Torts Ii

Front 1

Affirmative defenses

Back 1

1. CN/CF

2. Express assumption of the risk

3. 2IAR

4. Failure to mitigate (as a form of CF)

5. SOL/SOR

6. Immunity

7. Unforeseeable misuse of product

Front 2

Damage defenses

Back 2

1. failure to mitigate (as damage limiting

2. collateral source

3. med mal caps

4. unconstitutional

Front 3

Doctrines that create joint liability

Back 3

1. negligent enabling

2. vicarious liability

3. concert of action

Front 4

Types of SL

Back 4

1. wild and trespassing animals

2. unusually dangerous activities

3. strict products liability

Front 5

Defenses to SL

Back 5

1. Unforeseeable misuse

2. Actual, not passive, negligence

3. Qual. 2IAR

Front 6

Rationale for CN

Back 6

1. Courts used to deal in black and white verdicts

2. Negligent plaintiffs must be punished

3. Plaintiffs must be deterred from misconduct

4. Plaintiff's negligence supersedes a defendant's prior act of negligence and defeats proximate causation

Front 7

Exceptions to CN

Back 7

1. Last clear chance rule

2. Defendant's misconduct was grossly negligent or intentional

Front 8

Wisconsin Rule

Back 8

Compare the plaintiff's negligence to each defendant individually. If the plaintiff is more at fault, no matter the percentage, the plaintiff cannot recover

Front 9

Unit rule

Back 9

Compare the plaintiff's negligence percentage to all of the defendants as one unit

Front 10

Texas apportionment with >1 defendant

Back 10

50% unit rule - plaintiff may not recover if his percentage of responsibility is greater than 50%

Front 11

Sandford test for apportionment of fault

Back 11

Compare how much at fault the actors were. Whose negligence was worse, whose act was more uncommon, who exhibited a greater lack of care for the risk, which one has a higher B

Front 12

Requirements for express assumption of the risk

Back 12

1. Does not offend the court's view of public policy

2. Clear and unambiguous

Front 13

How can an express assumption of the risk NOT offend public policy?

Back 13

1. voluntarily entered

2. regarding a private matter

Front 14

What is a public matter

Back 14

Often something of vital necessity

Front 15

Rationale for not enforcing exculpatory clauses if they violate public policy

Back 15

Disparity of bargaining power

Front 16

What is the express negligence rule

Back 16

In an exculpatory clause, must expressly state that the clause relieves the defendant of injury even if it's caused by the defendant's negligence

Front 17

TX view of exculpatory clauses

Back 17

Strict scrutiny - construed against the party invoking their protections

Front 18

Difference between primary and 2IAR

Back 18

Primary - no duty, no negligence, 2IAR - negligence, but voluntarily encountered

Front 19

Elements of 2IAR

Back 19

1. actual knowledge of the danger

2. appreciation of the gravity of the danger

3. voluntary exposure to the danger

Front 20

Unreasonable encounter

Back 20

The danger is out of all proportion to the interest he is seeking to advance

Front 21

CN and 2IAR

Back 21

1. CN - plaintiff contributes to the accident, 2IAR - occurs pre-accident.

2. 2IAR Plaintiff just agrees to relieve the defendant of liability and incur the RISK of an accident.

3. The defendant's negligence is superseded by the plaintiff's willingness to take a change. Similarly, in CN, the theory is that the plaintiff's negligence supersedes the defendant's negligence.

4. With unqualified 2IAR, CN is redundant because both would bar the claim based on the plaintiff's negligence

Front 22

2IAR and CF

Back 22

Not a complete bar, just apportion fault to that assumption of the risk. But, since 2IAR can apply even when the plaintiff wasn't negligent, it undermines the goal of CF

Front 23

Characteristics of suing under the FTCA

Back 23

1. federal court

2. no jury trial

3. no punitive damages

4. no pre-judgment interest

5. negligence only - no intentional or SL

Front 24

Discretionary function exception

Back 24

1. there was room in the statute to exercise discretion

2. the act of discretion was important to public policy

Front 25

State and local sovereign immunity test

Back 25

Governmental (immunity) or proprietary (no immunity)

Front 26

Sovereign immunity for cities and counties

Back 26

No immunity

Front 27

Parents are immune when the negligent act

Back 27

1. involves an exercise of parental authority

2. Involvesan exercise of ordinary parental discretion with respect to clothing, housing,medical and dental services and other care

Front 28

What tolls SOL

Back 28

1. legal disability

2. fraudulent concealment

3. discovery rule

Front 29

Legal injury rule

Back 29

The COA is complete when the injury has occurred. Regardless of whether the plaintiff realizes she has been injured

