Emerson v Magendantz

(compensable injuries and damages--

life as injury--wrongful life)

botched tubal, sterilization, kid born with defect, not supposed to have kid, "bundle of joy" to have children, if not would have put up for adoption

P wins; limited recovery

Res ipsa loquitur

NEG-CONT-NOVOL

1) accident would not have happened without negligence

2) accident was not caused by anyone else, in exclusive control of D

AND

3) accident not due to voluntary action or contribution of P

PFC Respondeat Superior

WOR-SPA-PUR

1) During working hours

2) spatial boundaries of employment

3) Serving interest/purpose of employer

PFC for agent with apparent authority

REP-REL-BEH

1) represenation by principal

2) reliance by P

3) change in behavior by P based on reliance

Daubert expert witness factors

SCI-PEER-ERROR-THE

1) whether theory can be or has been tested by scientific method

2) whether theory has been subjected to peer review and publication

3) known or potential rate of error (in case of technique)

4) whether theory is generally accepted

Generally for med mal

need to show that more than 51% chance you lost opportunity to recover from injury

Market Share Analysis

LAT-PARAL-GENER-FUNG

1) Long latency-because impossible to know what actors are at play

2) Parallel Conduct-because flat market so all seem alike

3) Generically marketed-risk in creation similar

4) Fungibility-all products are commercially interchangeable

Substantial Factor Test

1) directness (connection to injury)

2) intervening causes/events

3) closeness in time/distance/space

4) foreseeability

Balancing factors in determining duty as per Tarasoff

FOR-CERT-CLOS-MOR-PREV-BUR-INS

1) Foreseeability of harm

2) Degree of certainty of injury suffered

3) Closeness between D's conduct and injury to P

4) Moral blame of D

5) Preventing future harm

6) Burden to D and community regarding consequences of imposed duty

7) Availability, cost and prevalence of insurance

Duty: general foreseeability

Proximate cause: narrower fact-based foreseeability

What is the 4 factor approach to determine duty as per Randy W?

FOR-MOR-INS-PUB

1) foreseeability

2) moral blame

3) availability of insurance and who can bear loss (economic)

4) public policy

What is the 4 factor approach in NJ for duty?

REL-RIS-CAR-PUB

1) relationship of parties

2) nature of attendant risk

3) opportunity and ability to exercise care

4) public interest in proposed solution

How do we know if a statute creates a duty/cause of action?

BE-LEGI-CON

1) Benefitted class

2) Promotes legislative intent

3) Consistent with legislative scheme

What is the exception to the general rule of duty for municipal agents where there is a special relationship? (as per Cuffy v. City of NY)

Mnemonic: AFFI-KNO-CO-RE

1) Municipality assumes AFFIRMATIVE duty to act

2) Municipality's KNOWLEDGE that inaction could lead to harm

3) Direct CONTACT between municipal agents and injured parties

3) Injured party's justifiable RELIANCE on municipality

What are the 7 reasonable care factors for lawful visitors to be determined by fact-finder?

FOR-PUR-TIM-USE-REA-OPP-BUR

1) Foreseeability or possibility of harm

2) Purpose of entrance

3) Time, manner, circumstances

4) Use of premises

5) Reasonableness of inspection

6) Opportunity and ease of repair

7) Burden on land occupier

1) Proximity of P to scene of accident

2) Impact of observation of P (see it? hear about it later?)

3) Relationship between P and accident victim

Portee court adds "severity of injury causing emotional distress"

What are the 6 Tunkl factors cited in Dalury v. S-K-I, Ltd.

REG-OPE-SERV-BARG-LANG-CONT

1) Whether business is of a type suited to regulation

2) Whether D's activity is open to the public

3) Whether D performs a service for the public

4) Whether parties had equal bargaining power

5) Standard "take it or leave it" language

6) Whether P is under D's control

What are the 4 factors D must show for P's Secondary Implied Assumption of Risk?

KNOW-KNEW-APPRE-VOLUN

1) P had KNOWLEDGE of facts constituting dangerous condition

2) P KNEW condition was dangerous

3) P APPRECIATED nature and extent of danger

4) P VOLUNTARILY exposed himself to the danger

What are the 6 factors necessary for battery?

A-F-I-H-O-PER-C-UN-

1) ACT by D

2) Done with FORBIDDEN intent (D desires to cause or knows or believes he will cause IMMINENT apprehension)

3) Harmful or offensive contact (can be identified by a reasonable person)

4) With the PERSON OF ANOTHER ("extended personality rule" applies)

5) Resulting from or CAUSED by D's act

6) Contact is UNCONSENTED

What are the 3 PFC elements for an assault?

PHY-FEA-IM

1) physical act of a threatening nature

2) which puts a person in reasonable fear of

3) imminent bodily harm (i.e. battery)

What are the 4 elements of the PFC for Intentional Infliction of Emotional Distress?

INT-REC-DEC-EXT-OUT-CAUS-SEVEMO

1) D acted INTENTIONALLY or RECKLESSLY

2) Conduct offends DECENCY/MORALITY in being EXTREME or OUTRAGEOUS

3) Causal link between act and harm

4) Severe EMOTIONAL DISTRESS (no eggshell plaintiff)

What are the 3 factors of self-defense in Intentional Torts?

SUBJ-FEA-HON-REAx2

1) Subjective Fear (for self or others) and acted HONESTLY using force

2) Fear must be reasonable under circumstance

3) Means used are reasonable in self-defense

1) Value of property at stake balanced against cost of human life and limb

2) Legal remedy as an alternative to use of force

3) Location of property in order to protect it otherwise

4) Kind of warning given

5) deadliness of device used

6) Character of conflicting activities

7) Cost of avoiding interference by other means