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Law - torts
1st year torts BYU - Nunez
79
Law
04/12/2008

Additional Law Flashcards

 


 

Cards

Term
Intentional Torts Categories
Definition

Battery

Assault

Trespass on Land

Trespass on chattels 

Intentional Infliction of Emotional Distress 

 False Imprisonment

 

Term
Theories of Recovery
Definition

Intentional Torts

Negligence

Strict Liability 

Term
Intent
Definition

1. Purpose to cause harmful/offensive contact

2.  Knowledge contact is substantially certain

(Maj.) Don't consider knowledge of ultimate consequence OR motive

(Min.) Must have substantial certainty of ultimate consequence 

Term
Insane liability for torts
Definition

Same as sane person - avoid having to prove sanity:

General rule: capable of forming intent & have intent 

Term
Transferred Intent
Definition

Allowed for

1. Battery

2. Assault

3. False Imprisonment

4. Trespass to land

5. Trespass to chattels 

Term
Battery
Definition

Rest:

1. Intent to cause h/o contact (includes lacking consent)

2. h/o contact occurs

 

Other rule
1. Intent to cause contact

2. whether contact occurred 

3. Whether contact was h/o

-Consent is affirmative defense

-No intent to cause h/o contact requirement 

 

Contact w/ any extension of a person is sufficient 

Term
Assault
Definition

1. Intent of imminent h/o contact OR apprehension of imminent h/o contace

2. Reasonable apprehension of imminent h/o contact  by victim

 

--No harm required

--Must be able to realize battery 

Term
False Imprisonment
Definition

1. Intent to restrain

2. Restraint is unlawful w/ no reasonable escape (includes water, threat of force, inproper arrest)

3. Against will (must be concious of restraint) 

Term
Intentional Infliction of Emotional Distress
Definition

Outrageous conduct

Intent

Result of SED

Causality (some require it being caused by a threat to physical well being)

 

Rest.

Caused SED w/o privilege

Intent to cause SED

Substantially certain to cause SED

(must tolerate all bounds of tolerated societal activity) 

 

No transferred intent 

 

Term
Trespass to Land
Definition

Unauthorized/unlawful entry w/ intent to be in location (strict liability if you think you're not trespassing).

Interference w/ enjoyment of property

Continuing presence after license/invitation expires

Exceed scope of invitation

Must be a tangible invasion (smoke most extreme) 

 

No damage requirement 

Term
Defenses and Privileges to Intentional Torts
Definition

Express consent

Implied consent

Self Defense

Defense of others

Defense of Property

Necessity

Justification 

Term
Express Consent
Definition

expressly given

No consent if given through deceit or fraud 

Term
Implied Consent
Definition

Implied in Fact (RPP standard)

Implied in Law (bright line rule, e.g. sport rules)

Implied consent to medical care 

Term
Consent to medical care
Definition

Implied consent to medical care

1. Innability to give consent

2. Risk serious bodily harm

3. Reasonable person would consent

4. No reason to believe the person wouldn't consent

 

Express consent

Absolutely required if it can be given prior to an operation 

Term
Selfe Defense and Defense of Others
Definition

Reasonable force permitted to protect from an imminent battery

Mistake based on reasonable belief is an excuse

No retaliation allowed

Retreat not required by majority 

Term
Defense of Property
Definition
A single life is worth more than property - except castle doctrine or is trespass involves threat of death, or serious bodily injury
Term
Public Necessity
Definition

Natural right, independent of society or civil government

 

Term
Necessity regarding private property
Definition

Partial privilege:

No trespass, but liable for damages (insurance issue) 

