Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
46 Cards in this Set
- Front
- Back
|
General Rule of Duty to Rescue |
NO duty to rescue Exceptions: 1. Failure to prevent the injurious act: a. Enticement, Allurement, Invitations of infants to injury, Sufficiency of public ways, Machinery (Attractive Nuisance) 2. Duty to rescue a minor children or spouse 3. Duty created by statute (firemen, police) 4. Duty to render aid to car accidents 5. Negligently placing in peril |
|
|
What can potential rescuers still be found liable for under the Good Samaritan Doctrine? |
1. Recklessness, 2. Gross negligence, or 3. Willful and wanton disregard |
|
|
Alt. theories in regards to the GSD |
Francis Bohlen - Extreme Individualism No legal duty - right of individual not to act Difference between misfeasance and nonfeasance James Barr Ames - Good Samaritan Rule If you can save someone with little inconvenience to yourself, should exist a legal duty Richard Epstein - Strict Liability Standard No utilitarian analysis - too hard to apply No legal duty, individual liberty protected Richard Posner - True belief makes legal duty unnecessary If society believed affirmative duty existed, no legal incentive to do so Leslie Bender - Feminist Approach Feminist approach (interconnectedness) Care for others welfare Who cares about this approach anyways Vermont Healthcare Professionals Statute Duty of care to help in health care professions Rare
|
|
|
Duties for those with Invitees / Licensees / Slip Falls / Trespassers |
I: LL duty keep premises safe, fulfilled by reasonable inspection L: LL does not have to inspect property to ensure safety but must fix or warn of hidden dangers S: Invitee host duty to seek out / correct damages within reasonable time T: LL no affirmative legal duty, must use reasonable force if T won't leave |
|
|
Trespasser, Licensee, or Invitee? |
Status can change: Invitee, in store, no public bathroom, and employee lets you use bathroom, you cut hand on toilet? LICENSEE Customer went in area w/ no trespass sign? TRESPASSER If you are trespassing and someone invited you in house? LICENSEE If you are a licensee and then become and Invitee |
|
|
Factors of Attractive Nuisance |
(Neg standard applied) 1. He knows or has reason to know children are likely to trespass 2. There is an unreasonable risk of death or serious bodily harm 3. Due to child’s youth, child did not know of danger 4. Utility and burden of eliminating danger are small compared to risk to child 5. Landowner fails to use reasonable care to eliminate danger or otherwise protect child |
|
|
Exceptions to the legal duty to protect persons from others? |
1. Parent/child 2. Spouse 3. Landlord/tenant (debate over this) 4. Innkeepers(high duty) 5. Common carriers (high duty) 6. Doctors / Psychologist / Patients who make threat of violence 7. Babysitter 8. State / Foster parents |
|
|
D and P hit each other, SL standard? |
No. Two active forces can't be at fault under SL. |
|
|
Which standards for trespasser harm / damage? |
Immediate, direct harm? SL (Trespass) Indirect, consequential harm? Neg (Trespass on the case) |
|
|
Under Respondeat Superior, is an employer responsible for employee damages if it results from disobedience? |
Yes. Employer liable even if employee disobeys express orders. |
|
|
Can a lion tamer utilize SL over his employer if Simba bites his head off? |
No. No SL bc they are using it to make money or secure a benefit. Assumes the risk Part of activity is to secure benefit for yourself |
|
|
Why oppose SL standards? |
Fear of liability. Hinders societal progression, destroys business. Utilitarian: We need industry, capitalism, railroads, commerce, etc. Corrective Justice: Industry already compensates, todays P can be tomorrows D, encourages more lawsuits POSNER: If neg standard induces reasonable care, no need for SL. Force companies to find alt. means rather than more care. We're not perfect. |
|
|
Why promote SL standards? |
If societal harm outweighs social benefit we want SL to drive them out of business. Encourage businesses to do the right thing Cost-internalization If business socially responsible, it will survive Eco will strengthen incentive to produce safer activities / products. EPSTEIN: Stranger hurts another using reasonable care, held to SL standard |
|
|
Is reasonability an excuse as a defense to trespass to chattels? |
No, it is not an excuse as a defense. Exception: Intangible trespass |
|
|
Damages for Trespass to Chattels? |
Return chattel and compensate for damages. |
|
|
In Trespass to Chattels when does a P not have to accept returned chattel? Damages? |
Under severe trespass of conversion. P does not have to accept returned chattel. Damages: Returned chattel and damages or FMV of chattel |
|
|
Causes of action for nuisance? (6) |
Violation of: 1. K 2. Zoning 3. Deed 4. Statute 5. Code 6. Regulation |
|
|
How to determine if a nuisance is unreasonable |
1. Harm > Usefulness / Benefit or 2. Harm serious / feasible for P to compensate all P's If social benefit > harm, no injunction; damages may be paid out. |
|
|
List and discuss three categories of nuisance |
1. Intentional 2. Neg or reckless 3. Ultra-hazardous |
|
|
What is the Live and Let Live Doctrine? What are the two ways out of it? |
Nuisances are everywhere, everyone commits them.
