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79 Cards in this Set
- Front
- Back
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Joint Tortfeasors
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Two or more individuals who either (1) act in concert to commit a tort, (2) act independently but cause a single indivisible tortious injury, or (3) share responsibility for a tort because of vicarious liability.
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Contribution
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When two or more persons are or may be liable for the same harm and one of them discharges the liability of another by settlement or discharge of judgment, the person discharging the liability is entitled to recover contribution from the other, unless the other previously had a valid settlement and release from the plaintiff.
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Indemnity
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When two or more persons are or may be liable for the same harm and one of them discharges the liability of another in whole or in part by settlement or discharge of judgment, the person discharging the liability is entitled to recover indemnity in the amount paid to the plaintiff, plus reasonable legal expenses.
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Generally, what are the three ways that one may be held strictly liable?
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1. Wild Animals2. Abnormally dangerous activities3. Defective, unreasonably dangerous products (Slides)
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When is an activity considered abnormally dangerous?
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If it creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and the activity is not a matter of common usage. (RST 520)
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What is the rule from Rylands v. Fletcher?
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A force brought by D onto his land that involves a non-natural use of the land and is likely to cause substantial damage if it escapes renders D strictly liable if it escapes and does harm. (Slides)
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Test for abnormally dangerous activity
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1. It must create a foreseeable risk of serious harm even when reasonable care is exercised. 2. the activity must be one which is uncommon in the place where it is being conducted. 3. Does the activity's danger outweigh its utility to the community? (Slides)
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What is the Scope of Duty owed in Strict Liability?
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An absolute duty is owed to make safe abnormally dangerous animals, activities, and conditions. The duty is ONLY owed to reasonably foreseeable Ps and only for harm that flows from the normally dangerous propensity of the condition and activity involved (foreseeability of the hazard). (Slides)
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What is the prima facie case for strict liability?
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1. Duty: The existence of an absolute duty (not absolute liability) upon D to make something safe2. Breach: A breach of that duty3. Cause-in-fact: The breach was the actual and proximate cause of Ps injury4 . Damage: There was damage to Ps person or property (Slides)
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What are some exceptions to strict liability for the possession of wild animals?
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a. for harm done by wild animal to trespasser, b. for harm to invitee or licensee who knows that animal is permitted to run at large or has escaped and chooses to expose himself to risk of being harmed by animal, c. to person who is contributorily negligent in knowingly and unreasonably subjecting himself to risk of harm, or d. to person who assumes risk of harm from animal (Notes)
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Will a Defendant be strictly liable if a person intentionally provokes a wild animal?
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No. A D will be held strictly liable for any injures caused by wild animals - as long as the person did nothing consciously to provoke the injury. (Slides)
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Will a D be held strictly liable for injures caused by domestic animals?
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No, unless the D knew or should have known of the animal's dangerous propensities (bitten before). Negligence may attach. NO ONE BITE RULE anymore. (Slides)
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Can a D be held strictly liable to invitees or licensees who are injured by dangerous or abnormally dangerous domestic animals while on D; land?
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Yes. An exception to this rule is Zoos and Parks.
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Will a landowner be strictly liable to a trespasser for injuries caused by a vicious watch dog?
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Yes. Where the landowner has reason to know that a vicious watch dog is likely to cause serious bodily harm, the landowner may be strictly liable to the trespasser. (Slides)
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What are the six factors that make it more likely that an activity is "abnormally dangerous"?
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1. a high degree of risk of some harm to others2. the harm that results is likely to be serious3. the risk cannot be eliminated by the exercise of reasonable care4. the activity is not common5. the activity is not appropriate for the place where it is carried on; and 6. the danger outweighs the activity's value to the community (Slides)
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Will a zoo be held strictly liable for injuries caused by the harm of kept wild animals?
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No. Where the wild animal is kept under a public duty, strict liability usually does not apply (P must show negligence but D is held to a higher standard of care). (Slides)
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What is is the claim of "wrongful conception"?
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It is the parent's action for the negligently caused birth of a healthy child. (Slides)
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What is the claim of "wrongful birth"?
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It is the parent's claim for damages due to the negligently caused birth of an unhealthy child. (Slides)
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What is the claim of "wrongful life"?
