Torts

Question 1

Definition of neg

Answer 1

failure to heed to a duty of reasonable care to a person whom that duty is owed and causes an injury

Question 2

Respondeat superior

Answer 2

Respondeat superior – employers are held vicariously liable for employees negligence

Question 3

Injury - types

Answer 3

physical (bodily and property), emotional distress, loss of wealth

Question 4

Duty - general

Answer 4

general duty to foreseeable π heaven v pender - duty “to act with reasonable care when pursuing an affirmative action” malfeasance

Question 5

reasonable foreseeability

Answer 5

a person of ordinary sense would recognize that careless conduct on his part would create a danger to the person or property of another

Question 6

common law duty to rescue and protect

Answer 6

no duty

Question 7

exceptions to no duty

Answer 7

1. imminent peril caused by ∆ 2. voluntary undertakings - if you start, finish with reasonable care 3. special relationships - rel pre tort gives a duty

Question 8

invitee

Answer 8

person who goes on the premises of another on the answer to the express or implied invitation of the owner for their mutual advantage o Entitled to reasonable care o there is a Duty to keep premises safe and warn of hidden dangers

Question 9

licensee

Answer 9

one who enters the property of another on his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner o Entitled to warning of hidden dangers the owner knows or should know about but not reasonable care

Question 10

trespasser

Answer 10

enters premise without license, invitation or right, intentionally enters property without actual or implied permission o No duty of care is owed except to avoid willful and wanton injury (Extreme departure from ordinary standards of care and must involve a conscience disregard of a known serious danger)

Question 11

trespasser exceptions (2)

Answer 11

o Limited duty to inform known adult trespassers of risk of physical harm posed by artificial conditions on the land o Attractive Nuisance – children don’t understand the danger of attractive things so there is a duty to protect them from them

Question 12

rowland factors for a duty

Answer 12

1. Foreseeability of harm 2. Degree of certainty that the π suffered the injury 3. Closeness between the ∆s conduct and the injury suffered 4. Moral blame attached to ∆ conduct 5. Policy preventing future harm 6. Extent of the burden to ∆ and community of imposing the duty 7. Availability, cost and prevalence of insurance for the risk associated

Question 13

pure economic loss

Answer 13

injury that is not accompanied by bodily injury or property damage

Question 14

generally no duty in pure economic loss because

Answer 14

o Expensive o Low proportionality between the injury and the tort o Heavy burdens would be placed on people and the system because everyone can be harmed by one act

Question 15

types of pure economic loss claims

Answer 15

1. blockages - aikens 2. Damage to person or object π being the 3rd party - hockey 3. Damaged product sold to π by ∆ - Manufacturer doesn’t have a duty for injury to business just to the person 4. bad info 3 Approaches that Prevail 1. NY standard – pro ∆ - π must be in privity of contract with ∆ or have been in mind when report was created 2. Foreseeability analysis – pro π – every foreseeable π 3. Restatement section 552 – mix between 2 – if ∆ intended to benefit from π it creates a duty DOMINANT APPROACH

Question 16

policy can limit duty: case and reason

Answer 16

strauss, too big to fail

Question 17

breach - jury instruction standards (3)

Answer 17

1. lay 2. professional (need expert) 3. common carrier

Question 18

breach standard - ordinary person

Answer 18

objective - dont want length of the foot adjudication - menlove wanting stupid person standard EXCEPT sudden incapacaties

Question 19

breach standard - kids

Answer 19

somewhat subjective - judged on a reasonable child of similar age and circumstance

Question 20

breach standard - physical disability

Answer 20

somewhat subjective - reasonably blind person

Question 21

breach standard - mental disability

Answer 21

objective - WHY o Allocating losses between 2 innocent parties to the one who caused the loss o Providing incentive to family members and other guardians of people with mental disabilities to control the behavior of those people o Removing inducements for alleged tort feasors to fake mental disabilities to escape liability o Avoiding administrative problems that are created by requiring courts and juries to identify and asses the significance of the disability o Forcing people with disabilities to pay for damage they cause if they are to live active lives

Question 22

custom generally

Answer 22

NOT STANDARD FOR BREACH - – conformity to custom and departure from it are treated the same… both may be used as evidence by jury to determine if there was a breach but CANNOT be used on its own - jury decides if its reasonable

