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68 Cards in this Set
- Front
- Back
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Contributory Negligence
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If the P had even the tiniest bit of negligence, P would be barred from recovering.
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Comparative Fault (Pure)
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Applies comparative fault to all Plaintiffs in all negligence cases. No Plaintiff is completely barred from recovery for their own contributory negligence.
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Comparative Fault (Impure)
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P is completely barred if his fault is equal to, or exceeds, the fault of the D.
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Comparative Fault Damage Calculation
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Comparison of unjustified risks. Juries divides damages up on percentages from both parties.
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Assessment of Relative Fault (Factors)
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1. Reasonableness of a party's conduct.
2. Existence of a Sudden emergency. 3. Was conduct Justified, such as saving a life? |
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Unreasonably Risky (Factors)
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1. Probability that harm will result.
2. Amount of that specific harm. 3. Costs of avoiding the risk. |
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Assumption of Risk (Traditional Rule)
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Plaintiff who assumed the risk of Defendant’s negligence could not recover. Children as well as adults could assume the risk and if they did, their claims would be barred. Risk could be assume expressly or implicitly.
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Expressed Consent
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Plaintiff may expressly assume a risk by accepting the Defendant’s disclaimer of responsibility or by giving a release in advance of injury. An express assumed risk ordinarily will relieve the Defendant of the duty that otherwise existed. It will establish a standard of care that shows he has breached no duty.
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Implied Consent
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1. Voluntary Assumption (P must have had a reasonably alternative course of action)
2. Knowledge of the Risk (Requires P's subjective consent) 3. Implication of Consent from Conduct (Equate confrontation of known risks with manifestation of intent) - Difficult |
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Statute of Limitations
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Defendant has the burden of pleading the statute as a defense and the burden of proving facts that show it was run. If he does not plead the statute in a timely way, the defense is waived.
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Reasons for Statute of Limitations
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1. Evidence deteriorates as memory fades
2. D is entitled to peace of mind 3. Society's expectations and standards change |
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When does the Statute of Limitations begin to run?
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1. Traditional: Period begins when Plaintiff’s claim accrued. Defendant had committed a negligent act and it had caused a legally cognizable harm.
2. Discovery Rule: Postpone the accrual date until the Plaintiff discovers or should discover some of the relevant facts. |
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Facts that Need to Be discovered to start the Statute of Limitations Clock
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1. All elements of the tort are present.
2. When P discovers, or as a reasonable person should have discovered, that he is injured and that the Defendant has a causal role in the injury. |
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Duty of Care for Nonfeasance
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Unless the Defendant has assumed a duty to act, or stands in a special relationship to the Plaintiff, Defendants are not liable in tort for a pure failure to act for the Plaintiff’s benefit. The fact that the Defendant foresees harm to a particular individual from his failure to act does not change the general rule.
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Nonfeasance
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No duty to act rule.
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Nonfeasance Exceptions
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1. Defendant or his instrumentalities, innocently or not, have created risks or caused harm to the Plaintiff (§321, §322)
2. Defendant is in a special relationship to the Plaintiff that is deemed to create a duty of care that encompasses affirmative action 3. Defendant takes affirmative action that is either cut short or performed negligently 4. Defendant has assumed a duty of affirmative care by action or promise |
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When Defendant Innocently Creates Risk or Harm (under Nonfeasance rule)
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a. The Defendant who knows or should have known that he caused physical harm to the Plaintiff, even if caused without fault, owes a duty of reasonable care to avoid further harm. If reasonable care requires it, he must act affirmatively to minimize the harm he has innocently caused and he is subject to liability for the additional harm caused by his failure to do so.
b. Same principle applies when the Defendant knows or should have known that he has innocently created a risk to others and the Defendant has an opportunity to minimize the risk before harm actually eventuates. |
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Defendant's Relationship with Plaintiff Creates a Duty (under Nonfeasance rule)
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1. Carrier - Passenger
2. Innkeeper - Guest 3. Landowner - Invitee 4. Custodian - Ward 5. Employer - Employee list is not exclusive |
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Defendant's Affirmative Action (under Nonfeasance)
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When the Defendant acts affirmatively to aid a person who is helpless, he must act with reasonable care.
b. The Defendant who takes charge of a helpless person cannot discontinue his aid if discontinuance leaves the victim in a position worse than when the Defendant took charge. |
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Lost Chance Doctrine
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The rescuer who discontinues aid could also make matters worse because his efforts dissuade other potential rescuers from acting or because his efforts create the appearance that no rescue is needed.
