Torts Ii Last Minute Cram Sesh

Front 1

Rescuer is liable to the helpless person for bodily harm he causes when he

Back 1

1. He fails to exercise reasonable care in securing the victim's safety
2. He discontinues aid and leaves P in a worse position than he was in when he took charge of him.

Hint 1

2 possibilities

Front 2

Can also be liable for negligently preventing or disabling another's rescue if you

Back 2

know or should know that a third person is giving or ready to give another aid necessary to prevent physical harm

Front 3

If you create a continuing risk of physical harm that is a proximate cause of your conduct, you have a duty to

Back 3

exercise reasonable care to prevent or minimize the harm (duty attaches regardless of fault in creating the risk)

Hint 3

icy trucks stalled on highway, no warning despite ample time

Front 4

Attractive nuisance - A possessor land is liable for physical harm to children trespassers if

Back 4

1. artificial condition on the land
2. possessor knows or has reason to know that children are likely to trespass AND
3. Children do not discover the condition or realize the risk involved (A of R)
4. Utility of the condition and the burden of eliminating it are slight as compared with the risk to children involved, and
5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

Hint 4

3 requirements

Front 5

An actor is is liable for negligence in voluntary undertaking that he knows or should know reduces the risk of physical harm to the other if

Back 5

1. his negligence increases the risk of harm beyond that which existed without his undertaking OR
2. The person to whom the services are rendered or another RELIES on him exercising reasonable care in the undertaking.

Front 6

No duty to prevent 3rd person from causing physical harm to another unless

Back 6

1. spécial relationship which imposes a duty on actor to control 3rd person's conduct
2. special relationship which gives the other a right to protection (LL, innkeeper, bus system - duty of reasonable care to protect tenants from foreseeable criminal acts by 3rd parties)

Front 7

Duty of reasonable care to third persons with regard to risk posed by other arising in the scope of relationship (examples)

Back 7

parent with dependent children, custodian with those in custody, mental health professional and patients (most likely no duty unless victim is reasonably identifiable)

Front 8

Policy reasons for departing from no duty rule

Back 8

foreseeability, special relationship, control, reasonably identifiable victim, utility/cheaper precaution

Front 9

RST 6 factors for finding an abnormally dangerous activity

Back 9

1. Existence of a high degree of risk of some harm
2. Likelihood that such harm will be great
3. Inability to eliminate the risk through reasonable care
4. Activity is not one of common usage
5. Activity is inappropriate to the place where its carried on
6. Extent that activity’s value to the community is outweighed by its dangerous attributes

Front 10

RTT 20 - An activity is abnormally dangerous if

Back 10

1. It creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and
2. The activity is not one of common usage.

Front 11

policy reasons for SL regime for product defects

Back 11

fairness, loss minimization, cheapest cost avoider, loss spreading, insurance against liability, incentivize manufacturers to make safer products and to take precautions to guard against future hazards

Front 12

Manufacturing defect - P must prove

Back 12

1. the product is different from the others in its line AND
2. the defect is a proximate cause and cause in fact of P's injury

Front 13

Design defect - RU test

Back 13

jury balances risk of danger inherent in the design against the benefits of the design; might need experts; lots of leeway to jurors

Front 14

RTT design defect claims for prescription drugs and medical devices (not usually used)

Back 14

PD or MD not reasonably safe due to defective design if the foreseeable risks of harm posed by it are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health care providers would not prescribe it for ANY class of plaintiffs

Front 15

Gore Guideposts for Reviewing Punitive Damages

Back 15

1. Reprehensibility of the D's misconduct
2. Disparity between actual or potential harm suffered by the P and the punitive damages award (needs to be a nexus between D's conduct and damages given; 1:9 or less)
3. Difference between punitive damages awarded and the civil penalties for comparable cases

Front 16

Collateral source rule

Back 16

Ps in personal injury actions can still recover full damages even though they have already been compensated for their injuries by other collateral sources (e.g. insurance policies)

Hint 16

majority view treats gratuitous sources the same

Front 17

Rationales for CSR

Back 17

1. Deterrence purpose still needs to be served
2. Gap filler for attorney’s fees and other costs to P
3. Substantive fairness – unfair for D to benefit from P’s risk-averseness
4. Don’t want to discourage people from getting insurance

Front 18

Common law defense of truth - defined and rationales

Back 18

D must establish substantial truth

Rationales - promotes caution, puts the burden on the speaker; presumption that the P has a good reputation; hard to prove a negative - that something's not true

Front 19

Fair comment privilege

Back 19

qualified privilege for opinion based on facts that are fairly and accurately described

Front 20

Fair and accurate summary of government proceedings and investigations

Back 20

qualified privilege; summary is defamatory if it carries a greater sting than the government report itself

Front 21

public officials

Back 21

those who have substantial responsibility and control over public affairs (police officers, political candidates, etc.)

Front 22

public figure

Back 22

a person of general prominence or someone who thrusts themselves into the center of a controversy

Front 23

rationales for parent-child immunity

Back 23

1. Promotes family harmony
2. Legal liability interferes with parental discipline
3. Depletion of the family fisk
4. Possibility of fraud/collusion for insurance money
5. Criminal law sufficient to address these harms

Front 24

Modern approaches to parent-child immunity

Back 24

1. Abolish immunity, apply tort principles
2. Abolish immunity, apply reasonably prudent parent standard
3. Abolish immunity, retain 2 exceptions:
Exercise of parental authority
Ordinary parental discretion

Front 25

Rationale for charitable immunity

Back 25

improper diversion of donor funds from their original purpose; don't want to deter charitable giving

Front 26

Exceptions to charitable immunity (vary from jurisdiction to jurisdiction)

Back 26

1. Officers or directors performing high level corporate acts like hiring
2. If the tort occurred in the course of non charitable business activities.
3. Immunity restricted to the recipients of the benefits of the charity.
4. Immunity linked to depletion of the charitable trust assets.

Front 27

Wrongful death

Back 27

gives compensation for what the decedent would have spent on the survivors (loss of survivor approach)

loss to estate - full value of the life; used in GA

Front 28

respondeat superior

Back 28

An employer is strictly liable for torts committed by employee in the course of his employment.

Front 29

Benefits of modern approach (premises liability)

Back 29

fairness (case-by-case)
status still relevant for foreseeability
promotes safety
flexible instead of rule that's a historical anachronism

Front 30

Benefits of traditional approach (premises liability)

Back 30

more clear
more predictable (can guide our actions)
liberty, property, autonomy
fairness (trespasser = wrongdoer)
exceptions can mitigate its harshness