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175 Cards in this Set
- Front
- Back
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The Intentional Torts on a Person (4)
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Battery, Assault, False Imprisonment, IIED
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The Intentional Torts on Land/Property
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Trespass to Land; Trespass to Chattel; Conversion
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What is tort law?
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wrongs recognized by law as grounds for a lawsuit either because of intention or negligence.
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Motion to Dismiss/Demurrer
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even if all facts are tru; law says no liability.
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Motion for Summary Judgment
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given the undisputed facts, legal rule does not permit P to win.
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Striking Evidence
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evidence that is misleading, irrelevant, or pre-judicial
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Motion for a Directed Verdict
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if jury can reach no other conclusion; the proof offered by P is legally insufficient to warrant jury's verdict for P.
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Motion NOV
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renewal of the motion for a directed verdict. Evidence not legally sufficient.
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Motion for a New Trial
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error in procedure or application of the law is grounds for a new trial or appeal.
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Intent Requirement for Intentional Torts
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desire, substantial certainty
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Transferred Intent
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intent for one tort transfers to another (battery, assault, false imprisonment, trespass to land, trespass to chattel).
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Two types of transferred intent
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transferred to another victim; transferred from one tort to another.
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Mistake Doctrine
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Still liable if D intends one thing but due to mistake allows another.
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Insanity and Infancy
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not a defense; may not be liable but still responsible for damage done.
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Battery (def)
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Intentionally causing a harmful or offensive contact with the victim's person or something closely connected; accidental = negligence, no intent
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Battery - Intent
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definition does not require an intent to harm. It is only necessary that the defendant intend to cause either harmful or offensive contact.
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Parental Liability for Child's Torts?
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only liable if willful or wanton; usually the damages are capped (unless otherwise changed by statute).
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Battery -Causation
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The defendant's voluntary action must be the direct or indirect legal cause of the harmful or offensive contact. However, defendant need not herself actually contact the victim.
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Elements of Intentional Torts
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Act, Intent, Causation, Harm, Without Privaledge.
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Assault (def)
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Intentionally causing the victim's reasonable apprehension of immediate harmful or offensive contact.
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Assault - Intent
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desire or substantial certainty
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Assault - Apprehension
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victime must perceive, if not, no apprehemsion hence no assault, D must have "apparent" ability (actual ability not necessary).
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Assault - Imminent Harm/Offensive Contact
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must be immediate; word smay occasionally imply immanency.
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Assault - Reasonable Apprehension
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fear not necessary, must be reasonable, not actual or accurate. Would a reasonable person feel the apprehension?
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Assault - Conditional Assault
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assault conditioned on victim's noncompliance with unlawful demand.
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Assault/Battery - Source of Contact
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must not be from perpetrator
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False Imprisonment (def)
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Intentionally causing confinement or restraint of the victim within a bounded area.
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False Imprisonment - Bounded Area
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bound in all directions; (i.e.) physical barrier, force or threat of immediate force, omission to act when D has a duty (bringing back to shore), improper assertion of legal authority.
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Malicious Prosecution
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if confinement motivated by bad faith
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Abuse of Process
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improper use of compulsory processes (i.e. subpoenas) despite conforming to legal requirements, not false imprisonment but may be tort of abuse of process.
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False Imprisonment -Consciousness of Confinement
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victim MUST be aware of confinement at time of imprisonment. Harm caused may still be a cause of action though
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False Imprisonment - Minimum Time
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minimal time will suffice
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Trespass to Chattel (Trover) (def)
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When D intentionally intermeddles or interferes with the P's chattel causing harm.(Intentionally damaging the chattel, depriving the possessor of its use for substantial period of time, or totally dispossessing the chattel from the victim).
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Trespass to Chattel - Harm
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must be actual damage to property, significant deprivation or use, or dispossession.
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Trespass to Chattel - Intent
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Bad faith intention not required; must only include purpose to enter or substantial certainty that entry will take place.
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Conversion + Trespass to Chattel (big brother to Trespass to Chattel)
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when damage to personal property is sufficiently serious enough to justify a forced aale to the D; invasion to ownership
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Conversion (def)
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an intentional exercise of dominion and control over 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.
