Pa Torts Distinctions 2011

Front 1

TORTS

Intentional Torts - Lack of Informed Consent to Surgical Procedures

Back 1

Operating on a patient without the patient's informed consent is characterized as a battery in PA.

To obtain an "informed consent' to a surgical procedure, a surgeon must disclose risks that a reasonable person would consider material to the decision of whether to undergo that medical treatment.

Front 2

TORTS

False Imprisonment: Shoplifting Detentions are Privileged

Back 2

By statute in PA an officer, merchant, or merchant's employee must have probable cause to believe that reatil theft has occurred or is occurring and that the person detained has committed it...

The suspect may be detained ina reasonble manner for a reasonable time either on or off the premises in order to

(i) require the suspect to identify himself and afford time to verify the identification;

(ii) determine whether the suspect has unpurchased merchandise in his possession; or

(iii) inform a peace officer or institute criminal proceedings against the suspect.

Front 3

TORTS

Awareness of Imprisonment

Back 3

The victim must either be conscious of the confinement or be harmed by it.

Front 4

TORT

Defenses to Intentional Torts: Self Defense- Duty to Retreat

Back 4

PA follows the modern trend, imposing a duty to retreat before using deadly force unless the actor is

(i) in his own home; or

(ii) in his place of work and assailant is not a co-worker.

Front 5

TORTS

Defamation - Prima Facie Case

Back 5

In addition to proving the standard elements, PA also requires a showing of fault in all defamation actions.

Front 6

TORTS

Defamation - Slander Per Se -Injury presumed

Back 6

There are six categories of slander per se in PA:

1) Statement imputing business misconduct

2) Claim that plaintiff has a loathsome disease;

3) Words imputing an indictable criminal offense;

4) Allegations of serious sexual misconduct;

5) Charge of Communism; and

6) Statement imputing insolvency, financial embarrassment, unworthiness of credit, or failure in business.

Front 7

TORT

Defamation - Fault of Defendant's Part - Matters of Purely Private Concern

Back 7

PA requires a showing of at least negligence on the part of the publisher, regardless of whether the defamatory statement involved a matter of public or private concern.

Front 8

TORTS

Negligence: Prenatal Injuries - "Wrongful Birth" and "Wrongful Life" actions barred

Back 8

By statute, PA does NOT permit an action for damages based on claims that, but for the defendant's negligent act or omission,
(1) the plaintiff would not have been concieved or would not have been born (wrongful life) or
(2) the plaintiff's child, once conceived, would not have been born ("wrongful birth")
NOTE: The statute does not apply to actions for negligent failure to properly perform a contraceptive procedure ("wrongful pregnancy" actions)

Front 9

TORTS

Negligence: Increased Risk of Harm - Medical Negligence

Back 9

When physician's negligence is substantial factor in causing a patient's injury, the plaintiff does not have to prove to a certainty that proper case would have, as a medical fact, prevented the injury.

If there was any substantial possibility of avoiding the injury, and the doctor has destroyed that possibility, he is liable.

A causal connection between the injury suffered and the physician's failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the doctor's negligent conduct.

Front 10

TORTS

Negligence: Common Carriers and Innkeepers

Back 10

In PA, common carriers and innkeepers owe a special duty to their patrons, requiring the exercise of the highest degree of care.

Front 11

TORTS

Negligence: Automobile Driver to Guests

Back 11

PA follows the common law rule of ordinary care and has no guest statute.

Front 12

TORTS

Negligence: Duty of Possessor of Land to a Trespasser

Back 12

No duty to undiscovered trespassers. HOWEVER, PA also imposes a duty to refrain from wanton conduct (conduct in reckless disregard of a risk so great as to make the harm highly probable) or willful conduct (an intentional act of unreasonable character or risk known or so obvious that the actor must be aware of it)

Front 13

TORTS

Negligence: Duty Regarding Negligent Infliction of Emotional Distress

Back 13

Recovery for NIED is possible where:
(1) The impact rule i.e. physical injury is caused by the D
(2) Zone of danger rule i.e. P was in personal danger of physical impact
(3) Bystander rule i.e. P observes the D cause injury to close relative.
NOTE: Must have physician manifestations to recover e.g. depression, anxiety, stress, nightmares

Front 14

TORTS

Negligence: "Good Samaritan" Statutes.

Back 14

PA's Good Samaritan Statute protects medical personnel rendering emergency care or rescue, nonmedical personnel rendering emergency care or rescue who are currently certified in first aid and volunteers without compensation rendering services (including managers, coaches, instructors, umpires, or referees assisting in not-for-profit sports program)

There must be proof of gross negligence before a plaintiff can recover.

