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14 Cards in this Set
- Front
- Back
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Why not Tort instead Workers Compensation?
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- Employer is under strict liability
- Prove less - Cant advantage from Respondeat Superior - Assumption of risk & contributory Neg. against P - Not easy to pin on employer - For employer there is typically less damages, the damages are predicted on chart, and the process is quicker. |
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Tort
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To commit a tort is to act in a manner that the law deems wrongful towards and injurious to another, such that the other gains a right to bring a lawsuit to obtain relief from the wrongdoer
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Three types of torts
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1. Negligence
2. Intentional 3. Causation 4. Injury/damages |
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Stari Decisis
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Let stand that which has already been decieded
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Respondent Supreior
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an employer is vicuriously resoponsible for an employee when they are on duty. But if Lovin shoots the victim he his not acting within the scope of the appointment. Prosecution only occurs under criminal law not tort law
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Tort v Crime
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1. There are different burdens of proof for criminal law. (beyond a reasonable doubt). Should be about 99% sure for reasonable doubt (figuratively). A perpondurance of evidence in Tort law.
2. In tort the burden of proof is on the plantiff- they have to show that more likely than not that there was a duty, a breach of that duty, causation, and injury or damage. Must prove by 50.0000001% for each individual element. 3. Penalty 4. Civil/ criminal court 5. Private law v. public law (only covernment sues for crime). |
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Negligence
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The ommision to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
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Balancing test
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if the risk of harm to another from D’s conduct is greater than the utility of that conduct, the risk is deemed unreasonable
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3 things rational D can do:
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6. Omit the risky activity
7. Invest in safety to reduce risk and liability 8. Insure against liability – this doesn’t decrease risk |
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Negligence prima facie case – Actor A is subject to liability to other person P for negligence if:
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9. P suffered injury
10. A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by 11. A breached that duty of care 12. A’s breach was an actual and proximate cause of P’s injury a. The duty element requires that a negligence plaintiff establish that the D owed her, or a class of persons including her, an obligation to take care not to cause the type of injury that she has suffered |
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14. Privity rule -
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A plaintiff who is injured by carelessness on the part of a product manufacturer may not recover in tort absent contractual privity between plaintiff and the manufacturer
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15. Rejection of Privity Rule
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– Cardozo expanded imminently dangerous product rule to apply to any product that was reasonably certain to place life and limb in peril when negligently made
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16. Imminently dangerous products -
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Thomas v. Winchester – accidental poisoning from mislabeled bottle of poison - holding permitted negligence suits without privity where personal injury arose from an imminently dangerous product
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17. Affirmative Duties to Rescue and Protect
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a. Failure to act in a situation where action probably would have prevented another’s injury
b. Misfeasance – an affirmative act which harms or endangers another c. Nonfeasance – a mere passive failure to take action a. Unless there is some special relationship (ex: D is a lifeguard and P is drowning) between the P and D, the D is not liable for his refusal to assist |
