South Dakota 2011 Torts Mbe

Front 1

Approach to Torts Questions

Back 1

1. Can P establish a PRIMA FACIE case?

2. If not, STOP. If so, are there any DEFENSES?

3. Are there any general considerations?

Front 2

Prima Facie Case for Intentional Torts

Back 2

1. Act: any volitional movement

2. Intent:
-- Substantial Certainty: If D knows with SUBSTANTIAL CERTAINTY that these consequences will result
-- The Incapacitated D: EVERYONE is liable for intentional torts, capacity to have intent is not necessary
-- Transferred Intent: Intent can be transferred from PERSON TO PERSON an TORT TO TORT
-- Transferred Intent applicable to: battery, assault, FI, trespass to land and chattels

3. Causation: D's conduct was a SUBSTANTIAL FACTOR in bringing about the result
-- Supersensitive P: P's supersensitivities are IRRELEVANT unless D knew of them

4. DO NOT HAVE TO PROVE DAMAGES

NOTE: in intentional torts cases, any answer with NEGLIGENCE language is WRONG

Front 3

Battery

Back 3

1. Act
2. Intent
3. HARMFUL OR OFFENSIVE CONTACT
4. W/ P'S PERSON
5. Causation

-- Harmful or offensive = unpermitted
-- With P's person = anything connected to P's person

Front 4

Assault

Back 4

1. Act
2. Intent
3. Apprehension (not fear)
4. of Immediate Battery
5. Causation

-- Apparant ability creates a reasonable apprehension
-- Immediacy: words along are not enough; need words and conduct
-- Words can also UNDO conduct

EXAM TIP: If both assault and battery work: CHOOSE BATTERY

Front 5

False Imprisonment

Back 5

1. Sufficient Act of Restraint
2. Intent
3. Binding P to an Area
4. Causation

SUFFICIENT ACT OF RESTRAINT:
-- Threats are enough
-- Inaction is enough IF there is an understanding that D would do something to keep P there
-- Even a very SHORT time period is OK

KNOWLEDGE:
-- P must know of confinement AT THE TIME
-- Exception: if confinement INJURES P

SHOPKEEPER'S EXCEPTION
1. Reasonable belief as to theft
2. Reasonable manner of detention (no deadly force)
3. Detention for reasonable time

BOUNDED AREA:
-- no freedom to move in any direction
-- NOT bounded if reasonable escape AND P knows of the escape

Front 6

IIED

Back 6

1. Act
2. Intent
3. OUTRAGEOUS CONDUCT
4. Causation
5. DAMAGES

OUTRAGEOUS CONDUCT:
-- Must be EXTREME
-- Conduct becomes OUTRAGEOUS when:
a. Continuous
b. P is a young kid, elderly person, pregnant woman, supersensitivities in P that D knows of
c. The TYPE of D: common carriers and inkeepers have much higher duty

DAMAGE:
-- Physical injury is not required but CLEAR PROOF OF SUBSTANTIAL EMOTIONAL DISTRESS is required

Front 7

Prima Facie Case of Intentional Torts to Property: Trespass to Land

Back 7

1. Act of physical invasion
2. On Plaintiff's land

ACT OF PHYSICAL INVASION:
-- Does not require D to personally go on the land
-- DOES require a PHYSICAL OBJECT to go onto land
-- If this fails, consider NUISANCE

ON PLAINTIFF'S LAND:
-- Includes surface and reasonable distance up and down from surface

Front 8

Trespass to Chattels and Conversion

Back 8

Determine by Damage
-- Trespass to Chattels: some damage
-- Conversion: a lot or total damage, dispossession

Two Types of Damages
1. Physical damage, AND/OR
2. Dispossession

Recoverable Damages:
-- Tresspass to Chattels: damages
-- Conversion: full fair market value at time of conversion by "forced sail"

Front 9

Defenses to Intentional Torts

Back 9

1. Consent
2. Self Defense
3. Defense of Others
4. Defense of Property
5. Necessity

Front 10

Consent

Back 10

1. Determine if P has capacity; if not consent is invalid

2. Determine if the consent was expressly given or is implied
-- Express Consent: Words
-- If it exists, look for facts of: mistake, fraud, coercion, because these can UNDO consent
-- Implied Consent: arises in 2 ways
a. Custom and usage AND/OR
b. P's conduct
-- Implied by law: emergencies

