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Torts: Class Summaries
Terms in this set (241)
Tort law is governed by _____
What are the three policy goals fo torts?
1. compensate victims of accidents
2. allocate liability fairly among responsible parties
3. to minimize the cost of accidents, avoiding accidents, and of administering the tort system
Defendant "intends" the consequences of his conduct if...
(1) their purpose is to bring about those consequences
(2) they know with substantial certainty that the consequences will result from their actions
Define: Know with substantial certainty
the defendant knew that it would happen; not that it might happen or even that there was a high risk that it would
Can young children have intent?
In many states (not all) young children are deemed incapable of having the intent to commit intentional torts until a certain age
If someone had intent, the fact that it was based on mistaken pretenses is ______
If someone has intent, the fact that they have an insane perception of the world is _______
What are the five classic intentional torts?
trespass to land
trespass to chattel
If the defendant intended to commit one of the five classic intentional torts against A, and ended up committing it against B, the defendant will be liable to ________. Why?
Because even though the defendant did not intend to commit the tort against B, the intent to commit the tort against A transfers
When is there transferred intent?
when a defendant intends to commit a tort against one person, but commits a different tort against that same person;
when a defendant intends to commit a tort against one person but commits the tort against another
On a motion to dismiss, the court will assume ____?
the court will assume the allegations in the complaint are true
On a motion for directed verdict, the court will ____?
view the facts in the light most favorable to the non-moving party
On a motion for summary judgment, the court will ____?
view the facts in the light most favorable to the non-moving party
On a motion for judgement notwithstanding the verdict, the court will ____?
view the facts in the light most favorable to the non-moving party
what does granting a dispositive motion mean?
there is no reasonable way for the non-moving party to win the case
what does denying a dispositive motion mean?
it means that the non-moving party at least has a chance to win
what are the two elements of battery?
(1) the defendant acted with an intent to cause a harmful or offensive touching to the plaintiff's person
(2) the intentional act caused a harmful or offensive touching to plaintiff's person
T or F: once the defendant has intent to commit a batter and causes a batter, the fact that the actual damages are far more serious than defendant intended is irrelevant.
(once a defendant meets the elements of the tort, he is liable for the full extent of damages that he ended up causing)
does not necessarily need to be directly on plaintiff's person; it might include something that plaintiff is holding or wearing
What are the two elements of assault?
(1) the defendant acted with an intent to cause a reasonable apprehension in plaintiff of an imminent battery
(2) the intentional act caused plaintiff to suffer a reasonable apprehension of an imminent battery
T or F: if a defendant is threatening a future battery, or is merely preparing to commit the battery, or is on his way to commit the battery, the plaintiff has a reasonable apprehension of an imminent battery
(imminent means imminent; plaintiff must be "in range" and the defendant must be acting overtly)
the plaintiff expected the imminent battery
it is not that he or she necessarily feared it
what are the three elements of false imprisonment?
(1) the defendant acted with an intent to confine or restrain plaintiff in a bounded area
(2) that act caused plaintiff to knowingly be confined or restrained in a bounded area
and (3) defendant lacked legal authority to do this
what does means of confinement or restraint include?
physical barriers, force or threat or force, invalid use of legal authority, and maybe even a threat of damage or loss to reputation or property
T or F: For false imprisonment, the Restatement and some states allow actual injury to substitute for knowledge of confinement.
(There is no majority rule on this point)
T or F: plaintiff is not confined if he or she knows or reasonably should know of a reasonable means to escape
(even if plaintiff doesn't know about the escape opportunity, defendant might think plaintiff does, and so defendant might not have intent)
T or F: false imprisonment will not be found if plaintiff stayed in the space on their own volition.
Define: False arrest
it is a subset of false imprisonment
Plaintiff was arrested without lawful authority
(in absence of probable cause or without a warrant, etc)
What are the elements of intentional infliction of emotional distress (IIED)?
(1) extreme and outrageous conduct by defendant
(2) with intent to cause plaintiff to suffer severe emotional distress
(3) causing plaintiff severe emotional distress
(Bar for this is high by requiring extreme and outrageous conduct and severe emotional distress)
How is IIED different from the five classic intentional torts? (3 reasons)
(1) IIED requires damages
(2) judges are more likely to take IIED cases away from juries
(3) transferred intent does not apply
T or F: in some jurisdictions, recklessness, a lower standard than intent, suffices for the intent element of IIED
(theres is no majority rule on this point)
what are the four elements to trespass to land?
(1) intent by defendant to invade real property
(2) invading the real property
(3) the property is plaintiff's
(4) there is no authorization by plaintiff
(the invasion began be by defendant's person or by any other person or object that defendant causes to go onto the property)
T or F: Trespass to land includes the invasion of small zones of air above the land and ground below
(How far above or below this goes is subject to balancing that turns on the extent of the interference with plaintiff's use or employment of land)
What are the three elements to trespass to chattels?
