Torts

Front 1

The two ways to prove intent

Back 1

1) Purpose and 2) substantial certainty.

Substantial certainty is determined subjectively.

Front 2

Single intent

Back 2

The intent to commit the act

Front 3

Dual intent (generally)

Back 3

The intent to commit the act and the harm

Front 4

Dual intent (elements)

Back 4

1) Act
a) purpose
b) substantial certainty
2) Harm
a) purpose
b) substantial certainty

Front 5

Scope of liability for intentional and reckless tortfeasors

Back 5

R (3) §33
(a) An actor who intentionally causes harm is subject to liability for that harm even if it was unlikely to occur.
(b) An actor who intentionally or recklessly causes harm is subject to liability for a broader range of harms than the harms for which that actor would be liable if only acting negligently. In general, the important factors in determining the scope of liability are the moral culpability of the actor, as reflected in the reasons for and intent in committing the tortious acts, the seriousness of harm intended and threatened by those acts, and the degree tow which the actor's conduct deviated from appropriate care.
(c) Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was not increased by the actor's intentional or reckless conduct.

Front 6

Assault

Back 6

R (3) §21
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
(Picard)

Front 7

Attempt unknown to other

Back 7

R (3) §22 An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.

Front 8

Conditional threat

Back 8

R (3) §30
If the actor intentionally puts another in apprehension of an imminent and harmful or offensive contact, he is subject to liability for an assault although he gives to the other the option to escape the contact be obedience to a command given by the actor, unless the command is one which the actor is privileged to enforce by the infliction of the threatened contact or by a threat to inflict it.

(If you do not get out of my house I will put you out.)

Front 9

Threat by words

Back 9

R (3) §31
Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.

Front 10

Battery: Harmful Contact

Back 10

R (3) §13
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.

Front 11

Battery: Offensive Contact

Back 11

R (3) §18
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

Front 12

What constitutes offensive contact

Back 12

R (3) §19
A bodily contact is offensive if it offends a reasonable sense of personal dignity.
[The "reasonableness overlay."]
(Wishnatsky)

Front 13

False imprisonment

Back 13

R (3) §35
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An acts which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.

Front 14

Elements of false imprisonment

Back 14

1) Actual or apparent physical barriers
2) Physical force or submission thereto
3) Threats of physical force
4) Other duress (catchall) (if you leave here I will hurt someone else)
5) Asserted legal authority

Front 15

When FI is justified (elements)

Back 15

1) reasonable suspicion
2) reasonable manner
3) for a reasonable time

Front 16

False arrest

Back 16

A specific type of false imprisonment that comes with the assertion of legal authority (police officer arresting someone wrongly).

Front 17

Malicious prosecution

Back 17

1) The filing of an action 2) without probable cause, and 3) with malice (improper purpose), with 4) the case being resolved favorably to the malicious prosecution plaintiff.

If police file action, suit for FA, not MP.
Security agencies treated as police.

Front 18

IIED

Back 18

1) Intentional or reckless [a) specific purpose of inflicting emotional distress (dual intent), or b) where specific act was intended and D should have known that emotional distress was likely to result ("essentially" single intent)] 2) outrageous conduct 3) causing 4) severe emotional distress.
(Womack)

Front 19

Proving emotional distress

Back 19

Medical bills, lost wages, medication.

Front 20

Heart balm torts

Back 20

1) Criminal conversation
2) alienation of affections
3) breach of promise to marry (obs.)
4) seduction (obs.)

Front 21

Defamation

Back 21

1) False and defamatory statement (both)
2) Publication (speaking can be publication)
3) Fault
a) public officials and figures must prove
i) knowing falsity or
ii) reckless disregard for the truth.
b) private citizens need only prove negligence.
4) Damage

Front 22

Cannot let people get around _____ _________ by using IIED.

Back 22

First Amendment

Front 23

In Snyder v. Phelps, SCOTUS found that Westboro's picketing of funeral...

Back 23

...was protected.

Front 24

Conversion

Back 24

An intentional act of "dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

A buyer of stolen goods may be charged with conversion.

Front 25

Trespass to chattel

Back 25

Committed by either 1) dispossessing another of the chattel or 2) using or intermeddling with the chattel in the possession of another.

R (3) Chapter 3 § 217

Front 26

Distinctions between trespass to chattel and conversion

Back 26

1) Extent and duration of actor's control
2) Actor's intent to assert his right over the chattel
3) Actor's good faith
4) Extent and duration of resulting interference
5) Harm done to chattel
6) Inconvenience and expense caused to other

R (3) Chapter 3 § 222

Front 27

Consent

Back 27

1) Subjective good faith
2) Objectively reasonable
3) Within scope of consent

Front 28

Self-defense

Back 28

1) Subjective belief in threat
2) Objectively reasonable in circumstances
3) Proportionality

Front 29

Castle doctrine

Back 29

In your home or the curtilage thereof, you may use lethal force to defend yourself if you feel threatened and you do not have to retreat. Everywhere else you are obliged to retreat, but you do not need to retreat if retreat would endanger you.

Front 30

Stand-your-ground

Back 30

1) Expands castle doctrine to include car
2) Does away with duty to retreat in public
3) No longer need to feel threatened to use deadly force in your home.

Front 31

Garratt

Back 31

The intent element for battery can be satisfied by showing that the actor was substantially certain that the harmful touching would result from his action.

Front 32

Where there is consent, there cannot be...

Back 32

false imprisonment. Moral pressure such that a plaintiff feels compelled to stay to explain herself is not sufficient. (Lopez)

Front 33

Conversion now applies to...

Back 33

...intangible electronic records stored on a computer indistinguishable from printed documents (Thyroff).

Front 34

If one consents to a harmful and illegal touching, and one is killed or injured by that touching...

Back 34

...one cannot recover damages therefrom (Hart).

Front 35

During a riot, if one believes that he is assaulted by a rioter...

Back 35

...that one may be justified in using deadly force to defend himself (Courvoisier).

Front 36

One cannot use deadly force to protect...

Back 36

...mere property (outside of TX) (Katko).

Punitive damages can be awarded where a plaintiff was breaking the law.

Front 37

If you are protecting higher-valued property or life, and you are not the cause of the danger...

Back 37

...you have a privilege to use another person’s property to save it, but you will have to pay for any damages caused by the using (Vincent).

Front 38

A person who lawfully brings something onto his land that, if it escapes, is capable of doing harm...

Back 38

...is strictly liable for any harm occurring as a natural consequence of the escape. (Rylands (1866))

Front 39

A person who lawfully brings something non-natural onto his land that, if it escapes, is capable of doing harm...

Back 39

is strictly liable for any harm occurring as a natural consequence of the escape (Rylands (1868)).

