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TORTS II - BSL
Terms in this set (92)
Duty of Care
To exercise a reasonable amount of care and skill to avoid danger in the dealings with others. Failure is normally determined objectively.
The failure to act when one should. A public utility or common carrier that has undertaken the duty of serving the public becomes liable in tort when it fails to do so.
When the defendant misperforms the contract, the possibility of recovery in tort is generally augmented.
To permit the plaintiff to choose the theory of his action and dispose of the particular question accordingly.
The essential facts on which the plaintiff's claim rests.
Duty of Care - Repairs
An individual who undertakes to make a repair owes a duty to use care to those who may be foreseeably injured in case the repair is negligently made.
Tenants are under the duty to repair if the property is for private use. The landlord will be liable if the property was sold knowing that it will be used by the general public.
The promisor owes a duty to the promisee by virtue of that promise, but under another duty, apart from the contract, to an indefinite number of potential beneficiaries when performance has begun.
Failure to Act
Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care. Failure to render assistance may constitute actionable negligence if the injury is aggravated through lack of due care
Failure to Act - Foreseeability
The foundational element in the determination of whether a duty exists. It is based on the defendant's knowledge of the risk of injury and whether that knowledge may be an actual awareness of risk.
Failure to Act - Special Relationships
One person owes no duty to control the conduct of another, nor to warn those endangered by such conduct.
Failure to Act - Emotional Distress
Absent specific knowledge of plaintiff's unusual sensitivity, there should be no recovery for hypersensitive mental disturbance where a normal individual would not be affected under the circumstances.
Failure to Act - Emotional Distress from Injury to Third Party
A plaintiff may recover if plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers a reaction beyond which is not an abnormal response to the circumstances.
The Death-Telegram Rule
Emotional harm resulting from negligent transmission of a message announcing death.
Negligence - Unborn Children
Fetus subsequently born alive has no cause of action against a mother for unintentional infliction of prenatal injuries. A child born alive has a cause of action against his or her mother for negligent conduct that results in prenatal injury.
A cause of action brought by or on behalf of a defective child who claims that but for the defendant doctor's negligent advice to or treatment of its parents, the child would not have been born.
A cause of action of parents who claim that the negligent advice or treatment deprived them of the choice of avoiding conception or, as her, of terminating the pregnancy.
A small monetary award granted to vindicate a plaintiff when no actual damage was suffered.
These are intended to make the plaintiff whole again, to restore the plaintiff to the position they were in before the tort occurred.
An additional sum over awarded in order to punish and deter defendant and others from engaging in similar tortious conduct.
Falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large or small that it shocks the judicial conscience.
The 5 Cardinal Elements of Damages
(1) Past physical and mental pain, (2) Future physical and mental pain, (3) Future medical expenses, (4) Loss of earning capacity, and (5) Permanent disability and disfigurement.
Economic Losses - Medical Damages
Past medical expenses are proved by submitting the bills into evidence or through testimony. Future medical expenses proven by expert testimony establishing the anticipated need and predicated cost.
Economic Losses - Loss or Impairments of Future Earning Capacity
The jury must be persuaded that the injury is permanent. Then expert testimony is needed to assist the jury in estimating what the plaintiff would have earned during their lifetime.
Non-Economic Losses - Physical Pain and Suffering, Mental Anguish
They include not only suffering during the process, but also suffering reasonably certain to result from the injury in the future.
Non-Economic Losses - Loss of Function or Appearance
Recovery for the loss of the senses, incontinence, impotency and loss of desire for sexual intercourse and scars and other disfigurements.
Non-Economic Losses - Emotional Distress
Only if the plaintiff suffers physical injury or if plaintiff was exposed to physical injury due to the negligence of another and emotional distress results from a direct invasion of plaintiff rights such as in slander, libel, malicious prosecution, seduction or other willful, wanton, or malicious conduct.
Non-Economic Losses - Loss of Enjoyment of Life. "Hedonic Damages"
Courts have required that the plaintiff must be conscious, that is aware of the loss, in order to recover for the loss of enjoyment of some aspect of life.
Non-Economic Losses - Reduced Life Expectancy
There have been three major factors: (1) compensating for loss of life must preclude compensation for shortening life; (2) fear that duplication of damages may result; and (3) an unwillingness to enter a field filled with incalculable variables.
