Term
| Accountant Liability for Economic Loss |
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Definition
1. Old rule - must be in privity, only the client can sue for negligence
2. Near-privity: anyone who the accountant knows will use the report for a particular purpose
3. Modified Foreseeability - anyone the accountant could reasonably foresee would receive the statements |
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Term
| Aggravation During Medical Treatment |
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Definition
| Defendant is liable for aggravation during medical treatment; whoever caused the initial injury is then liable for the injury, and the aggravation |
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Term
| Andrews v. United Airlines |
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Definition
1. Negligence is a jury question
2. Industry customs are relevant, but not conclusive |
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Term
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Definition
1. Creating a reasonable apprehension
2. Of Imminent harm
THREAT of force INTENDED to cause CONTACT OR APPREHENSION which results in a REASONABLE FEELING of apprehension of IMMINENT CONTACT |
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Term
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Definition
Plaintiff has knowledge of the risk, voluntarily exposes themselves to it, accepting the risk and releasing the defendant from liability. Can be expressed or implied, reasonable or unreasonable.
Twin defense to contributory negligence |
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Term
Attractive Nuisance
Restatement § 339 |
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Definition
A possessor of land is subject to liability for physical harm caused to children by an artificial condition imposed upon the land if:
A. the possessor has reason to know children are likely to trespass and
B. the possessor of land should realize the hazard involves an unreasonable risk of death or serious bodily harm and
C. the children, because of their youth, do not discover the condition or realize the risk and
D. The burden of eliminating the danger is slight compared to the risk involved and
E. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
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Term
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Definition
| Balances the foreseeability of the harm against the burden of imposing a duty to protect |
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Term
| Baltimore & Ohio Railroad Co. v. Goodman |
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Definition
U.S. Supreme Court made rule that a driver has a duty to get out of their car at train tracks;
“generally [the question of due care] is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once and for all by the courts." |
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Term
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Definition
1. Intentional Infliction
2. Of harmful or offensive contact
MUST have act
MUST have intent
MUST have contact OR apprehension of contact
CONTACT MUST be HARMFUL OR OFFENSIVE TO A REASONABLE SENSE OF DIGNITY or if the actor is aware of a particular sensitivity, they commit battery by exploiting it |
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Term
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Definition
| "The life of the law has not been logic: it has been experience." |
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Term
| Bethel v. New York Transit Authority |
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Definition
| Common carriers are held to REASONABLE CARE rather than EXTRAORDINARY CARE; common law courts have FREEDOM TO RE-WRITE THE LAW |
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Term
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Definition
NO STRICT LIABILITY; if both parties were at fault, PLAINTIFF LOSES
Plaintiff must prove that defendant DID NOT USE REASONABLE CARE |
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Term
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Definition
| Nothin in the statue indicates a need that the expert and the defendant physicians be of the same field/training |
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Term
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Definition
| A customer need not establish actual or constructive notice when the business practice of the store provided a continuous and foreseeable risk of harm to customers |
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Term
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Definition
Res Ipsa Loquitur; the fact that the barrel fell was in and of itself evidence of negligence
Burden of proof shifts to the defendant to prove that they did not act negligently |
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Term
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Definition
1. Started as no recovery
2. Then zone of physical daner, fear for safety (of self or child) |
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Term
| Categories of People in Premises Liability Cases |
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Definition
1. Trespassers: not invited on the land; only owed a duty for wanton or willful conduct or hidden traps
2. Invitees: invited onto land for the mutual benefit of both parties; owed a duty of full care including a duty to investigate dangerous conditions
3. Licensees: Invited onto land, but not invitees; owed the same duty as trespassers, plus recovery for negligent conditions on the land, no duty to use care to discover hazards |
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Term
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Definition
| Charitable hospitals were immune from negligent liability; it has been abolished |
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Term
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Definition
| Traynor determined that irregularities that absolve an individual of criminal negligence may not absolve that individual of civil negligence |
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Term
| Connelly v. Mammoth Mountain Ski Area |
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Definition
| The owner of a sports facility may not be absolved by the intentional injury/recklessness rule, but the inherent risk rule can trump that |
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Term
| Connolly v. Nicollet Hotel |
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Definition
Hotel's GM had sent a memo acknowledging that a convention group was rowdy and the strategy was to "turn the other cheek;" as a result, the plaintiff was allowed to recover
NOT RES IPSA LOQUITUR |
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Term
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Definition
CAN BE IMPLIED (tapping someone on the shoulder to ask about a line), (basketball game - assumption of risk)
*Boxing (Implied consent) v. street fighting (illegal consent is no consent) |
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Term
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Definition
| The plaintiff must prove that the store did (or should have) know(n) that the hazard existed because of the amount of time it had been present |
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Term
| Consumer Expectation Test (Barker) |
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Definition
1.Excessive preventable danger test; if the plaintiff shows a prima facie case that the design of the product was the proximate cause of the injury, then the burden shifts to the defendant.
2.Ordinary consumer expectation test can only be used when the everyday use of the consumer violated the minimum expectation |
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Term
| 4 approaches to determining premises duty |
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Definition
| 4 different approaches: a. Aware of specific harm b. prior similar crime on premises (or nearby) c. foreseeable harm under all circumstances; not require prior similars d. Ann M. High degree of foreseeability required if heavy burden, e.g. security guards; seldom, if ever, satisfied without prior similars (identicals?) on premises |
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Term
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Definition
| Negligence is not an inherent risk |
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Term
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Definition
| On the exam, if you are given the detail that a product is “defective” you do not need to describe how you come to the classification “defect” |
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Term
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Definition
Three Part Test:
1. Was the plaintiff near the accident?
2. Did the shock result from a sensory and contemporaneous observance of the accident, as contrasted with finding out about it from another person after its occurrence?
