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13 Cards in this Set
- Front
- Back
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Res Ipsa Loquitur
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1. Type of accident doesn't happen w/o negligence
2. Def was under exclusive control of the situation 3. Pl did not contribute to the accident [4. Def in a better place to know what actually happened] Procedural effect: puts Def in "Def's Hell" and leaves a rebuttable presumption of negligence or negligence as a matter of law |
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Superceding events in PxC analysis
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Suicide
Crime (both used to be more superceding than they are now) |
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Intervening events in PxC analysis that are not superceding.
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Danger invites rescue
Natural causes (usually) Medical Malpractice |
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Subrogation Clause and Collateral Source Rule
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- Subrogation clause in a policy allows an insurance to claim a portion of Pl's damages.
- Collateral Source Rule: When a Pl gets money from elsewhere (altruism, insurance) that does not affect damages due to them. |
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What are the act elements of intentional torts?
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External manifestation of def's will or failure to act while under a duty to act.
*IIED: Extreme and outrageous conduct |
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What are the intent elements of intentional torts?
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Desire to cause consequences; Knowledge to a substantial certainty that consequences will result; *Transferred Intent.
*IIED: No transferred intent + Recklessness |
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What are the effect elements of intentional torts?
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Battery: Harmful contact, offensive contact (RPP)
Assault: Imminent apprehension of harmful contact False Imprisonment: Confinement that the Pl is aware of or affected by Trespass to land: Entry on land Trespass to chattels: Intermeddling with other's chattels [Conversion: Substantial interference with other's chattels] IIED: Severe Emotional Distress |
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Cause in fact for negligence
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def's failure was a substantial factor in the harm done to the Pl.
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Daubert evidenciary rules
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[Federal Ct.] Rejected Frye method for scientific testimony and asks,
1. Is it knowledge that can be tested? 2. Has it been subjected to peer review/published? 3. What is the known error rate? 4. Has it achieved general acceptance? |
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Summers v. Tice execption
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Usually need better than 50% chance that tortfeasor was the cause in fact. Two shooters, "one" indivisible injury, both liable.
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Market share liability (DES)
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Hard to establish, only when defs acting in similarly negligent ways, goods are fungible and a small number of defs (DES=6, 200 is too many) make up a majority of the market share.
Damages calucated weird. - 90% market share - Pl can only recover max 90% of damages - Def1 has 5% mkt share, Def1 pays 5% of total damages - Defs can exculpate |
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General damages (non-economic)
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- Mental/physical pain, past/future (includes loss of enjoyment of life)
- Permanent disability/disfigurement |
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Special damages (economic)
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- Medical expenses, past/future
- Loss of earning/earning capacity |