Corrective Justice (everyone equal grounds) and Utilitarian (flood of litigation) Two ways out of the LLL Doctrine: 1. Property drops in value 2. Property actually damaged 3. Spite fences? No idea what this is doing here... |
|
|
P argument for coming to the nuisance? |
Corrective Justice: Causes detriment to larger area Utilitarian: Pro industry / development and safety |
|
|
D's argument for coming to the nuisance? |
Corrective Justice: First in time, first in right. Business will close, and P may buy land knowing he can sue for nuisance. Utilitarian: Eco waste, and P is cheaper cost avoider |
|
|
Judicial Discretion: Name the difficulties of permanent / temporary damages |
Permanent: 1. Estimating damages (past present future) 2. No incentive to abate the nuisance 3. Nuisance may increase 4. Not necessarily equitable Judge can make D pay more or less than what is equitable Temporary: 1. No closure 2. P must keep suing (burdens judicial docket) |
|
|
Types of Injunctions (6) |
1. Injunction: Immediate action 2. Postponed injunction: Injunction will be issued if nuisance is not abated 3. Conditional injunction: Injunction comes into effect if condition is not met (condition usually monetary damages) 4. Delayed injunction: Injunctions will issued at a set future date 5. Flexible injunction: Injunction to abate nuisance, but not necessarily leave the premises 6. Purchased injunction: P pays D to leave premises |
|
|
What is the original standard for Product Liability? |
Res Ipsa Loquitur is the original standard for Product Liability (assumed neg) 1. Doesn't happen without neg 2. Exclusive control at relevant time 3. P could not contribute in any meaningful way to harm |
|
|
What are Affirmative Defenses for Product Liability? What if consumer assumes risk of defect? |
RST 2 524: Consumer has no obligation to inspect product and is entitled to a safe product. If you discover defect and assume risk as consumer, apply Comparative Neg |
|
|
Comparative Neg: What are Majority Modified, Pure, and Minority Modified percentages? |
Maj M: P 50% to blame, gets 50% damages P 51% to blame, no damages Pure: P 99% to blame, still gets 1% damages Min M: P 49% to blame, 51% damages P 50% to blame, no damages |
|
|
TRAYNOR opinion on SL? |
Shifts standard for SL: "Time for SL in Products Liability" General public can't test products Loss Minimalized: Co. in best position to minimize losses and eliminate defects before they enter commerce Loss Spreading: Public eats loss anyway, victims get SL for cause of action |
|
|
Product packaging / preparation: Name the defective conditions of Defective Designs (4) |
1. Harmful ingredients (not part of product's presence or quantity) 2. Foreign objects contained in product 3. Decay or Deterioration before sale 4. Product preparation or packaging (SL says unreasonable danger to buyer if on arrival of product, is in a condition not contemplated by final consumer) Must arrive in safe condition |
|
|
Defective Designs: In regards to defective packaging / preparation, what isn't the seller liable for? |
i. Abnormal Handling ii. Abnormal Prep iii. Abnormal Consumption |
|
|
What are the components of the SL to seller for physical harm to consumer test? |
SL to seller of product that is unreasonably dangerous if: 1. Seller if professional in that market 2. Product must have reached consumer |
|
|
Defective Designs: What does P have the burden to prove? |
P does not have to prove negligence, just that D harmed and that D placed product in stream of commerce. |
|
|
What are the tests for Defective Design? (6) |
1. Consumer Expectations Test 2. RST 3 of Torts Alt. Design Test 3. Barker Test 4. Modified Barker Test 5. Risk-Utility Test 6. Wade's Seven Factor Test |
|
|
What are the factors to Wade's Test for Defective Design? (7) |
1. Utility 2. Likelihood of injury 3. Safer Alternative Substitute 4. Ability for Manufacturer to Eliminate Danger 5. Avoid Danger through use of Reasonable Care 6. Awareness of Danger 7. Loss Spreading |
|
|
State of the Art Defense for Defective Designs: When is product liability shielded? |