(1) intent by defendant to use or intermeddle with a chattel
(2) chattel was in plaintiff's possession
(3) this results in one of three things
-(a) impairing the chattel's condition, quality or value
-(b) depriving plaintiff of the use of the chattel for a substantial period of time or completely dispossessing plaintiff of the chattel
-(c) harm to plaintiff or a legally protected interest of plaintiff
an intentional exercise of dominion over a chattel that so seriously interferes with the right of the owner to control it that the defendant may justly be required to pay the plaintiff the full value of the chattel
How is conversion distinct from trespass to chattel?
the remedy to conversion is forced sale
the remedy to trespass to chattels is recovering the amount of the diminution in value or other damages
Transferred intent also does not apply to conversion
T or F: if the defendant purchased the chattel in good faith, this might defeat the plaintiff's conversion claim
(Defendant will have to show either that the plaintiff lost the chattel through some means other than theft, or that defendant bought the chattel from someone in the business of selling chattels like that. But if the chattel was stolen, and if the good-faith purchaser bought it less formally (like on Craigslist), defendant will lose even if he or she was a good-faith purchaser.)
What are the privileges that a defendant can establish as an affirmative defense for an action that would otherwise be an intentional tort? (there are 5)
2. Self Defense
3. Defense of others
4. Defense of property
5. Recovery of property
Define the affirmative defense of consent
defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant's act; consent can be expressly spoken or written, but it can also be implied
T or F: Consent given by mistake is invalid
False; consent given by mistake is valid unless the defendant induced the mistake by means of misrepresentation, fraud, or duress, etc, or if the defendant otherwise should have known that the plaintiff was giving consent based on a false pretense
T or F: It is a majority rule that consent to a criminal act is invalid
Define the affirmative defense of Self Defense
defendant is not liable for an otherwise tortious act (usually battery) if:
(1) it was performed under a reasonable belief by defendant that he or she is being attacked or is about to be attacked; and
(2) it constituted reasonable force
Define: reasonable force
it was reasonable to use force and the amount of force used was reasonable
T or F: in self defense, a majority of states require retreat when doing so is reasonably safe
This is a minority rule
(even these states don't require defendant to retreat from his or her home)
Define the affirmative defense of Defense of others
If a third party would have been privileged to use self defense, defendant is privileged to use reasonable force on the third party's behalf
Define the affirmative defense of Defense of property
Defendant is privileged to use reasonable force to prevent the commission of a tort against his or her property; the amount of force that is reasonable will be less than that for self defense, and deadly force will pretty much never be reasonable for property
Define the affirmative defense of Recovery of property
Defendant may be privileged to use reasonable force to recover a chattel, as opposed to relying on legal process; defendant must be in an uninterrupted "fresh pursuit" of plaintiff; allows for even less force than defense of others and defense of property
T or F: For recovery of property, a mistake does not vitiate the privilege
a mistake, even a reasonable one, vitiates the privilege, except for shopkeepers who reasonably suspect shoplifting
Defendant may commit an intentional tort against plaintiff if reasonably necessary to avoid injury or damage
What three things does the threatened damage need to be in order to invoke necessity?
(1)natural and external; (2) substantially more serious than the interference with plaintiff's interests; and (3) sudden, unexpected, and temporary
Define: Public necessity
if the defendant is acting to prevent threatened damage to the public at large, the privilege is an absolute one and defendant need not pay for any damages caused to the plaintiff's property
Define: Private necessity
if the defendant is acting to protect a personal interest, he or she must compensate plaintiff for actual damage to plaintiff's property, nit under the law they are still "privileged" to act as they did.
(any privilege that plaintiff would otherwise have had to eject defendant will be overridden by defendant's necessity)
T or F: otherwise tortious acts may be rendered non-tortious if performed pursuant to legal authority and within the bounds of that authority
True; they are privileged to use force, but cannot use excessive force
T or F: common law permits teachers, parents, etc. to use reasonable force to discipline their children/students without being liable for intentional torts
How do you establish liability for negligence?
(1) defendant had a duty to plaintiff to exercise some level of care but (2) breached that duty by exercising less care than was required, (3) thereby causing damage to plaintiff
(duty, breach, causation, and damages)
Define: The Learned Hand Test
conduct falls below reasonable care when B<PL
B--> Burden (the cost of taking steps to avoid the risk and the benefits sacrificed as a result)
PL=Risk of harm
P--> Probability of the harm occurring
L--> Magnitude of the harm if it occurs
if the burden for the party of avoiding a risk of harm is less than the risk itself, then the party is negligent for not undertaking that burden
T or F: the learned hand test is the only way to determine reasonable care
False; it is only one way to determine reasonable care
The reasonable prudent person standard is _____, with some _____ components
Define: reasonable prudent person
person of ordinary intelligence, perception, and memory with the physical characteristics, abilities, and disabilities of thee actor, and any relevant additional specialized knowledge, skills or experience that the actor has.