Front 40

In Losee, where a boiler caused damage to another's property...

Back 40

...boiler owner was not liable. Must not discourage industry.

Front 41

Strict Liability factors

Back 41

a) Existence of a high degree of risk of some harm to the person, land or chattels of others
b) likelihood the harm will be great
c) inability to eliminate risk by reasonable care
d) extent to which the activity is common usage
e) inappropriateness of the activity to the place in which it is carried out
f) extent to which its value to the community is outweighed by its dangerous attributes

Indiana Harbor R.R.'s ruling *is* this list of elements.

Front 42

Element Posner says is the most important in SL (+ Posner's example of activity SL should deter):

Back 42

c) inability to eliminate risk by reasonable care.

If it does not satisfy this requirement, it is negligence.

Tiger ownership.

Front 43

Trespass requirements

Back 43

Intentionally
1) entering land in possession of another, or causing a thing or third person to do so;
2) remaining on the land; or
3) failing to remove a thing he is under a duty to remove.

Front 44

Intent for trespass

Back 44

One must intend only the step, not necessarily the trespass itself.

Front 45

There may be a direct invasion in an owner's interest in land that qualifies as trespass even when...

Back 45

...the invasion is by particles so small as to be invisible.

Front 46

Private nuisance

Back 46

One is subject to liability for private nuisance if his conduct is a legal cause of an invasion of another's use and enjoyment of his land and the invasion is either 1) intentional and 2) unreasonable or 3) unintentional and otherwise unreasonable under rules for that conduct.

Front 47

Private nuisance: intentional

Back 47

1) intentional
a) knowledge or
b) substantial certainty

Front 48

Private nuisance: 2) unreasonable

Back 48

2) unreasonable
a) gravity of harm
b) outweighs utility of conduct
c) harm is serious and financial burden of compensating for this and similar harm would not make continuation of the conduct not feasible.

Front 49

Private nuisance: 2) unreasonable, a) gravity of harm

Back 49

2) unreasonable
a) gravity of harm
i) extent of harm
ii) character of harm
iii) social value of the type of use or enjoyment invaded
iv) suitability of the use invaded to the locality's character
v) burden on the person harmed of avoiding the harm

Front 50

Private nuisance: 2) unreasonable, b) outweighs utility of conduct

Back 50

2) unreasonable
a) gravity of harm
b) outweighs utility of conduct
i) social value of primary purpose of conduct
ii) suitability of conduct to locality's character
iii) impracticability of preventing invasion

Front 51

Judicial discretion in private nuisance

Back 51

Since this is two soup tests within a balancing test, judges have hugely wide powers of discretion in application.

R: a kind of "judicial zoning."

Front 52

Interference of use and enjoyment of land:

Back 52

Nuisance

Front 53

"Breaking the close"

Back 53

Trespass

Front 54

Permanent damages, rather than an injunction, are appropriate when the damages resulting from a nuisance...

Back 54

...are significantly less than the economic benefit derived from the party causing the harm (Boomer).

Front 55

Public nuisance elements

Back 55

1) The unreasonable interference 2) with a public right 3) by an entity with control over the instrumentality creating the nuisance when the damage occurred.

These elements are the holding of State of Rhode Island v. Lead Industries Ass'n, Inc.

Front 56

What are the indivisible public rights of public nuisance?

Back 56

The common water, air, and public right of ways.

Front 57

With what is public nuisance concerned?

Back 57

Rights common to all: health, safety, peace, comfort & convenience, and morals.

Front 58

Courts may be wary of people trying to get around ______________ cases with public nuisance cases.

Back 58

Product liability cases

Front 59

A private person may seek relief for a public nuisance if...

Back 59

that person can prove some special harm.

I.e. the meth lab in a neighborhood (general harm) vs. the meth lab in the apartment above (special harm).

Front 60

Injunction and "property" rules

Back 60

1) It is found that there is no nuisance. D "enjoins" P. He is granted the property right of the annoyance.
2) It is found that there is a nuisance. P enjoins D. P is granted the property right of the annoyance.

Front 61

Nuisance and "liability" rules

Back 61

3) Nuisance is found. D is made to compensate P by an amount determined by a jury.
4) Nuisance is found. (Rarely) P is made to compensate D by an amount determined by a jury (Spur v. Del E. Webb).

Front 62

What constitutes confinement (FI)

Back 62

R (3) § 36
(1) To make the actor liable for false imprisonment, the other's confinement within the boundaries fixed by the actor must be complete.
(2) The confinement is complete although there is a reasonable means of escape, unless the other knows of it.
(3) The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go.

Front 63

Confinement by physical force (FI)

Back 63

R (3) § 39
The confinement must be by overpowering physical force, or by submission to physical force.

Front 64

Confinement by threats of physical force (FI)

Back 64

R (3) § 40
The confinement may be by submission to a threat to apply physical force to the other's person immediately upon the other's going or attempting to go beyond the area in which the actor intends to confine him.

Front 65

Confinement by asserted legal authority (FI)

Back 65

R (3) § 41
(1) The confinement may be by taking a person into custody under an asserted legal authority.
(2) The custody is complete if the person against whom and in whose presence the authority is asserted believes it to be valid, or is in doubt as to its validity, and submits to it.

Front 66

Liability to person in possession (trespass to chattel)

Back 66

R (3) Chapter 3 § 218
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected right.

Front 67

Conversion by receiving possession in consummation of transaction (theft by purchase)

Back 67

R (3) Chapter 3 § 229
One who receives a possession of a chattel from another with the intent to acquire for himself or for a third person a proprietary interest in the chattel which the other has not the power to transfer is subject to liability for conversion to a third person then entitled to the immediate possession of the chattel.

Front 68

Self-defense by force not threatening death or serious bodily harm

Back 68

R (3) Chapter 4 § 63
(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
(a) by retreating or otherwise giving up a right or privilege, or
(b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.

Front 69

Self-defense by force threatening death or serious bodily harm

Back 69

(1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that
(a) the other is about to inflict upon him an intentional contact or other bodily harm, and that
(b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.
(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by
(a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or
(b) permitting the other to intrude upon or dispossess him of his dwelling place, or
(c) abandoning an attempt to effect a lawful arrest.
(3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by
(a) retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or
(b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest.

Front 70

Meaning of consent

Back 70

(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.
(2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are effective as consent in fact.

Front 71

Defense of possession by force not threatening death or serious bodily harm

Back 71

R (3) Chapter 4 § 77
An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another's intrusion upon the actor's land or chattels, if
(a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
(b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
(c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.

Front 72

Private necessity

Back 72

R (3) Chapter 4 § 197
(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to
(a) the actor, or his land or chattels, or
(b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.
(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.