In cases of excessive verdicts, grant a motion for a new trial conditioned upon the refusal of the plaintiff to accept a lesser amount
When the verdict is inadequate, the trial judge may grant the motion for a new trial conditioned on the defendant's refusal to pay a larger sum
Collateral Source Rule
The damages owed to a victim should not be reduced because the victim is entitled to recover money from other sources such as an insurance policy.
Loss of Consortium
Compensation to a husband or wife for the loss of companionship of a spouse.
Mitigation of Damages Rule
A party that has suffered damages by the tortious conduct or breach of contract of another must take reasonable steps to minimize the extent of damages.
Punitive Damages - Intentional Torts
Generally permitted when defendant has committed an intentional tort such as assault, battery, false imprisonment, conversion, trespass, malicious prosecution, or IIED.
Punitive Damages - Negligent Torts
"Reckless disregard for the rights of others," or "willful misconduct, wantonness, recklessness, or want of care indicative of indifference to consequences."
BMW Guideposts to Punitive Damages
(1) The degree of harm caused (2) Was the tortious conduct a reckless disregard of the health or safety of others; (3) the victim had financial vulnerability; (4) the conduct involved repeated actions or was an isolated incident; and (5) the harm was the result of intentional malice, trickery, or deceit, or mere accident.
(1) "loss of support to his dependents; (2) the monetary value of services provided and would have continued to provide; (3) compensation for loss of society, love and affection; and (4) damages for funeral expenses."
An all or nothing legal defense by the defendant who feels that the conduct of the plaintiff contributed to the injuries or damages sustained by the plaintiff.
Doctrine of Last Clear Chance
Application of such defense may depend on whether the plaintiff is (1) helpless and unable to avoid the danger, or (2) merely inattentive.
Pure Comparative Negligence
The plaintiff's recovery is reduced by the percentage fault attributable to the plaintiff.
Modified Comparative Negligence
The plaintiff's recovery is reduced by the percentage of fault attributable to the plaintiff as long as the plaintiff's fault is not as great as..... the defendants.
Comparative Negligence - Burden of Proof
The burden of proof is on the defendant to show both that the plaintiff was negligent and that the plaintiff's negligent conduct was a proximate cause of the plaintiff's injuries.
A contract provision that attempts to release one party from liability in the event the other is injured.
Exceptions to Exculpatory Clause
(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other's negligence; and (3) when the transaction involves the public interest.
Assumption of Risk
A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.
Primary Implied Assumption of Risk
Defense in that the defendant was not negligent, either because he owed no duty to the plaintiff or because he did not breach the duty owed.
Secondary Implied Assumption of Risk
Plaintiff knowingly encounters a risk created by the defendant's negligence after the plaintiff establishes a prima facie case of negligence.
Imputed Contributory Negligence
Plaintiff's action for damages is barred or recovery is reduced, due to some action on the part of a third party and is dependent upon the relationship between the plaintiff and the third party either by master-servant or joint enterprise.
Statutes of Limitations - Accrual
A right of action accrues immediately upon the infliction or occurrence of injury.
Statutes of Repose
A concept that a time should arrive when a person is no longer responsible for a past act.
Avoids liability in tort under all circumstances, within the limits of the defense itself due to the status or position or relation of the defendant.
Vicarious Liability - Nondelegable Duties
One cannot avoid particular responsibilities by hiring someone else to discharge them, because of the importance of the duty.
Vicarious Liability - Apparent Authority
One who expressly or impliedly represents that another party is his servant or agent may be held vicariously liable for the negligent acts to the extent of that representation.
Vicarious Liability - Inherently or Intrinsically Dangerous Activities
It is not limited to abnormally dangerous activities such as blasting but when the activity involves a peculiar risk of harm that calls for more than ordinary precaution.
Vicarious Liability - Illegal Activities
One who contracts for performance of an illegal act is vicariously liable for any damage even if the agent is an independent contractor.
Vicarious Liability - Joint Enterprise Elements
(1) an agreement, express of implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right to control.
Vicarious Liability - Bailments
The temporary transfer of personal property by one party to another with the express or implied consent of the owner.
Vicarious Liability - Bailments - The Family Purpose Doctrine
The owner of an automobile is held vicariously liable when the car is negligently driven by a member of the immediate household.
Vicarious Liability - Bailments - Automobile Consent Statutes
It makes the owner of an automobile vicariously liable for injury caused by the negligent operation of the vehicle as long as it is being used within the owner's consent.