T or F: a customary practice can be used as evidence of care or lack thereof exercised by a reasonable person in that context
T or F: the context of the specific situation in which the defendant found themselves does not need to be considered when establishing whether reasonable care was used
false; context must be considered
T or F: a child is held to a mostly subjective standard when establishing whether reasonable care was used (the level of care of a reasonable child of a similar age, intelligence, maturity, and experience)
T or F: It is a minority rule that children under a certain age cannot be considered negligent at all
False; this is a majority rule. In many states, children under a certain age cannot be considered negligent.
T or F: children engaged in adult activities (motorized vehicles or heavy equipment) are held to the adult standard
T or F: Majority rule--Insanity is not a defense to negligence
True; the insane are he'd to the standard of a person of ordinary intelligence, perception and memory
people who have jobs that require lots of training and education and are government by detailed and coherent internal standards
T or F: Professionals are subject to an objective standard that dispenses with the usual language or reasonableness
True; Professionals are held to the standard of an ordinary member of their profession
T or F: specialists are subject to the standards of an average person of their specialty if their specialty is relevant to the case
False; they are subjected to the standard of an ordinary member of their specialty
(an average person would make about half of the profession always negligent)
T or F: liability for malpractice can be premised on a disagreement over, or failure of, technique or tactics.
Define: Informed Consent
a subset of medical malpractice; a patient may sue if he or she is not told of a risk of injury from a medical procedure, they have the procedure, and they have suffered an injury
T or F: there is no majority rule when it comes to informed consent
In some states, doctors in IC cases are held to the baseline professional duty of care (we require plaintiff to show that the ordinary level of professional care mandates disclosure and failure to do so is a breach of duty)
Other states subscribe to the reasonable patient rule where a doctor must disclose material risks if a reasonable patient would want to know and would carefully consider
For informed consent, we must also examine ______ after duty and breach have been found
causation; this is because we need to see whether disclosure would have changed a patient's decision to undergo treatment
T or F: Almost all states require a plaintiff to make an objective showing (that a reasonable patient in the plaintiff's position would have changed her mind and not had the procedure done) in addition to the subjective showing that the patient themselves would have changed their mind
True; this rule comes from thee Canterbury case
T or F: doctors do not need to disclose any profit or research interests of theirs underlying their treatment
False; they must disclose that information prior to treatment
Define: negligence per se
When proving a violation of a criminal or regulatory statute or an administrative regulation may be sufficient to establish the duty and breach elements of negligence
Negligence per say is an alternative method of establishing what
negligence; a plaintiff might be able to show a breach of NPS and a breach of another duty (the two inquiries are separate)
Before the statute can be used for NPS, the court must fund that the injury at is ______, and that the victim is _____
of the sort that the statute meant to prevent; of the sort that the statute is meant to protect
before the statute can be used for NPS, the court must fund that the statute is ______
appropriate for translation into civil duty
Some factors that might make a statute inappropriate to use for NPS include:
-whether it creates inherent difficulty in proving causation
-whether it creates a new duty (the most important and most often confused factor)
-whether it provides liability that is too strict
-whether it provides for disproportionate liability
-whether it represents too vague of a duty
What is the majority rule regarding the effect of NPS?
duty and breach are established automatically for unexcused violations of a usable statute
What are the excuses for duty and breach with NPS?
incapacity or reasonable inability to comply; reasonable lack of knowledge of violation; emergency; greater harm from compliance than violation
What is the minority rule regarding the effect of NPS?
the burden is on the defendant to show that he or she did exercise reasonable care (which does not lead to results that are all that different from the majority rule)
even smaller minority: NPS is only ever evidence of unreasonableness
T or F: Compliance with a statute may be evidence of reasonable care, but it will not establish any sort of "non-negligence per se"
T or F: Direct evidence is not required to prove the elements of a tort
True; circumstantial evidence is okay; if a reasonable jury can infer what a party is trying to establish, then it is permissible for a jury to use that evidence no matter how circumstantial it may be
Define: Res Ispa Loquitur
If a plaintiff cannot allege what exactly the defendant has done, it may suffice to allege defendant's negligence through negative inference
(helps a plaintiff survive a motion to dismiss or motion for summary judgement)
How does one establish res ipsa loquitur?
(1) the accident is of a type that normally would not occur unless someone was negligent; and (2) defendant exercised substantial control over whatever caused the injury so it probably wasn't someone else's negligence here; therefore (3) the accident more than likely was caused by defendants negligence
What are the two parts of causation?
causation in fact and proximate cause
Define: Causation in fact
show that BUT FOR the party's tort, the damages at issue would not have occurred.