3. Determine if D stayed within the boudaries if the consent, if not, privilege may be lost

Front 11

Defense Privileges: Self, Others, Property

Back 11

1. Determine if the timing requirement has been met
-- Tort defended against is
a. Now occurring, or
b. Just about to occur
-- No defense if it has already cocurred
-- HOT PURSUIT: if one is in hot pursuit of another who has wrongfull taken a chattel, tort is ONGOING

2. Determine if the defense test has been satisfied
-- Need a REASONABLE BELIEF that the tort is being committed
-- Majority: NO duty to retreat
-- Modern Trend: duty to retreat before using serious force if you can
a. do it safely, and
b. it's not your HOME

3. Determine if the D has used the PROPER amount of force
-- For self-defense and defense of others, one may use REASONABLE force
-- For defense of property, one may use REASONABLE force, but NEVER force calculated to bring serious bodily harm

NOTE: if you are in your home, defending, it is considered self-defense
-- Can use deadly force if reasonable
-- No need to retreat

Front 12

Necessity

Back 12

1. Make sure the tort defended against is property tort

2. Determine if it is a PUBLIC or PRIVATE necessity
-- PUBLIC: for the benefit of many and is an absolute, unlimited privilege with NO liability
Ex: destruction of house to prevent fire from spreading
-- PRIVATE: for the benefit of a limited number and D will be liable for actual damages
-- NOTE: necessity prevails over defense of property
Ex: tying boat to others' dock in a storm causing damages to dock

Front 13

Defamation

Back 13

Prima Facie Case:
1. Defamatory Statement about this Plaintiff
2. Publication
3. Damages to Plaintiff's Reputation
IF THE FIRST AMENDMENT APPLIES
4. Falsity
5. Fault (intentional for public, negligent for private)

DEFAMATORY STATEMENT ABOUT PLAINTIFF:
-- Factual statement that injures P's reputation (name-calling NOT enough)
-- Reasonably understood to be about THIS P

PUBLICATION:
-- Must be a communication to THIRD PARTY
-- Communication may be either INTENTIONALLY or NEGLIGENTLY made
-- FOR NEGLIGENCE: ask if t was REASONABLY FORESEEABLE to expect others to hear it
-- Third person must be capable of UNDERSTANDING the defamatory statement

DAMAGE TO PLAINTIFF'S REPUTATION:
-- LIbel: written or broadcase
Rule: damage is PRESUMED
-- Slander: spoken
Rule: P must prove SPECIAL DAMAGES ($$)
-- Slander Per Se: particularly damaging to reputation
Rule: damage PRESUMED
Slander Per Se Categories:
a. business or profession
b. crimes of moral terpitude
c. loathsome diesease (VD)
d. imputing unchastity to woman

-------------CASE IS OVER AT COMMON LAW-----------

FIRST AMENDMENT INTERPLAY:
-- At play when it is a "matter of public concern"

FALSITY:
-- P must prove statement was false
-- Effectively eliminates the defense of truth, because burden is on P

FAULT:
-- PUBLIC FIGURE: must prove intentional or reckless
NY Times v. Sullivan Test: statement was made either
a. knowing it was false, or
b. with reckless disregard of truth or falsity
Note: if P is a public figure, ASSUME it is a matter of public concern
-- PRIVATE FIGURE: must prove negligent conduct
If P's conduct is intentional, P should still assert it to get presumed and punitive damages

Front 14

Defenses to Defamation

Back 14

1. Consent

2. Truth (unless 1A case)

3. Absolute and Qualfied Privileges

ABSOLUTE:
-- communication between spouses
-- branches of government
-- cannot be lost

QUALIFIED:
-- If public policy would support the communication, give a qualified privilege
-- Reference fact pattern: letter from professor or employer

Front 15

Invasion of Privacy (4 distinct branches)

Back 15

1. APPROPRIATION OF P'S NAME OR PICTURE FOR D'S COMMERCIAL ADVANTAGE:
-- Commercial Advantage: limited to PROMOTION of GOODS or SERVICES

NOTE TO 2-4: There is a prima facie requirement that "D'S CONDUCT MUST BE HIGHLY OFFENSIVE TO A REASONABLE PERSON

2. INTRUSION BY D INTO P'S PRIVACY OR SECLUSION
-- Common sense fact analysis: would a reasonable person find this intrusion to be HIGHLY OFFENSIVE?
-- If it's in public, it won't work
-- Peeping Tom using binoculars WILL work

