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93 Cards in this Set

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  • Back
if the PI has a prima facia case, it should not be dismissed
constructive notice is that 1) a defect is visible 2) it exists for a sufficient length of time prior to the accident to be discovered and removed
where the accident itself is prima facia evidence of negligence, the defendent must prove facts to rebut the presumption
res ipsa when 1) the accident doesnt normally occur without negligence 2) teh defendant is in control of the circumstances
where a plaintiff receives unusual injuries while unconscious, all defendants who had any control over his body or the instrumentalities which might have caused his injuries may be called upon for an explanation of their conduct
Standard of Care in Medical Malpractice
usually established by an expert unless the lackof care is so obvious as to be within the layman's common knowledge
no strict liability for drivers with a known incapacitating condition
employee acting in scope of employment is usually a jury issue. There's a 3 prong test.
Brown V. Kendall
recovery requires proving fault,
that is, proving that the defendants conduct fell below reasonable care
Adams V. Bullock
ordinary caution does not involve forethought of extraordinary peril
Duty depends on
probability, gravity, and burden
relationships of dependancy is a circumstance. common carriers have to use reasonable care in the circumstances
get out and look for a train
reasonable care may make the rule inapplicable
when proof that the defendant was aware of a reasonable customary practice is coupled with a showing that it was ingored and that this departure was approximate cause of the accident, it may establish liability
when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care
Telda V. Ellman
circumstances may justify violating a statute
Martin V. Herzog
unexused statutory omissions are negligence per se
a physican should explain all reasonable courses of action to obtain a patients informed consent
privity is not an essential characteristic of duty (the car manufacturer
a boat owner hosting a social gathering doesn't have a duty to warn his guests
Farwell/ Section 324
1) when someone comes to the aid of another he is subject to the duty to take no action that would leave the victim worse off 2) friends spending time together socially are under the affirmative obligation to aid one another
Moch/ Strauss
public utility has no duty to those with whom it has no contractual obligation
Child abuse duty
every state requires those who have knowledge of child abuse to report it
once a therapist does or should determine that a patient poses a serious danger, he has a duty to exercise reasonable care to protect the foreseeable victim
a doctor who knows about a patient with HIV has a duty to reasonably protect foreseeable victims
Randi W.
an employer has the duty to foreseeable victims to use reasonable care in recummending a dangerous former employee
selling a car to an incompetent driver or finanacing a car for an incompetent driver gives rise to a duty to forseeable victims
a social host that supplies a minor with alcohol does not owe a duty of care to third persons
reasonable care to all lawful visitors
landowner categories, duty to: invitee: protect from known or reasonable discoverable dangers, licensee: protect from known dangers, trespasser: not willfully or wontonly harm, children: reasonable care to eliminate danger
landlord has a duty to reasonably mitigate risk to tenants
businesses have a duty to reasonably protect patrons from foreseeable criminal action
there is no parental immunity
a city is not liable for negligence due to the police failing to provide protection from an attacker who had previously threatened a woman on numerous occasions
a city may be liable for police failure if the city 1) assumes an affirmative duty through words or actions 2) knows that inaction could lead to harm 3) has had direct contact with the injured party 4) causes the party's justifiable reliance
schools owe a duty of care to make sure kids don't wander off and get hurt
city workers only owe a duty of care to the public regarding their ministerial functions
qualified immunity:
when the government decides to take remedial action, they may be liable for failing to act within a reasonable time
Federal Tort Claims Act
the federal government waives its general immunity but is not liable for interest or punitive damages
Duty: General Principle
Whenever one person is, by circumstances, placed in a such a position with regard to anotehr person that if he did not use ordinary care and skill in his own conduct he would cause danger of injury to the person, a duty arises to use ordinary care and skill to avoid such danger
Emontional distress: general principle
does the court believe that a severe emotional harm is more likely than not under the facts of the case
you may be able to recover for ED for a reasonable fear of immediate physical injury
zone of danger rule permits ED claims only when defendants conduct placed PL in immediate risk of harm--or symptoms of a disease
when plaintiff fears developing disease due to exposure, he must show that it is more likely than not that the disease will develop
the needle has to have the virus
porter V jaffe
PL may recover ED for witnessing the death or severe injury of a close relative but 1) plaintiff must have been close to the scene and witnessed it first hand 2) victim must be a close relative 3) injury must be severe.
