Concepts Flashcards
(132 cards)
1
Q
Cite a case for respondeat Superior
A
Walter V Walmart
2
Q
The field of tort law defines ______ and _____
A
responsibilities relative to others and rights for redress
3
Q
What are 6 potential goals of tort law?
A
1) Compensation 2) Deterrence 3) Punish wrong Dickens V Puryear 4) Fairness 5) Economic Efficiency-Carroll Towing 6) Protect Personal Liberty
4
Q
What are the 3 avenues for tort liability
A
Strict Liability, Negligence, and Intentional torts
5
Q
What are the pros and cons of going for an intentional tort?
A
Pros: Punitive Damages
Cons: Can void respondent superior or go outside of insurance coverage
6
Q
Who makes tort law?
A
Common law (so state judges) and modified by state and federal statute. American Law Institute releases guidance in the Restatements
7
Q
Why might you want to name someone else in the suit even if you don’t want to recover from them?
A
You can get more out of them in discovery if they are named.
8
Q
What is the standard of review for damage awards?
A
No rational basis - Littlefield V McGuffey used the “Monstrously Excessive” standard
9
Q
What is the Daubert test?
A
It makes sure experts are actually qualified and are using a respectable method in their testimony
10
Q
What are the 2 results to an objection and what do they mean?
A
Sustained - objection was valid and judge takes some kind of action
Overruled - judge disagrees with objection, it is noted for record, and nothing happens
11
Q
What is the classic case (and the latin) for “look at me, don’t look at him”
A
Winterbottom V Wright (Damum Absque Injuria)
12
Q
What are 2 key points for emotional injury?
A
If you have physical injury, then your emotional and economic loss can be parasitic on that. (Norfolk Western Railway V Ayers)
If you have only emotional injury, you have to prove it is great and lasting.
13
Q
How do judges justify stretching the standard? Which judges can do this?
A
Deterrence, Economics, Narrow exceptions, reason/distinguish from precedent, “Times have changed argument” (Cardozo in MacPherson V Buick)
State judges change common law - Federal judges have to follow state precedent (Burns Philip V Cavalea)
14
Q
How to you get past MTD/SJ?
A
For MTD, you have to allege the prima facie case
For SJ, you have to produce evidence such that there is a genuine issue of material fact, reasonable jury could find that you have met the prima facie
15
Q
What are the 4 parts for battery prima facie?
A
1) D Acts
2) intending contact with P
3) the contact intended is harmful/offensive
4) Act causes P to suffer contact that is harmful/offensive
16
Q
What is the standard for intent (cite 2 cases)
A
Only need to intend the touch, not the harm (Cole V Hibbard)
Can be purpose/desire or knowledge/substantial certainty (Garratt V Dailey)
Intent is usually proved circumstancially it’s rare for someone to say their purpose
17
Q
Is knowledge/substantial certainty a subjective or objective standard?
A
Subjective
18
Q
It is not enough to say that D is substantially certain that something COULD happen?
A
Garratt V Dailey - if Garratt has moved one of 100 chairs that aunt was about to sit with (with no desire/purpose) then there is no liability
19
Q
Do you need desire/purpoe AND knowledge with substantial certainty?
A
NO - YOU ONLY NEED ONE
20
Q
What is transferred intent? Cite case. Can you have transferred negligence?
A
Transferred intent is when you intend one type of intentional tort against one person and end up with a different type of tort against a different person - intent transfers (In Re White)
There is no transferred negligence
21
Q
What is the rationale for transferred intent?
A
If the intended act was unlawful, the resulting act should be punished as unlawful because the intent to harm still led to harm and needs to be deterred. Plus we have a victim and the tortfeasor and one of them has to bear the cost
22
Q
What is the thin skull plaintiff rule?
A
Vosburg V Putney says you take your victim as you find your victim - you are liable for all of the damage caused, regardless of foreseeability and even if P is especially susceptible
23
Q
Do you need actual physical contact for battery?
A
Nope - “Extended Personality” can move someone’s chair (Garratt) or grab their plate (Fisher V Carrousel), or poison them, or knock them out with gas
24
Q
Is harmful/offensive a subjective or objective standard?
A
objective and is a function of context (Vosburg)
25
What is the prima facie for assault?