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Stolen Goods + Conversion
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still conversion to both seller and innocent buyer regardless of good faith and non-awareness that seller did not have "title" to even sell.
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Intentional Infliction of Emotional Distress IIED (def)
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Intentional or reckless engagement in extreme and outrageous conduct causing the victim severe wmotional distress.
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Four Elements of IIED
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Intent/Recklessness; Extreme and Outrageous Conduct; Causation; Severe Emotional Distress.
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IIED - Intent or Recklessness
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desire or sub. certainty; conscious disregard for the sub. risk of the harm.
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IIED - Transferred Intent?
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No transferred intent because the inent requirment is "broadened" to include recklessness.
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IIED - Extreme and Outrageous Conduct
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conduct that "exceeds all bound tolerated by a civilized society" (not rudeness or insults) Victim's vulnerability irrelevant
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IIED - Broadening the Scope of Extreme/Outrageous Conduct by including:
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innkeepers/common carriers; when D is aware of P's vulnerability; and racial/ethnic slur in workplace (abuse of authority).
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IIED - Causation
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did conduct cause distress? or could it have been caused by soemthing else?
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IIED - Severe Emotional Distress
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physical harm not always required; trauma must be enduring; may be proved by therapy, lost sleep, medical reports, stutter, etc.
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IIED - 3rd Parties Recovering for IIED
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third party distress awarded only when tort is proven and 1) close reletive to primary victim, 2) present at scene of primary victim's harm, 3) D knows close reletive is present.
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Trespass to Land (def)
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Intentionally entering or causing something to enter the land of another interfering with possessory interests.
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Trespass to Land - Elements
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Intent; Entry; P's Land;
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Trespass to Land - Intent
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desire or sub. certainty; good faith irrelevant; trespasser responsible for harm
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Trespass to Land - Entry
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entry must have substance (person, item, vehicle, pesticide), must be tangible; (odors, noise = nuisance)
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Trespass to Land - P's Land
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owner or tenant; one in possession, P's land constitutes area above and below.
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Trespass to Chattel - Intermeddling/Interfering
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damages, borrows, interferes
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Conversion - Intent
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desire or sub. certainty; good faith irrelevant
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Conversion - Dominion and Control
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Interference so severe D takes possession or control
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Conversion - Substantial Interference
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harm so severe it leads to sub. interference such as damage beyond repair, replacement, etc.
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The Seven Defenses to Intentional Torts
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1) self-defense, 2) defense of others, 3) shopkeeper's privalege, 4) defense of property, 5) recapture of chattel, 6) discipline defense, 7) defense of consent
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Intentional Torts - Self Defense (def)
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Rule: reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm.
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Intentional Torts - Self-Defense (reasonable belief)
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sincerely believe force is necessary (belief need not be correct.
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Intentional Torts - Self-Defense (immediate harm)
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threat must be immediate; may be obligation to retreat (in minority jurisdictions).
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Intentional Torts - Defense of Others (def)
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Rule: A person can use reasonable force to protect a third person from immediate unlawful physical harm (can interfere on behalf of a stranger)
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Intentional Torts - Defense of Others (limited privilege rule)
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the person may act only if the person they are defending was privileged to use force. "Standing in Their Shoes" (may reasonably believe third person is privileged RS).
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Intentional Torts - Defense/Recovery of Property (def)
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Rule: A person may use reasonable force to prevent a tort against their real or personal property. (mistake irrelevant - protect at own risk).
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Intentional Torts - Defense/Recovery of Property (reasonable force)
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Never Deadly Force/Excessive Force Unreasonable
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Intentional Torts - Defense/Recovery of Property (Defense of Habitation)
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only deadly forcejustified if intruder threatens occupant's safety.
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Intentional Torts - Defense/Recovery of Property (Recovering Personal Property) (def)
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Rule: A person may use reasonable force to recover property when in hot pursuit of the wrongdoer (person acts at own peril if mistaken).
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Intentional Torts - Defense/Recovery of Property (shopkeeper's privilege) (def)
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Rule: Merchants of stores may use reasonable force to detain a person for reasonable periods to investigate possible theft; generally allows reasonable mistake.