Term
Justification
Definition

Catch all privilege

Can use it if nothing else fits 

Term
Negligence
Definition
  • Duty
    • imposed by law
  • Breach
  • Causation
    • Causation in fact
      • but-for
      • substantial factor
    • Proximate
  • Damages
    • Actual - not nominal
Term
Experts and RPP
Definition
Rest: holds them to a higher standard, CL does not
Term
Standard of care for Minors
Definition
  • Maj: Minors never held to adult standard of care
  • Robinson Rule: Inherently dangerous activity  = adult standard of care
  • Rest: Activity normally performed by adults which requires adult qualification = adult standard of care.
    • Also consider
      • maturity
      • intelligence
      • training
      • experince
Term
Custom and standard of care
Definition
  • Custom usage is only dispositive in medical standard of care.
  • Otherwise can be taken into account, but doesn't provide RPP standard because custom can lag behind RPP.
Term
Professional negligence
Definition
  • Ordinary member of profession in good standing (not average)
    • knowledge
    • training
    • skill
  • Doesn't apply to teachers/clergy
Term
Medical standard of care
Definition
  • Duty regarding
    • learning
    • judgment
    • diligence
  • Custom is dispositive: proven by expert unless obvious to layman
    • locality
    • similar locality
    • national
Term
Informed Consent
Definition
  • Duty:
    • Inform patient of factors likely to affect decision.
      • matierial information
      • physician's interests
  • Breach (3 options depending on jurisdiction)
    • subjective (particular patient)
    • RPP
    • RP physician (custom)
  • Causation
    • Show patient (subjective) or RPP wouldn't have completed operation w/ all appropriate information
  • Damages
    • must exist
Term
Attorney Malpractice
Definition
  • Not liable
    • act in good faith
    • loss due to error of judgment or mistake regarding unsettled law
  • Liable (any one = negligence)
    • Lack knowledge skills of a RP attorney
    • Not diligent
    • Bad faith
Term
Burden of prevention
Definition
  • RPP doesn't necessarily prevent damages in extraordinary circumstances - takes ordinary steps.
  • Hand formula B<PL =  duty of care
    • Good way to consider reasonability: not a  hard, fast rule because how do you put value on human life?
Term
Rules of law
Definition

Bright line rules

Opposite of RPP analysis

Pros/cons 

Term
Violations of statutes
Definition
  • Is statute applicable?
    • Harm it intended to protect?
    • Class of persons it intended to protect?
    • Does statute authorize or did legislature intend a private right of action?
      • If not you can still use to help establish RPP
  • Procedural effect of statute
    • Negligence per se (common)
    • Rebuttable presumption (common)
    • Some evidence (minority)
  • Criminal statutes generally don't establish standard of care = have different burden of proof
Term
Evidence
Definition
  • Direct (witness)
  • Circumstantial (inferences form logical chainfootprints) 
  • Res Ipsa: fact of accident raises inference of neligence 
Term
Res Ipsa Loquitur
Definition

Policy: Get it to the jury

  • Applicability?
    • Instrumentality in exclusive control of D
      • Ybarra exception:
        • P has no possible fault = someone must be guilty and need incentive to not cover for each other - they have evidence
    • Accident ordinarily won't occur w/o negligence
  • Procedural effect (3 options)
    • Inference of negligence
    • Presumption of negligence (50/50 D wins)
    • Shift burden of proof (50/50 P wins)
    • (Directed verdict: No way D could rebut presumption of negligence)
Term
Res ipsa vs. negligence per se
Definition
  • Per se:
    • establishes duty - not breach
  • Res ipsa: jury still must determine duty
    • burden shifting possible
Term
Proof of negligence
Definition
  • Duty: Must show D had actual or constructive notice of an unreasonable risk
  • Breach: Must show D failed to excercise reasonable care to fix it.
  • Constructive notice:
    • Dangerous business practice
      • Log showing cleaning hadn't occurred
      • Banana peel must have been on floor for a longtime
Term
Causation in fact
Definition
  1. More likely than not
    1. but-for
    2. substantial factor 
    • Common sense view - can't always rely on statistics (blue/yellow taxi)
    • Must be probable, not a mere possibility
Term
Decrease in chance of survival
Definition
  • Was D's act a substantial factor in bringing about harm.
  • But-for gets complicated here due to chance (%) of survival.
Term
Expert Testimony (re. Causation)
Definition
  • Daubert: 2 Prong test
    • Reliability (is it good science)
      • Factors
        • Generally accepted (Fry test)
        • Peer reviewed
        • Tested, capable of testing
        • Rate of error
        • Research done for litigation purposes
    • Relevance
      • Whether it makes sense to the issue before the court
Term
Concurrent Causes
Definition
  • Which party caused harm?
    • 2 but-fors = both liable (joint and several liability)
    • If either would have independently caused harm = no but for, but still substantial factor.
    • Drug companies: causes injury but who made it is unknown
      • Liable for market share
        • (Some) can prove it didn't make it
        • (some) must have all makers as parties
        • (some) can sue one and let it indemnify the others
Term
Proximate cause
Definition
  • Policy question of whether D is liable
  • Toolbox:
    • foreseeability
      • eggshell plaintiff
    • direct v. remote
    •     where spark fell
    • chain of events (natural/unbroken)
    • Range/zone of apprehension (train/fireworks)
    • duty to world at large (train/fireworks)
    • Intervening/superseding
      • but-for w/ two negligent actors
      • malicious/criminal intent
      • Suicide
        • irrestible impulse
        • substantial factor
        • intentional torts only
Term
Duty of Care
Definition