NOTE to 3-4: PUBLICATION REQUIRED: WIDE DISSEMINATION OF THE STATEMENTS (compared to defamation where only 1 person must hear it)

3. PUBLICATION OF FACTS PLACING P IN A "FALSE LIGHT"
-- Must be negative false impression
-- Widely disseminated
-- NYT v. Sullivan "malice" test applies where matter is a "public interest" or where it is a "public figure"
If this happens for this tort on the bar, P SHOULD LOSE

4. PUBLICATION OF PRIVATE FACTS ABOUT P
-- No defamation or false light, because these are TRUE statements
-- Common sense fact test: Would a reasonable person find the publication (wide dissemination) of these facts to be HIGHLY OFFENSIVE? Are they sufficiently PRIVATE?
Ex: company news letter praising P for getting cured of VD
-- NOT a private fact if the knowledge of the fact comes from the public

Front 16

Defenses to Invasion of Privacy:

Back 16

1. Consent

2. Defamation Defenses (truth (except for branch 4), absolute, qualified immunities): these apply to the 2 PUBLICATION branches (3-4)

Front 17

Intentional Misrepresentation

Back 17

1. MISREPRESENTATION:
-- must be a misstatement of FACT, NOT AND OPINION unless rendered by someone with superior skill (thus creating reasonable reliance)
-- Silence is NOT enough, one must AFFIRMATIVELY speak

2. SCIENTER
-- Scienter = MALICE
-- Statement must be made either
a. KNOWING it was false, or
b. with a RECKLESS DISREGARD as to its truth or falsity

3. INTENT TO INDUCE RELIANCE

4. JUSTIFIABLE RELIANCE
-- Opinions usually don't count unless (See above)
-- NO duty to investigate to show reasonable reliance

5. CAUSATION

6. DAMAGES

DEFENSES TO INTENTIONA MISREPRESENTATION: NONE

Front 18

Negligent Misrepresentation

Back 18

1. MISREPRESENTATION

2. NEGLIGENCE (replaces scienter)

3. JUSTIFIABLE RELIANCE

4. CAUSATION

5. DAMAGES

NOTE: THIS CAN ONLY BE USED IN COMMERCIAL SETTINGS

Front 19

Tortious Interference with Business Relations

Back 19

1. VALID RELATIONSHIP BETWEEN PLAINTIFF AND THIRD PERSON
-- may be either EXISTING or PROSPECTIVE
-- It is much easier for P to win if it is an EXISTING relationship with K's in place

2. D KNOWS OF RELATIONSHIP

3. INTENTIONAL INTERFERENCE
-- Negligence is NOT enough

4. DAMAGE

Front 20

Privilege Defenses to Tortious Interference with Business Relations

Back 20

1. PRIVILEGE
-- Question of fact
-- The more it is like "persuasion" the more likely privilege is
-- Relationship b/w Parties:
a. Plaintiff and Defendant: COMPETITORS privilege to cover interferences with PROSPECTIVE relationships
b. Defendant and Third Person: if they are close relatives or business partners, it's harder to prove this tort

Front 21

Negligence: Duty: Foreseeable Plaintiff

Back 21

1. FORESEEABLE PLAINTIFF
-- On bar, P is almost always foreseeable
-- Rescuers and viable fetuses are foreseeable as matter of law
-- Must be within FORESEEABLE ZONE OF DANGER (think Palsgraf)

Front 22

Negligence: Duty: Reasonable Person Standard

Back 22

"REASONABLY PRUDENT PERSON UNDER THE CIRCUMSTANCES"

-- OBJECTIVE standard

-- Subjective factors like IQ don't matter

Front 23

Negligence: Duty: Children Standard

Back 23

"CHILD OF LIKE AGE, INTELLIGENCE, AND EXPERIENCE"

-- SUBJECTIVE standard
-- Child's traits and characteristics will be taken into account

-- Exception: where child is engaged in ADULT ACTIVITY, RPP standard applies

Front 24

Negligence: Duty: Professional Standard

Back 24

"A REASONABLE PROFESSIONAL IN TEH SAME OR SIMILAR CIRCUMSTANCES"

-- Specialists: their expertise RAISES the standard of care

Front 25

Negligence: Duty: Common Carrier and Inkeeper

Back 25

HELD LIABLE FOR EVEN SLIGHT NEGLIGENCE

-- But ONLY as to their passengers and guests

Front 26

Negligence: Duty: Owner/Occupier

Back 26

1. Make sure D is an owner/occupier or is in "privity" with one
-- Ex: family member, employee

2. Determine if the injury occurred ON or OFF the land
-- On bar, almost always ON the land
-- If it occurs off the land and assigns a status (trespasser), disregard the option