If the damages still would have occurred, there is no causation in fact
T or F: there can only be one cause-in-fact of an injury
False; theres can be more than one and there often is
it does not matter whether a cause is sufficient or not; what matters is that it was necessary
Define: Causal link
the negligence at issue must be something that makes the result more likely
(but for cause will not be enough to establish causation-in-fact if it is a mere coincidence)
How do you prove but-for causation?
plaintiff must produce evidence to argue that defendant more than likely caused the injury; plaintiff needs at least some evidence that defendant's tort did cause the injury
What happens when you have two sufficient causes of an injury?
The but-for-causes cancel each other out and neither defendant is liable under the but-for test
ONLY IN THIS SITUATION causation can be based instead on whether an individual causes was a substantial factor in causing the harm
T or F: A court may shift the burden of proof on causation to multiple negligent defendants where there are multiple possible tortious causes and there is no way for plaintiff to pinpoint which caused the injury
True; In Summers v. Tice the court held that where there are multiple possible causes and you cannot pinpoint the specific cause to your injury, a plaintiff can recover by shifting the burden of causation to multiple negligent defendants
(EX: two negligent shooters with no way of knowing which shot did the damage)
T or F: Using market share to apportion liability is a majority rule
False; it is not common and it is limited to Sindell-like contexts
Define: Proximate Cause
how broadly the court wishes to allow a defendant to be held responsible for damages that he or she causes-in fact
it is the scope of liability
T or F: Foreseeability is irrelevant when evaluating proximate cause
False; a major part of the proximate cause analysis looks to whether the injury was a foreseeable result of the defendant's negligence; the more foreseeable it is, the more likely defendant was the proximate cause
(this is often a jury question)
In most states, the ______ is what must be foreseeable, rather than the precise method of its occurrence or the magnitude of the injury
type of accident
The further away you are from the incident, the ____ likely you are to be within the scope of risk.
Less; See Palsgraf
Often times many of the completed proximate cause cases are left to ____
Define: intervening causes
causes in fact of an injury that arise subsequent in time to defendant's negligence, may or may not supersede defendant's negligence
Define: Superseding cause
an intervening causes that cuts off defendant's responsibility or forces a conclusion that defendant's negligence was not a proximate cause of plaintiff's injury
An intervening cause is more likely to be superseding if it is ______
An intervening cause is more likely to be superseding if it is ______ of defendant's negligence as opposed to flowing from it.
there are __________ in which there might otherwise be proximate cause but the courts declare that there is not, as a matter of policy.
public policy exceptions
Ex: a social host cannot be a proximate cause of harms to the victims of their drunk driving guests; defendants cannot proximately cause harm to plaintiffs who had not been conceived when the operative injury was inflicted
Define: Contributory negligence
precludes plaintiff from prevailing if he or she was at all a negligent cause of the injury, regardless of the extent of defendant's negligence
Exceptions to Contributory Negligence
-allowing plaintiff to recover if the defendant had the last clear chance to prevent the injury
-treating plaintiff more forgivingly when determining if he or she was a proximate cause of his or her injury
Define: Comparative negligence
plaintiff can still recover if she is negligent, but has her award reduced by the percentage of her fault
(most states have some adopt of this rule)
Define: Pure Comparative Negligence
plaintiff can recover something even if she is 99% responsible
(minority of states who use comparative negligence use this)
Define: Modified comparative negligence
plaintiff's recovery is reduced according to her percentage of fault to a point; he or she cannot recover anything if he or she is mostly at fault (more than 50% of the responsibility in some states, 50% or more of the responsibility in others)
Define: Last Clear Chance
Plaintiff's negligence is generally not a defense to ______
If a plaintiff unreasonably fails to _______, he or she cannot recover for the resulting incremental increase in damages.
define: Express assumption of risk
if plaintiff is injured but had contracted not to hold defendant responsible for such injures, the contract will be enforced to bar suit
Exceptions to Express Assumption of Risk (3)
1. the contract contravenes public policy (mainly includes contracts for essential services where plaintiff had no real bargaining power) or defendant's tort was an intentional or wanton and willful
2. the injury was medical malpractice
3. the contract waived application of a safety statute
Define: Implied assumption of risk
the jurisdiction must still use it
plaintiff must have actual knowledge of the risk, have an appreciation of its magnitude, and must voluntarily encounter the risk.
