Torts

Front 1

What is Market Share Liability?
What are its policy justifications?

Back 1

MSL is a burden-shifting exception to general rule for liability of multiple Ds when only one is the cause-in-fact and when all Ds were negligent. Usually, multiple Ds can be held liable only if there are only a small number.

With MSL, P must sue a large enough number of potential causors-in-fact to constitute a "substantial share" of the market.

It's been applied to pharmaceutical companies (Sindell)

Policy Justifications:
- D's are in best position to prevent the harm.
- D's are able to spread the cost.
- P has evidentiary disadvantage, since problems take time to arise.

Front 2

What are joint and several liability?

Back 2

Joint liability is the sharing of a liablity by multiple parties. They are collectively liable.

Several liability is the liability of each party for the same thing. Each can individually sued for the whole.

Joint and Several liability is the combination of both: they can be collectively sued or individually for the whole value of the liability.

Front 3

In what situations will Cardozo and Andrews analyses of proximate cause disagree?

Back 3

If there is a direct and immediate, but unforeseeable injury:
- Cardozo analysis will not assign liability.
- Andrews analysis will.

If there is a remote and attenuated, but foreseeable injury:
- Cardozo analysis will assign liability.
- Andrews analysis will not.

Front 4

What is a Trespass to Chattels?

Back 4

Intentional intermeddling with a chattel in possession of another, resulting in
- impairment of the quality, condition, or value of the chattel
- possessor is deprived of use of the chattel for a substantial time
- physical harm to the possessor or a person or thing in which the possessor holds a legal interest.

Front 5

What is a Conversion?

Back 5

Intentional exercise of dominion or control over a chattel that so inteferes with the owner's right to control it that the actor is required to pay the full value of the chattel.

Front 6

What is a Battery?

Back 6

Intentionally causing harmful or offensive contact.

Front 7

What is an Assault?

Back 7

Intentionally causing an imminenent apprehension of harmful or offensive contact.

Front 8

What is Intentional Infliction of Emotional Distress?

Back 8

Intentional or reckless conduct which is extreme or outrageous, causing in severe distress connected to the conduct.

Front 9

What is False Imprisionment?

Back 9

Intentional direct restraint of another without adequate legal justification.

Front 10

For the intentional tort of Battery, explain the difference in how harmful and offensive conduct are evaluated.

Back 10

Generally, these things are evaluated by the Reasonable Person standard. For example, what would a reasonable person find offensive? However, the thin skull doctrine is applied to physical harm: here, D takes P as he finds him. If P has a particular medical condition, D is liable for the injury, even if the extent and nature of the harm was not foreseeable.

Front 11

Usually, what kind of action is required on D's part to constitute an assault (setting aside P's subjective experience)?

Back 11

The conduct must have some sort of physical manifestation; verbal threats alone are insufficient.

Front 12

For Assault, what must P percieve?

Back 12

Subjectively, the harmful or offensive contact must seem imminent (all three elements measured by RP standard.) It also must be believable (by a RP standard) that the contact is possible, or else it would not make any sense to think that the contact was imminent.

Front 13

For False Imprisonment how is the "adequate legal justification" requirement evaluated?

Back 13

Purely objectively. If the legal justification did not exist, D is liable, no matter how reasonable or good-willed his belief that he had a legal justification.

Front 14

What is the Restatement view on Intentional Infliction of Emotional Distress in bystander cases?

Back 14

If P is a family member, then the harm to the victim need not be physical and D may have been merely reckless in knowing that P was witnessing the act.

If P is not a family member, then the harm must be physical, and P witnessing of the act must be intentional (purpose or knowledge to a substantial certainty).

In any case, the bystander must witness the harm directly.

Front 15

How is the "extreme and outrageous" element of IIED evaluated?

Back 15

It takes into account various contextual aspects of the facts, such as demographic traits of P (physical state, race, pregnacy, gender, age, etc.) and the power relationship between P and D.

But it does not take into account P's personal emotional sensitivities beyond this point, except when those sensitivities are specifically targeted by D.

Front 16

How can IIED be applied to the employer when it is employees who are acting?

Back 16

The offensive conduct usually has to be sustained, not one-time incident.

