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123 Cards in this Set
- Front
- Back
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Proximate Cause |
Ways to limit recovery even if cause in fact can be established (public policy, foreseeability, shifting responsibility, intervening causes). |
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Direct Causation Theory |
theory that says if you are the but-for cause you are the proximate cause |
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Foreseeability |
REJECTS direct causation |
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Intervening Acts of 3rd party |
do not release original party from liability if foreseeable |
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Superseding intervening act |
unforeseeable act of third person which BREAKS chain of liability--original tortfeasor no longer liable |
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S.I.A (superseding intervening act) |
EXAMPLES: suicide (unless on suicide watch, irresistible impulse or caused by intentional tort), unforeseeable criminal acts (unless you have a duty to protect), NOT NEGLIGENT PER SE ACTS (because legislature could foresee them) |
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Rescue Doctrine |
tortfeasor liable if they created circumstances under which a reasonable person would rescue and did so reasonably--not professional rescuers because assumption of risk |
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SUICIDE RESCUE |
suicide commiter liable for rescue |
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Public Policy: proximate cause |
social host-no liability negligent entrustment WHEN IS IT APPROPRIATE TO LIMIT LIABILITY--what are the implications |
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Med Mal: Proximate cause |
med mal is foreseeable to hospital unless doctor does something that is crazy and off the cuff |
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FROLIC v. Detour |
vicarious liability for a detour taken during course of normal business, but not for frolics |
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Damages for negligence |
medicals pain and suffering price of item loss of consortium loss of companionship mental distress loss of income loss of projected earnings hedonistic survival damages-survival loss of function or appearance greif--wrongful death PUNITIVES? if gross |
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Punitive Damages
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USUALLY NOT GIVEN for negligence--unless gross must maintain a single digit ratio many caps on this don't want to punish or overcompensate jury determines can't be used in place of criminal punishment BMW v. Gore test cap |
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Remitter |
when appellate judges find that the amount of damages were too great and they SHOCK THE CONSCIENCE of the appellate
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Additur |
need more damages
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Result of changed damages |
can either choose a new trial where the outcome is uncertain , or accept the reduction |
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Pain and Suffering |
some juries don't recognize hedonistic damages as different there are caps on this in some jurisdictions no fixed amount whatever jury wants to award appellate won't generally change this award melvin belli-per diem P/S |
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Hedonistic Damages |
loss of enjoyment of life some jurisdictions require P to be conscious--aware of loss |
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compensatory damages |
lost wages loss of future earning capacity loss of function for a body art medical expenses hedonistic pain and suffering consciousness of impending death or apprehension of harm (some jurisdictions) impotency loss of interest in sex loss of consortium loss companionship REDUCED LIFE EXPECTANCY--not usually given emotional distress (mental disorder and treatment for mental issue) anguish- help pay for attorney fees (denied due to tort reform) |
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Strict Products liability Damages (when injury caused) |
economic loss pain and suffering medical bills lost wages |
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Strict Liability-P.L. Damages (when only economic loss suffered) |
can't recover under tort--file a breach of warranty contract claim anyway UNLESS damage was caused to property or other chattel--then there is a tort claim |
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TAXES ON DAMAGES |
no federal taxes on damage amounts economic experts can testify on inflation |
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Collateral Source rule |
do not have to disclose discounts given (can tell jury full amount of injury) |
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Indemnification |
tortfeasor suing other tortfeasor for damages |
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Subrogation |
insurance company gets money back from damage amount awarded by jury |
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Contribution |
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Acting in concert |
joint and several always |
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common duty
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joint and several always |
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concurrent tortfeasor |
in contributory: yes in comparative fault: maybe |
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Pure Economic Loss |
no tort recovery for this courts don't want there to be imaginary claims or TESTBANK case said that there must be physical injury |
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NIED claims require |
impact and physical manifestation |
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physical manifestation can be replaced if ..... |
told someone they were dead and they are not corpse abuse Physical manifestation can be mental issues too |
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Dillon v. Legg |
BALANCING TEST 1. close proximity 2. contemporaneous observation 3. close relationship |
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Thing v. La Chusa |
NEED ALL THREE for bystander NIED claim |
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Zone of Danger |
can replace the necessity for physical manifestation/impact--were they in the zone of danger? |
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IMPACT |
no longer necessary in most jurisdicitons--there are mental issues etc. |
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JURISDICTION POSSIBILITIES NIED CLAIMS |
1. impact and manifestation 2. just impact 3. just manifestation 4. neither JURIES CAN TELL IF YOU ARE TELLING THE TRUTH WITHOUT SHOWING IMPACT |
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Marketshare liability |
responsible for what you caused and that percentage alone |
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contractual indemnification |
agree that you will indemnify as part of K |
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relationship indemnifican |
Respondent Superior== if there is no neg. on behalf of employer they can seek indemnification |
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Bifurcation |
separate trial for damages |
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Damage proof |
they get one shot--cant come back later and get more so they have to prove future damages as well |
