Torts Final Flashcards

Question

Indirect IIED Elements

Answer 1

1) Act 2) Intent (to the indirect P who suffers ED) 3) E/O Conduct 4) C/F 5) SED (same subjective and objective exceptions) 6) P present and a family member, OR P present and suffers physical manifestation

Answer 2

1) Act 2) Intent: to enter land (yours or not)(purpose/know to SC) 3) Interference with P's exclusive control of land 4) C/F 5) Injury (presumed but with nominal damages)

Answer 3

Not a defense, and it does not matter if damage was foreseeable

Answer 4

1) Act 2) Intent (purpose/know to SC) to dispossess or intermeddle 3) Dispossession or intermeddling of P's personal property 4) C/F 5) Dispossession= injury presumed (no time limits and not very forgiving)/ Intermeddling needs actual harm/damage

Answer 5

- D has mindset "this is mine" - No harm required - Injury Presumed

Answer 6

- touching or messing with the chattel - need actual damages or harm - damage or substantial loss of use

Answer 7

- More serious Trespass to Chattel - D ends up buying the chattel if liable - if chattel is destroyed: think conversion (total destruction is an important factor

Answer 8

1) Act 2) Intent (purpose/ know to SC) to interfere 3) Serious Interference with P's personal property 4) C/F 5) Injury presumed (but practically actual damage)

Answer 9

1) Duration of control 2) Actor's intent to control 3) Was it good faith or bad faith? 4) The extent and duration of resulting interference 5) What was the harm to the chattel? 6) What was the inconvenience and expense caused to the other?

Answer 10

Consent Justification To IIED

Answer 11

- Consenting to the contact, not the injury (rules of the game and paper clip kid) - Can be both: -implied: from conduct (would P's conduct reasonably manifest consent?) (silence can manifest consent through actions) - express: written or well known (if there is fraud it is negated)

Answer 12

1) Self Defense 2) Defense of Others 3) Defense of Property

Answer 13

1) Reasonable belief of a need to defend - subjective - objective (RP) 2) Response must be proportional

Answer 14

- What is the reputation of P? - Is P being belligerent? - Is there a size and age difference between parties? - Did D have a lack of ability to retreat? (duty to retreat first)

Answer 15

- just depends on the situation, but usually deadly force is not great

Answer 16

- What is the reputation of P? - Is P being belligerent? - Is there a size and age difference between parties? - Did D have a lack of ability to retreat? (duty to retreat first) - this is privileged if there is a reasonable belief a family member will be assaulted

Answer 17

- your things are not worth a life - Is P being belligerent? - Is there a size and age difference between parties? - Did D have a lack of ability to retreat? (duty to retreat first)

Answer 18

- needs to be of public concern/policy/interest - helps if it can be proven it is not a personal attack

Answer 19

- needs to be of public concern/policy/interest - helps if it can be proven it is not a personal attack

Answer 20

- does not cover intentional torts - negligence is covered by insurance - must disclose if you have insurance to Federal court in intitial disclosures

Answer 21

1) Duty (judge decides if duty exists and what it is) 2) Breach (of duty): Did D act as a RP would have? 3) C/F 4) Proximate Cause 5) Actual Harm

Answer 22

a. Does duty exist? - if not a special rule, assume duty and apply 3 factors (relationship between D and P, whether the P was foreseeable, public policy) - special duties: Premises liability; Duty To Help/Protect/Rescue (look at what P alleges D should have done); NIED Rules [impact, zone of danger, Dillon] (did P suffer ED?); Economic Loss; Wrongful Pregnancy/Birth/Life; Primary Assumption of the Risk b. Act consistent with the applicable standard of care (SOC)? - (default SOC) how a RP would act under similar circumstances - Standard of cares can also be kid, doctor, professional (have to say on exam)

Answer 23

a. RP SOC: LH, NPS, custom, RIL, notice b. Prof. SOC: Accepted practice (custom), NPS, RIL, Informed Consent (doctor only)

Answer 24

- But for - Substantial Factors and Sufficiency tests for multiple stuff causes (2 fires - Alt. liability burden shift (2 shooters) - Market share burden shift - MedMal: all or nothing (MIN) and loss chance of recovery (MAJ) - Market share Liability burden shift (DES cases)

Answer 25

- Direct Consequences (MIN)(eggshell P) - Foreseeability (MAJ) - remember effect of intervening facts (and whether they're superseding causes for foreseeability test)

