1
Q
A “____” is a civil wrong that occurs when someone (“D”) causes harm/loss to another person or their property (“P”) intentionally, carelessly, or as a result of their dangerous activities, defective products or inadequate warnings.
A
Tort.
Tort law is fundamentally a construct of judge-made common law.
2
Q
The primary aim of tort is to “____” victims for the invasion of certain legally protected interests including (Name 4)
A
Compensate
- Phsical safety & Freedom from injury
- Property
- Privacy
- Reputation/Dignity
3
Q
Tort law struggles with the question of who should pay for losses and when? It often involves balancing often-competing policy goals, including:
- Ensuring full victim “__1__”, while only imposing liability in “__2__” to fault.
- Promoting “__3__” while preventing “__4__” through deterrence.
A
- compensation
- proportion
- economic efficiency
- harm
4
Q
Name the 4 types of Torts.
A
- Intentional Torts (liability for intentional or reckless acts)
- Negligence (liability for careless acts)
- Strict Liability (liability regardless of fault)
- Products Liability
5
Q
“____” - A purportedly objective standard judged by what a hypothetical “reasonable person” should do under similar circumstances.
A
Reasonable Person Standard
But note: a “reasonable person” is not just reasonable; she is very cautious, prudent, calm, responsible.
DON’T THINK THAT A REASONABLE PERSON IS “JOE SIX-PACK.” IN PRACTICE, THE REASONABLE PERSON IS THE GUY WHO READS LAW REVIEW ARTICLES EVERY WEEK TO KEEP UP WITH DEVELOPMENTS, FLOSSES THREE TIMES DAILY, LOOKS BOTH WAYS TWICE BEFORE CROSSING THE STREET!!
6
Q
“____” - A master (employer) may be held vicariously liable for the torts of his servant (worker) done while acting within the scope of their employment.
A
Respondeat Superior doctrine
To determine “within scope of employment”:
- Was tortious conduct of the kind that the employee is hired to perform at the control of the employer?
- When and where did the tort occur (on duty or off duty; at place of employment)?
- Was the tort motivated, in part, to benefit the employer?
7
Q
“____” torts share requirement that D “intentionally” commit the elements of the tort.
A
Intentional
The “act” cannot be an accident or an involuntary movement.
“Intent” means either that D acts either while desiring to cause the harm OR while being substantially certain that harm will occur (recklessness).
Sometimes omissions can cause liability if there is a duty to act.
8
Q
Name 6 types of intentional torts.
A
- Assault
- Battery
- False Imprisonment
- Tresspass
- Conversion (theft)
- Intentional Infliction of Emotional Distress (IIED)
9
Q
“____” occurs when the defendant’s (1) intentional acts (2) cause (3) harmful or offensive contact with (4) the victim’s person.
A
Battery
While battery requires intent to act, it generally does not require an intent to cause a specific injury. It is only necessary that defendant intend to cause (or be substantially certain that he will cause) harmful or offensive contact.
Vosburg v. Putney:
Boy kicked in class.
10
Q
Battery requires either (a) “__1__” or (b) “__2__”.
A
- harmful
- offensive contact
Even trivial contact can constitute a battery, if it would be offensive to a reasonable person (unwanted kiss).
11
Q
What are the 4 elements necessary to claim Battery?
A
- intentional act of D.
- caused by D.
- constitute harmful or offensive contact.
- to the victim’s person.
Contact may be through direct action or by setting events in motion.
12
Q
Tort of “____” is any intentional and unexcused threat of immediate harmful or offensive contact, including words that cause the victim’s reasonable apprehension of immediate harmful or offensive contact.
A
Assualt
The tort of assault allows compensation for purely psychological injury. No contact required.
Ex: Swing and a miss.
13
Q
If the circumstances or words of the alleged tortfeasor suggest that a battery is not possible, it is not an assault.
Thus, words can dismiss “____“ness.
Ex: If you weren’t wearing glasses, I would hit you!”
A
imminent
14
Q
For liability, D must desire or be substantially certain that her action will cause the apprehension of “____” harmful or offensive contact.
A
immediate
- Victim must perceive that harmful or offensive contact is actually about to happen to him/her.
- Victim must apprehend imminent harmful or offensive contact, not just future contact.
- Many courts distinguish between “fear” and “apprehension.” The requisite expectation of imminent contact need not produce fear in the victim.
15
Q
Name the 4 defenses to Assault & Battery.
A
- Consent
- Self-Defense
- Defense of Others
- Defense of Property
16
Q
Which specific Assault/Battery defense?
- Where a party is defending his life or well-being.
- Defender can only use reasonable force necessary to repel the force being used against him.
- Situation must show real or apparent danger.
A
Self-Defense
17
Q
Which specific Assault/Battery defense?
- Defender must act reasonably under the circumstances.
- Can only use an amount of force necessary to repel the force being used against the third person.
A
Defense of Others
18
Q
Which specific Assault/Battery defense?
- Where the injured party consented to the act that damages her.
A
Consent
19
Q
Which specific Assault/Battery defense?
- Reasonable force may be used to remove intruders from your home.
- A person cannot use deadly force to protect property.
A
Defense of Property
20
Q
“____” - Intentional confinement or restraint of another person activities without justification.
A
False Imprisonment
21
Q
The following can be used to accomplish?
- Actual or apparent physical barriers (locked doors).
- Physical restraint (handcuffs).
- Wrongfully asserted legal authority. (“I’m a cop.”)
Threats of physical force against victim, victim’s family or victim’s property, but not merely moral pressure.
A
False Imprisonment
Usually, the victim must be aware that they are confined, unless harm results.
EX: After shoplifter is caught by store security, taken into a back room. (But, merchants typically have a “privilege to detain” provided they only use “reasonable force.”)