if it applies, the plaintiff's claim is completely barred
Exception to implied assumption of risk
encountering risk while acting pursuant to a reasonable necessity, making the encounter of the risk involuntary
Define: Statutes of Limitations
procedural rules limiting the time plaintiff has to file a lawsuit; procedural
Statutes of Limitations is subject to _____ and _____
waiver; equitable tolling
Define: Waiver for statutes of limitations
it is a use it or lose it rule argument for defendant
Define: equitable tolling for statutes of limitations
most states begin the SOL clock only upon plaintiff's constructive knowledge of the injury and enough facts that would start a reasonable plaintiff toward discovering defendant's apparent tortious causation of it
Define: Continuing tort Doctrine
allows suit for an entire continuous tort, starting the SOL count only when the tort ends
Define: Statutes of Repose
give a firm outer bound for the timing of the suits; they are not subject to the discovery rule or to waiver; they are substantive; clock starts when defendant performs the tortious action in question, regardless of when the injury occurs or is discovered
T or F: spousal immunity is a majority rule
False; most states have completely abrogated spousal immunity; of the minority that keep it, most eliminate it in part for things like intentional torts, car accidents, or obvious exceptions where the beneficial relationship that immunity purports to protect is absent
T or F: the partial abrogation of parent/child immunity is a majority rule
True; most keep the immunity for actions that are core parental activity; others eliminate immunity only for things like intentional torts, car accident, and obvious exceptions where the beneficial relationship that immunity purports to protect is absent
T or F: When immunity has been abrogated, spouses and parents may face a lighter burden on duty/breach in negligence cases
Define: Governmental immunity
prevents federal, state, and local governments from liability for torts
T or F: in most states, governmental immunity has been voluntarily waived
True; where waiver applies, it allows suits against the government for torts by public officials; under these waivers the suit is against the government, and the official becomes immune
One common context in which most states waive immunity is for _____
Define: Proprietary actions
Certain business-like activities performed by governmental bodies that are usually associated with the private sector, and are not given immunity from tort liability.
Even when they are retained, governmental immunity and governmental-employee immunity are general limited to ________.
Define: Discretionary duties
An act involving an exercise of personal judgement
Immunity as to ministerial duties is _____.
T or F: legislators, judges, and prosecutors do not get immunity for torts committed in the scope of their positions
False; they typically get absolute immunity
Other officials typically get "good faith" immunity, though a ______ of states give total immunity to these officials.
T or F: One's ability to sue the government usually comes attached to an inability to sue the employee.
Define: joint and several liability
each defendant is liable for all the damages; defendants are liable for more than just their particular individual "fair share" of liability
What are the three typical contexts in which joint and several liability are applied?
1. defendants acting in concert
2. vicarious liability
3. if the jurisdiction has not decreed otherwise, an indivisible harm
what is the most important policy issue in joint and several liability?
Who bears the risk of an insolvent (unable to pay debt) defendant
What has led to the scaling back of joint and several liability for indivisible harm in many states?
T or F: The majority rule is that Joint and several liability is kept for indivisible harm
False; there is no majority rule.
Define: Full Satisfaction
when a plaintiff has already collected full payment from one joint tortfeasor through judgement or settlement and cannot proceed against any other of the joint tortfeasors
Define: Partial Satisfaction
when a plaintiff receives part of a payment from one joint tortfeasor through judgement; partial satisfaction is subtracted from any judgement against the joint tortfeasors
Define: pro tanto reduction
Reduction is dollar for dollar; puts the risk of the initial settlement on the defendant's shoulders
Define: Pro rata reduction
reduction based on percentages; puts the risk of the initial settlement being good or bad on the plaintiff's shoulder
If plaintiff received money from a collateral source (ex: life insurance) because of an injury, in most states it is __________ from a judgement as a partial satisfaction would be.
T or F: intentional tortfeasors can seek contribution from one another
a defendant who is jointly and severally liable and pays more than his fair share can seek contribution from other joint tortfeasors who paid less than their fair share
T or F: For the purposes of contribution, it is required that the plaintiff sue other joint tortfeasors
False; it is not required that a plaintiff have sued these other joint tortfeasors, but it is required that plaintiff could have done so at some point
if a defendant's share is 0% and the contributor's is 100%, contribution is for the full amount defendant paid
In most states, a _______ renders the settler immune from contribution actions brought by other joint tortfeasors.
good faith settlement
T or F: It is impossible for plaintiff C to recover for the negligence of A when A breached a contractual duty it owed to B
False; you owe a duty to those who might foreseeably be injured by your negligent affirmative acts
T or F: Nonfeasance gives a right to sue only in contracts, not torts
failure to perform a required act or duty
performing an act improperly or agreeing to do something with no intention of ever performing
T or F: Misfeasance or partial performance can only be sued in contracts
False; they can both be addressed in a tort action
What are the significant exceptions that would implicate a duty to rescue? (5)
1. businesses toward their customers
2. bosses and their helpless employees
3. person controlling the instrumentality of harm
4. person creating the harm (even if not negligent)
5. person who has undertaken a rescue
T or F: the duty to rescue is a majority rule
False; in most states, there is no general duty to rescue
T or F: There is no general duty to protect people from a third party
What are the exceptions where you would have to protect someone from a third party? (2)
1. a special relationship between defendant and plaintiff (parent, employer, etc)
2. a special relationship of control or responsibility between defendant and the third party (ex: psychiatrist and patient who kill plaintiff)
Define: Negligent infliction of emotional distress
a negligence case in which defendant caused emotional harm but no physical injury
What must be shown for negligent infliction of emotional distress?