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A child's legal claim for the harm of her negligent birth.
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What are the damages commonly associated with wrongful conception?
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Cost of the botched procedure, cost of the pregnancy and birth expenses. NOT the cost of raising the child. (Slides)
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Under wrongful conception, what is the benefit rule?
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Non-recovery theory which essentially seeks to offset the cost of raising a healthy child with the benefits of the love and affection the parents will receive. (Slides)
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Under wrongful conception, what is the emotional bastard rule?
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A theory that the child will one day suffer emotional harm upon learning that his parents sued upon his birth and that he is being supported by a stranger forced to do so by judicial decree. (Slides)
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What are the damages commonly associated with wrongful birth?
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Most courts will NOT allow recovery for ordinary costs associated with raising a NORMAL child, but will only allow recovery for extraordinary expenses (special damages).
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Is wrongful birth a suit for an unwanted pregnancy?
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No. It is for the loss of the ability to make an informed decision as to whether to carry the child to term or terminate the pregnancy of an unhealthy child. (Slides)
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Is the wrongful life suit accepted in a majority of jurisdictions?
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No. When determining damages, the court would need to return the child to "pre-injury state" and that state would be OBLIVION. Courts refuse to accept that non-existence is better than existence. (slides)
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What does Respondeat Superior mean?
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Let the Master Answer (slides)
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What is vicarious liability?
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The doctrine of vicarious liability imputes the wrongful conduct of a tortfeasor to a third person who is considered to be responsible for the tortfeasor's actions. (Slides)
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Under vicarious liability, how is the "scope of employment" defined?
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Those actions connected to an employee's work that are done with a purpose to advance an employer's business interests. ***Even though an act is prohibited by an employer, DOES NOT mean the act is outside of the scope of employment. (Slides)
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Is commuting to work normally outside the scope of employment?
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Yes. (Slides)
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Is an employer liable for damages caused by an employee detouring from a business trip route for personal reasons?
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No. Under "frolic and detour", the employer is only responsible for damages that occur when the employee is returning to the business trip route. However, modern courts will hold the employer liable if the detour is reasonably foreseeable. Distance of the detour is a factor in the foreseeability. (Slides)
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Is an employer liable for intentional torts committed by their employees?
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No, unless the intentional torts was done for the benefit of the employer's business. (Slides)
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Is an employer liable for torts committed by an independent contractor?
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No, unless it was: 1. Non-delegable duty - duty of the employer to do a particular act was rendered non-delegable by statute and public policy. 2. Ultrahazardous - the work carried on by the IC involved ultrahazardous activity3. Negligence - where an employer negligently selects an incompetent contractor (Slides)
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When will all members of a joint enterprise be held vicariously liable for the torts of each other?
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When: a. Mutuality of Control - Each member of the JE must have an equal say on the issue of how things are done. (not necessarily physical control)B. Agreement - the members are acting in concert by some express or implied agreementc. Common Pecuniary Purpose - All the members must have a common pecuniary interest. Merely sharing expenses is not enough [Slides]
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What is the MAJORITY RULE regarding liability for loaning a car?
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A person will not be responsible for loaning a car to another who then commits a negligent act. [Slides]
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Can parents be held variously liable for the negligence of their children?
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No, unless the parent was negligent (negligent supervision) or the child was acting as a family agent. [Slides]
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What are some exceptions to no vicarious liability of an employer for an independent contractor's torts?
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1. Apparent agency: P believes that the IC is an employee or has authority to act on behalf of the employer. 2. Particular risk: if an IC is employed to perform a job with a particular risk associated, the employer can be held vicarious liable for damage resulting from the contractors unreasonable conduct in the face of that particular risk. 3. Extremely dangerous activities are involved4. Non-delegable duty5. Illegal activities [Slides]
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What are situations where a parent is liable for a child's torts directly - that is, due to the parent's own negligence?
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1. Failure to prevent the child's foreseeable use of inherently dangerous instrumentalities;2. Failure to warn others about the child's known dangerous tendencies;3. Failure to control the acts of the child committed in the parent's presence; or4. Failure to exercise reasonable care to protect against the child's known dangerous tendencies [Slides]
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When will another's contributory negligence NOT be imputed to plaintiff?