22
Q
“____” - When D, by extreme and outrageous conduct, intentionally or recklessly causes V severe mental distress.
A
Intentional Infliction of Emotional Distress (IIED)
Liability can be for mental harm and resulting physical harm.
Note: Vulnerability of V, and relationship between D and V can be critical.
Ex: Friend v. hotel employee saying “Do it yourself, fatty”.
23
Q
Roughly, what are the 4 elements to an Intentional Infliction of Emotional Distress (IIED) claim?
A
- Wrongdoers conduct was ‘intentional or reckless’ (i.e., intended mental distress or intended the act and knew or should have known mental distress would likely result).
- Conduct was ‘outrageous’ and intolerable in that it offends against the generally accepted standards of decency and morality (i.e., not just bad manners and hurt feelings).
- ‘Causal connection between wrongdoer’s conduct and emotional distress’.
- ‘Emotional distress is severe’.
24
Q
“____” - Bars people from making false statements about another which wrongfully hurts that person’s reputation.
A
Defamation
First Amendment freedom of speech will not protect the speaker from punishment for this type of speech.
Statement must be one of fact and not opinion.
25
What are the two types of Defamation?
Slander (spoken)
| Libel (written)
26
"____" - The oral breaching of the duty not to make false statements about another which hurt that person’s reputation.
Slander
Unless its slander per se, P must show actual harm.
27
"____" - The written breaching of the duty not to make false statements about another which hurt that person’s reputation.
Libel
Harm is presumed.
28
What are the 3 elements required to claim defamation?
1. Publication.
Communication to a party other than the defamed party.
A person who repeats a defamatory statement he overheard can be liable as well.
Some communications may be privileged and not defamatory.
2. Untrue statement by D.
3. Causing harm to P.
29
The following are examples of...
- General damages presumed as a matter of law once a person is found liable for libel.
- General damages designed to compensate the plaintiff for non-specific harms such as a damaged reputation in the community, humiliation, emotional distress, etc…
- Plaintiff need not prove that she was actually injured because these are subjective injuries.
Damages for Libel Defamation
30
The following are examples of...
- Unless it is a case of slander per se, the plaintiff must show that the slanderous statement caused special damages an actual monetary or economic losses.
- This is required because slanderous statements are oral and soon disappear from the public forum whereas libelous statements are made in a permanent or semi-permanent record which can become more widespread and injurious.
Damages for Slander Defamation
31
"____" - Certain types of slanderous statements that are so serious that the plaintiff does not have to offer proof of special damages.
Slander per se
The following four statements are slander per se:
- A statement that another has a loathsome communicable disease.
- A statement that another has committed improprieties while engaging in a profession or trade.
- A statement that another has been imprisoned for a serious crime.
- A statement that an unmarried woman is unchaste.
32
What are the 3 main defenses to Defamation claims?
1. Truth.
2. Privileged Speech.
3. Speech concerning a public figure vs. private figure.
Truth, that the defamatory speech was actually true, is not enough in every country.
33
2 Types of Privileged speech:
"__1__" - (Protection for This Type of Speech Can’t Be Lost Even if False).
- Statements made by a judge or attorney during a trial.
- Statements by legislators in session (politics).
"__2__" - (Protection May Be Lost, If Untrue and Abused)
Employee evaluations.
- Need good faith and limited publication.
- To win, plaintiff must show an abuse of privilege here.
1. Absolute Privilege
2. Qualified
To avoid problems, have employee sign a waiver granting the right to talk about them.
34
True/False?
Harder to win a defamation case if you’re not a public figure.
- Public Figures: Includes persons in the limelight, who exercise substantial governmental power, and, usually, publicly traded companies.
False
35
The following are necessary to...
- Public figures must show D acted with actual malice (i.e., knew statement was false, in reckless disregard of facts).
- Private individuals do not have to prove actual malice (i.e., negligent falsehood is enough).
Win a Defamation suit.
36
The following are the four types of what?
- Appropriation of identity (Right of publicity).
- 'Intrusion' into individual’s private affairs.
- False light.
- Public disclosure of private facts.
Invasion of Privacy
Note: NDA's can be useful to keep your private life safe here.
37
Name the type of Invasion of Privacy:
- Eavesdropping, peeping, etc. (No Publication Req’d).
- P must have reasonable expectation of privacy (speaking in their house vs. restaurant).
- Invasion must be highly offensive.
'Intrusion' into individual’s private affairs
38
Name the type of Invasion of Privacy:
- Falsely attributing offensive ideas or actions to someone.
False light
39
Name the type of Invasion of Privacy:
- Commercial use of persons name or likeness without permission.
- E.g., a phony endorsement.
Appropriation of identity (right of publicity)
40
Name the type of Invasion of Privacy:
- Publicizing offensive non-newsworthy private facts about someone, even if true. Reasonable person must find offensive (sex/finances).
Public disclosure of private facts
41
"____" - Tortious invasion of possessor’s interest in exclusive "possession" (e.g., physical intrusion) of land, underground or air (hereinafter “land)” without permission.
Tresspass to Land
Involuntary trespasses not actionable, but mistaken trespasses are.
Intentional trespass actions are vehicle for environmental damage and even virtually “invisible” but tangible particles can cross property lines can cause a trespass.
42
What are the 3 ways to commit trespass?
If a person intentionally...
1. Enters land in the possession of the other, or causes a thing or a third person to do so
2. Remains on the land
3. Fails to remove from the land a thing which he is under a duty to remove.
43
Trespass Defenses:
"____" - An incomplete defense, which permits D to interfere with another’s property, but pay damages. It exists when the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured property.
Private Necessity
Vincent. v. Lake Erie Transportation Co.
