Shared Flashcard Set

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Torts
from Prosser, Wade, and Schwartz's Torts Cases and Materials, 12th Ed.
186
Law
Graduate
07/15/2015

Additional Law Flashcards

 


 

Cards

Term
What is a tort?
Definition
a civil wrong for which the law provides a remedy 
Term
Why do we even care about torts?  List policy reasons
Definition
  • to provide a peaceful means of adjusting rights of parties who might otherwise take law into their own hands
  • to deter wrongful conduct
  • to encourage socially responsible behavior
  • to put plaintiff back in their original position
  • to vindicate individual rights of redress
Term
You are _____ for a tort and _____ for a crime.
Definition

1. liable

2. guilty

Term
List the Intentional Torts
Definition
—Harm to Persons
¢Battery
¢Assault
¢False imprisonment
¢Intentional Infliction of Emotional Distress
—Harm to Property
¢Trespass to Land
¢Trespass to Chattels
¢Conversion of Chattels
Term
Describe intent (2 ways)
Definition
¢Desire to harm or offend

OR

¢Knowledge with Substantial Certainty (KWSC);                   ill will is not required.

***Garratt v. Dailey

Term
List policy reasons why we don't allow mistake or mental illness to be defenses to a tort.
Definition
  • dont want wrong doer to be unjustly enriched
  • want to hold people accountable for their actions.  
Term
________ and ______ do not negate intent
Definition

 

¢Mistake (Ranson v. Kitner: thought the dog was a wolf and shot him).

 

¢Mental illness
—McGuire v Almy

 

Term
_____ may be transferred from person to person OR from tort to tort. 
Definition
Intent
Term
Transferred intent only applies to the original 5 trespassory torts: (list them)
Definition
Battery
Assault
False Imprisonment
Trespass to Chattels
Trespass to Land
Term
List the elements of Battery (3):
Definition

Act (touching) –Cole v. Turner Touching can be through an extension of your body. (Fisher v. Carrousel: where grabbing Ps plate constitutes battery)Intent to cause harm OR offense -Remember, KWSC qualifies as intent (Wallace v. Rosen: where teacher touched Wallace on the back. Conditions on stairway during fire drill were example of crowded worldResult of harmful or offensive contactEggshell Skull Doctrine: You take your victim as you find him/her. (****Note 2, pg. 35: Vosburg v Putney: kick on the shin had effect of lighting up an infection from previous injury and d responsible for all damages even though extent of injury could not have been forseen)

  Notion of a crowded place: If you touch someone just trying to get around them, understandable. Not every touching is harmful or offensive, but has to be taken in full circumstances of the case. -Wallace v. Rosen  

Term
What is the Eggshell Skull Doctrine?
Definition
You take your victim as you find him/her. (****Note 2, pg. 35: Vosburg v Putney: kick on the shin had effect of lighting up an infection from previous injury and d responsible for all damages even though extent of injury could not have been forseen)
Term
Explain the Notion of a Crowded Place with respect to battery:
Definition

 If you touch someone just trying to get around them, understandable. Not every touching is harmful or offensive, but has to be taken in full circumstances of the case. -Wallace v. Rosen  `

Term
List the elements of Assault (3): 
Definition
1. Intent 2. To place the victim in apprehension of an imminent physical contact or offensive contact
Future threats will not suffice.
Note 1, pg. 39 and Note 2, pg. 40: Focus on apparent ability of potential tortfeasor to carry out the assault. (Western Union Telegraph Co. v. Hill: where Sapp could have reached beyond the desk to reach Mrs. Hill)
3. Victim is thereby placed in apprehension of such contact
Term
List the elements of false imprisonment (3):
Definition
¢Intent
¢Act of confinement within the boundaries fixed by the actor. Big Town Nursing Home v. Newman: where d acted in utter disregard of Ps legal rights and locked him in restraint chair, detained him for 51 days, etc.)
Victim is conscious of the confinement OR is harmed.

(Parvi v. City of Kingston: where focus was on whether P was conscious at the time of the imprisonment, not on whether he could recall the event at a later time.)  

Term
The type of confinement required by the False Imprisonment tort may be satisfied by 
Definition

Actual or physical barriers (Whitaker v.Sandford: where boat off of the yacht was the equivalent to a key to get out of a locked room, and impassible sea is physical barrier to escape.)

Physical force, Threat of force—if imminent enough, Duress

Confinement by asserted legal authority (Enright v. Groves: where Officer Groves had proper legal authority, but did not bring p to the station for a proper legal violation. Brought her to the station because she did not produce her drivers license. No statute that requires p to show her DL on demand) NOTE: If reasonable person has a way to escape, then it is NOT false imprisonment.

Hardy v. LaBelle: No threat of force, not told that she could not leave, not unlawfully restrained against her will.


 

Term

NOT false imprisonment: moral persuasion or guilt trip, fear of losing job, clear oneself of suspicion (e.g. you cant leave until I figure this out), threat of a future action  

Definition
Term
Elements of IIED (4): 
Definition
¢Intentional or reckless conduct
—Specific intent/Knowledge with substantial certainty. (Taylor v. Vallelunga: where ds did not know daughter was present; were not beating her father for the purpose of causing her emotional distress).
¢That is Extreme and outrageous
—Objective standard (Slocum).
—Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities dont count. (Harris v. Jones).
—Personality of the individual to whom the misconduct is directed is a factor. (Harris)   
¢There must be a Causal connection. (Harris: where Harris nervous family problems antedated his encounter with Jones and were not shown to be attributtable to Jones actions)
¢Conduct must result in severe emotional distress for P. 
Term
3 elements of Trespass to Land:
Definition
Intent to enter land (above and below the ground) (Herrin v. Sutherland: where shooting gun over Ps land interferes with quite enjoyment of the plaintiff, action for trespass.) Mistake is no defense.
Enter the land of another
Socially useful or beneficial conduct is no justification.
Do not need damage (Dougherty v. Stepp: for every such entry against the will of the possessor, the law infers some damage)

 Note: A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing with the actor has placed thereon. (Rogers v. Board of Road Comrs for Kent County)

 

 

Term
3 Elements of Trespass to Chattels:
Definition
-Intent to exercise dominion or control over the chattel of another
-The chattel is impaired as to its condition, quality or value (CompuServe Inc. v. Cyber Promotions, Inc.:n.electrons are chattel.  to the extent that ds spam demand drained the processing power of Ps computer equipment, those resources are not available to serve CompuServe subscribers. Thus, value of that equipment is diminished. )  OR
-The possessor is deprived of the use of the chattel for a substantial time OR Bodily harm caused to possessor or harm caused to some person or thing in which possessor has a legally protected interest. (Glidden v. Szybiak: where dog was not injured by conduct of P, so no trespass.)
 

 

Term
4 Elements of Conversion:
Definition

Elements

¢An intentional exercise of dominion or control over a chattel.
¢Which so seriously interferes with the right of another to control it.
¢That the actor may justly be required to pay the other the full value of the chattel.

Pearson v. Dodd: information that was copied, not considered to be property subject to protection by suit for conversion.