Arises from special relationships

Employer-ee

Innkeeper-guest

Business owner-invitee

Parent-child

Nurse-patient

Guard-prison

Spouse

 

ALSO:

Invitee

Licensee

Trespasser 

Term
Land owner duty of care
Definition
  • Invitee: serve interests of owner
    • Reasonable duty of care in keeping premises safe
  • Licensee: social guest (there w/ permission)
    • warn of hidden dangers
  • Trespasser: no permission/expired permission
    • (split)
    •  
      • Reasonable care once aware of her (can be constructive knowledge)
      • No wilful/wanton negligence
Term
Duty regarding children on land
Definition
  • Rest: Majority: Liable for physical harm to children trespassers caused by an artificial condition if 5 conditions are met.
    • Knows or has reason to know children are likely to trespas
    • Unreasonable risk of death/serious injury to children
    • Children don't comprehend danger
    • B<PL (Able to alleviate risk in comparison w/ degree of risk)
    • Landowner fails in duty to excercise reasonable care
  • Attractive nuisance doctrine (minority):
    • Duty to protect children from temptation that will lead them onto land
  • Britt rule (rejected): Duty only applies to what actually attracted children onto land.
Term
Duty to prevent harm to 3rd Parties
Definition

Relationships of control:

  • Forseeable and sufficient control/ability to prevent harm.
    • Constructive Knowledge - reason to know
  • Like B>PL
  • Think wife w/ sexual abuse by husband to girls
  • Think of doctors regarding outpatient
    • If know/reason to know of risk = duty of care to 3rd party
Term
Failure to Act/Duty to rescue
Definition
  • Generally not duty
  • Exceptions:
    • Cause harm/risk
    • Begin to rescue, cause reliance, and stop
      • Negligently terminating a gratuitous service
    • there is a special relationship
Term
Causation
Definition

Need both:  

Causation in fact (but for)

Proximate Cause 

Term
Causation in fact
Definition
  • More likely than not actions caused accident
    • But for (But for D's negligence would harm have occurred)
      • usually it must be a probablility - not a mere possiblity - unless relying on #'s doesn't make sense (taxi case)
      • 2 concurrent/indepent causes
        • Both liable for whole damage
    • Substantial Factor: (Was negligence a substantial factor in causing harm)
Term
Daubert Test
Definition
  • 2 Prong test for expert testimony/information proving a product caused harm
    • Reliabilty (is it good science)
      • Illustrative factors
        • Generally accepted (fry test)
        • Peer reviewed
        • Tested? capable of being testing?
        • Rate of error
        • Research done for litigation pruposes
    • Relevance
      • Whether it makes sense to the question the jury is to determine.
Term
Intervening/Superceding
Definition
Was it reasonably foreseeable/expected or rather an extraordinary act by a third party?
Term
Economic Loss
Definition

Generally no recovery

Policy: foreseeability; or it is like a duty to rescue someone from a bad situation. 

Term
Emotional Distress (caused by negligence)
Definition
  • Pure emotional distress = no recovery
  • Rules:
    • Physical impact rule
    • Physical manifestation rule
    • Zone of danger: Physical consequence + fear for self.
    • Dillon Balancing Test:
      • Physical proximity: near scene
      • Temporal proximity: witness accident
      • Relational proximity: closely related to victim
    • Thing rule: (bright line - all required: mom wasn't present = no recovery)
      • Close relation
      • Present at action
      • Serious emotional distress (more than a non-related bystander, but not too much)
Term
Public officals on private property
Definition
Classification/duty towards depends widely on jurisdiction.
Term
Damages
Definition
  • Nominal: trivial amount to vindicate rights
  • Compensatory: make plaintiff whole
    • Look at loss/suffering of plaintiff
  • Punitive: Punish, deter, make example of
    • Look at defendant's actions
Must be awarded in one lump sum (one shot for past, current, future)
 