44
Trespass Defenses:
"____" - A complete defense, which exists when the defendant appropriates or injures a private property interest to protect the community. No compensation required.
Public Necessity
Surocco v. Geary.
45
"____" - Substantial & unreasonable invasion of possessor’s use & enjoyment of land (e.g., light, noise, odor, vibration).
Nuisance
46
To determine whether or not invasion is "____", the court will balance (1) utility of the action and the burden of preventing it, against (2) nature and gravity of harm.
Unreasonable
- Construction noise likely to be protected, but loud music at night is not.
47
True/False
Nuisance and trespass cannot be alleged simultaneously
False, can be simultaneous.
48
What are the two types of nuisance?
Public & Private
49
"____" Nuisance - brought by citizen for unique harm to their land (e.g., stray voltage reducing milk production on neighboring farm).
Private
50
"____" Nuisance - brought by government unreasonable and substantial interference with public health, safety, peace, comfort or land use.
Public
51
"____" - Intentional interference with the right of possession of personal property.
Trespass to Chattel (Personal Property)
D’s acts must:
1. Cause damage the chattel,
2. Deprive the rightful possessor of its use for a substantial period of time, or
3. Totally dispossess the chattel from P.
Proof of bad faith not required. Sufficient that actor intends to damage or possess a chattel that is, in fact, properly possessed by another (No mistake defense).
Ex: Logging company sues environmentalists for chaining to trees on the company's property.
52
"____" - Tort equivalent of theft.
| Intentional and very substantial harm to or interference with another’s personal property..
Conversion.
- D will need to pay full value to P.
- P must have right of ownership or possession.
53
"____" - For personal gain, intentionally making false statement that leads another to believe in a condition that isn’t true or doesn’t exist
Fraudulent Misrepresentation.
Following are ALL necessary:
1. D misrepresents material facts or conditions.
2. D has knowledge of falsity or reckless disregard for the truth.
3. Intent on behalf of D to induce P to rely.
4. Justifiable reliance by P.
5. Damages sustained by P.
6. Causation between misrepresentation and injury.
54
True/False with respect to Fraudulent Misrepresentation:
Although everyone has duty to refrain from lying, there is no general duty to disclose all facts, unless fiduciary or sometimes superior “expert” knowledge.
True
Also, must be more than puffery or opinion to be considered a tort:
“This car is the best” vs. “This car has a ABS breaks”
55
"____" - Tort occurs when D makes economically injurious falsehoods about another’s product or property.
Disparagement of Property
Two types:
1. Slander of quality
2. Slander of title
56
The following constitutes what type of Disparagement of Property?
Falsely casting doubt on another’s ownership to discourage people from dealing with them.
Slander of Title
Requires:
1. "Publication" to 3rd Party.
2. Proof of economic harm.
57
The following constitutes what type of Disparagement of Property?
Falsely claiming another’s product is not of the quality they say it is.
Slander of Quality
Requires:
1. "Publication" to 3rd Party.
2. Proof of economic harm.
(Pink Slime Case)
58
"____" - D claims that P has gone out of business or doesn’t carry certain goods, causing economic harm (monetary losses).
Injurious Falsehood
Truth is defense. An opinion concerning relative quality of competitors’ goods compared to your own is allowed.
59
"____" - Suing another person out of malice (evil intent) without legitimate reason, which leads to injury (e.g., lost profits, etc.)
Malicious Prosectution
60
"____" - Using legal process improperly or to accomplish a wrongful purpose.
Abuse of Process
- Applies not just to starting wrongful lawsuits, but also issuing wrongful subpoenas, etc.
- No proof of malice required.
61
"____" - The MOST COMMON tort alleged by businesses against other businesses.
Tortious Interference
Two types:
1. Wrongful interference with a contractual relationship.
2. Wrongful interference with a business relationship.
62
"____" - Commonly used when one company wrongfully poaches employees, suppliers or distributors.
Wrongful Interference with a Contractual Relationship.
Elements:
- Valid and enforceable contract between A and B.
- C must know that the A-B contract exists.
- C intentionally induces A or B to breach.
63
"____" - A type of “unfair business practice”, commonly used when a business wrongfully interferes with another business’s non-contractual relationship with its customers.
Wrongful Interference With Business Relationship.
- Plaintiff must prove:
Defendant used “predatory methods” that “intentionally” “caused” “harm” to an “established business relationship or prospective economic relationship.”
- Difference between fair competition (motivated by self-interested financial gain) and predatory practices (e.g., motivated by revenge).
(HIGHLY FACT INTENSIVE)
64
The following involves what broad tort category?
- Most common vehicle for tort recovery.
- Victim suffers injury because of another person’s failure to live up to a required duty of care.
- Does not involve intentional misconduct.
- Whether it can be claimed depends, in each case, upon the particular circumstances that surround the parties at the time and place of the occurrence.
Negligence
- Negligence and intent are mutually exclusive, but may both be alleged.
- Negligent actor does not desire to bring about the consequences which follow, nor does he or she know/believe that they are substantially certain to occur.
65
Wrongful interference with a contractual relationship is a form of what tort?
Tortious Interference
The MOST COMMON tort alleged by businesses against other businesses.
66
The law of "____" is designed to discourage or encourage specific types of behavior by one party for the benefit of another party.
Negligence
This is why negligence actions require proof that defendant had duty to act to the benefit of plaintiff.
Also helps achieve economic efficiency by placing liability on person best able to avoid injury.
67
Wrongful interference with a business relationship is a form of what tort?
Tortious Interference
The MOST COMMON tort alleged by businesses against other businesses.
68
Key determinant of liability for negligence is "____".
- No automatic compensation just because an injury occurs or something may be dangerous.