3. Were the plaintiff and the victim closely related |
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Term
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Definition
| Contract law → explicit language → even if explicit, not enforceable if against public policy → all factors don’t need to be met → Tort law Dalury → Hanks releases void |
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Term
| Disclaiming Liability for Recklessness |
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Definition
| YOU CANNOT DISCLAIM LIABILITY FOR RECKLESSNESS |
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Term
| Elmore v. American Motors Corp. |
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Definition
| Extended strict products liability to bystandards |
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Term
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Definition
| Some states allow exceptions for reasonableness in a time of emergency, some assess how a reasonable person would act in such an emergency |
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Term
| Escola v. Coca Cola Bottling Co. of Fresno |
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Definition
| Traynor strict products liability |
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Term
| Establishing Liability for Negligence |
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Definition
1. Establish that there was a duty
2. Show that the defendant breached that duty
3. That breach was a cause in fact of the injury OR
4. A proximate cause |
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Term
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Definition
1. CONFINEMENT and INTENTION TO CONFINE
2. AWARENESS OF CONFINEMENT
3. NO REASONABLE MEANS OF ESCAPE |
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Term
| False Imprisonment Restatement 2d. of Torts 38-41 |
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Definition
| 1. Actual or apparent physical barriers 2. Overpowering physical force, or by submission to physical force 3. Threats of Physical force 4. Other Duress 5. Asserted legal authority Not confined if there is a "reasonable means of escape" One element is awareness of confinement |
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Term
| Four Approaches to Premises Liability (Foreseeability) |
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Definition
1. Specific Harm Rule
2. Prior Similar Incidents Test
3. Totality of Circumstances Test
4. Balancing Test |
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Term
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Definition
| If you participate in a respectable school of thought, you are held to the standard of that school and only experts in that field can testify against you; the respectability of the school of thought must be determined by an objective third party |
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Term
| Gammon v. Osteopathic Hospital of Maine, Inc. |
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Definition
| Removes the physical manifestation requirement previously required for negligent infliction of emotional distress cases; when you are not in the zone of danger, you must prove the distress was severe and foreseeable from the point of view of the defendant |
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Term
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Definition
| The element of intent is satisfied if the defendant knows with a substantial certainty that his act will result in a harmful or offensive contact. |
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Term
| Gordon v. American Museum of Natural History |
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Definition
No Negligence;
Constructive Notice: a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it |
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Term
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Definition
You cannot sue the king or his court; abolished
1959 Traynor abolished governmental immunity; legislature enacted a code saying discretionary acts are immune (basic policy decisions of a branch of the governmnet) while non-discretionary acts are not. |
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Term
| Greenman v. Yuba Power Products, Inc. |
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Definition
| Individuals injured by products with design or manufacturing defects may bring suit under strict liability regardless of a failure to give timely notice to the manufacturer for a breach of warranty. |
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Term
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Definition
If you are riding in a person's car as a GUEST (NOT A PAYING PASSENGER) you are not owed a full duty of care;
CA Supreme Court held it unconstitutional |
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Term
| Hanks v. Powder Ridge Restaurant Corp. |
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Definition
Responsibility should be placed on the party that has control over the environment and who can most efficiently allocate the risk
The Court disfavors agreements that disclaim negligence liability, fundamental policies of tort litigation |
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Term
| Hymowitz v. Eli Lilly & Co. |
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Definition
| Liability is several only |
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Term
| In re Arbitration between Polemis and Furness |
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Definition
| When a negligent act "directly" causes damage, it is immaterial if the exact result was unforeseen |
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Term
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Definition
| Knowledge with substantial certainty of the likelihood that actions will inflict harm; you do not need to intent injury, but merely contact |
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Term
| Intentional Infliction of Emotional Distress |
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Definition
1. 1934 Restatement; if FORESEEABLE that the emotional distress COULD LEAD TO PHYSICAL INJURY, it is worthy of damages - REQUIREMENT FOR BODILY MANIFESTATION; "EXTREME OR OUTRAGEOUS"
2. Restatement 2nd. NO REQUIREMENT OF BODILY HARM OR PHYSICAL MANIFESTATIONS; EXTREME/OUTRAGEOUS CONDUCT BEYOND ALL BOUNDS OF DECENCY |
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Term
| Intentional Injury/Recklessness (totally outside range of ord. activity) Rule for "Sports" |
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Definition
| "Whether [a] defendant has a legal duty to avoid such conducts or protect the plaintiff against particular risk of harm . . . depends heavily upon the nature of sport [and] also . . . on the defendant's role in, or relationship to, the sport. |
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Term
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Definition
| Tort suits are often not allowed among family members because they would "disrupt family harmony"; immunity for intentional torts was abolished by all states, CA abolished immunity for negligence, CA has a reasonable parent standard for discipline |
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Term
| Jaffe on Pain and Suffering |
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Definition
1. assails the "misleading" opinion that pain and suffering damages do anything to return the plaintiff to "whole"
2. In the absence of insurance, justice is not served by having one individual suffer economically to help alleviate the physical pain of another |
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Term
| Joint and Several Liability |
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Definition
| If there are two or more negligent parties, any of which could be the cause of injury but it cannot be determined, they all owe 100% regardless if one of them is insolvent |
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Term
| Kahn v. East Side Union High School District |
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Definition
| Coaches do not owe a full duty of due care |
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Term
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Definition
| No duty for coparticipants in sports; "Primary" assumption of the risk; no duty |
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Term
| Landlord and Tenant Rules: |
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Definition
| Landowners owe a duty of due care, however, even if you are an invitee, inside the apartment the duty is owed by the lessor, not the landlord |
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Term
| Landlord owes no duty UNLESS |
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Definition
1. Lease for public use
2. Hazard in common area
3. Negligent repair
4. Landlord (not tenant) is aware of a hidden danger |
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Term
| Larson v. St. Francis Hotel |
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Definition
| Res Ipsa Loquitur did not apply because the hotel did not have control over the guest who threw the chair from the hotel room |
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Term
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Definition
If Burden is less than Probability times magnitude of Loss, then failure to take precautions is negligence USED IMPLICITLY
B |
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Term
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Definition