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Intentional Torts - Defense of Consent (def)
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Rule: consent is a defense when the asserted victim has given either implied or express permission
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Intentional Torts - Defense of Consent (implied consent)
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conduct not words imply consent to the risk; lack of objection, community custom (i.e. football game)
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Intentional Torts - Defense of Consent (express consent)
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verbalized acceptance; D must reasonably believe the expressed consent
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Intentional Torts - Defense of Consent (consent by law) (example)
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(i.e.) consent to emergency medical treatment when victim is unconscious.
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Intentional Torts - Defense of Consent (What invalidates consent?)
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1) incapacity (infant, child, insufficient mental capacity, drugs, alcohol), 2) actions beyond the scope of consent, 3) fraud (informed consent fraud/misrep), 4) duress, 5) ilegality
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Intentional Torts - Necessity Defense (def)
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Rule: D may interfere with the property interests of an innocent party in order to avoid a greater injury (public v. private necessity)
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Intentional Torts -Defense of Necessity (private necessity)
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D appropriates or injures a private property interest to protect a private interest valued greater (must compensate P for interference)
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Intentional Torts - Defense of Necessity (public necessity)
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D appropriates or injures a private property interest to protect the community (D does NOT need to compensate P).
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Intentional Torts -Defense of Discipline (def)
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Rule: Parents and Teachers may use reasonable force for discipline purposes; must not be excesive; must be for purpose of redirection or control.
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Negligence - Elements of prima facie case
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Duty, Standard of Care, Breach of Duty, Cause in Fact, Proximate/Legal Cause, Damages/Harm
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Negligence - Standards of Care
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1) Reasonably Prudent Person; 2) Reasonably Prudent Person Under Emergency, 3) Reasonably Prudent Person With Physical Disability, 4) Child Standard of Care, 5) Negligence Per Se Statutory Standard, 6) Professional Standard of Care
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Negligence - Standard of Care (def)
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the measure of the the duty owed by the D to the P
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Negligence - Standard of Care (reasonably prudent person)
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Reasonably prudent person in same or similar circumstances; community norms closely followed; basic knowledge reasonable person expected to know; ignorance irrelevant.
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Negligence - Standard of Care (reasonably prudent person under emergency situation)
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how a reasonable person in that situation would act (see emergency doctrine)
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Negligence - Standard of Care (reasonable prudent person under emergency situation) (Emergency Doctrine)
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Doctrine unavailable if D created the emergency. Altered standard of care allowed; D not expected to employ the same level of judgment and reflection as one not in the situation.
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Negligence - Standard of Care (reasonable prudent person with a physical disability)
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physical condition of D may be taken into account and the standard of care compred to a reasonable person with same disability (i.e. reasonably prudent blind person).
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Negligence - Standard of Care (What is an Emergency?)
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an event that requires a decision within an extremely short amount of time and that is sufficiently unusaul so that the actor may not readily draw on body of personal experience or knowledge as to which conduct is best.
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Negligence -Standard of Care (reasonable person with physical disability) Are all physical disabilities exonerated?
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No. Some require a greater standard of care (i.e. blind driving)
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Negligence - Standard of Care (Are those voluntarily intoxicated held to the same reasonable standard or is it considered a physical disability?)
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No. Held to same reasonable standard. Voluntary intoxication is no excuse.
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Negligence - Standard of Care (Are those with mental conditions held to the reasonable standard of care?)
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Yes. Insane held to sane standard.Exceptions made for "occasionally sudden mental disability"
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Negligence - Standard of Care (Are those with superior abilities or knoweldge held to a greater standard of care?)
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No. held to same standard; unless he may use in a manner reasonable under the circumstances.
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Negligence - Standard of Care for Children (def)
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Due to inability to possess and use judgment of adults, special standard to combine subjective(age,experience,intellect) + objective(other reasonable children)
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Negligence -Standard of Care for Children (Exception to Special Standard)
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1) Adult activity, 2) Inherently dangerous activity
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Negligence - Standard of Care (Negligence Per Se ) (def)
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provides that in certain situations a criminal statute (administrative/municipal ordinance) may be used to set the standard of care in a negligence case (still must prove other elements).
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Negligence - Standard of Care (Negligence Per Se) (If Court adopts statute as standard)
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the standard established by the statute replaces the negligence standard of reasonable person.