¢Measure of damages: the market value of the chattel.

 

Recall discussion in class of notes on page 84. 

Term
What are the privileges (affirmative defenses) to the intentional torts?  List all 7
Definition
Consent
Self-defense
Defense of others or property
Recovery of property
Necessity (public/private)
Authority of law
Term
The privelege of consent can be ____ or ____.
Definition

1. express- Mohr v Williams – express consent can be defeated. diseased condition of left ear was discovered after she was unconscious for the operation on her right ear that she consented to. Technically, surgeon liable for battery, but he really ended up enriching the patient, so his damages reflected that good motive that could not be taken into account in the battery analysis.

2. implied(O’Brien v. Cunard: in light of the surrounding circumstances, in response to Doctor’s statement that he should vaccinate her again, woman holding up her arm in a line of women to be vaccinated, with no objection is held to have consented.)

Term
Consent is NOT valid when it is (list 5 exceptions:
Definition
uninformed, under duress, obtained by fraud, person lacks capacity, or a person exceeds the boundaries of consent (scope) (Hackbartv. Cincinnati Bengals, Inc.: injury from   intentional striking of a blow during   football game. Even though football is violent in nature, Hackbart (p) only consented to the extent of the rules in football.   Rules specifically forbid intentional striking of others.) 
Note 5, Pg. 95: Local custom permits public to take fish from small lakes and ponds. D passes over P’s property to reach such a lake. Consent?
Term
Medical care providers may act in the absence of express consent if (list the 4 qualifications):
Definition

(1) the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent), (2) there is a risk of serious bodily harm if treatment delayed, (3) a reasonable person would consent to treatment under the circumstances, and (4) the physician has no reason to believe this patient would refuse treatment under the circumstances. 

Term

If Doctor discovers conditions not anticipated before the operation was commenced, which, if not removed, would endanger life or health of the patient, he woulc be justified in extending the operation to remove and overcome them through ________ consent. 

Definition
implied
Term
elements of self defense
Definition
You reasonably believe force is necessary to protect you against battery. (reasonable mistake will protect you here).
A reasonable person would believe they were justified.
Person coming at you has to have apparent ability to carry out the attack.  
**Provocation will not suffice to trigger self-defense claim.

 
 
 
 
 
 
 
 
Term

What is the proportionality principle with respect to self defense? 

Definition

 limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. (differences in age, size, and relative strength are proper considerations).  In Texas, no duty to retreat.

Term
What is the principle of retaliation with respect to self defense?
Definition
Once threatened battery ceases, so does the privilege. Cannot use self-defense claim when retaliating.
Term
What are the standards for Defense of Others? List 2.
Definition

Some jurisdictions use the in-their-shoes doctrine: You are only authorized to use force if you would have been authorized to as that party.  

Other jurisdictions will allow defense of third persons if you reasonably believe that they are in need of aid.

*Proportionality Principle applies here too: You’re only authorized to use as much force as they could use if they were defending themselves. 

Term
Privilege to defend one’s land against an intruder is limited to ______.
Definition

 unlawful intrusions. Privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the defendant. Katkov. Briney: No spring devices in protection of property. Life is more important that protection of property. 

Term
To recover your property, you must be in ____.
Definition

Fresh pursuit: limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel. Any undue laps of time during which pursuit has not been commenced, or has come to a halt, will mean owner is no longer privileged to fight himself back into possession, but must resort to the law. *No privileged force against privileged force.  (e.g. Hodgedenv. Hubbard Ds in pursuit of P because he stole their stove; Ds took the stove away by force and then P pulled a knife on Ds; D not privileged to use force against the privileged force of D to pursue and recover their property.)

 

Term
The privilege of public necessity is allowed with regard to what two torts?
Definition

Trespass and conversion allowed when it is reasonably necessary to avert a public disaster. The government is not liable for damages caused during a state of emergency.

Surroccov. Geary: Mayor of SF justified destroying a building and blowing it up to stop the progress of a fire that was raging. 


Term
A person is able to use the privilege of private necessity wrt conversion/trespass of property in order to _____________, but the trespassor is still liable for _____ damages.  ____ does not negate this privilege as long as it is ____.  The harm prevented must outweigh the harm _____.
Definition

Private: Vincent v. Lake Erie Transp. Co.  A person is privileged to trespass/convert property in order to (1) protect any person from death or serious harm(2) only compensatory damages.                  (3) Mistake: Even if the trespassor is under a mistaken idea of emergency, it does not negate that person’s privilege to trespass if it was a (4) reasonable mistake. Harm prevented must outweigh harm (5) caused

Term
The _____ privilege allows police officers, military personnel, regulatory inspectors, prison officials, officials at mental health facilities to act within the scope of the law and engage in conduct that would otherwise be tortious. ____ negates this privilege.
Definition

(1) Authority of Law (2)-Mistake negates this privilege.

Authority must be duly commanded or authorized by law to do what he does, then he is not liable for doing that.


Term
Restatement factors to consider in determining whether conduct is within the scope of the discipline privilege:
Definition

age, sex, condition of child, nature of offense and apparent motive, influence of child’s conduct as example on other children in same family, whether force or confinement is reasonably necessary and appropriate to compel obedience, whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm. 

Term
Tortious conduct (ie restraint or detention) is JUSTIFIED if it (list 2 conditions):
Definition

Generally, restraint or detention, (1) reasonable under the circumstances and in time and manner, (2) imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody is not unlawful.  

Term
What are the elements of Negligence?  List 5
Definition
Duty, Breach, Actual Causation, Proximate Causation, Damages
Term
Duty is defined as what a ___ person would do under the circumstances
Definition
reasonable
Term

Duty: The _____ of care never changes, but the_____ of care changes based on the circumstances. 

Definition

1. standard 

2.  duty


 

 

Term
Duty: Fool me ____ shame on you, fool me ____, shame on me.
Definition
Pipher vParsell: Fool me once, shame on you, fool me twice, shame on me. Driver ordinarily has a duty to protect passengers and the public. The first time passenger interferes, can’t be expected to do anything to prevent that, but if the passenger has interfered once before, then reasonable driver would have a duty to prevent that interference again. Reasonable jury could find that he breached his duty to protect Pipher from Beisel by preventing Beisel from grabbing the wheel a second time.
Term

Describe the hand formula for negligence:

 

Definition
If B<PL (Burden < Probablityx Loss), then liable.
Term
Duty: we don't make exceptions for people who fail to exercise _______.
Definition
We don’t make exceptions for people who do not exercise reasonable, or ordinary, mental skillsVaughan v. Menlove: good faith, or good efforts count for nothing. Even if he gave his best efforts, it is about what a reasonable person would do.
Term
Duty: We do not make exceptions for ____ or ____.
Definition
We don’t make exceptions for lack of knowledge or cognitive defects:

Delair v. McAdoo: There is a duty to know how to operate safely in society. This is a rigid rule.


