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133 Cards in this Set
- Front
- Back
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Who decides whether there is a duty?
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The judge; duty is a matter of law
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Who has the burden of proving the negligence elements?
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Plaintiff
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What are the elements of negligence?
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Duty, Breach, Causation (cause-in-fact, proximate cause/foreseeability), Damages
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When does a defendant have a duty to warn?
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When they created the risk of harm to the plaintiff. Unless there is a special relationship.
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What does risk of harm mean in the Oregon context of determining when there is a duty to warn?
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Exposure to a danger known to the defendant (dicta). Should have known probably works to get it to the jury as well. Courts have said this is the rule but haven't actually applied it.
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What is the universal duty of care?
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Fictional. Defendants can be held not liable even though they have clearly caused foreseeable harm.
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What factors do judges take into account when determining whether a duty exists?
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- Morality (what is "right")
- Foreseeability and extent of the likely harm. - Alternative ways of protecting the plaintiff's interest. - Increased safety likely to result from the imposition of the duty. - "Chilling" effect the duty may have on defendant's conduct. - Administrative problems for courts to enforce the duty. - Problems of proof |
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When is the morality factor in a judges determination of when a duty exists particularly strong?
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When the defendant is uniquely positioned to prevent harm (e.g. psych or police)
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How does/should proximate cause fit into the courts use of foreseeability?
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Courts use the concept of proximate cause to limit liability to the foreseeable consequences of a negligent act.
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How does/should duty analysis fit into the courts use of foreseeability?
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Courts use the duty concept to deny foreseeability for consequences that are foreseeable, but might be contrary to public policy.
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When does a specific duty arise?
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In a special relationship (e.g. invitee, licensee,trespasser)
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When looking at standard of conduct, what is the difference between conduct of an act and of an omission?
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Typically, a party who failed to act tends to be less culpable than one who committed an affirmative act (except failure to warn, rescue, etc.)
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How is standard of conduct determined?
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1. Established Legislation (e.g. parental liability statute)
2. Adopted Legislation (doesn't say you will be liable but suggests fault) 3. Established by Judicial Decision 4. Applied to the facts of the case (reasonableness under the circumstances, jury questions, overlaps with foreseeability a lot) |
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What is the Risk v. Utility test?
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- The likelihood and magnitude of harm (seriousness) compared to cost of avoiding it (utility)
- Magnitude x Likelihood >< public or private utility/ cost of avoidance |
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When is the Risk v. Utility test used?
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In deciding whether to give the case to the jury typically. In rare circumstances the jury is instructed to examine based on it instead.
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In what circumstances is the risk v. utility test used?
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- One way of considering whether the defendant acted reasonably under the circumstances.
- One way of determining whether the defendant had a duty in the first place. |
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Who is the reasonable person?
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A fictional person who always exercises proper restraint and appropriately weighs his own interests with the interests of others.
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What does the reasonable person consider?
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- The foreseeable risks of injury that his conduct will impose upon his community considered in light of the utility of his conduct.
- The extent of the risks posed by his conduct (the smaller the risk the more reasonable the conduct). - The likelihood of a risk actually causing harm (more reasonable if conduct imposes a low-probability risk) |
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What standard are mentally ill people held to?
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The same standard as everyone else despite the "circumstance" of their illness.
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What is the standard of care?
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One has a duty to act as a reasonable person under the circumstances would.
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What standard are people with physical disabilities held to?
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As a reasonable person with that disability.
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What "circumstances" aren't accounted for in the reasonable person doctrine?
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Mentally ill, a person who is stupid/lacking good judgment
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Why are the circumstances in the reasonable person doctrine somewhat restrictive?
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To keep the standard an objective one rather than a subjective one. We want to try the defendants conduct rather than his character and intelligence.
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What is the children's standard of care?
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A reasonable person of like age, intelligence, and experience under like circumstances.
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Why to children get a lower standard of care?
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Because they have to learn to act carefully and should not be held to the adult standard while they are in that learning process.
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Are children always held to a lower standard of care?
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No. When children engage in adult or high-risk activities they are held to the adult standard of care.
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How does custom tie in with the reasonable person standard?
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When the defendant acted as others customarily do in like circumstances that can make it more reasonable. However, sometimes it can still be unreasonable to act customarily (e.g. not wearing seat belts after passed legislation). Evidence to be considered by the jury is all it really is. Probably not determinative at all.
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What standard of care are experts held to?
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If an actor is an expert in a particular field they are expected to posses and employ the skill and knowledge of her profession, not of the "ordinary reasonable person." This is not a heightened standard, however, just different circumstances.
