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47 Cards in this Set
- Front
- Back
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Joint tortfeasors
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Liability and Joinder
Satisfaction and Release Contribution and Indemnity |
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Duty of Care
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Privity of K
Failure to Act Pure Economic Loss Emotional distress Unborn Children |
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Landowner & Premise Liability
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Off premises
On premises (Trespasser, Licensee, Invitee) Outside Category (children, privileged) Rejection/Merger of categories Lessor & Lessee |
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Damages
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Personal Injury
Physical Harm to Property Punitive Damages Wrongful Death Survivorship |
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Defenses
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SOL and Repose
Immunity (families, charities, govt, employer, US, public officers) |
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Vicarious Liability
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Respondeat Superior
Independent Contractors Enterprise Liability Bailments Imputed Contributory Negligence |
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Strict Liability
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Animals
Abnormally Dangerous Activity Limitations |
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Products Liability
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Theories of Recovery (negligence, warranty, 402A)
Product Defects (manufacture, design, warning) Proof Defenses (P conduct, preemption) Other suppliers Services Harm other than PI SL & Causation |
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Defamation
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Nature of Communication (pleading)
Slander and Libel Publication Basis of liability Actual Malice, BOP, Press Private P Private Speech Falsity Opinion Public Figures and Officials Privilege (absolute, conditional) |
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Misrepresentation
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Concealment/Nondisclosure
Basis of Liability (to recipient, to 3rd person) Reliance Opinion Law Damages |
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Heaven v Pender
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DUTY arises when one recognizes that ordinary care must be used under the circumstances to prevent the danger of injury to person or property of another
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Good Samaritan Statute
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A person who renders emergency car at the scene of an accident in good faith will not be liable for any personal injuries as a result of that persons acts or omissions
(ex: Dr giving assistance on the street, don't want to discourage) |
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Winterbottom v Wright
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Parties in a K are liable only to each other for breach
(Prior to Heaven v Pender) Must draw the line at privity of K to prevent the flood gates from opening |
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MacPherson v Buick
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There must be knowledge of a PROBABLE danger when used under normal circumstances and that the danger will be borne by others (hand formula)
"We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of K and nothing else. We have put the source of obligation where it out to be. We have put its source in the law (OF TORTS)" Overruled Winterbottom FORESEEABLE DANGER |
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HR Moch v Rensselaer Water
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If inaction is found to be misfeasance, there exists a relation out of which arises a duty to go forward.
Here failing to supply water was found to be a nonfeasance. MacPherson was an affirmative act of the manufacturer (different) |
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Tarasoff v Regents
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Dr-patient relationship creates duty to warn other and to inform patient of possible side effects that would make him lose control
Extended duty against preventing harm SPECIAL RELATIONSHIP |
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Robins Dry Dock v Flint
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No recovery for pure economic loss. There must also be damage to proprietary interest.
Clear Bright Line "THE LAW DOES NOT SPREAD ITS PROTECTION SO FAR" (Holmes) |
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Thing v La Chusa
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In order to get recovery for ED in witness death have to be
(1) closely related to victim (2) actually have seen accident and injury as it happened (3) experience ED beyond what normally would have felt if death were natural Dillon v Legg = foreseeability in time, space and relation Amaya = don't need physical impact but P must have been in zone of danger No longer strict impact rule |
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Rowland v Christian
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Licensee takes the premise as he finds them
LO Limitations Unnecessary OWE A GENERAL DUTY OF REASONABLE CARE in relation to management of property |
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State Farm v Campbell
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Constitutional Limitation on Punitive Damages
($145 million was unreasonable, unproportional, and arbitrary) 14th amend due process and legitimate purpose are restrictions |
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BMW v Gore
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Guidelines for reviewing punitive damages
(1) Reprehensibility (degree) (2) Ratio (harm, PD and compensatory) (3) Civil/criminal penalties in similar cases |
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Lord Campbell's Act
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In England, granted recovery to families for person killed by tortious conduct
In US, every state adopted wrongful death statute to allow compensation to be collected by beneficiary |
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Notice of Claim Statute
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additional time frame to meet concerning the limited waiver of sovereign immunity against govt
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Riss v NY
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Absent specific legislative mandate, govt not liable for negligent failure of police to protect citizens from crime
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Federal Torts Claims Act
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1946 US waived its sovereign immunity for tort claims in certain circumstances
Govt liable for damages that result from neg or wrongful act of employee w/in scope of employment FTCA limits the branches which may be liable, and prevents punitive damages and SL |
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The Feres Doctrine
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FTCA bars recovery for claims arising or in activity incident to active military service
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Brown v US
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Govt failed to accurately report size of storm b/c beacon damages.