Answer 26

- There is NEVER a presumed injury for negligence - Need actual harm or there is no negligence

Answer 27

- Something requires a higher SOC b/c of stuff like dangerous instrumentality, emergencies, superior skills, physical disabilities

Answer 28

- emergency has to be unexpected, but if it meets that requirement than an emergency is a relevant consideration

Answer 29

- A RP with special skills needs to use those skills to avoid causing injury - considerations: training, time doing it, etc. - there is a floor (RP) but there is no ceiling (superior skill/knowledge)

Answer 30

- Physical: can get a RP SOC with the same disability (but you have to take preventative steps in the same way a disabled RP would) - Mental: Don't matter (higher chance a person with a mental disability will be liable)

Answer 31

- How a reasonable kid of the same age, experience, and intelligence would have acted under similar circumstances - can revert back to regular SOC if it is a dangerous activity

Answer 32

- How a reasonable professional, exercising that level of skill and knowledge common to the profession, would have acted under similar circumstances. - If acting within a profession, then professional SOC is applied - there is a floor but no ceiling

Answer 33

- Be elitist (white collar workers): - doctors - lawyers - architects - but even plumbers

Answer 34

- How a reasonable doctor (in same community) exercising that same level of skill and knowledge common to the profession, would have acted under similar circumstances. - Community = strict locality, modified locality, or national (statute) - Doctors prefer strict liability

Answer 35

- Did the D act inconsistent with the applicable SOC? - There is a breach if D acted unlike a Rp would have acted under similar circumstances (assumes RP SOC)

Answer 36

1) Learned Hand (LH) 2) Negligence Per Se (NPS) 3) Custom/Accepted Practice 4) Res Ipsa Loquitor (RIL) 5) Notice/Constructive Notice/Mode of Operation 6) Informed Consent (MedMal)

Answer 37

- D breached if : B < P x L - Breach = (Burden of Precaution) < (Probability of Injury) x (Severity of Injury) - Foreseeability Matters (Probability in LH) - Jury Instructions for LH - D acted unlike a RP would have acted under similar circumstances (find breach)

Answer 38

1) Statute Specific, regarding, what is required or prohibited 2) Whatever happened to P (accident/injury) has to be what the statute was designed to protect 3) P has to be a member of the class the statute was designed to protect

Answer 39

- MAJ: Unexcused Violation= jury must find breach (P wants) - MIN: Violation of Statute= jury may find breach (D wants)

Answer 40

1) Violation is reasonable because of actor’s incapacity 2) Neither knows or should have known the occasion for the compliance 3) Unable after reasonable care or diligence to comply 4) Confronted by an emergency not due to their own misconduct 5) Compliance would involve a greater risk of harm to the actor or others * Excuses apply to both the majority and minority rules

Answer 41

- MAJ NPS: No extra "reasonable person" language - MIN NPS: Adds "reasonable person" language - Standard RP SOC: No statute mentioned at all

Answer 42

- Common with building designers, architects, and engineers

Answer 43

- (TJ Hooper tugboat incident/case) - Deviation from custom = evidence of breach - Compliance with custom = evidence of no breach - If cost is lower than the benefit (cheap and useful) then it is reasonable

Answer 44

- Prof SOC - Deviation From Accepted practice = Very strong evidence of breach - Compliance with Accepted Practice = Very Strong evidence of no breach - LH does not overrule accepted practice

Answer 45

1) D has exclusive control of the instrumentality 2) Occurrence does not normally happen unless someone acted unreasonably - Trigger for RIL: Nobody knows what happened - RIL is mutually exclusive (its own thing) - Jury can make an inference of breach

Answer 46

- Most applicable for grocery stores or slip and falls - Actual notice o Employee is made aware of the situation (spill) o Employee sees it (the spill) themselves - Constructive Notice (evidence it has been there a long time) o How gross is the spill - Mode of Operation o Dangerous condition likely to result due to the style of the business o Constant risk

Answer 47

- Traditional Prof. SOC (slight majority) - what a reasonable doctor (exercising a reasonable level/skill) would have disclosed - EV Effect: Need an expert or will lose - Materiality (large minority) - disclose material risks that would matter to a RP - EV Effect: Might win without expert

Answer 48

Doctors prefer the traditional prof soc, however, medical risks are a patient's decision, which is where materiality is beneficial

