Highlights Flashcards

Question

Foreseeability in the Elements

Answer 1

- Duty: Is the P in the GENERAL CATEGORY to which the harm is foreseeable? Is the harm in the GENERAL CATEGORY foreseeable from the action? - Breach: Would a reasonably prudent person FORESEE that THIS CARELESS ACT could injure someone to whom you had a duty? - Scope: Does this particular injury fall within the SCOPE OF INJURIES that a reasonably prudent person should have FORESEEN? Was this specific P foreseeable or was it too remote or freakish?

Answer 2

- Survival suit: suit by deceased's estate for loss to the deceased o Also covers suit against estate of Defendants - Wrongful death: Suit brought by relatives of the deceased for the damages caused by the death

Answer 3

Difference between action and non-action: Did your conduct create risk of harm? o Driving and forget to stop: this is an action even though the breach is specifically not acting o Sitting on the beach and not helping a drowning child: nonaction o Difference is whether or not YOU created the risk

Answer 4

There may be a legal obligation to take affirmative steps to rescue a person who is helpless and in a situation of peril when the peril was caused by an instrumentality in control of D.

Answer 5

Where a person chooses to give aid, duty arises to - avoid putting the victim in a worse position by harming victim directly, - preventing aid from another source, or - inducing the victim to rely detrimentally on D's aid.

Answer 6

- Parents and children - Landowners - Public agency’s duty - Tarasoff

Answer 7

parents are not under the common law automatically liable for their children's torts, although some states have imposed vicarious liability statutes - can be held in negligent supervision Needs: - Must know that child has a habit engaging in specific conduct - Must have notice - Must have opportunity to intervene

Answer 8

Once a therapist determines, or, under applicable professional standards should have determined, that a patient poses a serious risk of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. If a therapist (maybe beyond) - Has a special relationship with perpetrator or foreseeable victim - Determined/should have determined that perpetrator is a danger to others - Foreseeable victim; possibilities ▪ Clearly identifiable (Thompson) ▪ Just foreseeable (cansler) Then: duty or reasonable care or duty to warn Limitations: - Statute in CA limited to explicit threats and need to warn - Most courts use should have determined HOWEVER, Tarasoff duty has only been imposed where the person actually determined Extensions - Dramshop Rule - grandparents/school psych/residential institutions? Lawyers?

Answer 9

A social guest who has been invited by a landowner is treated as an invitee; owes his guests the duty to exercise reasonable care for their protection: must be an invitee - Must take reasonable precautions to protect from criminal attacks - Having a duty of care usually does not include a duty to protect someone from crime Landowner may have duty to protect invitees from criminal acts of a third party as long as they show enhanced foreseeability through one of the tests: 4 approaches - Specific harm test (knew specific harm was occurring or about to occur (minority)) - Prior similar incidents test (# incidents, proximity, similarity) - Totality of circumstances (nature, condition, location, prior incid) - Balancing Test (court balances the degree of foreseeability of harm against the burden of the duty to be imposed) (CA)

Answer 10

Generally no duty ``` When public agency involved, factors include: - the extent of the agency's powers, - the role imposed upon it by law, and - the limitations of budget ``` There can be a duty when: (narrowly applied) - a special relationship - promise (assumption of duty) and victim’s justifiable reliance on promise - creating the risk - starting to aid Policy - Duty to warn everyone = too much tort - Limited resources - Take discretion out of cops Maybe governmental immunity

Answer 11

Usually, no duty if only harm inflicted is emotional Policy Reasons: - Want to avoid limitless liability - Some emotional harm is part of living; hard to distinguish between regular emotional harm and compensable harm - Proof problem; easier to fake emotional harm - Worried about flooding courts with cases Criteria for imposing duty/exception - Defined, limited group of Ps - Credible claim in circumstances - Strong justice reasons for giving compensations Exceptions - Fear of physical harm + near miss (impact rule, or zone of physical danger - Bystander recovery + If principal has claim + show duty to bystander (and damages) - Zone of Danger - relative can recover if within zone (significant minority) - Dillon - Duty if injury reasonably foreseeable (nearness, direct sensory, relationship, case by case) - Thing - duty if, and only if, P + Closely related to victim + Present at scene and aware of injury + Suffers severe emotional distress that is not an abnormal response to circumstances