Term
Duty: People with ____ have a higher duty of care according to that knowledge.
Definition
Note also: People with superior knowledge have a higher duty of care according to that knowledge. (Note 6, pg. 155). 
Term
 _________can be an indication of what is reasonable.  Is this a fact or a jury question??!
Definition
Custom:  Trimarcov. Klein: custom in the industry was to use shatterproof glass. When “certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that the one charged with the dereliction has fallen below the required standard.”  Note: This is a question for the jury.  
Term
Explain the emergency doctrine with respect to Duty.  To qualify as an emergency, three elements must be present
Definition
In an emergency, actions are judged in light of how the emergency factors into the totality of circumstances. 1. event must be unforseen, 2. sudden, and 3. unexpected.

 
Term
What is the reasonable person standard for someone with a physical disability?
Definition
what would a reasonable person with the same disability do? 
Term
Are intoxicated individuals still held to a reasonable person standard?  
Definition
Yes, unless it is involuntary intoxication...
Term
What is the reasonable person standard for a child?  What is the exception to this standard?
Definition

to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances When the activity the child engages in is inherently dangerous, the child should be held to an adult standard of care. Activities considered as adult activities--driving a car, motorcycle, motor scooter, playing golf, bicycle riding, deer hunting, downhill skiing, building a fire

Term
How does insanity affect the reasonable person standard?
Definition

It doesn't.  Insanity is not a defense to liability. 

**this is in direct reference to a pre-existing insanity of a permanent nature. “Statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances.”

 

Term
Alzheimers is now understood to be a physical condition.  How would this discovery affect the reasonable person standard?
Definition

if treated as a mental illness, no exception made

if considered a physical condition, then d held to standard of reasonable person with alzheimers

Term
what is the reasonable person standard for a professional?
Definition
as compared to the knowledge, training and skill of an ORDINARY member of the profession
Term

When an attorney contracts to prosecute an action on behalf of his client, he implies that ____ (list 3 things)

Definition

 (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily posses; (2) he will exert his best judgment; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and application of his knowledge

Term
An attorney is expected to act in _____.
Definition
An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment of for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers
Term
What are the presumptions made wrt a person licensed to practice medicine? 
Definition

1. possess the degree of skill and learning which is possessed by the ordinary member of the medical profession in good standing 2. in the community in which he practices 3. To apply that skill and learning, with ordinary and reasonable care, to cases which come to him for treatment. *Note: Specialist is going to be held to a higher standard then a general practitioner. 

Term
How can a doctor be held liable?
Definition

-She must have done something in her treatment of her patient which the recognized standard of good medical practice in the community in which she is practicing forbids in such cases OR

-She must have neglected to do something which such standard requires.

Term
To establish a case for malpractice, the plaintiff must prove the following: (list 3 elements)
Definition

The standard of medical practice in the community must be shown by affirmative evidence (expert testimony) (burden on p).

-Negligence is never presumed, but must be affirmatively proven. No presumption of negligence arises from mere fact that treatment was unsuccessful, failed to bring the best results, or that patient died -Testimony of other physicians that they would have followed a different course of treatment than that followed by d is not sufficient to establish malpractice (unless it appears that the course of treatment followed deviated from one of the methods of treatment approved by the standard in that community).

 

Term
Define the local and national rules wrt. professional standards:
Definition

Locality Rule: What a reasonable physician in the community would do?  Rule originally designed to protect doctors in rural areas who, because of inadequate training and experience, and the lack of effective means of transportation and communication, could not be expected to exhibit the skill of urban doctors. Generally, purported disparity between the skills of practitioners has for the most part been eliminated.

National Rule: What a reasonable physician in that field or area of practice would do ***National custom is the majority view.

Term
What is the professional standard wrt a doctor's disclosure to a patient?
Definition

Consent to medical treatment, to be effective, should stem from an understanding decision based on adequate information about the treatment, the available alternatives, and the collateral risks.

  -Full disclosure of all material risks incidental to treatment must be made.  If there is a risk that is beyond what is foreseeable in the operation, then no cause of action for lack of informed consent.

 

Term

To establish a lack of informed consent, what must a plaintiff prove? (4 elements)

 

Definition
1. there was a Duty to inform 2. breach — failed to disclose “as required” 3. Causation -requires that plaintiff patient would have chosen no treatment or a different course of treatment had the alternatives and material risks of each been made known to him. 4. Injury — has to be inherent in the procedure.

Burden: P has burden of establishing the prima facie elements of the case and D has the burden of proving an exception to his duty, and thus a privilege, not to disclose, as an affirmative defense.

Term
What are the two standards of disclosure to a patient?  Which is the majority view?
Definition
}Reasonable Physician Standard:What a reasonable physician in the same field would disclose.
}Reasonable Patient Standard. What a reasonable patient would want to know about risks inherent in the procedure before consenting. (majority view)

Term
What are the possible affirmative defenses a doctor might plead to a patient's claim that he/she lacked consent?
Definition
1. physician may plead and prove p knew of risk,  2. full disclosure would be detrimental to patient’s best interests, or 3that an emergency existed requiring prompt treatment and 4. patient was in no condition to decide for himself.*Person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.

Rule: A physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment. Scope of the communications must be measured by what information a reasonable person in the same or similar circumstances would find material to the decision to consent to the treatment.

Term
Aggravated degrees of care: the highest degree. What/who falls under this category?
Definition
}Those who deal with things that are known to be dangerous such as explosives
}Common carriers responsible for the safety of passengers
}In most jurisdictions, it is negligent to drive an automobile at such a speed that it is impossible to stop within the range of vision. 
Term
What qualifies as Negligence Per Se? 
Definition

 

Clear and unambiguous statute
Injured party within the group of people the statute was designed to protect
Injury is the type of injury the statute is designed to prevent.
Statute sets the duty of care, so violation of it is conclusive evidence of negligence.
It is proper for the court to examine preliminarily the appropriateness of the standard as a measure of care for civil litigation under the circumstances presented. 

 

Term
Does violation of a statute create liability?
Definition

Violation of the statute does not create liability, it just shows that there was a duty, and that it was breached.

You still have to show that the violation of the statute was the proximate and legal cause of the injury

Term

 

Does the mere fact that the legislature adopts a criminal statute mean that the court must accept it as a standard of criminal liability?

 

Definition

No.  Consider the legislature's intent/purpose of the act.  Perry v. S.N . and S.N.-: Purpose of the act to protect children. Where a statute criminalizes conduct also governed by common law duty, not a great leap to apply negligence per se. But allowing a cause of action where common law would not creates a problem.  Not adopted in this case

 

Term
What are the exceptions to being held negligent for violating a legislative enactment?  List 5.
Definition
Incapacity
Lack of knowledge of need to comply
Inability to comply
Emergency
Compliance poses greater risk than violation 
Term
Define the shopkeper duty.  What must a plaintiff prove?
Definition

Heightened duty, but doesn’t rise to the level of being an insurer like a common carrier. Has a duty to reasonably protect their customers…measuring all the risks. shopkeeper has an affirmative duty to keep a safe, clean shop.  Plaintiff has to prove that condition existed for a sufficient time that a reasonable shopkeeper could have known about the condition to remedy it. Eg, if banana had been on ground awhile, as evidenced by its color and condition, if plaintiff can prove premesis hasn't been inspected within a reasonable period of time, an inference can be drawn that the condition did exist long enough for the shopkeeper to have discovered it.  if dangerous condition created by the store's method of sale, notice requirement dissolves.  no need t oprove actual or constructive knowledge of the specific condition.

