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85 Cards in this Set
- Front
- Back
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Can a corporation be responsible for an intentional tort?
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Yes, corporation was held responsible for a battery committed by an act of its president.
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DE duty to retreat?
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1) When meeting force that is neither deadly nor threatens serious bodily injury, no duty to retreat.
2) When meeting deadly force, or force that threatens serious bodily harm, one must retreat unless in one's own home or in place of work, but... 3) if in place of work, must retreat if you were original agressor. |
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Punitive Damages?
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1) available where defendant intentionally invaded another's interests
2) available if D's conduct is WONTON OR WILLFUL disregard for the rights of the Plaintiff (wanton = "I don't care" attitude) |
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Punitive Damages - Insurances cases?
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Available if insurance company's denial of coverage is WILLFUL or MALICIOUS.
Doesn't apply to employment cases. |
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Punitiive Damages - Medical Malpractice?
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available if injury was MALICIOUSLY intended or result of WILFUL OR WANTON conduct
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May the court reduce punitive damage award?
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Yes, if it shocks the conscience of the court.
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Private necessity?
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must be necessary - if the road is blocked by a tree, you can do a three point turn, it's not necessary that you turn around in someone's driveway
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Standard of care for a professional?
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Standard of care for a member of the profession in good standing.
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Standard of care for physicians?
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A national standard.
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Standard of care for a driving minor?
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reasonable adult
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Standard of care for children?
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the degree of care which children of the same age, maturity and capacity would be expected to exercise
but, there is a rebuttable presumption that a four-and-a-half year old lacks the capacity to be negligent much younger child may be conclusively presumed to be incapable of negligence |
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Parent's liability for acts of their children?
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Generally, parents are not vicariously liable for the torts of their children. However, under DE statute, vicarious liability for torts of children where:
-a person who signs the license application on behalf of a minor under 18 is jointly and severally liable with the minor for negligence of the minor while driving -owner of motor vehicle causes or knowingly permits a minor under 18 to drive the vehicle is jointly and severally libel with the minor driver for the minor driver's negligence |
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Negligence per se for violation of a statute?
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if the statute or ordinance was enacted for the safety of others, violation is negligence per se
OSHA regulation violation are not negligence per se - just evidence of negligence Licensing statutes don't set a standard of care so violation is not negligence per se (driving w/out a license). The right kind of causal connection must be present between the tort and the purpose of the statute. |
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Negligence - causation standard for pre-existing injuries aggravated on the job?
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"causation in fact" - don't apply the but for standard. Instead:
where the allegation is that preexisting injury was aggrevated on the job, the question is whether the work conditions were the SUBSTANTIAL CAUSE of the aggravated injuries |
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Negligence - proximate cause?
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proximate cause will be found where the result was foreseeable
But, court will be very deferential to the jury. |
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Negligence: Is it foreseeable (proximate cause) that your actions will result in a criminal act?
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Yes. For example, if you negligently leave the keys in the car you borrowed, you are a proximate cause of the car being stolen.
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Negligent Infliction of Emotional Distress
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"Zone of Danger" rule applies.
You must be in the zone of danger to recover for negligent inflication of emotional distress. |
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Negligent Misrepresenation
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engineers / contractors are foreseeable plaintiffs for negligently prepared designs/plans/reports that will be used to solicit bids (liability not limited to persons with whom preparer is in privity of contract with)
a plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances |
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Res Ipsa Loquitur
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trier of fact is allowed to draw an inference of negligence
if the inference is created, the defendant must rebutt the inference to be able to get a directed verdict |
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Res Ipsa Loquitur - Medical Malpractice
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You need expert medical testimony to establish negligence and causation, except where res ipsa loquitur applies in these 3 situations:
1) foreign object left in patient, 2) explosion or fire originating in a substance used in treatment during treatment, 3) surgery on the wrong patient, surgery on the wrong part of the patient |
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Spoliation of evidence?
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an adverse inference may be drawn against a party who destroys, spoils, loses evidence if the party acted RECKLESSLY OR INTENTIONALLY
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Affidavit of Merit in medical malpractice suits?
