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91 Cards in this Set
- Front
- Back
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"Res Ipsa" -- Plaintiff must establish 2 requirements.
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1) accident is one that would not ordinarily occur without negligence; the harm-causing event was due to negligence.
2)instrumentality causing injury was under exclusive control of D. |
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"Res Ipsa" -- 2 views on instrumentality.
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1)Restatement -- exclusive control is not essentail -- P must prove D is probably the responsible party.
2)Majority -- enough id P can show others were probably not responsible. |
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"Res Ipsa" -- Burden of Proof
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shifts to D and D must prove was not negligent.
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"Res Ipsa" requires more than proof of breach...
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harm causing event must be tied to D and one that does not occur absent negligence
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"Res Ipsa" in medical malpractice
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must be glaring...such as leaving intruments inside patient.
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3 possible effects of "Res Ipsa"
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1)Majority -- once P has "Res Ipsa", the jury may elect to infer D was unreasonable.
2)Raises a presumption of negligence which requires jury to find negligence if D does not produce evidence sufficient to rebut 3)shifts the ultimate burden to D and requires him to prove by preponderance of all the evidence that injury was not cause by his negligence. |
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What does "Res Ipsa" do to D in case?
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It gets the case to jury but D can still prove he was not.
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Causation in Fact (definition)
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proof that D's culpable conduct or activity was the actual cause of P's injury.
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2 test for Causation
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1)"but for"
2)"substantial factor" |
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"but for" test
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P must establish "but for" d's culpable conduct, P would not have been injured.
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substantial factor test
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requires that D materially contributed to P's injury --> SUPPLEMENTS the but for test; when but for test is redundant
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substantial factor test - example
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A starts fire on right side of B's house and C starts fire on left side of B's house and the fires come toeghet to engulf the house THEN neither fire is the "but for" cause.
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"Chance of Living" use which causation test?
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substantial factor test:used to be but for "dr. conduct, P would have survived" NOW "was dr's conduct a material contribution to the death?"
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CAUSATION
Lost Chance of Survival |
used when cannot prove there is substantial factor. SOME courts may find if Dr. reduces chance of survival by %10 percent NOT substantial factor but then may look to the value of 10% of P life has to family economically, etc.
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CAUSATION
Lost Chance of Survival "if chance of survival doesn't reduce THEN...." |
NO causation even if negligence present.
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EXPERT TESTIMONY
2 types |
1)Good science
2)Generally accepted science |
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EXPERT TESTIMONY
Generally accepted science |
expert testimony has to be based on sufficient facts and a product of reliable principles and methods.
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EXPERT TESTIMONY
Good Science (Dobert Standard) 4 factors |
judge makes preliminary assessment whether testimony is scientifically valid.
1)whether theory has been or can be tested 2)if theory was subjected to peer review and publication 3) If there was a known or potential error rate 4)whether it is accepted in the scientific community |
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CONCURRENT LIABILITY
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burden shift to D to prove that he was not the actual cause because P has problems determining which D caused harm.
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CONCURRENT LIABILITY
Summer's Case |
no one knew who fired the shot so court said even though they were independant tortfeasors P should be able to recover --> burden goes to D to prove it wasn't their shot that killed.
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CONCURRENT LIABILITY
Enterprise Liability |
small number of Ds who are engaged in substnatial, simultaneous, culpable conduct. P must prove culpable conduct then D has to prove it wasn't them.
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CONCURRENT LIABILITY
Market Share Liability |
involves manufacturers who all produced harmful product. P must establish culpability (that menufacturers made and manufactured) D now has burden and if cannot prove not liable then must pay percent of damages as to market share.
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PROXIMATE AND LEGAL CAUSE
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courts will preclude liability when the causal relationship is too remote.
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PROXIMATE AND LEGAL CAUSE
4 Factors in determining whether proximate cause is established. |
1) foreseeability of injury
2)intervening actors 3)acts of god 4)general social and economic policy goals |
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PROXIMATE AND LEGAL CAUSE
Foreseeability |
whether D should have reasonably foreseen, as risk of his conduct, the general consequences or type of harm suffered by P
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PROXIMATE AND LEGAL CAUSE
D is relieved from liability even if the result was foreseeable IF.... |
there is a superceding intervening force. Must be extraordinary under the circumstances
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PROXIMATE AND LEGAL CAUSE
Egg-shell |
Extent of the harm is not necessary to prove but rather just that harm was foreseeable.