 

Term
To prove negligence with respect to the shopkeeper's duty, the plaintiff must prove the following (4 things)
Definition

store had actual or constructive knowledge of a condition on premises

Condition posed an unreasonable risk of harm
store did not exercise reasonable care to reduce or to elminate the risk
store's failure to use such care proximately caused her injuries.
Term
Res Ipsa Loquitor = the thing speaks for itself.  What elements need to be proven to establish RIL?
Definition
1. What happens does not ordinarily happen in the absence of negligence 2. Defendant had exclusive control of instrumentality that caused the injury. (P could not have been in a situation to exert control over the instrument 3. P did nothing to contribute to his injury. Note: If you have direct evidence of how defendant behaved in connection with the causation of the injury, then use general negligence analysis. Res ipsa is a last ditch effort. Contrast with Negligence per se, where duty and breach are defined by statute. In res ipsa, duty and breach are allowed by inference.

 

Term
Byrne v. Boadle.  Byrne gets hit on the bean by Brodle's barrel.  What is Boadle's duty of care?  Is this proof of negligence?  Remember, this all turns on who is in the best position to control the risk.
Definition

D has duty to take care that barrels don’t roll out of the warehouse. Is this proof of negligence? It is not proof, but it is evidence. P does not have to go through all the elements of proof of a negligence action.

 

D then has the burden to show that the cause of injury was something other than his negligence.

 

Between the two parties, the D is in the best position to control the risk. 

Term
Res Ipsa Loquitor and Inference.  Injury may permit an inference of negligence if coupled with ___.  In other words, a jury could draw a conclusion of ___ from this evidence. Do you need to eliminate all other possibilities to establish RIL? Is expert testimonty required?
Definition

if coupled with a sufficient showing of its immediate, precipitating cause.  In other words, a jury could draw a conclusion of negligence from this evidence.  No. No need to eliminate all other possibilities.  no expert testimony required.  (measured by the knowledge of ordinary jurors) When it appears that the injury was caused by one of two causes for one of which d is responsible but not for the other, a p must fail, if the evidence does not show that the injury was the result of the former cause, or leaves it as probable that it was caused by one or the other.

 

Term
For what type of case is Res Ipsa Loqitor often used?
Definition

cases where patients have been injured and no surgeon fesses up.  Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and facts establishing liability. 

 

Term
Sullivan v. Crabtree: There are 3 ways for a jury to interpret the facts in a Res Ipsa Loquitor case.  What are they?
Definition

(1) Permissible inference-jury may draw on this or not. ***Texas Rule. Rule used in this case.

(2) Rebuttable inference that a jury can reject if they want to. Shifts burden to defendant to d to rebut the presumption.

(3) Strict res ipsa totally shifts the burden to the defendant.

Term
Actual Causation: is it necessary to establish a "but for" argument to establish actual causation?
Definition

No.  Mere possibility that an accident might have happened without the negligence of D does not break the chain of causation between negligence and harm.

Term
Proof of causation.  What type of cause must a plaintiff prove in an action for negligence?
Definition

Proximate cause.  In an action for negligence, a p must produce evidence from which it can be reasonably inferred that negligent conduct on the part of the d or its agents was the proximate cause of the p’s injuries.  Neither a suspicion nor a speculation is enough to defeat a motion for summary judgment. It is not enough to prove d MIGHT have caused the harm, he must prove d more likely than not caused the harm.   

 

Term
What is the error made known as "post hoc ergo propter hoc"?
Definition

Post hoc ergo propter hoc: “after this, therefore because of this”: FALLACY confusing sequence with consequence.

Term
The Loss of Chance Doctrine - what is it? How are damages awarded?
Definition

 D MIGHT be liable if p can show that d’s negligence caused a statistical reduction in chance of p’s survival. P must demonstrate that d's acts or omissions have increased the risk of harm to another, which was a substantial factor in bringing about the resulting harm.  requires medical testimony.

Damages should be awarded to injured party or his family based only on damages caused directly by premature death (lost earnings, additional medical expenses).

Term
The Daubert v. Merrell Dow Pharmaceuticals, Inc case established that a judge functions as a ___.
Definition
gatekeeper.
Term
Causation - can it be proven even if we don't know precisely how the damage occurred?
Definition
Yes, if there is sufficiently compelling proff that the agent must have caused the damage somehow.
Term
What is the Frye test?
Definition
says scientific evidence admissible if based on a scientific technique generally accepted as reliable within the specific community
Term
What is the 2-part Daubert test?  What are 5 factors to consider in deciding whether to admit scientific testimony?
Definition
Is it Reliable? Whether experts’ testimony reflects “scientific knowledge”, whether findings are derived by scientific method, and whether their work product amounts to good science.

Four factors to consider in determining whether to admit scientific testimony:

  a. whether theory or technique employed by expert is generally accepted in scientific community

  b. whether it’s been subjected to peer review and publication

  c. whether it can be and has been tested

  d. whether the known or potential rate of error is acceptable. 

e. whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation

Is it Relevant: Expert testimony RELEVANT to task at hand? (logically advance material aspect of proposing party’s case). Requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.  

 
Term

Concurrent causes - what are they?  Who has the burden of proof?

 

Definition

Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible.When two forces combine, and either force alone was sufficient to cause harm, both are liable as long as each was a substantial factor in the harm. Burden shifts to ds for each to absolve himself if he can (ordinarily in a better position to offer evidence)

 

 

 

 

 

 

Term
What is the policy behind the proximate cause doctrine?
Definition

to not recognize proximate cause would subject one to a liability against which no prudence could guard. 

Term
Proximate cause - one is liable for the ____ consequences of his acts, but not for ____ damage.  NB: how does this apply to the eggshell doctrine?
Definition

forseeable

remote

you take your victim as you find her.  the extent of the injury to a person need not be forseeable.

Term
Proximate cause: Polemis.  Distinguish unforseeablility of a result that has occurred from unforseeability of the manner in which it occurs.
Definition
One who directly produces an unexpected result is liable for the damage which his negligent act directly caused.  Once the act is negligent, the fact that its exact operation was not forseen is immaterial. Unforseeability in the manner in which the damage occurs does NOT relieve the defendant of her responsibility.
Term
Correlate risk and duty.  Which defines the other?
Definition

-The risk reasonably perceived defines the duty to be obeyed and risk imports relation. Palsgraf.

Term
Questions to condsider wrt forseeability.  The greater the distance in time and space, ______.
Definition

Court must ask itself whether there was a natural and continuous sequence between cause and effect? Was one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes, is effect of cause on result not too attenuated, is cause likely, in usual judgment of mankind, to produce the result, is result too remote from cause in time and in space?