Front 73

No absolute liability for damages exist for a driver who experiences...

Back 73

...a sudden physical illness that renders him unconscious and causes an accident during that time (Hammontree v. Jenner).

Front 74

Enterprise liability:

Back 74

Product makers can make the product safer. They can afford to essentially insure the customers.

Front 75

Balitmore and Ohio RR v. Goodman

Back 75

A plaintiff approaching a rr track may be liable for contributory negligence and thus completely barred from recovery if he fails to take reasonable precautions, such as getting out of his car and looking for oncoming trains, to guard against a risk of which he is aware.

Front 76

Pokora v. Wabash

Back 76

When approaching a rr track in a private car, an individual is not required to stop, get out of his car, and look for oncoming trains before crossing the track if doing so is not customary and may ultimately be more dangerous.

Front 77

The elements of negligence

Back 77

i. Duty
ii. Breach
iii. Causation
1. Factual
2. Proximate (scope of liability supposed to replace)
iv. Damages

Front 78

Vicarious liabilty elements

Back 78

1. Employment relationship
2. Scope of employment
a. Employee must be about the employer’s business, as opposed to being wholly involved in a personal endeavor.
b. Conduct must occur substantially within hours and space of employment.
c. Motivated, at least in part, by the purpose of serving the employer’s interest.


[These elements, particularly the words “wholly involved,” “substantially,” and “at least in part,” leave great room for judicial discretion.]

[Make distinction between direct (employer does something wrong) and vicarious (employee does something wrong and elements are met) negligence. Both can occur simultaneously.]

Front 79

Employer not, as a general rule, responsible for the torts of a _______ __________.

Back 79

general contractor

Front 80

Elements of apparent authority

Back 80

a. Representation
b. Reliance
c. Detrimental change of position

[Very similar to promissory estoppel.]

Front 81

Roessler v. Novak

Back 81

A principal may be held vicariously liable for an agent’s actions, if those actions occur within the scope of the agency.

Front 82

If you are not an employee you are an ___________ __________ and as a general rule the principal is...

Back 82

independent contractor

not responsible for you.

Front 83

When an employer may be found liable for a contractor's actions:

Back 83

a. Apparent authority
b. Non-delegable duty (snow removal in a mall is non-delegable)

Front 84

Brown v. Kendall

Back 84

A person will be liable for injuries caused by trespass only if his intent is unlawful or he is at fault.

(Judge made two errors: extraordinary care on the ∆ and burden of proof on the ∆.)

[This case moved tort law beyond the “trespass” v. “case” distinction. As the judge argues, somewhat disingenuously, there need not be a case at all if there is an injury. What is needed is force of arms and also negligence.]

Front 85

Adams v. Bullock

Back 85

A person must exercise reasonable care to avoid injury to others.

Here
1. The wire was very hard to reach
2. No like accident in past
3. Could not be insulated (facility of protection)
4. No violation of custom.

Front 86

U.S. v. Carroll Towing Co.

Back 86

Where probability of harm occurring = P, gravity of harm = L, and burden of prevention = B, where
B < PL
and B is not taken, there is negligence.
B < PL → Negligence

is a sliding scale: the more harmful or likely an event, the more necessary the burden of prevention.
Posner: the “entire clue” about negligence. Seen by Hand and Posner as more helpful as an analytical tool than a mathematical formula to be applied in every potential negligence situation.
“Not sane” to try to prevent every accident—only those accidents it is cost-justified to prevent.

Front 87

a. Bethel v. New York Transit Authority

Back 87

Under basic tort doctrine, a person must exercise the same degree of care as a reasonable person of ordinary prudence under all the circumstances of the particular case.
(In Bethel, one of the circumstances is that ∆ is a common carrier.)

Front 88

Reasonable person standard's double objectivity

Back 88

i. The thoughts of the person do not matter (you can be evil)
ii. We judge the conduct by the community standard (functionally the seven people in the box)

Front 89

Even if you cannot live up to the standard (are “born hasty and awkward”)...

Back 89

you are held up to it.

Front 90

If your abilities are superior to those of the reasonable person...

Back 90

you are held to a higher standard.

Front 91

_______, _______ and _________ get a “reasonable professional standard.”

Back 91

doctors, lawyers and engineers

Front 92

Reasonable care standard for children:

Back 92

The child’s particular abilities are determined, and it is asked whether they acted up to their potential. A child doing a thing that an adult does that is dangerous, i.e. driving, is held to an adult standard. Up to 7, a child is incapable of negligence but capable of intentional torts.

Front 93

People with distinct physical handicaps...

Back 93

are held to a separate standard (i.e. the reasonable blind person standard).

Front 94

Three reasons why custom is important

Back 94

1. Judgment & experience of many actors
2. Foreseeability
3. Feasibility

Front 95

Trimarco v. Klein

Back 95

A party is liable for negligence when a custom or accepted practice is coupled with proof that such custom or accepted practice was ignored and that this departure was the proximate cause of one’s injuries.

Front 96

Custom is “________ but not ___________.”

Back 96

relevant but not dispositive

Some things, some precautions are so important that even their universal disregard would not protect a defendant under the circumstances. Not dispositive.

Front 97

Martin v. Herzog

Back 97

An omission, or failure to perform an act required by statute, constitutes negligence per se. [Cardozo: it is “negligence itself.”]

Front 98

Negligence per se

Back 98

The reasonable person standard is replaced by the statute. The reasonable person standard is not considered.

Front 99

Tedla v. Ellman

Back 99

In a negligence suit, one does not always commit contributory negligence by failing to obey a statute. That is, this holding moves away from the harsh, per se statutory negligence of Cardozo.

Front 100

Considerations for statutory negligence. If the statute (breached) was passed for these reasons, statutory standard for negligence per se will be adopted:

Back 100

1. To protect the sort of person injured
2. To protect this particular interest from being invaded
3. From this kind of harm
4. To protect the interests against the particular hazard from which this harm resulted.

Front 101

Negri v. Stop and Shop

Back 101

Dismissal of a π’s negligence claim is inappropriate where there is some evidence in the record that can support the π’s claim. Here there was actual and constructive notice of the baby food on the floor.

Front 102

Gordon v. American Museum of Natural History

Back 102

Dismissal of a π’s negligence claim may be appropriate where there is no evidence in the record that can support the π’s claims.

Front 103

Actual and constructive notice

Back 103

1. Actual notice is what it sounds like (store owner saw baby food).
2. Constructive notice (store owner should have seen baby food, had been there for long enough).

Front 104

Two burdens of π's burden of proof

Back 104

a. of production (aimed at the judge); and
b. of persuasion (aimed at the jury).