Just because your product is the safest on the market doesn’t mean you’re shielded from liability. |
|
|
What are the Traditional and Modern views of product modification? |
T: Only obligation is that it is reasonably safe at time it is put in stream of commerce; if somebody later modifies product, that makes it more dangerous, manufacturer is not liable M: Liable for reasonably foreseeable modifications Exception: Adequate warning on product |
|
|
What is the Open and Obvious Doctrine? |
Old law If a danger is open and obvious, it can be appreciated by plaintiff and he / she should not be able to recover This incentivized companies to make their defects obvious and open, and therefore more dangerous Today Open and Obvious Doctrine is relevant, but not dispositive |
|
|
Unavoidably Unsafe Products: RST 2 / 3 of prescription drugs |
RST 2: Some products are unavoidably unsafe but benefit outweighs the danger Does not protect against manufacturing defects Does not protect against adequate warnings RST 3: Plaintiff must show that the drug is hellishly dangerous and that no reasonable doctor would prescribe it to ANY class of patients (including terminally ill, extraordinary pain, last resort, etc.) Essentially creates absolute immunity to prescription drugs Pro-defendant |
|
|
What is the Learned Intermediary Doctrine? |
Applies to prescription drugs Pharmaceutical companies do not owe a legal duty to warn consumers, only doctors Doctors then distribute info to consumers through informed consent |
|
|
What is legally adequate warning (in re drugs)? |
If a risk can be discovered through reasonable testing, it is foreseeable Warnings of death does not cover all lessor warnings Fates worse than death Must be client-friendly language Must fairly indicate nature and extent of danger Hindsight approach Pharmacy’s duty to warn |
|
|
What is the pharmacy's duty to warn in a majority of jurisdictions? |
Majority of jurisdictions say there is no duty to warn Pharmacists will still warn because they don’t want to be first to be liable for failure to warn Doctors posses duty to warn through informed consent |
|
|
What are Inadequate Warnings? |
Inadequate Warnings are essentially defective warnings RST 2 402 (a): Strong presumption given to Ps that if they were warned properly they would have heeded the warning and not been injured Latin Attack RST 3-2: Warnings and Reasonable Alternative Designs are factors, among others, for the jury to consider in determining whether the product as designed is reasonably safe & MAYBE removes balancing test from jury Ds are liable if warning is inadequate for reasonable consumer Includes warning about the extent and nature of risk |
|
|
Inadequate Warnings: What all makes a good warning? (5) |
1. Clearly unequivocal 2. Comprehensible to ordinary consumer 3. Avoids label clutter 4. Stark, graphic prominently displayed 5. Fair indication of nature and extent of risk |
|
|
What is the standard for Inadequate Warnings' liability? |
Neg standard 1. Foreseeable risk of harm that could have been reduced by use of reasonable warning; not issuing this warning makes product not reasonably safe 2. P has to prove defendant could have used reasonable alternative |
|
|
Discuss the Post Sale Duty to Warn of Inadequate Warnings |
Unforeseeable risk only becomes foreseeable after product enters stream of commerce Traditional Rule: Manufacturer conduct judged at time of product entrance into stream of commerce (no liability) Modern Approach: If you discover danger you should try to protect the public from harm (Embraced by RST 3 §10) RST 3 §10: LIABILITY BY POST-SALE FAILURE TO WARN |
|
|
Manufacturing Defects and RST 3 (a)/(b) |
Manufacturing Defects: A random failure or imperfection; a human error or mistake. SL Applied: Manufacturer liable regardless of level of care used RST 3 §3 (a)/(b): Cased with injury but without evidence because there was no tangible proof (the product was destroyed) will go to jury. Assumption of causation by product if: (a) It was the kind of accident that ordinarily occurs as a result of product defect (b) The accident was notcaused solely as the result of other causes |