The greater the distance in time and space, the more surely do other causes intervene to affect the result. 

Term
Define proximate cause
Definition

Proximate cause is any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause produces the result complained of and without which the result would not have occurred.

Term

Proximate cause need only be a cause which sets off a ______ sequence of consequences, ______ cause, and which is a ________ in producing the particular injury.

Definition

FORSEEABLE 

UNBROKEN BY ANY SUPERSEDING

SUBSTANTIAL FACTOR


Term
Intervening Causes: Liability turns on whether the intervening act is a _____ consequence of the situation created by the defendant's negligence.
Definition

Liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the d’s negligence.

Term
Does criminal conduct automatically interrupt a causal link?
Definition
Not anymore.
Term
When is a duty created for a social host?  What are the opposing arguments to this duty?
Definition
A host who serves liquor to an adult social guest, knowing that guest is intoxicated and that he will be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of negligent operation of motor vehicle (when caused by the intoxication).Dissentsocial host is in a different position than a commercial licensee who serves alcoholic beverage to patrons. Lack expertise in identifying levels and degrees of intoxication, nature of home entertaining gives social host less control over liquor…host is so busy entertaining and doesn’t have time to notice intoxicated guests…social host often drinks with guests, impairing his/her ability to assess other’s intoxication. What lengths must a social host go to to avoid liability.
Term
What is the traditional common law view on a social host's liability?
Definition

-drinker’s voluntary consumption and subsequent negligence was sole “proximate” cause of third party’s injury and that a person who sells or gives liquor to an intoxicated adult drinker was not liable for subsequent injuries caused by his intoxication.

  -Social host only liable for intoxication of a minor

Term
What are Dram Shop Acts?
Definition
Statutes- provide a civil cause of action against commercial furnishers of alcohol for damages resulting from a consumer’s intoxicated state.
Term

Enright v. Eli Lilly: Patricia Enright developed abnormalities of her reproductive system due to her in utero exposure to DES and these abnormalities resulted in several miscarriages and premature birth of p, Karen Enright.  What is the extent of Eli Lilly's liability and how was it calculated?  Why is a limitation imposed upon Eli Lilly's liability at all?

 

Definition

Held that liability could be imposed upon DES manufacturers in accordance with their share of national DES market if p couldn’t identify manufacturer particularly at fault for her injury. Still, this injury to a mother, which results in injuries to a later conceived child does not establish a cause of action in favor of child against original tortfeasors. reasons to impose limitation to liability: 1. ct has duty to confine liability within its manageable limits.  2. deterrent purposes of tort liability are not unduly impaired.  3. policy favors the availability of prescription drugs even though they carry inherent risks.

 

Term
______ where there is a duty to act constitutes a breach.
Definition
failure to act.
Term
Is there a duty to rescue a person in peril?  What is the exception to this general rule?
Definition

No.  Exception: may be a legal obligation to take positive steps to effect rescue of a person who is helpless or in a situation of peril, when d is a master or invitor, or when injury resulted from use of an instrumentality under control of d.

  -Such obligation may exist although accident or   original injury was caused by p’s negligence, by a   third person’s negligence, or without any fault on   part of the d

Term
In what types of relaitonships does a failure to act constitute a breach of duty to rescue?
Definition
Employer to employee if in course of employment and if employee is unable to look after himself.
Common carrier and passenger
Inkeeper and guest
Temporary legal custodian and his charge
Occupier and entrant onto land
Husband and wife
Parent and child
Term
In general, how do you determine whether there is a special relationship that would establish an affirmative duty of care to rescue?
Definition

Ability to foresee injury to a potential p is crucial in determining whether a duty should be imposed.

  -based on d’s knowledge of risk of injury and whether a reasonable person would have or should have known about the risk of injury.

Ultimately a question of fairness and public policy eg. When a spouse has actual knowledge or special reason to know of likelihood that his or her spouse engaging in sexually abusive behavior, spouse has duty of care to take reasonable steps to prevent or warn of the harm. breach of such duty est. prox. cause

 

 

 

 

Term
What is a therapist's duty to predict danger wrt a patient?
Definition

Therapist’s duty is to exercise reasonable care to predict danger that they can reasonably perceive. Tarasoff: They did predict the harm here, but they were negligent in failing to WARN. Policy: Risk that unnecessary warnings may be given is a reasonable price to pay for lives of possible victims that may be saved.You have a duty to warn only if there is an identifiable victim of an imminent harm.use hand formula comparison. Rule in Texas: All doctor patient communications are confidential for 100 years after the death of the patient. Physicians may call law enforcement, but they have no obligation to do so. 

 

Term
1. Does a doctor have a duty to tell a spouse of someone who is HIV positive? 2.  Does a physician have a duty to tell a patient that they have a genetic marker that could bear on health or procreation?  Or does a doctor have an obligation to tell family members of this genetic marker
Definition

1.   In Texas, Not a duty, but in the case of HIV, when a physician knows one is HIV positive, they can inform the spouse. They cannot inform gf or someone who is not married to that person.

 2.  There is a duty to tell daughter that she is at risk so she can mitigate it. Yes, duty for doctor to warn an identifiable victim of imminent harm that they have a high risk of developing a cancer. That duty can be fulfilled by telling the patient that they need to tell their daughter.    

Term
State of LA v. Testbank: fishing industry shut down until chemical spill cleaned up.  Is there a duty of care owed to persons suffering pure economic loss without physical injury?
Definition
No duty of care is owed to persons suffering pure economic loss without physical injury in maritime law.
Term
Explain the Robins Doctrine.  Who does it apply to?
Definition
There is no recovery for negligent interference with contractual rights: specifically, no recovery for economic loss and that loss resulting from physical damage to property in which he had no proprietary interest(noone owns the Gulf of Mexico).
Robin’s doctrine applies to everybody who is a third party to the contract. Fishers do not have an interest in the contract.
Term
What are the policy reasons behind the Robins Doctrine?
Definition

Limits what would be an open-ended realm of recovery from all people who are affected by contracts in which they have not bargained any exchange for. Would be more costly third-party insurance. Would be difficult to form actuary risk policies for insurance companies. Too difficult to determine who all was affected by the negligence (implausible). Limiting—identifiable, transparency.

 

Term
What is the general rule regarding recovery for the Negligent Infliction of Emotional Distress?  What is the exception?
Definition

No recovery for mental disturbance without accompanying physical impact or injury Exception: compensation for a purely mental component of damages where d negligently inflicts an immediate physical injury has always been awarded as parasitic damages. If definite and objective physical injury produced as a result of emotional distress proximately caused by d’s negligent conduct, p can recover in damages for such physical nied**No duty in Texas not to negligently inflict emotional distress. Exception to NIED: physical impact or handling the body: Medical school losing body. Even with Texas rule, if you had a mishandling of the body, you can recover. Loved one dies in hospital and hospital accidentally loses corpse…then you have a claim.

 

Term
What are teh Dillon guidelines to NIED wrt a bystander?
Definition

  (1) whether p located near scene of accident as contrasted from one who was a distance away from it

  (2) whether shock resulted form a direct emotional impact upon p from sensory and contemporaneous observance of accident as contrasted with learning of accident from others after its occurrence.