Front 105

Two types of evidence:

Back 105

a. direct (if true, necessarily establishes the point for which it’s offered), and
b. circumstantial (different but not always weaker, in some circumstances stronger. Does not necessarily establish the point for which it’s offered.)

Front 106

Byrne v. Boadle

Back 106

If injury of a type that does not typically occur without negligence does occur, negligence is presumed from the mere fact of the occurrence.

Front 107

McDougald v. Perry

Back 107

The mere fact of an accident occurring may be sufficient to maintain a claim of negligence.

Front 108

Elements of Ril:

Back 108

a. Instrumentality causing the injury was under the exclusive control of the defendant.
b. The accident is one that under the ordinary course of events would not happen without negligence.

Front 109

Two ways Ril is used

Back 109

a. Burden of proof is overcome (get π over the hump)
b. (in some jurisdictions) presume negligence of ∆. (In these some jurisdictions, charge goes to ∆ as something to rebut or lose.)

Front 110

Ybarra v. Spangard

Back 110

Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may be held liable in an action based on res ipsa loquitur.

[Medical Ril. “Captain of the ship doctrine” holds the ∆s together. 1st element of Ril modified: ∆s need only the right to control instrumentality. 3rd element added: π not at fault. (This third element Robinette feels is implied in the other two.)]

Front 111

Ril was more frequently used...

Back 111

before modern methods of discovery.

Front 112

In medical malpractice, custom is...

Back 112

dispositive.

Front 113

Sheeley v. Memorial Hospital

Back 113

A physician has a duty to practice with the same degree of skill and diligence as other members of the profession in the same type of practice.

[Court draws a distinction between field and specialty of doctor.]

Front 114

Why an expert may be precluded:

Back 114

i. Qualifications
ii. Outdated knowledge (too long out of practice)
iii. Locality (used to be more important. “Same or similar locality” rule. Medical community moving toward a national standard.)

Front 115

Sides v. St. Anthony’s Medical Center

Back 115

The majority of courts permit expert medical testimony in medical malpractice based on theory of res ipsa loquitur.

Front 116

Original reason for informed consent:

Back 116

Surgery is invasive touching against which, unconsented to, people have a right. Noninvasive decisions require consent too.

Front 117

Even if a person is made better by an action taken without their informed consent...

Back 117

there can be a tort.

Front 118

Matthies v. Mastromonaco

Back 118

A physician must ordinarily obtain a patient’s informed consent before taking action.

Front 119

Different standards we could use for the informed consent doctrine:

Back 119

1. Subjective (what did this patient want?)
2. Objective (what would the reasonable person want?)
3. Reasonable doctor standard (inconsistent w/ autonomy standard? R thinks so.)

Front 120

Harper v. Herman

Back 120

An affirmative duty to act only arises where a special relationship exists between the parties.

Front 121

Misfeasance:

Back 121

For action, there is duty.

Front 122

Farwel v. Keaton

Back 122

Where a person attempts to aid someone in peril, or knows that someone is in peril and there is a special relationship between parties, affirmative duty arises to exercise reasonable care in rendering aid.

Front 123

Nonfeasance

Back 123

You do not have a duty to act. (For reasons of autonomy we do not usually require people to act.)

Front 124

Exceptions to nonfeasance no-duty rule:

Back 124

i. Common-carriers to passengers
ii. Innkeepers to guests
iii. Owners of land open to public to public
iv. People with others in their custody

Front 125

More exceptions to nonfeasance duty rule:

Back 125

i. Special relationship
ii. Undertaking (you have agreed to do something. Rescue is a kind of undertaking.)
iii. Statues (not negligence per se, where statute replaces reasonable person standard, but a duty created where there was not one before.)
iv. You created the peril
1. You caused the harm
2. You caused the risk

Front 126

Tarasoff v. Regents of the University of CA

Back 126

When a therapist learns that his patient intends to do harm to a third party, therapist has a duty to warn potential victim of danger. (Violence very hard to predict: that is a circumstance to take into account.) (No confidentiality, people might not seek therapists, might be false positives: apparently hasn’t been a problem, say statistics.)

Front 127

Physicians can be held liable to third parties...

Back 127

as in cases w/ communicable diseases. Not as likely as mental health pros.

Front 128

Lawyers and duty to third parties

Back 128

Lawyers have discretion to reveal or not reveal information to save someone’s life.

Front 129

Strauss v. Belle Realty Co.

Back 129

Courts must fix an orbit of duty which limits liability to manageable levels, even where this may exclude parties who would have been able to recover under traditional torts principles.

Front 130

Courts' willingness to engage in public policy:

Back 130

most will do it frankly. Legislating from the bench. This is a wild card.

Front 131

Dramshop liability

Back 131

Liability for serving alcohol to an intoxicated person.

Front 132

Social-host liability

Back 132

host of party serves alcohol, guest injures self or other. (IA and other states have backed away from this.)

Front 133

Duty allows whole categories of cases to be...

Back 133

exempted from negligence (removed from the “negligence regime”).

Front 134

Negligent intrustment:

Back 134

passing of thing to someone who should not have it.

Vince v. Wilson: “double dose of negligence.” You negligently let your child drive + your child hurts someone → child is negligent for harm and you are negligent for entrusting vehicle to child.

Front 135

Carter v. Kinney:

Back 135

A landowner does not owe a duty of care to protect a licensee from unknown dangerous conditions.

Front 136

Commonlaw status categories:

Back 136

1. Trespasser
a. no consent
b. no duty but not to cause willful harm
2. Licensee
a. consent
b. social guest
c. duty to warn of known dangers
d. you are treating them as you would treat yourself
3. Invitee
a. consent
b. pecuniary gain of landowner
c. open to public
d. reasonable care: known and unknown dangers

[CA eliminated all distinctions. IA and most states keep distinction between trespasser and licensee/invitee. < ½ of states keep these categories.]

Front 137

(Premises liability) if categorization is ambiguous between licensee and invitee, person will probably be categorized as...

Back 137

a licensee.

Front 138

Heins: exceptions to status categories and liability thereto (trepasser/licensee/invitee):

Back 138

1. Open and obvious danger
2. Attractive nuisance
3. Known trespassers

Front 139

Heins v. Webster County

Back 139

Under traditional invitee-licensee classification, landowner does not owe duty of care to warn a licensee of a known dangerous condition.

Front 140

Purpose of visit and premises liability

Back 140

Purpose of visit now one of things considered for breach. (Hospital, it makes little difference purpose of visit. Residence, you know someone is coming over.)

Front 141

(Premises liability) Significance of property:

Back 141

The highest standard owed by an owner of property to someone on their property is just the reasonable person standard. Only way property owner subject to SL is with damage to another’s property (Fletcher).

