Final Study Flashcards

Question

Discuss Duty of Reasonably Prudent Person

Answer 1

A person of ordinary intelligence, perception, and memory with the physical characteristics, abilities, and disabilities of the actor, and any relevant specialized knowledge, skills, or experience.

Answer 2

If the burden for the party of avoiding a risk is less than the risk itself then a party is negligent for not undertaking the burden If B

Answer 3

RPP- only evidence of ordinary care, it is not alone sufficient to establish standard Professional- Professional standards are based off of the customs of those professionals thus, customary practice is proof by itself of the duty, it is the standard.

Answer 4

If the customary practice is itself negligent, then following the custom would also be negligent. If the customary practice is extremely careful, more than RPP would require, then no negligence for not following the practice.

Answer 5

Subjective Standard Reasonable child of similar age, intelligence, physical traits, maturity, experience Children performing certain adult activities will be held to the adult standard Some states say children below a certain age cannot be negligent at all

Answer 6

Two Types: Professional Care – what would an ordinary doctor disclose Canterbury Standard- what would a reasonable patient want to know Causation: P must make objective showing that a reasonable patient, in P’s position would have changed their mind about procedure had they been informed, AND subjective showing that P would have changed mind had P been informed Doctor’s also have a duty to disclose any profit or research interests they may have in a treatment

Answer 7

Professionals when acting within their role are held to the standard of the ordinary member of their profession Examples: Doctors, Lawyers, Accountants, Pilots (usually requires licensure and a governing body)

Answer 8

Duty Breach

Answer 9

Inherent difficulty in proving causation New Duty Too strict of liability Disproportionate liability Too vague of a Duty

Answer 10

Majority: Burden shifts to defendant, may use an excuse: Incapacity or reasonable inability to comply Reasonably lack of knowledge of violation (ignorance of facts not of the law) emergency or greater harm from compliance than violation Minority: Burden shifts to defendant to show generally that they exercised reasonable care Even smaller minority: NPS is only evidence of regular Negligence

Answer 11

Accident is of the type that would not occur unless someone was negligent Defendant exercised substantial control over whatever cause the accident Accident was more likely than not caused by defendant's negligence

Answer 12

Breach Causation-in-fact (still need to consider proximate cause, RIL may or may not be enough)

Answer 13

but for the defendant's tort, the damage would not have occurred consider converse: damage would have occurred regardless of defendant's actions

Answer 14

when two or more causes are equally sufficient, therefore none are a but for cause All causes will be equally liable Example from converging fires

Answer 15

Two gunman fire at the same time causing injury Unable to determine which action caused the damage, all liable Burden shifts to defendants to prove they were not the cause

Answer 16

Separate acts of negligence combine to produce a single harm, all are but for causes all parties liable even though each act alone would not have caused damage

Answer 17

Coincidental causes are but for causes however will not be enough to establish Cause-in-Fact For Causation-in-Fact a but for cause must have some sort of causal link, it must make the injury more likely to occur, not only a wrong place wrong time situation

Answer 18

Market Share Liability Where the cause cannot be determined because of multiple manufacturers, liability will be assigned by percentage of market share Example: Pills

Answer 19

How much a court will hold a defendant liable for damages Based on foreseeability of the injury from the act

Answer 20

Scope of the Risk (was this the type of damage expected, not specifically how it happened) Positional Distance (how close to the event was the plaintiff) Line Drawing (where will the court cut off liability)

Answer 21

Extent of the injury doesn't need to be foreseeable, only the type of injury

Answer 22

A cause that occurs chronologically after the defendants negligent act

Answer 23

Sliding scale analysis The more independent an action, the more likely to be superseding the less foreseeable an action, the more likely to be superseding Criminal acts and intentional torts usually ARE (not always) superseding causes Usually NOT superseding causes: malpractice, a victim attempting to escape, a reasonable rescuer attempting to rescue, an subsequent injury made worse by a previous one( original tortfeasor would be liable for first injury AND the second, but would likely share liability on the second injury if from a tort)

Answer 24

An intervening cause that is of such a kind that it will entirely cut off the liability of the first tortfeasor.