  (3) whether p and victim were closely related, as contrasted with an absence of any relationship or presence of only distant relationship.

 

Term
Wrongful death.  What is it?  Who brings the action?
Definition

action brought on behalf of decedent’s estate in the name of children. Court recognizes action for viable child in utero. Does not apply to a stillborn fetus. If you’re a fetus and you’re injured, you can sue, but if you are a stillborn fetus and you die, then you can’t sue.  

 

Term
What is the pragmatic issue of recovery for wrongful death?
Definition

can’t measure the loss of a dead child.

Majority view-fetus is not a person—no recovery for death unless state’s wrongful death statute provides for it. Texas view is now back in line with majority view. 

Term
What is someone suing for when they sue for Wrongful Life?
Definition
(Life is never wrong)—Not a recognized action in most jurisdictions. This claim was dismissed.   If a child sues for wrongful life, he/she is saying that he/she never should have been born.
Term
Wrongful birth - descibe what this cause of action means.  Who brings this COA?
Definition
Brought by the parents on behalf a child born with birth defects, alleging that negligent treatment or advice that should have been given; deprived them of opportunity to have an abortion.
Term
Is there a general duty of a mother to her fetus?
Definition
Nope.  She can drink and smoke all she wants.
Term
Landowner's duty to those outside the premesis.  Is there one? Are there exceptions?
Definition

Generally, there is no duty upon landholder to protect persons outside the premises re: most conditions that arise in the state of nature.

Exception: trees. Landowner liable for negligence if he knows or should have known that the tree is dead/damaged and fails to take reasonable precautions. Foreseeability alone is not enough to show actual or constructive knowledge. Exception: inherent nature of an artificial condition: eg, a baseball park (Salevan v. Wilmington Park) Inherent nature of game of baseball is such as to require landowner to take reasonable precautions for the protection of traveling public. D either knew that baseballs went out of its park or should have known. While d took precautions to protect people passing along the street, those precautions were insufficient.

 

Term
Landowner's duty to trespassers.  Is there one?
Definition

Yes.  When presence of trespasser is discovered, there is a duty to use ordinary care to avoid injuring him by active operations.

Term
Landowner's duty to a Licensee.  What is a licensee?  What is the duty?
Definition
Licensee: one who enters the premises of owner by permission, but for the licensees own purposes. Social guest goes on another’s property for companionship, diversion, or entertainment.
Generally must take the premises of his hosts as he finds them. 
Duty of reasonable care. If landholder knows about a dangerous, latent condition on his premises that a visitor is likely to encounter, he is under a duty to warn licensee about it. No duty to inspect. 
Term
What is the Landowner's Duty to an Invitee?  What is an invitee?
Definition

Invitee: one who goes on land in furtherance of owner’s business.

Owner of premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. Duty to inspect premises to minimize dangerous conditions. 

Term
Forgetting all of the duties of landowners to invitees/trespassers/licensees...what's the general rule?
Definition

. Where occupier of land is aware of condition and hasn’t warned person, they’re liable.

Term
Is the landlord/tenant relationship sufficient to make the landlord liable for an injury that befalls a tenant or her guest?  Are there exceptions?
Definition

Not usually.  There are 7 exceptions:

(1)Undisclosed dangerous conditions known to lessor and unknown to lessee (2)Conditions dangerous to persons outside of the premises (3)Premises leased for admission of the public. (4)Parts of land retained in lessor’s control which lessee is entitled to use (5)Where lessor contracts to repair (6)Negligence by lessor in making repairs.                                         (7) implied warranty of habitability
 
 
Term
What is the general rule of a landlord's liability to a lessee?  what about protecting tenants from forseeable criminal acts?
Definition

a landlord is under a duty to exercise ordinary care in the maintenance of the premises. Recognizes an implied warranty of habitability in an apartment lease transaction. WRT foreseeable criminal acts:  where landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect crimes to happen again, and has the exclusive power to take preventative action, it does not seem unfair to place upon landlord a duty to take those steps which are within his power to immunize the predictable risk to his tenants.  

 

 

 

Term
What are the 4 defenses to negligence?
Definition

}Contributory Negligence

}Comparative Negligence
}Assumption of the Risk
}Immunity
Term
What is the doctrine of Last Clear Chance?
Definition

If d had opportunity to avoid the accident after the opportunity was no longer available to the p, the d is the one who should bear the loss.

Term
What is PURE comparative negligence?
Definition
p’s damages are reduced in proportion to percentage negligence attributed to him
Term
What is modified comparative negligence
Definition

p's recover as in pure jurisdictions, but only if p’s negligence does not exceed 50% or 51% in some states.  In cases of multiple tortfeasors, p will be entitled to recover so long as p’s fault is less than the combined fault of all tortfeasors. 

 
Term
Contributory negligence ____ the plaintiff from recovery
Definition
completely bars
Term
What questions do you ask yourself to determine whether the plaintiff has made an express assumption of a risk?
Definition

Is the risk within unambiguous terms of agreement?

Does the contract violate public policy? 

Term
What 3 exceptions will render an exculpatory clause unenforcible?
Definition
When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence
When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence
When transaction involves public interest. 
Term
Implied assumption of risk is synonymous with ___ and is therefore abrogated in many states that have adopted the comparative negligence doctrine.
Definition
contributory negligence
Term
What 2 elements are required to establish an implied assumption of a risk?  Does this completely bar recovery?
Definition

Requires:

knowledge of the risk, voluntary encountering of the risk                 Implied assumption of the risk does not completely bar recovery. Unreasonable assumption of the risk should be treated as a form of negligence and jury assigns a percentage to that unreasonable choice.

 

Term
Statute of Limitations - what is the general timeframe?  What are the tolling exceptions?
Definition
}2-3 years.
}Exceptions:

  -Tolling for discovery (in medical malpractice cases)

  -Tolling through age of maturity.

Term
List the 4 types of immunities
Definition
}Families
}Charities
}Employers
}State and Local Governments
Term
Explain Parental Immunity and the doctrine of In Loco Parentis.
Definition
Parental immunity-parents are immune from suit for negligent parental supervision, but not for willful or wanton misconduct in supervising a child.
In loco parentis-must support and educate the child to the same extent as does a natural parent. A stepparent is not allowed to claim parental immunity solely by virtue of his or her marriage to injured child’s biological parent. 
Term
Describe charity immunity.
Definition

Nongovernmental charitable institution is liable for its own negligence and for negligence of its agents and employees acting within the scope of their employment.  

Term
What is the result of the Federal Tort Claims Act?  What are the exceptions to this act?
Definition

Federal Tort Claims Act-United States has waived immunity for tortious acts

Exceptions-where immunity will still attach:

}Discretionary act exception (planning or decision making)
}Intentional torts
Term
What is the limitation to the tort claims act with respect to recovery
Definition
tort claims act cannot deny recovery in violation of the state constitution.