Question 23

med mal - custom

Answer 23

is standard for breach Proof of compliance – through an expert – does establish reasonable care. just needs to prove that he complied with SOME custom in the profession not the custom of the π expert

Question 24

med mal - expert standards (2)

Answer 24

locality - must be from a SIMILAR locale but need not be from the same community national - holding everyone to same standard

Question 25

med mal - custom is standard exceptions

Answer 25

helling - eye puff obvious things - myers, walmart, leaving things in patients

Question 26

med mal - informed consent definition

Answer 26

no problem with the way the services were rendered just that patient was not informed about the risks

Question 27

med mal - informed consent standards (3)

Answer 27

o Subjective – what individual patient would want to know (patient’s right to self-determination) - Too demanding on physicians – patients can benefit from hindsight o Objective – reasonable physician – professional standard - Too protective of doctors o Objective – prudent patient – what would normal people do? - Middle ground – objective standard as applies to individual patient

Question 28

med mal - informed consent - exceptions

Answer 28

1. unconcious person 2. holding back for paternalistic reasons (jury decides if its okay)

Question 29

Hand formula

Answer 29

B \< PL b - burden p - prob of injury l - extent of injury if its less then not doing it IS a breach

Question 30

Disproportionate Cost Test

Answer 30

1. At the time of the act, the likelihood the conduct would cause the kind of harm π sustained was not probable – no obligation to take precaution against it 2. If risk of harm was not too far-fetched but still really small – obligation to take precaution UNLESS taking them would cause a burden completely disproportionate to the harm 3. Risk was substantial or material then actor was obligated to do everything possible to prevent harm even if it is very expensive

Question 31

3rd restatement cost benefit analysis

Answer 31

o Foreseeable likelihood o Foreseeable severity of harm might ensue o Burden of precautions to prevent the harm

Question 32

res ipsa - elements

Answer 32

1. Circumstance bespeaks negligence 2. ∆ has control and could have stopped the injury 3. Injury did not arise from acts of carelessness on the part of the π

Question 33

res ipsa - smoking out

Answer 33

used to induce defendants to provide information concerning accident, lest they all be held liable

Question 34

actual cause normal test

Answer 34

but for

Question 35

but for exceptions

Answer 35

1. loss of chance 2. multiple nec 3. multiple sufficient (normally just fires)

Question 36

daubert test

Answer 36

1. relevance 2. reliability - was scientific evidence.. - tested - subjected to peer review and publication - rate of error known - accepted by relevant scientific community

Question 37

toxic torts

Answer 37

present the problem of proving that you got it from the toxin OR there is a general linkage then you must prove that your illness is the instance of the linkage

Question 38

identification of tortfeasor (2 alt)

Answer 38

1. summers – hold all ∆ liable because we KNOW one of them was the cause and neither are innocent 2. market share - dangerous product ∆ will pay however much stake they had in the market of the product when the injury occurred

Question 39

doomed plaintiff

Answer 39

if they were going to die anyway but your act is the reason for the death happening earlier still liable

Question 40

proximate cause - definition

Answer 40

fitting of breach to injury

Question 41

approaches to prox cause (2)

Answer 41

1. foreseeability - type of harm reasonably foreseeable during bad conduct 2. scope of risk - Injury must come from what makes the behavior tortious – What happened to the π is in the scope of what could happen because of ∆ bad conduct

Question 42

prox cause - coming to rest

Answer 42

Liable for risks that stem out of negligence until the conditions are back to normal. If risks happens after they are back to normal it is NOT the proximate cause

Question 43

superseding cause

Answer 43

always used to defeat liability

Question 44

intervening cause

Answer 44

If original defendant should have foreseen that the intervening ACT was foreseeable or the kind of harm suffered was foreseeable, defendant’s original negligence is still the proximate cause

Question 45

dram shop laws

Answer 45

protect bar owners from liability in drunk driving situations

Question 46

negligence per se

Answer 46

Violating statute = breaching duty relieves the π burden of proving the ∆ breached the ordinary standard

Question 47

neg per se elements

Answer 47

1. violate purpose of statute 2. π must be in protected class of statute

Question 48

neg per se exceptions

Answer 48

o Youth or physical incapacity o Reasonable efforts by the ∆ to comply with the statute o Justified ignorance of the ∆ as to facts rendering the statute applicable o Excessive vagueness or ambiguity in the statutory standard o Compliance poses a greater threat of danger to π or others than non compliance