Answer 25

Social hosts - not proximate cause to victims of drunk driving by public policy Defendants cannot be proximate cause to not yet conceived children

Answer 26

Minority View defense to negligence plaintiff cannot recover if they were also negligent Exceptions Last Clear Chance if Defendant had the last clear chance to sop the injury plaintiff can still recover Remote contributory Negligence - treats plaintiff more forgivingly when determining proximate cause if their own negligence was minor

Answer 27

Pure Comparative Negligence- some states- Pure percentage of fault, plaintiff can recover even if they are 99% at fault Modified Comparative Negligence- most States - If plaintiff is 50% or more responsible they cannot recovery. Some states require more than 50% to not recover (plaintiff at exactly 50% could still recover for the other half)

Answer 28

Plaintiff's must reasonably mitigate damages, Defendants will not be held liable for excessive damages that plaintiff failed to stop.

Answer 29

If plaintiff contracted not to hold defendant responsible, contract will be enforced over tort, UNLESS: contract goes against public policy defendant's negligence was intentional or wanton injury was medical malpractice contract waived application of a safety statute

Answer 30

plaintiff must have actual knowledge of risk plaintiff must appreciate the magnitude of the risk must voluntarily encounter the risk (most states have added this topic into a comparative negligence analysis)

Answer 31

Procedural rules that limits the time plaintiff has to file a lawsuit Time starts when Plaintiff has actual or constructive knowledge of damage Continuing tort doctrine allows repetitive torts to be treated as one long tort (this would delay the time when SOL clock starts)

Answer 32

Firm outer bound for the timing of filing a suit. Clock starts ticking at the time tort was committed, does not consider when tortious act was discovered

Answer 33

Government may waive its own immunity, when it waives its immunity it usually grants immunity to its employees Discretionary duties: usually maintain immunity (was there a decision making process? such as a mayor deciding a budget which leads to a poorly repaired road) Proprietary functions: Governments are generally not immune when acting like a private business on their own behalf and/or for the benefit of their own citizens. When injuries arose from a proprietary function, municipalities can often be held liable like a private individual for negligence Ministerial duties: usually not immune (was there an SOP? If there is something an employee is supposed to do and does not do?)

Answer 34

Defendants acting in concert vicarious liability indivisible harms (no majority rule: some states keep some do not)

Answer 35

Plaintiff has received full compensation from at least one tortfeasor. That tortfeasor may then seek contribution from other tortfeasors

Answer 36

Pro Tanto - Dollar for dollar, whatever plaintiff received is subtracted from total damages, risk is on defendants Pro Rata - subtract by percentage, risk is on plaintiff example: P sues A and B. A settles for 20k. At trial A is found to be 10% liable. B is 90% liable. Total Damages 100K. Pro Tanto - 100k - 20k = 80k, B will pay 80K. "A" assumed extra risk by settling and ended up paying more, this inadvertently benefited B. P still gets the full amount. Pro Rata - 100k - (10%*100k) = 90K. B will pay 90k. P assumed the risk here, because if A had made a better deal P could get less than full damages. In this particular case his risk paid off because he will get a total of 110k for a 100k injury.

Answer 37

A defendant who is J&S liable who paid more than their fair share can seek contribution against other tortfeasors who did not pay their fair share It is not required that plaintiff sued the other tortfeasors, only that they could have been sued good faith settlement will render a defendant immune from contribution intentional tortfeasors cannot seek contribution from each other.