Johnson V Jamaica Hospital
zone of danger rule was used to deny ED claim for kidnapping on the grounds that the parents were not the direct victims of the defendents negligence
some courts dont have ED tests, they just allow recovery wherever injury is a foreseeable consequence of defendent negligence
the plaintiff must prove cause in fact to a prepordenance of the evidence. this doesn't mean he must eliminate all other possible causes, just establish that the defendant conduct was more likely than not a substantial cause of the injury
if causation can not reasonably be proved with evidence, it may be inferred where the plaintiffs harm was one of the core risks created by the def. conduct
Daubert experts 4 points
1) has the theory been scientifically tested 2) has the theory been published and or reviewed 3) what is the potential rate of error 4) is the theory generally accepted?
Joint and several liability
holds each of mulitiple defendants liable for the whole of plaintiffs injury
Alternative liability
summers V. Tice: burden shifts to def. where either one of 2 negligent defendents could have caused the harm
where identification of the manufacturer of a fungible product is impossible (DEs) the several defendants may be held to market-share liability
Proximate cause, general principle
limits liability to certain harms based on fairness, common sense, and foreseeablility (harm within the risk)
Wagon mound
proximate cause is limited to foreseeability
foreseeablility does not limit proximate cause to eggshell plaintiffs
Unexpected manner
the exact sequence of events lending to an injury does not need to be foreseeable to hold a defendent liable so long as the actual harm caused was a foreseeable type of harm
a defendent is not liable to an unforeseeable plaintiff (whether by duty or PC analysis)
Cardozo in Palsgraf
the defendent only owes a duty to those in the foreseeable zone of danger
Andrews in Palsgraf
once someone acts negligently everyone injured by that negligence can recover because a duty to them has been breached
Contributory negligence
where Pl. conduct was the actual and proximate cause of Pl. injury, CN may be a total bar to recovery unless the def. had the "last clear chance" to avoid the Pl. injury
Comparative negligence
1) Pure: straight proportions
2) modified: P<50% = pure proportions
P>50% = total bar to recovery
(drunk driver "causes" medical negligence) a Pl. comparative negligence is irrelevant when assessing subsequent medical negligence
exculpatory agreements to not abrogate a business owner's duty to invitees to correct dangers which reasonably could have been foreseen and corrected
Murphy (Flopper)
you assume risks that are obvious and necessary
Assumption of risk is not a complete bar to recovery unless it is greater than the defendent's fault
Primary implied AOR
Plaintiff implicitly assumes inherent risks--Question is whether def. legal duty encompasses the risk or not--this speaks more to the prima facie case than to a defense
Secondary implied AOR
plaintiff knowingly assumes risk created by defendent's negligence
Strict Liablility
look at dangerousness, social usefulness, avoidability of harm, is the activity common and appropriate for the location
Indiana Harbor RR
RST: abnormally dangerous 1) determine whether it was teh inherent danger or negligence that was the problem 2) because the transport of hazardous chemicals is valuable to society and it can be done safely with proper precautions, it doesn't get strict liability
Rylands cases
if you have something "likely to do mischeif" you keep it at your peril
(blasting) if a landowner cannot use his land in a particular way without causing damage, he must either use his land some other way, or be held responsible for the damage
privity of contract is not required for a consumer to sue a manufacturer for a defective product
manufacturers are strictly liable for defective products based upon tort law rather than implied warranty in K law
1) manufacturer cannot insulate himself from liability by delegating the final inspection to a retailer 2) the retailer is strictly liable for defective products as well
S. Ct. extends products liability to bystanders
if the pl. can show that the defect was a substantial factor causing damages over and above those sustained in the collision, then the burden shifts to the def. to show which injuries the collision caused
Tests to determine "exsessive preventable danger"
1) risk/benefits: which outweighs 2) consumer expectations
Soule, consumer expectations test
can only be used where the evidence permits an inference that the product didn't meet the minimum safety expectations of its ordinary consumers
where the danger of a product is open and obvious the correct test is risk benefit, not consumer expectation
Brown V. Brune
no warning is required on a bottle of alcohol against the dangers of drinking
a manufacturer need not warn of every mishap or source of injury possible--the warning need only be reasonable
the heeding presumption
pictoral warnings may be required for those who don't speak English
"learned intermediary" rule
manufacturers of perscription drugs don't have a duty to warn because consumers have to get them through a doctor--the manufacturer must warn the doctor though
a manufacturer need only warn of risks that were reasonably foreseeable when the product was sold or that could have been discovered through testing prior to marketing
consumer has no duty to discover a defect, but negligence beyond a failure to discover is subject to comparative responsibility
Workers compensation
bars tort suits against employers
what a 3rd party's modification makes a safe product unsafe, the seller is relieved of product defect liability even if the modification was foreseeable
No strict product liability for a health-care provider who sells a bad knee
manufacturers have a duty to warn against foreseeable misuse and foreseeable alterations