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Negligence - Standard of Care (Negligence Per Se) (If court DOES NOT adopt statute as standard of care)
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standard of care goes back to reasonable person.
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Negligence - Standard of Care (Negligence Per Se) (Are children held to the statutory standard of care?)
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No.Child standard of care still applies.
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Negligence - Standard of Care (Negligence Per Se) When is a statute used to serve as the standard of care?
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When the following can be shown: 1) P is in CLASS to be protected by the statute AND 2) the statute was enacted to protect against that TYPE of harm.
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Negligence - Standard of Care (Negligence Per Se) Excused Statutory Violations
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1) sudden emergency not of actor's making, 2) compliance would involve greater danger, 3) actor either knows or should know of need for diligence, 4) actor has incapacity rendering the violation reasonable, 5) after reasonable efforts to comply, D is still unable.
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Negligence - Standard of Care (Negligence Per Se) Is compliance with the statute always enough to show the D acted reasonably?
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No. It may be shown that beyond compliance with the statute, a reasonable person may have taken additional precautions under the circumstances.
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Negligence - Standard of Care (Professionals) (def)
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courts defer to the expertise of the profession to determine the appropriate standard of care; custom plays a determinative role est. the standard or care.
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Negligence - Standard of Care (Professionals) Est. Med-MalPractice
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P must show physician fell below the standard of care (customary, minimal competence)
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Negligence - Standard of Care (Professionals) What is the standard of care for medical professionals?
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The physician must possess the knowledge and skill common tot members of the profession in good standing; custom.
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Negligence - Standard of Care (Professionals) How do "alternative approaches" to medicine play a part in med-malpractice?
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as long as one of the "accepted approaches" is followed a doctor may avoid malpractice liability. Must be a respected, reputable approach (experts used to determine such)
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Negligence - Standard of Care (Professionals)How is the standard and custom of medical professionals established/determined?
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Expert witnesses must delineate the relevant medical custom; must have familiarity with applicable custom; similar localities, similar practice
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Negligence - Standard of Care (Professionals) The Common Knowledge Exception to Proving Breach in Medical Malpractice
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Negligence by the physician may be so egregious that laypersons may determine breach.
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Negligence - Standard of Care (Professionals) Asserting Res Ipsa to est. "Common Knowledge" Situations
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P will need expert testimony to est. that harm does not ordinarily occur absent negligence. (injury speaks for itself)
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Negligence - Standard of Care (Professionals) Informed Consent by Physicians
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Must provide necessary/pertinent information to patient
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Negligence - Standard of Care (Professionals) Informed Consent: The Physician's Rule
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allows the professional community to determine what risks should be divulged to patients. P must show that the customary practice of those Drs in good standing in relevant community would disclose the risk in question.
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Negligence - Standard of Care (Professionals) Informed Consent: The Patient's Rule
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(maj) requires the disclosure of ALL MATERIAL RISKS in treatment/procedure/recuperation/and alternatives. Materials info is that which may affect the patient's medical decisions.
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Negligence - Standard of Care (Professionals) Informed Consent: The Patent's Rule (How doe the P prevail?
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Must show: 1) non-disclosure of a material fact, 2) that had there been proper disclosure she would have rejected treatment, and 3) that the undisclosed adverse consequences did in fact occur.
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Negligence - Standard of Care (Professionals) Attorney Malpractice: Est. Duty
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attorney-client relationship
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Negligence - Standard of Care (Professionals) Attorney Malpractice: Est. Standard of Care
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CUSTOM sets the standard of care.
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Negligence - Standard of Care (Professionals) Attorney Malpractice: How does P prevail?
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P must show through expert testimony that if not for the sttorney's negligence, she would have prevailed in the action. Attorney's improper advisement or understanding of the law constitutes breach only if others in good standing would have not done so. Attorneys not liable for errors in judgement if made in good faith.
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Negligence - Breach of Duty (Est. Unreasonableness) How do we determine whether D acted unreasonable?
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B is less than PL D will have acted unreasonably when the burden of avoiding the harm is less that the probability of that harm occuring times the seriousness of the harm if it did occur (loss).
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Negligence - Breach of Duty (Est. Unreasonablness) B Burden
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the interest which must be sacrificed to avoid the risk.(cost associated with avoiding the harm, inconvenience, alternatives, feasability).