3. Is P an undiscoverd trespasser?
-- If so, no duty and they ALWAYS LOSE

4. If any other type of P, determine if injury was caused by an ACTIVITY or a DANGEROUS CONDITION
-- Activity: anything you're doing on the land like running machines, waiting tables, playing sports
-- Dangerous Condition: hole in the ground, defect in the building wall

ACTIVITY STANDARD: ordinary negligence case and the P's status is IRRLEVANT

DANGEROUS CONDITION STANDARD: P's status is relevant because the owner/occupier is responsible for different conditions depending upon type of P

TYPE OF PLAINTIFF CHECKLIST:

a. DISCOVERED TRESSPASSER: responsible for ARTIFICIAL CONDITIONS involving RISK OF SERIOUS INJURY that OWNER KNOWS OF
-- Not natural conditions
-- Not just dangerous
-- Must have actual knowledge

b. LICENSEE: responsible for DANGEROUS CONDITIONS (natural and artificial) that OWNER KNOWS OF
-- on the P's land for his or her own purpose like a salesman, also includes SOCIAL GUESTS
-- Must have actual knowledge

c. INVITEES: responsible for DANGEROUS CONDITIONS the owner SHOULD KNOW OF
-- Artificial and natural conditions
-- Should know = must make reasonable inspection of property

Front 27

Negligence: Duty: Discharge of Duties

Back 27

Duties may be discharged by either WARNING OF or MAKING SAFE the dangerous condition

Front 28

Negligence: Duty: Very Obvious Dangerous Conditions

Back 28

No liability for D-owner if it is that obviously dangerous

Front 29

Negligence: Duty: Infant Trespassers and Attractive Nuisance Doctrine

Back 29

The Child must be able to show that he did NOT understand the risk involved

AND that the condition ATTRACTED him/her to it (THOUGH MOST JURISDICTIONS HAVE GOTTEN RID OF THIS)

Front 30

Negligence: Duty: Statutory Standards

Back 30

1. Plaintiff must fall within PROTECTED CLASS

2. Statute must be DESIGNED to prevent THIS KIND OF HARM

If statute doesn't apply, simply use one of the other standards

3. Noncompliance with Statutory Standard = NEGLIGENCE PER SE
-- Presumption of DUTY and BREACH

4. EXCUSE FOR NONCOMPLIANCE
a. Compliance would be MORE DANGEROUS
b. Compliance would be IMPOSSIBLE

5. Effect of Compliance
-- D may argue compliance, which is evidence in favor of non-negligence, but it is not due care if more is required by the circumstances

Front 31

Negligent Infliction of Emotional Distress

Back 31

1. Plaintiff must suffer PHYSICAL INJURY, though SHOCK is enough

2. Plaintiff must be within the TARGET ZONE of D's negligent conduct
-- Ex: D almost hits P with car and P has heart attack = yes
-- Ex: D almost hits X with car and P sees it and has heart attack = likely no
-- P can recover if P is a CLOSE RELATIVE of the injured party and PERCEIVED the injury

Front 32

Negligence: Duty: Affirmative Duty to Act

Back 32

There is NO affirmative duty to act

EXCEPTIONS:
1. Special Relationship between Parties: family member, ER/EE, common carriers/passengers, owner/occupier and business invitees
2. Duty to Control Third Person: Right and Ability to control; and know or should know care is required
Ex: parents know son is a bully
3. Assumption of Duty to Act by Acting
4. Plaintiff's Peril Due to D's Negligence

Front 33

Negligence: Breach

Back 33

D must breach the established STANDARD OF CARE

Front 34

Negligence: Breach: RES IPSA LOQUITUR

Back 34

1. Result usually would not happen without someone's negligence

2. Negligence attributable to D
-- Instrumentality was in the exclusive control of the D

3. Plaintiff is NOT contributorily negligent

RES IPSA RULES

-- If it applies, plaintiff DOES NOT automatically win
-- Plaintiff survives JAML and gets inference of negligence to the jury
-- JURY DECIDES whether to accept or reject inference

Front 35

Negligence: Causation: Actual Causation/Causation in Fact (3 Tests)

Back 35

1. "BUT FOR" TEST
-- But for D's conduct, P would not have been injured
-- Even if this test fails, proceed to...