Loss of chance will count as a worsening position even if they cannot be confident that the chance of being saves was a very good one. |
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Contract and Duty (Elements)
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c. Restatement §323 – The undertaking may create a duty of care to perform in accordance with the undertaking, even if no consideration is given. Liability is imposed only if the Plaintiff suffers physical harm from the Defendant’s negligent performance and only if one of two other conditions is met:
1. Defendant’s negligent performance (or withdrawal from performance) must increase the risk to the Plaintiff, OR 2. Plaintiff must have relied upon that performance |
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Increased Risk (under Contract and Duty)
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The Defendant may be subjected to liability if he increases the risk by his negligent performance.
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Reliance (under Contract and Duty)
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i. Duty is imposed to act affirmatively (and with reasonable care) when the Defendant undertakes action and the Plaintiff relies upon the undertaking. An undertaking assuredly requires an express promise, but it also includes actions that express an intention or a commitment to act.
Plaintiff must show reliance upon the Defendant’s undertaking or assumed duty. Number of cases conclude that the duty undertaken was not one that would have saved the Plaintiff and consequently that the Plaintiff cannot recover. |
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Complete Performance (under Contract and Duty)
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a. The Defendant is under a duty to perform undertakings made for safety purposes and is liable for physical harm he causes the Plaintiff by negligently performing or quitting performance once it has begun.
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Contract Creating a Duty to Third Persons
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If there was no privity between the injured employee and the Defendant, the Defendant owed no duty at all.
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Misfeasance
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When the Defendant causes physical harm through misfeasance (affirmative acts of negligence) rather than nonfeasance, he is liable to the foreseeably injured person for that harm.
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Duty to Protect from Third Persons
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The Defendant is under a duty to use reasonable care for the Plaintiff’s safety where:
1. The Defendant is in a special relationship with the Plaintiff. 2. Defendant is in a special relationship with the immediate tortfeasor and in a position to control his tortious behavior or at least to minimize risks to the Plaintiff by some means. |
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Strict Liability
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Liability without fault. The defendant is subject to liability for conduct that amounts neither to negligence nor to any intentional tort.
The risk is always generated by an activity not commonly pursued in the relevant community. |
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Strict Liability for Animals
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Strict liability is impose when the keeper of the animal knows or has reason to know that his animal is abnormally dangerous in some way and injury results from that danger.
In addition, the keeper of the animal must have knowledge or at least notice of the dangerous tendencies that resulted in harm. |
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Exception to Liability for Animals
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Strict liability is limited to cases in which the animal’s dangerous propensity is a cause of the Plaintiff’s harm. The fact that the Plaintiff is injured results from some abnormal trait or from a danger of which the keeper had neither knowledge nor notice.
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Reasons for Rejecting Strict Liability
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1. Activity is socially useful
2. Activity is a matter of common usage OR can be made reasonably safe by the exercise of care |
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Limitations on Strict Liability
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Must have:
1. Proximate cause 2. Specific harm that prompted strict liability in the first place 3. Intervening acts |
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Defenses to Strict Liability
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1. Contributory Negligence
2. Assumption of Risk 3. Privileges or Immunities |
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Types of Products Liability
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Manufacturing Defect: Product has a MD when it disappoints consumer expectations by departing from its intended design.
Design Defect: DD occurs when the intended design of the product line itself is inadequate and needlessly dangerous. Warning Defects: Some products are reasonably safe and not defective if they are accompanied by a warning of their dangers or by information needed to use them safely. |
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Elements needed to prove Manufacturing Defects
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Similar to Res Ipsa. §402a. Need consumer expectations test.
Needs to show: 1. Dangerous and unexpected harm 2. Product was defective when it left the Defendant's control (need to negate every other possibility through testimony and circumstantial evidence - very difficult to do) 3. The defect was a proximate cause of the P's injuries |
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Tests to prove Design Defects
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Consumer Expectations Test (§402a)
or Risk Utility Test |
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Consumer Expectations Test
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The product was defective if, considering its reasonably foreseeable use, it left the seller’s hands in an unreasonably dangerous condition “not contemplated by the original consumer."
If CET does not show defect, use risk utility test |
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Risk Utility Test
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1. Usefulness and desirability of the product
2. Probability and magnitude of potential injury 3. Availability of substitutes (Reasonably Alternative design) 4. Manufacturer’s ability to eliminate the unsafe character 5. User’s ability to avoid danger 6. User’s probable awareness of the danger |
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Reasonably Alternative Design
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A safer design exists or can be made at a reasonable price. Existence of a reasonable and safer design does not necessarily prove that the product is defective, but the Plaintiff may be often required to prove that a safer alternative design is reasonable.