- Injury must be foreseeable.
- D is not liable for injuries caused by an unavoidable or inevitable accident
Determining Fault.
- Negligence liability only exists if one failed to observe the standard of care the law the requires to observe in the performance of a duty he or she owes to the injured person, thus creating a risk of harm.
“inevitable accident" - alleged tortfeasor has no power to avoid injury to others.
“Unavoidable accident" - could not have been foreseen by exercise of reasonable care.
69
Negligence actions require proof of what four essential elements?
KLAW CARD
1. 'Duty' to follow a standard of care in respect of P
2. 'Breach' of that Duty
3. 'Causation' (Factual Cause & Legal Cause)
4. 'Damages'
70
Negligence is a mixed question of law (for judge) and fact (for jury). Generally, who determines:
- The facts;
- Whether D has conformed to the standard of conduct required by the law;
- Whether D’s conduct is a legal cause of the harm to the plaintiff;
- The amount of compensation for legally compensable harm.
The Jury.
Why? Jury is better able to represent community's judgment of how a reasonable and ordinary person would act.
71
Negligence is a mixed question of law (for judge) and fact (for jury). Generally, who determines:
- If any legal duty exists on the part of the defendant (i.e., motion to dismiss);
- Standard of conduct required of the defendant by his or her legal duty;
- Applicability of rules of law for whether D’s a legal cause of harm to the plaintiff;
- Whether the harm claimed to be suffered by the plaintiff is legally compensable.
The Judge.
72
The existence of a legal “____” to safeguard the interests of the plaintiff is a prerequisite to any negligence action. It determines which persons/injuries are within the scope of liability.
Duty
Generally, there is a duty to Foreseeable Plaintiffs Only.
73
The following are all...
- Relationship of parties.
- Closeness of connection between D’s act and P’s injury.
- Nature of the risk.
- Opportunity, ability and costs associated with the exercise of care.
- Reasonable foreseeability and likelihood of harm to the person injured.
- Reasonable expectations of the parties.
- Consequences of placing burden on Defendant.
Duty Determining Factors
74
The following are all...
- Moral blame attached to the defendant's conduct.
- Policy of preventing future harm.
- Prevalence of insurance for the risk involved.
- Avoidance of increased litigation or fraudulent claims.
- Social utility of the actor's conduct.
Duty Determining Factors
75
Generally, No Duty to "____" in most of U.S.
Rescue
Even if help could have been given with little personal risk or effort. Exception: Some states have “good Samaritan” laws requiring people to rescue 3rd parties, if they can do so without risk.
76
The following are...
1. Creation of the Peril
2. Special Relationship (Common carrier, innkeeper, parent/child, spouse).
3. Contract / Promise
4. Assumption of Responsibility by D with Reliance by P.
Exceptions requiring Duty to Rescue.
77
Generally, No Duty to "____" Third Parties or "____" harms caused by 3rd Parties.
Control
| Prevent
78
The following is an...
Special Relationship between (1) defendant and (2) dangerous 3rd party or victim, combined with D’s prior knowledge of the need for control the dangerous 3rd party.
Exception to "No Duty to Control Third Parties".
E.g., patient escapes from hospital for criminally insane and injures someone.
79
The following is an...
Alcohol Suppliers(Dram Shop Laws) - Courts/legislatures starting to impose liability on commercial suppliers of liquor (and sometimes social hosts) where 3rd party is injured by drunken guest or patron.
Exception to "No Duty to Control Third Parties".
80
The following is an...
Negligent Entrustment - Premised on D’s action in supplying a potentially dangerous instrumentality (e.g., car or gun) to person D knows or should know is not fit to handle it.
Exception to "No Duty to Control Third Parties".
81
Landowners Duty is determined by the status of Entrant to the land. The three statuses are...
1. Trespasser
2. Licensee
3. Invitee
However, some states have abandoned regime – must use reasonable care under the circumstances for everyone.
82
The following describes which status of Entrant?
- Enters with consent of the land possessor (e.g., social guests)
Licensee
- If dangerous condition on the property is known to possessor but not obvious to guest, they must make the condition safe or to warn the licensee about the risk (avoid gross negligence).
83
The following describes which status of Entrant?
- Enters or remains on another’s property w/o permission.
Trespasser
1. Unknown Trespassers: Landowners must only avoid willfully harming T.
2. Frequent/Known Trespassers: Landowners must warn of man-made death traps
3. Child Trespassers: Landowners must guard against attractive nuisances (pool).
84
The following describes which status of Entrant?
- Enters for commercial benefit to possessor (customer/ employee).
Invitee
- Duty to use ordinary care to warn or otherwise protect an invitee from risks of harm from a condition on the possessor's premises if:
1. Risk of harm is unreasonable, and
2. Possessor knows or in the exercise of ordinary care should know of condition, and should realize that it involves an unreasonable risk of harm to an invitee.
- This creates a duty to inspect, and then, at least, warn.
85
Where a party sues for purely economic losses, in the absence of personal injury or property damage, generally that party cannot sue for "____", but must sue in contract.
negligence.
Note: Rule does NOT bar recovery where D’s negligence causes physical injury from which P suffers economic loss (e.g., lost wages) or causes property damage from which flows economic harm (e.g., lost profits).
86
“____” refers to violation of applicable “standard of care”
- P must allege something that the Defendant could and should have done better.
- Both acts and omissions can give rise to a negligence claim, in certain circumstances.
Breach
Breach is usually determined by applying the “REASONABLE PERSON STANDARD”
87
The following describes what standard?
For Most Adult Defendants: Court will ask and Jury must decide how a reasonably prudent person would act under similar circumstances?