Good will is significant in absolving the employer.

Front 17

What are the privileges that D can argue?

Back 17

Consent
Self Defense
Defense of Other
Necessity
Defense of Property
Recovery of Propery
Justification

(also Authority of Law and Discipline, but we didn't cover those.)

Front 18

When is Mistake of Fact a privilege that D can claim?

Back 18

Only in the context of self-defense, where D uses force against another, believing that they were the one that D needed to defend from.

Front 19

When can apparent consent be invalid?

Back 19

- children cannot give consent to medical procedures (one needs parental consent)
- consent obtained when D knows or intends for P to misunderstand a material fact is invalied.
- the majority say that consent to illegal activities is invalid (e.g. prize-fighting; minority Jxs allow consent in such cases.)

Front 20

What torts must one be threatened with to claim the privilege of self-defense?

Back 20

Battery and False Imprisonment.

Front 21

When may deadly force be used in defense of property?

Back 21

- when the property is occupied (borders on defense of self/others)
- when there are clearly placed signs warning of the deadly force
- Miority: in defense of very valuable propery.

Front 22

What defenses fail when D was mistaken, even though his actions were reasonable?

Back 22

- Recovery of Property
- Defense of Other

also, with False Imprisonment, the "adequte legal justification" requirement is purely objective as well.

Front 23

What is the privilege of Necessity?

Back 23

General privilege, when there is an emergency and D had a reasonable belief that he had to commit the tort in order to serve greater good.

Front 24

In negligence determinations, what are the characteristics of the Reasonably Prudent Person (RPP), given a particular D?

Back 24

- RPP takes on the physical characteristics of the D
- RPP takes on superior capabilities of the D
- RPP takes on the age and experience of D if D is a child. Except, however, when the child if participating in an inherently dangerous activity/activity reserved for adults.
- RPP who is mentally disabled is held to a NORMAL RPP standard

Front 25

In negligence determinations, what are the policy justifications for holding a mentally ill person to the normal RPP standard?

Back 25

As laied out in Breuning:
- incentive for caretakers to be more prudent.
- decrease in false claims of insanity.

Front 26

When does the calculated risk (B < PL)/Learned Hand formula for determining negligence most make sense?

Back 26

It makes the most sense when B is very low and both P and L are very high. This would be clear evidence that there is a duty.

Front 27

When do market failures make Trade Custom and B<PL analyses of duty diverge?

Back 27

Basically, when there is a market failure. For example:
- when those affected do not have an economic relationship with the actor.
- when transaction costs (usually imperfect information) are high.

Front 28

What is the professional standard for Attorneys?

Back 28

- they must give reasonable advice; mere errors of judgment where other qualified attorneys could disagree do not cause liability.
- "requisite degree of learning and skill"

Front 29

When can the jury rather than medical expert make the determination of a Physician's negligence?

Back 29

When the negligence is so egregious that expert testimony is required (e.g. amputation of wrong body part.)

Front 30

Describe what must be established to show that a physician's has breached her duty to obtain informed consent.

Back 30

Physician must obtain consent for medical procedures, making sure that all material risks are communicated to the patient.
- "Material" is determined by the profession in majority of Jx's. Minority: Jury determines what risks are "Material"
- "Material" may vary if patient has particular needs.

The patient must show that they would not have consented had they known of the risk.

The injury must be of the same type as the undisclosed, material risk.

Front 31

What are a physician's defenses for not having disclosed a material risk in obtaining consent for a medical procedure?

Back 31

- Risk was commonly known
- Emergency
- P was particularly distressed, and disclosure could have complicated the procedure.
- Benefit of the procedure far overshadows the injury.

Front 32

What kinds of statutes cannot be used to establish a statutory standard of care?

Back 32

- statute designed to benefit the state (in cost, or in general governance, requiring actors to take on state duties)
- licensing statutes
- statute designed to secure an individual's rights reserved for the general public.

Front 33

What are D's defenses against a statutory standard of care?

Back 33

- that the statute was not designed to prevent the kind of harm that resulted
- that the statutes was not designed to protect the class of people to which P belongs.