1. D Acts
2. Intending to cause in P apprehension of imminent battery (Context is key - Vetter V Morgan)
3. D's act causes P to reasonably apprehend such contact
26
What are the two gotchas for assault?
Imminence requirement (Booker V Silverthorne) and the conditional threat exception (also Booker V Silverthorne)
27
Is reasonable apprehension an objective or subjective standard?
Objective (Beach V Hancock)
Unless P knows that D has a special sensitivity and tries to exploit it, then it becomes a subjective test
28
What is the meaning of apprehension in assault?
You actually have to have perceived imminent battery, but you do not need to fear it. The ability to flee does not negate the assault (Vetter V Morgan)
Context is key
29
What is the strategy to suing based on harm resulting from P's apprehension of battery?
You can sue for assault and say the physical harm was a result of that or you can sue for battery which is a harder route and there's no real benefit to it.
30
What is the false imprisonment prima facie?
1) D acts
2) intending to confine P
3) d causes confinement
4) P is actually aware of the confinement (subjective)
31
What is the standard for confinement? cite case?
a reasonable person would not have know a safe means of escape (Fojtik V Charter Med Corp)
32
What is the standard for police FI?
Per Grant V Stop N Go, police can detain to investigate with a lower than probably cause standard, but only for a reasonable amount of time. Shop keepers have less time
33
What are the 5 types of consent and which are valid
1) Express consent (sign a waiver)
2) Implied by law consent (Emergency medical procedure)
3) Implied by Fact Consent (Koffman V Garrett)
4) Substitutionary Consent (someone else gives consent on your behalf)
5) Hypothetical Consent (not valid "should have consented")
34
What are 6 ways to invalidate consent
1) Scope/Specificity (Koffman V Garrett)
2) Capacity (youth, mental handicap)
3) Fraud
4) Duress/Coercion (no real choice...hazy)
5) Lack of informed consent (Largely V Rotham)
6) Inability to consent to illegal act (The Chopper hypo)
35
What happens if D mistakes consent?
If D made a good faith mistake about consent, then D is liable, even if the mistake was reasonable (unless P induced the mistake), but D might could argue implied consent by fact/law
36
Is there a duty to flee in assault? FI?
There is no duty to flee in assault, but there is in FI.
37
What is the baseline standard for self defense?
Self defense is warranted if D actually and reasonably believes it is necessary to injure another to avoid imminent injury to themselves.
38
Is reasonable belief for SD objective or subjective? Cite case
objective (Haeussler V Deloretto)
39
What is the scope of self defense coverage?
Valid SD protects victim from: 1) a reasonable mistake injuring an innocent person thinking they were the assailant 2) if a third party is harmed in the act of defending as long as there's no human shield 3) unforeseen consequences of the defense
40
What are the limits of self defense?
1) Force must be proportional to the perceived threat
2) Does not cover threats or use of deadly force in response to non-deadly force
3) Cannot intentionally endanger another person in defending
4) Doesn't apply of you create the situation where you need to defend
41
When do you have a duty to retreat?
The common law default is whenever you safely can if deadly force is the alternative. Inside the home, there is no duty to retreat even if the defense would require deadly force.
42
What is the definition of deadly force and when is it warranted?
Deadly force defined as force intended or calculated to cause death; only permitted in actual and reasonable perception of imminent death (no exceptions)
43
What level of force is allowed for defense of property? Cite case
Proportional non deadly force, and if thief is peaceably possessing the property, "lay gentle hands" force is permitted. Deadly force never allowed (Katko V Briney)
44
What are some arguments for/against the existence of IIED as a tort?
For: protects personal dignity like assault/battery/fi, but just when there is no touching or imminence.
Against: Emotional distress is part of life (toughen up), part of living to preserve freedom, hard to determine intent or measure injury
45
What is the prima facie for IIED?
1) D intentionally or recklessly causes sever emotional distress
2) by engaging in extreme and outrageous conduct
3) D is liable for emotional distress and any resulting harm
46
What does intentionally or recklessly mean for IIED?
intentionally is desire/purpose of knowledge with substantial certainty
Recklessly (alt right harassment suit) means acting knowing the risk and proceeding anyway
47
Is physical harm required for IIED? cite case
No, no need to present medical evidence of physical harm at trial (Littlefield V McGuffey) but you have to have some degree of lasting distress
48
Is extreme and outrageous for IIED a question of law or fact?