| California court abolishes assumption of the risk in favor of pure comparative negligence; if a plaintiff knowingly but unreasonably engages in the risk, that assumption of the risk is subsumed into comparative negligence |
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Term
| Lopez v. Winchell's Donut House |
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Definition
| In the tort of false imprisonment, it is not enough for the π to have felt “compelled” to remain in the baking room in order to protect her reputation. |
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Term
| MacPherson v. Buick Motor Co. |
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Definition
| Manufacturer owed a duty of care to a plaintiff who purchased a car from a dealer; the Court discarded the previous standard - privity |
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Term
| Marshall v. Hartford Hospital |
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Definition
| Even though the expert may not practice in the same specialty, they may have the requisite knowledge to testify on the alleged malpractice |
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Term
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Definition
| To omit, willfully or heedlessly, the safeguards prescribed by law is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. |
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Term
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Definition
| Under the doctrine of informed consent, a doctor must obtain a patient’s consent before implementing a nonsurgical course of treatment. |
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Term
| Modified Comparative Negligence |
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Definition
| If a plaintiff is 51% at fault, they are barred from recovery |
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Term
| Murphy v. Steeplechase Amusement Co. |
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Definition
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Term
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Definition
| Failure to exercise reasonable care under all circumstances |
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Term
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Definition
| A court has decided that an act is negligence; there is nothing for the jury to decide |
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Term
| Negligent Infliction of Emotional Distress Evolution of Rule |
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Definition
1. Impact Rule
2. Slight Impact Rule
3. Physical Manifestations because of fear for safety
4. If severe, then no need for physical manifestation |
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Term
| Restatement 2d of Torts § 402A (Comments g & i) |
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Definition
g: The rule stated in this Section applies only where the product is, at the time it leaves the sellers hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him (Consumer Expectation Test)
i: The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary knowledge common to the community as to its characteristics |
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Term
| Restatement 2d of Torts § 402A |
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Definition
1. One who sells any product in a defective condition unreasonably dangerous to the consumer is liable for physical harm caused by use if:
a. The seller is a merchant of that product
b. It is expected to reach the consumer without substantial change in the condition in which it was sold
2. The rule applies although:
a. The seller has exercised all possible care in the preparation and sale of his product, AND
b. The User or consumer has not bought the product from or entered into any contractual relation with the seller |
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Term
| Negligent Infliction of Emotional Distress: Loss of Consortium |
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Definition
| Borer v. American Airlines, Inc. - claim denied by 9 children who sued AA for loss of consortium of their mother, who was injured due to a negligently manufactured light fixture on one of the defendant's aircraft. |
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Term
| Negligent Infliction of Emotional Distress: Zone of Danger Rule |
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Definition
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Term
| Negri v. Stop and Shop, Inc. |
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Definition
| A store has a duty to protect invitees from known or concealed dangerous conditions. The circumstantial evidence permitted the inference that D had constructive notice of the dangerous condition of the floor. |
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Term
| Non-Judgmental Legal Malpractice |
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Definition
Failure to perform a procedural task in a cause of action where the client was likely to recover
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Term
| Nonfeasance v. Misfeasance |
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Definition
Nonfeasance - if you witness someone drowning and you do nothing, you have no duty
Misfeasance - if you attempt to rescue a drowning person and cause their death, you owe a duty of ordinary care |
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Term
| Pain and Suffering (compensatory or punitive)? |
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Definition
| Compensatory; designed to compensate the plaintiff for losses, past present, and future |
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Term
| Palsgraf v. Long Island Railroad Co. |
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Definition
Cardozo - if there is a foreseeable plaintiff, the defendant may be liable for an unforeseeable harm; unforeseeable plaintiff cannot recover
Andrews - "proximate cause" is arbitrary, this should be a matter for the jury |
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Term
| Particular Foreseeability |
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Definition
| New Jersey; if the plaintiff is particularly foreseeable, they can recover; defendant knows or has reason to know that this "class" of people will suffer loss as a result of their negligence |
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Term
| Pokora v. Wabash Railway Co. |
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Definition
Overrules Goodman; no duty to get out at train tracks;
*Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. |
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Term
| Posner on Pain and Suffering |
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Definition
1. Damages for pain and suffering serve as a social deterrent against negligence
2. An average person would pay a considerable amount to avoid pain and suffering |
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Term
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Definition
| Expands strict liability to lessors |
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Term
| "Primary" v. "Secondary" Assumption of the Risk |
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Definition
Primary - bars recovery; inherent dangers
Secondary - comparative negligence |
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Term
| Prior Similar Incidents Test |
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Definition
| Courts consider the nature and extent of previous crimes, as well as their recency, frequency and similarity to the crime in question to determine if it was foreseeable |
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Term
| Pure Comparative Negligence |
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Definition
| A plaintiff 99% at fault can recover 1% of the damages from the defendant |
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Term
| Questions to ask for statutory analysis in a case: |
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Definition
1. Was the statute violated?
2. What was the intention of the statute?
3. What type of statute was it (rule of the road v. life or limb)?
4. Were there any circumstances that would excuse violation? |
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Term
| Reasonable Standard for Children |
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Definition
| Must act reasonably for a child of their age UNLESS they are doing an adult activity like driving |
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Term
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Definition
| The individual knows of the risk related to their conduct, or knows facts that make the risk obvious to a reasonable person |
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Term
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Definition
1. the person knows the risk created by the conduct or knows the facts that make the risk obvious to another in the person’s situation and
2. the precaution that would eliminate or reduce risk involves burdens that are so slight as to render failure to adopt the precaution as a demonstration of the person’s indifference to risk |
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Term
| Recreational Use of Land Statute |
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Definition
| If a trespasser is using a premises for recreation, there is no liability for the landowner |
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Term