Answer 12

when caused by knowledge of 3d person’s injury, is recoverable in some cases that meet the standards. Limited to those who experience the greatest emotional distress so that the liability bears a reasonable relationship to the culpability of the negligent D

Answer 13

- Thing - duty if, and only if, P + Closely related to victim + Present at scene and aware of injury + Suffers severe emotional distress that is not an abnormal response to circumstances

Answer 14

- Physical manifestations (not CA tho) - Special cases improper handling of relative's corps mistakenly informing P that a relative died CA has allowed recovery where P is a "direct victim"

Answer 15

If ACTING, then general duty principl applies If NON-ACTING, trichotomy/rowland (when there's a dangerous condition) Invitee - consent of owner + business invite - Public building - Owed duty of due care, go straight to breach Licensee - social guest - Owed duty to warn against/fixing known hidden (non-obvious) traps. And no willful/wanton injury Trespasser - No consent - Unanticipated - owed duty to no willful/wanton injury - Anticipated - duty to warn/fix artificial hidden traps known to owner, AND no willful/wanton injury. Child Trespasser - Attractive Nuisance - Artificial condition - Hazardous - Unfenced - Unhidden - Attract child on land

Answer 16

Whether the person acted as a reasonable person in the circumstances; although the status of the injured person may be relevant, it is not determinative of the duty owed. Basically a foreseeability test Factors - Foreseeability of harm to P - Degree of certainty P was injured - Closeness of connection b/w conduct and injury - Moral blame of D - Burden to D - Consequences to community - Availability, cost, and prevalence of insurance

Answer 17

Doctors' negligence led to birth of healthy child - Alternative: lack of conception usually Policy reasons - Financial concerns with having unwanted child - Damages difficult because may be unclear Damages: - Majority: medical costs for pregnancy - Minority: costs for raising child

Answer 18

Doctors' negligence led to birth of disabled child - Alternative: abortion - Disability has to be more than regular disease such as asthma - Most courts do award compensation for this one ▪ Because it's malpractice ▪ Damages are usually pretty clear (cost of raising disabled child)

Answer 19

child sues for being born with disability, alleging suffering - Alternative: not being born (abortion) - Issue: Alternative is not being born, which is unquantifiable - Damages no general damages, but maybe extraordinary damages for medical expenses related to hereditary ailment

Answer 20

Only harm caused is economic in these cases (not including actual injury) Generally there is not duty when the only loss is economic* Exceptions - Accountant liability - Special relationship Balancing test: - Hold professionals liable for negligence Vs. prevent extensive liability for errors

Answer 21

NARROW and requires a special relationship Criteria - Extent to which the transaction was intended to affect the P - Foreseeability of harm to the P - Degree of certainty that the P suffered injury - Closeness of connection between D's conduct and the injury suffered - Moral blame attached to the D's conduct - Policy of preventing future harm Criticisms of negligent interference with prospective economic advantage - Possible excessive liability - Creation of undue burden on freedom of action - Fraudulent or collusive claims - Speculative nature of damages

Answer 22

- RP test - R2d balancing approach - Hand Formula Exceptions - Physical disabilities - Negligence per se - Professional negligence - Child standard of care

Answer 23

In light of foreseeable risks, did D (or P in contributory negligence) behave as a reasonably prudent person under these circumstances? R2d Balancing - conduct is negligent if its disadvantages outweigh its advantages Exceptions - Physical disabilities (RP w/ similar dis) - Negligence per se - Professional negligence - Child standard of care Non-exceptions - Emergency (RP in similar emergency) - Mental disability is NOT an option