Question of law and judges keep juries on a short leash for this. Can't be only offensive, insulting, or careless. "Exceeds all bounds tolerated by civilized society"
49
What are some defenses to IIED
```
Consent (Hunt V State tried to do this)
Public figure (Hustler Magazine V Falwell)
Political speech not directed at a single person (Snyder v Phelps)
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50
What element of negligence do corporate D's want to win on?
Duty...otherwise, they are subject to additional suits
51
What is the baseline duty of care and give cite?
D owes a duty of care not to cause reasonably foreseeable harms by practicing ordinary care. Negative Duty baseline per Heaven V Pender
52
P must prove they are in the class of people the duty is designed to protect. Give Cite
Palsgraf
53
Who said duty is a statement of conclusion?
Dillon V Legg
54
What are some metrics for determining duty?
Precedent, foreseeability, custom, moral culpability, ability of D to eliminate harm relative to P (B>LP usually works well here but is usually reserved for standard of care)
Ability to Compensate (controversial Per Friendly V Moore conflict in Kinsman), Cost and availability of insurance, impose on party with stronger political voice (Dalury V SKI)
55
What is the old school rule for duty?
Rule of Privity (Winterbottom V Wright) was in place to encourage technological innovation even if that meant people get hurt occasionally
56
What was the first crack in weakening the Winterbottom V Wright duty standard
Things of Danger in Thomas V Winchester
57
What was the case that blew open the duty standard?
MacPherson V Bucik opened duty up to all reasonably foreseeable parties (car has multiple seats) and anything that could be dangerous if negligently made - uses the state's interest to protect life and limb
58
What is the difference in misfeasance and nonfeasance?
Misfeasance is doing the wrong thing or omitting a step in a larger act (general duty not to cause foreseeable harm applies
Nonfeasanceis doing nothing and there is generally no liability unless there is an affirmative duty
59
What are the 3 categories of affirmative duty?
1) You causes the need for rescue
2) You voluntarily undertook to rescue and D has relied on your attempt
3) Special relationship
60
If you have an affirmative duty, what are you expected to do and what is the liability if you don't
Have to make reasonable efforts to render aid (Taco Bell) and if you don't you are liable for the aggravation of the injury
61
What is the hard line case for no affirmative duty
Osterland V Hill - absolutely no duty to rescue
62
What is the moderate case for affirmative duty, what is the justification?
Taco Bell, The fact that they are on your property means you are related. The same policy justification that creates a duty to rescue someone choking on a Taco applies generally because it's not readily apparent if they're choking on a taco or not
63
What is the aggressive duty to rescue case and what are the factors affecting it?
Tarasoff, duty to warn if there is foreseeable injury and the parties are somehow related (plus factors are foreseeability, certainty of injury, closeness of connection, moral blame, societal consequence, availability of insurance, special relationship
64
What are the 3 categories for premises liability?
Invitee, Licensee, trespasser
65
What is an invitee and what is the duty owed. Cite case
Leffler V Sharp, someone who enters on an express/impled invitee for mutual advantage (usually business guests)
There is a duty to inspect and keep premises safe and warn of hidden dangers
66
What is a licensee and what duty is owed? Cite case
Leffler V Sharp, licensee is someone who enters with permission for their own enjoyment, duty to warn of hidden dangers, otherwise guest must take premises as they find them
67
What is a trespasser and what duty is owed to them? Cite case
Leffler V Sharp, trespasser is someone who enters without express/implied permission and the only duty is to not willfully or wantonly injure
68
What is the new age approach to premises liability?
Rowland V Christian which is based on the idea that all life is equally protected by a duty of reasonable care. No categories but consider factors
69
What are the factors used by Rowland V Christian to define the "Duty of Reasonable Care"?
