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TORTS EXAM
1L TORTS FINAL EXAM
94
Law
11/19/2011

Additional Law Flashcards

 


 

Cards

Term
BATTERY:
Definition

An Intentional tort.

 

Define: A voluntary action intended to cause a harmful (or offensive) contact; and harm (or offense) occurs.

 

ELEMENTS:

(1) Intent to cause harmful/offensive contact

(2) Harmful/offensive contact occurs.

 

Term
ASSAULT:
Definition

An Intentional Tort.

 

Define: A voluntary act intending to cause reasonable apprehension of imminent harmful/offensive contact; and apprehension occurs.

 

ELEMENTS:

(1) Intent

(2) Resulting apprehension

(3) of Imminent physical harm

Term
SINGLE V. DUAL INTENT:
Definition

SINGLE INTENT: Defendant is guilty upon proving he intended to make contact; and harmful or offensive contact results.

 

DUAL INTENT: Defendant is guilty upon proving he intended to (1) make contact, (2) he intends the contact to be harmful or offensive, and (3) harmful or offensive contact does result.

Term
APPREHENSION V. FEAR
Definition

Apprehension: an anticipation or expectation that harmful contact will occur

 

Fear: The emotion that the victim feels about the anticipated contact.

Term
FALSE IMPRISONMENT:
Definition

An Intentional Tort.

 

Define: a voluntary act intending to unlawfully or unjustifiably confine or restain someone with a bounded area; AND defendant must in fact cause plaintiff to be confined to a bounded area.

(Implies that plaintiff is aware of confinement).

 

ELEMENTS:

(1) Intent (2) unlawful/unjustifiably (3) restrain/confine (4) bounded area

Term
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
Definition

An Intentional Tort.

 

Define: an actor who by extreme and outrageous conduct, intentionally or recklessly, causes severe emotional disturbance to another is subjected to liability for that emotional disturbance; AND if the emotional disturbance causes bodily harm, also for the bodily harm.

 

ELEMENTS:

(1) Extreme and Outrageous conduct (2) Intent (or reckless) to cause severe emotional distress (3) plaintiff in fact suffers severe emotional distress.

Term
TRESPASS TO LAND:
Definition

Intentional Tort.

 

Define: A voluntary act where one intends to enter the land, and enters the land.

(no need to intend to trespass).

 

ELEMENTS:

(1) Intent to Enter Land (2) Presence on land.

Term
CONVERSION OF CHATTEL:
Definition

An Intentional Tort.

 

Define: a voluntary act that prohibits the use and enjoyment of another's property by dislocating it, destroying it, stealing it, etc.

Intent to convert is not necessary.

 

ELEMENTS:

(1) Intent to exercise dominion or control over chattel (must not be knowingly), AND

(2) in fact dominion or control over chattel is exercised, AND

(3) Interference is serious enough ot require full compensation for the chattel.

Term
TRESPASS TO CHATTELS:
Definition

An Intentional Tort.

 

Define: an intent to interfere or "inter-meddle" with a chattel of another, and actual interference (inter-meddling) occurs. This is short of conversion; liability is based on actual damage.

 

ELEMENTS:

(1) Intent to Interfere (inter-meddle) with the chattel of another, AND

(2) actual interference (inter-meddling) occurs.

Term
§1983 Claim: Forcigble Harm as a Civil Rights Violation:
Definition

Intentional Tort.

 

DEFINE/ELEMENTS:

(1)Every person,

(2) who under Color Of Law (statute, regulation, custom, or usage),

(3) of a State, Territory, or D.C.

(ø apply to Fed. government).

(4) Subjects, or causes to be subjected,

(5) any citizen (or person within jurisdiction thereof)

*implied intent

(6) Deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

(7)Shall be liable to the injured party.

Term
COLOR OF LAW:
Definition
Define: An act that appears to be performed under the right of law, when no such legal right exists.
Term
QUALIFIED IMMUNITY:
Definition
Persons acting under color of law are immune from liability if the conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware.
Term
VIOLATIONS MOST COMMONLY CITED IN §1983 CLAIMS
Definition

(1) 14th Amendment - "Due Process"

(2) 4th Amendment - "unreasonable search and seizure"

(3) 8th Amendment - "Excessive bail. . . excessive fines. . . nor cruel and unusual punishment inflicted."

Term
MARKERS OF EXTREME AND OUTRAGEOUS:
Definition

(1) repeated over a period of time,

(2) Abuse of authority

(3) Directed at a vulnerable person/people

(4) Beyond all possible bounds of decency

(5) Shocks the conscience.