There are also five automatic defenses that work in negligence per se Jxs:
- incapacity of D
- reasonable diligence to comply already made, exhausted
- compliance created a greater danger to D than violation
- no way to know of occasion to comply
- emergency not of D's making

Front 34

What are the elements of Res Ipsa Loquitor (RIL)?

Back 34

- that the instrumentality was in exclusive control of D
- that the harm would not likely have occurred without negligence on someones's part

Front 35

How can D respond to negligence established by Res Ipsa Loquitor?

Back 35

- contributory negligence from P
- present evidence specific to the harm at issue, showing that D was not negligent
- show that the harm was not proximate to anything that D might have done.
- present enough alternative expanations for the occurance

Front 36

In Res Ipsa Loquitor cases, who has the burden of proof?

Back 36

SoA:
- Minority: rebuttable presumption. burden of proof on D
- Majority: allowable inference. only gets it to the jury; P must present case and jury can still decide that there was no negligence even if D has no evidence.
- In CA, jury is required to find negligence if elements of RIL are established.

Front 37

What is the exception to the general rule where Substantial Increase in Likelihood is used to determine causation?

Back 37

Usually, must be substantial increase of a harm that was not otherwise likely.

In medical negligence cases, however, substantial increase in risk of an already likely harm is still a cause in fact.

Front 38

Causation in fact.
Distinguish amongst the the various evidentiary failure situations where there are multiple D's, and court cannot determine which one was the cause of the harm.

Back 38

Generally, if all D's were negligent in the same manner and there are only a small number of them, then they are all jointly and severally liable (though there are also comparative fault Jxs.)

There is a special case of Market Share liablity, which allows suit against a large number of manufacturers in this situation. Here, P must bring suit against a large enough number of Ds to constitute a substantial share of the market. Ds may be found severally, or jointly and severally liable.

There is also the Ybarra exception, which allowed for group res ipsa loquitor finding of negligence. Exceptional because we know that not all Ds were negligent.

Front 39

When can there be causation in fact even though there is not but-for causation?

Back 39

- substantial increase in likelihood of harm
- multiple, sufficient causes
- multiple causes that merge
- one sufficient cause, but where harm would have resulted due to a second D's negligence even if the first had not been negligent.

Front 40

How does D's liability vary with the foreseeability of the ultimate harm and the foreseeability of the intervening cause?

Back 40

If the ultimate harm is foreseeable, the foreseeability of the intervening cause doesn't matter: D is liable.

If the ultimate harm is unforeseeable and the intervening cause is unforeseeable, then D is not liable. If the intervening cause is foreseeable, then don't use intervening cause analysis, here; use other proximate cause doctrines.

Front 41

How do intervening criminal or reckless acts change liability?

Back 41

Criminal or reckless acts are independent and thus superseding causes, except when they are foreseeable.

Front 42

What are the special situations that arise under Intervening cause? What are the rules and their exceptions?

Back 42

Second Accident: not intervening, except where there has been a return to normalcy

Suicide: intervening, unless there was an "irresistible impulse" caused by the initial negligence.

Rescuer doctrine: Rescuer who is injured in emergency caused by D can sue, except:
- professional rescuers
- unreasonable rescue
- unreasonable rescue of property (depends on value)

Social Host Serving Alcohol: no liability
- Minority: hold D liable anyway

Front 43

Wagon Mound I

Back 43

Application of Cardozo-style proximate cause analysis

Front 44

Polemis

Back 44

Application of Andrews-style analysis of proximate cause

Front 45

Dedarian

Back 45

Flaming Rat case; unforseeability of intervening cause doesn't matter if the ultimate harm was foreseeable.

Front 46

Summers

Back 46

multiple D's case; shooting out of P's eye; unclear whose birdshot caused the injury; all D's liable.

Front 47

Sindell

Back 47

DES case: Market Share Liability

Front 48

Brown

Back 48

Market Share Liability, but made D's only severall liable according to market share, not jointly and severally liable.

Front 49

Ybarra

Back 49

Group Res Ipsa Loquitor

Front 50

Kinsman II

Back 50

application of foreseeability analysis, with directness used as a way to temper the infinite causation chain.

Front 51

in pari delicto

Back 51

comes up in mistake of fact situations with self defense. no liability, because both parties are of equal blame; both innocent.