Answer 49

1) LH 2) NPS 3) Custom 4) *RIL* 5) Notice

Answer 50

1) Accepted Practice (custom) 2) NPS 3) *RIL* 4) Informed Consent

Answer 51

- "But For" - satisfied if P's injury would not have occurred but for the D's breach

Answer 52

- Pretend D acted consistent with SOC - Does P's injury still happen - Yes? (No C/F, injury was inevitable) - No? (C/F satisfied)

Answer 53

- Breach and C/F have to apply the same conduct, no switching - No foreseeability in C/F - Malpractice "But For" requires an expert

Answer 54

- 2 conducts, either which alone would have caused the same damages, instead combine to cause damages - Example: 2 fires become 1 to burn down a house

Answer 55

- Substantial Factor - D's conduct is the C/F of P's harm if it was the substantial factor in causing the harm - older factor typically not the substantial one

Answer 56

- Whether the conduct was sufficient to cause the P's harm

Answer 57

- 2 or more conducts, but only 1 caused the harm (don't know which one) - Test: 2 or more tortious actors creating a similar risk of harm, but only one actor's conduct caused harm, burden shifts to D to disprove C/F (to show D wasn't cause of conduct) - Think of the 2 shooters case - If neither D can disprove, then C/F is met - If they can prove one over the other, then C/F is met

Answer 58

1) Sue substantial share of the market 2) Burden shifts to Ds to negate C/F - (if it can't be proved it is not the cause) - Product is exactly the same or ridiculously similar 3) Liable- $$ based on their market share - Pretty much only applies to DES cases

Answer 59

- MIN: All or Nothing traditional approach - Injury: Death - Can’t recover $$ for death unless the death was inevitable (less than 51% chance survival), regardless of the malpractice - MAJ: Loss Chance of Recovery - Injury: Lost Chance of Survival - Damages based on that decreased lost chance of survival

Answer 60

- 40% chance of survival - MIN: nothing recovered - MAJ: Lost 40% chance recovered - 60% chance of survival - MIN: full damages for death - MAJ: Lost 60 % chance recovered

Answer 61

- MAJ: All or nothing - Prove more likely than not that future injury will happen (51%) - Full damages for that future injury - MIN: Chance of Future Injury - Prove more likely than not that they have a [whatever %] chance of future injury - Damages based on the chance of the future injury

Answer 62

- Lost Chance = patient bad medically and the doctor kills them via malpractice - Future Injury = P suing now over a chance of future injury

Answer 63

- Think of boiling water case - Satisfied if there is a direct connection between the D's conduct and the P's injury - D's will be liable for any consequences that are a direct result of conduct - If there is an intervening act there is no direct consequence - Look For: - Direct Contact between cause and injury - Something in the middle (a tortious conduct)

Answer 64

- University Wall Case - Satisfied if the general type of accident/injury was a reasonably foreseeable consequence of the D's conduct - Policy Consideration: Negligent Ds should only be liable for the foreseeable injuries

Answer 65

Effects: - Direct Consequences: Negates Proximate Cause - Foreseeability: It Depends

Answer 66

Effects: - If the intervening act was foreseeable, then proximate cause still exists (then D's conduct is still proximate cause) (NO EFFECT) - If the intervening act was unforeseeable, then the intervening act is a superseding cause. Superseding cause negates proximate cause (D' conduct NOT Proximate cause) (Negates Prox. Cause)

Answer 67

A car theft is a crime but not automatically foreseeable

Answer 68

- Regular Treatment - Regular Side Effects - MedMal in general

Answer 69

Highly Extraordinary conduct

Answer 70

1) Duty owed? Does this D owe P a duty? - Apply Special Rule - If no special rule, evaluate the three factors 2) If yes, what is the duty? - RP - D obligated to act like a RP would have under similar circumstances (what SOC applies) - Duty USUALLY Exists

Answer 71

1) Any relationship between D and P? - Not a general relationship - Not: a driver and other drivers - Can Be: driver and backseat passenger 2) Whether the P was foreseeable 3) Public Policy

Answer 72

- P hurt by dangerous condition on D's Land - Whether D owes P a duty depends on P's status - Trespasser: not legally present - Licensee: everyone else, including social guests/friends - Invitee: mutual benefit for landowner and entrant; mutual business; public invitee