Front 30

Elements of fraudulent concealment

Back 30

1. the tortfeasor knew of the alleged wrongful act and concealed it from the plaintiff or had material pertinent to the discovery which he failed to disclose

2. The plaintiff did not know or could not have known of his cause of action within the statutory period

Front 31

Elements for discovery rule

Back 31

1. Evidence of wrongdoing and plaintiff's injury is inherently undiscoverable

2. Objectively verifiable

Front 32

Rationale for SOL

Back 32

1. keep evidence fresh

2. Plaintiff was negligent in not bringing a claim in a more timely manner

Front 33

When does SOR begin

Back 33

Wrongful act rule - date of negligence triggers clock

Front 34

SOR and discovery rule

Back 34

Not applicable - want to give the defendant a more definite deadline when they can no longer be sued

Front 35

When is additur not applicable

Back 35

Federal courts

Front 36

Per diem awards

Back 36

Break down total award by time

Front 37

Day in the life video rules

Back 37

Must be relevant and not unfairly prejudicial

Front 38

Survival claim damages

Back 38

Special - medial, lost wages and general until the time of death, includes funeral costs

Front 39

Wrongful death damages

Back 39

Might be limited to economic - lost earning capacity, general - loss of consortium, funeral costs, BEGIN at death

Front 40

Alaska rule

Back 40

No speculation on economic damages

Front 41

Total offset rule

Back 41

Minority - inflation and investment will cancel out

Front 42

Determining personal property damages

Back 42

Lesser of the reduction in the FMV or cost of repairs

Front 43

Exception to the true rule

Back 43

Heirlooms

Front 44

Rationales for allowance of seatbelt evidence

Back 44

1. switch to cf

2. change from suing for the accident to for the harm

3. failure to mitigate

Front 45

Nominal damages

Back 45

only for intentional torts

Front 46

When can punitive damages be awarded

Back 46

1. More than nominal damages

2. Fraud, malice, gross negligence

Front 47

What types of gross negligence allow punitive damages

Back 47

1. Defendants conduct created a substantialprobability of serious danger to the plaintiff with very little benefit

2. Defendant had subjective awareness of the riskof harm arising from its actions and made the decision to disregard

Front 48

When are corporations liable for punitive damages

Back 48

1. corporate authorizes or ratifies the employee's gross negligence

2. Grossly negligent actor is a VP (hire, fire, direct)

Front 49

Factors to determine if punitive damages are unconstitutional

Back 49

1. degree of reprehensibility

2. disparity between actual/potential harm and punitive award

3. Difference between punitive award and civil penalty awarded

4. double digit ratios

Front 50

What is looked at for degree of reprehensibility

Back 50

1. physical or economic harm

2. indifference to or reckless disregard of health/safety

3. financial vulnerability

4. repeated incident

5. intentional malice, trickery, deceit

Front 51

Cap for punitive on intentional battery

Back 51

No punitive cap, but unconstitutional may still apply

Front 52

Texas apportionment of damages type

Back 52

Threshold level joint and several - several, but if one defendant is deemed greater than 50% liable, they are not J&S

Front 53

Risk of several liability

Back 53

Shifts the risk of insolvency from the tortfeasors to the victim

Front 54

Inter se contribution

Back 54

Based on percentage of fault

Front 55

Pro tanto contribution

Back 55

fault determined by how many tortfeasors

Front 56

Justification for J&S

Back 56

All or nothing doctrine - you're either a tortfeasor or you're not. If you are, you're on the hook for everything

Front 57

Argument against apportioning for immune actors

Back 57

1. in several, apportioning for an immune actor may prevent the plaintiff from receiving compensation

2. If a threshold state, apportioning may prevent one defendant from reaching the threshold level

Front 58

What is the negligent enabler's duty

Back 58

To prevent a foreseeable harm. NE enabled me to do x by being negligent

Front 59

Rationale for negligent enabler's right to indemnification

Back 59

Without this, the intentional tortfeasor could escape liability

Front 60

Elements of vicarious liability

Back 60

1. employee was at fault

2. Employee not just independent contractor

3. Acting within the course and scope of employment

Front 61

Elements to determine independent contractor vs. employee

Back 61

1. Can the employer exercise control over detailsof the work?

2. Does the employee work for his own good or theemployer?

3. Specialization or skilled occupation – lessskill, points to employee

4. Duration of employment – longer = employee

5. Method of payment – by job, contractor

6. Who supplies the materials and place or work?

7. Relation of the work to the regular businessesof employer

8. Belief of the parties themselves and third partiesas to the nature of their relationship

Front 62

What type of conduct is within the course and scope of employment

Back 62

1. it is the kind of conduct he is employed to perform

2. time and space

3. purpose of serving the employer

Front 63

Types of outside of office activities that are still within the scope of employment