2. SUBSTANTIAL FACTOR TEST
-- D's conduct was substantial factor in causing injury

3. ALTERNATIVE CAUSES TEST (Summers v. Tice)
-- Two or more negligent D's, but uncertainty as to which actually caused injury
-- SHIFTS THE BOP to teh defendants, and if neither can implicate the other, BOTH are liable

Front 36

Negligence: Causation: Proximate Causaton

Back 36

It is a way for the jury to let a D off for actually causing an injury because P was not foreseeable

DEFINITIONS:
a. Direct Cause: uninterrupted chain of events between negligent act and injury
b. Indirect Cause: between act and injury there is some INTERVENING FORCE which combines with prior act to cause injury

Front 37

Negligence: Causation: Two Rules of Proximate Causation for Bar

Back 37

1. If the result was UNFORESEEABLE, D wins

2. If the result was FORESEEABLE, D loses

EXCEPTION: In an indirect case, if the intervening force was an UNFORESEEABLE INTENTIONAL TORT OR CRIME, D will NOT be liable even if the result was foreseeable

Front 38

Negligence: Causation: Egg-Shell P

Back 38

You DO NOT have to foresee the extent of the injury

It is only necessary that one be able to foresee an injury, not the extent of it

Front 39

Negligence: Damages

Back 39

PROPERTY DAMAGE:
-- You take P's property as you find it
-- There is a DUTY TO MITIGATE for P
-- Collateral Source Rule: damages are NOT reduced b/c of payments from outside sources

Front 40

Negligence: Defenses: Assumption of Risk/Contributory Negligence

Back 40

Contributory Negligence
-- Knowing Contributory Negligence/Assumption of the risk
-- Unknowing Contributory Negligence
Assumption of Risk:
a. P knew of risk and
b. P voluntarily assumed it

EXCEPTIONS:
-- No other viable alternative
-- Emergency/Rescue

Front 41

Negligence: Defenses: Contributory NE v. Comparative NE

Back 41

1. EFFECT OF CONTRIBUTORY NEGLIGENCE
-- Contributory State: any P negligence defeatsclaim
-- Comparative State: P negligence reduces recovery
Can be PARTIAL or PURE; assume PURE on bar

2. IMPLIED ASSUMPTION OF THE RISK
-- Contrib. State: YES
-- Comp. State: NO

3. LAST CLEAR CHANCE DOCTRINE
-- Used by P to show that even if negligent, D had last clear chance
-- Contrib. State: YES
-- Comp. State: NO

4. DEFENDANT'S TORTIOUS CONDUCT WAS "RECKLESS"
-- Contrib. State: not a good defense
-- Comp. State: contrib. negligence will OFFSET amount of award

Front 42

Strict Liability

Back 42

PRIMA FACIE CASE:
1. ABSOLUTE duty to make safe
2. Breach
3. Causation
4. Damages

DEFENSES in CONTRIBUTORY STATE:
-- Knowing Contrib. Negligence: complete defense
-- Unknowing Contrib. Negligence: no defense

DEFENSES IN COMPARATIVE STATE:
-- Knowing and Unknowing Contrib. Negligence CAN be asserted against recovery
-- Recovery just depends on Pure v. Partial jurisdiction

SPECIFIC SITUATIONS:
-- Animals: liability for domestic pets is STRICT if they have INHERENTLY DANGEROUS PROPENSITIES from the outset of ownership
-- Abnormally Dangerous Activities: liability for things like dynomite and trenching is STRICT, no matter how careful the D is

Front 43

Products Liability: Negligence Theoy

Back 43

NEGLIGENCE THEORY:

1. Focus is on D's conduct, though DEFECT MUST HAVE EXISTED AT THE TIME THE PRODUCT LEFT THE D'S CONTROL

2. Possibilities for Negligent Conduct
a. negligent design
b. manufacture
c. warnings
d. inspections
-- Res Ipsa is available

3. Who can be a Plaintiff?
-- Anyone who is in the FORESEEABLE ZONE OF RISK, including BYSTANDERS

4. Who can be a D?
a. Manufacturer: almost ALWAYS
b. Wholesalers: almost NEVER

OTHER CONSIDERATIONS:
-- There is an inference that the defect existed when it left any given D's control if the product has moved THROUGH THE NORMAL CHANNELS OF DISTRIBUTION
-- One who labels the products as own or assembles from componnt parts can be liable even if they were not personally negligent