 Legislature has the power to modify the form and measure of recovery for an injury, as long as it does not violate the state’s remedies clause. Constitution’s remedy clause provided that a legislature may not entirely eliminate a remedy provided at common law. 

 

Term
Riss v. New York.  Governmental officials, like the police, have a duty to protect ____ and therefore owe a duty to _____ because the court does not have the authority to decide_______.
Definition

everyone

no one

how to allocate governmental resources.

Term
DeLong v. Erie: 911 call.  Does the government have a duty to protect?
Definition

NO.  failing to fulfill an undertaking to provide police protection does not result in municipal liability unless shown that police conduct increased the risk in some way.

Here, the 911 caller relied on the police to fulfill its duty (did not seek any other care) so in this way, they increased the risk.
A special relationship was created when they took on a specific duty to a particular person.  General Rule: If you voluntarily take on a duty as a government agent, you have to do that with regular care

 

Term
What is the exception to the Federal Tort Claims Act?  How do you establish this exception?
Definition

 

—Discretionary action exception – anything that is left to the judgment of individuals acting in the scope of their duties.  Establish the exception by pointing to policy: social, economic, political goals.
 

 

Term
What are nominal damages?
Definition
minimal
Term
What is the idea behind Compensatory Damages?  What are the two types of compensatory damages?
Definition
—put claimants back where they were before the damage was done.
—Economic
—Non-economic-pain and suffering, etc. 
Term
What is the purpose of punitive damages?
Definition

- to deter bad behavior and punish

Term
What is the maximum recovery rule?
Definition
allows trial judge to determine whether verdict of jury exceeds the max. amount which jury could reasonably find and if it does, the trial judge may then reduce verdict to highest amt. that jury could have properly awarded.
Term
What are the types of damages recoverable in a personal injury case?
Definition

1.past physical and mental pain, 2.future physical and mental pain, 3. future medical expenses, 4. loss of earning capacity, 5. permanent disability and disfigurement.

Term
How are damages calculated?
Definition

Expert testimony by medical and economics experts 

Expert Testimony doesn’t have to be specific as to each item in compensatory costs.

Court can’t overrule their verdict unless it is excessive.

Term
What is the Collateral Source Rule
Definition

Payments made to or benefits conferred on injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which tortfeasor is liable. 

Term
List 5 situations in which the Collateral Source Rule does not apply-
Definition

1. rebut p’s testimony that she was compelled by financial necessity to return to work prematurely or forgo add’l medical care.  2. to show p had attributed his condition to some other cause  3. to impeach p’s testimony that he had paid his medical expenses himself.  4. to show that p had actually continued to work instead of being out of work, as claimed 5.  gratuitous or discounted medical services are a collateral source not to be considered in assessing damages due to personal injury p. 

 

 

 

 

Term
What factors do you consider wrt mitigation of damages?  List 4
Definition
—Risk involved (must be evidence to show extent of risk)
—Probability of success
—Expenditure of money or effort required
—Some courts consider the pain involved.

***May not be available to ps who have other reasons for failing to mitigate. (religious reasons).  

Term
What is the test as to whether the plaintiff unreasonably failed to mitigate his damages?
Definition
whether under the circumstances of the particular case, an ordinarily prudent person would do so
Term
When someone physically harms your property, what can you recover?
Definition

Market value defined by what item could have been sold for on open market at the time of the wrong. Exception: where chattel has no market value because you can’t sell it. If it only has sentimental value, then you can recover value to owner. Pets: probably no recovery for sentimental value, emotional distress, etc. 

 

Term
What is the standard for awarding punitive damages?  Who is entitled to punitive damages?  Does the defendant's financial condition matter?
Definition

Facts warranting punitive damages must be established by clear and convincing evidence.  There must be a compensatory claim to bring a punitive damages claim, but p is not necessarily entitled to punitive damages.

 —Financial condition of d is relevant 

Term
________ prevents the imposition of a grossly excessive or arbitrary damages.
Definition
the due process clause
Term
In awarding punitive damages, courts consider 3 factors:
Definition

1. degree of reprehensibility of d’s misconduct (most important one)   2. disparity between actual or potential harm suffered by p and the punitive damages award  3. Difference between punitive damages awarded by jury and civil penalties authorized/imposed in comparable cases.                                          Penalty should be reasonably predictable in its severity.  A punitive-to-compensatory ratio of 1:1 is a fair upper limit in maritime cases. 

 

 

Term
Who brings a wrongful death action?  What damages are they seeking?
Definition

Brought by next of kin/beneficiaries (mom, dad, husband, wife, child of the deceased) for loss of: support (financial support decedent would have provided would he have lived) Monetary value of services decedent provided and would have continued to provide but for his wrongful death (nurture, training, education, guidance that child would have received, plus services decedent performed at home for his spouses. society (love, affection, care, attention, companionship, comfort, protection), Damages for funeral expenses 

 
Term
What are survival actions and who brings them?  What damages are they seeking?
Definition

Brought on behalf of decedent’s estate for damages up until death. Can only bring this if there is suffering before death. If instant death, no survival action


Seek damages for conscious pain and suffering, expenses and loss of earnings of the decedent up to the date of death to the survival statute; allocate the loss of benefits of the survivors to the action for wrongful death.

 

Term
What is joint and several liability?
Definition

Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount.  P can collect from any one of them or any group of them.

 

 

Term
What 3 situations lend themselves to a case for joint and several liability?
Definition

1. Concerted action

2. Failing to perform a  common duty to p 

3. Ds who act individually to cause an indivisible harm. 

Term
Did the doctrine of comparative negligence eliminate joint and several liability?  Why or why not?
Definition

NOapportioning fault on comparative basis does not render indivisible injury divisible for purposes of joint and several liability. Concurrent tortfeasor liable for whole of an indivisible injury when his negligence is proximate cause of that damage

In instances where p was not negligent, burden of insolvent or immune defendant would fall on p.
Even where p partially at fault, his culpability not equal to that of d and relates to lack of due care for his own safety, not the safety of others.
P wouldn’t be able to obtain adequate compensation for his injuries.  
Term
What is the Rule of Satisfaction?
Definition

When injury is indivisible, p can only be paid once. Can’t recover twice for the same injury. 

Term
In texas, joint and several liability is used so long as the percentage of liability is greater than ___
Definition
50%
Term
Explain Contribution
Definition

When 2 or more persons liable for same harm and one of them discharges the liability, that person can recover contribution from the other joint tortfeasor, unless the other had a previously valid settlement and release.

 In order to obtain contribution, the injured plaintiff from which the right of contribution develops, must have a valid cause of action against the party from whom contribution is sought. 

Term
What is the general rule wrt liability releases?  How do you avoid this result?
Definition

 Release of one joint tortfeasor is the release of all joint tortfeasors unless the right to sue others is reserved.

Preserve the right expressly in the contract in order to avoid this general rule.

Term
What are Mary Carter Settlement Agreements?
Definition

defendants effectively settled before trial, then participated in the trial as defendants assisting the plaintiff in her suit against the remaining defendant.