Reasonable Person Standard
- For Expert Defendants: Where D has special knowledge, skill, training, or experience pertaining to the conduct in question that is superior to that of the ordinary person, court will ask and jury will decide (with help of other experts), how would a reasonably prudent expert act?
88
There are numerous factors to be considered in determining whether a person has met the standard of reasonable care. What 3 main factors are used to make the standard less vague?
1. Economic Efficiency
2. Custom
3. Statue
89
The Role of Economic Efficiency is determined by the "____" formula.
Duty to provide against resulting injuries is function of variables:
1. The probability of loss; (P).
2. The gravity of the foreseeable resulting injury; (L).
3. The burden of providing additional care (B).
If (P x L) > B, then D will not have met the standard of care required. Vice versa.
Learned Hand
Note: Juries do not have to be instructed on the BPL formula, but aspects of it are often argued to the jury (sometimes with limited success like in Ford Pinto Case). Commonly used by judges when reviewing jury verdicts.
90
“____” - A well-defined and consistent way of performing a certain activity in particular industry.
- D’s conformity to "____" may help establish that D exercised due care under the circumstances.
- D’s non-conformity to "____" may help establish D’s liability.
- "____" tends to show (1) ordinary conduct by others similarly situated, (2) the feasibility of alternative safety precautions.
Custom
But custom is not conclusive:
- Liability still turns on its reasonableness.
- Jury may determine that the custom itself is unreasonable.
91
Judge may decide that a criminal statute, administrative regulation, municipal ordinance sets the standard of care in a negligence case and can be used to determine whether D met his duty.
E.g., violating DWI law or speeding provides proof of negligent driving.
In such cases, statute replaces the usual "____” of care, and all the jury needs to find is that the statute was violated (in addition to the other elements of a negligence claim).
Reasonable Person Standard
A statute may be adopted as the standard of care in a negligence case, if a judge determines:
(1) The statute was designed to protect against the type of harm suffered by the plaintiff, and
(2) that the class of persons designed to be protected by the statute includes the plaintiff.
92
"____" or “the Thing Speaks for Itself.” - Allows rebuttable presumption negligence to be inferred from the fact of an accident. P must show:
1. The type of “accident that simply does't happen without negligence”.
2. D had exclusive control of the instrumentality of the accident.
3. The absence of voluntary action or contribution by the plaintiff.
Res Ipsa Loquitur
In Byrne v. Boadle, for example, P hit by flour barrel falling from window of D’s flour shop.
93
What are the two elements to Causation?
- Factual Cause
| - Legal (Proximate) Cause
94
Plaintiff or Defendent?
As an essential element of a negligence action, the plaintiff must provide evidence that the defendant's conduct caused plaintiff's damage. In almost all cases, "____" bears the burden of proof, by a preponderance of the evidence.
Plaintiff
Two elements to causation:
- Factual (Actual) Cause
- Legal (Proximate) Cause
95
Legal Cause or Factual Cause?
- P must prove that D’s conduct was an actual cause of the harm.
- Injury would not have occurred but for the conduct of defendant.
Factual Cause
Generally , must prove both Factual (Actual) Cause and Legal (Proximate) Cause.
96
Legal Cause or Factual Cause?
- P’s injury was the natural, direct and/or reasonably foreseeable result of D’s action.
Legal Cause
Generally , must prove both Factual (Actual) Cause and Legal (Proximate) Cause.
But Note: Only type of injury need be foreseeable, not extent of injury (Eggshell Skull Rule).
97
Legal Cause or Factual Cause?
- The “but for” test is the near universal test of "____" causation in most cases: Conduct is deemed to be the “but for” cause, if “the harm would not have occurred absent the conduct."
Factual (Actual) Causation
To assess “but-for” cause, analyze whether D’s conduct was necessary for the injury:
(a) identify the injury,
(b) identifying the defendant’s putatively negligent conduct,
(c) mentally construct an imaginary counterfactual scenario in which D’s conduct is corrected to the extent necessary to make it non-negligent (changing nothing else),
(d) ask whether in that imaginary scenario, the injury in suit probably would have been avoided.
98
Legal Cause or Factual Cause?
- Jury examines causal relationship between D’s conduct and P’s injury, and precludes recovery when their relationship does not justify imposing tort responsibility on D.
Legal (Proximate) Cause
Foreseeability Test: Whether D should have reasonably foreseen, as a risk of her conduct, the general consequences suffered by the plaintiff.
- Was P’s injury a (1) reasonably foreseeable result of D’s negligent, and (2) was there no superseding intervening (extraordinary) force?
- Note: Exact injury, precise manner of harm, and extent of harm need not be foreseeable; just the type.
99
Plaintiff must show "____" in order to recover in a negligence action.
Injury
No harm, no foul.
100
Name the Negligence Defense:
Occurs when a person signs a written waiver before engaging in a dangerous activity.
To be valid, it must be clear, unambiguous and voluntary.
Express Assumption of Risk.
Look at the back of your lift-ticket next time you hit the slopes!
101
Name the Negligence Defense:
Can be a defense even where no written waiver is signed in advance.
Requires that P:
1. know of the particular risk and 2. voluntarily
3. assume it.
Implied Assumption of Risk.
Murphy v. Steeplechase Amusement Co. -
Facts: After watching “the Flopper” at an amusement park for a while, a young man steps onto it. As a result of a sudden “jerk,” he falls and breaks his kneecap.
Held: Implied assumption of risk bars P’s recovery.
102
Name the Negligence Defense:
In some states negligence of the P was a complete defense to an action for negligence of the Defendant.
Example: Pedestrian A negligently crossed the street outside of the intersection and is injured by B, who negligently failed to slow down at a yellow light. Even if A is 10% at fault, and B is 90% at fault, A could not recover against B under this regime.