1. emotional reaction must manifest itself with definite and objective physical effects
2. a normal person would suffer an emotional reaction passing the threshold
T or F: You can recover for negligent infliction of emotional distress by witnessing an injury to another
True; however, many states require that you be in the zone of danger of physical injury; states may also require that the plaintiff be a close family member of the victim (no majority rule)
Can a plaintiff recover for injuries suffered in utero?
Yes, a viable fetus can recover for injuries suffered in utero if it is born alive; in most states, it can also recover if it is not born alive; you can potentially recover for pre-viability injuries if there is sufficient evidence of causation
What is wrongful birth?
If a child is born, and but for defendant's negligence the parents would have aborted him or her because of a defect
What are the damages for wrongful birth
Damages may include emotional injury, extra cost of child-rearing caused by the defect, or in some places the entire cost of child-rearing
"plusses of parenting" should be subtracted from any of these damages
Can a child sue for wrongful life?
only in a small minority of states allow a child to sue for wrongful life with the argument that but for defendant's negligence plaintiff's parents would have aborted him or her
Damages for wrongful life
the states that allow it generally limit damages to the medical expenses presented by the defect, they do not allow for the recovery for the existential torment of a traumatic life because the alternative of non-existence is considered to be even worse (or at least incommensurable) as a matter of law
T/F: a defendant landowner has no duty to protect a plaintiff off of the premises from natural occurrences that stem on/from defendant's land
True: for things involving human agency, though, defendant owes a duty of reasonable car. Trees are treated like the latter, not the former-- defendant owes a duty of ordinary care if he has knowledge or constructive knowledge that a tree may cause damage
Who is a licensee
a licensee is someone on the defendant's property for his own purpose (includes: social guests, solicitors, and basically anyone who is not an invitee)
What are the two parts of the defendant's duty to a licensee
1) to not be willful or wanton
2) to warn of hidden dangers that are unknown to the licensee but actually known to the defendant
T/F: a defendant owes a higher duty of reasonableness to a licensee
False the higher duty of reasonableness is owed to an invitee
When a defendant is conducting active operations on his property what duty does he owe and to who
the duty the defendant owes is a duty of reasonable care not only to invitees but to licensees (and also to actually-known trespassers)
When can a person switch categories (i.e. licensee to invitee or vice versa)
a social guest does not become an invitee merely by providing an incidental service to the defendant but at a certain point licensees can become invitees and vice versa
Who is an invitee?
invitees are business visitors including customers, employees, delivery, repair, etc
T/F: the landowner owes invitees an increased duty- more than ordinary care
False: the landowners owe invitees an unreduced duty- typically ordinary care
How can an invitee become a licensee
if you stay past the basis of your invitee status and/or go past the physical area of your invitee status you may become a licensee
When is a defendant's limited duty to trespassers heightened?
it is heightened as to children under the attractive nuisance doctrine
what is the attractive nuisance doctrine?
the dangerous condition must be artificial
defendant must have actual or constructive knowledge that
1) children are likely to be on the premises (attracted by the attractive nuisance)
2) the dangerous condition must presents very unreasonable risk of serious bodily harm. The child must be unaware of the hazard or the level of risk it presents because of his or her youth
T/F: many states have abolished the categories of licensee versus invitee and jury apply a duty of reasonable care to both
True however there is no majority rule
Does the majority still apply a reduced duty towards trespassers
Yes though a clear minority abolish the trespasser/non-trespasser distinction too
Majority rule for landlords owing a duty to guests of their tenants
in most jurisdictions landlords owe no duty to guests of their tenants other than in certain exception situations
What is the Coase Theorem?
1) assuming no transaction costs, the same final result in a system will occur regardless of the initial allocation of rights/duties/liability because the parties will bargain around the initial situation
2) in the real world there are transaction costs, so it makes sense to impose liability on the side that has lower transaction costs
T/F: lump-sum damage is a way to determine future damages
False: tort law attempts to redress injury only through the rough method of lump-sum money damages
What are the compensatory damages?
damages are generally divided between economic damages (things like medical expenses, lost wages, loss of services, loss of consortium) and non-economic damages (pain and suffering, disfigurement)
What are future damages
typically require expert testimony- on likely future needs, counterfactual career paths, discount rates, etc
_________ economic damages must be discounted when they are being compensated with a lump sum paid today. What is this called?