Front 142

Posecai v. Wal-Mart Stores, Inc.

Back 142

There are some cases where a landowner owes a duty to protect certain parties from criminal actions of third parties. Must be prior criminal acts of the same nature leading up to the act in question. (What about businesses in bad parts of town? Too burdensome?)

Front 143

1945 FTCA (Federal Tort Claims Act):

Back 143

If not involved in discretionary capacity, gov’t could be liable for tort.

Front 144

Charitable (eleemosynary) immunity:

Back 144

Probably all jurisdictions have done away w/ this.

Front 145

Intra-familial immunity

Back 145

Mostly done away w/ except parent-child in some cases.

Front 146

Riss v. CNY:

Back 146

Municipality ~ liable in tort for gov’t service’s failure to protect the public generally or to control criminal activity, despite state’s limited waiver of sovereign immunity.

Reasons:
a. There is not enough money to cover everyone.
b. Separation of powers argument: courts should not legislate. Dissent said they would be only giving the city a choice between prevention or payment of damages.

Front 147

Lauer v. CNY

Back 147

To find a municipality liable, must be duty owed directly to a particular person or class of persons, not only to public generally. There is no immunity and then there is no duty.

Front 148

Categories of action (municipality liability):

Back 148

a. Ministerial: clear rule. No immunity. (Should be some regulation or statute.)
b. Discretionary: requires judgment. Immunity

Front 149

Friedman v. State of NY

Back 149

Under doctrine of qualified immunity, state is immune from liability arising from planning decisions.

Front 150

3 Standards for state immunity:

Back 150

a. Qualified immunity standard: plain inadequacy (what must be plainly inadequate?) and there was no reasonable basis for state’s actions (essentially gross negligence standard).
b. Gross negligence standard
c. Immunity under some circumstances, not others.
d. Additionally, some states have cap for recovery.

Front 151

Physical harm cases focused on status of defendant. On what do emotional harm cases focus?

Back 151

The type of harm.

Front 152

Falzone v. Busch

Back 152

π may recover even if there was no impact. (zone of danger?)

Front 153

To recover for emotional damage:

Back 153

1. Resulting from physical injury (later only impact)
a. Exceptions:
i. Mishandling corpse
ii.Informing of false death
2. IIED
3. Zone of danger
4. Bystander trauma (Are these the elements for this?) (This is Portee v. Jaffee holding.)
a. Close relationship
b. Direct shock → ~learned later
c. Near scene of accident
d. Must be severe physical injury

Front 154

Metro-North Commuter Railroad Co. v. Buckley

Back 154

To recover under FELA, must actually sustain impact or be placed in risk of harm. Less flexible than Falzone. Didn’t help that Buckley was not sick.

Front 155

Gammon v. Osteopathic Hospital of Maine, Inc.

Back 155

π may recover for emotional distress reasonably foreseeably resulting from ∆’s negligence. Court later backed away from foreseeability standard.

Front 156

Stubbs v. City of Rochester

Back 156

Injury must be direct result of ∆’s negligence. ∆’s negligence need not be only cause.

Front 157

Zuchowicz

Back 157

If a negligent action increases the chance of a wrong occurring, and that wrong occurs, there is adequate support for a trier of fact to find cause.

Front 158

Daubert on experts:

Back 158

i. Testability
ii. Peer review/publication
iii. Known error rule
iv. Generally accepted

Front 159

Matsuyama

Back 159

Loss of chance doctrine: physician may be liable when his negligence diminishes π’s chance of survival

To prove causation for death, need to show preponderance (50.01%). Here, must show preponderance of evidence that chance was lost.

Front 160

Calculating damages for loss of chance of survival:

Back 160

i. Cost of π’s life
ii. % chance survival before negligence
iii. % chance survival after negligence
iv. ii – iii = x. Damages = x multiplied by i.

Front 161

In _____ ___ _______ liability, π can decide which ∆ to go after.

Back 161

joint and several

Front 162

If, in a joint & several liability jurisdiction, π goes after one ∆ (∆1) to the exclusion of the other (∆2), later...

Back 162

∆1 can go after ∆2 to recover what he paid over what he was responsible for.

Front 163

Elements of join & several liability:

Back 163

1) ∆s come together to form the harm
a) either combine to form a single harm, or
b) act independently to form an individual injury
2) the injury is indivisible

Front 164

In _______ _________, each ∆ is only responsible for his or her share.

This may be unduly burdensome on...

Back 164

1) several liability

2) the plaintiff.

Front 165

When there are two ∆s, and one ∆ is insolvent, the other may be found to be only responsible for ________ ______.

Back 165

Economic damage. This is only "hard numbers" like lost wages. Pain and suffering are non-economic damages.

Front 166

If a court adopts the _________ ______, a ∆ who fails to meet the requirement may not be negligent at all.

Back 166

Threshold option. If the threshold is 20%, and ∆2 is only 10% liable, ∆2 is not liable at all.

Front 167

If the court adopts the _______________ approach, the percentage liability of the insolvent defendant is divided among the solvent parties who are at fault.

Back 167

Reapportionment.

Front 168

Alternative liability elements:

Back 168

1) π can't prove causation
2) both ∆s were negligent
3) all potential parties are joined
4) one of them was the cause.

Front 169

If the four elements of alternative liability are present, then...

Back 169

there is a shift in the burden of proof to the defendants. ∆s have to prove that they were not negligent.

Front 170

Elements of market share liability:

Back 170

1) signature injury
2) fungible product
3) accurate marketshare information

Front 171

Two different types of cause issues:

Back 171

1) Knowing the defendant and the harm, did ∆'s negligence cause it?

2) Knowing only the harm, what ∆ caused it?

Front 172

You do not get to proximate cause until after...

Back 172

you have determined there was duty, breach, cause in fact, and damages.

Front 173

____ limits liability categorically, _________ _____ limits liability on a case-by-case basis.

Back 173

1) Duty

2) Proximate cause

Front 174

Elements of proximate cause:

Back 174

1) something w/o which the event would not happen;
2) natural and continuous sequence between cause and effect
3) substantial factor
4) direct connection between them, without too many intervening causes
5) effects of cause not too attenuated

Front 175

Under this rule, a ∆ may be liable for all damages resulting from his negligence, even if the π suffers far greater injury than a normal person would.

Back 175

Eggshell plaintiff rule.

You take the plaintiff as you find him.

Front 176

Defense of the eggshell plaintiff rule:

∆ might not have known...
∆ did know....

Back 176

1) that this particular plaintiff was infirm
2) that infirm people exist

Front 177

In IIED, sensitivity is the basis for ________. In the eggshell plaintiff rule, it is the basis for _______.