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Definition
1. The accident would not occur UNLESS someone was negligent
2. Accident was caused by something in the control of the defendant
3. The plaintiff cannot have contributory negligence |
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Term
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Definition
A person who was negligent is liable to the rescuer if the rescuer is injured; rescuers are considered foreseeable
Cardozo - "Danger invites rescue" |
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Term
| Restatement 3d of Torts Definition of Intent |
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Definition
1.the person acts with the purpose of producing the consequence
2.the person acts knowing that the consequence is substantially certain to result |
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Term
| Restatement 3d. Defect Categories |
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Definition
1. Manufacturing Defect - product departs from its intended design
2. Defective in Design - damage could have been avoided with a different design
3. Defective because of inadequate instructions or warnings |
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Term
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Definition
| Abolished traditional landowner rules; duty of due care to all LAWFUL visitors |
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Term
| Ryan v. New York Cent. R. Co. |
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Definition
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Term
| Seffert v. Los Angeles Transit Lines |
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Definition
An appellate court can only say that a judgment is too much if the amount shocks the conscience and suggests passion or corruption on the part of the jury
DISSENT: Traynor
The award is excessive:
This award exceeds the pecuniary damages
Per Diem argument should not be allowed, because there is no way of translating pain and suffering into money, so it misleads the jury
Pain and suffering awards are punitive not compensatory |
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Term
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Definition
1. MUST BE REASONABLE
2. If you can RETREAT, many states say YOU SHOULD
3. If you have STOPPED THE ATTACK, YOU CANNOT KEEP FIGHTING
4. Allowed to USE REASONABLE FORCE TO DEFEND ANOTHER |
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Term
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Definition
| The act must be honest and in response to reasonable fears (under the circumstances) and the act must be in itself reasonable |
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Term
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Definition
| Continuous and foreseeable risk; no need to establish constructive notice |
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Term
| Sheeley v. Memorial Hospital |
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Definition
| The testifying physician does not need to be in the same field as the defendant physician and the "similar locality" rule is no longer applicable |
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Term
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Definition
| The testifying expert must be of the ame or similar locality as the defendant physician to understand the standards of that community |
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Term
| Sindell v. Abbott Laboratories |
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Definition
| Court established the market-share theory of recovery |
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Term
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Definition
| Required testifying expert to be in the same medical field as the defendant physician |
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Term
|
Definition
| No duty unless aware of the specific, imminent harm |
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Term
| Stubbs v. City of Rochester |
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Definition
| If more than one possible causes of harm exist, and the defendant would be liable for one of them, the plaintiff must establish with reasonable certainty that the cause of the injury was the one for which the defendant was liable. |
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Term
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Definition
| Joint and Several Liability |
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Term
| Tarasoff v. Regents of the University of California |
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Definition
| A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks that make the conduct unreasonably dangerous. When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. |
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Term
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Definition
NEGLIGENCE PER SE; Some statutes do not fix a definite standard of care that would protect life, limb, or property but merely supplement a common law rule that has always been subject to exceptions and limitations
These kinds of statutes should not be seen as wiping out the limitations and exceptions in the absence of clear language to the contrary
It should not be seen that this general rule of conduct has to be followed even when it would pose more of a danger than disobeying the rule |
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Term
| The Inherent Risk No-Duty Rule |
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Definition
| "No duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself." |
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Term
|
Definition
| Defendants are liable to thin-skulled plaintiffs even if their negligence would not cause such injury in the ordinary person |
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Term
|
Definition
Converted Dillon guidelines into rules;
1. You MUST be closely related to the victim - blood or marriage, relatives in the same household, parents, grandparents
2. You MUST be present at the scene of the injury-producing event when it occurs and be aware of the injury
3. You MUST have serious emotional distress (reasonable person standard) |
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Term
| Totality of Circumstances Test |
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Definition
| Takes additional factors into account such as the nature, condition and location of the land as well as any other relevant factual circumstances bearing on foreseeability |
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Term
| Trespass v. Trespass on the Case |
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Definition
| DIRECT = TRESPASS; INDIRECT = TRESPASS ON THE CASE |
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Term
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Definition
| Not doing a customary action may indicate negligence, but if there is not a customary action, doing so may indicate extraordinary care |
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Term
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Definition
1. The agreement concerns a business of a type suitable for public regulation
2. The party seeking exculpation provides a service of great importance to the public which is often a matter of practical necessity for some members of the public
3. The party holds himself out as willing to perform the service for any member of the public who seeks it
4. The party invoking exculpation has a decisive advantage of bargaining strength against any member of the public who seeks his service
5. The party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional fees to obtain protection against negligence
6. The person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents |
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Term
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Definition
| Liability if direct causal link - Polémis |
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Term
|
Definition
No liability - Cardozo in Palsgraf
Liability if proximate cause (must be direct) - Andrews (dissent) in Palsgraf
No liability for unforeseeable harm - Wagon Mound
Gross negligence of an intervening third party can cut off liability to a manufacturer - McLaughlin v. Mine Safety Appliance Co.
The fact that an intervening party is negligent does not cut off the negligence of the manufacturer (Dissent in McLaughlin, Restatement of Torts § 447 & 449 |
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Term
| Vandermark v. Ford Motor Co. |
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Definition
Manufacturer cannot insulate itself by delegating final inspection and adjustment to the dealer;
Contractual disclaimers were immaterial |
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Term
|
Definition
| A social fund that awards automatic compensation for wages, but not for pain and suffering |
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Term
Greenman v. Yuba Power Products Co.
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|
Definition
Why Strict Liability:
Recovery under this tort doesn’t depend on the law of contract and sales. Responsibility should be fixed as to reduce the hazards of defective products
Devastating kind of loss and Πs usually can’t really absorb such grave risk
∆ can risk the loss to the consumers or shift it to the entire industry by taking up products liability insurance
Most of the times, there is negligence but it is hard for Πs to prove it.
