Torts II Flashcards
(96 cards)
Joint and severable liability - Definition
Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and each is also individually liable for the full amount. The plaintiff can collect from any one or any group of them
1. There can only be one recovery
3 Situations where joint and severable liability is applied
- Defendants act in concert
- Defendants fail to perform a common duty to the plaintiff
- Defendants act independently to cause indivisible harm (no coordination, but each act together causes injury)
Joint and severable liability - Exception
Unknown defendant (Bartlett v. New Mexico Welding Supply)
a. no way to seek contribution from unknown defendant
b. Erosion of joint and severable liability in the rise of comparative negligence
i. Decreases the injured plaintiff’s ability to recover
ii. Response by deep pocketed insurance companies
Subsequent liability - Definition and factors
- Second injury caused by weakened condition resulting from first injury
a. Factors
i. FIND AND FILL IN
Concurrent Tortfeasors
- Where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have cased it
a. Jx Split: Some states allow you to pick only one D to sue (that D can then, in turn, implead the others) VS. being required to name all D in the initial cause of action
b. Concurrent causes: present when the negligence of one party alone wouldn’t have been enough to cause the incident
i. But-for test does not apply here
Satisfaction
there can be only one satisfaction; occurs when judgment is actually paid out
i. Restatement § 886 (Bundt v. Embro)
ii. Collateral Source Rule – Payments not made by any of the defendants, such as gifts or free services, are not credited against D’s judgment. D is still liable for the free market value of services rendered.
iii. Partial Satisfaction – If P receives a partial satisfaction but it is not denoted as such, cannot recover the rest of judgment
Release
i. A valid release of one tortfeasor from liability, given by the injured person, generally discharges others liable for the same harm
ii. Courts will look to the intent of the parties
iii. Some Jurisdictions allow a release to be set aside if the plaintiff thought there was no injury, and there turned out to be one
1. NOT if they knew they were injured but the injury turned out to be worse than they thought
2. In CA a sore neck is considered knowledge of an injury
Covenant not to sue
i. A covenant not to sue one tortfeasor or not to proceed further against him does not discharge liability from any other tortfeasor
ii. Is NOT a release
Mary Carter Agreements
i. P enters into a settlement agreement with D1, and then D1 assists P in going to trial and seeking damages from the remaining Ds. The Settling D, who remains a party to the case, guarantees P a minimum payment which may be offset by an excess judgment recovered at trial
1. Jx split: some jurisdictions allow some don’t
Contribution
(Knell v. Feltman & Yellow Cab v. Dreslin)
i. Contribution - When one defendant is held liable and he later attempts goes after other defendants for their share of the liability
ii. When the parties are not intentional and willful wrongdoers, but are made so by legal inference or intendment, contribution may be enforced
iii. Negligent tortfeasors can seek contribution from parties not involved in the judgment
iv. Intentional tortfeasors – CANNOT receive contribution from someone not involved in the judgment
Duties owed to persons outside the premises
reasonable care to prevent unreasonable risk of harm (Taylor v. Olsen, Salevan v. Wilmington Park)
a. D is liable if D knew or should have known of the hazard and did not take sufficient precautions to remedy the situation
b. Knew or Should have known:
i. Chance of injury is important (it all depends on circumstances)
ii. D is expected to do more if there is a higher probability of injury to public
iii. Duty is negated if it is a natural condition UNLESS D meddled with nature (though this is less relevant)
iv. There is a difference between urban and rural
ii. The greater the burden on the landowner required for prevention the less reasonable it is
1. If you have 2 trees it is not much burden to inspect them fairly regularly
2. If you own a forest it is a huge burden to know the condition of each tree
c. Exceptions
i. Highway Continuation – you owe a duty if your property is within a reasonable distance from the highway
ii. Alteration of natural conditions
iii. Artificial conditions – if a landowner is using their property in an artificial manner, they have a duty to take reasonable precaution to protect those outside the property; heightened responsibility because you know what is happening and have the ability to buy insurance
d. Read examples on page 498-499
Duties owed to trespassers
A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by possessors consent or otherwise (R. 2d. §329
ii. General Rule: no duty owed to trespassers (Sheehan v. St. Paul & Duluth Ry. Co.)