Back 177

1) recovery
2) damages

Front 178

Three categories of proximate cause harms, and a plaintiff's chances for recovery under each:

Back 178

1) Unexpected extent of harm: π always recovers.
2) Unexpected type of harm: π usually does not recover.
3) Unexpected π: π never recovers.

Front 179

A ∆ is only liable for negligence if he had a ____ to π, and then ________, and if the resulting harm was ___________.

Back 179

1) duty
2) breached
3) foreseeable

Front 180

If all other elements are present, and a third party in a negligence case is an ___________ _____, then ∆ is liable.

Back 180

intervening cause

Front 181

Test for whether a third party is a superseding cause:

Back 181

1) he acts intentionally, and
2) the harm is not within the scope of the risk created by the ∆'s conduct.

Front 182

An actor's liability is limited to those harms that result...

Back 182

...from the risks that made the actor's conduct tortious.

Front 183

Policy: if a ∆ knew that a certain type of harm was likely to result from his negligence...

Back 183

...that ∆ might modify his behavior to avoid that type of harm.

Front 184

(EXAM) The same negligent harm might be both...

Back 184

...a type and an extent issue. See if you can make it from one into another.

Front 185

In a ____________ __________ jurisdiction, if π is only slightly responsible for her own injuries, π cannot recover.

Back 185

Contributory negligence

Front 186

In a ____________ __________, if π proves negligence, π recovers 100% of damages.

Back 186

Contributory negligence

Front 187

Exceptions ameliorating the harshness of contributory negligence:

Back 187

1) Greater degree of blame
2) Last clear chance
3) Safety statute
4) Jury nullification (unofficial exception)

Front 188

Greater degree of blame:

Back 188

if ∆ is guilty of reckless or willful misconduct, contributory negligence of π does not matter. (Only contrib. jurisdictions.)

Front 189

Last clear chance:

Back 189

where ∆ and π are both somewhat negligent, but ∆ had a chance at some moment to avoid the injury and did not, contrib. of π does not matter.

Front 190

Safety statute (contrib.):

Back 190

where a statute exists for the purpose of protecting some group against its own inability to protect itself (i.e. children), then contributory negligence may be held contrary to the whole point of the statute.

Front 191

Jury nullification:

Back 191

in a contrib. jurisdiction, where the jury knows the percentage negligence π needs to recover, jury finds π to have that percentage negligence despite actually thinking that π is more negligent.

Front 192

In a ___________ __________ jurisdiction, if π is 10% negligent, π recovers 10% damages.

Back 192

Comparative negligence

Front 193

(comp.) "Not as great as":

Back 193

π can recover only if his negligence is not as great as ∆'s. 50% negligence does not recover.

Front 194

(comp.) "No greater than":

Back 194

π can recover only if his negligence is no greater than ∆'s. π recovers for 50% negligence, but not 50.1%.

Front 195

Under the _________ rule, the jury is not told the necessary percentages of negligence π needs for recovery; under the ________ rule, they are.

Back 195

1) blindfold
2) sunshine

Front 196

Avoidable consequences:

Back 196

if π could have ameliorated the damages resulting from ∆'s negligence (e.g. by going to a hospital), but did not, π cannot recover for those damages that would have been prevented by his taking action.

Front 197

Anticipatory avoidable consequences:

Back 197

Motorcycle helmets and seatbelts fall into this category. Not after the accident, but does not affect the chances of getting into the accident.

Front 198

________ assumption of risk: signing a form.

Back 198

Explicit

Front 199

For explicit assumption of risk, K language must be...

Back 199

very clear.

Front 200

Three public policy considerations for explicit assumption of risk (if these are met, K might be against public policy):

Back 200

1) Performing service of great importance: something people need to have;
2) Bargaining power: a sophisticated organization with standard forms;
3) Marketing taste for risk: are we allowing π to choose her assumption of risk?

Front 201

Courts will very rarely allow signing away of _____ __________ and ____________.

Back 201

1) gross negligence
2) recklessness

Front 202

Recreational waivers will almost certainly...

Back 202

...be upheld.

Front 203

_________ __________ __ ____: where π knows of ∆'s negligence, but π assumes the risk anyway.

Back 203

Secondary assumption of risk

Front 204

π runs into a burning building to retrieve his hat

Back 204

Secondary unreasonable assumption of risk

Front 205

π runs into a burning building to retrieve his child

Back 205

Secondary reasonable assumption of risk

Front 206

Where a court preserves both contributory negligence and assumption of risk...

Back 206

...the first is objective, the second subjective.

Front 207

Most states fold __________ __ ____ into ___________ __________.

Back 207

1) assumption of risk
2) comparative negligence

Front 208

Statute as evidence of negligence:

Back 208

negligence per se.

Front 209

Statute as evidence against negligence:

Back 209

regulatory compliance defense. If there is a statute on point that describes how ∆ is supposed to act, and ∆ did act that way, this is some evidence that ∆ was not negligent. This is not dispositive.

Front 210

Express preemption:

Back 210

In statute, "this expressly prevents state tort suits." Rare.

There is something that congress wrote and we are interpreting that thing.

Front 211

Where there is no language in the statute to interpret, any preemption is ______.

Back 211

implied.

Front 212

Occupation of the field:

Back 212

federal legislation in a field leaves "no room" for state legislation, including tort suits.

Front 213

Two types of implied preemption by conflict:

Back 213

1) Impossibility, and
2) Obstacle

Front 214

Implied preemption by conflict: impossibility:

Back 214

it is not possible to comply with both state and federal regulations. Federal law says A; state law says ~A.

Front 215

Implied preemption by conflict: obstacle:

Back 215

state law stands as an obstacle to federal regulations.

Front 216

π cannot usually recover for ______ ________ ____; but there are exceptions.

Back 216

Purely economic harm (not resulting from physical harm); attorney or accountant negligently causes π to lose money.

Front 217

Three branches of products liability:

Back 217

1) Manufacturing defects
2) Design defects
3) Warning defects

Front 218

Where there is an aberrant product, different than specifications, and more dangerous than the other products for its aberrance, this is a _____________ ______.

Back 218

manufacturing defect.

Front 219

Where a manufacturing defect injures a consumer, the manufacturer is...

Back 219

...strictly liable.

Front 220

Where the entire line of a product is bad, this is a ______ ______.

Back 220

design defect.

Front 221

Which type of defect is the most common type of PL?

Back 221

Design defect.

Front 222

Three approaches to finding a design defect, and which is most common.

Back 222

1) Only do a consumer expectations test. Not common.
2) Only do a risk-utility test. Most common.
3) Do a staged test, from consumer expectations to risk-utility. Not common.

