conduct has not crated a risk of physical harm to another has no duty of care to the other unless a court determines that an affirmative duty exists
NIED that causes physical harm
there is a limited duty not to negligently inflict emotional distress where there is a foreseeability risk of physical injury to the plaintiff, PLUS (1) the plaintiff is within the “zone of danger”; and (2) the plaintiff suffers physical symptoms frmo the distress
NIED that does NOT cause physical harm
“If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotioal disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance
restatement second, §436(1)
if the actor neglgiently causes “fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability
restatement second §436
(2) if the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another…, the fact that sich harm results soley from the internal operation of fright or other emotional disturnace does not protect the actor from liability
(3) the rule… alos applies where the bodily harm to the other results frmo his shock or fright at harm or peril to a member of his immediate faimly occuring in his presence
bystander emotional distress
there is a limited duty to not inflict emotional distress on bystanders outside the “zone of danger” pf physical injury who see the defendant negligently injuring another so long as
(1) the P and the person injured by the D are closely related
(2) the P was present at the scene of the injury 9
(3) the P personally observed or perceived the event
exceptions where emotional distress often allowed without observation
(1) negligent mishandling of a relative’s corpse
(2) negligent mistaken report of terminal diagnosis
(3) neglgient mistaken report of a relative’s death
damages general types
nominal damages, compensatory economic losses, compensatory non-economic losses, punitive [exemplary] damages
compensatory damages economic losses
lost wages [past and future]; medical care and rehab
compensatory damages non-damages
mental anguish; pain and suffering; life enjoyment; impairement or loss of ability; disfigurement; loss of consortium
under economic lossees what do states recognize about medical monitoring
doizen states have recognized medical monitoring in the absence of physical injury, but about twice as mant have rejected it
most jurisdictions require the amount of the award be __
present value of the future losses (principal plus interest will equal amount awarded)
what are the non-economic losses
loss of function/appearance; loss of enjoyment of life; and per-diem argument
remittitur
in cases of excessive verdicts, grant a motion for a new trial that is conditioned upon the refusal of the P to accept a lesser amount
additur
when the verdict is inadequate, grant a motion for a new trial that is conditioned upon the refusal of the D to pay a larger sum set by the court
generally, what does the court hold about remittitur
been held that remittitur doesn’t violate right to jury trial in federal or state constitutions. but additur has been denied to the federal courts and state courts are split
motion in limine
motion made before trial to prohibit one side from referring to ir introducing evidence tha the other side believes is inadmissable and so prejudicial that th emoving party would not get a fair trial if it were mentioned before the judge had a chance to rule on its admissibility during the trial, at the point it was offered.
common law collateral source rule
applied when the P recieves compensation from any source other than the tortfeasor
loss of consortium
most states recognize a claim by the spouse of an injured person for loss of conjugal relations, society, companionship, household services, etc. the claim is deriviative of the injured person’s and in most states must be joined in the cause of action of the injured person
market value
what the property could have been sold for on the open market, in the ordinary course of a voluntary sale by a leisurely seller to a willing buyer at the time and place where the wrong occured ; the highest price that could have been realized, not the lowest price at which there reasonably could have been a sale
what are the rules for harm to property
-some cases consider personal value
-not usually compesated for sentimental value of pets
-if property damages, compensated the difference in value
-if temporarily deprived, compensated for the rental value
-consequential damages recovered if they are “proximately caused”
duty to mitigate damages
a rule that doesn’t allow recovery of those damages that P could have avoided by RSBL conduct on the part of the P after a legal wrong has been committed by the D
punitive [exemplary] damages
to punish
three guideposts from BMW
(1) degree of reprehensibility
(2) no bright line ratios involved
(3) disparity between punies and authorized civil penalties