Answer 24

``` Burden < (Probability * Loss): pretty much a cost benefit analysis - Probability of the harm - L = Gravity of resulting injury/harm - Burden of adequate precautions Pick likely, strongest breaches Ideal Precaution - Feasible - No impairment of utility of activity - Cheap - Safer (effective) Burden of precaution: - Costs - Unintended consequences - Reduced Utility ``` Drawbacks of hand formula - We're using somewhat arbitrary valuations - Difficult to measure loss: Valuations of life is different to different people - Making decisions that efficiency is more important than life in some cases

Answer 25

Child standard of care: reasonable child of similar age, maturity, and experience Special child standard applies to - States without age limits, minors up to 18 - Children above age limit, until 18 Some states exempt young children from liability in negligence ▪ Restatements: a child less than 5 is incapable of negligence Policy - less developed, so fairness - temporary break - learn from mistakes - social investment - lack of experience - kid activities generally low risk, low harm Exceptions - Adult activity - activity normally undertaken only by adults for which adult qualifications are required - Inherently dangerous activities (to others)

Answer 26

Test for physical disabilities: reasonable man with similar disability - if took precaution, then no negligence (taking req meds) Test for mental disabilities - In general and most of the time: Insanity is not a defense to negligence - Policy: between 2 innocents, the one that caused the harm should pay ▪ could lead to false pleads of insanity ▪ induce family members to act Exception: when someone is suddenly overcome with an unknown disability (heart attack) - affects ability to appreciate OR - it must affect his ability to act like RP - AND - absence of notice or forewarning to victim

Answer 27

- lawyers, doctors, accountants, maybe architects In professional negligence, standard is custom - 25% is enough to establish a respectable minority and counts as custom - Custom is established by expert testimony ▪ Exception for common knowledge Relevant expert tests - different jurisdictions ▪ Practice in a "same or similar locality" ▪ Practice in state ▪ National standard ``` Policy for custom - External professional standards - Trust - Self-policing groups (doctors have to take new exams all the time) and self-regulating - Moral mission with ethical guidance - Elitist profession - Ethical Duty: We expect the people to have standard that go beyond making profit (including ethics) ```

Answer 28

Restatements: A physician must act with the degree of "skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities" - Specialists can be held to higher standard of skill than non-specialists - Standard of care: whether physician followed custom? - They can exercise judgment as long as they followed one of accepted alternatives in the field OR there are several acceptable diagnoses Prove with - expert testimony - OR common knowledge

Answer 29

Prove with - expert testimony (same specialty, local, state, country) - OR common knowledge Different field expert - needs to be substantially familiar with Standard of Care, so informed - SoC is substantially identical for both specialties Find Standard of Care - Textbooks, teachers - Professional publications - Testimony - Empirical surveys - Internal rules/regs

Answer 30

the patient did consent but the consent was flawed because the physician violated duty to give adequate information - if no consent at all, then battery ▪ failure to inform a patient of material risks ▪ When an undisclosed potential complication results the courts are divided on whether its negligence or battery - prevailing view is negligence Should disclose - Diagnosis, nature and purpose of treatment, risks, probability of success, feasible treatment alternatives, prognosis 2 Breach standards - Physician based standard (requires expert testimony) - Patient based standard (would reasonable patient find info material (important in making decision) Causation Standards - Objective (majority) - would a reasonable patient in same circumstances undergo the treatment if give the info - Subjective Standard - would the P undergo the treatment if given info Exceptions/Defenses - Emergency - if unconscious and emergency, then do not need consent - Therapeutic privilege (controversial) - sometimes physician has judgment to omit information that can cause patient harm or deteriorate their condition - Minors and mentally incomp - still requires consent from guardian or parent

Answer 31

courts can adopt the standard of conduct form a criminal statute or regulation. Jury doesn't determine the standard of conduct by what a reasonable person would do; instead the conduct required by the law is used by the judge to determine the proper conduct that the defendant should have followed (question of LAW) When interpreting statutes - Plain language - context - legislative intent - purpose Requires - P to be in protected group - Harm was type statute was designed to protect If statute applies, then replaces standard of care for reasonableness - then jury decides if statute violated Excuses - Incapacity - cannot comply - No knowledge of occasion for compliance (no see stop sign) - Inability after reasonable diligence to comply - Emergency - Compliance involves greater risk

Answer 32