Contributory negligence.
Note: Contributory negligence also did not apply if P could show that D had the “last clear chance” to avoid the accident.
Today, in almost all states, contributory negligence has been replaced by some form of comparative negligence.
103
Name the Negligence Defense:
Plaintiffs own negligence is partial bar to plaintiffs recovery, which reduces the plaintiff's recovery by the percentage of responsibility for the injury attributable to the plaintiff.
Comparative Negligence.
D must prove “conduct on the part of the plaintiff which falls below the standard of conduct which he should conform to for his own protection … is a legally contributing cause ... in bringing about the plaintiff's harm”.
104
Jurisdictions have one of three different comparative negligence regimes:
(1) "__1__" Comparative Negligence - Plaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence.
(2) "__2__" Comparative Negligence - Depending on the jurisdiction, a plaintiff in a modified comparative negligence jurisdiction may be allowed a partial recovery unless his negligence is equal to, or greater, than 50% at fault.
1. Pure
Example: Even if Plaintiff is 95% at fault, he may recover 5% from D.
2. Modified
105
Liability of "____"
- Higher standard of care
- Misrepresentations: Liable to client and (particularly in case of intentional misreps) others whose reliance is reasonably forseeable
- Consider inserting disclaimer of reliance.
Professionals
Ex: auditor who claims that financial statements prepared in accordance with GAAP when knowingly false may be sued by Company and shareholders
106
General Rules of Damages:
In almost all cases, (P or D) bears the burden of proving his damages by a preponderance of the evidence.
- Courts are loathe to consider cases where there is no harm yet.
- Speculative damages measures are generally not recoverable.
- In rare tort cases, damages are presumed (e.g., defamation, where fact of publication gives rise to presumption of damages).
Plaintiff
107
General Rules of Damages: True of False?
P must usually sue for all of his damages in one single lawsuit. Thus, any money judgment must account for all past harm, as well as anticipated future losses (in both duration and extent).
True
108
General Rules of Damages:
D is generally liable to P for all damages proximately caused by defendant’s conduct, whether or not those damages are "____".
foreseeable.
See Vosburg v. Putney: (eggshell skull rule)
But note: Under rules of proximate cause, liability may not be imposed for unforeseeable types of harms.
109
Name the Type of Damage:
- Designed to restore injured party, as nearly as possible, to position he would have been in, had it not been for wrong of other party.
- Since we cannot “fix” D, the law provides money as substitutionary relief. Works somewhat well for pecuniary (money) losses, but often poorly for non-pecuniary losses, as people typically won’t accept money to be hurt.
Compensatory Damages
"Make the person whole again"
110
Name the Type of Damage:
Symbolic award given to P who cannot prove actual damages. It is designed to the vindicate legal principle at issue (i.e., D violated P’s rights), but can also serve as “hook” for punitive or attorney’s fee award.
Nominal Damages
Might just be a $1 award.
111
Name the Type of Damage:
Designed to punish tortfeasor for particularly bad conduct, and provide general deterrence.
Punitive Damages
112
The overall goal of "____" damages is to restore plaintiff to his “rightful position.” But, what is plaintiff’s rightful position?
- Torts: P’s rightful position is a return to the “status quo ante” – the way things were before the injury. To achieve this goal, we compare P’s position before and after the tort, and give P the difference in money. In torts, compensatory damages are often called reliance damages.
- Contracts: P’s rightful position is not the position he was in before the contract. Rather, it is to put P in the position he would have been had the contract never been breached. In contracts, compensatory damages are often called expectancy damages.
Compensatory
113
"____" damages generally available for pecuniary losses & non-pecuniary losses:
- Pecuniary Losses: Includes damage to property, out of pocket medical expenses, FMV of family medical services, future medical expenses, lost wages, etc. Easily quantifiable.
- Non-pecuniary losses: Includes past and future pain & suffering, humiliation, anxiety. Not easily quantifiable.
Compensatory
114
"____" Pecuniary Losses: Medical bills, doctors, medications, lost earnings.
- They are usually non-controversial, but there are some sticky issues: (Lost earnings in cases of self-employed people? or whether to inform jury that compensatory awards are not taxable?)
- Damages for destruction of property are generally measured by FMV of the property at the time of the tort. If property is only damaged, courts generally compensate P for diminished market value of the property (sometimes cost of repairs will be awarded instead, if FMV is difficult to assess)
Past
Note: Injured victim has duty to act reasonably to “mitigate” losses incurred. If P fails to act reasonably to mitigate, D will not be liable for incremental losses that could have been avoided.
115
"____" Pecuniary Losses: Future medical costs and therapy, loss of future earnings.
- Must calculate how long P would have worked (using average in industry), what P would have earned if not injured.
- Must discount lump-sum award to present value to account for current potential of the funds if prudently invested now, as well as inflation.
Future
Note: Injured victim has duty to act reasonably to “mitigate” losses incurred. If P fails to act reasonably to mitigate, D will not be liable for incremental losses that could have been avoided.
116
Compensation for "____".
- Due to controversy over such damages, non-economic damages are traditionally only permitted when accompanied by physical injury or when P was in “zone of physical danger.” Some states cap non-economic damages (or all damages) in certain types of cases, although states find this to interfere with right to trial by jury.
Non-Pecuniary Losses
- Court has power to review excessive awards.
- Ironically, D will often pay less damages if P dies than if P lives because, in the latter case, there is no pain & suffering to pay.
117
Damages in Event of Death:
"____" Action – For money that V could have obtained from D before death:
- Lost income and medical expenses between time of injury and time of death
- Pain & suffering of victim before death (if V was conscious of the pain).
Survival
118
Damages in Event of Death:
"____" Actions – For money that family beneficiaries/dependents lost as a result of decedent’s death.
