Wisconsin Torts Flashcards
Duty of Care
Everyone has a duty of care to the whole world. The duty of any person is the obligation of due care to refrain from any act which will create a foreseeable risk of harm to others even though the nature of that harm and the identity of the harmed person or harmed interest are unknown at the time of the act.
Strict Liability
A prima facie case for strict liability requires:
(i) an absolute duty to make the plaintiff’s person or property safe,
(ii) actual and proximate causation, and (iii) damages
When is the owner of a dog fully liable for a injury from a bite?
The owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal, or property, if the owner is without notice.
When is the owner of a dog liable for twice the full amount of damages for an injury from a bite?
The owner of a dog is liable for twice the full amount of damages caused by the dog biting a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement if the owner was notified or knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.
What factors will a court consider in determining whether to preclude a defendant’s liability?
(1) The injury is too remote from the negligence;
(2) The injury is too wholly out of proportion to the culpability of the negligent tortfeasor;
(3) In retrospect it appears too highly extraordinary that the negligence should have brought about the harm;
(4) Allowance of recovery would place too unreasonable a burden on the negligent tortfeasor;
(5) Allowance of recovery would be too likely to open the way for fraudulent claims; or
(6) Allowance of recovery would enter a field that has no sensible or just stopping point.
When is a manufacturer strictly liable for products liability?
If:
(i) The product is defective because it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings;
(ii) The defective condition rendered the product unreasonably dangerous to persons or property;
(iii) The defective condition existed at the time the product left the control of the manufacturer;
(iv) The product reached the user or consumer without substantial change in the condition in which it was sold; and
(v) The defective condition was a cause of the claimant’s damages
Risk-Utility Test
This test requires the plaintiff to show that the foreseeable risks presented by a product design could reasonably have been limited by the net utility and costs of an alternative design. A manufacturer is not liable for injuries resulting from abnormal or unintended use of his product, when such use was not reasonably foreseeable.
What factors will a court consider in determining whether an activity is abnormally dangerous?
(i) Existence of a high degree of risk of some harm to the person, land or chattels of others;
(ii) Likelihood that the harm that results from it will be great;
(iii) Inability to eliminate the risk by the exercise of reasonable care;
(iv) Extent to which the activity is not a matter of common usage;
(v) Inappropriateness of the activity to the place where it is carried on; and
(vi) Extent to which its value to the community is outweighed by its dangerous attributes.
What doctrine does WI use to determine damages?
Modified comparative fault. If the injured party’s percentage of total causal responsibility for the injury is equal to or less than the percentage resulting from the defendant, the injured party may recover, but the damages recovered by the injured party shall be diminished by the percentage attributed to that injured party
IIED
Four factors must be established for an injured plaintiff to recover:
(i) The plaintiff must show that the defendant’s conduct was intentional;
(ii) The defendant’s conduct must be extreme and outrageous;
(iii) The plaintiff must demonstrate that the defendant’s conduct was a cause-in-fact of her injury; and
(iv) The plaintiff must demonstrate that she suffered an extreme disabling emotional response to the defendant’s conduct. Temporary discomfort cannot be the basis of recovery.
Assault
In Wisconsin, an assault is i) an unlawful attempt, coupled with ii) apparent and real present ability to do bodily harm to another.
One who, with an intent to do injury to another, puts such other in fear of an immediate and harmful bodily contact is guilty of an assault.
COVID Immunity Statute
Immunity to a wide array of individuals and entities from civil liability in negligence for death, injury, or damages related to COVID- 19 contracted through the performance of the person or entity’s functions or services. The immunity is retroactive but does not apply to claims filed before the effective date of the law.
Substantial Factor Test
The defendant’s conduct has such an effect in producing the harm as to lead a reasonable person to regard it as a cause. Foreseeability is not an aspect of cause in fact. Once negligence is established, the defendant is responsible for all consequences, both foreseen and unforeseen, for which the defendant’s act was a substantial factor.
False Imprisonment
The defendant:
(1) confined or restrained the victim;
(2) did so intentionally;
(3) did so without the victim’s consent;
(4) had no lawful authority to restrain the victim; and
(5) knew that the victim did not consent and that the defendant did not have lawful authority to restrain the victim.
Duty Owed by Landowners
The duty toward all persons who come upon property with the consent of the occupier is that of ordinary care.
