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39 Cards in this Set

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DE: Punitive Damages
Appropriate for 1) intentional invasion of another's interests; when D's conduct exhibits a wanton / wilfull disregard for P's rights. 2) Insurance: if denial of coverage was willful or malicious. 3) Employment Settings: covenant of good faith and fair dealing precludes acting out of fraudulent motives; does not cover ill-will. 4) Med. Mal: where injury was maliciously intended or was rhe result of wilfull or wanton misconduct. Here, jury must make a separate finding from that of compensatory damages. Punitive Damage awards will be reduced where they "shock the conscience".
DE: Comparative Negligence
P recovers that portion of his damages not attrubutable to his own misconduct, provided that his fault does not exceed D's.
DE: Assumption of the Risk
Primary AOR: P relieves D of his legal duty by agreeing to take his chances of injury from a known risk arising from what D has done or will do. Secondary AOR: whether P's conduct in encouraging a known risk is in itself unreasonable. A) No AOR where P was injured while riding in D's car, where P knew D was intixocated. B) no AOR where invitee is injured on owner's land for activity or condition on land which was known or obvious to P. Thus, AOR to a level greater than a D's primary negligence may constitute proximate cause great enough to bar recovery.
DE: AOR & Firefighter's Rule
Injured firefighter is precluded from seeking compensation against the party whose negligence led to the fire. 3 Exceptoins 1) Failure to warn of pre-existing hidden defects, where there is knowledge of the danger or there's an opportunity to warn 2) Acts occurring after the firefighter's arrival or from perils that aren't related to what makes firefighting dangerous in the 1st place 3) where D acts intentionally
DE: AOR & Failure to Wear Seatbelts
Failure to wear a seatbelt is inadmissible on the issue of comparative negligence, AOR, and mitigation of damages. 2 Limited Exceptions: 1) B/c of the Seat Belt Safety Act of January, 1992, it is admissible for the limited purpose in defending against a P's allegation of negligent seat desing. 2) Admissible to prove that "D's seat design did not proximately cause P's injuries."
DE: Waivers & Construction
Waivers are strictly construed against their creators
DE: Landowner makes his premises available for recreational use
Incurs no duty to keep the premises safe nor to warn of any dangerous conditions on the land
DE: General Duty of Landowner
Need only protect known trespasser from known, man-made death traps on the land.
DE: Landowner's Duty to Licensee
Duty to protect licensee from all known traps (not just man-made death traps)
DE: Landowner's Duty to Invitee
Duty to protect from all reasonably knowable traps on land
DE: Guest Premises Statute
Applies to private residence or farms owned or occupied by another person. Covers guests without payment & adult trespassers. Landowner is not liable for any injuries or damages unless the accident was due to landowner's intentional, wilfull, or wanton disregard for other's rights. Does not apply to those invited, expressly or impliedly, on public property. Does not apply to a commercial entity having an easement over residential or farm property. Does not apply to public or biz invitees. Child trespassers are not barred from recovery, they can still sue based on attractive nuisance. A lawnmower is not an attractive nuisance as a matter of law.
DE: Duty to Biz Invitees
Ask: whether and to what extent the owner of the biz has breached its duty to act reasonably to protect those invited onto the premises. Did biz owner warn? Was biz owner aware of danger based on past similar occassions?
DE: Products Liability
No Strict Products Liability. In DE, P has 2 modes of recovery for defective products: 1) Negligence: injured P can recover from any D whose negligence proximately caused the injury & P must show that D owed him a legal duty. 2) Liability W/O Fault: Here, P must show something more than the defect was present when the product left D's hands. In a SOG situation, P can proceed under negligence or UCC for a breach of an implied warranty. a) IWOM: general warranty that guarantees that the product will be fit for its ordinary uses b) IWOFFPP: Where seller has reason to know any particular purpose for thich the goods are requried and that buyer is relying on seller's skill and judgment, there's an implied warranty that the goods shall be fit for such prupose. Only natural persons can recover - no Corporations & "unclear" if natural person can recover for property damage.
DE: Lease of Defective Products
Lessee & injured bystander may recover under strict tort liability against a lessor who supplies a defective product. D must be engaged in biz "centered" on rentals, i.e. trucks, or where rentals are incidental to its main biz purpose. Enactment of UCC 2A raises issue of preemption, but the official comment suggests legislature did not intend it to preempt.
DE: Products Liability & Economic Loss
P who bought defective product that caused no personal or property injury, other than to the product itself, MAY NOT recover under DE tort law. Instead, recover under K law & Implied Warranty. This Rule applies to commercial & individual purchasers.
DE: Causation in Design Defect Case
P has burden to show that injuries wouldn't have occurred had the product been properly designed.
DE: Sealed Container Defense
Where seller, other than manufacturer, sells product that is encased or sold in a manner making it unreasonable to expect the seller to discover the defect, the seller won't be liable unless the manufacturer is not available to be sued (either manufacturer can't be identified, he's insolvent, or is immune from suit), except where the seller made express warranties regarding the product's safety.