1) Closeness of connection between D's premises and the injury
2) Moral blame of D's conduct
3) Policy Interest in preventing future harm
4) Cost of insurance
5) Certainty of Injury
6) Burden of imposing duty
70
What is the duty for economic loss? Cite case
Aikens V Debow - there is no duty for economic loss unless there is some amount of physical injury or a proven IIED claim
71
Are there any cracks for pure economic loss duty?
very limited. Only if very foreseeable and direct harm (Aikens mentioned a case about leaking toxic chemicals that shut down an office building)
72
Is the standard of care a question of fact or law?
Question of Law - shown when writing jury instructions
73
Is the reasonable person an objective or subjective standard? Cite case
Objective standard - Vaughan V Menlove
74
What is the baseline restatement version of ordinary care per the jury instructions?
Negligence means failure to use ordinary care. Ordinary care is defined by the reasonable person of average prudence. Negligence can be in doing or failing to do something. Consider the effect of the circumstances in determining ordinary care.
75
What are the 4 options for defining standard of care?
1) Ordinary Care
2) Professional Standard of Care (only useful if actually professional - Meyers V Heritage Enter Inc)
3) Statutes and Regulatory Requirements (Pingaro V Rossi)
4) Defendant's internal policies (Walter V Walmart)
5) Economic Efficiency (US V Carroll Towing)
76
What are 4 reasons to tailor the "ordinary care" standard to make it more subjective and less objective.
Physical Disability (Lower the standard to reasonable for someone with that disability)
Gender (only maybe in self defense and sexual harassment)
Children (standard adjusted per Victor V Hedges)
Experts (standard likely rises to match their expertise)
77
What is good and bad about using Custom to set the standard of care?
Good because:
1) provides legitimacy to the relevant community
2) community making the rule often has better information than the court
Bad because:
1) Custom can lag behind technology (TJ Hooper)
2) custom can be shaped to benefit one group at the expense of another
78
What is the standard for custom in medical malpractice?
Johnson ->Condra shift shows that experts can have their own personal practices impeach custom.
Trend towards using national custom rather than local custom because training and technology have standardized medicine (eliminates the conspiracy of silence)
79
What is the standard for custom in informing patients of risks?
In Largely V Rotham, the standard is shifting from "Reasonable Doctor" to "Reasonable Patient"
80
What is the case for standard of care in terms of economic efficiency? Why is economic efficiency useful?
Us V Carrol Towing. If B
81
What is a killer fact about using economic efficiency to define standard of care?
Strict liability could be the most efficient way to establish standard of care because it will encourage precisely the right amount of precautions because they are acting out of self-interest.
82
Can licensing failures be used to establish standard of care?
No, not for law, medicine, or driving
83
How do you write about breach?
It's 90% defining the standard of care and then 10% comparing the conduct to the standard of care.
84
What are two good cases for showing non-breach.
Campbell V Kovich, Adams V Bullock (You are not responsible for freak accidents if duty of care was met).
85
What are the elements of negligence per se?
1) Statute imposes a duty
2) D did breach the duty
3) P is a member of the class of people the statute was designed to protect (Victor V Hedges)
4) the injury that occurred was of the type that the statute was designed to protect against
5) No excuse for violation
86
Do you still have to prove causation for negligence per se?
Yes - Martin V Herzog
87
What does the statute do to help in negligence per se?
It is used to help establish duty and breach. If this is a state case and you are citing federal law, you still need to get the state to recognize the duty.
Doesn't get you out of any of the elements of negligence, but if there is no excuse, the judge can decide it without the jury
88
Is there such thing as contributory negligence per se?
Yes - Dalal V City of New York
89
What is Res Ipsa Loquitur? Give elements and signature case
1) Injury was of the kind that ordinarily occurs only with negligence
2) D was in exclusive control
3) P did not contribute
Byrne V Boudle
90
When can Res Ipsa apply in terms of medical malpractice? Cite case
When is is such an obvious error that even a lay jury could understand the facts and draw inferences (Kombat V St. Francis Hospital)
91
What are the 2 options for child standard of care?
1) Tender Years Doctrine (No liability if under 7)
2) 2nd Restatement's version "Reasonable child of similar age, intelligence, and experience"
Courts cut even more slack to kids when determining comparative fault
92
What is the standard for negligent supervision by parents?