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1. A parent's contributory negligence will not be imputed to his child; 2. A spouse's contributory negligence will not be imputed to the other spouse3. a driver's contributory negligence will not be imputed to passengers (unless the driver is the passenger's agent). [slides]
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What is an immunity?
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It is something that insulates the defendant form liability due to her status, position, or relationship to the plaintiff. [slides]
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May a wife sue her husband?
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Yes. Spousal immunity has been abolished.
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May a charity be sued?
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Yes. Charities immunity has been abolished.
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What is sovereign immunity?
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There can be no legal right against the authority that makes the law. Policy: The King can do no wrong. [slides]
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Can child sue their parents?
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Yes. Family immunity has been abolished. [slides]
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What is Federal Torts Claims Act (FTCA)?
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FTCA is a limited waiver of sovereign immunity [slides]
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Why is state law important when addressing tort liability under the FTCA?
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If, under state law, a private actor would have a duty in negligence, then the U.S. has such a duty for negligence purposes. [slides]
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What are three exemptions to FTCA?
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1. Discretionary function or duty2. Combatant actions of the military3. Claims arising in a foreign country [slides]
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Can a person convicted of a felony while incarcerated bring a civil action against the U.S. for mental or emotional injury suffered while in custody?
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No, unless the inmate can show a physical injury. [slides]
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If a public employee "reasonably misapprehends the law" and in "deliberate indifference" violates a Ps constitutional rights, will the D be immune?
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Yes. Under sec 1983, the "reasonable misapprehension" of the law provides immunity. [slides] 1983 applies to state or local police.
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What is a Bivens action?
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It is a claim against federal officials, sued in their individual capacities, for a violation of a person's constitutional rights. Bivens applies to federal agents ONLY.
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What is the "Public Duty Doctrine"?
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It provides that absent a special relationship between the government entity and the injured individual , the governmental entity will not be liable for injury to an individual. [slides] Duty to all, duty to none
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How is a special duty created between a private citizen and a public official or agency? Is immunity waived by the public official by his actions?
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Whena relationship is created between the police and an individual which gives riseto a special duty (action to help oneperson), the municipality loses its governmental immunity and liability mayresult. [slides]
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What is the prima facie case for Negligent Infliction of Emotional Distress?
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1. Must have physical injury from the distress. EXCEPTION: can be distress from erroneous reports of death or a mishandling of a relative's corpse. 2. Must be within the zone of danger (area where a threat directed at someone is in danger of a physical impact; must be perceived)
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What is the Bystander Recovery?
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A modern trend that allows for recovery by P outside the zone of danager if:1. P and the person are closely related2. P was present at the scene of the injury3. P personally observed or perceived the event [slides]
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What is the Pure Economic Loss Rule?
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The plaintiff must have a physical injury to his person or damage to his property, for there to be a valid negligence claim. [happy]
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Under nuisance, what is a significant harm?
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A kind of harm that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose. [slides]
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What is a private nuisance?
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It is a substantial, unreasonable interference with another private individual's use and enjoyment of land which he actually possesses or has the right of immediate possession. [slides]
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How is it determined if a intentional invasion is unreasonable?
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An act is unreasonable if: 1. the gravity of the harm outweighs the utility of the actor's conduct2. the harm caused by the conduct is serious and the financial burden if compensating for this and similar harm to others would not make the continuation of the conduct not feasible. [slides]
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What is a public nuisance?
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It is an act which unreasonably interferes with the health, safety or property rights of the public. [slides]
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For a private plaintiff to recover under a public nuisance, what must be shown?
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That her particular damage was unique or of a kind different from that suffered by other members of the public exercising the public right, NOT just a different degree of harm. [slides]
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What are defenses to nuisances?