DE: NEID
D has a duty to not negligently inflict emotional distress on those who are w/in the "zone of danger" of the negligent act. 1) P must be w/in zone of immediate danger in order to recover damages for ED 2) parents may be able to recover for NEID for maliciously, wantonly, or willfully caused injury to their child, even if the parents are not within the zone of danger.
DE: Defamation
That which tends to injure "reputation" in the popular sense; to diminish the esteem, respect, goodwill, or confidence in which the P is held, " or as the Restatement 2nd says, "a communication that tends so to harm the reputation of another as to lower him in the estimation of the community or to deter 3rd persons from associating or dealing with him. P can't change his claim form one of defamation to one of IIED
DE: Defamation - Slander
Oral Defamation. Usually not actionable unless special damages are proven. Exception is 4 situations a) maligning one in a trade, biz, or profession b) imputing a crime c) imputing unchastity to a woman d) implying that one has a loathsome disease.
DE: Defamation - Libel
Written Defamation. Actionable without pleading or proving special damages. DE doesn't distinguish b/w libel per se & libel per quod. Any libel is actionable w/o special damages, whether the defamatory nature is apparent on the face of the statement or only by reference to extrinsic facts.
DE: 1st Am. Defamation
Public Officials & Public Figures must show D made the statement w/ acutal malice. Actual malice is knowledge that the statement was false or with a reckless disregard of whether it was false or not. If private person & statement of public interest, States may impose liability on a negligence, but NOT SL basis. Where P spoke on a matter of pulic concern, and P is not a limited purpose public figure, Court will apply negligence standard.
DE: Invasion of Privacy
DE recognizes Intrusion; Commercial Misappropriation; Public Disclosure of Private Facts (In DE, this only applies to true statements of fact, not falsehoods, since defamation is meant to deal with that) and False Light. Defendant-Creditor could be liable for Invasion of Privacy if it uses unreasonably harassing methods of collecting on a debt - Creditors may not deliberately harass the debtor or set out to make life miserable for the debtor. No action for invasion of privacy where 1) there is a legitimate public interest in P's activities and 2) anyone could have seen what D took a picture of (if it was out in public). Merely drawing public attention to P does not trigger liability under Invasion of Privacy.
DE: Negligent Misrepresentation
a. 1990: GC sued design engineer for making negligent plans for a project causing GC excessive time and $ than would have reasonably been expected. Court found that engineer owed GC a duty since it was foreseeable that the engineer’s design specs. Would be relied upon by contractors in submitting their bids, and because of the misinformation in the engineer’s report, the contractor’s bid was too low. The Court did not believe this holding was contrary to Ultramares b/c plaintiff was not an indeterminate class. Although design engineer does not know who the contractor will be, it does know that there will be a contractor, and that one of the purposes of the report is to inform the bidding.
b. Cf. 1991: plaintiff’s suit for negligent misrepresentation alleged that an agreement he and defendant signed contained defective plans which were used to build plaintiff’s house. The Court concluded that the plaintiff could recover only by showing “that the defendant supplied the information to the plaintiff for use in business transactions with 3rd parties.”
DE: Liability Against Sellers/Providers of Alcohol
1. BASIC RULE: commercial or social servers of alcohol are not liable for negligence when injury results to the person served or to 3rd parties.
DE: Liability Against Sellers/Providers of Alcohol; Commercial Sellers
generally no liability
a. § 711 ABC Act – the holder of liquor license, or their employee, must refuse to sell or serve liquor to any person who appears to be intoxicated.
i. No liability for breach of this § either to person served or 3rd party or minor served at bar.
DE: Liability Against Sellers/Providers of Alcohol; Social Hosts
generally no liability
a. Exception – liability could be based on premises liability where Π is a biz invitee and Δ liable for maintaining a dangerous condition on the premises, e.g., where Π is a valet injured by drunk minor leaving a party who drove into him
b. If accident happens at the bar, Π automatically becomes a Biz Invitee.
i. Δ could be liable for injuries incurred while Π is at the bar provided person purveying the alcohol is negligent
DE: Worker's Compensation
a. Exclusive remedy against employer for all accidental employee personal injuries or death arising out of the employment relation.
i. PERSONAL INJURY INCLUDES BOTH
1. violence to the physical structure of the body and any naturally resulting disease or infection; and
2. compensable occupational diseases.
ii. Intentional physical injuries are also covered, e.g., employer intentionallykept infor re asbestos from his employees
1. requires actual intent to bring about the result
2. substantial certainty test is not enough, i.e., that such a result would occur.
iii. Question is whether the claim is for personal injury
DE: Worker's Compensation; Torts not covered by the Act
1. defamation;
2. malicious prosecution;
3. false imprisonment;
4. invasion of privacy; and
5. false arrest
DE: Worker's Compensation; Sexual Harassment
1. even where they amount to IIED, sexual assault or battery
2. Π can bring a claim under Title VII.