So now all Π has to show is that he was injured while using ∆’s product in a way it was intended to be used. |
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Term
| Defenses are also known as privileged to intentional torts |
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Definition
Defenses for torts are:
1.) self defense
2.) defense of others
3.) shopkeepers priviledge and arrest
4.) defense of prperty
5.) discipline
6.) consent
7.) necessity |
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Term
| Duty to Retreat from Violence |
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Definition
| Most states would say that if you are attacked and you have the ability to retreat, you should. Florida allows individuals to stand their ground. |
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Term
| State Rubbish Collectors Ass'n v. Siliznoff |
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Definition
| When one acts outrageously, intends to cause distress, and does so, he is liable for the emotional distress AND the bodily harm resulting therefore. |
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Term
|
Definition
| Allowed limited bystander recovery for negligent infliction of emotional distress for close relatives of the direct victim |
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Term
|
Definition
| Strict liability does not extend to purely economic loss |
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Term
| Barker v. Lull Engineering |
|
Definition
Two pronged test for design defects:
1. Excessive preventable danger
2. Ordinary consumer expectations |
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Term
|
Definition
Justification for imposing strict liability upon a successor to a manufacturer may rest upon:
1. The virtual destruction of the plaintiff's remedies caused by the acquisition of the business
2. The successor's ability to assume the original manufacturer's risk-spreading role
3. Fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the manufacturer's good will being enjoyed by the successor by operation of the business |
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Term
|
Definition
| Ordinary principles of negligence may be used to determine the liability of a landowner to a person coming onto the property. Abolished trespasser/licensee/invitee. |
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Term
|
Definition
| Allowed beneficiaries of wills to pursue a professional negligence action despite lack of privity. |
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Term
| Pain and Suffering Cap (CA.) |
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Definition
| 1975 (under Gov. Jerry Brown) - $250k |
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Term
| Characteristic Provisions of Worker's Comp. Statutes |
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Definition
1. Strict Liability for on-the-job injury
2. Defenses are abolished including contributory negligence, assumed risk and fellow servant rule
3. Limited liability - Compensation for medical needs and wage loss but NOT pain and suffering
4. Immediate and Periodic Payment instead of lump sum |
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Term
|
Definition
| A legal doctrine under which individual entities can be held jointly liable for some action on the basis of being part of a shared enterprise. Escola v. Coca Cola Bottling Co. |
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Term
|
Definition
|
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Term
| Soule v. General Motors Corp. |
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Definition
| The consumer expectations test is reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions and is thus defective regardless of expert opinion about the merits of the design. Expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. |
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Term
| Flagrant v. Ordinary Trespassers |
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Definition
Flagrant - landlord owes a duty for willful, wanton, intentional harm
Ordinary - landlord owes a duty of reasonable care |
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Term
|
Definition
| Adopted a duty of reasonable care to invitees and licensees in Iowa. (2009) |
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Term
|
Definition
1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
2. Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence
3. Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship |
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Term
|
Definition
A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if and only if the plaintiff:
1. Is closely related to the victim
2. Is present at the scene of the injury producing event at the time it occurs and is aware that it is causing injury to the victim
3. The plaintiff suffers serious emotional distress |
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Term
|
Definition
| Judge Fuld abolished charitable immunity |
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Term
|
Definition
| Barred interspousal tort suits (1909) |
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Term
|
Definition
| Barred unemancipated minors from suing parents for negligence (1931) |
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Term
|
Definition
| Abolished interspousal immunity for both intentional and negligent torts (1962) |
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Term
|
Definition
| Abolished parental immunity for negligence liability (1971) |
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Term
|
Definition
| Abolished parental immunity for willful or malicious torts (1955) |
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Term
| Muskopf v. Corning Hospital District |
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Definition
| Abolished the traditional doctrine of governmental immunity (1961) |
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Term
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Definition
| Without further proof, it would be solely a conjecture for a jury to draw the conclusion that the deceased fell down the stairs because of (negligent) absence of light. (1929) Case dismissed. |
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Term
|
Definition
| The absence of evidence that the plaintiff fell, rather than jumped or was pushed down a dimly lit stairwell, does not negate the reasonableness of an inference that the poor lighting caused the injury. |
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Term
| Haft v. Lone Palm Hotel (Haft Doctrine) |
|
Definition
(1970) The court ruled that:
1. The motel's conduct should be measured by its omission to provide lifeguard services (or a sign)
2. The burden of proof on causation shifted to the defendant to prove that the absence of lifeguard services was causally related tot he drownings |
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Term
| McCreery v. Eli Lilly & Co. |
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Definition
| Held that the rule from Summers v. Tice was inapplicable to DES cases because Sumers is a case of "known concerted activity" |
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Term
| Sindell v. Abbott Laboratories |
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Definition
| Established market share theory of liability |
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Term
| Ryan v. New York Central Railroad Co. |
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Definition
| Parties are not liable for the remote results of their negligence, only the proximate consequences |
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Term
| In Re an Arbitration between Polemis and Another and Furness, Withy and Company, Limited |
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Definition
| (1921) The exact way in which damage or injury results need not be foreseen for liability to attach, the fact that the negligent act caused the result is enough. |
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Term
| Palsgraf v. Long Island Railroad Co. |
|
Definition
(1928) Cardozo -
1. A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances.
2. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger. |
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Term
| Overseas Tankship Ltd. v. Mort's Dock & Engineering Company, Ltd. |
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Definition
| The natural consequences rule (Polemis) is overruled and reasonable foreseeability test is adopted. |
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Term
| McLaughlin v. Mine Safety Appliances Co. |
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Definition
| Intervening Negligence by a third party can supersede a manufacturer's liability for failure to warn |
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Term
| Weirum v. RKO General, Inc. |
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Definition
| The fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts. It is of no consequence that the harm to decedent was inflicted by third parties acting negligently. |
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Term
| Wagner v. International Railway Co. |
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Definition
| Cardozo - "danger invites rescue;" a rescuer can recover from a negligent defendant when injured in attempting a rescue |
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Term
|
Definition
| Abolished the doctrine of contributory negligence and adopted a system of pure comparative negligence. |
|
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Term
| Connelly v. Mammoth Mountain Ski Area |
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Definition
| Inherent Risk of sport bars recovery |
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Term
|
Definition