- In most states, pecuniary losses are recoverable (e.g., funeral expenses, etc.), but recovery for non-pecuniary losses is available only to certain survivors (e.g., spouses, children, etc.)
- And, victim’s total lost wages do not necessarily equal amount that beneficiaries would have received.
Wrongful Death
119
First Purpose of Punitive Damages:
Designed to "____" tortfeasor for really bad conduct (retributive goal). P must show that D acted with:
- Malice: misconduct intended to injure, or despicable conduct done with willful and conscious disregard to others safety and rights.
- Oppression: Despicable conduct that subjects person to cruel and unjust hardship.
- Fraud: Intentional misrepresentation, deceit, or concealment of material fact known to D, with intent to deprive other of legal rights or cause injury.
Punish
120
To enforce a punitive damage, P must show that D acted with either: "__1__", "__2__" or "__3__".
1. Malice,
2. Opression,
3. Fraud.
(MOF)
121
Second purpose of Punitive Damages:
Also, designed to "____" tortfeasor and others
Specific deterrence and general deterrence.
Deter.
122
The following highlight what?
- Punitives barred in cases of vicarious liability, unless Master is somehow independently at fault (e.g., authorized employee misconduct)
- No retributive goal
- Punitives barred in action against estate if tortfeasor dies.
- No deterrent goal, etc.
- Gov’t may not be held liable for punitive damages.
- Where comparative fault applies, compensatory awards are often reduced, but punitive damage awards are not.
The Limits on Punitive Damages
123
The following 3 factors are used to determine that the punitive damages award is not "____":
- Degree of reprehensibility of D’s misconduct.
- Disparity (Ratio) between actual/potential harm suffered and punitive award.
- Diff. b/w jury award & civil penalties imposed/authorized in comparable cases.
Grossly exessive
Note: Amount of punitive award usually must be less than 10 times amount of compensatory award.
Also, the wealth of defendant cannot justify an otherwise unconstitutional punitive damage award: absence of wealth may lower award, but present of wealth cannot be reason to increase punitive award.
124
The following may be considered in determining the Degree of "____" of D’s misconduct:
- Physical vs. economic harm.
- Reckless indifference to health/safety of others, intentional malice, trickery, deceit.
- Repeat tortfeasor vs. isolated incident.
Reprehensibility
125
The following may be considered in determining the "____" (Ratio) between actual/potential harm suffered and punitive award:
- Punitive damages must bear a “reasonable relationship” to compensatory award.
- No formula(ratio) is always appropriate.
- Low compensatory awards may support higher ratio, if egregious act resulted in small $$ harm.
- Higher ratio ok where injury hard to detect or value of noneconomic harm difficult to determine.
Disparity
126
The "____" clause prohibits excessive punitive damages.
Due Process
Punitive damage awards should be reviewed to determine:
- Degree of reprehensibility of D’s conduct.
- Disparity between compensatory and punitive awards.
- Awards in similar cases.
127
"____" = Liability without fault. It allows D to be liable for injuries even without D’s intent or negligence.
Strict liability
Types of situations where SL applies:
- Abnormally Dangerous Activities.
- Wild Animals.
- Bailment: goods are temporarily transferred into the possession of another (valet parking, coat checking).
- Product Liability
128
An activity is considered an "____" Dangerous Activity if it:
- Activity involves the potential harm, of a serious nature, to persons or property.
- The activity involves a high degree of risk that cannot be completely guarded against by the exercise of reasonable care.
- The activity is not commonly performed in the community/area.
Abnormally
129
The following are considered when determining what type of Activities?
- The basis of liability is the creation of an abnormal and very serious risk.
- Even if this activity is done with the utmost of reasonable care, there is still a serious risk of injury
- The person taking on this abnormally dangerous activity should have to pay for injuries caused by this activity.
Abnormally Dangerous Activities
Examples: Blasting dynamite, fireworks, nukes.
130
"____" - Liability of Manufacturers and sellers (distributors, wholesalers, retailers) for defective products that cause injury or loss to user or bystander.
Products Liability
1. Breach of Warranty
2. Negligence
3. Misrepresentation
4. Strict Product Liability
131
What are the four types of Product Liability?
1. Breach of Warranty
2. Negligence
3. Misrepresentation
4. Strict Product Liability
132
Name the Product Liability:
Whether quality, characteristics and safety of product were consistent with implied or express representations of seller.
Breach of Warranty
133
The following can give rise to what kind of Product Liability?
- Any Express Warranty (3yrs/30,000 miles).
- Implied Warranty of Merchantability.
- Warranty of Fitness for Particular Purpose (Seller knew or should have known of particular purpose and buyer relied on seller's advice).
PL based on Breach of Warranty
- Privity of Contract often required.
- Disclaimers can insulate (“As-Is”).
134
The following are elements to what type of Product Liability:
- Misrepresentation (intentional or negligent).
- Made to a user/consumer.
- Misrepresentation must be of a material fact.
- Intent to induce the reliance on the misrepresentation (ex: label misrepresentation).
- Buyer must actually rely on the misrepresentation (If buyer was unaware or if the misrepresentation did not influence the transaction, this element is not met).
- Misrepresentation results in an injury.
PL based on Misrepresentation
135
The following can give rise to what kind of Product Liability?
- Failure to exercise reasonable care during product designing, manufacturing (including inspections), or labeling/warning that involves unreasonable risk of harm to user.
PL based on negligence
- To avoid negligence, manufacturers should have QC methods.
- Note: Subsequent remedial measures may not be used as proof of negligence (think about recalls).
136
MacPherson v. Buick Motor Co. Holds that there is a duty to inspect "____" products (wooden spokes case).