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PROXIMATE AND LEGAL CAUSE
2 factors when determining damages with regard to condition of P |
1) life expectancy and prospective health of P are taken into account when measuring damages
2)Courts SPLIT as to whether psychological sensitivity is covered under egg-shell rule |
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PROXIMATE AND LEGAL CAUSE
Foreseeable Harm test requires (2) |
1)a reasonably foreseeable result or type of harm
2)no superceding intervening force |
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PROXIMATE AND LEGAL CAUSE
Direct Causation Test |
liability where there is no intervening cause between the negligent act and the injury. Looking for natural flow
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PROXIMATE AND LEGAL CAUSE
Direct Causation Test Example |
Guy drops the board that starts the spark that starts fire on ship. It is NOT foreseeable but we have proximate cause under direct test --- there were no intervening causes between the action of the guy dropping board and spark igniting.
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PROXIMATE AND LEGAL CAUSE
Palgraf Test -- CARDOZO |
unforeseeable P or the "zone of danger" .... woman injured at train station was too far from zone of danger
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PROXIMATE AND LEGAL CAUSE
Palgraf Test -- Andrew's dissent |
where there is unreasonable act and some right might be affected, there is negligence. Proximate cause if a question of public policy, fairness, and justice
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PROXIMATE AND LEGAL CAUSE
Palgraf Test -- Andrew's dissent 7 factors |
1)natural and continuous sequence of events
2)was one act a substantial factor in causing the other 3)look for direct connection between the act without too many intervening causes 4)whether the effect of the cause is too distant 5)the cause, in the usual judgment of mankind, to produce the result. 6)whether the result could be foreseen 7)whether result was too remote in time and space. |
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PROXIMATE AND LEGAL CAUSE
Intervening Causes |
a new force that joins with the defendants conduct to create P injury. This happens after D has already committed negligence.
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PROXIMATE AND LEGAL CAUSE
General Rule: ...intervening causes DO or DO NOT break the chain? unless... |
DO NOT unless there is a superseding cause.
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PROXIMATE AND LEGAL CAUSE
Dedearian Case |
guy having seizure was an intervening cause because it was proximate BUT wasn't superseding because type of injury is foreseen at that type of worksite.
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PROXIMATE AND LEGAL CAUSE
Superseding Cause |
BREAK chain of causation..."so highly improbable and extraordinary an occurance as to bear no reasonable connection to the harm threatned."
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PROXIMATE AND LEGAL CAUSE
Superseding if: (3) |
1)independant of the original negligent act
2)adequate by themselves to bring about unjury 3)not reasonably foreseeable |
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PROXIMATE AND LEGAL CAUSE
Superseding Causes 3rd Party Criminal Acts Minority?? |
if it is foreseeable then you can be liable. e.i. if B intentially drops lit match into gas puddle --> superseding because arson
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PROXIMATE AND LEGAL CAUSE
Superseding Causes 3rd Party Criminal Acts Suicide?? |
superseding UNLESS victim is acting under irresistable impulse resulting from D's negligence
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PROXIMATE AND LEGAL CAUSE
Superseding Causes Automobile Accidents and medical mal??? |
NOT superseding
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PROXIMATE AND LEGAL CAUSE
Omnibus Clause |
auto insurance policy clause that provides coverage no matter who is driving car
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PROXIMATE AND LEGAL CAUSE
The Both Ways Test |
If A is vicariously liable for the acts of B then B's contributory negligence is imputed to A for the purposes of limiting or preventing A's recvery of damages against 3rd party tortfeasor
EXAMPLE -->if A is a parent and B is child. If B negligently injures someone then A is liable under this test. |
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PROXIMATE AND LEGAL CAUSE
Rescue Doctrine |
allows injured rescuer to sue party which caused danger that required the rescue in first place.
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PROXIMATE AND LEGAL CAUSE
Rescue Doctrine Recuer cannot recover if...AND must act with....? |
acts rashly or recklessly ....reasonable care
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PROXIMATE AND LEGAL CAUSE
Rescue Doctrine Still have to establish ??? |
Proximate Cause --> foreseeable that the action could happen as result of D's negligence.
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PROXIMATE AND LEGAL CAUSE
Rescue Doctrine Firefighter Rule |
firefighters or any public service will not be compensated under rescue doctrine because they are already compensated for their work.
