Torts Ii- Final Exam Review (Rowe)

Front 1

What are the types of damages available for a Trespass to Land Action?

Back 1

1. Nominal;
2. Compensatory; AND
3. Consequential Damages

*Note* Ask: Too attenuated???

Hint 1

Gavcus v. Potts; 860
1.
2. Requires proof of injury
3. Flowing from the damages that are foreseeable as a natural and proximate result of the trespass
- Examples: mental distress,

*note* with an appropriate case with extreme conduct, one might be able to recover punitive damages.

Front 2

What's the difference between Trespass and Nuisance?

Back 2

- No physical invasion of the land required
- Need another tort action in conjunction with the action
- Not a stand-alone tort action!!

Hint 2

p. 860

Front 3

Is actual injury of the land required to recover damages for trespass?

Back 3

NO.

Front 4

Does a Mistake excuse trespass?

Back 4

NO.

Front 5

What is a Special Verdict?

Back 5

Court submits questionnaire to jury and determines recovery based on their answers.

Front 6

Discuss liability re: flights in a Trespass to Airspace claim:

Back 6

Very low flights over someone else's land may be a trespass.

Old CL Rule: Ownership from the ground to the heavens.

Hint 6

Intrusions which are obnoxiously loud or highly repetitive may be considered a nuisance.

Front 7

Would flying a 250 ft Kite be a trespass or nuisance?

Back 7

Key Questions:

Is it close enough to the ground to be a trespass?

Is it a nuisance?

Hint 7

Can't show actual injury , only damages awarded would be Nominal damages for Trespass. Either

Front 8

What is the benefit for claiming a Trespass rather than Nuisance?

Back 8

- Longer SOL

- Trespass offers Nominal Damages

Front 9

What must you have to sue for Standing?

Nuisance?
Trespass?

Back 9

- Trespass: Must be the current/ or future possessor of the property;
-Nuisance (interference w/ use and enjoyment of the land)

Front 10

Can you sue for invisible particles?

Back 10

Initially: NO trespass for invisible particles
Modern Rule: May sue for actual damages from invisible particles

Front 11

What are the Factors considered in the Traditional Test: Balancing of Equities?

(Nuisance: Determining Reasonableness)

Back 11

§ Factors:
□ Extent and character of interference (frequency, duration, continuity, proximity)
□ Utility of defendant's conduct and manner of operation (in compliance w/ sound technological principles)
□ Competing financial interests
□ Aesthetics (minor factor used in conjunction with other factors)
□ Economic & technical feasibility of avoiding interference
□ Appropriateness in relation to the locality
□ Legality of the act (e.g., compliance w/ zoning or ordinance may define something as a nuisance, e.g., weeds)
□ Whether the plaintiff came to the nuisance
□ Defendant's motive (e.g., spite fence)

Front 12

Should one be able to sue form obstruction of sunlight?

Back 12

Location? is a key factor:

What is the purpose?
- Use as source of energy or farming/ aesthetics?

Hint 12

Example: Use for solar panels and approached the neighbor with request w/ no reason not to use alternative area?

Front 13

Would one be able to sue for obstruction of view of the lake?

Back 13

NO. Probably not. Court will not get involved with disputes over mere aesthetics.

Hint 13

**BUT** What about reduction in property value??
- viable counterargument

Front 14

Is painting a "yuk" face looking at your house a nuisance?

Back 14

MOre likely found unreasonable if done out of spite.

Yes. Decent argument.

Front 15

Can Jehova's witness Sue for Christmas decorations?

Religious Issues...?

Back 15

NO, an ordinary persona would not find this unreasonable.

- will not satisfy duration
- freedom of religion

Hint 15

Example of nuisance: Big flashing lights on property

Front 16

What are the relevant questions to answer when considering Joint & Several Liability Issues?

J&S Checklist:

Back 16

What is joint and several liability?
When does it arise?
Does it survive the adoption of comparative principles?
Under joint and several liability, who may P sue?
What is the effect of P’s recovering
All or part of the judgment?
Granting a release?
Executing a covenant not to sue?
May a joint tortfeasor seek
Joinder of other tortfeasors?
Contribution of part of damages paid?
Indemnification for entire loss?

Front 17

What is the Definition of Joint & Several Liability?

Back 17

Two or more tortfeasors may be subject to liability for the same harm and may be sued by P, either together or separately.

