Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
78 Cards in this Set
- Front
- Back
|
Torts-Comparative Fault
|
1. PL can recover if he is 49% or less at fault vs other tortfeasors
|
|
|
Defenses that are no longer absolute (jury will consider in allocating fault)
|
a. Contributory negligence
b. Implied assumption of risk c. Open and obvious rule (obvious defect, PL not paying attention hurts self) PL can still recover but jury will consider it for amount recovered) d. Comparative fault and S/L claims are ok |
|
|
Worker’s comp and negligence-
|
any worker tort action against product manufacturer, jury CANNOT assess a % of fault against the immune employer (immune from tort liability because of workers comp?)
a. UNLESS employer’s negligence was SOLE cause in fact of worker’s injury |
|
|
Private and state doctors both at fault-
|
a jury CAN assess fault against immune state Dr.s (PLwill get less money)
|
|
|
Tortfeasors protected by statute of repose that has run
|
Jury CAN assess fault against tortfeasors protected by a statute of repose
|
|
|
A psychiatrist that fails to protect nurse from violent mental patient
|
CANNOT charge fault against non-party patient (theory- DR had a duty to the nurse to protect her from that)
|
|
|
Osteopath who surreptitiously prescribed antabuse for alcoholic that commits suicide
|
cannot charge fault against deceased patient (DR had a duty to deceased pt)
|
|
|
Where intentional tortfeasor (abusive nurse) and negligent tortfeasor (nursing home) were joined as D’s, then liability is
|
joint and several
|
|
|
Phantom tortfeasor
|
cannot assess fault against phantom tortfeasor
|
|
|
Comp Fault and pt whose negligence provides only the occasion for medical treatment.
|
No fault can be assessed to pt
|
|
|
Negligent entrustment of car to habitual drunk -
|
Jury should compare fault of owner entrustor with fault of driver entrustee
|
|
|
Adult host of underage party
|
has a duty of care even though he did not furnish alcohol and he can be comparatively liable with the driver.
|
|
|
MEd Mal sol and repose
|
1 yr SOL 3 yr repose
|
|
|
Med mal -expert
|
Expert W is necessary to prove malpractice
|
|
|
Med mal- Locality Rules
|
1. Expert must practice in TN or “a contiguous state” (Illinois, Indiana, Ky, Virginia, North Carolina, South carolina, Georgia, Alabama, Mississippi, Arkansas, Missouri)
2. Expert must know the standard of care in the D’s community, or standard of care in a community shown to be similar |
|
|
Med mal- contingent fees cap
|
Contingent attorney fee is capped at 1/3
|
|
|
Med mal- new statute
|
a. Must be written notice to Ds before filing suit. Can be delivered to receptionist (not dr so he doesn’t get served in front of pts) 60 days before filing!
b. SOL or repose is extended up to 120 days c. PL must get a certificate of good faith from an expert, to be filed with the complaint |
|
|
Med mal
|
No tolling of statute of repose where mental incompentency or being a minor
|
|
|
Med mal- Minor cause of action
|
A minor has an independent cause of action for lack of informed consent for injuries that occur prior to birth
|
|
|
Med mal- Independent contractors and hospital
|
Even though an emergency room doctor and a radiologist are independent contractors with the hospital, the hospital can be vicariously liable on the theory of apparent agency
|
|
|
Products Liability -SOL and Repose
|
1 yr SOL, 10 YR repose (with exceptions)
|
|
|
Products Liability - how to succeed
|
PL can succeed by showing a product is defective OR unreasonably dangerous (RST says “and”)
|
|
|
Products Liability - can proceed under
|
PL can proceed under “consumer expectation test” or “prudent manufacturer” test- his choice
|
|
|
Products Liability - Strict Liability
|
Usually, only the manufacturer is liable in Strict tort
|
|
|
Retaliatory Discharge- causes of action
|
1. C/L remedy for at will employees
a. C/L remedy does not require that the whistleblowing was the SOLE cause of discharge, but must be a substantial factor (under statute it must be the sole cause) 2. Also have a whistle blower statute – protects private OR govt employees that blow whistle on illegal activities |
|
|
Retaliatory Discharge-School teachers
|
Statute for school teachers- No teacher can be retaliated against solely for refusing to participate in or remain silent about illegal activities (atty fees can be recovered)
|
|
|
Retaliatory Discharge-Examples of firing in the face of clear public policy:
|
a. Cant fire someone in retaliation for collecting workers comp
b. Cant fire someone for doing jury duty c. Cant fire someone for reporting unsafe working conditions d. ** Cant fire someone for reporting unethical activities of lawyers |
|
|
GOVT tort liability act (GTLA)
|
1. Circuit court has jurisdction
2. 1 yr SOL, savings statute doesn’t apply 3. No jury trial unless city or county is named as comparative tortfeasor |