| The distinction made between natural and unnatural use of land is not established in the law. The rule in Rylands v. Fletcher would impose penalty upon efforts made in a reasonable, skillful, and careful manner. (1873) |
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Term
|
Definition
| Rejected Rylands in New York |
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Term
| Bridgeman-Russell v. City of Duluth |
|
Definition
| (1924) Extended Rylands strict liability rule beyond reservoirs to the escape of water from the principal main leading from a reservoir, borrowing language from enterprise liability |
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Term
| Green v. General Petroleum Corp. |
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Definition
| (1928) Extended strict liability beyond blasting and explosives to the nonnegligent operations of an oil company when a well had "blown out" |
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Term
| Exner v. Sherman Power Construction Co. |
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Definition
| (1931) Extended strict liability beyond blasting to the storage of explosives and beyond damage caused by debris cast on the land of another to damage caused by concussion |
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Term
|
Definition
Strict liability for ultrahazardous activity:
1. Necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of utmost care
2. Not a matter of common usage (if yes, then no strict liability) |
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Term
|
Definition
| (1948) The use of poisonous gas by an exterminator is not a matter of common usage within the meaning of the term because there are "relatively few" exterminators and they perform a specialized task. |
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Term
|
Definition
| Strict liability for ultrahazardous transportation of gasoline |
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|
Term
| Restatement 2d of Torts § 519 |
|
Definition
Strict liability for "Abnormally dangerous activity" if:
1. One who carries on an abnormally dangerous activity is liable for harm even if they exercised utmost care
2. Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous |
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Term
| Restatement 2d of Torts § 520 |
|
Definition
Abnormally Dangerous:
a. Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others
b. Whether the gravity of the harm which may result from it is likely to be great
c. Whether the risk cannot be eliminated by the exercise of reasonable care
d. Whether the activity is not a matter of common usage
e. Whether the activity is inappropriate to the place where it is carried on AND
f. The value of the activity to the community |
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Term
| Restatement 3d: Liability for Physical Harm § 20 |
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Definition
| Reverts to the first Restatement's two-element test for abnormally dangerous activity |
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Term
|
Definition
| Court applied comparative fault in a case involving a reckless defendant and reduced the compensatory, but not the punitive award |
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Term
|
Definition
| Comparing negligence of plaintiff in provoking fight with defendant's intentional battery |
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Term
| Cartwright v. Equitable Life Assurance Society |
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Definition
| Refusing to compare plaintiff's negligence with defendant's fraud |
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Term
|
Definition
| Intentionality is central to the tort of battery and while a minor who has committed a tort with force is liable as any other would be, a plaintiff must establish that the defendant committed his or her act for the purpose of causing the harmful contact or with substantial certainty that such contact will result |
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Term
| Restatement 2d of Torts §§ 18,19 |
|
Definition
An individual is guilty of battery if:
1. They act with the intention of causing harmful OR offensive contact with the person of the other, OR a third person OR an imminent apprehension of such contact AND
2. An offensive contact with the person directly or indirectly results |
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Term
| Restatement 2d of Torts §§ 38-41 |
|
Definition
False Imprisonment:
1. Actual or apparent physical barriers
2. Overpowering physical force, or by submission to physical force
3. Threats of physical force
4. Other duress
5. Asserted legal Authority |
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Term
|
Definition
| (1850) Established negligence in tort |
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Term
|
Definition
| (1980) A person's PHYSICAL disability can excuse their liability for damages that occur without their being able to reasonably foresee them |
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Term
|
Definition
| (1996) The court denied the plaintiff's assertion that a temporary mental disability should be a reasonable excuse for negligent behavior |
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Term
| Akins v. Glens Falls City School District |
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Definition
| (1981) A school acted with reasonable care by erecting a backstop at a high school baseball field. The plaintiff who was injured by a ball is owed no duty |
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Term
| Andrews v. United Airlines, Inc. |
|
Definition
| (1996) Common carriers owe both a duty of utmost care and the vigilance of a very cautious person towards its passengers. The jury is equipped to decide whether an airline has a duty to do more than warn passengers about the possibility of falling luggage. |
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Term
| Brosnahan v. Western Airlines |
|
Definition
| (1989) A jury might find airline personnel negligent in failing to adequately supervise the boarding process during which a passenger dropped a carry-on on another passenger's head |
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Term
| USAir v. United States Department of the Navy |
|
Definition
| (1994) The court held that a passenger and his employer might be held liable for negligently stowing in the overhead compartment a briefcase that fell and hurt another passenger. |
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Term
| Bethel v. New York City Transit Authority |
|
Definition
| (1998)The duty owed by a common carrier is the objective reasonable person standard. That standard, which is based on a relative sliding scale of the factual situation and how a reasonable person will act under the same or similar facts is itself flexible enough to permit courts and juries to fully take into account any ultrahazardous nature of a tortfeasor’s activity. Thus the old rule is no longer viable and a common carrier should merely be held to the same standard of care of the reasonable person. |
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Term
|
Definition
| (1982) When custom and practice have removed certain dangers, the custom may be used as evidence that one has failed to act as is required under the circumstances |
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|
Term
| Morris "Custom and Negligence" (1942) |
|
Definition
If a defendant ignores a prevailing custom:
1. If an industry does one thing, a court may be wary to accept the plaintiff's assertion that there is a safer way to do such things and may insist that the plaintiff prove the feasibility of the action
2. Even if the plaintiff can prove the existence of another method, proof that the industry has not adopted it may suggest that the defendant had no means of knowing about it
3. The existence of a custom that involves large fixed costs may warn the court of the social impact of a decision that determines the custom to be unreasonable |
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Term
| Negri v. Stop and Shop, Inc. |
|
Definition
| (1985) If it can be inferred that a shop owner had "constructive notice" of a dangerous condition and did nothing to prevent harm, they can be held liable |
|
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Term
| Gordon v. American Museum of Natural History |
|
Definition
| (1986) There must be evidence that a hazardous condition existed for long enough that the owner would be aware or have constructive notice and thus have an opportunity to remedy it before any harm is caused |
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Term
|
Definition
|
|
Term
| Sheeley v. Memorial Hospital |
|
Definition
| (1998) Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care. Doctors should be held to an objective national standard. |
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Term
|
Definition
| (1993) The court required a testifying physician to be of the same medical field as the defendant physician |
|
|
Term
| Marshall v. Medical Associates of Rhode Island |
|
Definition
| (1996) Even though the expert may not practice in the same specialty, he clearly had the requisite "knowledge, skill, experience, training OR education" in the field of the alleged malpractice |
|
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Term
|
Definition
| (1997) Held that there was no requirement for a testifying expert to practice the same specialty as the defendant |
|
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Term
|
Definition
| (2008) Residents are held to the same standard of care as physicians who have completed their residency |
|
|
Term
|
Definition
| (2000) State statute required that the testifying physician, in addition to having the requisite substantive knowledge, "must have had an active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission. |
|
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Term
|
Definition
| (1998) Local anesthetic v general anesthesia - school of thought consideration |