Replaced by Consumer Expectations Test. |
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Exception to Design Defects
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If there is a warning
OR If the risk was scientifically unknowable at the time the product was distributed, the manufacturer is not liable for design features that failed to avoid that risk. |
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Proving Design Defects
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Under the Risk Utility test, the Plaintiff in most states has the burden of proving that the design was defective and that its defective character was a cause in fact and proximate cause of the Plaintiff’s injury.
Expert testimony and Cash Cost (RAD). |
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Warning Defect
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When a product is unavoidably dangerous, a warning permits the consumer to make informed choices whether to accept the product. When the danger is avoidable, a warning may reduce the risk by permitting the consumer to use the product with greater safety.
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Exception to Warning Defect
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If the machine as designed is reasonably safe and its unavoidable dangers are known or obvious, the consumer is already warned by her knowledge so that reasonable care does not ordinarily require the manufacturer to provide a separate warning. (Assumption of risk).
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Adequacy of Warning
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Needs to be legible (not fine print), and placed in a spot where it can attract the user's attention.
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Post Sale Warning
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Courts impose a duty of reasonable care to issue post-sale warnings of newly discovered dangers or to advise of better technology.
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Post Sale Warning Requirements
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When Seller
1. Knows or should know that the product poses a risk, 2. If the risk outweighs the burden of providing a warning, AND 3. If a warning can be effectively communicated and acted upon |
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Res Ipsa Loquitor (Elements)
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Plaintiff
1. Outrageous (to the extent it normally doesn't happen) 2. Defendant was in full control (one defendant in control) 3. Plaintiff was not at fault (at all) |
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Counter to Res Ipsa Loquitor
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Defendant can show he exercised due care, or comparative fault (which violates the 3rd element of Res Ipsa)
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Public Nuisance
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A harm against the public in general. The harm needs to be unique to your party (different from the general public).
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Private Nuisance
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Harm must exceed the benefit.
Elements: 1. Substantail 3. Unreasonable |
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Joint Venture
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Elements:
1. Common purpose 2. Mutual right of control (each party can manipulate the situation whenever). |
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Vicarious Liability (Respondeat Superior)
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Under scope of employment.
Elements: 1. Conduct was in some degree in furtherance of the interest of the employers 2. Employment was authorized 3. Needs to be in the time restraints of the employment. |
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Vicarious Liability (Independent Contractor - borrowed servant)
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Scope of Employment:
1. Selection and Engagement of the servant 2. Payment of wages 3. Power to Discharge etc. |
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Captain of the Ship
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Any mistake the Contractor makes is held vicariously under the employer
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Vicarious Liability (Parent - Child)
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Parent is only liable if the child's conduct was intentional or malicious
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Exceptions to Vicarious Liability
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1. Intentional Torts
UNLESS the job involves violence 2. Coming and Going Rule UNLESS the trip was made under employer's discretion OR Dual Purpose Doctrine 3. Frolic and Detour 4. Incompetent Contractor 5. Inherently Dangerous |
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Dual Purpose Doctrine
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Employer is vicariously liable when employee does something that puts him back under employment.
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In comparative fault, how do we calculate who is more negligent?
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Juries analyze whose conduct is further from the behavior of reasonable people. Whose behavior deviated more?
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Types of Immunities
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Family
Charities (not anymore) Government |
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Family Immunities
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Husband and Wife is Abolished
Parent and Child is limited because courts don't want to unbalance the household's style of discipline. |
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FTCA
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Waives government immunity from tort suits (similar to vicarious liability for employers).
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Exceptions to FTCA
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Immunity is not waived for discretionary acts.
Govt immunity exists when P is on duty (Feres Rule) |
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Feres Rule
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As long as you are on post, Government is immune. This is because you would receive military compensation anyways
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Elements of NIED
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1. Serious emotional harm
2. Immediate danger of bodily harm (Zone of danger) 3. Close relationship |
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Landowner Duties: Invitees and Licensees and Trespassers
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Landowners owe a duty of reasonable care to all who enter upon his land.
Invitees: Duty to warn Licensees and trespassers: refrain from willful and wanton harm (but once you know they are there, ordinary care is required) |
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Landowners and Children:
Attractive Nuisance |
Landowner is liable:
If they know children are likely to trespass If the risk could lead to death or serious bodily harm If the children, because of their youth, do not realize the risk and danger If the utility of creating a safer environment is slight compared to the risk to children involved If the landowner fails to exercise reasonable care to eliminate the danger or otherwise protect children (Fence, signs, etc.) NEED ALL OF THE ABOVE |
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Attractive Nuisance (Natural)
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land owners have no liability
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Open and Obvious
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no need to warn idiots
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