Answer 38

A breached contractual duty is owed to those who might foreseeably be injured by negligent affirmative acts exception for lawyers Exception to the lawyer exception from third party beneficiaries misfeasance- performing the contract improperly or by fraud CAN be addressed by tort law (nonfeasance cannot)

Answer 39

Business towards their customers bosses towards their helpless employees the person creating the harm (even if not negligently) person controlling the instrumentality of the harm a person who has undertaken a rescue

Answer 40

Parents should protect their children employers should protect their employees Psychiatrists should protect the public FROM their patient Employers should protect the public FROM their employees

Answer 41

emotional reaction must manifest with DOPE (Definite and Objective Physical Effects) a normal person would also have DOPE IF from witnessing an injury to another then two options, No majority: 1) Zone of Danger 2) Close Family Member: must be a close family member, witness contemporaneously the actual impact, suffer more distress than a typical person.

Answer 42

A viable fetus can recover for any injuries suffered in utero if born alive. If not born alive the fetus can recover for damage sustained post viability. (generally would have been born if not for the tort) The parents can recover for their own damages in either case (emotional, physical, etc)

Answer 43

Child born but for Defendant's negligence, parents would have aborted Damages include: emotional injury, extra cost of child-rearing from defect, could be entire cost of child-rearing in some cases Subtract from damages the "plusses" of parenting

Answer 44

Lawsuit from the point of view of the person who was born, who claims should not have been born (would have been aborted if not for some act of negligence) Damages limited to medical expenses from defect Courts do not wish to compare existence to non-existence, they believe existence is preferred and in any event probably impossible to quantify

Answer 45

Usually arises from informed consent violations or botched sterilizations Damages include cost of pain and suffering, pregnancy and labor costs, or cost of abortion Some states allow damage for child rearing costs when the reason for not wanting the child was economic

Answer 46

Goal is to make the plaintiff whole again Economic - (medical expenses, lost wages, loss of services, property damage) Non-economic - (Pain and suffering, emotional distress, disfigurement)

Answer 47

Usually require expert testimony Usually discounted by some percent (0-3%) year over year Non-economic damages are usually not discounted because they are somewhat arbitrary to begin with

Answer 48

Purpose to punish defendant and deter other defendants from similar actions Punitive damages are never required, they are discretionary Usually from intentional torts, for negligence usually have to be wonton and willful, usually proven by clear and convincing evidence Punitive Damages should be proportional to Compensatory damages, Courts have drawn the line somewhere around 5-10X as being too much of a difference. Wealth is relevant in punitive damages (as opposed to compensatory damages) a court will allow larger punitive damages against a wealthier defendant Insurance sometimes is not allowed to cover punitive damages (no majority)

Answer 49

Instead of just getting a new trial, a remittitur allows an option for a reasonable reduction of damages. Used when there is not really a question of fault, only the damages seem unreasonable.

Answer 50

When a tort results in death, it will add damages that can be brought by the decedent's estate OR next of kin. Estate - funeral costs, lost wages Next of Kin- funeral costs, loss of support and services, emotional damages (loss of consortium)

Answer 51

Survival allows a plaintiff to sue on anything they could have sued on while alive even after they died. This could be a suit that was pending at the time, or a suit based on events that led up to their death.

Answer 52

Trees, where you have reason to think they could fall, then practice ordinary care If you created the harm (did you install a nest of rabid squirrels on your land that likes to travel the perimeter picking off passersby?) (If the squirrels moved onto your land on their own then no duty)

Answer 53

Invitee: usually business related, owed a duty of reasonable care Examples: customers, people hired to do a job (plumber, electrician, contractor), or not hired but expected like a meter reader Licensee: usually not business related and on the property for their own purpose but best to list examples for clarity: social guests, solicitors, and anyone who is not an invitee Duty: to not be willful or wanton, to warn of hidden dangers that are unknown to licensee but ACTUALLY known to defendant When conducting active operation then a duty of reasonable care

Answer 54

No general duty to trespassers IF they are known or anticipated then duty varies from reasonable care to not wantonly injure depending on jurisdiction (no majority) When conducting active operation there is a duty of reasonably care to ACTUALLY known trespassers

