Midterm

Question 1

Joint and Several Liability

Answer 1

II can collect the entire sum from one defendant or could collect part from one and part from another

Question 2

Several Liability

Answer 2

II can only collect the amount from ∆

Question 3

True or False: ∆ can seek contribution for the amount of damages relative to the proportion of fault from the other ∆s.

Answer 3

True

Question 4

Are punitive damages apportioned?

Answer 4

no

Question 5

Vicarious liability

Answer 5

actor is liable for the tortious conduct of others

Question 6

respondeat superior

Answer 6

an employer will be liable for the torts of an employee that are committed within the scope of employment

Question 7

Will an employee who violates the rules of the employer be treated as having acted within the scope of employment?

Answer 7

yes

Question 8

frolic

Answer 8

a complete departure from the scope of employment; employer is not liable

employer will be liable if found to have given the employee a special task (McDonalds case)

Question 9

detour

Answer 9

a minor deviation from the scope of employment; employer liable

Question 10

doctrine of coming and going

Answer 10

employer is not liable for employee getting in an accident in their commute to and from work

Question 11

When are drivers of automobiles liable for torts committed by their passengers?

Answer 11

imposed when death or injury to a person or property occurs as a result of the third-party’s negligence while in the use of operation of the vehicle, with permission from the owner

Question 12

direct liability

Answer 12

when an employer fails to adequately train, supervise or review an employee and that employee commits a tortious act; employer will be liable for resulting harm

Question 13

national standard (med mal)

Answer 13

what a reasonable person with the same training/level of expertise in a certain specialty would do when compared to those that have the same training nationally

ex. all x are licensed to do y

Question 14

modified locality rule (med Mal)

Answer 14

the degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent physicians at the time of the operation and in similar localities

small town vs. small town

Question 15

strict locality rule

Answer 15

in order to sufficiently demonstrate malpractice, the plaintiff must produce testimony that the defendant did not adhere to the standard of care practiced by physicians of his specialty in his own locality

from the specific town

Question 16

common knowledge exception

Answer 16

if a jury is able to determine whether or not a standard of care was violated, there is no need for expert testimony; not required if jury can substitute their own knowledge for a doctor/expert in any field

Question 17

informed consent

Answer 17

courts have arguably determined that just giving forms and ample time to review and ask questions is this concept

Question 18

If there are no _____/proof of ______, there is no cause of action

Answer 18

damages; damages

Question 19

mere trespasser

Answer 19

the landowner owes the duty not to wantonly injure them

Question 20

trespasser

Answer 20

enter upon the land of another with the intention to commit a crime; landowner owes only the duty to not intentionally injure them

Question 21

doctrine of attractive nuisance

Answer 21

subject to liability to injured child if

• where the accident occurred is reasonably where a child would be;
• knows or has reason to know it could seriously harm a child;
• child does not discover or understand the risk of harm;
• responsibility of maintaining the condition and burden of eliminating the danger are slight as compared with the risk to the children involved; and
• the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children

Question 22

licensee

Answer 22

social guest; invited in any other way or for any purpose; highest standard of care

Question 23

invitee

Answer 23

person invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public; exercise of ordinary care with respect to the risks the landowner knows or should know about with reasonable inspection

Question 24

constructive notice

Answer 24

Defendant is treated as if he or she had actual knowledge of a hazardous condition if there is proof supporting the conclusion that the condition was present for a significant period of time prior to the plaintiff’s injury

Question 25

mode of operation

Answer 25

Treats a defendant as having actual knowledge of a hazardous condition if the defendant has chosen to operate an enterprise in a way that it makes it likely that dangerous conditions will occur often

Question 26

duty to rescue or protect

Answer 26

regular people have no duty to do anything; except in Vermont

Question 27

firefighters rule

Answer 27

cannot recover based on negligent conduct that requires their presence

Question 28

rescue doctrine

Answer 28

if you come to the aid of someone that was in an accident caused by someone else, you can link onto the lawsuit and recover against that entity

Question 29

protecting third parties from criminal attacks or disease

Answer 29

There is an obligation to not disclose anything about a patient’s treatment plan, but if there is an immediate risk to the safety of others that may result in the death of another, a therapist has a duty to disclose this to the potential victim

Question 30

crime-fraud exception

Answer 30

duty to report does not apply when the statement was made to further commit a crime

Question 31

impact rule

Answer 31

II has to establish that they have suffered some impact because of the defendant’s conduct

Question 32

zone of danger rule

Answer 32

Allows a cause of action for emotional distress for an individual who is in the immediate area of physical danger from the defendant’s negligence and who suffers emotional distress as a consequence of the defendant’s conduct

Physical manifestation of emotional distress

Question 33

elements of negligently inflicted emotional distress

Answer 33

i. Negligent conduct by defendant
ii. Some impact on the plaintiff b/c of the defendant’s negligent conduct
iii. Emotional distress suffered by the plaintiff
iv. Physical manifestations of the plaintiff’s emotional distress

Question 34

bystander recovery rule

Answer 34

allows recovery if the individual was outside the zone of danger if…

they were at the scene, sees the injury directly, and had a close relationship with the seriously-injured person

Question 35

what is a close relationship relative to NIED?

Answer 35

familial relationship, immediate family member; can bring evidence to show close relationship with someone who is not a blood relative

Question 36

economic loss rule

Answer 36

recovery is limited to those who suffer personal injury or property harm

new rule: plaintiff who suffers economic harm related to defendant’s negligent conduct but free from personal injury or property injury has no cause of action for economic harm (majority decision)

Question 37

zone of danger and economic harm

Answer 37

B/c indeterminate group of plaintiffs may have economic harm traceable to an accident, there is no satisfactory geographical limit

Question 38

wrongful pregnancy

Answer 38

i. Errors committed during a patient’s sterilization procedure and the plaintiff suffers no injury other than the birth of an unwanted child
ii. “failed sterilization”  treated as a harm

Question 39

wrongful birth

Answer 39

i. Where a child is born with birth defects and parents seek damages
ii. Mother would have sought abortion had she had known
1. Treated as standard medical malpractice claims
2. Damages calculated to cover the child’s childhood (until the age of majority)

Question 40

wrongful life

Answer 40

Medical malpractice principles support the recovery of a mother for unusual expenses, related to the support of a child born with birth defects where defendant’s negligence prevented the mother from terminating the pregnancy

1. Damages calculated to cover for the child’s entire expected lifetime
2. Medical, custodial, and therapeutic costs are calculated and are allowed to be recovered

Question 41

primary assumption of the risk

Answer 41

occurs when the defendant does not have a duty to care for the plaintiff b/c the plaintiff is fully aware of the risks

a. Protects defendants from liability in some circumstances where risks either cannot be eliminated or would be too costly to eliminate and where those risks are typically obvious to the people who encounter them