Torts Damages/Causation/Defense New

Question 1

Superseding cause

Answer 1

Intentionally intervening event which is not in the scope of the risk of their negligence

Question 2

Negligence causation question

Answer 2

Actor’s liability is limited to those harms that result from risks that made the actor’s
conduct tortious.

Question 3

Old Rule for scientific evidence

Answer 3

Science must be generally accepted by the scientific community

Question 4

New rule for scientific evidence

Answer 4

Douburt rule

Technique in question can be tested
Subject to peer review
It’s known or potential error rate
Existence and Maintenence of standards controlling its operation
Whether it has acceptance in the relevant scientific community

Question 5

3 theories of causation when there are mulitple causes of the harm

Answer 5

Joint tortfeasors
Acting in concert
Alternative Liability

Question 6

UCFA

Answer 6

Uniform Comparative Fault Act

Question 7

Contributory Negligence

Answer 7

(1) It is the traditional rule;
(2) If P was also negligent and his negligence was a cause of the injury
(3) P could not recover

Question 8

2 Types of Comparative Negligence, and what should you use on your exam?

Answer 8

(1) Pure Comparative Negligence
(2) Modified comparative negligence

Use UCFA (1) on Exam

Question 9

Comparative Negligence

Answer 9

(1) It is the modern rule
(2) If P was also negligent
and;
(3) his negligence was a cause of the injury
then;
(4) P could recover only a portion of the damages

Question 10

UCFA adopts what kind of neg. damages?

Answer 10

UCFA adopts “pure” comparative negligence

Question 11

Market Share liability

Answer 11

When
(1) Multiple D’s sold a defective product that caused harm
and;
(2) P’s are unable to identify the manufacturer of the product that harmed them,
(3) Courts can impose liability based on each D’s share of the market
and;
(4) D’s are only severally liable

Question 12

Statute of limitations

Answer 12

Until P discovers, or should have discovered their injury

Question 13

Joint Tortfeasors

Answer 13

2 or more D’s acting independently, but each is neg. and causes the harm

Question 14

Acting in concert

Answer 14

2 or more D agree to do something that is neg. and causes the harm

Question 15

Alternative liability

Answer 15

2 D act neg. but only one is the cause of the harm, and it is uncertain which - so the burden of proof is shifted to them

Question 16

Joint liability

Answer 16

We must pay total

Question 17

Several Liability

Answer 17

We each must pay our part of the total

Question 18

Joint and several

Answer 18

We each must pay our part of the total and we must pay the total

Question 19

UCFA joint and several liability

Answer 19

We each must pay our part of the total and we must pay the total.
If a party cannot pay, multiply their percentage by the remaining parties percentages and that is your new percentage needed to pay

Question 20

UCFA, when a party pays more than their equitable share

Answer 20

They seek judgment for contribution against other parties

Question 21

UCFA claim and counterclaim

Answer 21

The dollar amounts don’t cancel each other out.

Question 22

Assumption of the risk; Express agreements, Liability waived?

Answer 22

Express agreements where a person waives liability for the D’s negligence is not enforced if it violates public policy

Question 23

3 types of assumption of the risk?

Answer 23

(1) Express assumption of the risk
(2) Primary implied assumption of the risk
(3) Secondary implied assumption of the risk

Question 24

What is Preemption?

Answer 24

When federal and state law conflict, state is preempted under the supremacy clause of the constitution

Question 25

3 kinds of preemption

Answer 25

(1) Express Preemption
(2) Field Preemption
(3) Conflict Preemption

Question 26

Express preemption

Answer 26

When congress enacts a statute that expressly preempts a state law

Question 27

Conflict preemption

Answer 27

(1) A state law is preempted
if it stands as an obstacle to the execution of the full purposes and objectives of congress
and/or;
(2) when it is impossible for a private party to comply with both state a federal laws

Question 28

Where state tort law requiring strong warning labels is not preempted by federal FDA regulation

Answer 28

Wyeth v. Levine

Question 29

Wyeth v. Levine

Answer 29

State tort law is not preempted by FDA federal regulations

note - the intent of the fed. law was to supplement state tort law

Question 30

Damages; Pain and suffering, loss of enjoyment of life

Answer 30

In most states pain and suffring includes damages for loss of enjoyment of life in a single award

In some states, the jury is instructed to award seperate damages for loss of enjoyment of life

Question 31

What is a Survival Action

Answer 31

Allows the estate of a deceased victim to recover for any injuries the victim suffered up until the time of death

Question 32

Loss of consoritum is included, in many states…

Answer 32

In their wrongful death statutes

Question 33

When a trial judge thinks an award is excessive…

Answer 33

they may grant a remittitur

Question 34

An appellate court may overturn a judgement for excessiveness

Answer 34

Only if it
(1) Shocks the concious
and;
(2) suggests passion or prejudice from the jurors.

Question 35

When a case involved intentional or reckless harm

Answer 35

A jury can award damages “for the sake of example” to deter similar behavior

Question 36

An employer…

Answer 36

Cannot be held liable for punitive damages if the conduct was approved by the principal or managerial agent

Question 37

If punitive damages are grossly excessive

Answer 37

It shall be considered an arbitrary deprevation of property weithout fair notice under the due process clause of the 14th amendment

Question 38

Punitive damages as excesssive factors

Answer 38

(1) degree of reprehensibility of the conduct
(2) Disparity between degree of harm and the punitive damages (it should not exceed 9:1 ratio
(3) difference between punitive damages awarded and civil penalties for comparable conduct

Question 39

Example of an asset which cant be seized, and realistic way to settle a lawsuit

Answer 39

Housing, so Insurance realistically is the only way to cover the costs of a lawsuit

Question 40

Tunkl Factors to waive express liability bro

Answer 40

1. Business is suitable for public regulation
2. Service is of great importance
3. Party will perform service for every member of the public
4. Party has an advantage in bargaining power
5. Purchaser is placed under control of the seller, subject to risk of carelessness by seller and agents
6. Any other circumstances