Can use graphs, photos, videos, computer models to help jury calculate damages 
Term
Joint and Several Liability
Definition
  • All defendants are fully liable.
  • Plaintiff can collect full judgement in from defendants as she sees fit (all from one, etc.)
  • Defendant can then file action for contribution against other defendants (if its worth it).
    • Different from action to indemnify: suing others (employees, agents) that are responsible for judgment against you.
  • If not allowed in jurisdiction and multiple Ds:
    • Jury must determine % of each D's negligence and award damages based on this calculation.
    • If not all negligent actors are present will use emply chair defendants and assign appropriate % of negligence/damages to non-person.
      • Think of strategic advantages to not bringing someone

 

Term
Special Damages
Definition

Economic, out of pocket costs

  • Loss of earnings
  • Medical expenses
  • Loss or impairment of future earning capacity
    • different ways to calculate present value 
Term
General Damages
Definition

Pain, suffering, emotional distress

  • Physical pain and suffering (includes future)
  • Mental anguish (includes future)
  • Loss of function or appearance
  • Emotional distress
  • Litigation induced stress (minority)
  • Loss of enjoyment of life (majority)
  • Reduced life expectancy (Engl. not U.S.)
Per diem requirement: break suffering down into days, determine value of a day, multiply it by days of suffering. 
    Likely leads to big recovery (me) 
Term
Fear of jury bias in rewarding damages
Definition
Judge orders bifurcated trial - one for liability, one for damages
Term
remittitur/additur
Definition
  • Remittitur: Judge determines jury verdict is excessive
  • Additur: Judge determines jury verdict is insufficient
  • New trial ordered (Jdmt NOV) unless parties agree to a more appropriate amount.
  • Maximum recovery rule: Judge acts as most lenient juror to plaintiff and determines if judgment is unreasonably high
  • Shocking to the conscious rule:
Term
Due Process re. damages
Definition
  • 14th Amendment dictates notions of fairness regarding penalty
  • Gore test: 3 guideposts
    • Reprehensibility of Ds conduct
    • Disparity of compensatory and punitive damages
      • 9:1 allowed
      • <4:1 preferred
    • Compare punitive damages to penalties imposed otherwise under law
      • Can't consider penalties from criminal statutes = different burden of proof
Term
Contributory Negligence
Definition
  • P was negligent too
  • Complete bar to recovery
  • (4 states and DC still use)
  • Exception: Last clear chance rule
    • If D had chance to avoid accident after P no longer did = no bar to recovery
  • Doesn't apply to intentional torts
Term
Comparative Negligence
Definition

Ds liability is decreased by % of P's negligence

  • Pure: P recovers for % of D's negligence
  • 50% rule: P can recover % is her negligence is not greater than D's
  • 49% rule: P must have less fault than D
  • Slight/gross rule: P's negligence must be slight in comparison to D's 
Term
Defenses
Definition

Assumption of risk

Contributory negligence

Comparative negligence

Government immunity

 

Term
Loss of consortium
Definition

Spouse sues for loss of companionship

(many jurisdictions are eliminating)

Term
Express assumption of risk
Definition
  • via K generally
  • Valid on face
    • Does risk fall w/i unambiguous terms of agreement?
  • Does K violate public policy?
    • Intentional, wanton, reckless, gross negligence allowed under K?
    • Grossly unequal bargaining power?
      • Contract of adhesion
        • Take it or leave it
      • Must provide an essential service w/ extremely limited options to consumer.
        • e.g. all competitors use same exculpatory clause or no option to buy out of clause
    • Public interest (totality of circumstances)
      • Tunkl test
Term
Tunkl test
Definition

Express assumption of risk

  • Factors:
    • business suitable for regulation
    • business performs important public service
    • business is willing to serve any member of community
    • business had decisive advantage in bargaining power
    • No offer to pay more and not sign adhesion K
    • P was subject to risk of carelessness by seller
Term
Implied assumption of risk
Definition

(outhouse plunge case)

  • 2 part test
    • Voluntarily encounter risk
    • Knowledge (subjective)
      • aware of risk
      • appreciate risk
Fuzzy line between contributory negligence and this rule.  Throwing in analysis couldn't hurt.
    I imagine P could not assume risk but still have some contributory negligence (it would just be <50%. 
Term
State/federal immunities
Definition
  • Immunity for:
    • legislative acts
    • judicial acts
    • executive discretionary acts (establishing policy)
  • No immunity for:
    • Executive ministerial acts (implementing policy)
  • Minority:
    • Same duty for states as munincipalities
Federal immunity from Federal Torts Claims Act
Term
City/Munincipality immunities
Definition
  • Majority:
    • Proprietary (business) activities vs. government functions.
  • Minority:
    • No duty to public at large, but when someone relies to their detriment a duty exists
      • e.g. calling 911 and not receiving help
Term
Assumption of Risk (summary)
Definition
  • Express
    • w/i terms of agreement
    • Does K violate public policy?
      • Tunkl test
  • Implied
    • Voluntarily encounter risk
    • Knowledge (subjective)
      • aware of risk
      • appreciate risk
Term
Respondeat Superior
Definition