3. the personal dispute exception doesn’t apply
DE: Worker's Compensation; Personal Dispute Exception
1. willful conduct directed at an employee for reasons personal to that employee and not against him/her because of employment
2. employer’s personal interest must predominate over the business interest and tort liability can attach.
vii. Act also prohibits a 3rd party sued by employee from seeking contribution agains the employer based on joint –tortfeasor relationship.
1. 3rd party would have to make out a claim in K to recover
2. Where K of indemnity requires indemnification for negligence, an independent and enforceable duty arises under the K.
DE: Statutory Torts; Contribution & Release
i. Joint Tortfeasor includes those either jointly or severally liable.
ii. Right of Contribution; accrual; pro rata share
1. right of contribution exists among joint tortfeasors.
2. Joint Tortfeasor only entitled to judgment for contribution when
a. He has paid the whole amount of liability or
b. Paid more than his pro rata share
3. Presumption that everyone pays equally
a. However, if there is a disproportion of fault to make equal distribution inequitable, the Court may consider the degrees of fault in determining their pro rata shares.
4. Judgment against one JTF does not discharge the others
5. Release of one JTF
a. Release, either b/f or after judgment, of 1 does not release all unless the release provides
b. It reduces the amount the others have to pay.
c. Does not release 1 tortfeasor from contribution to other TF’s
6. Π fraudulently induced into signing a release may opt for eitherrescission or a separate suit for fraud.
DE: Statutory Torts; Wrongful death
i. Recovery permitted by surviving spouse, parent, children, and siblings; or
1. If none exists, to those related by blood or marriage
ii. Recovery may be based on pecuniary loss or for Mental Distress
1. mental distress
a. parents may only recover for such distress if there’s no surviving spouse or children; and
b. siblings may recover for such distress only if there’s no surviving spouse, children or parents
DE: Statutory Torts; Tort Immunities
i. Intra-Family Tort Immunities
1. Parental Immunity
a. Action for Negligence – parental imunity doesn’t apply to the extent of parent’s autoliability insurance policy, but does apply beyond that.
b. Doctrine does apply where parent is charged w/ negligent supervision of the child.
2. Spousal Immunity
a. No defense of spousal immunity for negligence or intentional torts
b. Recovery can extend beyond the limits of any insurance policies
DE: Statutory Torts; Governmental Tort Immunity
1. DE HAS SOVEREIGN IMMUNITY FOR ACTS OR OMISSIONS ALLEGED IN CONNECTION W/ OFFICIAL DUTIES, IF THE ACTS WERE PERFORMED IN GOOD FAITH AND W/OUT GROSS NEGLIGENCE (LEGISLATORS, JUDGES, AND PROSECUTORS RECEIVE ABSOLUTE IMMUNITY).
a. No liability even for gross negligence
b. State waives immunity for those risks covered by the State Insurance Coverage Program – there has never been such a program, so Π must find a more specific statute.
i. DE transit Authority – waives immunity up to $300,000 per ccurrence
ii. Emergency Vehicles – immunity waived up to amount of insurance state has at particular time
iii. Limited Liability against counties and municipalities –
DE: Statutory Torts; Gov't Tort Immunity; Liability against Municipality
a. Liability of employee of municipality does nto create liability against municipality itself
b. Limited abrogation of immunity – Gov’t entity can be liable for its neglgigent acts or omissions in 3 situations
i. Ownership, maintenance or use of any motor vehicle, mobile equipment, trailor, aircraft, or other machinery or equipment;
ii. The construction, operation or maintenance of any public building (but not sidewalks, highways, etc.)
1. public building only needs to function or benefit the public or community.
iii. Negligence in the discharge of toxic substances such as smoke, toxic chemicals, contaminatns, soot, etc.
c. Limited Damages
i. Damages shall not exceed $300,000 including costs, against all Δ’s including employees
1. but if municipality buys a greater amount of insurance, the policy limits may
DE: Statutory Torts; Good Samaritan Law
1. one who voluntarily, and w/out expecting payment, renders emergency assistance to one in need, is immune from damages caused by that rescue, unless his conduct is willful, wanton or reckless.
DE: Statutory Torts; Statute of Limitations
1. Generally 2 yrs for personal injury or property damage, defamation and privacy
2. Med Mal – 2 yrs unless condition was unknown or could not have been discovered, then 3rs from date of injury.
a. If Π under 6 he can wait until 6th birthday to bring suit.
3. Injury unaccompanied by Force – 3 yrs
4. Accrual of COA – statute begins to run when Π is chargeable w/ knowledge that his phys condition was chargeable to Δ’s negligence.
a. Latent injury – manifestations may be required.
DE: Statutory Torts; Uniform Trade Secrets Act
1. permits injunctive relief for as long as the trade secret exists
2. allows damages for both actual loss and additional amounts realized b/c of unjust enrichment – damages may be measured by imposing a royalty for a misappropriator’s wrongful acts
3. allows punitive damages for “willful and malicious misappropriation in an amount not exceeding 2x the damages awarded under 2.
4. 3 yr SOL running from the time the misappropriation was or should have been discovered.