Term
NEGLEGENCE:
Definition

A plaintiff must prove all 5 elements:

 

(1) DUTY

(2) BREACH

(3) DAMAGE,

(4) ACTUAL CAUSE, and

(5) PROXIMATE CAUSE

Term
DUTY OWED:
Definition
The duty owed to all people, by all people, is to behave in a manner that a reasonable, prudent person would behave in similar circumstances, to avoid or minimize all foreseeable harm.
Term
NEGLIGENCE PER SE:
Definition
A special case of negligence where the elements "duty" and "breach" are replaced by a violation of a statute IF the plaintiff is part of the specific class of people the statute intended to protect, and the resulting harm is of the nature that the statute intended to prevent.
Term
ELEMENTS OF NEGLIGENCE PER SE:
Definition

(1) statute or regulation must clearly define a standard of conduct,

(2) the statue or regulation must have been intended to prevent the type of harm that the defendant's act (or omission) caused,

(3) The plaintiff must be a member of the class of person that the statute or regulation was designed to protect, AND

(4) the violation must have been the proximate cause of the injury.

Term
RISK UTILITY DOCTRINE:
Definition

An economic standard to determine if a breach of duty has occurred. The traditional formula is:

 

Breach occurs if - B < PL

 

 

B = Burden of adequate protection

P = Probability of Harm

L = Magnitude/Cost of Loss

Term
ALTERNATIVES TO RISK UTILITY THEORY
Definition

(1) Intuitive - "seems negligent to me." (Jury decides)

(2) Solely by statutory prescription

(3) Hard-and-fast rules (established by courts)

(4) Customs of the community

(5) moral rule

Term
Multiple Tortfeasors & Divisible Injury:
Definition
Each tortfeasor is liable for the injury he has caused.
Term
Multiple Tortfeasors & a single injury:
Definition
The "But-For" test will not always succeed in these cases; so the "Substantial Factors" test is applied.
Term
"BUT-FOR" TEST:
Definition
A test used to determine actual cause by asking the question, "Would the harm had occurred "But-For" the defendant's action?"
Term
SUBSTANTIAL FACTORS TEST:
Definition

Where multiple defendant's have acted to create Plaintiff's harm, a substantial factors test states that liability can be applied to any defendant whose behavior was a substantial factor in creating the harm.

 

Was it Necessary for the harm?

Was it Sufficient for the harm?

Term
EXTENDING HARM:
Definition
If tortfeasor A causes harm to the Plaintiff, and tortfesor B, a doctor, causes the harm to be extended by negligent medial treatment: Tortfeasor A will be liable for the initial injury (and perhaps partially for extension of injury) while Tortfeasor B will be liable for the extension of the injury.
Term
RESPONDENT SUPERIOR LIABILITY:
Definition
"Let the Master Answer." It is vicarious liability that applies to employers.
Term
JOINT AND SEVERAL LIABILITY:
Definition

In a case where multiple Defendants are guilty of a tort against a Plaintiff, some jurisdictions allow the Plaintiff to sue all parties "Joint and Severally."

Joint and Several cases allow the Plaintiff to collect the entire sum from one party, whereas that party obtains contribution from other defendants in a separate case.

Term
CONTRIBUTION:
Definition
The legal method for one at fault defendant to collect a portion of total damages from the other at fault defendants.
Term
PROPORTIONATE LIABILITY:
Definition
Alternative to Joint and Several Liability. Each defendant is only liable for the percentage of damage that he has caused.
Term
RES IPSA LOQUITUR:
Definition

An exception to the Prima Facie rule.

 

It is rarely used, and it will get a negligence case to trial when there is no evidence in favor of the Plaintiff.

 

TRADITIONAL RULE:

(1) The harm is one that would not usually occur minus negligence.

(2) The instrument or agent responsible for the injury/harm was in exclusive control of the Defendant.

AND

(3) Circumstances indicate that there was no negligence on the part of the Plaintiff.

 

 

RESTATEMENT OF TORTS:

(1) The injury/harm is of the nature that it would not occur absent negligence.

(2) All other reasonable causes, including negligence of Plaintiff or third party, have been sufficiently eliminated by the evidence, AND

(3) Indicate negligence is within the scope of Defendant's duty to the Plaintiff.

 

 

Term
CONTRIBUTORY NEGLIGENCE:
Definition

A plaintiff's negligence is referred to as "contributory negligence" and is used to bar plaintiff from recovery.