Answer 73

If P is a trespasser: D landowner does NOT owe any duty in Negligence

Answer 74

- Kid Trespassers (attractive nuisance doctrine) - D sill owe duty to kid trespasser if: 1) Artificial Conditions 2) Know or have reason to know kids are likely to trespass 3) know/reason to know risks of serious bodily harm 4) kid b/c age doesn't know the danger If all 4 met, landowner owes duty to kid trespasser

Answer 75

- Trespasser: No Duty (unless attractive nuisance for kid trespasser – invitee duty) - Licensee: To act reasonably (warn/protect) with respect to dangerous conditions landowner KNOWS about - Invitee: To act reasonably (warn/protect) with respect to dangerous conditions landowner knows about AND SHOULD KNOW ABOUT (This is really just normal RP SOC) (most broad) * A door to door salesman: starts as licensee, becomes an invitee - Exception: Open and obvious dangerous conditions

Answer 76

Modern MIN Rule: everyone gets invitee standard - D owes duty (to licensees and invitees) for even open/obvious conditions, BUT open/obviousness will be relevant in determining breach

Answer 77

Triggers with language of "D needed to help/should have helped"

Answer 78

- There is no liability for failure to help/protect/aid/rescue a person (b/c no duty exists) - Why no duty to help? - Potential for many lawsuits - Freedom to not help (individual freedom of choice)

Answer 79

- Special Relationship between P & D (common-carrier-passenger, employer-employee) - Voluntarily Helping (voluntarily assume the duty of reasonable care) - Good Samaritan statues - D is likely protected by Good Samaritan statute if D acted in good faith

Answer 80

- Danger Invites Rescue - If you are nice enough to rescue then you can sue the tortfeasor that caused your injury (because without them, you would not have rescued, and would not have gotten hurt)

Answer 81

- 3 actors, similar to No Duty to Help - D, P, and person P needs protection from

Answer 82

- Generally no duty to control the conduct of a 3d party to protect another from harm

Answer 83

- Special Relationship between D and - Person who needs to be controlled; OR - P (person who needs protection) This needs: 1) Immediate threat 2) Readily identifiable person

Answer 84

Examine foreseeability: - Prior similar circumstances; OR - Totality of circumstances Look at the circumstances that have a direct relationship to the harm, then examine the area, both how it is built and the crime rate of the area

Answer 85

- Cts. hesitant for emotional (not physical) injuries - MAJ jxs have NIED - No NIED in Arkansas

Answer 86

- Only need to satisfy 1 1) Impact Test (MIN) 2) Danger Zone Test (MIN BUT MORE) 3) Dillon Test (MAJ)

Answer 87

1) Physical Impact 2) [physical manifestation of ED]

Answer 88

1) P in the immediate area of physical danger 2) [physical manifestation of the ED]

Answer 89

1) Near scene of accident 2) Sensory and contemporaneous observance of death/serious bodily harm 3) Close relationship between P and victim (familial) 4) [physical manifestation of ED]

Answer 90

MAJ Rule: When P's only injury is economic- NO DUTY - also means no tort liability

Answer 91

- Special Relationship (business based) - Misrepresentation claim - Livelihood depends on a public right (fisherman only)

Answer 92

Wrongful Pregnancy MedMal in sterilaztion Injury= a healthy baby MAJ= Yes duty, but damages are limited to pregnancy expenses

Answer 93

MedMal in diagnosis of fetal abnormalities injury= Loss of chance to terminate MAJ= Yes Duty

Answer 94

MedMal in diagnosis of fetal abnormalities Injury= being born (kid's claim) MAJ= No duty

Answer 95

1) Risk that can't be eliminated OR really expensive to eliminate 2) Risk is obvious (not subjective, general questionable if rich is obvious) - consider a roller coaster's speed or the darkness of a movie theater

Answer 96

1) A P has to be actually hurt, have actual damages, for a negligence claim

Answer 97

1) Is the P at fault? 2) How much is the P at fault? 3) What is the effect of P being at fault? - Look at: 1. Breach/ 2. C/F/ 3. Prox. Cause/ 4. Actual Harm

Answer 98

Any fault from P= no recovery

Answer 99

A comparative fault system

Answer 100

Recovery reduced by P's percentage of fault

Answer 101

- Recovery reduced by P's percentage of fault OR - Barred From Recovery - Barred if > 49% - Reduced Recovery if 49% or less - In a statute: "was not as great as"