Question 49

apportionment (3 approaches)

Answer 49

neg defense - not borught up until entire prima facie case is satisfied 1. Contributory Negligence: if plaintiff is contributorily negligent at all, no damages awarded at all 2. Pure Comparative Fault: any degree of negligence, no matter how small, does not bar recovery. Even a 5% fault can recover 5% damages o NY has this rule.. no fractional limit 3. Modified Comparative Fault: if plaintiff is more than 50% negligent, you can’t recover at all, but you can recover up to and including 50% (both variations) o “Not as great” if π and ∆ contribution are equal there is no recovery o “Not greater than” if ∆ contribution is greater than π then she can recover

Question 50

assumption of risk express

Answer 50

contract will it be upheld? • The existence of a duty to the public • Nature of the service performed • Whether the contract was fairly entered into • Whether the intention of the parties is expressed in clean unambiguous language

Question 51

assumption of risk implied

Answer 51

One can infer from π conduct that she made a certain kind of informed choice that now she loses her chance to complain MUST BE 1. knowing and 2. voluntary

Question 52

eggshell skull rule

Answer 52

once ∆ harms π they cannot complain that too much damage was done because the π was too fragile

Question 53

eggshell skull π duty

Answer 53

to mitigate...The ∆ is only liable for the damage that the π could not have stopped by acting reasonably

Question 54

eggshell psyche

Answer 54

if the injury is only psychological and a reasonable person would not have suffered it then it is not actionable

Question 55

eggshell jury approaches (2)

Answer 55

permissive - jury can discount injury mandatory - must consider all injuries

Question 56

compensatory damages

Answer 56

Designed to price the π injuries and are considered an absolute entitlement - Ultimate test is what fairly and reasonably compensates the π

Question 57

factors for comp damages

Answer 57

- Nature and extent of the injuries - Diminished earning capacities - Economic conditions - π age to help determine lost wages - Comparison to the compensation in other cases with comparable injuries

Question 58

lawyers litigating comp damages: 2 things they say to juries

Answer 58

1. per diem - what would you want to be my client for a day 2. golden rule - what would you want to be payed to be my client permanently

Question 59

damage elements (4)

Answer 59

past, future, economic, non-economic

Question 60

collateral source rule

Answer 60

Juries can not be told about the πs compensation from another source (normally insurance company) for the same injuries - NY eliminated this for med mal suits

Question 61

punitive damages

Answer 61

meant to punish the ∆, only available where ∆ was wanton or willfull in harming the π - mere or gross negligence is not enough

Question 62

constitutional limits on punitive damages

Answer 62

gore 1. degree of reprehensibility 2. ratio to comp damages 3. sanctions for comparable conduct

Question 63

punitive damages - wealth

Answer 63

wealth of π is never considered - ∆ is considered to make sure they feel the blow of the pun

Question 64

strict liability elements and def

Answer 64

1. unusual act 2. causation of harm Notwithstanding the innocence of the ∆ we should hold him liable anyway because of the condemnation of the result

Question 65

strict liability carnis test

Answer 65

non-natural use of land

Question 66

strict liability 2nd restatement abnormally dangerous

Answer 66

a. High degree of risk to person or land b. Harm results will be great c. Inability to eliminate the risk by reasonable care d. Not a common usage e. Inappropriateness of the activity at the place f. Value to community \*Any one of these not sufficient, several necessary for strict liability.

Question 67

strict liability 3rd restatement abnormally dangerous

Answer 67

1.Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors 2.Is not one of common usage

Question 68

products liability elements

Answer 68

1. P injured 2. A sold the product 3. A is a commercial seller of such products 4. At the time it was sold, it was in defective condition 5. The defect was an actual and proximate cause of Ps injury

Question 69

products liability 2nd restatement

Answer 69

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate consumer or to his property if: a. The seller is engaged in the business of selling the product, and b .It is expected to and does reach the user or consumer without substantial change in the condition which it is sold 2.The rule stated in subsection (1) applies although a. The seller has exercised all possible care in the preparation and sale of the product, and b.The user or consumer has not bought the product from or entered into any contractual relation with the seller