|
|
(GTLA) City or county may be sued for negligence of employees BUT
|
a. Planning level decisions- immunity (ie- folks in charge make a general policy on high speed chases)
b. Operational liability- no immunity (ie- cop does negligent high speed chase) c. There are caps on amounts |
|
|
Cases- PL dr. breaches implied covenant of confidentiality by
|
informally talking with defense counsel, who can be guilty of inducing breach of K
|
|
|
Cases- Where neighbor’s healthy tree damages PL’s property, there are now 3 remedies-
|
i. Self- help,
ii. neighbor can be enjoined to cut back the encroaching branches or roots, or iii. neighbor can also be liable for damages |
|
|
Cases- sell gas and/or help pump gas to an obviously intoxicated driver
|
It is negligence to sell gas and/or help pump gas to an obviously intoxicated driver. (CT used negligent entrustment theory on this)
|
|
|
Cases- Employer that lets worker wear asbestos contaminated clothes home
|
can be liable for the mesotheleoma death or worker’s kids (negligent entrustment theory)
|
|
|
Cases- Experts testifying in a legal malpractice action must be
|
Experts testifying in a legal malpractice action must be familiar with the statewide standard of care for TN lawyers
|
|
|
Cases- Defamation-
|
Absolute litigation privilege defense to defamation actions can apply to statements made prior to trial including solicitation ads
|
|
|
A housing authority can be liable for murder
|
A housing authority can be liable for murder by a violent tenant who should have been evicted based on prior violence.
|
|
|
Domestic Relations: Insurance
|
1. Policyholder spouse must give divorcing spouse 30 days notice of termination of coverage to spouse and to spouse’s lawyer and file notice with court
|
|
|
Domestic Relations: Military service-
|
Military service-
a. No permanent modification of custody if based solely on a military parent being mobilized for active duty b. Military member with visitation rights who is called for active duty out of state for 90 days or more, can petition the court to temporarily assign visitation rights to a relative |
|
|
Criminal Law: Preemptory challenges in criminal cases:
|
a. Death penalty- each side gets 15
b. 8 per side felony case c. 3 per side misdo d. 1 additional preemptory per side for each juror impaneled |
|
|
Criminal Law: Self Defense-
|
a. Dwelling (broadly defined) or vehicle
b. User Cannot be engaged in unlawful activity c. Business- interior and exterior premises |
|
|
Criminal Law: Carjacking
|
- Taking a vehicle “from the possession of another”
a. Carjacking committed if driver is close enough to “immediately become in, on, or adjacent to the vehicle but for the carjacker. |
|
|
Criminal Law: Crooks with guns statute
|
- A separate offense with consecutive sentence for possession or employing a firearm during commission of a “dangerous offense”
a. Manslaughter, carjacking, kidnapping, burglary, or drugs |
|
|
Criminal Law: Handgun carry permittee
|
Handgun carry permittee can take a gun in a restaurant that sells alcohol – BUT permittee cannot consume alcohol
|
|
|
DUI
|
- An accident with injury or death and you are suspected of dui, they can draw blood without consent
|
|
|
Eminent domain-
|
Statute- Authorities can condemn for urban renewal in “blighted areas”- BUT- “Blighted” does not include land to gain tax revenues or farmland. Govt must also give 30 days notice of intent to condemn to the owner.
|
|
|
Engagement rings
|
Personal Property (engagement ring) – Conditional gift, title doesn’t vest in donee, so donee must return ring to donor if no marriage and her fault.
|
|
|
Contracts
|
1. Caselaw and statute:
a. In a K for sale of land, party to be charged is party against whom enforcement is sought |
|
|
Covenants not to compete- Drs
|
a. Enforceable amongst doctors- (wrong in book!) radiologists ARE covered by the act (they are enforceable against them! )
|
|
|
Secured Transactions- PMSI-
|
Secured Transactions- PMSI- priority time for filing a financing statement concerning a PMSI has been extended from 20 days to 30 days after debtor receives delivery of collateral
|
|
|
Accused attacking character of V
|
Rule 404a1- If accused attacks V character trait, Prosecution can attack that same trait of accused (opens the door)
|
|
|
Other crimes evidence
|
Other crimes evidence must be shown by clear and convincing proof (Feds require preponderance)
TN- Cant introduce another crime if it is a crime for which they had been acquitted. a. The other crimes exclusion applies only to other crimes of the accused (Accused can get in to evidence crimes of another person to prove character and conforming conduct.) |
|
|
Conviction for sex with 12 yrs or younger
|
Person on trial for sex with child 12 or younger- Prior conviction for sex with person 12 or under is admissible to prove character and conforming conduct.