But for substantial factor ▪ Need to show that defendant's negligence was a substantial factor in bringing about the harm ▪ Courts use this test when something is linking D to the harm but the but for test does not work ▪ Use when you have concurrent causes, such as 2 fires that destroy house

Answer 33

If gratuitously or for consideration help another, can be liable for physical harm resulting from failure to exercise reasonable care in aid, if - failure increased the risk of harm - the harm is suffered because of the other's reliance upon aid Approaches to Loss of Chance - Increased Harm Approach ▪ Increased risk of injury or death is enough ▪ Substantial factor - Loss of Opportunity Approach (redefining injury) ▪ Loss of chance of survival is the injury ▪ But for - Traditional- no causation and P loses Normally less than 50% survival then would mean lose case - 50% is arbitrary If under 50%, Can get the difference between survival rate now and before (here he only gets 14%)

Answer 34

We don’t know who did it but there’s a small number of potential suspects that all breached. Restatement: - When the plaintiffs – ▪ Sues all of multiple actors. ▪ Proves that each engaged in tortious conduct. ▪ That exposed plaintiff to risk of harm. ▪ And tortious conduct harmed plaintiff, ▪ But plaintiff cannot reasonably prove which actor (s) caused the harm, - Then the Burden of proof SHIFTS to defendants. Requirements - Discrete and identifiable defendants - All D's are wrongdoers - Wrongdoing caused harm

Answer 35

We don’t know who did it, but similar products/instrumentality of harm and identifiable potential suspects. - Most states have not adopted this - Difficult to measure market share - Requires that enough D manufacturers be joined so that a substantial share of the market is represented - Neither side knows who actually caused the harm Extension of the Summers Doctrine: for multiple D’s not knowing which D caused the harm: each D is liable for the portion of the judgment represented by its share of the market unless it demonstrates that it could not have been responsible.

Answer 36

Requires scientific expert testimony Causation problems - Uncertainty of science - Latency (doubts of causation, SoL, time of exposure or discovery?) - Confounding factors (multiple factors) - Future harm (courts hesitant cuz not yet) Cost of medical surveillance can be compensated if reliable expert testimony shows increase change of disease Policy - Want people to bring these suits - But also not too much litigation

Answer 37

Ordinarily used where the P is unable to make specific allegations as to how D was negligent; creates a prima facie case of negligence - Only use when there is no identifiable breach - Allows a jury to infer from circumstantial evidence that the D was negligent (They infer breach and causation) Transfers burden of proof - Breach burden of proof: More likely than not the action was unreasonable - Plaintiff has the burden of proof, but if they meet elements of res ipsa they can tell the story and let the jury decide infer whether there was a breach or causation ▪ D can then disprove elements of res ipsa, suggest another inference, or prove reasonableness Krebs Elements - Cause known - Instrumentality under exclusive control (broadly defined - right to control works) + modernly, just need 1. negligence more likely than not attributed to D, and 2. P was not at fault - Instrumentality unlikely to cause harm without negligence on part of the controller Modern Approach - Evidence supports inference that someone was negligent - Evidence supports inference D was negligent Extension (minority) - Unconscious medical patient injured but doesnt know who operated, then - The doctrine is applicable here because the injury is in a part of the body they weren’t supposed to touch. The burden is shifted onto D to show what happened and to prove each of them not liable (burden of initial explanation)

Answer 38

1. Was the P foreseeable? 2. Was the injury/harm foreseeable? - General type 3. Were there superseding (unforeseeable) intervening causes? Test = consequences or type of harm is foreseeable - NOT manner, scenario or extent Look for scope in: - chain of events - remoteness - situation is unusual (freakish event) - Mostly someone else's fault Can be derived from - common sense - life experience - stats - expert testimony

Answer 39

Intervening force is one that joins with D's conduct to cause the injury, 2 kinds: 1. Regular Intervening causes o Ex. Natural event, negligent human cause 2. Criminal intervening causes Superseding intervening cause - General rule: intervening causes are only "superseding" if they are unforeseeable - Superseding causes cut the proximate cause chain - Must be extraordinarily unexpected - Must be later in time than D’s negligence (all intervening causes) Criminal Intervening Cause - Criminal acts may cut scope because criminal acts are generally not foreseeable Exception - If the negligent act creates a condition of which a criminal act is the foreseeable consequence Car accidents are often held not to be superseding causes; they may be foreseeable but may not be, depending on the circumstances.

Answer 40

These risks are foreseeable as a matter of law Medical Complications - subsequent negligence by medical professional is foreseeable - no cut scope for original D Rescuer Situations - danger invites rescue - D liable for rescuer's damages - protects people from comparative negligence and AoR Eggshell Skull Rule - if D is responsible for injuring a victim, courts will generally hold D responsible for even highly unusual medical complications that result because the victim is extremely frail or otherwise vulnerable. - Policy: Someone needs to be liable, better to make it the negligent person