Plaintiff can only have one recovery – either collect part from both or in full from one tortfeasor.

Hint 17

Example:


American Motorcycle: Based on the principle that all members of a conspiracy are liable for the acts of every other member in furtherance of the conspiracy. Then, law evolved into holding one party liable for the consequences of another because the original party’s negligence was A proximate cause of plaintiff’s injuries.

Front 18

Discuss/Distinguish

Contribution v. Indemnity:

Back 18

Mutually exclusive

Contribution: One tortfeasor who has paid more than his fair share collects from others

Indemnity: Tortfeasor who has paid seek to recover the full amount from the other tortfeasor (e.g., ER sues EE if ER is held liable under respondeat superior)

Front 19

Originally, What 3 Situations did Joint & Several Apply to?

Back 19

Indivisible harm to P was caused by tortious acts of two or more actors (Michie v. Great Lakes)
Where persons acting in concert tortiously caused harm to P whether or not divisible
Imposed by statute or other operation of law

Hint 19

*NOTE*: J&S applies to negligence, strict liability, reckless and intentional conduct

Front 20

Divisibility & Apportionment of Harm:

Back 20

P. 791 - Restatement 3d allows if damages for an injury can be divided by causation, then the damages are divisible. Jury will assign a percentage of responsibility and the amount of damages separately caused by that conduct. Burden of proof is typically on the party alleging that damages are divisible, usually defendant(s).

Hint 20

But see Bruckman v. Pena - To determine which party should bear the burden of proof on apportionment, ask yourself which party has the best access to information on apportionment.

Front 21

Apportionment:

Ways to Apportion:

(J&S Liabiity)

Back 21

Ways to apportion:
Distinct harms – 2 TFs independently shoot P, one in the arm and the other in the leg, this is divisible
Successive injuries – can divide injury by point in time (2 polluters over successive periods and clear that they caused separate harm)
Earlier wrongdoer will be liable for entire harm if person is negligently treated by a physician for the injuries caused by first wrongdoer. Physician will only be liable for additional harm caused by his negligence.
Divisible harm – can divide on reasonable and rational basis - cattle of two or more owners trespass onto land and damage crop (can divide based on number of cattle owned)

Front 22

J&S Liability applies to Indivisible Harm:

true or false?

Back 22

True.

Hint 22

Examples:


Examples by some courts:
Death or paralysis of a person
Single broken bone
Paralysis of all or part of body
Destruction of a house by fire
Sinking of a barge
Airplane crash
Vicarious liability since same act accounts for the liability of principal and agent
Harm results from failure of two or more persons to perform a common duty (e.g., both are to maintain a wall) since there is no rational basis to apportion

Front 23

Does Comparative Fault Abrogate J&S Liability?

Back 23

More courts are saying yes.

Number of jurisdictions that retain pure J&S liability is dwindling

But see American Motorcycle Ass’n, p 795

Hint 23

p 795

Front 24

What are the 5 Patterns of Tort Liability for Multiple Tortfeasors?

Back 24

1) J&S Liability
2)Pure Several Liability
3)J&S Liability with Reallocation
4)Hybrid liability based on threshold percentage of comparative responsibility

5)Hybrid liability based on type of damages

Hint 24

J&S Liability
Pure several liability – each joint tortfeasor (“TF”) is only liable for share of damages assigned to that defendant by factfinder, except for intentional TFs, those acting in concert, and vicarious liability (will remain J&S liable)
J&S liability with reallocation – liability of insolvent defendant is reallocated to other parties (if P not negligent, then is J&S liability)

Hybrid liability based on threshold percentage of comparative responsibility
Assign several liability to TFs with small percentage of responsibility, say less than 10%, and J&S liability to those with larger responsibility
Hybrid liability based on type of damages
For indivisible harms, make defendants J&S liable for harms like medical expenses and lost wages
Impose several liability for non-economic harms like pain and suffering

Front 25

Discuss "Apportionment" under the 3rd Restatement:

Back 25

NOTES on Apportionment under Rest 3d (to reduce Plaintiff’s recovery):
Courts go both ways in allowing fault to be allocated to immune parties.
Most courts will not let a Defendant allocate fault to other defendants in the case of intentional torts.
Some courts will reduce the amount P can recover if victim does not sue a party who is judgment proof.
Some courts will reduce judgment by settlement with other defendants, which makes sense because plaintiff should only have one recovery.