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Assumption of the risk1. Consent2. Coming to the nuisance - a. No knowledge of nuisance - P may seek recoveryb. Knowledge of the nuisance - factor but not a bar on recovery EXCEPTION: If P knew and moved to bring suit, P is barred. [Slide]
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2 or > Tortfeasors + Indivisible Injury = means
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Each Defendant has entire liability (Example:two polluters who both live adjacent to the P and the P gets lung disease.) [notes]
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2 or > Tortfeasors + Divisible Injury = means
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1. Eachdefendant only liable to share/percentage attributable (Example: Ps car is hitby two different cars at the same time on opposite ends of Ps car) [notes]
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2 or > Tortfeasors + Act in Concert = means
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Each D liable for all regardless of divisibility (Example: Six men are moving a log and drop it at the same time on Ps chattel.) [notes]
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What is comparative contribution?
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It is where damages are imposed IN PROPORTION TO THE RELATIVE FAULT of the various tortfeasors. [slides]
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What is satisfaction?
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If P recovers full payment from one tortfeasor, either by settlement or payment of a judgement; she may not recover against any other joint tortfeasor. [slides]
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What are the common methods of indemnification?
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a. Rightto indemnity by contract (think insurance) b. Vicariousliability (Respondeat superior) – Liable for damages based on relationship ex.Employer – Employee c. IndemnityUnder Strict Products Liability – Each supplier maysue the previous in the chain making the manufacturer ultimately responsiblefor manufacturing defectsd. IdentifiableDifference in Degree of Fault - He who is least at fault may recover from the“more wrong” tortfeasor
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Can a tenant be held liable for a person's injuries due to some activity or some dangerous condition of the premises?
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Yes. Tenants (anyone who possesses the land) are liable for a person's injuries due to some activity or some dangerous condition of the premises. [slides]
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Who is a trespasser?
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One who has no permission or privilege to enter. [slides]
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What is the duty to an undiscovered trespasser?
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The LL has NO duty warn or inspect in order to ascertain whether persons are coming onto his property. LL just has the duty not too willfully or wantonly injure or entrap a trespasser (no spring guns). [slides]
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What is the duty to a discovered trespasser?
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LL has the duty to exercise ordinary care to warn a trespasser of, or to make safe artificial conditions known to LL that involve a risk of death or serious bodily harm and the trespasser is unlikely to discover the condition, but no duty to inspect. [slides]
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Who is a licensee?
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It is one who has permission (express or implied) to enter but does NOT have a business purpose for entering. (social guests, emergency personnel, uninvited salespeople, those entering business premises for reasons other than business for LL benefit) [slide]
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What is the duty to a licensee?
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The LL has a duty to warn of known dangerous (non-obvious) conditions creating an unreasonable risk of harm (where licensee does not know about the condition and is not likely to discover it) [slides]
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Who is an invitee?
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It is someone who either:a. enters land by express or implied invitation to conduct business with the owner, orb. enters for purposes for which the land is held open to the public(ex. store customers, non-emergency public servants (postmen, garbage men), patrons of establishments [slides]
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What is the duty to an invitee?
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The LL has a duty to warn of known dangerous (non-obvious) conditions, inspect for dangerous conditions and repair/make them safe.
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What is LL's duty to people outside his land for natural conditions?
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LL has no duty unless: 1. the possessor or anyone else has ever altered the natural condition so as to aggravate the risk; and 2. in urban areas, there is a duty where landowners with trees near public streets let the trees pose an unreasonable risk of harm to those on the street. [slides]
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What is LL's duty to people outside his land for artificial conditions?
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LL has no duty except to maintain buildings, fences, and the like that abut other land or streets, so as not to pose an unreasonable risk of harm to those outside the land. [slides]
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What is the Firefighter's Rule?
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Police officers and firefighters are generally treated like licensees rather than invitees, based on public policy or assumption of risk grounds. The public servant cannot recover for a LL failure to inspect or repair dangerous conditions. [slides]
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What is an Attractive Nuisance?
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A LL has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property. [slides]
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How does P show the factors of an Attractive Nuisance?
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1. there is a dangerous condition present on the land of which the owner is or should be aware; 2. the owner knows or should know that young persons frequent the vicinity of this dangerous condition; 3. the condition is likely to cause injury (dangerous) because of the child's inability to appreciate the risk; &4. the expense of remedying the situation is slight compared with the magnitude of the risk [slide] (abandoned autos, swimming pool, lumber pile)
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