 

This is a common law rule: still used in some jurisdictions - but is largely being replaced by Comparative Fault theories.

Term
CERTIFIED QUESTION:
Definition
A question or formal request from a court (or party of a trial) to another, usually a higher, court. These questions will not pertain to facts of the case; but rather to a statute interpretation or a policy.
Term
MOTION TO DISMISS:
Definition
This is a pre-trial motion, the moving party is almost always the defendant. A judge will dismiss a claim if, when all evidence, when viewed most favorable to Plaintiff, is such that no reasonable jury could find for the Plaintiff.
Term
MOTION FOR DIRECT VERDICT:
Definition
After closing arguments the Defendant can file a motion for a Direct Verdict, where a judge can dismiss the claim before the jury reaches a verdict, but only if all the evidence has been presented in a way that no reasonable jury can find for the plaintiff.
Term
PRIMA FACIE:
Definition
"On its Face" - This is a legal term to mean that the elements of a tort are at least plausible with the evidence available pre-trial.
Term
MOTION FOR J.N.O.V.:
Definition
A Defendant can file for a Motion for J.N.O.V. after a jury verdict finds them liable. If the judge determines that, as a matter of law, the jury was incorrect, the judge may reverse the verdict.
Term
DE FACTO v. DE JURE
Definition

De Factor - a matter of the fact

 

De Jure - a matter of the law

Term
BURDEN OF PROOF:
Definition

In civil court the accusing party has the burden of proof, or the responsibility of persuading the court, that their claim is accurate.

 

There are some exceptions: Res Ipsa Loqitur would be an exception.

Term
CONSENT:
Definition
Consent is an affirmative defense in many tort cases, however there are many types and exceptions to consent.
Term
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
Definition
Emotional Distress can sometimes be awarded in cases of negligence. This requires the Plaintiff to be "In the Zone of Danger."
Term
DIVERSITY JURISDICTION:
Definition
Some cases will be heard in a Federal Court, even if the crime is not a federal crime. This is can occur for several reasons; but the benefit is a larger jury pool, and in some cases legal fee shifting.
Term
CHILD LIABILITY: RULE OF 7's
Definition

The traditional rule was that children under the age of 7 would not be held liable for their tortious acts.

 

The modern rule is that any child who is cognizant of his actions and the probable results, will be liable.

Term
TRANSFERRED INTENT:
Definition

A tortious act will be transferred from one victim to another, even if the defendant was unaware that he would injur the second victim.

 

Intent can also be transferred between torts - from Assault to Battery.

Term
1 TORT CAN BE COMMITTED RECKLESSLY
Definition
I.I.E.D. is the only intentional tort that can be performed recklessly. As long as the tortfeasor sufficiently meets one of the RADBS factors, he can be liable.
Term
THIN SKULL DOCTRINE:
Definition
"Take the victim as they are." A defendant is responsible for all damages if the type of injury is foreseeable, even if the degree of injury is not.
Term
CIRCUMSTANTIAL EVIDENCE:
Definition
In tort cases (as well as Criminal cases) some facts can be inferred from surrounding evidence.
Term
PROVING CONDUCT:
Definition
In most torts cases the conduct of the Plaintiff and Defendant will determine the case. The Plaintiff usually has the burden of proof (preponderance of the evidence) and through factual evidence and circumstantial evidence must persuade the jury to agree with him.
Term
EVALUATING CONDUCT:
Definition
Ways of evaluating conduct:
1. appearance on the witness stand (does the plaintiff/defendant sound trustworthy, forgetful, nervous, etc - what about the witnesses on their behalf?)
2. Expert Testimony
3. The nature of the act
4. known violations of laws or local customs
5. Plaintiff/Defendant's history or background
6. details surrounding the act (was it night time, was it in a crowded place, etc).
Term
DAUBERT CHALLENGE:
Definition
Lawyers will often challenge the opposing party's witnesses, the process is called Daubert Challenge.
Term
LAST CLEAR CHANCE DOCTRINE:
Definition

Before the Comparative Fault theory was Contributory Negligence (which would bar any recovery) - The only excuse to contributory negligence was the "Last Clear Chance" donctrine.

 

In application it means that the Defendant cannot use contributory negligence as a defense, if he had the last clear chance to avoid harm, and did not.

Term
WRONGFUL DEATH CLAIM:
Definition

Wrongful death claims are not made on behalf of the deceased, they are made on behalf of the decadent's dependants.

 

The claim is meant to make the dependent's "whole again" for the financial support that they have lost.