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all lawsuits alleging healthcare negligence must be accompanied by an affidavit of merit signed by a qualified medical expert, except in the res ipsa loquitur situations:
1) foreign object left in patient, 2) explosion or fire originating in a substance used in treatment during treatment, 3) surgery on the wrong patient, surgery on the wrong part of the patient |
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"take home" asbestos liability?
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employer has no special relationship to spouse of employer, and so owes spouse no duty to warn about dangers of asbestos (can't succeed on failure to warn case)
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duty of tobacco companies to foreign governments for costs of their citizens' tobacco related illnesses?
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Tobacco Company owed no duty to the foreign governments:
1) indirect nature of claims 2) difficulty of apportioning damages |
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Filed Rate Doctrine?
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(Duty Limitation) A company's contract with the state to provide utility service can validly exclude negligence (maybe not gross negligence though)?
water company doesn't owe duty to supply water to fire hydrants |
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DE Comparative Negligence Doctrine?
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DE is a modified comparative negligence jurisdiction.
Plaintiff's own negligence doesn't bar recovery if plaintiff's own negligence was not GREATER than (51%) the defendant's negligence. |
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Joint and several liability?
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DE is a joint-and-several liability jurisdiction.
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Negligence - Assumption of Risk?
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Primary Assumption of Risk: (no duty situation) plaintiff alleviates defendant from duty owed to plaintiff via plaintiff agreeing to take his chances of injury from a known risk arising from what a defendant has done or will do (knowingly used saw without safety guard)
Secondary Assumption of Risk: (is really comparitive negligence) is the fact that you encountered a known risk unreasonable? (got in a car with a drunk driver) |
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Fire-figher's Rule?
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injured fire-fighter (or other rescuer) is precluded from seeking compensation against the party whose negligence led to the fire, except where:
1) failure to warn of pre-existing hidden defects where there is knowledge of the danger and an opportunity to warn 2) acts ocurring after the fire-fighter's arrival or from perils not related to what makes fire-fighting dangerous 3) where the defendant acts intentionally (can sue arsonist who starts fire) |
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Failure to Wear a Seatbelt
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Inadmissible on issues of comparative negligence, assumption of risk, or mitigation of damages.
However, is admissible for limited purpose of defending against an allegation of defective seat design. |
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Effect of DE Guest Statute?
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Individuals who enter onto private residences and farm premises
who are guests without payment (social guest licensee) won't have a cause of action against the owner or occupier unless it was the result of wilful or wanton misconduct by the owner or occupier Treats commercial licensees like trespassers. |
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DE Guest Statute and attractive nuisance doctrine?
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DE Guest Statute applies only to adult plaintiffs. Attractive nuisance doctrine still aplies.
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Effect of parent's negligent supervision of child on attractive nuisance doctrine?
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is irrelevant, even with respect to proximate cause
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Attractive nuisance:
Riding lawnmower? Iced over pond? |
Riding lawnmower? No.
Iced over pond? No, even though water was from artificial condition. |
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Tenant who does not pay rent?
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A tenant who does not pay rent eventually becomes licensee of landlord.
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Effect of guest-premises statute on tenant's guests?
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Effects guests of the tenant with respect to the landlord. The tenant's guests may recover from the landlord for the landlord's negligence.
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Duty to protect business invitees from third party attacks?
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standard is whether business "known or has reason to know" that the acts of the third person are occurring or are likely to occur
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Duty of general contractor to subcontractor?
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Generally, a general contractor owes no duty to a subcontractor. Will be liable where:
1) contractor actively controls the manner and method of performing the contract work 2) voluntarily undertakes the responsibility for implementing safety measures or 3) retains possessory control over the work premises during work |
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Duty of landowners to contractors for other contractor's acts?
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the landowner will be liable for one contractor's actions to other contractors if:
1) landowner knew or reasonably should have known of a concealed previously existing hazardous condition on its premises 2) landowner knew or reasonably should have known that the contractor and its employees did not know and could not reasonably have been expected to know of the hazardous condition and 3) the landowner nonetheless failed to warn the contractor or to take othe rappropraite action to prevent the injury |
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Liability of commercial and non-commercial servers of alcohol?