Future; and this is the discount rate
What is the standard discount rate
Usually between 0-3% but other courts calculate it ad hoc at least for special categories of damages where price changes vary from the rest of the economy
T/F: personal injury damages are generally taxable, but other compensatory damages are not and punitive damages are generally not taxable
False: person injury damages generally are not taxable, but other compensatory damages are and punitive damages generally are
When can a court order a new trial or remittitur on defendant's motion?
when there was an arguably excessive damages award... court will give the plaintiff the option of either accepting a lower reasonable award or rejecting it and opting instead for a new trial
what is the standard for excessiveness in damages?
it is whether a reasonable jury could have awarded this amount
T/F: When a defendant causes physical harm to property the damages awarded to the plaintiff is for 10% more than the market value
False--> Damages for physical harm to property are based on fair market value--assuming an open market, voluntary sale, leisurely seller, and willing buyer--at time and place of injury. A reasonable additional amount is allowed for sentimental value for some items.
The purpose of ____________ ______________ is to punish defendant and deter defendant and others from similar actions
In most states punitive require plaintiff to prove:
wanton and willful conduct by defendant by clear and convincing evidence
Which standard does the court use for punitive damages and compensatory damages
In reviewing punitive damages awards, courts use the same standard for excessiveness as for compensatory damages, but also look to proportionality between punitives and compensatories.
Insurance coverage for punitive damages?
Many states do not allow insurance coverage for punitive damages
T/F: only 10 states allow suits for wrongful death
False: every state now allows suits for wrongful death
depending on the jurisdiction either the personal representative of the estate or the next of kin during the suit
What are the damages for wrongful death
Damages may be measured, respectively, from the decedent's perspective (mainly lost earnings) or from the survivors' (mainly lost support and services, and, in some states, emotional damages).
T/F: wrongful death is a free-standing tort
False: Wrongful death is not a free-standing tort. It is a special case for damages—when the tort causes death, it provides special civil-procedure requirements. Any wrongful-death case will have to be based on an underlying tort (like negligence, battery, etc.)
What happens when states use survival statutes?
most states no longer terminate a cause of action upon the death of one of the parties
This applies both to cases in which the death is related to the issue of the suit, and those where it is not. In the former cases, some states combine survival and wrongful death to allow decedent to recover in a single claim for losses and suffering before death as well as post-mortem damages.
Define respondeat superior
an employer is liable for the tort of its employee committed in the scope of employment, regardless of whether the employer is free from tortious conduct itself
T/F: An employer may be liable under a regular negligence theory but not vicarious liability
False: As a separate (non-vicarious) matter, the employer may be liable directly under a regular negligence theory (e.g., negligent hiring or supervision) in addition to or instead of vicarious liability.
What is a frolic
during work hours but too far outside the scope of the enterprise
If the employee was negligent but was on a frolic is the employer liable?
No, but the employer will be liable if it is a minor detour of sort that the employer expects or tolerates
What type of liability is applied to intentional tort by an employee when it is more directly within the scope of the employment that with negligence
Are employers liable for independent contractors?
Employers are not vicariously liable for the negligence of their independent contractors, unless the tort was in the scope of the IC doing something "non-delegable." Examples of the latter are car repair, construction, inherently dangerous activities, and crimes.
A participant in a ____________ ____________ is vicariously liable for the torts of other participants, assuming the tortious act is within the scope of the enterprise
For a participant in a joint enterprise to be vicariously liable they must have what?
They must generally have some control over the negligent party's actions as opposed to merely being a passive investor in the enterprise
T/F: I own a car, but I let my boyfriend drive it and he is an idiot (because all men suck) and he commits a tort with my car, but I am not vicariously liable
False In most states, the owner of a car is vicariously liable for the torts committed by someone to whom he or she lent it, in the scope of the lending.
What two things can vicarious liability impute
Negligence and comparative negligence'
That is, if X would be liable for Y's negligence vicariously were X a defendant, he will also be saddled with Y's negligence when he (X) is a plaintiff, and thus will have his recovery reduced or eliminated accordingly. X stands in Y's shoes either way. This is generally limited, however, to vicarious liability relationships involving control (i.e. respondeat superior, non-delegable duties, and joint enterprise, but not car owner/lender).
Owners of domesticated and wild animals have what type of liability for damages?
Wild animal owners have strict liability for damages the animals do
Owners of domesticated animals have strict liability if there is knowledge or constructive knowledge that the animal has destructive tendencies
If someone conducts abnormally dangerous activities what type of liability would they have
They would be strictly liable for damages they cause
How to determine if there is abnormal danger?