Back 63

1. special errand

2. detour

Front 64

What types of outside of office activists negate scope of employment

Back 64

Frolic, coming and going

Front 65

Examples of employer negligence

Back 65

Poor hiring, supervision of employees, or negligent entrustment of dangerous materials/machinerty

Front 66

Types of concert of action

Back 66

1. Conspiracy - common design

2. Aiding and abetting - encouragement

Front 67

Kinds of aiding and abetting

Back 67

1. knows the other's conduct is a breach and gives substantial assistance or encouragement

2. Gives substantial assistance to the other in accomplishing a tort and his own conduct is a breach of duty

Front 68

Elements to consider for aiding and abetting

Back 68

1. how bad was the wrongful act

2. kind and amount of encouragement/assistance

3. relation of the defendant and the actor

4. presence or absence of defendant at the occurrence of the wrongful act

5. Defendant's state of mind

Front 69

Factors that make something extraordinarily dangerous

Back 69

1. high degree of risk of some harm

2. likelihood that the harm will be great

3. Inability to eliminate the risk with reasonable care

Front 70

Factors that make an activity unique

Back 70

1. extent to which the activity is not a matter of common usage

2. inappropriateness of the activity in the place where it's done

Front 71

Rationale for strict products liability

Back 71

1. compensation - difficult for plaintiff to prove negligence

2. deterrence through absolute liability on the one who can fix it and increase prices

Front 72

When does one have a duty in SPL

Back 72

1. the product, if not built with reasonable care, is likely to injure someone

2. the person injured will be someone other than the immediate purchaser

Front 73

What triggers SPL

Back 73

1. selling the item is your business

2. defect that renders the product unreasonably dangerous existed at the time of sale

3.causation

4. harm

Front 74

Innocent retailer provision

Back 74

If you are a non-manufacturer in a products liability claim, you don't have to worry about being sued. The customer must go up to the manufacturer

Front 75

Exception to innocent retailer provision

Back 75

Manufacturer is not present in the state or is out of business

Front 76

SPL indemnity

Back 76

Upstream seller must indemnity downstream seller if the defect existed when it was sold. Not usually necessary because innocent retailer provision prevents litigation

Front 77

Evidence in a design defect case

Back 77

Plaintiff offers evidence about the circumstances involving the product and its usage. Jury then uses its own sense about whether product meets expectations

Front 78

What is taken into consideration in the risk utility test for risk?

Back 78

Foreseeable harms - state of the art and hindsight knowledge

Front 79

What to consider for risk

Back 79

1. Safety aspects of the product, likelihood of serious harm

2. user's ability to avoid harm with reasonable care

3. Obvious risk - public knowledge and warnings

Front 80

What to consider for utility

Back 80

1. usefulness/desirability of the product

2. Ability to eliminate the unsafe character without impairing usefulness or too expensive (would mean this design isn't very useful)

3. Feasibility of spreading the loss ^ price

Front 81

Categorical liability

Back 81

Not allowed for design defects - all cigarettes are bad so all have design defects. Just means there's no alternative feasible design

Front 82

Preemption

Back 82

Complying with federal regulation negates state cause of action

Front 83

TX preemption

Back 83

Rebuttable presumption that there is no defective design or warning when the manufacturer complied with federal regulations

Front 84

How can you rebut texas preemption

Back 84

Proof that the federal regulation was inadequate to protect the public or the manufacturer lied to the government to obtain approval

Front 85

Preemption presumption

Back 85

Presumption against preemption - only rebutted by a clear and manifest purpose in the legislation

Front 86

Issue with intent for manufacturing defect

Back 86

Another term for intent is knowledge to a substantial certainty - sometimes you do have knowledge to a substantial certainty that it would exist, but it still wasn't a goal to have that defect

Front 87

Foreign-natural doctrine

Back 87

Manufacturing defects only exist when the unintended ingredient is wholly foreign

Front 88

When is the duty to warn triggered

Back 88

Knowledge that the product would cause harm when used in the intended and foreseeable manner

Front 89

Common knowledge exception to the duty to warn

Back 89

If the risk/harm is a matter of common knowledge, there is no duty

Front 90

Rationale for the common knowledge exception

Back 90

Warnings will not provide an additional measure of safety - person already knew. These warnings may be ignored or diminish the significance of other warnings

Front 91

Learned intermediary doctrine

Back 91

For prescription drugs, the duty to warn is satisfied by providing the warning to the physician. Exception - directly marketing to consumers

Front 92

Read and heed presumption

Back 92

Plaintiff doesn't have to prove he would have acted differently with a warning - it is presumed, but rebuttable

Front 93

What is evidence of a consumer's expectations

Back 93

Non-complex product, obvious defect