Front 223

In cases in which the everyday experience of a product's users permits a conclusion that the product's design violated minimum safety assumptions, this test is most appropriate.

Back 223

Consumer expectations.

Front 224

Conducting a risk-utility test for a design defect:

Back 224

Is there a reasonable alternative design? If not, there is no negligence, unless (rare) this is an extremely unsafe product.

Front 225

Product designer can get whipsawed where...

Back 225

...jurisdiction 1 requires y, which precludes x; and jurisdiction 2requires x, which precludes y.

Front 226

If a consumer is injured by an ultrahazardous product that is not beneficial, even if there is no RAD...

Back 226

...the manufacturer will pay.

Front 227

If a product is chosen for its specific design, even if that design makes it less safe than other products and there is an RAD...

Back 227

RAD test may fail. VW bus is example of this.

Front 228

Some designs will be defective if there is no _______ on the product.

Back 228

warning. Warnings therefore are a design issue as well.

Front 229

If there are safety statutes covering everything about a product and the product complies...

Back 229

...π's recovery is preempted in event of injury.

Front 230

Without proof of a specific defect, a defect will be assumed if the incident that harmed π...

Back 230

...1) was of a kind that ordinarily occurs as a result of a defect, and 2) was not, in this particular case, solely the result of causes other than the product defect existing at the time of sale.

Front 231

Iconic product that does not require a warning:

Back 231

alcohol. No need to warn that alcohol will cause inebriation.

Front 232

Too many warning labels might...

Back 232

reduce that chance that any warning is read. This is called label clutter.

Front 233

Is it the case that a badly designed product only needs a warning?

Back 233

No, but it used to be. If the product is sufficiently dangerous, no warning will exempt manufacturer from liability.

Front 234

Concerns for the content of a warning:

Back 234

1) Are the right dangers and their severity revealed by the warning? (Does not need to be encyclopedic.)
2) Is there a non-obvious danger? If so, π needs to be warned against it.

Front 235

Concerns for the format of a warning:

Back 235

1) is the warning conspicuous? May matter if it is in caps, or italic or bold.
2) Is the warning on the product itself? Probably more effective than the warning being in small font in a manual.
3) Are the most serious harms most conspicuously declared?

Front 236

This doctrine holds that a drug manufacturer only needs to warn the doctor about the dangers of a drug.

Back 236

Learned intermediary doctrine.

Front 237

Reasons for learned intermediary doctrine:

Back 237

1) Doctor has access to and relationship with patient.
2) Doctor has relevant knowledge to product.
3) Used to comport with old "doctor knows best" attitude.

Front 238

Under learned intermediary doctrine, only the ______ is liable for negligence.

Back 238

Doctor.

Front 239

Exceptions to learned intermediary doctrine:

Back 239

1) mass inoculations
2) Contraceptives
3) DTC (direct-to-consumer) advertising

Front 240

If an injury from a product is foreseeable, the manufacturer...

Back 240

...must warn against that injury.

Front 241

If a manufacturer learns after manufacture that there is a defect with the product, it may...

Back 241

...be required to warn consumers. Must be reasonable requirement. Part of consideration of reasonableness is ease of tracking down consumers.

Front 242

Manufacturers in some jurisdictions are required to know...

In some jurisdictions, manufacturer held liable anyway for...

Back 242

what an expert in the field of their product would know. Functionally, this standard just requires the manufacturer to keep up with information on the product. Similar to negligence.

...dangers they could not have foreseen.

Front 243

Comparative responsibility:

Back 243

this is to strict liability as comparative negligence is to negligence. The majority rule is that comparative responsibility applies to SL.

EXAM: same as assumption of risk and misuse.

Front 244

Assumption of risk (SL):

Back 244

complete defense to SL. In most jurisdiction, AR is wrapped up into comparative responsibility.

EXAM: same as comparative responsibility and misuse.

Front 245

"Misuse" (PL defense):

Back 245

Product not defective, but misused. In some states, separate defense, but is essentially comparative responsibility.

EXAM: same as assumption of risk and comparative responsibility.

Front 246

Statute of repose:

Back 246

You have 10 years after the manufacture of the product to sue. Therefore your statute can run and end before you are even injured.

Front 247

The goal of compensatory damages is to...

Back 247

...make the plaintiff whole.

Front 248

If π wins, π must get...

Back 248

...compensatory damages.

Front 249

Two subsections of economic compensatory damages:

Back 249

1) Medical costs
2) Lost wages

Front 250

Proving past medical costs in compensatory damages:

Back 250

Past medical bills. Easiest damages item to determine. ∆ can argue that they are unnecessary or unreasonably expensive (chiropractor).

Front 251

Proving past lost wages in compensatory damages:

Back 251

Easy for salaried employee, harder for underemployed or in jobs that get tips.

Front 252

Taxing lost wages for compensatory damages:

Back 252

damages not taxed. Some courts ignore the problem, some let jury decide, others require that only after-tax wages be proved.

Front 253

Future medical costs for compensatory damages:

Back 253

doctor in the box. Often inaccurate.

Front 254

Future lost wages for compensatory damages:

Back 254

average retirement age, testimony as to π's attitude toward job; cost of living increase (as you get older life gets more expensive); money must be discounted to present value, interest must be factored in. Some courts assume these things cancel each other out.

Front 255

Damages are usually not given periodically but by ____ ___.

Back 255

lump sum.

Periodic payments impossible @ common law, now can be done by trust.

Front 256

In determining noneconomic damages, how much guidance is usually given to juries?

Back 256

None.

Front 257

Most times, jurors determine damages __ ____. When asked what they would pay __ ____, the number is often doubled.

Back 257

1) ex post
2) ex ante

Front 258

Two elements for excessive jury award for pain & suffering:

Back 258

1) shocks the conscience
2) suggests passion or prejudice or corruption

Front 259

Per diem:

Back 259

π gets x dollars per day for y years.

Front 260

π's lawyer usually takes what % of award?

Back 260

30%

Some jurisdictions cap this

Front 261

What is a common cap for noneconomic damages?

Back 261

$200k

Sometimes jury told of cap, sometimes not.

Front 262

If ∆ can prove that π was killed instantly and did not feel anything...

Back 262

...no pain and suffering.

Front 263

In most jurisdictions, p&s is __________, hedonic damages are _________.

Back 263

1) subjective
2) objective

Front 264

Arguments against dividing pain and suffering:

Back 264

1) if done, damages will grow
2) it is already a legal fiction that pain & suffering can be compensated with money.
3) no real scale on which to weigh these things
4) money will not help insensate π
5) this would only punish ∆, which is purview of punitive damages
6) anything that could be compensated under rubric of hedonic damages could be covered under p&s, except in death cases.