Front 15

TORTS

Negligence: Defenses to Negligence - "Partial" Comparative Negligence

Back 15

PA has a partial comparative negligence statute. Recovery is barred only when the Plaintiff's negligence exceeds the combined negligence of all defendants.

Front 16

TORTS

Products Liablity: Existence of a Defect

Back 16

Under the "malfunction" theory, the trier of fact may infer that existence of a defect in a product from evidence that the product malfunctioned with normal use and in the absence of reasonable secondary causes.

Front 17

TORTS

Products Liability: Liability based on Strict Tort Liability - Defenses

Back 17

PA does not apply its comparative negligence rules to strict liability actions. Thus the defenses of assumption of the risk, misuse of the product, highly reckless conduct, and product alteration/substantial change are complete defenses.

Evidence of a plaintiff's ordinary negligence may not be admitted in a strict products liability action unless it is shown that an accident was solely the result of the user's conduct and not related to the defect in the product.

Front 18

TORTS

Nuisance: Private Nuisance

Back 18

A private action for nuisance lies for conduct that is

(1) intentional and unreasonable, or
(2) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct or for abnormally dangerous conditions or activities.

For a remedy of damages to be available, the plaintiff also must have suffered significant harm.

Front 19

TORTS

Vicarious Liability -- Autobmobile Owner for Driver

Back 19

PA has not adopted either the "family car" or the "permissive use" doctrine, retaining the general rule that a car owner is not vicariously liable for driver's torts.

Front 20

TORTS

Vicarious Liability - Parent for Child

Back 20

Parents may be liable for up to $2,500 in damages for the tortious acts of their minor children.

Front 21

TORTS

Vicarious Liability - Tavernkeepers

Back 21

Under PA Dram Shop Act, it is unlawful for any liquor licensee "to sell, furnish, or give" any alcoholic beverages to minors or visibly intoxicated persons.

Adult social hosts are liable for "KNOWINGLY" serving alcohol to a MINOR who subsequently injures himself or a 3d party

Front 22

TORTS

Multiple Defendant Issues: Contribution - Effect of Settlement

Back 22

A joint tortfeasor entering into a settlement with the plaintiff is permitted to seek contribution from other tortfeasors whose liability has been extinguished by the settlement.

However, the settling tortfeasor cannot recover contribution from a tortfeasor whose liability is not extinguished by the settlement, even if the amount of the settlement turns out to be more than the settling tortfeasor's pro rata share of the judgment would have been.

Front 23

REAL PROPERTY

Concurrent Estates: Joint Tenancy - Mortgages

Back 23

Although PA is generally a title theory jurisdiction, it adopts an intermediate view with respect to execution of a mortgage on joint tenancy property.

A mortgage executed by all of the joint tenants does not result in a severance of the joint tenancy.

However if the mortgage is executed by fewer than all the joint tenants, the joint tenancy is severed and a tenancy in common is created.

A mortgage by all produces the same result as a lien theory state, whereas a mortgage by fewer than all yields the same result as in a title theory state.

Front 24

REAL PROPERTY

Concurrent Estates: Tenancy by the Entirety

Back 24

PA recognizes tenancies by the entirety, and in the absence of clear and convincing evidence to the contrary, this tenancy arises presumptively whenever a conveyance is made to a husband and wife.

In fact, if property is deeded to married individuals as joint tenants with a right of survivorship, it creates a tenancy by the entirety.

A deed to married persons as tenants in common, however, creates a tenancy in common.

Front 25

REAL PROPERTY

Landlord and Tenant: Implied Warranty of Habitability

Back 25

PA has adopted the implied warranty of habitability in residential leases and recognizes the remedies enumerated in the Multistate outline.

This warranty has not yet been held to impose a duty on a landlord to make repairs or necessarily expose a landlord to tort liability for failure to repair.

Front 26

REAL PROPERTY

Tort Liability of Landlord and Tenant: Landlord's Liability-General Duty of Reasonable Care

Back 26

PA follows the modern trend and imposes a general duty of reasonable care on landlords.

A landlord who retains control over property is liable for injuries if, by the exercise of reasonable care, the landlord could have discovered the condition and made it safe.

Front 27

REAL PROPERTY

Tort Liability of Landlord and Tenant: Liability for Security Problems

Back 27

The reasonable duty of care does not extend to third-party criminal acts, unless the landlord undertakes to secure the area and fosters a reliance by his tenants on teh landlord's efforts.