Torts Extra Cards

Front 1

Statute of Limitations

Back 1

- accrues when an injury occurs.
- Generally says and requires you must make your claim in a specific amount of time, and the clock starts ticking when the injury is sustained.
- Vary in time and in cause of actions.
- We have statutes of limitations to punish those who sleep on their rights. S of L benefits the D. Out of fairness, it protects D from the responsibility of defending a stale claim. The practical reality is, somebody is not going to be able to recover because they slept on their rights. People who have been wronged will not be able to recover, the statute is firm.

Front 2

Statute of Limitations

Back 2

statute of limitations are statutes of repose designed to promote stability in the affairs of men and to avoid the uncertainties and burdens inherent in defending stale claims.

In those classes of cases where malpractice is asserted to have occurred through the negligent performance of surgical procedures, the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.

Used to be it accrues upon the infliction of the injury, now we follow the discovery doctrine under which the statute does not begin to run until the negligent injury is, or should have been discovered.

Front 3

S of L

Back 3

- what might influence the legislature’s decision on how long to make the statute of limitations? Public policy can take play to protect certain industries or professions such as doctors. We can make a generalization about when injury can be discovered. Also, the ability to investigate before bringing the lawsuit.
- S of L sets a time certain. It starts to run when the injury accrues. When the party is injured.
- Why would we have S of L to protect the tortfeasor? It makes it more fair to the D. punish people for sitting on their rights. The main rationale for S of L is that it is only fair to D that you prosecute your claim within a reasonable time period.
- How can a lawyer make an argument to disregard a law?
- The courts decided to embrace the discovery doctrine. The Discovery doctrine means that the statute does not run until the injury has been discovered or with reasonable diligence would have been discovered.
- Even if we adopt the discovery rule, we typically cap it still. In jurisdictions that adopt this rule, there is usually a cap on the time period in which you have to discover the injury.

Front 4

STATUTE OF REPOSE:

Back 4

- limitation period. Different from S of L because it starts to run when a service is provided or a product has been made available for sale.
- Trigger for S of L is injury. Trigger for statute of repose is when was the service provided or product available for sale.
- Vary from 5 to 20 years.
- Injury must occur within statute of repose period.
- Not all jurisdictions have statute of repose.
- What if you have both S of L and S of Repose.
- Product sold in 90, injury occurs in ’01. S of R precludes cause of action.
- For S of L must use due diligence in discovering injury. Courts are pretty tough on that aspect.

Front 5

Statute of Repose

Back 5

Notes starting on 617
- note 2. court decides nature of cause of action as it informs the parties of the correlating statute of limitations
- note 3- typically it starts to run when injury occurs unless they adopt discovery. The arguments made in favor of discovery rule may be made in other contexts as well.
- Note 7- Tolling. Statute is tolled when relates to children. It does not typically run until the child reaches age of majority. Typically, you want to file lawsuit as early as possible, so waiting isn’t best. You don’t have to, but you want to bring lawsuit as soon as you can. Also Tolled when someone overcome with an incapacity. Physical impairment preventing one from prosecuting the claim. Statute stops, and begins to run again once the incapacity is removed. Incarceration also considered an incapacity.
- Note 14- statute of repose.
- After a certain period, you no longer should have to worry about civil liability.
- S of L governs prosecution by P. if D is incapacitated, doesn’t matter.

Front 6

Non Delegable Duty

Back 6

- One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained, and who employs an independent contractor to maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in maintaining such instrumentalities as though the employer had himself done the work of maintenance.
- One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.

Front 7

Contributory Neg

Back 7

- less than or not as great as rule. Less than means that P recovers if percentage is less than D’s.
- Not greater than- P recovers as long as percentage is not greater than D’s.
- We compare to individual defendants and the 50 and 49% doesn’t apply. Don’t worry about percentages, we compare P’s percentage to D’s percentage. Less than- if P’s is less than D’s, P can recover.
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- bier has to pay half of the damages assuming the other guy is able to pay his half. He is jointly or severally liable. He pays half unless other guy can’t pay, then he has to pay full amount.
- The court is saying he is on the hook for the money. The P’s can go to either both tortfeasors or just one.