Term
What are policy reasons for avoiding Mary Carter Agreements?
Definition

Negative effects of Mary Carter agreements outweigh any potential benefits.

create a false sense of adversity between plaintiff and one co-defendant, with the parties actually being allied.
pressure the settling defendant to contribute discovery material, peremptory challenges, trial tactics and supportive witness examination.
Remedial measures cannot overcome these effects.
Public policy favoring fair trials outweighs that of favoring partial settlements.
Term
Respondeat Superior - the Going and Coming Rule: what is it?  What's the exception to the general rule?
Definition

Going and coming rule-you’re not in course of employment while driving to and from work.

Exception: if employee’s conduct within particular enterprise is foreseeable, and not so unusual or startling, then it could be among the other costs of employer’s business. 

Term
Respondeat Superior - the Going and Coming Rule.  What is all this about frolic and detour?  define each term.  How do these terms affect liability?
Definition

Frolic: pursuit of employee’s personal business is a substantial deviation from or an abandonment of the employment. (stops at drug store to buy anniversary card for his wife? Particularly if you had to go off the path of the road a few miles).

Detour: deviation sufficiently related to the employment to fall within its scope. Acts necessary to the comfort, convenience, health, and welfare of the employee are not outside scope of employment. (Stopping to use the restroom)

If frolic, not vicariously liable; if detour, then vicariously liable. 

Term
Respondeat Superior: What factors are used to determine whether the employee has embarked on a slight or a substantial deviation?  Name 6.
Definition
1.Intent
2.Nature time and place of deviation

3. Time consumed in the deviation

4. Work for which employee was hired

5. Incidental acts reasonably expected by employer

6. Freedom allowed employee in performing his job responsibilities

Term
Respondeat Superior and Independent Contractors.  How does being an independent contractor affect the employer's liability?  What is the test to determine whether someone is an independent contractor or an employee?
Definition

 one who arranges for work to be done by independent contractor is not vicariously liable for that contractor’s torts.

Test for whether a person is an employee or an independent contractor is right to control physical details of the work.  **contractors can establish policies and standards but that is not the same as  supervision, dominion, and control over independent contractor

Term
Independent Contractors and their responsibilities: usually a principal has no responsibility for an independent contractor.  What are the exceptions to this general rule?
Definition
Nondelegable duty: Generally, when an activity carries risk of death or serious bodily injury, one cannot avoid liability for negligent maintenance by delegating the maintenance to an independent contractor.

Apparent Authority-One who employs independent contractor to perform service for another which are: 

(1) Accepted,(2) in the reasonable belief that, (3) the services are being rendered by the employer or by his servants; then you’re subject to he liability of the harm caused by negligence of contractor in supplying such services.

Term
what is the doctrine of joint enterprise?  What are the 4 elements?
Definition

 Created to impose liability vicariously upon one person who is engaged in same activity with another person committing the tortious act.  1. Agreement (express or implied) among  group members 2. Common purpose to be carried out by group 3. Community of pecuniary interest in that purpose among members 4. Equal right to have voice in that enterprise, which gives equal right of control. MUST HAVE A DISTINCT BUSINESS OR PECUNIARY PURPOSE!  eg. Popjoy v. Steinle- buying a calf for 4h

 

 

 

Term
What is imputed contributory negligence?
Definition

Under some circumstances the negligent conduct of a driver will be imputed/attributed to the owner/passenger of the vehicle to bar her recovery for her own injuries.   Abrogated in most jurisdictions

Term
For strict liability, one need only prove one element.  What element is that?
Definition
causation
Term
How does the Restatement define strict liability?
Definition

One who carries on an abnormally dangerous activity is subject to liability for harm resulting from the activity even though he exercised the utmost care to prevent the harm. 

 

 

Term
How does the doctrine of strict liability apply to domestic animals?
Definition

Generally no strict liability unless there is a dangerous propensity of  which the owner knows.

 

Exception: Strict Liability if animal trespasses on another’s land. Does not apply in some western states.

Term
How does the strict liability doctrine apply to wild animals?
Definition
A person who keeps wild animals strictly liable provided that damage results from dangerous propensity that is typical of the species. Liability applies even if animal is not trespassing on someone else’s land
Term
Abnormally Dangerous Activities - The general rule is that a landowner is strictly liable for what?  What are the defenses to this liability?
Definition

for the escape of something that he lawfully brings on his land that is harmless while it remains there, but will naturally cause damage if it escapes.

Defenses: plaintiff caused the escape or escape was due to an act of God (not recognized by Restatement anymore).

Term
Describe the Rylands Rule wrt Abnormally Dangerous Activities
Definition

D will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained in the light of the character of that place and its surroundings.

Most jurisdictions impose strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities. 

Term
What is the essential inquiry wrt abnormally dangerous activity?
Definition

whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care?

 

Term
What 6 factors do you consider wrt Abnormally dangerous activities?
Definition
aExistence of high degree of risk of some harm to person, land or chattels of others
bLikelihood that harm that results form it will be great
cInability to eliminate the risk by the exercise of reasonable care
dExtent to which activity is not a matter of common usage
eInappropriateness of activity to place where it is carried on
fExtent to which its value to the community is outweighed by its dangerous attributes.
Term
When is strict liability imposed?
Definition

when the high degree of risk associated with an activity cannot be eliminated by due care.

Term
What are the limitations of strict liability?
Definition

Strict liability is applicable only when the type of harm that happens is the type of harm that makes the activity abnormally dangerous in the first place. 


Contributory negligence does not bar recovery, but assumption of risk does.

Term
What are the four principle theories of products liability?  What is the modern approach to products liability?
Definition

1. Negligence

2. Breach of warranty

3. Strict product liability

4. Misrepresentation.

More modern way of classification is to look at more functional claim. Is it a manufacturing defect, design defect, or defect by reason of inadequate warnings or instructions.

Term
Products Liability wrt Negligence-  what's the rule?
Definition

If a product is reasonably expected to be dangerous if negligently made, and product will be used by persons other than purchaser, then duty of care exists and extends beyond original purchaser. 

Term
What is the rule for products liability wrt express warranties?  Is this duty based upon any form of contractual obligation?  What are the policy reasons?
Definition
If manufacturer represents something as true when it is not, and buyer relies on that, then they can recover on express warranty theory.
Duty not based on contract obligations; if it is not safe for the purpose for which the consumer thought it would be used, then liable.  Would be unjust to allow manufacturers to create a demand for goods by falsely representing qualities that their product has, and then deny consumer recovery from damages that result from the absence of those qualities. 
Term
What is the difference between comparative negligence and joint and several liability?
Definition

Comparative negligence will only be an issue when the PLAINTIFF is negligent to a degree. In a comparative negligence analysis you are comparing the PLAINTIFF's amount of negligence to the defendant's negligence. Joint and several liability is an issue when there are multiple defendants who have been negligent (has nothing to do with the plaintiff's amount of negligence, but note that both concepts could possibly be in a problem if the plaintiff is negligent to a degree AND there are multiple defendants). 

Term
Can you disclaim strict liability in a contract?
Definition
No.
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