1) The parent must have known or should have known tortious conduct would occur and 2) parents could have but failed to intervene
93
When is cause in fact an issue? Cite 2 cases
when there is uncertainty as to what happened/could have happened (Muckler V Buchl, Jones V LA Fitness) OR there is a <50% chance of causation (Falcon)
94
What are the 2 main tests for causation?
1) But for
2) Substantial factor (Ford V Boomer killed this) The standard for "would this cause by itself be sufficient" (Wannal V Honeywell)
95
What is the "loss of chance" theory and when does it apply?
If there is a <50% chance D caused the harm, but D did cause a "substantial reduction in the likelihood of survival" because this substantial reduction is a harm in itself
96
What is the traditional approach for actual causation?
If there is a <50% chance the negligent act caused the harm, there is no recovery
97
What are the easy cases for multiple cause?
Those where the D's are acting with common intent/purpose or collusion. Then there's joint and several liability
98
What is the modern test for multiple cause? Cite Case
If conduct is sufficient to have caused the harm, then that conduct is a cause (Ford V Boomer).
This is fair because all party's were negligent and their negligence was part of what obscured the cause
99
What is the difference in multiple causation and alternate causation?
In alternate causation, we are sure that one party id not the cause
100
What are the 4 options for alternate causation?
1) Burden shifting (Summers V Tile)
2) Joint Tortfeasors (acting in concert)
3) Enterprise Liability Option (only works if there are only a few players)
4) Market Share Liability (Sindell V Abbott Labs, limited to toxic torts)
101
What are the justifications for alternate causation? After all, you are holding a non-causal party liable?
1) They both did not meet the standard of care
2) they will still have a chance to vindicate themselves in a burden shifting framework
3) They have better access to the information
4) their negligence is part of the reason causation is not clear
102
What are the two different methods of imposing proximate cause to limit liability (per the two opinions in Palsgraf)
Cardozo: "Negligence in the air" is not enough, you need to owe a duty to P
Andrews: Proximate cause is the exercise of determining how far out you want to draw the line (like ripples in a pond), but we have "hints" like
103
What are the 5 theories for proximate cause? Cite cases
1) Foreseeability (Palsgraf, Kinsman, Wagon Mound)
2) Directness (Polemis, Wagon Mound rejected this as unsatisfying)
3) Is the injury born out of the risk that made the conduct negligent? (Union Pump)
4) Responsible until the emergency state created by the act subsides - Danger invites rescue (Union Pump)
5) One Leap Rule (the lousy rule of Ryan)
104
What is an important limitation on proximate cause liability
Failure to take preventative steps against negligent acts of others is not usually negligent (Kinsman) (this would restrain freedom too much) but you do have to take steps required by custom (Carroll Towing)
105
What are the 3 conditions necessary to argue intervening cause
1) 2 negligent actors not working in concert
2) both actions are necessary to cause the harm
3) the initial negligence is remote in time and space as to break the causal chain and render the acts independent
106
For purposes of intervening cause, what is needed for acts to be sufficiently remote and "break the causal chain"?
The harm should not be a natural or probably cause of the original negligence
The intervening cause must create a "new power fo doing mischief" (Clark V DuPont Powder)
107
What is the traditional rule for liability on intervening criminal misconduct?
No liability because criminal acts are not foreseeable (Port Authority of NY & NJ V Arcadian, Fast Eddie), but you can still be liable for intervening criminal conduct if that was what made the conduct negligent
108
What are some reasons to limit recovery for NIED?
1) Potential fraudulent claims
2) Potential boundless and disproportionate liability
3) Freedom to act in ways that might hurt peoples feelings
4) Allowing for recovery for emotional damage saps the resources for those with physical injury (Dissent in Freeman Ayers)
109
What is the hard line no recovery case for NIED?
Wymann V Levitt
110
What can gave us the "Zone of Danger" Rule, and where else was it applied?
Robb V Pennsylvania RR and Conrail V Gottshall (there are interesting things going on in the difference between the office worker and the rr worker)
111
What are the 2 categories of emotional harm Per Norfolk V Freeman Ayers
1) Pure Emotional Harm (have heightened standard)
| 2) Physical Injury with parasitic emotional harm (just tack it on) as was the case in Norfolk
112
Bystander NIED Hardline case?
