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52 Cards in this Set

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  • Back
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US v Carroll Towing
Facts: no bargee on board
Rule: high risk = higher (reasonable) caution
Hand formula
Negri v Stop and Shop
Facts: slipped on baby food
Rule: plaintiffs met burden of production, case should not have been dismissed
Garratt v Dailey
Case: Dailey pulled the chair from Garratt
Rule: intent is to act with substantial certainty that contact will result
what is the differece between the SOR of matters of fact and of law?
Usually matters of fact are given deference usually matters of law are reviewed de novo.
can you get fact finding reversed on appeal?
only if you can convince the court that “the jury was crazy”
what does the "theory of the case" mean
how you combine the facts and the law that entitles the plaintiff to relief.
Vosburg v Putney
boy kicks boy in school
no "playground consent" agressor is liable for all damages following the action (take your plaintiff as you find him).
Picard v Barry Pontiac
Case: camera touching
Rule: "contact" includes touching things connected to the body
Wishnatsky V Huey
Case: wormy paralegal gets door slammed on him
Rule: bodily contact is "offensive" if it offends a reasonable sense of personal dignity--but not an unduly sensitive person
Lopez v Winchell's doughnut house
Case: false imprisonment
Rule: It is not enough to feel internally] "compelled" one must be compelled
Elements of false imprisonment
In a bounded area, by
Threats, force
what is a prima facie case?
one that should be heard by a jury (it looks like it has merit).
what does summary judgment mean?
no reasonable jury could have possibly found in favor of the plaintiff.
what is a "despositive fact"?
the fact tht really wins the case
case: picture used in molestation trial
rule: plaintiff can recover for emotional distress unaccompanied by physical injury
elements of IIED (intentional infliction of emotional distress)
substantially certain that distress will result
1. The person acts intentionally or recklessly
2. Acting with the specific purpose of inflicting emotional distress
3. Offends generally accepted standards of decency and morality
4. The relationship between the action and the distress is causal
5. Emotional distress is severe
can recover in some cases:
what is a "parasitic damage"? example?
a claim that is usually only valid if it accompanies another claim. "Emotional distress" is usually a "parasitic damage"
what's the bright line that keeps every ED action from going to court?
Courvoisier v. Raymond
case: shot police officer in civilian clothes during mob riot.
Rule: may use force to protect against battery--deadly force when potential battery is deadly
Hart v. Geysel
Case: prize fight death
Rule: consent to a particular invasion is not recoverable
Hackbart v Bengals
case: intentional striking during timeout
rule: general customs of football fo not permit this invasion
Barbara A v John G
Impregnating plaintiff went beyond the scope of her consent
O'Brien v Cunard
case: she got off the boat and got the shot
Rule: objective reasonable person standard--not subjective "what I meant" standard
Katko v Briney
case: Spring gun
rule: An owner may not hazard human safety unless it is in self defense--that is unless an assault has been established
Roessler v Novak
case: independent physician malpractices in a hospital
Rule: a hospital may be held vicariously liable if physicians act with the apparent authority of the hospital
What is apparent authority?
authority that is permitted or implied by words or actions
what 3 ways can authority be granted?
1. Expressly (real estate agent, etc.)
2. Implicitly (lawyers, etc.)
3. Apparently (independent physicians in hospital)
what is the difference between "trespass" and "trespass on the case"
one is direct interference with bodily security
the other is indirect interference
Custom is a shortcut to determining what?
what three levels can the plaintiff show before trial? and what do they do to the BOP?
1. Conclusive proof: Plaintiff wins. Case is over.

2. Rebuttable presumption: BOP to defendant

3. Some evidence: (gets it past SJ--creates a triable issue, still Pl. BOP)
is showing custom sufficient to win?
no--still must be reasonable. It is enough to show a triable issue, it automatically gets past SJ
what's the difference between BO production and BO persuasion?
one is before trial, one is during trial:
production: plaintiff must produce a triable issue to pass SJ
Persuasion: plaintiff must convince with preponderance of evidence at trial
what is strict liability
when we hold a defendant liable if if there was no negligence--when they are the ONLY cost avoiders
What's the plaintiffs burden in a res ipsa case when the defense offers counter explanations?
They must show that the counter explanations are not as likely as negligence
case: sues hospital and general physician after her episiotomy.
Rule: Expert witness standard should move from strict locality to similar locality
what's the difference between a functional and a formalistic interpretation of a precedent?
spirit v letter
pokora v goodman
standards v rules
circumstantial v evolving
negligence precedents can always be traced back to what?
a general rationale of foreseeable reasonable care.
what is the effect of the "States" case?
You shouldn't just be able to throw your res ipsa claim at the jury and say, "nobody has any clue what happened. Was there negligence?"
An expert should at least be able to say whether it appears that there was negligence.
what is the significance of custom in medical malpractice suits?
custom is accepted as the reasonable standard of care.
Duty is a question of ...
Breech is a question of...
in what way are duty questions purely categorical?
does the def. have a duty to the kind of person pl. is. (barge hypothetical that causes flooding destroying houses)
is B>PL a question of duty or breach?
breach. to be decided by a jury after duty is established as a MOL.
4 synonyms for "reasonable"
not strict
Rowland criteria of special relationship
1. Foreseeability and causality
2. Moral blame
3. availability of insurance or alternative courses of conduct
4. Public policy considerations
cost avoiders who can reasonably forsee harm now have a duty by default
in determining reasonableness, what is the practical effect of moving from a "prior similar incidents" test to a "totality of the circumstances" test?
a jury would decide rather than a judge.
which means less SJ because there are more issues of genuine material fact
can breach questions ever be resolved as a matter of law?
yes, if there are sufficiently applicable prior similar incidents.
case: sued city for failing to protect from attacker who had threatened her
rule: judiciary doesn't tell the government how to act. BS--judiciary is always telling everyone how to act and how to allocate resources.
case: botched autopsy homocide charges
rule: not recoverable. There is a difference between ministerial and discretionary acts
what is negligence in the air?
when there may be negligence, but not toward an individual because there is no personal duty.
Case: severed leg in a bag
Rule: liable for foreseeable psychic injury