|
|
Term
| Leonard v. Watsonville Community Hospital |
|
Definition
| Even if the defendants were trying to assert that there was a custom in the relevant community not to count instruments before closing an incision, that would not control the case |
|
|
Term
| Sides v. St. Anthony's Medical Center |
|
Definition
| (2008) A plaintiff can proceed on a res ipsa loquitur theory where the medical expert's opinion is that injury would not have occurred absent negligence |
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|
Term
| Restatement 2d of Torts § 315 |
|
Definition
Duty of care may arise from either:
A. special relation between the actor and the third person which imposes a duty upon the actor to control the third person's conduct
B. Special relation between the actor and the other which gives to the other a right of protection |
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Term
|
Definition
| Established a broad rule of privilege to protect confidential communications between patient and psychotherapist |
|
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Term
|
Definition
| Created a specific and limited exception to the psychotherapist-patient privilege "if the psychotherapist has reasonable cause to believe that the patient is dangerous to himself or to the person or property of another" |
|
|
Term
| Principles of Medical Ethics of the American Medical Association § 9 |
|
Definition
| "A physician may not reveal the confidence entrusted to him in the course of medical attendance unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or the community" |
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|
Term
|
Definition
| (1978) A defendant psychotherapist had no duty to warn where the risk is self-inflicted harm or mere property damage after the plaintiff's daughter committed suicide. The court suggested medical malpractice was in order, though. |
|
|
Term
|
Definition
| (2006) Psychotherapist subject to liability for patient's suicide if he failed to exercise the customary care of psychiatrists in treating patient |
|
|
Term
| Thompson v. County of Alameda |
|
Definition
| (1980) Trial court dismissed a claim which was affirmed by Appellate Division concerning a juvenile offender who, while in detention, expressed an intention to kill an unidentified child in the neighborhood, which he did within 24 hours of release |
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|
Term
| Hedlund v. Superior Court |
|
Definition
| (1983) A young child, harmed during a violent assault on his mother, stated a claim based on threats of violence against the mother that had been communicated to defendant psychotherapists |
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|
Term
| California Civil Code § 43.92 |
|
Definition
| Therapists are immune for liability for failure to warn EXCEPT when the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim |
|
|
Term
| Peck v. Counseling Service of Addison County |
|
Definition
| (1985) Extended the duty in favor of the patient's parents whose barn was burned down |
|
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Term
|
Definition
| (1981) No duty owed to the patient herself who claimed that her psychiatrist had not prevented her from committing the murder for which she was imprisoned |
|
|
Term
| Tedrick v. Community Resource Center, Inc. |
|
Definition
| (2009) Declining to adopt a Tarasoff duty to avoid subjecting psychotherapists to divided loyalties |
|
|
Term
| California Health & Safety Code §121015 |
|
Definition
| "No physician has a duty to notify any person of the fact that a patient is reasonably believed to be infected by HIV |
|
|
Term
| Stitt v. Holland Abundant Life Fellowship |
|
Definition
(2000) “Public Invitee”: extends invitee status to a person who is “invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public
Additional duty for the landlord “must be directly tied to the owner’s commercial business interests
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|
|
Term
| Restatement 2d of Torts § 332 |
|
Definition
| Defines an invitee for business purposes - a person is a licensee until the landlord has a mutual, financial interest in their presence |
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|
Term
| 65 C.J.S. Negligence § 63(41) |
|
Definition
| A person is an invitee if the premises are thrown open to the public and the person enters pursuant to the purposes for which they are thrown open |
|
|
Term
| Restatement 2d of Torts § 333 |
|
Definition
| Except as stated in §§ 334-339, a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care |
|
|
Term
|
Definition
| (2000) Plaintiff was injured in a city park at 2am when a tree limb fell on him. The court held that he was a trespasser (and owed no duty) because the park closed at 9PM |
|
|
Term
| Restatement 2d of Torts § 342 |
|
Definition
An occupier is subject to liability to invitees if the occupier:
a. knows or by the exercise of reasonable care would discover the condition AND
b. Should expect that the invitee will not discover or realize the danger AND
c. Fails to exercise reasonable care to protect them from the danger |
|
|
Term
|
Definition
| Some courts have held defendant landowners not liable for dangers that were apparent to the plaintiff |
|
|
Term
| Kentucky River Medical Center v. McIntosh |
|
Definition
| (2010) Paramedic, while moving a patient from an ambulance, tripped over a curb. Court explained that the open and obvious rule developed and could comfortably exist under contributory negligence. |
|
|
Term
| Restatement 2d of Torts § 339 |
|
Definition
Attractive Nuisance: a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
a. The possessor knows or has reason to know that children are likely to trespass AND
b. Possessor realizes or has reason to realize the condition will involve an unreasonable risk of death or serious bodily harm to children AND
c. The children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it AND
d. The burden of eliminating the danger is slight compared to the risk to children AND
e. Possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children |
|
|
Term
|
Definition
| (1996) Eliminated the distinction between licensees and invitees, ruling that reasonable care is due to all lawful visitors |
|
|
Term
|
Definition
| "An entrant's status should not determine the duty that the landowner owes to him or her; it is 'contrary to our modern social mores and humanitarian values.'" |
|
|
Term
|
Definition
| "The special immunity which the licensee rule affords landowners cannot be justified in an urban industrial society" |
|
|
Term
| Kermarec v. Compagnie Generale |
|
Definition
| "Distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land [and] a heritage of feudalism" |
|
|
Term
| McCurry v. Young Men's Christian Association |
|
Definition
| Duty not owed to an individual injured while playing basketball on YMCA courts when the individual was not a member of the YMCA, nor had he obtained permission to use the courts. Dissent in Heins used this case to illustrate the benefits of traditional landowner distinctions |
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|
Term
| California Civil Code § 847 |
|
Definition
1.Includes a provision that protects landowners against liability to persons hurt on premises while committing or attempting to commit one of 25 enumerated criminal offenses
2. Civil action is to be delayed until the conclusion of criminal action |
|
|
Term
|
Definition
A landlord is liable in tort ONLY if the injury is attributable to:
1. A hidden danger of which the landlord is aware, but not the tenant
2. Premises leased for public use
3. Premises retained under the landlord's control, such as common stairways
4. Premises negligently repaired by the landlord |
|
|
Term
| Uniform Residential Landlord and Tenant Act |
|
Definition
| Requires landlords to maintain the premises in "habitable and safe condition" |
|
|
Term
|
Definition
| Required lead-free apartments when minors are occupants |
|
|
Term
| Kline v. 1500 Massachusetts Ave. Apartment Corp. |
|
Definition
| Court imposed a duty of due care on the landlord of a large apartment building toward a tenant who had been assaulted in a common hallway. "Only the landlord could have taken measures which might have prevented the injury." The landlord can re-distribute the cost of prevention to the tenants |
|
|
Term
|
Definition
| (1991) Cause was found "too remote" - the plaintiff, while driving on a roadway near a golf course, was hit by a ball and alleged that the defendant's failure to yell "fore" caused the injury. The court determined that it was unlikely that the plaintiff could have heard and then reacted to the warning |
|
|
Term
| Tollison v. State of Washington |
|
Definition
| (1998) An adoption agency failed to notify adopting parents of certain information mandated by statute, but the court determined it was unlikely that the information would have altered the plaintiff's course of action |
|
|
Term
| Mauro v. Raymark Industries, Inc |
|
Definition
| (1989) Majority allowed those with better-than-even chances to sue for full future damages; dissent wanted to permit those with less-than-even chances to recover that percentage of their damages |
|
|
Term
| Dillon v. Evanson Hospital |
|
Definition
| Court permitted plaintiff to recover for an increased risk of future injuries |
|
|
Term
| Ryan v. New York Central Railroad Co. |
|
Definition
(1866) "Nearly all fires are caused by negligence"
"A man may insure his own house or his own furniture, but he cannot insure his neighbor's building or furniture for the reason that he has no interest in them" |
|
|
Term
| Illinois and Colorado stance on liability for screening at baseball stadium |
|
Definition
| NO liability UNLESS the plaintiff was sitting behind a negligently defective screen or they were hurt as a result of willful or wanton conduct |
|
|
Term
| Cardozo Rules in Murphy v. Stepplechase |
|
Definition
Cardozo rules that
• (1) there was “no adequate basis for finding that the belt was out of order.”