Waube V Warrington Says you have to be in the zone of danger yourself. This expanded by foreseeability
113
What is the intermediate NIED case?
After the stretch from Waube V Warrington via foreseeability goes too far, Dillon V Legg who decided not to draw any lines (lines are arbitrary) and just give guideposts: use P's presence at the scene, relationship to victim, and the immediacy between show and observance
114
What is the modern case for NIED?
Thing V La Chusa - we have to draw lines for the sake of consistency. Basically turned Dillon V Legg's guideposts into requirements
115
Is exacerbating the extent of the injury (ie by not wearing a seatbelt) enough to bar recovery?
No, because the negligence by D caused the harm, P's negligence just made it worse and P could be liable for the exacerbation
116
What are the pros/cons to contributory negligence?
Pros: more predictable because it's a binary question and it also allows more cases to be decided at SJ
Cons: Too harsh in eliminating recovery, reduced deterrence, was not great in encouraging the efficient level of precaution
117
What are some of the transitional tools used to make the jump from contributory negligence to comparative fault?
1) Asymmetry (make it harder for D to prove P's negligence)
2) Last Clear Chance (If D had the last clear chance to prevent injury and missed it via negligence, D is liable - voided because temporality is not always present)
3) Jury Nullification
118
What is the baseline test for assumption of risk?
What is the hardline and softening cases
Did P KNOWINGLY and VOLUNTARILY take on the risk (the same issues with consent apply here)
Jones V Dressel is hardline, Dalury V Ski is softening
119
Are the "knowing" and "voluntary" elements of assumption of risk objective or subjective
subjective
120
What are some of the factors that can override an express assumption of risk contract?
1) Bargaining/essential public service (Jones V Dressel)
2) Would allowing such broad waivers result in sub-optimal safety precautions?
3) 2nd restatement asks if there is a social interest with which it interferes
121
What are the two cases for implied assumption of risk?
Smollett V Skayting and Murphy V Steeplechase Amusement Co
Both could bee seen as a "No Duty" cases
122
What is primary assumption and secondary of risk?
Primary assumption of risk is when D does not owe a duty to P because P was fully aware of the risks - eliminates duty
Secondary assumption of risk is when D does have a duty of care and somehow breached it
123
What is the baseline standard for trespass? Cite case
intentional and physical intrusion upon land or property - strict liability (it doesn't matter if you acted unreasonably or in good faith (Burns V Cavalea)
124
What is the baseline standard for private nuisance?
D's actions impose a substantial/unreasonable interference with the use/enjoyment of land (Strict liability)
Still have to prove causation and proximate cause
125
What factors determine if a nuisance exists? cite 2x cases
```
CONTEXT Matters (Sturges V Bridgman)
5 factors per Penland
1) Location of the nuisance
2) character of the neighboring land
3) nature of the behavior
4) Frequency of intrusion
5) effect on P's health and property
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126
What is the baseline standard for Public nuisance?
D's actions impose a substantial/unreasonable burden on a right common to the public
127
What is considered a right common to the public for purposes of public nuisance?
Common areas, navigable waters, highways, the environment (per Georgia V TN Copper)
Modern expansions are tobacco, asbestos, lead paint, guns, climate change, and opioids
128
What are the pros of choosing damages as a remedy? Injunctions?
Damages - Courts might not want to intrude on the legislature's space or give one party incredible leverage in negotiations
Injunctions - can force legislative action
Can put the burden on the most powerful party because they can force legislative action
129
What are some reasons to impose strict liability?
1) Negligence does not provide effective deterrence (Carefulness cannot reduce injury so B
130
What are some reasons NOT to impose strict liability?
1) the party you are imposing strict liability on is not in a position to deter injury
2) The risk can actually be deterred by careful conduct, so negligence would work
3) Strict liability might land at an efficient outcome that is nonetheless not socially desirable
131
What are some of the key points to define strict liability?
1) The factors from the restatement
2) Would it be impossible for P to meed the burden of proof on negligence (maybe evidence is destroyed)
3) Is there a statute that indicates intent to impose strict liability
132
Does a supplier's negligence help D in a strict liability case?
No - the idea is that you should take precautions against the negligence of others in ultra hazardous situations. Plus any negligence would be foreseeable
