Torts Ii Final

Front 1

Nominal damages

Back 1

A trivial sum of money awarded when actual damages not proven but cause of action is proven.

Front 2

Compensatory damages

Back 2

Restoration of plaintiff to his or her pre-injury condition, as far as money allows.

Front 3

Punitive damages

Back 3

Awarded to punish a person for outrageous conduct and to deter him from similar future conduct.
Awarded when willful/wanton/malicious/reckless conduct.

Front 4

Hedonic damages

Back 4

Loss of enjoyment of life, pain and suffering, etc.
Requires consciousness for recovery, usually.

Front 5

Collateral Benefit Rule

Back 5

The amount that a plaintiff recovers from collateral sources should not be taken into account with the amount recoverable from the defendant.

Front 6

Subrogation clauses

Back 6

A clause which allows the provider of collateral benefits to recover from the benefited party in the event of a recovery from the tortfeasor.

Front 7

Appellate review of damage awards

Back 7

May not interfere with an award unless it shocks the conscience and suggests passion or prejudice of the jury.

Front 8

Wrongful Death Action

Back 8

Claim brought by someone that suffered loss as a result of another's death.

Front 9

Survival Action

Back 9

Claim brought on behalf of deceased that came into existence prior to death.

Front 10

3 Guideposts for Punitive Damages Awards

Back 10

1. Degree of reprehensibility.
2. Disparity between harm to plaintiff and damage award.
3. Difference between other penalties and punitive damages.

Front 11

Affirmative Defense

Back 11

Defense that will either defeat or reduce plaintiff's claim. Defendant has burden of pleading and proving.

Front 12

Contributory Negligence

Back 12

Negligence of plaintiff is a factual cause of own injury. Serves as a complete bar to recovery.

Front 13

Last Clear Chance Doctrine

Back 13

The negligent plaintiff should still recover if he could show the defendant had the last chance to avoid the accident.

Front 14

Comparative Fault (Pure System)

Back 14

Plaintiff may recover amount proportionate to defendant's percentage of responsibility for the injury.

Front 15

Comparative Fault (50% System)

Back 15

If plaintiff's negligence is equal to or greater than defendant's negligence, plaintiff doesn't recover.

Front 16

Comparative Fault (51% System)

Back 16

If plaintiff's negligence is not greater than defendant's negligence, plaintiff can recover.

Front 17

Set Off (Off Set)

Back 17

When defendant counterclaims and both parties receive verdicts against the other, award "off set"--difference of the awards.

Front 18

Willful and wanton conduct

Back 18

Shows a conscious disregard of a high probability of serious physical harm.

Front 19

Failure to Mitigate Damages

Back 19

Failure to reduce harm post-injury; bars damages caused by failure by percentage reduction of award.

Front 20

Failure to Avoid Consequences

Back 20

Failure to prevent injuries that are preventable; bars recovery for injuries that could have been avoided.

Front 21

Express Assumption of Risk

Back 21

Agreement not to hold someone liable for negligence prior to an activity or event.

Front 22

Implied Primary Assumption of Risk

Back 22

Plaintiff assumes risks that are inherent to activity; usually spectator or participant of recreational activity.

Front 23

Implied Secondary Assumption of Risk

Back 23

Plaintiff knows and appreciates danger posed by defendant's conduct and voluntarily exposes himself to the danger.

Front 24

Imputed Contributory Negligence

Back 24

Plaintiff is held accountable in terms of assessing responsibility for an injury caused by another's negligence.

Front 25

Both Ways Rule

Back 25

Where plaintiff would be vicariously liable for the negligence of another, if plaintiff were the defendant.

Front 26

Statute of Limitations

Back 26

Statute that prescribes the period of time in which an action must be brought.

Front 27

Constructive knowledge

Back 27

Knowledge that is reasonably discoverable through sources that are available to plaintiff.

Front 28

Discovery Rule

Back 28

Accrual date of a cause of action is delayed until the plaintiff is aware of her injury and cause of action.

Front 29

Continuing Tort

Back 29

Series of individual torts that is considered to be one large tort claim; Statute of limitations begins to run after last tortious act.

Front 30

Statute of Repose

Back 30

Limited time within which an action must be brought, regardless of when the cause of action has accrued.

Front 31

Exculpatory Clause

Back 31

Cannot disclaim intentional torts, public interests. Must have meaningful opportunity to learn of waiver. Must be freely and voluntarily made.

Front 32

Indemnity

Back 32

The right to full reimbursement for damages paid.

Front 33

Contribution

Back 33

The right to obtain partial reimbursement of damages.

Front 34

Pro Rata

Back 34

Equal division of damages amongst defendants without regard to percentages of fault, after partial settlement.

Front 35

Pro Tanto

Back 35

Dollar for dollar reduction of awards amongst remaining tortfeasors after partial settlement.

Front 36

Proportionate Reduction

Back 36

Award is reduced by percentage of fault of settling defendant in partial settlements.

Front 37

Immunity

Back 37

Defense that bars plaintiff's claim, even if defendant is otherwise liable, because of defendant's status or the relationship between the parties.

Front 38

Public Duty Doctrine

Back 38

No duty to individual if duty is owed to general public.

Front 39

Feres Doctrine

Back 39

Service members cannot sue for service-related injuries when injured during scope of service.

Front 40

Standard of Care (Medical Malpractice)

Back 40

Skills ordinarily possessed and exercised by members of the same field or school of medicine; what a minimally competent doctor in that specialty would do.

Front 41

Informed Consent

Back 41

Doctor has duty to disclose information that is material to patient in making a decision regarding treatment.

Front 42

Patient-Centered Standard

Back 42

What would a reasonable patient need to know to make an informed decision.

Front 43

Physician-Centered Standard

Back 43

What would a reasonable doctor disclose to a similarly-situated patient?

Front 44

Strict Liability

Back 44

Liability without fault.

Front 45

Livestock Rule

Back 45

Strict liability for damage caused by livestock. Fence in/fence out approaches.

Front 46

Domestic Animals Rule

Back 46

Strict liability for injuries caused by animal if owner knows of animal's vicious propensities.

Front 47

Abnormally Dangerous Activities (Factors)

Back 47

(1) High degree of risk of harm; (2) Likelihood such harm is great; (3) Effectiveness of reasonable care in avoiding harm; (4) Common usage; (5) Appropriateness of activity in location; (6) Value to community

Front 48

402A Consumer Expectation Test

Back 48

Product is defective if it is more dangerous than contemplated by the ordinary consumer with common knowledge.

Front 49

402A Risk-Utility Test

Back 49

Knowing what is known now, would reasonable manufacturer put product on market?

Front 50

Design Defect

Back 50

Concept makes product unreasonably dangerous. Uses 402A tests and reasonable alternative design tests.

Front 51

Restatement 3d Design Defect Test

Back 51

Risk is reasonably foreseeable and avoidable by reasonable alternative design.

Front 52

Manufacturing Defect

Back 52

Product deviated from design in a way that makes it unreasonably dangerous; strict liability.

Front 53

Warning Defect

Back 53

Manufacturer/Retailer failed to give adequate warning about product's risks and proper use that were known or reasonably knowable; negligence-based approach.

Front 54

Causation (Products Liability)

Back 54

Plaintiff must prove defect existed while in control of manufacturer or retailer.

Front 55

Factors of Risk-Utility Test

Back 55

(1) Usefulness; (2) Nature of danger; (3) feasibility of alternative design; (4) cost of improved design