Answer 41

- Attack elements of negligence - Suggest alternative theories - Contributory and Comparative Negligence

Answer 42

Mini negligence case against P Elements: ▪ Breach: did P behavior reasonably towards herself ▪ Causation: Did Ps breach cause Ps harm ▪ Scope: is harm within scope of liability from Ps breach ▪ Assume duty, damages given

Answer 43

- Restatement: Ps’ breach is a legally contributing cause co-operating with the negligence of D in bringing about the plaintiff’s harm. - Complete defense, but only to negligence and NOT to intentional/reckless torts - Failure to take precautions such as wearing a helmet or seatbelt is not considered contributory negligence because, even if the conduct is unreasonable, it is not a causein-fact of an accident (Instead it's a failure to mitigate injuries) - Negligence per se applies only to contributory negligence Falls within one of 2 categories 1. Voluntary exposure to the danger arising from D's negligence or 2. Other conduct falling below the standard of due care (reasonable person standard) Doctrine of last CLEAR chance: if the defendant had the opportunity to avoid the accident after the opportunity was no longer available to the plaintiff, the defendant has a duty to do so or else he will bear the loss

Answer 44

- Pure comparative negligence: assigns liability in direct proportion to fault - Quasi Comparative negligence: apportions based on fault up to the point at which the Ps negligence is equal or greater than that of the D (after that point is reached, P is barred from recovery). - Basically lowers bar for contributory negligence - It’s a partial defense ``` Factors Nature of Risk creating conduct - Awareness of danger - Probability of risk - Magnitude of risk - Utility - Capacities - Emergency Strength of causal connection b/wharm and conduct ``` * Abolishes contributory negligence in jx. * Assumption of risk gets merged into general assessment of liability Policy - not an all or nothing like contrib - gets rid of last clear chance and goes with proportion - more equitable - more practical

Answer 45

- Restatement - P who fully understands a risk of harm caused by Ds conduct or by the condition of land/chattels, and who nevertheless voluntarily chooses to enter or remain, under circumstances that manifest his willingness to accept it, is not entitled to recover. - Never a defense to intentional torts Implied and Express

Answer 46

By participating in sport - take on some inherent risks of negligence (but not recklessness and intentional)

Answer 47

Elements - P must have subjective knowledge and appreciation of risk ▪ Appreciation: know about it and know the magnitude of it ▪ Knowledge is essential - Voluntary exposure to risk - Can be a partial defense - implied b/c deduced from behavior Majority - merger implied AoR and comparative negligence Minority - do not merge Coercive per pressure is sufficient to hamper free will/voluntariness (hazing case) Exceptions - Voluntary element not satisfied when it is a necessity and no reasonable alternatives (sketchy outhouse)

Answer 48

- You explicitly waive liability (usually in writing) - It’s either completely invalidated or a complete defense + In situations where a waiver includes more than negligence, consider the possibility of severing that portion of the waiver Exceptions to express assumption of risk - Negligence: no higher culpability (you can only exempt people from negligence) - Language has to be clear (lack of clarity interpreted against drafter) - Public policy exception (courts find it so unfair that they invalidate it) ▪ Tunkl Factors • Type of business suitable for public regulation • Essential service • General service (open to public) • Advantage in bargaining strength • Standardized contract • Control: transaction places buyer under control of seller

Answer 49

1. Express Warranty 2. Implied Warranty 3. Misrepresentation 4. Negligence 5. Strict Product Liability

Answer 50

Negligence economic loss must come from personal/property damage Res Ipsa can be used to imply breach when an action is brought against a manufacturer, even when there is no privity between the two parties. Exceptions to the privity rule involve things you put in/on body, and this also extends to those who could foreseeably be injured by a potentially dangerous product (such as a car?)

Answer 51

- No negligence required for warranty based products liability - Warranty can compensate for pure economic loss unaccompanied by person injury - These cases controlled by K law and the UCC Express warranties are created when the seller makes factual assertions about the characteristics of a product - verbal, ads, brochures - not opinion/puffing Implied Warranties are not expressly articulated by sellers but are imposed by law on the sellers (2 types) - Implied warranty of merchantability: guarantee by the seller that the goods sold reasonably conform to their description and are safe for their intended use (automatically applied to merchants) - Warranty of fitness for a particular purpose: enters the parties' agreement when the seller has reason to known that the buyer is purchasing goods for some special purpose and is relying on the seller's knowledge or skill in furnishing the goods (seller does not have to be a merchant)

Answer 52

Restatement: “One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.”

Answer 53