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Contributory Negligence |
if plaintiff is contributorily negligent, then in these jurisdictions it completely bars them from recovery ONLY FOUR JURISDICTIONS |
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Comparative Fault |
created to eliminate the harshness of CN which barred plaintiff from recovery |
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Pure Comparative Fault |
reduced by plaintiff's percentage of fault |
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Slight Gross Comparative Fault |
the def was gross neg. and the plaintiff was slight
SOUTH DAKOTA |
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Modified Comparative Fault |
most states 1. not as great as the Def. fault 2. can't be as great as def. fault 3. no greater than 50/50 4. can't be greater than 50% at fault (most harsh) |
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Last Clear Chance |
who had the last clear chance to intervene |
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Caroll Towing case |
applied comparative fault to admiralty law |
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Contributory fault was the traditional__________? |
defense in negligence cases "it was the plaintiff's fault" |
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Wrongful Birth
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some states require fetus born alive
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Can you sue mother for behavior during pregnancy? |
in some jurisdictions |
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Negligent Detection/ Diagnostic procedure |
recover when the child is born with a defect and there is testimony that the mother would have aborted the child MUST PROVE ABORTION WAS AVAILABLE |
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Wrongful birth brought by parents damages |
1. economic loss 2. emotional damages 3. costs of medical care |
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Wrongful life brought by child |
arguing that you were better off if aborted some states allow for recovery for birth defect MUST PROVE ABORTION WAS AVAILABLE |
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Wrongful conception |
i.e. botched vasectomy some states allow for recovery of raising child till 18 some states only cover pregnancy/birth costs |
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Wrongful Death |
Type of recovery --not a tort action which is now allowed when in common law it was better to kill the person (less liability) |
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Lord Campbell Act |
English act that allowed for wrongful death and survival |
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Survival Claims |
if they took a breath or were alive you can recover for the time they were in pain --goes to their estate *you can also sue a dead person's estate for a tort |
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Off Premise Liability |
uncommon not liable for natural conditions |
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artificial condition |
anything added to the property can be a tree if it wasn't there when you got there |
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Off Premise Liability: Rural Property |
more leeway because they cant be expected to know every inch of property when there is a lot of it. |
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On premise liability |
Person is on your property: 1. invitee 2. trespasser 3.licensee |
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Trespasser |
Usually no duty unless it is foreseeable--I.E. attractive nuisance or you know that teenagers drink in your barn |
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Licensee |
Duty to: Warn
NOT to fix The licensee ties the land as it is |
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Emergency workers |
no liability because you did not have time to warn them |
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Invitee |
duty to protect from harm while on premises duty to: WARN INSPECT REPAIR MAINTAIN |
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TYPE OF PERSON ON PREMISES |
some states differentiate between three In california everyone has a duty in some states invitees and licensees are the same thing |
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Landlord/Tenant |
duty to disclose and make repairs to common areas --implied warranty of habitability |
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Avoidable Consequences Rule |
If you were injured in an an they could fix the injury with a surgery you can only recover for the $ of the surgery and the state post surgery This would serve as a discount to the defendant |
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your rights end where mine begin |
religious reasons for not having surgery
where do the rights intersect depend on jurisdiction
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Assumption of the Risk |
Expressed: signing something that states the risk Implied: the action has a certain risk inherent |
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Implied Assumption of the Risk |
know there is a risk how great the risk is AND voluntarily take on risk |
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Comparative negligence Jurisdictions and Assumption of the risk |
they can bar implied AOTR They can NOT bar expressed AOTR IF you sign something--it is lost |
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Statute of Limitations |
barred from suit if you wait for too long |
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Immunities |
can be defenses if you meet one of the criterion |
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Satisfaction |
when the Def. pays all the judgment plaintiff can no longer claim damages |
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partial satisfaction
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everyone paying a diff. amount of judgment one parties part is complete=partially satisfied |
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release |
a surrender of the plaintiffs claim which may be for partial or no compensation |
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covenant not to sue |
varying views: 1. release releases other tortfeasors but covenant does not unless fully paid 2. release with press reservation of rights is treated as covenant not to sue 3. some hold release even without reservation does not release other tortfeasors until full amount of judgment paid |
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common law release |
release of one=release of all |
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today law release |
many jurisdictions don't believe a release of one releases all that it depends on what the intentions of the parties seemed to have been these jurisdictions find that the release only lessens the verdict |
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mary carter agreements |
one tortfeasor testifying against another tortfeasor in exchange for not being responsible for fu;; ament of damages BAD-buys support, mislead jury, may reward a wrongdoer, can sometimes force litigation GOOD-settlement promoted, juries are capable of understanding this when it is disclosed |
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M.C. agreements by jurisdiction |
1. allowed 2. allowed if disclosed to jury 3. not allowed because of public policy |
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Proximate cause balancing factors |
1. foreseeability 2. actual or constructive knowledge of risk 3. severity of harm 4. burden in prevention of harm 5. public policy 6. relationships between parties |