Answer 102

- Recovery reduced by P's percentage of fault OR - Barred From Recovery - Barred if > 50% - Reduced Recovery if 50% or less

Answer 103

- Compare the D and the P's levels of unreasonableness - (who breached more) - Compare how unreasonably the P acted vs. how unreasonably the D acted - tree trimmer v. electric co. case

Answer 104

Can be both express and implied

Answer 105

- Public policy reasons why express assumptions of the risk may be unenforceable (think about a hitman) - Possible issues with the language of the release that was signed If P expressly assumed the risk: they are barred from recovery

Answer 106

1) P knew and appreciated the risk 2) P voluntarily encountered the risk - this is a subjective inquiry

Answer 107

If P implicitly assumes the risk, traditionally barred

Answer 108

If P implicitly assumes the risk: not barred from recovery

Answer 109

If P implicitly assumes the risk: barred from recovery

Answer 110

- A min. of states still use the traditional bar for IAR - Underlying Thoughts: focus on subjectivity, P knew what she was doing

Answer 111

- A maj. Of Comp. Fault states: IAR no longer independently relevant. States no longer ask if the P impliedly assumed the risk. Instead these states ask whether the P was at fault/negligent/acted unreasonably. - Underlying thoughts: Don’t want Ps barred from recovery; emphasis is on fault (and just don’t care about IAR

Answer 112

Still need to figure out if the P impliedly assumed the risk. B/C that’s still a complete bar to recovery

Answer 113

o Does it matter if P impliedly assumed the risk? o No?- No Bar o Yes?- Maybe Bar b/c comp. fault

Answer 114

- All about post injury conduct (not listening to Doc's advice) - Check the statute to see if Direct Reduction or Fault assignment

Answer 115

- Jury can't award any damages due to P's failure to mitigate - So jury has to subtract out any damages due to P's failure to mitigate

Answer 116

- Assign P fault based on the unreasonable failure to mitigate

Answer 117

- Subtract any damages due to P's unreasonable failure to mitigate

Answer 118

- Assign P % of fault based on unreasonable failure to mitigate - Language in statute will include "failure to mitigate"

Answer 119

- Can be date of accident - Can be date of injury

Answer 120

- When a RP would have discovered that someone else might have caused her injury - About "putting some facts together" - pro plaintiff rule - hole in the roof gang case

Answer 121

- Only if no discovery rule - It can delay the start of SofL - Applies if D prevented P from knowing facts or knowledge 1) D knew of the wrongful act and concealed it (or failed to disclose) 2) P did not know of the facts, and could not have known through reasonable care Essentially turns it into discovery rule

Answer 122

- Traditional rule - Pro P - Rule: P can collect all of her damages from 1 D. (P has more than one source of satisfaction to her judgement)

Answer 123

- Contribution claim against other D - Amount of contribution available depends on fault assignment

Answer 124

- Modern Rule - D only has to pay their portion of damages

Answer 125

- J/S Liability: D screwed if the other D can't pay contribution - Several Liability: P screwed if D can't pony up at all

Answer 126

- Mostly ER getting sued by EE - P can't recover from an immune D if the immune D is assigned some fault - D will have to pay more if the immune D is not included (several liability)

Answer 127

- Apportionment applied for intentional and negligent torts - intentional tortfeasor might usually carry more fault

Answer 128

- Nonparty is someone not in the lawsuit at all - It is common for states to allow apportionment to nonparties - P hates - D likes

Answer 129

- Respondeat Superior - ER is responsible for EE's torts - Not because of fault but because of ER and EE relationship - ER will be liable because: 1) EE (not independent contractor) 2) Tort committed within scope of employment

Answer 130

- "going and coming" rule: commuting to and from work is not within scope of employment (outside scope) - Except if its a "special errand": meaning travel ER requested or part of EE's usual duties (within scope)

Answer 131

- Frolic: complete departure from special errand (outside employment scope) - Detour: minor deviation from special errand (within scope)

Answer 132

- EE's intent - Nature/time/place of conduct - Work EE hired to do - ER's reasonable expectations (act ER should have foreseen EE would do) - EE's freedom in pursuing duties - Amount of time consumed in the activity

Answer 133

- Extent of control/degree of supervision - Distinct nature of the worker's conduct - Worker's specialization/ skill - Material and place of work - Duration of employment - Method of payment - Relationship of work done to the regular business of ER - Parties' (and community's) beliefs

Torts Final Flashcards

(157 cards)