``` Animals Under Strict Liability - Wild animals: strict liability - Domestic animals: bad dog rule ▪ If you know that animal is dangerous or prone to harm others, then strict liability ▪ In general, 1 bite rule o Livestock- depends on jurisdiction - Strict Products Liability: imposes responsibility for personal and property injuries proximately caused by a defective product ```

Answer 54

R2d 1. One who sells any product in a defective condition and unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the user 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 was sold 2. Applies even if a. The seller exercised all possible care in preparation and sale of the product and b. The user or consumer has not bought the product for or entered into any contractual relation with the seller Policy - Public interest in making manuf more careful - Manuf better suited to spread costs - Protect consumer - More efficient lit To recover, P must prove - Product was in fact defective - unreasonably dangerous for its intended use - Such defect existed when the product left D's control

Answer 55

Manufacturing defects - Strict liability: there can be liability even if manufacturer used all proper care - Construction of the particular product - Just show that it's different than what it was intended to be

Answer 56

- Negligence like approach: must show conduct was unreasonable - Product has an error in its design or blueprint - Tricky because there's tradeoff between safety and utility Two tests Consumer expectation test: If the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner ▪ P must prove that an ordinary consumer would not discover the unsafe characteristic of the product (objective standard) Risk utility test: If, in light of the relevant factors, the benefits of the challenged design does not outweigh the risk of the danger inherent in such design ▪ Usually need to show there's a better design ▪ May be able to get away without showing other design if it’s unusually dangerous ▪ Wade factors - usefulness, safety, seriousness of injury, substitute product, ability to make safer, avoidability of danger, anticipation of danger, feasibility to spread loss - Modern trend is allowing recovery using the risk utility test instead of the consumer expectations test (this case uses either theory) o Rationale: consumers often do not know what kind of risks to expect o Consumer expectations is too similar to negligence

Answer 57

- Negligence like approach: must show conduct was unreasonable - Occurs when the product lacks adequate warnings or instructions - Warning was unreasonable

Answer 58

1. Is there a legally cognizable harm? 2. Are punitive damages appropriate? General types of damages - Pain and suffering - Past medical expenses - Lost wages - Future medical expenses Damages that create duty problems - Economic losses on own - Emotional distress losses on own - Prenatal Torts 3 types of damages - Nominal when it’s just for some right, no actual harm - Compensatory: compensate for the harm caused o Can be pecuniary or nonpecuniary - Punitive: torts with malice

Answer 59

- Nonpecuniary damages: compensate for physical and emotional consequences of injury - Pecuniary damages: compensate for the economic consequences of the injury Pain and suffering generally joined with loss of enjoyment of life Victim must be conscious to be compensated pain and suffering

Answer 60

All the liable defendants are each fully responsible for the entire injury. Situations: Concerted action, Ds produced a single, indivisible injury through independent acts, vicarious liability. Multiple D’s tricky causation issues: - Multiple D’s that cause separate divisible harms o D pays for their harm - Multiple D’s that caused indivisible harm: several varieties o Easiest: chain scenario o Concurrent causes: harder to separate causation ▪ To show causation probably use substantial factor - Concerted Action: joint and several still - Vicarious Liability: joint and several

Answer 61

Juries have discretion to award punitive damages when the D acted with malice, hatred, or reckless disregard to the rights of the D - They are allowed to consider wealth of the D - They cannot award punitive damages for harm done to nonparties to the litigation - Must be higher culpability than negligence Policy arguments - Provides deterrent against malicious tortious conduct - Rewards Ps who go after wrongdoers - Inappropriately turns civil court into quasi criminal court To review punitive damages, consider 1. the degree of reprehensibility of D's misconduct (most important) - factors: physical harm, indifference, vulnerability, repeated actions, malice, deceit 2. Disparity between actual or potential harm (compensatory) and the punitive damages - Inverse relationship - 9-1 ratio is the limit-ish

Answer 62

Employer liable for actions of employee Policy - Employer is in a better place to control employee and in a better place to spread the costs of accidents that come out of actions Process 1. show person is an employee - employer has control or right over job - looks like an employment relationship - can look at job, tools, duration, payment 2. show action happened within scope of employment - Exception: If the assault was motivated by personal malice, then no Vicarious and intentional torts - modern approach - act "reasonably connected" with employment - goal to further employer's interests - employment basis for disagreement that led to violence Extended to include risks inherent in or created by the enterprise. - whether actual occurrence was a generally foreseeable consequence of the activity Majority rule motive test: proof was required that the employee intended to benefit or further the interest of the employer CA/federal courts use this rule: liability may be found if the injury results from a dispute arising out of the employment, unless it’s the result of personal malice. Under bunkhouse rule an employee who lives on employers premises may be acted within the scope of his employment even when engaged in leisure activities on an off duty day provided that the employee is making reasonable use of the employer’s premises. (Benefits can lead to on duty)