Question 70

products liability 3rd restatement

Answer 70

One is engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm caused by the defect

Question 71

traynor reasons for strict product liability

Answer 71

a. Manufacturers owe consumers to be vigilant of product safety b. Manufacturers are best situated to take precautions (deterrence) c. Manufacturers can spread costs of accidental injuries d. Marketing the product is enough don’t need negligence e. Victim’s entitlement doesn’t depend on nature of conduct that caused it f. Analysis of disparities in power in litigation g. More open and direct law structure is preferable

Question 72

implied warranty of merchantablilty

Answer 72

promise that the goods are safe and fit for ordinary use

Question 73

express warranty

Answer 73

verbal, written, formal promise

Question 74

manufacturing defect

Answer 74

diverges from the manufacturers own specifications for the product

Question 75

design defect - factors juries consider

Answer 75

Factors that help juries decide if there was a design defect 1. Significance of risks of physical injury posed by particular design 2. How ordinary consumers would expect product to function 3. Whether there is feasible, safer, affordable alterative

Question 76

design defect - risk utility

Answer 76

– utility of product outweighs its inherent danger 1. utility as a whole 2. utility to an individual user 3. likelihood the product will cause injury 4. Availability of a safer design 5. Possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced 6. Degree of awareness of the products potential danger that can be reasonably attributed to the injured user 7. Manufacturers ability to spread the costs of any safety related design changes

Question 77

design defect consumer expectations

Answer 77

defective a product must be dangerous to an extent beyond which would be ordinarily contemplated by the ordinary consumer

Question 78

failure to warn and protect

Answer 78

defective for a lack of adequate warnings when safety requires that the product be sold with a warning mislabeled product would apply

Question 79

failure to warn and protect - learned intermediary doctrine

Answer 79

warning doesn’t have to go directly to the consumer, Manufacturer discharges the duty to warn by warning the doctorate and not the ultimate consumers because the doctor is better suited to decide what to do with the warning EXCEPT: birth control and when advertising right to consumer

Question 80

overpromotion

Answer 80

1. motus 2. justice department - drug companies cannot advertise for off label prescribing

Question 81

trespass prima facie

Answer 81

1. Actor set out to make contact with the land 2. Did make contact

Question 82

trespass - contact with land

Answer 82

Contact with land = 1. Entering land 2. Remaining on land 3. Put object on land, and refuse to remove it

Question 83

trespass above or below

Answer 83

- Air space – 2nd restatement - 50ft = trespassing, 500ft = not, 150ft = for the court - Underground – generally dealt with through contract

Question 84

trespass - Minor intrusions

Answer 84

are actionable (even if there is no injury to the land). Punish because we have the exclusive right to our own property... SO there may be punitive damages where there are no compensatory

Question 85

battery prima facie

Answer 85

1. A acts 2. Intending to cause a contact with P 3. Of a type that is harmful or offensive; and 4. A’s act causes such a contact

Question 86

battery contact

Answer 86

can be direct or indirect or something you are holding

Question 87

battery offensive

Answer 87

objective test – must violate prevailing social norms of acceptable touchings

Question 88

assault prima facie

Answer 88

1. A acts 2. Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; and 3. A’s act causes P reasonably to apprehend such a contact

Question 89

false imprisonment prima facie

Answer 89

1. A acts 2. Intending to confine P 3. A’s act causes P to be confined, and 4. P is aware of confinement

Question 90

false imprisonment negligent confinement

Answer 90

does not need to prove mental element (good for P), but injury must be real (bad for P)

Question 91

defenses to intentional torts - consent

Answer 91

consent necessity self defense or of others recapture of property

Question 92

transferred intent (3 ways)

Answer 92

1. Same victim different tort 2. Across victims 3. Different victim different tort – shot some one, and someone else in the room thought they would be shot... battery for who you shot and assault to the other

Question 93

IIED elements

Answer 93

1. outrageous conduct 2. severe distress - doesnt have to be physical

Question 94

IIED outragous def and factors

Answer 94

conduct that exceeds all bounds of decency tolerated in a civilized socety 1. power disparty 2. repetitive conduct 3. public rather than private 4. knowlege if vulerabiity

Question 95

NIED elements

Answer 95

1. physical mainfestiation 2. impact rule/ zone of danger