Term
SURVIVAL CLAIM:
Definition

In Common Law a lawsuit could not continue if either party died before it ended.

 

Now a survival claim can be brought on behalf of, or against the estate of the deceased. A representative of the estate will stand in the place of the deceased.

Term
MITIGATING DAMAGES
Definition
An injured party is expected to use reasonable measures to mitigate any damages resulting from a tortious action. Evidence of a failure to mitigate damages will likely result in a deduction from the recovery.
Term
PECUNIARY DAMAGES:
Definition

Damages recovered in order to repay financial losses.

 

Medical Bills (Past and Future)

Lost Wages

Lost Earnings

Other expenses related to the tortious act

Term
NON-PECUNIARY DAMAGES:
Definition

Damages awarded for other than financial compensation.

 

Pain and Suffering

Loss of Consortium

Loss of Opportunity

Term
RESCUE DOCTRINE:
Definition

Any person who tries to save a person in harms way (at the expense of a tortfeasor) will not be liable to the victim for any harm they inflict while attempting to rescue them.

 

The original tortfeasor will, however, be liable to any harm inflicted on the rescuer while attempting to rescue the original victim.

Term
ASSUME THE RISK:
Definition

Assumption of the risk is a defense to tortfeasors.

 

Express Assumption of the risk - express assumption of the risk involves contracts or explicit agreements.

 

Implied Assumption of the risk - Primary and Secondary.

 

Primary Implied Assumption of the Risk - this involves activities with known and expected risks such as sporting activities.

 

Secondary Implied Assumption of the Risk - This is unstructured activities where the plaintiff knowingly and voluntarily partakes in dangerous activities. This is similar to consent.

Term
PURE COMPARATIVE FAULT v. MODIFIED COMPARATIVE FAULT
Definition
PURE COMPARATIVE FAULT - Through the trial process a Fact-Finder assigns each party a % of the total fault/liability. Once the % is determined, each party is responsible for paying the equal % of the damages. (Plaintiff in effect "loses" the % of recovery assigned to himself).

MODIFIED COMPARATIVE FAULT - there are several versions of this, but the majority rule (also the majority rule for assigning liability) is that plaintiff must be 50% liable or less in order to recover any damages. thus P=50% - P recovers 50% from ∆'s, P = 51% - P cannot recover.

MODIFIED COMPARATIVE FAULT (minority) - Plaintiff must have a lower % of fault/liability than each defendant he can collect from. Thus P=35% D1+30% D2=25% and D3=20% - P cannot recover.
Term
WRONGFUL CONCEPTION:
Definition
This claim is brought against a medical professional who negligently performed a sterilization procedure - resulting in the "injury" of an unplanned pregnancy. The courts determine that (A) a child (even if unplanned) is not an injury - but the unexpected costs of child-rearing is an injury, and (B) Plaintiff cannot be expected to "mitigate" the damages in these claims (abortion and adoption are not reasonable measures).
Term
WRONGFUL BIRTH:
Definition

The negligent failure to diagnose a disability or defect, preventing parents from "avoiding" or "mitigating" damages (abortion).

 

Also negligent treatment of the mother, that later results in injury to the fetus/child qualifies as a wrongful birth claim. (this one is more challenging).

Term
WRONGFUL LIFE:
Definition
A child cannot sue his parents for being born.
Term
PREEMPTIVE CAUSATION:
Definition
Where the actions of two independent and non-concerted ∆s are both sufficient to produce the damage/injury that the Plaintiff suffered, but evidence shows that all of the damage results from the actions of on ∆ prior to the actions of the other ∆s - then the fault will lie solely with the ∆ whose action actually caused the injury.
Term
COLLATERAL SOURCE RULE:
Definition

Collateral benefits are ignored (at trial) in most jurisdictions, however, in such cases the damages awarded will be subrogated back to the initial payer (usually an insurance company).

 

Payments made by the defendant or his agent will usually be reviewed by the court.

 

Term
WINDFALL EFFECT:
Definition
Because collateral sources are not reviewed, and a jury will award the plaintiff as if no payments have been received. Therefore in some jurisdictions the Plaintiff is able to collect twice - and receive a "windfall" profit.
Term
LOSS OF CONSORTIUM:
Definition

In Common Law - a Master could recover for loss of services to an apprentice injured by the tortfeasor.

 

It was later expanded to spouses.

 

Parents can collect this for loss of services from minor children, but not children for parents.

Term
COMMON LAW & DEATH:
Definition

In Common Law a claim died with the party. Thus if a plaintiff, or a defendant, died before the claim was complete - the claim was barred.