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Negligence - Breach of Duty (Est. Unreasonableness) P Probability
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likelihood that conduct will injure others (how foreseeable consequences are). If likelihood is minor, unlikely breach,
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Negligence - Breach of Duty (Est. Unreasonableness) L Magnitude of the Loss/Injury
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what a reasonable person would foresee as the likely harm (not actual harm) The more serious the potential injury, the smaller the probability of harm needed for liability.
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Negligence - Breach of Duty (Est. Unreasonablness) The Role of Customs
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well-defined and consistent way of performing a certain activity.
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Negligence - Breach of Duty (Est. Unreasonableness) P asserting that D deviated from custom...
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P must show that the harm suffered by P is the same harm the custom was developed to avoid. Custom must be widespread enough that D knew or should have known of it.
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Negligence - Breach of Duty (Est. Unreasonableness) D asserting compliance with custom as proof there was NO breach...
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Such compliance is admissible; however, does not establish D's due care (may still be liable under customary negligence - whole custom is unreasonable (i.e. driving over speed to keep with everyone else)).
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Negligence - Breach of Duty (Proving Breach of Duty) Who has the bruden of proof/
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P, by a preponderance of the evidence.
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Negligence - Breach of Duty (Proving Breach of Duty) How is breach proven? (3 ways)
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1) direct evidence 2) circumstantial evidence, 3) custom evidence.
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Negligence - Breach of Duty (Proving Breach by Direct Evidence)
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personal knowledge, observation, eyewitness.
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Negligence - Breach of Duty (Proving Breach by Circumstantial Evidence) (2 ways)
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1) Slip and Fall Cases, and 2) Res Ipsa Loquitur
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Negligence - Breach of Duty (Proving Breach of Duty) Circumstantial: Slip and Fall
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P must show the condition existed long enough so that D should have discovered and remedied; permits inference of constructive notice.
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Negligence - Breach of Duty (Proving Breach of Duty) Circumstantial: Res Ipsa Loquitur
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"the thing speaks for itself" Applies only to proving breach of duty. Probably negligence; Probably the D; helps difficult cases get to the jury.
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Negligence - Breach of Duty (Proving Breach of Duty) Elements of Res Ipsa Loquitur
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1) this sort of thing typically doesn't happen absent negligence, 2) harm causing instrument in under D's control, and 3) P did not contribute to his own injuries.
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Negligence - Cause in Fact (def)
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the "actual cause" for the P's harm; usually an issue in negligence.
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Negligence - Cause in Fact (Two Tests)
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1) But-For Test, 2) Substantial Factor Test
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Negligence - Cause in Fact (But-For Test)
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But for D's breach/violation, P would not have suffered harm. Most prevalent test; P has burden by preponderance (more than 50% likely) D's conduct must be ONLY cause for harm.
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Negligence - Cause in Fact (Substantial Factor Test)
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Requires that D substantially contributed to P's injury; usually supplements but-for test; used when multiple causes.
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Negligence - Cause in Fact (Problems with Proving Causation) Multiple Ds
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but-for does not work; sub. factor required to show indivisible injury and multiple tortfeasors
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Negligence - Cause in Fact (Problems with Proving Causation) Alternative Liability Theory
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shifts burden of proof regarding Causation to D; D must prove they were not the culpable party (i.e. two hunters shoot at bush injuring a hidden person). If one cannot prove not culpable; both are joint and severally liable.
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Negligence - Cause in Fact (Problems with Proving Causation) Market Share Liability
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pertains to suppliers of defective products where P has hard time proving the items origination. Once P est. culpability in that manufacturer made the product, burden of proof on Ds to prove not culpable.
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Negligence - Cause in Fact (Problems with Proving Causation) Elements of Market Share Liability
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1) P must gather enough Ds to be a sub. share of the market, 2) P est. culpability to those D in that they made the product, 3) shift burden to Ds to prove not culpable, 4) if cannot prove, then the culpable markets are liable for their overall share of the market. (i.e. 10%, 50%, 40%)
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Negligence - Cause in Fact (Problems with Proving Causation) Loss of Chance/Opportunity & Medical Uncertainty
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may be asserted when P cannot show the malpractice more likely than not caused P's death. May help P recover.