• (2) The ride had danger. But the danger was not “obscure or unobserved.” Thus the plaintiff cannot claim he was not warned.
• (3) Was the ride unreasonably dangerous? No. The dangers were not so serious that precautions of some kind must have been taken. Nor were the accidents “so many that the flopper was too dangerous to be continued without change.” |
|
|
Term
|
Definition
| Workers who are hurt by a coworker—a fellow servant—should blame the responsible coworker, not their employer |
|
|
Term
|
Definition
| No negligence, there was no indication that the extremely rare circumstances would exist - wire electrocution on trolley bridge |
|
|
Term
| Baltimore and Ohio Railroad Co. v. Goodman |
|
Definition
| (1927) Holmes - "Generally [the question of due care] is left to the jury. BUt we are dealing with a standard of conduct, and when the standard is clear, it should be laid down once and for all by the courts" |
|
|
Term
| Points from Holmes "The Common Law" |
|
Definition
1. If the court has a substantial knowledge of public policy as it relates to the case or if the judge has practical experience related to the action, they may take the case away from the jury
2. The jury will find the conduct is either usually or unusually blameworthy, then the judge can decide
3. If the jury is inconsistent in its rulings, the judge may decide the case |
|
|
Term
|
Definition
| The plaintiff must prove that the store did (or should have) know(n) that the hazard existed because of the amount of time it had been present |
|
|
Term
|
Definition
|
|
Term
|
Definition
| Attractive nuisance, extra duty owed to children |
|
|
Term
| Difference between strict liability for products and ultrahazardous activity |
|
Definition
| No defect requirement for ultrahazardous activity |
|
|
Term
| Hackbart v. Cincinnati Bengals |
|
Definition
| (1970) Held that when players intentionally violated rules of the game which were intended for the safety of the players and when the contact in question was not sanctioned by the customs of the game then liability could be imposed. |
|
|
Term
| "Consumer Expectation" v. "Risk/Utility" |
|
Definition
1. Consumer expectation test does not focus on the process by which the product was made or whether it could reasonably be made safer. It focuses on what level of safety the ordinary consumer would expect the product to have. If the product is not as safe as ordinary consumers would expect it to be, it is "defective."
2. The Risk/Utility test focuses on the process by which the product was made, rather than on the expectations of consumers about its safety. According to this test, a product is defective if its design embodies "excessive preventable danger." Barker v. Lull Engineering Co. That occurs when the risk of danger inherent in the challenged design outweighs the benefits of that design. |
|
|
Term
| "Intent" in Restatement 3d of Torts: Liability for Physical and Emotional Harm § 1 |
|
Definition
"a. The person acts with the purpose of producing the consequence OR
b. The person acts knowing that the consequence is substantially certain to result" |
|
|
Term
|
Definition
| "Willful and Malicious Injury" unlike negligently inflicted injury, cannot be discharged in bankruptcy |
|
|
Term
| Picard v. Barry Pontiac-Buick, Inc. |
|
Definition
| (1995) Intentionally touching anything "so connected with the body to be considered an extension of the person," can constitute battery. In this case, the defendant touched the plaintiff's camera. |
|
|
Term
| Restatement 2d of Torts §§ 18,19 |
|
Definition
| Battery: Offensive Contact |
|
|
Term
|
Definition
| "In a crowded world, a certain amount of personal contact is inevitable, and must be accepted." |
|
|
Term
|
Definition
| Defendant shot plaintiff police officer who emerged from a crowd of rioters in front of the defendant's home. Case reversed in favor of the defendant because the jury should have been instructed that he was not liable if a reasonable person in his position would have believed his life was in danger. |
|
|
Term
|
Definition
| (1937) U.S. Supreme Court decided that additurs are a violation of the 7th amendment right to a jury trial, thus they are no longer used in the FEDERAL court system |
|
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Term
| Farwell v. Bosten & Worcester Railroad Corp |
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Definition
| (1842) Justice Shaw wrote an opinion that held that an injured worker's suit against his employer was invalid on the grounds that a master was not vicariously liable for injuries suffered because of a fellow worker's negligence. |
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Term
| Burlington & Quincy R. Co. v. Krayenbuhl |
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Definition
| (1902) Turntable case - Child has his leg severed when playing on a turntable. The court recognized the importance of turntables to a modern society, but reasoned that a simple fix (a working lock) could have prevented the injury, thus society has an interest in demanding such preventive measures |
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Term
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Definition
| (1837) The court rejected an argument by the defense attorney that a lack of intelligence on the part of the defendant should excuse his neglignce |
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Term
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Definition
| (1961) a 12-year-old driving a motorboat was held to a reasonable adult standard. |
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Term
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Definition
| (1874) In violation fo the Contagious Diseases Act, a defendant shipowner failed to build pens on the deck in order to keep groups of sheep separated. During the voyage, some of the sheep were washed overboard. The plaintiff sheep owner brought suit which was dismissed because the statute had not contemplated that result as a reason for enforcement. |
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Term
| Kelly v. Stop and Shop, Inc. |
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Definition
| (2007) In the case of a self-service saldad bar, there is a continuous and foreseeable risk of harm to consumers that supersedes the need for actual or constructive notice |
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Term
| Ryan v. Progressive Grocery Stores, Inc. |
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Definition
| (1931) Grocer held liable for breach of warranty of merchantability when a customer bought a loaf of bread that had a pin inside which injured her husband. Cardozo. |
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