|
|
|
Benevolent gestures
|
409.1 (not in feds) – Benevolent gestures are inadmissible (ie- say “im sorry after wreck)
a. does not exclude statements of fault. |
|
|
Sex behavior shield rules
|
412- Sexual behavior shield rule applies only in criminal trials
|
|
|
Privilege law: Exception to privileges
|
Except for atty client priv, no privilege applies to any situation involving known or suspected child sex abuse
|
|
|
Privilege law: Dr/Pt
|
No general dr/pt privilege, but there is a psychotherapist/pt privilege
|
|
|
Privilege law: Spousal privileges
|
3. spousal Privilege-
a. TN does not recognize a spousal witness privilege b.TN does have a confidential communications privilege in civil cases i. Criminal cases- Look in TN tall book for exceptions TCA 24-1-202(c) – Don’t have it unless (4 criteria): apply to the status of marriage at the time of trial |
|
|
Privilege law: Atty client priv only applies to
|
4. Atty/Client priv- atty communications to client are privileged ONLY IF they would reveal the nature of the client’s communications
|
|
|
DEAD Man Statute
|
a. Only applies in situations where dead person is a NAMED party, not interested persons
b. A Party is incompetent to testify about a statement by deceased or a transaction with the deceased c. If a parties testimony affected only distribution of an estate (how to divide), not value, there is no problem d. Does not apply in a will contest |
|
|
Impeachment of accused by conviction:
|
1. 4 requirements that feds don’t have
a. Pre-trial written notice b. Ruling before testimony c. Weigh probative value vs. unfair prejudice d. No appellate waiver by not taking the stand (in feds if judge makes wrong ruling and D doesn’t take the stand, you cant appeal on it- Here you can) i. Make sure that you insist on a jury out hearing and make a record! (appellate court will say they don’t know what D would have said without that) |
|
|
Dishonesty
|
Drug sale convictions do not involve dishonesty
|
|
|
Cross scope
|
611 Wide Open Cross- anything relevant and material to the case
|
|
|
Impeachment by inconsistent statement
|
- You must first ask the W about the inconsistency and give W a chance to deny or explain it, Before offering extrinsic evidence
|
|
|
Learned treatises
|
Learned treatises come in only to impeach an expert in TN (not as sub evidence)
|
|
|
Expert Opinion
|
1. Opinion must SUBSTANTIALLY assist the jury
a. Can put an expert on stand about eyewitness problems b. There is a case that says no expert testimony on personality profiles of sex abused children |
|
|
Expert Opinion - test for admissibility
|
We use DAUBERT (call them McDaniel Test)
a. Peer review and publication? b. Theory been tested? c. If so, what is the error rate? d. Is theory generally accepted e. Was expert’s research done independently of litigation? Brown v Crown equip 181 sw3d 268 – Expert was permitted to testify even though they didn’t meet above factors (a trial court need not consider all of these factors in making a reliability determination) |
|
|
Expert Opinion-Non- scientific expert testimony
|
Non- scientific expert testimony (Kumo tire we call Stevens)
|
|
|
Expert Opinion - hearsay
|
1. Expert can base an opinion on reliable but inadmissible hearsay but usually the hearsay will not be disclosed to the jury
|
|
|
Expert opinion-Prior inconsistent statements of a testifying Witness
|
1. FED 801- some types of evidence that are called non-hearsay-
2. TN- 803(26)- Prior inconsistent statements of a testifying Witness hearsay exception (those can be oral under oath or written and signed by W, or audio or video recorded) |
|
|
Statements of ID
|
6. FEDs – statements of ID non hearsay
a.TN – admit as a hearsay exception |
|
|
Present sense impression-
|
TN DOES NOT HAVE IT!
|
|
|
Admission of Agents- TN
|
- agent statements are a PL’s admissions only if the agent was speaking against the A’s own interest. (disserving not self-serving)
|
|
|
Statements made to Drs
|
803(4) – Statements made to DR- TN- To come in, statements must be made for the purpose of medical TREATMENT
|
|
|
Public Records exception
|
– Law enforcement reports are inadmissible in civil and criminal trials
|
|
|
Reports of official investigations-
|
TN reports of official investigations are inadmissible hearsay
|
|
|
Children’s statements-admissible when
|
admissible on civil issues of: dependency and neglect, sever child abuse, termination of parental rights, on issues of custody, shared parenting, or visitation
|
|
|
Videotaped interview of a child V of sex crime 12 or younger
|
interview must be conducted by a forensic interviewer (with training) is admissible hearsay if the child testifies at trial and vouches for the recording
|
|
|
Affidavit from forensic analysis lab- confrontation
|
Confrontation (SCOTUS Melendez-diaz v mass.)- Affidavit from forensic analysis lab that said substance sold by D was cocaine. Hearsay affidavit was testimonial and violated Crawford.
a. TN law- in a probation revo hearing, TN allows affidavits of lab reports about drug tests. (could be a problem for above law) |