Generally based on Restatement 520 which looks to the risk and magnitude of harm, location, commonness, value to the community, and most importantly whether there would be serious risk of harm even after the exercise of reasonable care
If serious damages would occur even with the exercise of reasonable care, then the negligence standard is not adequate. This gives the legislature and the courts two possible courses of action which are?
(1) They can ban the activity in question (leading to criminal liability and perhaps "negligence per se" civil liability)
(2) They can impose strict liability, which guarantees that all victims will be compensated (not just victims of unreasonable carelessness), but also allows the activity to continue.
If the defendant is subject to strict liability for engaging in an activity what must the plaintiff still establish?
the plaintiff still must establish causation in fact, proximate cause, and damages before defendant will be liable
What are the defenses to strict loability
comparative negligence and in rare places where it has not be abolished implied assumption of the risk
What is not a defense to strict liabilty
contributory negligence is not
List the theories that may be available for liability for dangerously defective products and indicate which one can always be used
negligence theory, express warranty theory, strict liability
negligence is always available as a possibility
What is the negligence standard for products liability
that the manufacturer owes a duty of care to foreseeable users of the product, regardless of privity of contract , if the product would be likely to cause injury if negligently made. If that duty is breached, causing damages, defendant is liable. This doesn't really vary from our existing understanding of negligence.
Express warranty theory for products liability
Manufacturers making material representations about their products that turn out to be false are, effectively, strictly liable for damages caused by reasonable reliance on those representations. Privity is irrelevant.
Implied warranty for products liability
a seller or manufacturer impliedly warrants that an item sold is reasonably fit for the general purpose for which it is manufactured and sold. The manufacturer is strictly liable for damages caused when this warranty is broken. Privity is irrelevant. A consumer can bargain away this implied warranty (such as by buying a product with a very limited express warranty), but it must really be bargained away (that is, there must be some choice).
T/F: in most states implied warranty is available to use for products liabilty
False: in most states implied warranty is not available anymore
According to the restatement when are manufacturers strictly liable for defective conditions in their products?
when the products are not materially altered after leaving manufacturer's control (i.e. defect must have been present when the product left the manufacturer's hands)
Majority approach that distinguished between manufacturing, design, and warning defects
3rd restatement--> It maintains strict liability for manufacturing defects (which are defects in which there is a material deviation from the intended design of a product), but not for design or warning defects. Negligence is available for all three types of defects, though.
What are design defects?
those that stem from the manufacturing specifications; the inherent design of the product gives it dangerous propensities
How do we prove a design defect?
By using the risk-utility balancing test
what is the risk-utility balancing test
basically boils down to a learned hand test like analysis of the benefits and risks of a particular design
While most states use the risk-utility test what do the other states use instead?
they use instead or in addition to the risk-utility test, the consumer expectation test
what is the consumer expectation test?
there is a defect only if a consumer has a reasonable expectation as to use or performance or safety therein of product which the product fails to meet
What do most states require prior to a design being ruled as defective
they require that there be a practically and economically feasible alternative design that would have avoided the injury in this case
T/F: there is liability for inadequate warning or instructions if there is a foreseeable risk of harm that could have been reduced or avoided by an adequate warning
What is the adequacy of warning based on?
getting people's attention, informing them of the risk, and informing them how to avoid the risk
What is a defense to failure to warn?
lack of constructive knowledge
However, there is a continuing duty to warn of subsequently discovered dangers subject only to a negligence standard
Obvious risks do or do not require additional warning
they do not since the obviousness of the danger is its own warning
A hypersensitive plaintiff can be entitled to what?
Hypersensitive plaintiffs may still be entitled to warning, based on how widespread the hypersensitivity is, and how serious it is.
How does an individual plaintiff establish causation
they must be able to show that an adequate warning would have prevented his or her damages
This means that a sophisticated user may not need as much warning. It also means that someone who doesn't follow directions may not be able to establish causation, though plaintiff is entitled to a (rebuttable) presumption that he or she would have heeded an adequate warning.
Comparative fault in products liability cases
most states use it including in strict liability cases but plaintiff's negligence is not discovering the defect is not included in comparative negligence here
________ can vitiate various aspects of products liability
Misuse; it can eliminate the notion that there is a defect (if the misuse is not reasonably foreseeable) or that there is proximate cause and it can also be used to show comparative fault
What type of liability are wholesalers and retailers typically subject too?
strict liability for defective products
T/F: if wholesalers and retailers are found liable they cannot seek indemnity from others higher up the chain
False they can seek indemnity
In some jurisdictions the sellers of used goods are....?
excluded from strict liability regardless of whether the manufacturer is strictly liable
Services and strict liability for defective products
there generally is no strict liability for providers of services even if they sell the defective product but the sale has to be incidental to selling the service
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