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commercial or social servers of alcohol are not liable for negligence when injury results to the person served or to third parties - even if it was a minor
(this is not negated by the fact that DE state law prohibits serving someone who appears to be intoxicated) |
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Social host liability (serving alcohol) for injuries on premises?
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Yes, liability, but because of premises liability, not social host liability.
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Product liability?
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For personal injury, must sue under either:
1) negligence 2) UCC breach of warranty (so essentially, no strict products liability). |
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UCC Warranties for personal injury products liability cases?
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Implied Warranty of Merchantability
Implied Warranty of Fitness for a Particular Purpose |
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Implied Warranty of Merchantability?
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guarantees the product will be fit for its ordinary use
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Implied Warranty of Fitness for a Particular Purpose?
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implied warranty that the goods are fit for a particular purpose where the seller has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment
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Third party beneficiaries of warranties express or implied?
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Restricted to "NATURAL PERSONS" (not corps) who are injured by defective products.
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Strict liability for leased goods?
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(since UCC didn't apply to leases until 1992) lessee may recover under the thoery of strict liability in tort against a lessor who suplies a defective product - has also been applied to an injured bystander
(would include leased skates at the ice rink) |
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Claim for damage to a product itself?
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this isn't a tort claim - this is a warranty / contract claim (only damage is to the defective product itself)
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Sealed container defense?
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A distributor who sells products in a condition such that they couldn't reasonably inspect it (in a sealed container), won't be liable unless the manufacturer isn't available / identifiable.
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Definition of defamation?
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that which tends to injure 'reputation in the popular sense', diminishes the goodwill in which people hold you
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Overlap of defamation and intentional infliction of emotional distress?
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If it looks to the court like a defamation complaint, you can't get around the complex requirements for defamation by calling it an intentional infliction of emotional distress claim.
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Can expressing an opinion be defamation?
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Yes, if it would be taken as factual. For example, a pharmacist expressing an opinion about a drug would be taken as factual.
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Privacy torts?
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1) appropriation of plaintiff's likeness
2) false light 3) intrusion upon seclusion 4) public disclosure of private facts |
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Harrassing means to collect debt?
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can be an action for intrusion upon seclusion if creditor used unreasonably harassing methods of collecting on debt
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does once public matter become private over time to create cause of action for public disclosure of private facts?
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no - particularly not if it became a public issue again
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Workers compensation v tort claim?
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If an employee is injured in the workplace, it is very likely the claim will fall under workers compensation and therefore block a tort claim.
Workers compensation is supposed to apply to accidental injuries - will apply unless the employer INTENDED the injury (even if they knew with substantial certainty, it would be workers compensation) |
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When will it be a tort claim instead of a workers compensation claim?
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Usually it will be where personal animous is involved.
Even IIED, sexual assault or battery claims will be in workers compensation. You must actually show personal animous - the boss shoved a biscuit in someone's mouth (not workplace related - more of an asshole issue) |
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Horseplay in the workplace?
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if the horseplay between employees falls outside of the scope of employment, then workers compensation won't apply and you can sue your fellow employee / coworker. Horseplay test:
1) extent of the deviation from scope of employment 2) whether the deviation was part of the performance of a duty 3) extent to which horseplay was accepted on the job 4) whether nature of the job might be expected to include some horseplay |
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Joint tortfeasors in Delaware?
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Are jointly and severally liable.
There is a presumption that shares are equal among joint tortfeasors, unless fault is so disproportionate as to render pro rata shares inequitable. |
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Who can bring a wrongful death action?
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A surviving spouse, parent, child or sibling. If none of those exist, then anyone else related by blood or marriage.
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What can be recovered for in a wrongful death action?
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pecuniary loss or mental distress
Parents may recover for wrongful death claims if there are no surviving spouse or children Siblings may only recover for mental distress if there are no surviving spouse, children, or parents. |
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Wrongful death claims are derivative?
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Defenses based on the decedent's conduct will apply to the wrongful death action.
