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Terms in this set (26)
Negligence Per Se Elements
1. Statute that prescribes standards of conduct.
2. Defendant violation of statute.
3. Plaintiff protected by statute.
4. Harm protected by statute.
Exceptions to P.O.P.
1. Insanity (used)
2. Intoxication (not used)
3. Superior Abilities (used)
4. Mental Handicaps (not used)
5. Physical Handicaps (used)
6. Children (AIE, Adult Activity Exception)
Res Ipsa Loquitur Elements
1. Activity would not occur without negligence.
2. Caused by an instrumentality within the exclusive control of the defendant.
3. Accident could not have happened through the plaintiff's own voluntary action.
"But For" Test
1. Identify the harm.
2. Identify the defendant's wrongful conduct.
3. Counter-factual hypothesis: correct the conduct.
4. Would the harm have occurred with the corrected conduct?
5. Answer the question.
Special Use Cause In Fact Tests
1. Substantial Factor
2. 3rd Restatement (NESS)
3. Alternative Liability
4. Concerted Action
5. Market Share Liability
6. Lost Opportunity
1. Multiple potential causes of an accident.
2. Defendant's tortious conduct was one of them.
3. Defendant's conduct was sufficient.
4. Competitor's conduct was sufficient.
5. Defendant's conduct was substantial.
3rd Restatement (NESS)
1. Must be a necessary component to a sufficient set.
1. Two or more actors is negligent and both are joined as defendants.
2. Harm is caused by one of them.
3. Uncertainty as to which caused the harm.
1. Defendant does a tortious act with another, pursuant to a common design.
2. Defendant knows the other party is committing a breach of duty and gives substantial encouragement or assistance.
3. Defendant gives substantial encouragement or assistance to another party and his own conduct constitutes a breach of duty.
Categories of Proximate Cause Cases
1. Unforeseeable harm.
2. Unforeseeable extent of harm.
3. Unforeseeable manner of harm.
4. Unforeseeable plaintiff.
Proximate Cause Tests
1. Risk Within Array
2. Refocused Breach
Risk Within Array
Discovers all foreseeable risks that the defendant should have guarded against and determines whether the accident falls within that array.
Focuses B<PL on the conduct at hand to determine whether this accident was foreseeable.
Types of Damages to Consider
1. Pain and Suffering
3. Future Earnings Capacity
1. Assumption of Risk
2. Contributory Negligence
3. Comparative Negligence
4. Failure to Mitigate Damages
5. Failure to Avoid Consequences
Comparative Negligence Options
1. Admiralty - include the nonparty as a defendant.
2. Defendant Liability - all of the nonparty's allocation goes to the defendants.
3. Proportionate Reallocation - the nonparty's allocation goes to both the plaintiff and defendant.
Options for Failure to Avoid Consequences
1. Forgive the FTAC and assign all damages to the defendant.
2. Total bar of any damages stemming from the FTAC.
3. Reduce the amount in proportion to the amount that could be avoided (third percentage).
Movement to Comparative Negligence
1. Abolishment of contributory negligence.
2. Assignment of percentage faults to defendants.
3. Abolishment of joint/several liability.
4. Assignment of percentage faults to nonparty tortfeasors.
Comparative Negligence Issues
1. Contribution and Indemnity
2. Imputed Negligence
3. Indivisible Injury
Imputed Negligence Situations
1. Vicarious Liability
2. Derivative Actions
1. Defendant causes a touch of the plaintiff.
2. Touch is harmful or offensive to a reasonable sense of dignity.
3. Intent or knowledge to a substantial certainty.
1. Defendant causes apprehension of imminent harm or offensive touch.
2. Apprehension was reasonable.
Intentional Infliction of Emotional Distress Elements
1. Defendant actually and proximately caused emotional distress.
2. Severe distress.
3. Defendant intent or reckless disregard for plaintiff's emotional distress.
4. Outrageous conduct.
(5. Person of Ordinary Prudence)
Intentional Tort Defenses
1. Self Defense
2. Defense of Others
3. Defense of Property
No Duty Rules
1. Lack of Privity (in some situations)
2. Nonfeasance (subject to exceptions)
3. Mental and Emotional Harm
4. Pure Economic Loss
2. Negligence Per Se
3. Res Ipsa Loquitur
Sets with similar terms
TORTS II - BSL