Front 265

Two types of death cases with different damage structures:

Back 265

1) survival
2) wrongful death

Front 266

In survival cases, damages recovered for...
π must be...

Back 266

1) time before π died.
2) conscious, capable of feeling p&s.

Front 267

Wrongful death cases are aimed at compensating...
Most states have changed it so that...

Back 267

1) family of deceased.
2) emotional damages are recoverable.

Front 268

Under collateral source rule, if some source other than ∆ is paying for what would be covered by damages...

Applies to both...

Back 268

...this amount is not deducted from damages (unless, maybe, gift from ∆'s family).

...insurance and gratuitous gifts.

Front 269

If a plaintiff's injuries are covered by insurance, and he recovers damages for those same injuries, some of that money...

Back 269

...will probably go to the insurer.

Front 270

If a jury finds that a π deserves punitive damages, but does not want to grant them...

Back 270

...that jury can withhold those damages.

Front 271

Elements of when punies are appropriate:

Back 271

1) spirit of mischief or criminal indifference (dual and single intent)
2) ∆ conscious of danger
3) oppression, fraud and malice

Front 272

Two purposes of punitive damages:

Back 272

1) to punish and 2) to deter.

Front 273

Arguments against:

Back 273

1. Compensatory damages compensate enough
2. Punishment is criminal law issue
a. In crim trials, ∆ given more rights (beyond reasonable doubt)
3. In punitive damages, allowed to introduce evidence of ∆’s wealth (against this, can bifurcate trial. Ask in trial one if punitive damages should be awarded. Then, if yes, introduce wealth)
4. Deterrent effects may be marginal
5. Insurance won’t always cover punitive damages
6. ∆ might not be able to assert comparative negligence (not one to lose sleep over in dd cases)

Front 274

If a state chooses to allow punitive damages, it can set its own standard for them, but that standard...

Back 274

...is subject to constitutional regulations.

Front 275

Requirements of procedural due process:

Back 275

1) minimal jury instructions
a. cannot punish for out of state conduct
b. cannot punish for injuries to nonparties
2) Trial ct. review
3) App ct. review (de novo)

Front 276

Substantive due process elements (further restrictions on punitive damages):

Back 276

a. Reprehensibility of conduct
i. Physical harm vs economic
ii. Indifference or reckless disregard for health + safety of others
iii. Financial vulnerability of target of conduct
iv. Recidivism
v. Intentional malice or deceit, vs. mere accident
b. Ratio between compensatory and punitive damages
i. 1:9 max
c. Comparison with other penalties, winnowed down to civil penalties

Front 277

1st party insurance pays who when what happens?

Back 277

The insured; an accident.

Front 278

Life insurance is an example of...

Back 278

...1st party insurance.

Front 279

PIP and Medpay are examples of...

They cover...

Back 279

1st party insurance.

Wage loss and medical bills, respectively.

Front 280

3rd party insurance covers whom for what?

Back 280

People injured by the insured for those negligent injuries.

Front 281

Minimum IA insurance:

Back 281

20/40/15

Front 282

UM/UIM and homeowners' policies are examples of...

Back 282

Policies that are both 1st and 3rd party insurance.

Front 283

(Insurance) Exceptions are often...

Back 283

...written into the contract.

Front 284

(Insurance) Servers of alcohol can have...

Back 284

...assault and battery covered.

Front 285

Injuries for which insurance comes into play must be...

Back 285

...accidental and sudden.

Front 286

You must have x on whatever you take out a policy for.

Back 286

An insurable interest.

Front 287

x cannot be insured, by contract sometimes, always by law.

Back 287

Punitive damages.

Front 288

Moral hazard:

Back 288

intentional acts cannot be insured against.

Front 289

Purpose of x is to avoid double recovery.

Back 289

Subrogation.

Front 290

x is an equitable adjustment of rights when the creditor is allowed to recover from two sources, one of which has primary legal responsibility.

Who is the primary, who the secondary source?

Back 290

Subrogation.

Tortfeasor; insurer.

Front 291

x is usually written into policies and courts will usually not, anymore, imply it.

Back 291

Subrogation.

Front 292

Insurance is to replace a ____, not a system on which to ____ _____.

Back 292

1) loss
2) make gains

Front 293

Pro subrogation: If money goes back to insurance co....

Back 293

...lower premiums for everyone.

Front 294

Old indemnity insurance:

Back 294

insurer would cover if insured had to pay.

Front 295

All states but __ have compulsory auto insurance.

Back 295

NH

Front 296

Under this rule or policy, an insurance co. gives 30 days after purchase of new vehicle for that to be covered under policy for previous vehicle.

Back 296

After-acquired vehicle.

Front 297

An insurance co.'s policies will not...

Back 297

overlap.

Front 298

Liability policy provides both of these.

Back 298

Duty to defend and duty to indemnify.

Front 299

An insurance co. can have, on a single issue, x and not y.

Back 299

Duty to defend
Duty to indemnify

Front 300

Once liability is restricted to non-coverage claim, an insurance lawyer...

Back 300

can walk away.

Front 301

If what is asked for for an accident is insurer’s limit, might...

Back 301

...gamble for a crazy jury, see if lower award is granted.

Front 302

(Insurance) Bad faith is the...

Back 302

...gross disregard of the insured’s needs (Negligence not enough. Evil too much.).

Front 303

Under workers' comp. employer liable for...

Back 303

any accident that occurs on their premises.

Front 304

Under workers' comp, the employee gets x but not y.

Back 304

1) Automatic small payment

2) The right to sue employer in negligence.

Front 305

Under worker's comp, employee does not get...

Back 305

100% of wage loss because would discourage going back to work.

Front 306

Under workers' comp, employee injured by machinery cannot x, but can maybe y.

Back 306

1) Sue employer

2) Sue manufacturer.

Front 307

Coming and going rule:

Back 307

workers' comp does not apply where you are coming to or going from work.

Front 308

Standard for workers' comp:

Back 308

Rising out of and in the course of employment.

Front 309

No-fault auto is like...

Back 309

...workers' comp for drivers.

Front 310

No-fault is a variety of x insurance.

Back 310

First party.

Front 311

Four types of no-fault:

Back 311

Pure: never sue in tort.
Add-on: just as normal, can have some no-fault.
Hybrid: allowed to sue in tort after you meet a certain threshold.
Choice: allows one to choose whether to be insured by tort of by no-fault.

Front 312

Two types of thresholds in hybrid no-fault:

Back 312

Verbal: you meet this, you recover. List of harms.
Monetary: certain money threshold. Always low.