Front 44

Products Liability: Strict Liability

Back 44

STRICT LIABILITY THEORY:

1. Focus is NOT on D's conduct, though DEFECT MUST HAVE EXISTED AT THE TIME PRODUCT LEFT D'S CONTROL

2. Strict Liability Test
-- An "unreasonably dangerous condition"

3. Who can be a P?
-- Anyone within the FORESEEABLE ZONE OF DANGER (same as negligence theory)

4. Who can be a D?
-- EVERYONE, including manufacturers, wholesellers, etc.
-- INDEMNIFICATION UP THE CHAIN

Front 45

Products Liability: Three Exam Favorites and Tips

Back 45

1. WARNINGS
-- Adequate warnings will generally insulate from liability

2. FEASIBLE ALTERNATIVE APPROACH
-- If a minor amount of money could have cured the risk involved relative to the danger of the risk, D SHOULD HAVE done it
-- Warning will NOT save D then

3. PRODUCT USED INCIDENTAL TO PERFORMANCE OF SERVICES
-- Strict Liability is UNAVAILABLE

NOTE: YOU CAN ALWAYS RECOVER FOR FAULT IF S/L DOES NOT APPLY

Front 46

Nuisance

Back 46

GENERALLY:
-- Nuisance can be based on intentional tort, negligence, or strict liability theories

DEFINITIONS:
-- Private Nuisance
a. Substantial
b. Unreasonable
c. Interference w/ one's use and enjoyment of land

-- Public Nuisance
a. Act
b. Unreasonably
c. Interferes with health, safety, or property rights of community

PROPER PLAINTIFFS:
-- Private: P must have possession or right to immediate possession
-- Public: Private person may recover ONLY if she suffered UNIQUE damage not suffered by public

STANDARD:
-- OBJECTIVE: conduct must be objectionable to the AVERAGE person

EXAM FAVORITES:
-- Nuisance is a "balancing of competing interests" (this is in the right answer)
-- Plaintiff can come into the nuisance; no need for P to have been there first
-- Contrast with Trespass to Land: NO NEED FOR PHYSICAL INVASION

Front 47

Respondeat Superior

Back 47

GENERAL RULE: Employers are liable for torts of employees committed within the scope of employment
-- Generally no liability for Independent Contractors

INTENTIONAL TORTS:
-- Thes are NOT within scope of employment, unless
a. Force is authorized
b. Friction is generated by this type of employment
c. Employee is trying to further employer's business

Front 48

Vicarious Liability of Automobile Owners

Back 48

GENERAL RULE: owners are NOT vicariously liable for torts of borrowing/other drivers

EXCEPTIONS:
-- Family Car Doctrine: Household member using the car WITH PERMISSION
-- Permissive Use Doctrine: ANYONE with permission

Front 49

Vicarious Liability of Parents and Children

Back 49

GENERAL RULE: Parents are NOT liable for the UNINTENTIONAL torts of their children

EXCEPTIONS BY STATUTE: may be liable for INTENTIONAL torts up to limited dollar amound

Front 50

Releases

Back 50

A release of one party does NOT release other tortfeasors unless it EXPRESSLY does so

Front 51

Joint and Several Liability

Back 51

Where multiple acts cause indivisible injury, each D will be potentially liable for the ENTIRE JUDGMENT AMOUNT

EXAM TIP: ASSUME J/S LIABILITY

Front 52

Contribution

Back 52

Where D's are more or less EQUALLY responsible, they will ultimately share the judgment amount equally

-- D from whom contribution is sought must also be liable

-- Not applicable for INTENTIONAL TORTS

Front 53

Indemnification

Back 53

J/S tortfeasor can get EVERYTHING BACK from other D's

GROUNDS FOR INDEMNIFICATION:
-- The other D is A LOT more responsible
-- Vicarious liability
-- Indemnification in products case (runs up chain)

Front 54

Comparative Contribution

Back 54

D's will split judgment payment according to RELATIVE FAULT based on J/S and comparative fault

Front 55

Survival and Wrongful Death

Back 55

These are Derivative Recoveries where P stands in NO BETTER POSITION than decedent

-- P's in these cases CAN be contributorily negligent

Front 56

Governmental v. Proprietary Functions

Back 56

Rule: immunity is available for governmental functions, NOT proprietary functions

-- A function is proprietary if a private person would normally do it

Ex: private company running city parking lot