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What is Oregon's test for duty/warning?
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Duty to act reasonably including at least warning if you know of risk of harm to another. (basically imposes a duty to rescue if it's reasonable under the circumstances, so it gets the the jury instead of being dismissed)
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What is the OR rule for emergency compared to other courts?
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Evidence can be presented to show it was an emergency situation but jury shouldnt be given instruction (wording suggests less than reasonable person standard). Split of authority but majority is OK with emergency instruction. Trend is moving toward OR rule where it isn't though.
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What are the elements that the reasonable person considers according to the Restatement?
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- The foreseeable risks of injury that his conduct will impose upon the community considered in light of the utility of the conduct
- The extent of risks posed by his conduct - The likelihood of a risk actually causing harm - Alternative options - Cost analysis of all the factors |
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What is the non-mechanical Learned Hand Formula used to determine whether conduct was reasonable?
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Magnitude of harm if it occurred x likelihood of the harm occurring is weighed against the public/private utility of the conduct.
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What is the bad thing about the Learned Hand Formula?
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It ignores the restatement element of reasonable alternatives to the conduct, and the variables are difficult to quantify
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What is the case that tells us no allowance is made for the "circumstance" that someone has poor judgment?
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Vaughan v. Menlove; just because he did "the best he could" it doesn't make his conduct reasonable
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Is the reasonable person standard objective or subjective?
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Objective, we don't want to try the defendant's character and intelligence we want to try his conduct.
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What is the standard of care for children?
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A reasonable child of like age, intelligence, and experience under like circumstances.
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When does the lowered standard of care for children not apply?
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- When they are engaged in adult activities (Oregon), or
- When they are engaged in an inherently risky activity (Robinson e.g. snowmobile) |
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Why to children have a lowered standard of care?
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Because they have to learn how to act carefully and we don't want to hold them to an adult standard during the learning process.
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What standard of care are experts held to?
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They are expected to possess and employ the skill and knowledge of his or her profession, not of the "ordinary" reasonable person.
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How do courts treat the reasonable person analysis when the actor acted in an emergency situation?
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Majority: the standard of care becomes a reasonable person in that emergency situation and allows the emergency standard to be included in the jury instruction.
Minority (Oregon): The fact that they were in an emergency situation is admissible evidence, but the jury instruction should not contain emergency language. |
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How do courts treat the reasonable person analysis with regards to custom in the community?
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It is usually admissible as evidence and something for the jury to consider, but is not allowed in the instruction. Shows that conduct might have been feasible and practical, but it is not determinative because custom actions can still be reasonable.
Exception: When it comes to medical malpractice, custom is determinative. |
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What are the elements of professional malpractice? (Hodges)
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1. Ordinary/Reasonable knowledge and skill of profession (objective)
2. Exercise of best judgment (subjective) 3. Reasonable and ordinary care in their use of their skill and knowledge. |
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Does profession malpractice require expert testimony?
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Yes probably
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What extra thing does Oregon require for a professional malpractice claim for attorneys?
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That the plaintiff would have won the case but for the malpractice
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What is the standard of care physicians must meet in order to overcome a medical malpractice claim?
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They have a duty to use the degree of skill, care, and diligence which is used by ordinarily careful physicians of the medical profession in good standing in the community where he practices.
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What is the locality rule?
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For a physician to be liable, he must have done something in his treatment of the patient which the recognized standard of good medical practice in the community where he practices forbids, or he must have neglected to do something which such standard requires.
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What is the modified locality rule?
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Includes "or a similar community" into the locality rule (or and the majority use this)
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What does the expert testimony in a med malpractice case need to state?
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- The standard of conduct in the community
- That the physician on trial violated or adhered to that standard |
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Is expert testimony required in medical malpractice claims?
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Yes, unless it is grossly apparent (RIL could probably be used)
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When does the locality rule apply?
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In medical malpractice cases, and in the minority, to other professional malpractice cases
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What is loss of a chance?
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When a physician's negligent conduct reduces a patients chance at survival or cure.
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What are the names of the three approaches to loss of a chance cases?
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- Denial of all liability
- Liability for all harm - Liability for value of the lost chance |
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Loss of a chance: denial of all liability
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If causation isn't established by the preponderance of evidence, then no recovery (OR rule)
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Loss of a chance: liability for all harm
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If physician's negligence reduced patients chances, goes to jury and they can find physician liable for full damages. Done through substantial factor test without but for causation requirement.