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PROXIMATE AND LEGAL CAUSE
Dram Shop Act |
liable for serving alcohol to people who are later injured as a result of alcohol extends to commerical setting.
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PROXIMATE AND LEGAL CAUSE
Dram Shop Act Blue Laws |
alcohol distrobution laws
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PROXIMATE AND LEGAL CAUSE
Dram Shop Act Negligent Entrustment |
someone lent his son a boat to go accross lake. providing dangerous insrumentality when he or she knows that person is not suited to handle it.
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PROXIMATE AND LEGAL CAUSE
Defects due to maternal drug intake |
this is public policy infavor of providing remedies for victims even though P is not directly exposed to drug.
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PROXIMATE AND LEGAL CAUSE
Defects due to maternal drug intake Example |
old pills taken for morning sickness where P's grandma took the drug and the mother was born with screwed up reproductive system. grandchild was born screwed up because grandma took the drug, CANNOT recover because injury to mother resulting in injury to child will not be enough to establish liabilty MOTHER AND GMOTHER have claims....grandchild does NOT.
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JOINT & SEVERAL LIABILITY
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When there are joint tortfeasors; better ensures P compensation; may lead to disproportionate liability on "deep pocket" defendant.
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JOINT & SEVERAL LIABILITY
Joint Tortfeasors 2 or more individuals who: (3) |
1)act in concert to commit tort; aid or encourage another to commit tort. (example -- when two people racing cars and only one hit; both liable)
2)act independently but cause single indivisible tortious injury. (example -- a car accident where two cars hit one; no ones knows which one hit first; both are liable) 3)Share responsibility because of vicarious liability (when employer may be responsible for actions of employee -- some states hold parents responsible for children intentional harm) |
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JOINT & SEVERAL LIABILITY
Joint Tortfeasors "Respondeat Superior" |
When employer is vicariously liable for action by employee. Employee must be acting in the scope of employment.
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JOINT & SEVERAL LIABILITY
Joint Tortfeasors Common Law |
Each tortfeasor jointly and severally liable for the P's total damages
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JOINT & SEVERAL LIABILITY
Joint Tortfeasors If D-1 cannot pay then.... |
D-2 must pay the entire amount.
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JOINT & SEVERAL LIABILITY
Technically Defined |
"Joint" means that each of the "several" tortfeasors is fully liable for the entire damage.
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JOINT & SEVERAL LIABILITY
"Once one of the 'several' defendant's pays in full then...." |
P cannot collect from any other of the defendants.
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JOINT & SEVERAL LIABILITY
Comparative Fault |
Several liability that is NOT joint
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JOINT & SEVERAL LIABILITY
Comparative Fault 2 types |
1)Pro-Rata Share
2)Modern Comparative Fault |
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JOINT & SEVERAL LIABILITY
Comparative Fault Pro-Rata Share |
Each tortfeasor pays their portion. e.g. 3 TF's each pay a 3rd no matter how responsible they are. REPLACE IN MOST STATES
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JOINT & SEVERAL LIABILITY
Comparative Fault Modern Comparative Fault |
MOST STATES -- when liability is divided by the % of responibility each tortfeasor bears the plaintiff.
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JOINT & SEVERAL LIABILITY
Comparative Fault Modern Comparative Fault "Who determines the proportion that each TF owes?" |
THE FACT FINDER -- Judge (bench trial) ; Jury (otherwise)
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JOINT & SEVERAL LIABILITY
Comparative Fault Modern Comparative Fault "If no reform statute has been adopted then..." |
Joint liability still applies. Meaning if A unable to pay her percent then B and C will split A's share, so P gets 100 percent.
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JOINT & SEVERAL LIABILITY
Comparative Fault Modern Comparative Fault "If plaintiff at fault then |
her percentage is taken away and may also bear the burden of a D that cannot pay.