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Evidence of Damages |
day in the life videos expert testimony photo ev. of physical injury medical bills financial expert test (future earnings etc.). |
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Interest on Damages |
some jurisdictions allow them from the time the trial started/action filed some states allow them only after judgment entered until payment |
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Punitive Damages |
ARE TAXED AS INCOME IN SOME JURISDICTIONS |
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Legal Fees |
usually not recoverable |
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Tort reform |
some have eliminated collateral source rule some have capped P/S and punitive |
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Frolic v. DETOUR (cont) |
reasonable scope of employment was employees conduct authorized or anticipated by employer |
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Commuter Rule |
not responsible for commute of employee unless they knew she/he was dangerous when they left to go home
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The slight Deviation Rule-vicarious liability |
intent nature time and place of activity time consumed by deviation work type done by employee incidental acts reasonably anticipated QUESTION FOR THE JURY |
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Independent contractor |
not liable usually exceptions-apparent authority, inherently dangerous activity, illegal activity |
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apparent authority in an ind. contractor
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franchise and franchisor-I.C. but still liable representation |
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Non-delegable duties doctrine |
duties that may not be delegated to ind. contractor -ie public authority compliance maintaining property according to safety ordinances building a safe structure as a contractor |
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Joint Enterprise |
agreement express or implied common purpose common pecuniary interest in that purpose equal control |
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Bailments
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common law-no liability now unless neg. entrustment or family car idea |
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Strict liability for Abnormally dangerous Activities |
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Strict Liability for Animals |
Domestic-no unless they knew or had reason to know animal was dangerous wild animal-yes because they have a wild animal |
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One free bite rule |
most jurisdictions reject dog gets one free bite before its known to bite unless breed statute that gives S.L. |
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Negligence in wild animals instead of S.L. |
zoos etc. places where animals are displayed |
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Trespass animals-are you liable when animal trespasses |
yes if the animal is prone to trespass--not a dog or a cat==but like a cow Fencing in/out statutes in some places |
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Natural Use doctrine-ADA |
liability imposed if it was a dangerous, unnatural use |
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ADAs |
blasting caps crop dusting hazardous waste storage large water storage transportation and storage of toxic chem. |
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ADA guidelines |
harm must be the obvious harm that would result from acitivbiy S.L not imposed if act has community vale 1. high risk 2. likelihood of great harm 3. cannot be avoided with reasonable care 4. activity is uncommon 5. and inappropriate at particular site |
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CONTRIBUTORY NEG NOT A DEF to _________ |
strict liability claims |
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Three theories of products liability |
1. Warranty 2. Negligence 3. Strict liability |
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Four elements of products liability |
1. Def. made the product 2. It's defective 3. It was defective when it left factory-- no plaintiff responsibility 4. But for/proximate cause |
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Negligence theory of recovery |
No defenses really anymore other than closed container for retailer (retailer can't be sued unless actually negligent) Duty, breac,h damages Must prove fault to jury Plaintiff must be foreseeable victim under palsgraff case |
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Negligent manufacturing, negligent design, negligent failure to warn |
Only one product |
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Warranty (implied use for particular purpose, and merchantability) and expressed |
Also 402(b) where you prove reliance but can have tort damages and k damages K breach -- can be pure Econ loss so it's best for those scenarios Always a merchantability warranty Breach of warranty is like s.l Less damages available Retailer can be liable Puffery or promise? Defenses are notice and disclaimer (no privaty defense anymore ) longer S.O.L on these claims |
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Strict liability |
Man.---can get the retailer too even if there are statutes that say no, if the man. is insolvent Design- ru/ru@market/both failure to warn--prescription drugs |
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Risk Utility test-s.l. design defect |
1. usefulness and desirability 2. safety features 3. availability of substitute 4. ability to eliminate danger 5. user ability to avoid danger 6. awareness of danger 7. insurance 1. usefulness and desirability 2. safety features 3. availability of another option 4. ability to reduce dangerous character 5. user's ability to use without danger 6. insurance 7. user's knowledge of risk |
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Design S.L. |
have a fault element under the restatement because they have to recall everything so they resemble neg. claims retailer, wholesaler, and manufacturer |
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Man. S.L. |
no fault element--if you manufactured it wrong and it is faulty=you are liable retailer, wholesaler and manufacturer |
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Failure to warn S.L. |
also has a fault element under the restatement retailer, wholesaler, and manufacturer |
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General defect theory |
RES IPSA the product is circumstantial evidence of the defect |
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Restatement 2-318 |
Implied warranty--who can recover A. narrow B. in between C. broad A=best for Def (less plaintiffs) B= best for P. (more plaintiffs) |
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Preemption |
defense to S.L. failure to warn and other cases--when the gov. made us do it this way we aren't liable |
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Food liability |
is it a natural or unnatural object if it is natural you have to show fault if unnatural--S.L. |
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Abnormally dangerous activities- strict liability |
High risk Likelihood of harm Can't be avoided with reasonable care Uncommon and inappropriate at location |
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Strict liability design defect |
Risk utility and foreseeability |