3rd Party
137
Restatement (2nd) of "____" (402A)
(1) - "One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."
Torts
(2) - "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 relationship with seller."
138
The following involve what type of Product Liability?
- Liability without fault.
- Rationales: Protect consumers against unsafe products; Liability on person most able to prevent harm; Manufacturers/Sellers able to spread costs; Encourage manufacturers to use utmost safety; Encourage sellers to deal with best manufacturers
- 3 types of defects: Manufacturing Defect; Design Defect; Defective Warnings
Strict Products Liability
139
The following are elements to what type of Product Liability?
- Sale in ordinary course (Manufacturer, wholesaler, retailers).
- Of “Product” (not service or mere ideas in books).
- Defect (in Manufacturing, Design or Warning).
- Causation (factual and legal)
- Injury to P or P’s property.
Strict Product Liability
- The Defect must (1) exist at time product left Defendant
and (2) make item unreasonably dangerous by failing Consumer Expectations or Risk/Utility test .
- For Causation, (1) product defect was substantial factor in injury and (2) product was used in intended or reasonably foreseeable way.
140
"____" - product is defective “only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him”.
Comsumer Expectations Test
- Analyze from perspective of ordinary adult consumer.
- In defective design cases, consider whether product functioned as safely as an ordinary consumer would expect when used in intended or reasonably foreseeable manner.
- In manufacturing defect cases, consider whether defect is foreign (e.g., rat in Pepsi can) or natural (e.g., seed in fresh squeezed orange juice).
- In warning cases, manufacturer not expected to warn for obvious risks; only risks that are known or knowable.
141
"____" - A product is designed defectively where magnitude of hazards outweighs the social utility of the product. Used when consumers have no expectations (e.g., technical stuff)
Risk/Utility Test
Consider:
(1) Utility of product to public as a whole and to individual user;
(2) Nature of the product (i.e., likelihood that it will cause injury);
(3) Availability of a safer but functional and cost-effective design;
(4) Ability of the plaintiff to have avoided injury by careful use of product;
142
Name the type of Strict Product Liability?
- Product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.
- Inadvertently rolls of production line in a defective condition.
Manufacturing Defects
Ex: Only 1 bad product our of a lot.
143
Name the type of Strict Product Liability?
- Product manufactured per specifications but is unreasonably dangerous to users due to inadequate design (Not safe for intended or reasonably foreseeable use; E.g., Ford Pinto;
Reasonable alternatives available).
Design Defects
Ex: Majority of products are bad.
144
"____" - Some products are currently incapable of being made completely safe for their intended and ordinary use (e.g., pharmaceuticals).
“____” is a defense, but not a complete defense, as P may still prove liability upon showing that the product was marketed without due care (i.e., bad warnings).
The designer of an "____" product (i.e., products without a RAD) is also generally insulated from liability (if warnings are provided), except where the product has extremely minimal utility (ex: prank exploding cigars).
Unavoidably Unsafe Products
145
"____" - In some cases, D can be liable for failure to adequately warn of particular known or knowable risk (e.g., no instructions).
Causal Presumptions: Law presumes that “[w]here a warning is given, seller may reasonably assume that it will be read and heeded” and “had an adequate warning been given, the plaintiff would have read and heeded it.”
Inadequate Warnings & Labels
Was a warning necessary?
- No need to warn of dangers which are obvious with “common knowledge”.
- Idiosyncratic Users: Mfr. should provide warning when “the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known...”
Was the warning adequate?
- Was it misleading? Was it reasonable, clear and unequivocal?
- Would additional warnings have been sufficient to avoid injury?
146
The following concerns "____".
Most states: acquirer only liable for liabilities of products of predecessor if (1) merger, (2) express or implicit assumption of obligations, (3) sham transaction.
Successor Liability
However, a few states impose successor liability if:
- Same product line is continued by new owner.
- Continuity of enterprise (i.e., same owners, officers, SH, etc.).
147
Can or Cannot?
- Under S/L theory, retailers and wholesalers "____" be liable for design and manufacturing defects.
- Using indemnities "____" help insulate against risks of liability caused by 3rd parties in the supply chain.
- Using indemnities "____" help minimize risk of successor liability in most cases.
Can
148
"____" - Where multiple manufacturers of same product makes it difficult to prove who made/sold the defective product (e.g., pharmacists fill scripts from whatever generic is available), courts may impose prorated liability based on market share.
Market Share Liability
149
The following are examples of...
- Subsequent alteration of product.
- Comparative Fault (partial defense), except where the alleged negligence is P’s failure to discover a product defect (which is not a defense).
Defenses to Strict Products Liability
150
Name the appropriate Defense:
Voluntarily and unreasonably proceeding to known danger.
Assumption of risk
151
Name the appropriate Defense:
No safer design available.
State of the Art Defense
152
Name the appropriate Defense:
Product made properly according to specifications by gov’t which has superior knowledge.
Government Contractor Defense
153
Name the appropriate Defense:
Most states limit the time period for strict liability actions to a certain number of years after date of sale.
Statutes of Repose
154
Name the appropriate Defense:
Misuse in substantial, non-foreseeable way (Creator of a violent video game not liable for shooting spree).
Misuse
155
REVIEW THE UBER CASE
:)
Law & Public Policy
flashcards
Decks in class (8)
# Cards
-
Class 1: Intoduction, Foundations of Law, Dispute Resolution113
-
Class 3-4: Contracts & Sales105
-
Class 5: Agency Law52
-
Class 6-7: Business Associations & Corporate Governance50
-
Class 8-9: Torts & Product Liability155
-
Class 11: Constitutional Law52
-
Class 13: Regulatory Law and Policy27
-
Class 14 - 15 - Intellectual Property67