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JOINT & SEVERAL LIABILITY
Comparative Fault Plaintiff likes? Defendant likes? |
P likes joint and several because they will always collect full amount
D like comparative because this way they will only have to pay their share. |
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JOINT & SEVERAL LIABILITY
Satisfaction & Release "Satisfaction is when..." |
whenever you have a receipt of full compensation for an injury and it also extinguishes the claim against all potential TFs
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JOINT & SEVERAL LIABILITY
Satisfaction & Release "Release is when..." |
P surrenders his claim against 1 or more of the TFs but can still have a viable claim against the remainder of TFs
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JOINT & SEVERAL LIABILITY
Satisfaction & Release "Release Doctrine Majority View" |
only releases one TF (a settling D) and after settling that TF is no longer involved,
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JOINT & SEVERAL LIABILITY
Satisfaction & Release "Release of one of the TFs will have 1 of 2 effects -- what are the 2 effects?" |
1)allows settling D's payment to be deducted from total damages (puts pressure on D's to settle because they may end up paying less if in the end their share would have been more)
2)allows settling D % of fault subtracted from total damages regardless of the actual payment. (this puts P at risk of losing a good portion) |
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JOINT & SEVERAL LIABILITY
Satisfaction & Release Mary Carter Agreements |
private agreements between the plaintiff and defendant that state that D will remain in litigation despite having secretly having agreed to settle w P.
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JOINT & SEVERAL LIABILITY
Satisfaction & Release Mary Carter Agreements "2 things happen" |
1)P will deal with 1 of Ds and prmises to reduce his liability if he gets more than what he is hoping for.
2)P will make deal and with D to pay specified amount and if P wins amount P seeks -- P will return all or a portion back to D |
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JOINT & SEVERAL LIABILITY
Satisfaction & Release Mary Carter Agreements "Protections against (3)" |
1)agreements are made discoverable: the other D may ask on discovery if there were any MC agreements.
2)Jury is told what is going on = that one D has settled 3)the Mary Carter defendant gets put on stand during P's case and chief. |
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CONTRIBUTION & INDEMNITY
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occurs when P only fails 1 of multiple tortfeasors because under joint & several liability she can collect full damages from any single tortfeasor.
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CONTRIBUTION & INDEMNITY
Contribution |
partial reimbursement of a defendant from a 3rd party D who is also liable. These are not necessary parties
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CONTRIBUTION & INDEMNITY
Contribution "When does contribution apply?" |
When defendant pays more than he is supposed to.
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CONTRIBUTION & INDEMNITY
Contribution Example |
when B is held liable for $$, he would then request contribution from A for his percentage.
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CONTRIBUTION & INDEMNITY
Contribution "How do you establish you were overpaid?" |
1) establish what your share is
2) then show how much you over paid because other tortfeasors were not in action |
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CONTRIBUTION & INDEMNITY
Contribution "Procedurally, how do you establish contribution?" (2) |
1) implead another party
2) bring seperate suit after trial is over but before statute of frauds runs. |
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INDEMNIFICATION
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TOTAL REIMBURSEMENT --
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INDEMNIFICATION
"Can only occur when party seeking indemnification is..." |
not negligent of any acts and liability is shifted completely to a third party
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INDEMNIFICATION
Respondeat Superior |
Employee gets sued and pays but then goes after employer because he is acting within the scope of employment.
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CONTRIBUTION & INDEMNITY
Comparative Contribution |
allow courts flexibility to allocate precisely relative responsibility among tortfeasors rather than shifting all responsibility to one. HERE indemnification ONLY if vicariously liable.
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APPORTIONMENT OF DAMAGES
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when acts of tortfeasor 1 have to contribute to tortfeasor 2
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APPORTIONMENT OF DAMAGES
Example |
P on crutches as result of injury caused by D1. D2 argues that but for the P being on crutches, he could have gotten out of the way and therefore D1 contributed to D@ being found negligent.....COURT=if they allow --> D1 may be liable for D2 negligence.
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APPORTIONMENT OF DAMAGES
Doctor Negligence |
some districts say that D1 can be held liable for Dr. negligence because they put P under the knife.
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APPORTIONMENT OF DAMAGES
Maddux Principle |
where negligence of 2 or more persons concur in producing a single, indivisible injury, then such persons are j&S liable, although there was no common duty, common design, or concert action. Burden shifts to Ds to prove they were not Negligent.
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Joint & Several Liability
Arguments FOR: (3) |
1) all Ds were part of the injuries sustained by P.
2)Ensures the innocent P is fully compensated 3)Moral appeal to it meaning that if someone did something wrong they should have to pay. |
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Joint & Several Liability
Arguments Against: (2) |
1)Tort Reform: General Idea that people are getting irritated that plaintiffs are recovering the $$ they are and just because a D is 10% negligent doesn't mean that they should have to pay 100%
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