Answer 63

Elements 1. False and defamatory statement concerning plaintiff a. Untrue factual claims (Not opinion or hyperbole) b. Harmful to reputation, profession, or standing 2. Publication without privilege a. Given to at least one other person b. Republication also counts 3. Fault (required amount) a. At least negligence b. Actual Malice for public issues/figures 4. The statement was a. Actionable as a matter of law (defamation per se) or b. Publication caused P specific harm

Answer 64

- 2 types: o General purpose public figure o Limited purpose public figure: private individual that is thrust to the forefront of particular controversies - Must show actual malice: o Knows it is false o Reckless disregard as to its truth or falsity - D has to show what they said is true - Public figures have more money, it's easy for them to threaten to bring suit or bring suit and deter this speech o As a result, many states enacted SLAPP laws, which allow baseless suits to get dismissed quickly.

Answer 65

these are assumed to carry damages, you don't need to show you were harmed by it - Accusation of criminal activity - Accusations that a person had a loathsome contagious or infectious disease - Accusation that a person was unchaste or engaged in sexual misconduct - Accusation that a person was involved in behavior incompatible with the proper conduct of his business, trade, or profession Generally - Substantial truth is a defense: okay to get minor details wrong - Congress enacted communication decency act: provides protection for internet providers or information content provider (such as facebook) - 1st amendment: freedom of speech and the press obviously

Answer 66

Products Liability - Issues showing the defect and showing causation - You can in theory bring a design defect claim against a vaccine, BUT o Benefits outweigh risks: vaccines wouldn’t be licensed if the benefits didn't outweigh the risks o Side effects are well-known Medical malpractice is available - Issues showing breach and causation Can you sue parents for not vaccinating children - Do children's have a suit? o Parent's have a responsibility o Parents don't have the right to allow child to get hurt - Liability to failure to vaccinate your own child o Duty: yes o Breach: must show not vaccinating is unreasonable o Causation o Scope o Damages o Parental immunity: might bar claim o Practical issues: also might bar claim Liability for failure to vaccinate another's child

Answer 67

Initial client interview: meeting them for the first time o Goals: (relationship goals and informational goals) ▪ Build trust ▪ Fact-finding ▪ Getting the whole story ▪ Ask what goals they want from the outcome ▪ See if there are potential counterclaims ▪ Identify other parties, witnesses, documents, evidence ▪ Detailed goals description are on PPT ▪ Decide if you are going to take on the client o Structure of interview on worksheet o Clients may feel intimidated by lawyer in first meeting, so it’s good to start with open-ended questions so they can start talking and get comfortable o Not just asking questions, sharing information o Then can progress to closed questions and prompting questions o Theory verification: ask about the elements of the tort o Recap (active listening); engage, identify what emotion they’re having and reflect it back o Emotional affects might result in different claims/damages o Weak points: can ask what are you concerned that the other party might say? (still comfortable)

Answer 68

- There is a spectrum of ADR starting from Negotiation o Not as many rules in negotiation o Party control, just you and the other side; persuasive activity - Mediation o Slightly more formalized o Work with a third party that is neutral o Come to a settlement o Mediator does not have the power of a judge - Arbitration o Arbiter is like a judge; has power to make decision for you o Can be like a court trial with evidence and witnesses o Different kinds: ▪ Non-binding: arbiter says who wins and loses, then have 30 days to decide if you like what the decision, then go to trial • If you don’t go to trial within 30 days: waive your right to trial ▪ Binding: can be controversial, not a lot of consumer protection. Enforced by contract. - Adjudication o Establishes precedent - Most torts get resolved out of court - Ask yourself what is best for your particular client in your particular case - Distributive bargaining: zero-sum game o No preexisting relationship o Think about your best alternative; how likely are you to win at trial? o Can research jury verdicts weekly o Think about what it will cost your client to litigate o Think about the minimum you would accept for settlement “walk-away” ▪ And the target amount that you would ideally want (most optimistic) ▪ Then go even higher for your first number o But you want to remain credible with your opponent

Highlights Flashcards

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