Vicarious Liability - Bailments - Omnibus Clause
Provides that liability insurance for the designated automobile applies to the names insured, any member of the insured's household, and to any person using the automobile with the insured's permission, provided the use was within the scope of permission.
Vicarious Liability - Bailments - Distinguish Negligent Entrustment
Just as the employer may be negligent in hiring an employee, the owner/bailor may be liable in entrusting the chattel to the bailee.
Vicarious Liability - Employer
Employer will be liable for employees negligent acts since employer has control over the business and stands to profit from the employee's services.
Vicarious Liability - Employer Defense
Coming and Going Rule
Frolic and Detour
When an agent does something during the course of his employment to further his own interests rather than the employer's. Determined by the employee's intent, the place and duration, the freedom in the job, and the reasonableness of the act.
Vicarious Liability - Joint Enterprises
There must be: an express or implied agreement between the parties; a common purpose; a pecuniary interest; and an equal voice in the direction of the enterprise.
Vicarious Liability - Independent Contractors
The decisive test for determining whether a person is an employee, or an independent contractor, is the right to control the physical details of the work. One who arranges for work to be done by an independent contractor is not vicariously liable for the contractor's torts.
A civil wrong that involves taking action that is so inherently dangerous under the circumstances of its performance that no amount of due care can make it safe.
Determining Strict Liability
Existence of the risk; Likelihood of great harm; Inability to eliminate risk by reasonable care; Activity is not a matter of common usage; Inappropriateness; the value of the community is less than its dangerous attributes.
Limitations to Strict Liability
The risk of harm that makes activity ultrahazardous; an act of God; Assumption of Risk; Comparative Negligence
Strict Liability - Animals
Defendant is not strictly liable for domesticated pets and livestock unless defendant knows of its vicious propensities. Defendant is strictly liable for wild animals. The injury must arise from the natural method of the animal.
The theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous
Five Aspects of Products Liability
Manufacturer's Defect; Failure to Inspect; Design Flaw; Failure to Properly Warn; Component Parts
Defenses to Product Liability
Contributory Negligence; Comparative Negligence; Assumption of Risk; Misuse; Alteration
Elements of Product Liability
Defendant manufactured and sold the product; Left the defendant's control; Defective Condition was unreasonably dangerous; No alterations; Product was the proximate cause of injury
Essay Wording Re: Product Liability
Seller of Defective Product liable if seller is engaged in the business of selling such product and it reaches the consumer without alteration. Liability applies even if seller exercised all possible care and preparation.
Product Liability - Plaintiff's Argument
Product WAS Manufactured by Defendant; Product WAS Defective and Injured Plaintiff; Defect WAS Present at Time of Sale
An unreasonable interference with a right common to the general public.
Determining a Public Nuisance
Whether the conduct involves: public health, public safety, public peace, public comfort; Prescribed by a statute, ordinance or administrative regulation; or has produced a permanent or long-lasting effect.
Recovery for Public Nuisance
One must have suffered harm of a kind different from that suffered by other members of the public
An unreasonable interference with another's use or enjoyment of a property interest in land.
Determining Private Nuisance
Vibration; Unsanitary Conditions on Adjoining Property; Smoke, Odor, Noise, Heat
Recovery for Private Nuisance
Owners or occupants of near-by property, persons temporarily on such property, or persons on a neighboring highway or other places.
A communication that tends to damage the plaintiff's reputation by diminishing the respect, good will, confidence, or esteem in which he is held, or to excite adverse or unpleasant feelings about him.
Elements of Defamation
the statement was defamatory refers to the plaintiff and was communicated to at least one third person who understands it and it caused harm to the plaintiff's reputation.
Defamation - Plaintiff's Pleadings
The defamatory words; there was communication to a third person; Extrinsic Facts / Inducement; A formal allegation / Colloquium; An allegation of the meaning conveyed / Innuendo; Special Damages
Written or printed words or simply by the permanency of the medium.
Publication of defamation by spoken words or gestures. Plaintiff must prove special damages unless the word spoken is within one of four classes.
Slander per se
slander involving false statements about sexual behavior, crimes, contagious diseases, and professional abilities
Libel per se
A statement whose injurious nature is apparent and requires no further proof
Communication of the defamatory words to someone other than the person defamed.
Sullivan Malice ("actual malice")
Knowledge that the statement was false or with reckless disregard of whether the statement was false
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