 

There was no cause of action for wrongful death.

Term
SPECIAL RELATIONSHIP BETWEEN A MOTHER AND A FETUS:
Definition

People are liable to negligent injury to a fetus.

 

The exception is that a mother has no duty to her unborn fetus; this is due to the unique relationship between the two.

 

The policy reasoning is that women would lose significant liberty if they could be liable for injury to fetus.

 

Term
PRENATAL INJURY:
Definition

Defendants is usually liable for direct injury to a fetus caused by tortious acts.

 

Defendant may also be liable for injury resulting from negligent actions to mother, years earlier, that is a direct cause of injury to fetus.

Term
SCOPE OF ASSUMPTION OF THE RISK:
Definition

For express "assumption of the risk," the waived liability is limited by the terms of the agreement. The agreement cannot be "all encompassing."

 

For Primary Implied "assumption of the risk," the liabilities waived must be foreseeable risks of the activity.

 

For Secondary Implied "assumption of the risk," the liabilities waived are for things not willing and wanton, or intentional. Also for defendant's disregard for the safety of others. (maybe?)

Term
POLICY LIMITS OF ASSUMPTION OF THE RISK:
Definition

Essential services:Defendants performing essential services are not qualified for express or implied assumption of risk defense.

 

Unfair bargaining Advantage:An assumption of the risk agreement may be found invalid if defendant had an unfair bargaining advantage.

Term
FIRE-FIGHTER RULE:
Definition

Fire-fighters and police officers are unable to sue for torts directly related to their job performance.

 

Thus a fire-fighter cannot sue a negligent fire-starter if he is burned while putting out the fire; however if he is bit by the fire-starter's dog in the process, he can sue for the dog-bite.

 

Term
NONFEASANCE:
Definition

"Non-actions" or "Omissions"

 

Generally there is not duty to act, but exceptions do exist:

1. statutory duty

2. special relationships

3. creation of the risk

4. contractual duty

Term
CARRIERS:
Definition

There are special relationships that create a higher than standard duty of care.

 

Carriers - bus drivers, pilots, taxi drivers, etc. have a near strict liability owed to their customers/passengers.

 

This has been replaced by the reasonable/prudent person standard in many jurisdictions.

Term
GUESTS STATUTES:
Definition
Some jurisdictions have "guest statutes" that give a private driver immunity from liability to any passengers of vehicle. These are losing favor.
Term
DRAM SHOP LAWS:
Definition
Statutes that hold sellers of intoxicants strictly liable for injury performed by drunk patrons.
Term
VICARIOUS LIABILITY:
Definition
This is a form of strict liability. Also referred to as Respondeat Superior "Let the Master answer," allows for a Plaintiff to seek a claim against the employer of a tortfeasor, if the tort happened while the employee was under the supervision or control of the employer.
Term
STATUTE OF LIMITATIONS:
Definition
Many claims are limited by a statute of limitations. These typically require that the Plaintiff file their claim within a specified period of time or they will lose the right to the claim. The time period begins with discovery, not the tortious act (although many tortious acts are discovered immediately).
Term
EXCEPTIONS TO - NO DUTY TO RESCUE:
Definition

1. Special relationship:

* Carrier/Passenger

*Innkeeper/guest

*Landowner/Lawful Entrant

*Employer/employee

*School/student

*Landlord/Tenant

*Custodian/person in custody

 

2. If defendant created the risk

 

3. duty created by statue.

Term
LANDOWNER'S DUTY TO OTHERS:
Definition

Traditional rule gives 3 Classifications:


Licensee -An invited guest, on property for own benefit, (social guest or door to door salesman).

Duty to warn of known dangers.

 

Trespassor - an uninvited person. Generally a landowner has no duty to a trespassor except to avoid willful, wanton, or malicious actions.

If trespassor is known, landowner has a duty to warn of hidden dangers.

 

Invitee - welcome guests, there for landowners benefit, (customers, garbage man, etc.)

Reasonable care to keep premises safe.

 

MODERN TREND: Reasonable care standard to all, this is a minority rule.

Term
ATTRACTIVE NUISANCE DOCTRINE:
Definition

Landowner has a duty to children.


(bottom line: if you have something that would attract children, and could harm them; as a landowner you have a duty to protect against harm that could be caused from the attractive nuisance).