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Loss of a chance: liability for value of the lost chance
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If plaintiff can prove by preponderance of the evidence that the doctor's negligent conduct caused patient loss of a chance, then the physician is liable for damages equivalent to the percentage of loss of chance that he caused.
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When is a claim for informed consent awarded (generally)
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When a physician fails to explain the alternatives and material risks of a particular procedure and the patient is physically injured as a result of one of these risks.
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Informed Consent: Elements
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1. Failure of the physician to inform the patient of a material risk
2. Failure to inform caused the physical injury (if the medical procedure was successful --> no harm so this isn't satisfied) 3. If the patient knew of the material risk they wouldn't have had the procedure (subjective, Oregon and minority rule), or, in addition, the reasonable person wouldn't have had the procedure (objective, majority). |
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When do physicians not have to get informed consent from a patient?
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1. Common knowledge
2. The patient already knew 3. Emergency (unconscious/incompetent patient) 4. Where disclosure would be detrimental to the patient's best interests. (OR requires materially detrimental) |
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Do you need expert testimony for informed consent?
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Yes, for what is a "material risk" (shrinking majority)
No (oregon and modern trend) (but probably would for what is materially detrimental if it went there) |
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What is DNIED?
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When emotional harm is suffered as a direct result of defendant's negligent conduct
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What is the oregon test for DNIED and BNIED?
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Emotional distress plus
1. Impact (immediate physical injury, but low standard), OR 2. Defendant's conduct infringed on some legally protected interest of the plaintiff's other than what caused her emotional distress. |
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What is bystander NIED?
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When emotional harm is suffered as a result of witnessing defendant's negligence physically injuring someone else.
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What are the various tests for BNIED (that we have to know)
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- Zone of danger test (majority + restatement)
- Dillon Factors - Thing elements |
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What is the zone of danger test?
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Allows recovery in BNIED claims for plaintiffs within the zone of risk of physical harm. Plaintiff can recover if she can show that the car that hit her child just missed hitting her.
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What is the dillion factors test?
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Recovery is allowed if the distress was foreseeable, which is determined by looking at factors:
- how close were they located to the accident? - how direct was the emotional impact? e.g. did they witness or see it later - were they closely related to the victim? |
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What is proximate causation and when does it apply?
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its a limit on the scope of liability and it applies when the defendants act is a but for cause of the plaintiffs injury but the court doesn't want to limit liability for policy or justice reasons.
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What is the majority test for proximate causation?
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Whether the type of harm that occurred was foreseeable (restatement), and sometimes it is required that the plaintiff is foreseeable
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What is the relevance of WM1
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proximate cause: limits liability to the foreseeable type of harm
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What is the relevance of WM2
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risk v. utility analysis
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What is the relevance of palsgraf?
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required foreseeable plaintiff and foreseeable type of risk. train fireworks case
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Foreseeable extent of harm?
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probably not relevant, thin skull plaintiff rule "defendant takes the plaintiff as he finds her"
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foreseeable manner of harm?
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probably irrelevant. Daniels: rat casing explosion but still foreseeable type of harm (and foreseeable plaintiff)
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OR test for "proximate cause"?
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dont do that, "whether the defendant's conduct unreasonably created a reasonably foreseeable risk of the kind of harm that befell the plaintiff."
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How can court deal with the limitations on scope of liablity
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they can find no duty, or they can find insufficient evidence as a matter of law to prove foreseeability
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what is the relevance of fazzolari?
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schoolgirl raped: no policy in OR, pretty much always a duty, and foreseeability analysis is always for the jury even if its basically just possible. Back things up with law courts find it they dont make it.
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What is the relevance of Buchler?
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prisoner. reasonably foreseeable back in def (after fazzolari didnt care about it) mere facilitation = no liability, invitation = liability
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How are settling parties treated in oregon?
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their liability is apportioned in lawsuits of which they were a part of, but the result does not change they amount they settled for, and if the amount was different they are not allowed to seek contribution from nonsettling parties, and nonsettling parties are not allowed to seek contribution from them.
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How are settling parties treated traditionally?
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The amount that the parties settled for is subtracted from the damages they would have been a party in. Then the fault is apportioned to the remaining unsettling parties from the reduced amount.
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What are the two types of comparative fault?
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pure and modified
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What is pure comparative fault?
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when the plaintiff can recover for any amount as long as it was not solely their fault. e.g. they can recover if they were 99% at fault, the will get 1% (cali rule, minority)
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What is modified comparative fault?