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Negligence - Cause in Fact (Problems with Proving Causation) Reduction in the Chance of Survival
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may be sufficient evidence to allow jury to determine whether increased risk to patient was a sub. factor.
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Negligence - Cause in Fact (Problems with Proving Causation) Loss of Opportunity to Survive
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a cognizable damage for which the P may be compensated as by % the loss of opportunity was determined (i.e. 20% less chance of survival bc of drs malpractice (recover on 20% of damages).
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Joint and Several Liability (def)
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more than one tortfeasor; each of the several tortfeasors is fully liable for the entire damage.
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Joint and Several Liability - P's seeking of damages
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P cannot seek multiple damages; however can look to ANY tortfeasor for the entire amount.
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Joint and Several - Who's considered "joint tortfeasors"?
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two or more individual who either: 1) act in concert, 2) act independently to cause a single individual tortious injury, or 3) share responsibility for a tort bc of vicarious liability.
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Joint and Several Liability - Joint Tortfeasors - Acting in Concert (def)
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aid or encourage another to commit tort; criminal accessory; no need for one's aid or encouragement to be a "but-for" cause of the accident.
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Joint and Several Liability - Joint Tortfeasors - Independent Acts Causing Single Indivisible Injury
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tort that cannot be separately allocated to tortfeasor A or B; their independent actions caused one indivisible injury.
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Joint and Several Liability - Joint Tortfeasors - Vicarious Liability
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employers (may be liable if employees actions were within scope of employment); parents (limited to situations where children intentionally harm others or property.
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Causation - Proximate Cause - Three Main Areas of Proximate Cause
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1) unforeseen type of harm, 2) unforeseen extent of injury, 3) unforeseen manner in which harm came about.
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Causation - Proximate Cause - Unforeseen Type of Harm
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nature of risk was unforeseeable; (i.e. foreseeable harm was splash burn, not explosion when lid falls in molten liquid).
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Causation - Proximate Cause - Unforeseen Extent of Injury
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D argues P suffered greater harm than was anticipated (irrelevant) - thin skull; eggshell P; chalkbone rule - D takes P as he finds her.
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Causation - Proximate Cause - Unforeseen Extent of Injury - Eggshell Rule
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D takes P as he finds her; D takes risks of possible pre-dispositions, weaknesses, etc.
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Causation - Proximate Cause - Unforeseen Manner of Harm
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TYPE of harm was foreseeable; but not the MANNER in which it came about (i.e. intervening superceding forces)
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Causation - Proximate Cause - Unforeseen Manner of Harm - "Intervening Superceding Forces"
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such unforeseen forces if superceding preclude D's causation; must be highly unforeseeable and highly culpable (i.e. some passerby throwing match on oil spill)
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Causation - Proximate Cause - Unforseen Manner of Harm - Superceding Intervening Forces - What if force is negligent or faultless? Reckless or Intentional?
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Faultless/Negligent = not culpable enough to be superceding; Reckless/Intentinal = culpable enough to be superceding.
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Causation - Proximate Cause - Unforeseen Manner of Harm - Intervening Superceding Forces - What about medical malpractice?
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Always forseeable. (Therefore a D cannot blame Dr. for P's futher injuries as being a superceding cause).
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Causation - Proximate Cause - Requirements
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Conduct be ACTUAL cause; causal relationship must exist, cannot recover if injury is to remote or freakish to justify imposing liability, factual Q for jury, usually an issue in negligence, P's injury must be foreseeable consequence the D should have anticipated.
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Causation - Proximate Cause - Tests to Determine Proximate Cause
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1) Foreseeability Test, 2) egg-shell rule, 3) direct cause, 4) Restatement
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Causation - Proximate Cause - Tests to Determine Proximate Cause - Foreseeability Test
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whether the D should have reasonably foreseen as a risk if his conduct, the general consequences or type of harm. (Req. foreseeable result or type of harm AND no super. interv. forces).
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Causation - Proximate Cause - Tests to Determine Proximate Cause - EggShell Rule
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this test does not req. the extent of the injury to be foreseeable only the type (like foreseeability test).