Answer 55

Must be an artificial Danger (the thing doing the attracting and the thing causing the danger need not be the same thing) Defendant has actual or constructive knowledge that children are likely to be attracted AND that there is an unreasonable risk of death or serious bodily harm to children Child must be unaware of the hazard or level of risk because of their youth IF above three are met, then reasonable care standard is applied

Answer 56

1. Undisclosed dangerous conditions known to lessor and unknown to lessee 2. Conditions dangerous to persons outside the premises 3. Public Areas (duty is only prior to transfer of possession) (Lobby, Parking Lot) 4. Common Areas Shared by Tenants (continuing duty) 5. Where lessor contracts to repair (and fails to repair which causes the injury) 6. Negligence by lessor in making repairs

Answer 57

Assuming no transaction costs, the same final result will occur regardless of the initial allocation of rights/duties/liabilities Considering transaction costs, it makes sense to impose liability on the side that has the lower transaction costs.

Answer 58

Respondeat Superior- (Employers) Non Delegable Duties (Construction, repairs, inherently dangerous actives, crimes) Joint Enterprise Bailments (Cars)

Answer 59

Frolic- occurs during working hours but outside the scope of employment Detour - minor detour that could be expected within the scope of employment (like stopping at a gas station while on a work trip)

Answer 60

Animals Abnormally Dangerous activities Products Liability

Answer 61

Owners of wild animals are strictly liable for their animals wild activities (injury must be related to the wild nature of the animal) Owners strictly liable for their domestic animals if there is knowledge of their destructive tendancies

Answer 62

it determines Abnormally Dangerous Activities Consider Risk and magnitude of harm, location, commonness, value to the community, whether there would be serious risk of harm even after the exercise of reasonable care.

Answer 63

When serious damage would occur even with the exercise of reasonable care then the negligence standard is not adequate, the state has two options: Ban the activity Impose strict liability This option allows a defendant to decide if the activity is worth it, but guarantees compensation for victims

Answer 64

Manufacturing defects Design Defects Inadequate warning Warranty

Answer 65

Foreseeable risk of harm that would be avoid by adequate warning Manufacturer knew or should have known of risks that injured plaintiff NOT required when danger is obvious

Answer 66

Explains the harm Explains how to avoid the harm Conspicuous

Answer 67

Plaintiff must show injury would have been avoided if there was an adequate warning Defendant might argue that even if there was an adequate warning plaintiff would not have read it

Answer 68

Risk Utility analysis (majority rule)- essentially a learned hand analysis of the product Consumer expectation test- consumer has a reasonable expectation about the product that the product fails to meet If the design fails the test it establishes Breach

Answer 69

usefulness of the product safety features of the product are the substitute products is there an ability to eliminate the risk for not too much money what is the user's ability to avoid the risk is the risk public knowledge or are their warning available can the manufacturer effectively absorb the liability

Answer 70

1. The misuse was not reasonably foreseeable (using a lawnmower to trim the hedges) 2. Misuse operated as a superseding cause 3. Misuse can be used to show comparative negligence

Answer 71

All sellers in the chain are equally liable for products they sell, however they can generally seek indemnity from those higher up the chain some jurisdictions cut off liability for sellers of used goods No strict liability if the seller of the products was primarily providing a service, (service might involve installing a faulty product) The service provider may still be liable under regular negligence

Answer 72

All sellers in the chain are equally liable for products they sell, however they can generally seek indemnity from those higher up the chain some jurisdictions cut off liability for sellers of used goods No strict liability if the seller of the products was primarily providing a service, (service might involve installing a faulty product) The service provider may still be liable under regular negligence

Answer 73

Applies when there is vicarious liability from: Respondeat superior Non-delegable duties Joint enterprises NOT from Cars

Answer 74

Defective condition unreasonably dangerous to defendant product expected to and did reach consumer without substantial change

Final Study Flashcards

(98 cards)