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Wrongful death claim - loss of chance of survival?
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In a wrongful death suit, can recover for loss of chance of suvival, even if chance of survival was less than 50%. Here, the damages are for lost chance, not for death.
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Doctrine of parental immunity?
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Does not apply to the extent of parent's automobile insurance policy, but does apply beyond that. (child can't sue parent for negligence, but can collect from parent's car insurance company)
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Parental negligence as a supervening cause of injury?
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Can't seek contribution from a parent (parental immunity applies), but can argue negligence of parent is supervening cause of injury such that it cuts off defendant's liability. (tortfeasor would pay if trier of fact determined both were proximate causes of injury)
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Doctrine of spousal immunity?
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does not apply in Delaware. Spouses can sue each other without limit.
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Governmental tort immunity? - State Actors
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DE retains sovereign immunity for acts or omissions alleged in connection with official duties, provided that the acts were performed in good faith and without gross negligence.
Legislators, prosecutors, and judges have absolute immunity. No liability if the state hasn't purchased insurance coverage for the event - must look to the specific statute for the event. |
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Does the entity qualify for governmental immunity?
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Universities do not:
1) affairs were directed by an autonomous board of trustees and 2) univ was incorporated under DE law with the right to sue and be sued |
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Government insurance covers up to $X per incident?
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Sovereign immunity only waived up to $X amount. Can only recover up to amount of insurance coverage.
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Government tort actors? - Municipal Actors
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Start with a presumption of immunity. Then, ask yourself, is the action discretionary or ministerial?
Discretionary - Complete Immunity Ministerial - will have a claim under one of three exceptions |
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Government tort Actors - Municipal Actors
Damages? |
$300k total damages limit,
but if municipality buys a greater amount of insurance for an event they would otherwise be liable, then can recover up to the policy amount |
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Actions against government employees?
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Yes, but only for wantonness or outside the scope of employment actions.
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Good Samaritan Law?
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voluntary rescuer is immune from damages caused by the rescue unless the rescuer's conduct is wilful, wanton or reckless
Does not apply to aid rendered on the grounds of a hospital or clinic. |
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Liability of doctors who issue emergency instructions, emts who carry them out, educational entities, and ambulance attendants?
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immune from damages cauesd unless conduct is wilful, wanton, or reckless
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Statute of limitations for personal injury action?
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2 years
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SOL for property damage?
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2 years
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SOL for medical malpractice?
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2 years, unless couldn't have discovered it during that period, in which case the limitation period is extended until three years from the date of injury
or, if under the age of 6, have until the age of 6 to bring an injury |
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SOL enforcement?
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enforced very strictly
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SOL for injury unaccomponied by force?
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3 years - these will usually be economic, like interference with a contract
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Defamation and privacy torts SOL?
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Are personal injuries, so 2 years.
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SOL - special rule for sexual abuse cases?
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No SOL for sexual abuse of a minor.
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When does a cause of action accrue?
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SOL begins to run when P is chargeable with knowledge tha this physical condition was attributable to D's negligence
A reasonable person would know or should have known that damage was the result of defendant's negligence. When would a reasonable person look into it and be able to make the causal connection. Malpractice - the time the cancer goes undetected. |
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Uniform Trade Secrets Act
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3 year SOL
Exclusive remedy for appropriation of trade secrets. Replaces tort and restitutionary claims and other claims deriving from plaintiff's allegation that its trade secrets had been stolen. |
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Relief under the Uniform Trade Secrets Act?
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3 year SOL
Injunctive Relief - as long as the trade secret exists Damages - for actual loss and additional amounts realized because of unjust enrichment; if damages ar enot measured this way, they may be measured by imposing a royalty for teh misappropraitor's wrongful acts Punative Damages - for wilful and malicious misappropriation in an amount not exceeding 2x the damages award |
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Intentional Interference with Business Relations?
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1) reasonable probability of a business opportunity
2) intentional interference by defendant with thtat opportunity 3) proximate causation 4) damages all to be considered in light of defendant's privilege to compete or protect his business interests in a fair and lawful manner |