 

Landowner has liability to physical harm caused to trespasser children if it is caused by an artificial condition on their land if:

 

1) the place where the condition exists is one upon which the possessor knows, or has reason to know, that children are likely to trespass,AND

2) The condition is one of which the possessor knows, or has reason to know, and which he realizes or should realize will involve an unreasonable risk of Death or Serious Bodily Harm to such children, AND

3) The children because of their youth do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it, AND

4) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, AND

5) The Possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect children.

Term
LEASOR/LEASEE RULES:
Definition

The lessor assumes responsibility/duty for the land they are leasing, ø the landowner.

 

Exceptions:

1. common areas

2. injury resulting from failure of landowner to maintain anything he agreed to maintain, or

3. any injury caused by the performance of maintenance by landowner.

Term
PRIVATE RIGHT OF ACTION:
Definition

A private citizen can only bring a claim against a defendant if there is a private right of action.

 

This is different from a public right of action where only the government can bring charges.

Term
INDEMNITY:
Definition

Different from Contribution.

 

Indemnity is where a liable party, who is not at fault, seeks repayment from the party at fault in a separate trial, or from a contractual agreement.

Term
INTERNALIZATION OF COST DOCTRINE:
Definition

An economic theory of liability.

 

It suggests that if a company is liable to all users and bystanders of the product, they can internalize the cost of liability by buying insurance and raising the price of the product.

 

This creates an ideal scenario because it causes the company to desire the safest and most efficient product possible.

Term
GOING AND COMING RULE:
Definition

In cases of vicarious liability an employer is typically not liable for actions of employees during their commute to and from work.

 

 

Exceptions to this rule involve

employers control at the time:

 

1. benefit from commute

2. dual purpose

3. payment for time and travel

4. etc

Term
SCOPE OF EMPLOYMENT (VICARIOUS LIABILITY):
Definition

The key to determining vicarious liability is control.

 

Any tortious action performed by an employee, that is within the scope if employment, makes the employer vicariously liable.

 

Consider:

1. benefit to employer

2. time and location of action

    (was employee on duty, on site?)

3. Detour allows vicarious liability

4. Frolic - to leave course of an official duty will break   

    the liability.

Term
REASONS FOR VICARIOUS LIABILITY:
Definition
Because often times the employee is not insured for the injury, and does not have the money to pay; so vicarious liability allows the plaintiff to recover.
Term
DUAL PURPOSE DOCTRINE:
Definition
Dual Purpose Doctrine holds an employer liable for the actions an employee who is on a business trip, even if the employee is doing something personal (going to a bar or driving around for fun).
Term

INDEPENDENT CONTRACTORS

(WHEN THEY STILL BRING VICARIOUS LIABILITY):

Definition

If the employer has sufficient control over an independent contractor, the employer is still vicariously liable.

 

Employers also cannot delegate certain duties

(dangerous duties as an example).

 

performance of essential duties (surgery etc.)

 

Term
EXCEPTIONS TO "GOING AND COMING" RULE:
Definition

If the plaintiff can show that the employee was within the scope of employment at the time of tort, the fact of being "en route" can be ignored.

 

Factors:

Benefit to the employer

Dual purpose

contracted payment for time and expense of travel

etc.

Term
PUNITIVE DAMAGES AND INSURANCE:
Definition

Some jurisdictions bar insurance from paying punitive damages, and others do not.

 

Some insurance policies exclude coverage of punitive damages.

 

It is argued that where an insurance company pays the punitive damages, the entire purpose of having them is invalidated.

Term
PUNITIVE DAMAGES:
Definition

A Judge determines if punitive damages are to be considered,

 

A Jury decides the amount of punitive damages are necessary.

 

These awards are to punish or deter future defendants from such behavior.

Term
PAIN AND SUFFERING v. LOSS OF ENJOYMENT OF LIFE:
Definition

Pain and Suffering - damages awarded to compensate plaintiff for agony or physical pain that results from tort. Although pain and suffering has no financial equivalent, there is no better known method of compensation for the burden of P&S.

 

Loss of Enjoyment of Life: Some physical injuries affect the plaintiffs ability to perform desired tasks. This loss is usually compensated by a financial award.There must be some awareness of the lost opportunity.

 

Is it different than P&S? Some jurisdictions say yes, some say no. McDougald court says they are the same.

Term
CAUSE-IN-FACT THEORIES
Definition
1. But for test
2. Substantial Factors
3. Increased Risk (typically a medical negligence claim)
4. Loss of Opportunity/Chance (requires expert testimony and statistics)
5. Concerted Action/Agreement - (people acting in concert are equally liable for the tort)
6. Alternative Liability (bucket of everything else).