Negligent, but outside scope of FTCA b/c involved DISCRETIONARY POWER |
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Indian Towing v US
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Ship crashed b/c govt failed to replace light in lighthouse.
Had an AFFIRMATIVE DUTY to replace b/c others justifiably relied (regardless of discretionary) |
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1st Restatement
Section 519 and 520 |
Ultrahazardous despite utmost care
Ultrahazardous if involves risk of serious harm that can't be eliminated w/utmost care and not a matter of common usage |
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2nd Restatement
Section 519 and 520 |
Abnormally dangerous activity despite utmost care.
Factors = high degree of risk of harm likelihood harm will be great inability to eliminate risk w/care extent activity is not common usage inappropriateness of activity extent value to community outweighed by dangerousness |
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3rd Restatement
Section 20 |
Subject to SL for abnormally dangerous activity resulting in physical harm
Abnormally dangerous if foreseeable and highly significant risk and not common usage "Highly significant risk of physical harm" = (1) high likelihood of harm even if harm no more than ordinary; (2) severity of harm despite low likelihood |
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Rylands v Fletcher
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SL imposed when something is artificially placed on the land and causes physical harm.
Non-natural use of land. Despite lack of fault, still liable Defenses = fault of other, act of god |
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New Meadows v Wash. Water Power
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Majority applies R 2nd 520 factors to determine transfer of natural gas underground was no abnormally dangerous
DISSENT takes a policy analysis--where commercial party imposes risk on innocent consumer, the company should bear the risk (in better position to) |
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Magnuson-Moss Act
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if it is a CONSUMER PRODUCT and seller has some WARRANTY, a disclaimer is illegal under fed law
Not all warranties can be disclaimed but implied can be limited provided (1) reasonable duration (2) conscionable (3) clear and unmistakable (4) conspicuous |
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Henningsen v Bloomfield Motor
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Birth of modern Products liability in US
Non-purchaser who was injured in accident caused by defective car able to sue manufacturer despite lack of privity of K and disclaimer |
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Greenman v Yuba Power Products
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Manufacturer strictly liable for all injuries from product defects REGARDLESS of negligence, K or warranty b/c placed product on market w/o inspection
Purpose = insure cots of injury borne by manufacturer and not injured and powerless consumer |
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Daubert v Merrel Dow Pharmaceuticals
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EXPERT TEST
Whether expert's testimony (1) reflects scientific knowledge (2) findings derived by scientific method (3) work product amounts to good science Must be relevant to task at hand, generally accepted theory, research grew naturally and not specifically for trial |
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Sindell v Abbot Lab
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Where several manufacturers produce and distrib dangerously defective product EACH should bear part of damages due in proportion to share of total market
ENTERPRISE LIABILITY |
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NY Times v Sullivan
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Constitutional right to defame public official engaged in a public matter unless ACTUAL MALICE is proven
(knowledge of falsity or reckless disregard) |
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Gertz v Robert Welch
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The private defamation P must prove actual malice to recover damages other than for actual injury
1st amendment doesn't extend to private persons in same way as public persons. Matter for the states Private person, public matter |
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Dun & Bradstreet v Greenmoss
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Recovery for libel w/o showing actual malice if statements not a matter of public concern
Private person, private matter |
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Derry v Peek
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An action of deceit requires proof of fraud--misrepresentation made (1) knowingly, or (2) w/o belief in statements truth, or (3) recklessly
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Ultramares Corp v Touche
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If the misrepresentation was an honest blunder w/o recklessness or insincerity, liability for negligence is bounded by privity of K
Boundaries on Negligent Misrepresentation Deceit requires intent |
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Brown v Kendall
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first explicit recognition of fault as the proper basis of responsibility in tort law.
Held: a man could not be liable w/o fault for striking and injuring another accidently while brandishing a stick in an attempt to separate fighting dogs |
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Breshada
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(comes closest to pure SL)
Held that a product sold w/o warning of a hidden danger was defective, subjecting its manufacturer to liability for resulting harm, regardless of the unforeseeability of the risk. The manufacturer has a duty to warn of every danger, whether knowable or not. The inability to foresee the harm makes no difference. |
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Feldman
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(end of the rise of SL, turns back toward liability based on FAULT)
Overruled Breshada |
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Brown v. Superior Court
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Certified Feldman
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