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1. plaintiff can recover if they are 50% or less at fault. (oregon and majority), or
2. plaintiff can recover only if they are 49% or less at fault (minority) |
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What is the relevance if McIntyre?
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It used the 49% comparative fault rule, and it included parties who were not present in the apportionment of damages (e.g. a runaway would be included if they couldn't find him), and plaintiff bears the loss for that party not being there and being able to pay damages.
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What is satisfaction and why do we have it?
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plaintiffs acceptance of full compensation for his injuries, he can only be satisfied once and we have it to prevent unjust enrichment to the plaintiff.
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what is the collateral source rule?
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benefits paid to the injured party that are not on behalf of the tortfeasors do not count toward their damages/satisfaction. e.g. insurance policies, employment benefits
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What is a release and what are the problems with it?
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courts tend to confuse it with satisfaction, it is when a party signs away her cause of action against one tortfeasor for full satisfaction, but also may be for partial compensation.
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How do we know if a release is full satisfaction?
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1. if plaintiff was fully compensated, or
2. if the parties intended teh result of their negotiations to be complete freedom from further liability for all tortfeasors |
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What is a covenant not to sue and why does it exist?
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exists because of the confusion with releases, it is a covenant not to sue one tortfeasors rather than the total cause of action, and does not automatically release other tortfeasors from liability unless it says so (in or - releases to? maybe maybe not)
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What is contribution
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When, between two or more (usually jointly and severally liabile) defendants one pays the plaintiff's damages and then seeks contribution from the others.
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What is indemnity?
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When one party, due to equity or stipulation in contract, assumes full liability from the other party.
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When does indemnity apply in OR?
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where community opinion would consider that in justice the responsibility should rest upon one rather than the other
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What are common cases in which indemnity applies?
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products liability (seller/mnf), vicarious liability, statutory right (no OR statue we use common law), contracts, where one is liable due to breach of duty owed to him by another, when one failed negligently to discover/prevent misconduct of another (installing defective equipment manufactured by another)
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OR cap on damages against state and its entities ; e.g. u of o
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1.5 million
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OR cap on damages against a subdivision of the state, nonstate local entities; e.g. counties and cities, school district
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500 thousand
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OR cap on noneconomic damages
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500 thousand
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OR cap on wrongful death damages
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500 thousand
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OR cap on punitive damages?
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Don't have it, but we require remittitur for it b/c the supreme court made us
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What is express assumption of risk
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usually written in a contract, when someone expresses a release of liability in exchange for the risky activity they are going to engage in.
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What can express assumption of risk not cover?
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gross negligence, essential services (medical care, cant said something like landlord lets you have an unsafe living environment, etc.)
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What do you have to have waived for express assumption of risk to be a defense?
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has to be clear and specific and you have to waived the type of harm that you were injured by.
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What is implied assumption of risk
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Based on consent rather than contract. Requires:
- Actual knowledge of the particular risk - An appreciation of it's magnitude - Voluntary encountering of the risk |
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OR: assumption of risk?
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express? yes, implied, no, but you can submit evidence about it to factor into the juries decision (but no jury instruction on it)
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Why can't express assumption of risk release form contain waiver of essential services?
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unequal bargaining power
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What is primary implied assumption of risk?
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Defendant wasn't negligent (because they had no duty), best to talk about it in terms of no duty but courts have interpreted it as iaof sometimes instead of negligence.
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What are the types of secondary assumption of risk?
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Qualified, and Pure/Strict
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What is Qualified secondary assumption of the risk?
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When the plaintiff's conduct was unreasonable (and defendant owed no duty/wasn't negligent)
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How is qualified secondary implied assumption of the risk treated when it is found?
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As comparative fault, so basically no different than this doctrine and negligence.
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What is pure/strict secondary assumption of the risk?
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When a plaintiff acted reasonably (and defendant wasn't negligent b/c they owed no duty) e.g. rescuing baby
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How is pure/strict secondary assumption of the risk treated when it is found?
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No comparative fault because if you were acting reasonably you weren't at fault. Exception: firefighters rule majority rule, firefighters conduct is reasonable but they are still assuming the risk, even if defendant is negligent.
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Do courts use secondary implied assumption of the risk?
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Majority don't they just use comparative negligence
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What is the purpose of compensation damages?
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Tort law compensation purpose is to make them whole (but really it is to compensate them for the wrongdoing done to them by the defendant)
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What are compensatory damages?