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Causation - Proximate Cause - Tests to Determine Proximate Cause - Direct Cause
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direct cause precludes any intervening force, absence of intervening forces, this test alone is inadequate.
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Causation - Proximate Cause - Tests to Determine Proximate Cause - Restatement
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Conduct is the proximate cause if: 1) conduct is sub. factor in bringing about har, AND 2) no law relieving the actor of liability bc of manner in which neg. resulted in harm.
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Causation - Proximate Cause - Unforeseen Manner of Harm - Superceding Interveing Forces - What makes a force superceding?
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new forces that join D's conduct; highly improbable and unlikely; no reasonable connection to D's conduct.
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Negligence - Defenses - What are the defenses to negligence?
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contributory, comparative, and assumption of the risk
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Negligence - Defenses - Contributory Negligence modern
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complete defense; rar; converted to comparative in most states.
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Negligence - Defenses - Contributory Negligence (def)
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conduct on the part of P that falls below the standard or conduct to which he should conform for his own protection and which is a legally contributing cause cooperating with the negligence of D in brining about P's harm.
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Negligence - Defenses - Contributory Negligence Requirements
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P's conduct must be cause in fact and proximate cause of accident resulting in P's own injury to free D of liability altogether.
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Negligence - Defenses - Anticipatory Mitigation
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victim has responsibility to mitigate injuries; D is only responsible for harm that could not be reasonably mitigated (i.e. bleeding nose, not death from P letting it bleed to death)
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Negligence - Defenses - Contributory Negligence - Limitations
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Not a defense to intentional torts; not a defense to wilful, wanton, or reckless conduct.
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Negligence - Defenses - Contributory Negligence - "Last Clear Chance" Doctrine
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purely based on chronology, not culpability; P's contributory negligence irrelevant if D, had he reacted with ordinary care, had the last clear chance to avoid accident. (generally rejected when juris. replaces contr. with comparative.
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Negligence - Defenses - Comparative Negligence (def)
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the conduct on the part of P which falls below the standard of conduct he should conform to for his own protection and which is legally contributing cause cooperating with the negligence of the D in bringing about P's harm.
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Negligence - Defenses - Comparative Negligence Results
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Partial bar to P's recovery; reduces it by the % of P's own responsibility.
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Negligence - Defenses - Comparative Negligence - Pure Comparative Approach
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P can recover some % from liable D regardless of the extent of their own negligence
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Negligence - Defenses - Comparatve Negligence - Modified Comparative Neg. Approach
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P can recovery partial until P reaches a certain % of culpability:
1)P's culpability >50% Approach = barred from recovery 2) 50% or greater Approach = barred when equal to or greater in culpability 3) "Slight" Comp. Neg. Approach (S. Dak only) = reovery only when P's contribution is slight; otherwise a complete bar. |
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Negligence - Defenses - Comparative Negligence - How is the % of fault determined?
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question of fact for trier of fact
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Negligence - Defenses - Comparative Negligence - How is liability allocated among joint tortfeasors? (trad)
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(rare, has mostly been replaced with CARA) Pro Rata Share - split evenly among tortfeasors
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Negligence - Defenses - Comparative Negligence - Liability Allocation Among Joint Tortfeasors (modern compar.)
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Liability divided by proportion of responsibility
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Negligence - Defenses - Comparative Negligence - "Allocation" "Covenants not to Sue"
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drftings the P embarks on that may release one tortfeasor from paying (i.e.settlement) w/o releasing others.
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Negligence - Defenses - Comparative Negligence - How does a settlement by one tortfeasor effect the liability of those remaining (maj. approach)?
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settling D's % of fault is deducted from the damages awarded to P regardless of the actual settlement amount from the D to P (i.e. P settles for 1000 from D, verdict rules a total of 10000 with D being 70% liable (7000). Now P has lost 6000).
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Negligence - Defenses - Comparative Negligence - Allocating Liability -Contribution
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When D is required to pay P more that her share, that D can seek contribution from the remaining co-tortfeasors ( intentional tortfeasors may not seek contribution).
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Negligence - Defenses - Comparative Negligence - Allocating Liability - Indemnification
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permitted when D is vicariously liable for another's negligence; "total reimbursement" from another tortfeasor when D is only "technically liable."
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