Vicarious Liability

  • Employee or independent contractor?
    • sufficient control of physical details of work
  • If employee does Respondeat superior apply?
    • w/i scope of employment
    • going/coming rule (doesn't apply)
    • detour/frolic
      • nature of deviation
      • expectations of employer
      • liberties allowed in employment
  • Applies even if violating company policy.
Term
Strict Liability (categories)
Definition

Animal trespass

Animal injury to humans

Abnormally dangerous activity

Products liability 

Term
Animal trespass
Definition

Strict liability

  • 4 rules
    • Strict liability
    • Fencing in (D's fence)
    • Fencing out (P's well maintained fence)
    • Negligence
  • Roaming of cats/dogs exempt from all rules except negligence
Term
Animals causing injury to humans
Definition

Strict Liability

  • Domestic or wild?
    • Wild = strict liability. (defined broadly)
  • If domestic:
    • Maj. Rest: Strict liability if P has reason to know of vicious propensity?
    • Min.: Negligence
    • Min.: Entitled to one bite
Term
Abnormally dangerous activity
Definition

Strict Liability

  • Rest.: Should strict liabilty due to nature of risk? (B>PL).
    • Factors
      • Degree of risk
      • Likelihood of great harm
      • Inability to eliminate risk w/ due care
        • Posner's favorite
      • Extent activity is uncommon
      • Inappropriateness of location
      • Value of action to the community
    • Focus on risk from activity - not item itself 
  • Rylands v. Fletcher
    • Blackburn: Strict liability for anything you bring onto land that causes damage if not contained
    • Cairn: Strict liability for non-natural use of land
Term
Defenses/limitations on strict liability
Definition

Act of God

Purpose for abnormally dangerous classification (mink farm)

Assumption of risk 

Term
Product liability: tort or K?
Definition
  • nonfeasance (failure to fulfill K): K claim - must have privity
  • misfeasance (failure to adequately perform K):
    • Privity = K
    • No privity = tort
  • If privity is required then consumers must sue sellers who then sue consumers
  • Originally this was all under K, but law eventually eliminated need for privity and ability to disclaim warranty = strict liabililty 
Term
Actions to bring for product liability
Definition
  • Warranty in torts
    • express if there was misrepresentation
    • implied always
  • Warranty in K (if privity)
  • Negligence for misfeasance
  • Strict liability
Term
Strict Products Liability Rule
Definition

3rd Rest.

  • Covers harm to anyone (not just consumer)
  • Liability to those engaged in distributing/selling and manufacturing
  • 3 categories
    • Design Defect
      • Could a better design be reasonably implemented w/ current knowledge?
      • Is it safe to ordinary consumer
    • Manufacturing Defect
      • Just prove defect exists (closest to strict liability)
    • Warnign defect
      • Warning must make product reasonably safe
        • Maj. D reasonably knew or should have known of risk (foreseeability)
        • Min. No foreseeability required - just actual occurence (more like strict liability) (superminority)
      • Rebuttable presumption that P would have read it
      •  
Term
Policies for strict liability
Definition
  • Difficulty of proving negligence
  • Incentive to make products as safe as possible
  • Manufacturer bears responsiblity
  • More efficient to sue manufacturer directly
  • Placing product on market is representation it is safe
  • Lowest cost avoider
  • Equitable distribution.
Cons
  • Deters new products
  • Fictitious claims
  • Level of care isn't considered (lowers incentive?) BUT do punitive damages account for this? Can you bring them?
Term
Defenses to Strict Liability
Definition
  • Contributory negligence
    • Maj: allow
    • Min: can't use negligence as a defense in strict liability action
  • Assumption of risk (mixed)
    • Rest: Bars claim
    • Others: lowers liability (like comparative negligence)
  • Misuse
    • Misuse cannot be reasonably foreseeable
  • Causation:
    • Defect didn't cause injury