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Economic (lost/future wages, medical bills), Noneconomic (pain and suffering, loss of enjoyment of life - sometimes separate instruction)
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What are punitive damages for
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deterrence, punishment
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What is wrongful death
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a statutory claim that allows teh survivors to recover damages for the losses they suffer as a result of the death.
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What are the bare elements for strict liability for ADA
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Abnormally dangerous activity
which caused foreseeable harm |
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What are the restatement suggested elements for when an activity is abnormally dangerous? Risk side
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1. Magnitude: the existence of a high degree of risk of harm
2. Likelihood: the likelihood that the resulting harm will be great 2. Unavoidability with due care: the inability to eliminate the risk by exercise of reasonable care |
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What are the restatement factors for when an activity is abnormally dangerous: utility
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4. Common usage: the extent to which the activity is not a matter of common usage
5. Location: the appropriateness of the activity to the place where it is carried on 6. Value to the community: the extent to which it's value to the community is outweighed by it's dangerous attributes |
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What is the Oregon factors test for when an activity is abnormally dangerous? and what case is it from?
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From Koos.
1. Magnitude: the existence of a high degree of risk or harm to the person, and or chattels of others 2. Likelihood: the likelihood that the resulting gravity of harm will be great 3. Unavoidability with due care: the inability to eliminate the risk by exercise of reasonable care 4. Common usage: the extent to which the activity is not a matter of common usage (5. Location: sometimes it is relevant but it is not determinative, and 6. Value to the community: if there is legislation, otherwise don't consider it because it's not the courts job) |
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What does the judge call the utility factors in the ADA factors test?
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The Societal Criteria
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What kind of harm needs to be had in an action for ADA?
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Foreseeable type of harm (unlike minks in gronn), and it must be to a person or their property (but probably has to include land, and not purely emotional harm, gronn dicta for humans) But once harm to land you can definitely recover for personal physical injury
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What is common usage koos language
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nearly everyone routinely does it or expects it to be done for him
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What is the reason we have strict liability?
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Allocative (not distributive); to deter and control a particular class of accidents. Look at which can better control it: negligence or SL (indiana harbor and koos and lots of people agree)
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Products liability definition: just try
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A manufacturer/seller is held liable when their defective product reaches foreseeable plaintiff without substantial change and the defect causes physically injures tp them or their property through a foreseeable use/misuse.
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What are the two products liability theories?
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negligence and SL
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Negligence as a products liability theory?
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- prentis: for misdesign/failure to warn it should be negligence because we need fault otherwise juries are designing products, and its risk v. utility anyway
- Restatement 3d: risk v. utility only, abolishes SL for misdesign/Failure to warn (but requires evidentary showing that practicable/feasible alternative exists which = evidentary problem) -sl still preserved for mismanufacture -requires foreseeable type of harm and foreseeable plaintiff - minority |
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SL as a products liability theory?
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- requires foreseeable plaintiff and foreseeable use/misues (e.g. manner matters?)
- 402A and modifications - if one is found liable so is everyone |
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What is a mismanufacture?
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when a manufacturer fails to meet the specifications that they set for themselves
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What are the factors of the foreseeability test set out in Dillion v. Legg?
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1. How close to the accident were they located?
2. How direct was the emotional harm that was suffered? (did they witness the accident, or arrive soon after, or even later?) 3. How closely related were they to the victim? |
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What are the elements of the Threshold Requirements For Recovery Test set out in Thing v. LaChusa?
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1. Must have witnessed the accident.
2. Must be closely related to the victim, and 3. As a result, suffered emotional distress beyond which that would be expected in the disinterested witness. |
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What is the zone of danger test and what does it apply to?
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Its the majority and restatement rule for BNIED claims. It requires that the plaintiff must have been in the immediate area of the injured party, or the zone-of-danger, such that they were at risk of injury themselves thus the negligent party owed a duty to them.
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What is the impact rule and to what does it apply?
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It is the minority rule for DNIED. It allows recovery when there was an immediate physical impact, low standard (blood splattered, fainting)
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What is the physical consequences rule and when does it apply?
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its the majority rule for DNIED. It allows recovery when the victim of emotional distress suffers physical consequences or physical manifestations (e.g. throwing up or a heart attack)
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What is the OR test for NIED and BNIED and where does it come from?
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Comes from Hammond. It requires either an impact, which has been interpreted as an immediate physical injury (blood transfusion, hit to a pregnant womans stomach), or the infringement of a separate legally protected interest apart from what caused them emotional harm.
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What can express assumption of the risk releases not cover?
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gross negligence (whatever that is), and essential services (e.g. medical care in an emergence, landlord providing unsafe premises)
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