iii. Exceptions
1. Trespasser whose presence has been discovered
a. Duty to warn or make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover
2. Frequent trespassers on a very limited area of land
a. Owner is required to anticipate trespassers and exercise reasonable care towards them
b. Same duty owed to discovered trespasser
3. Tolerated Intruders – trespass continuously happens but you don’t do anything about it
a. Duty to warn
iv. Other exceptions
1. Dangerous conditions known to the owner
2. Trapped trespassers in peril
Licensee - definition and duty owed
i. A person who is privileged to enter or remain on land by the possessor’s consent but for the Licensee’s own purpose
1. Social guests – licensees because enter the property for “companionship, diversion, entertainment.”
2. Fireman, policemen, etc. are licensees not invitees
ii. Duty Owed - (R. 2d. §342): to warn of known hidden hazards or to make safe known hazards. Subject to liability for physical harm caused by a condition on the land IF:
1. Possessor knows or has reason to know of condition and realizes that it involves an unreasonable risk of harm, and expects that licensee will not discover or realize the danger, and
2. Fails to exercise reasonable care to make condition safe or to warn, and
3. Licensee does not know of condition or risk involved
iii. Some hazards are so dangerous that mere warning is not enough
iv. Children – Increased duty compared to an adult
Invitees - Definition and duty owed
i. Definition – When the entrant goes onto the land in the furtherance of the owner’s business
1. It is not necessary that the invited person gain an advantage by his entry
ii. Duty - to investigate, locate/identify, and warn of or make safe hazards
1. Usually better to fix rather than simply warn.
2. No duty for a Natural Condition unless it is prolonged
3. Duty to invitee greater than duty to Licensee
iii. A regular customer of a business that is open to the public is an invitee, even if he did not purchase something on that particular visit
1. If a person has no intention of presently or in the future of being a customer, he could not be held as an invitee
iv. Examples on page 509
Duty owed to children
i. Attractive nuisance
1. Only liable if child is injured by the precise thing that attracted them to the property
2. Replaced by Artificial Conditions Highly Dangerous to Passing Children
ii. Artificial Conditions Highly Dangerous to Passing Children
1. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
a. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass
b. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or seriously bodily harm; AND
c. The children, due to their age, do not realize the risk associated with their intermeddling
d. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved: AND
e. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
Leassor/Leasee Duty owed
a. General Rule – Landlord is not liable for the tortious acts of the tenant
b. Modern case law usually limits the liability of a landlord arising out of a defective condition existing at the time of the lease to 6 exceptions
c. Exceptions
1. Undisclosed dangerous conditions known to the lessor but not to the lessee
a. Fix or inform
2. Conditions dangerous to persons outside the premises
3. Premises leased for the admission of the public
a. Must be safe at time of transfer
4. Parts of the land retained in the lessor’s control which leasee is entitled to use
a. Stairways, Hallways, etc.
5. Where the lessor contracts to repair
6. Negligence of lessor in making repairs
d. Scope of Landlord’s duty
i. Many jx treat the duty owed to the T the same as the duty to T social guests: General negligence standard—ordinary care (Pagelsdorf: P assisted D and fell off balcony)
ii. T cannot sign a exculpatory clause because T have unequal bargaining power.
iii. Criminal Acts (Kline: T assaulted while in common area of apt. building)
1. The LL is the only one in control of the common areas and is in the best position to protect people on the premises and LL can pass on the cost to all the Tenants
2. The foreseeability of the criminal acts should be very high
Strict Liability - Prima Facie Case
(1) There must be an absolute duty on part of D to make safe;
(2) Breach of Duty;
(3) The breach was the actual and proximate cause of P’s injury; and
(4) Damage to P’s person or property
Applies to Either
Animals
Abnormally dangerous activities
Strict liability - Animals
a. Liability not only for owner. Liability can exist when
i. Keeping
ii. Possessing
iii. Harboring
iv. Owning
b. Wild Animals
i. Not liable for wild animals unless the party possesses or controls the animal
ii. Community/Societal Standards are used to judge what qualifies as a wild animal
c. Domestic Animals
i. An owner is strictly liable for a domestic or inherently nondangerous animal if the owner has knowledge of that particular animal’s dangerous propensities abnormal to its class (dog; cat; etc.).
d. Injury must be caused by the thing that makes the animal dangerous (the dangerous propensity)
e. If warn (ex: “beware of dog” sign) no strict liability but can still be negligent
f. Trespassing Animals – the owner is strictly liable for the damage done by the trespass of his animals (other than household pets; Dogs, cats) as long as it was reasonably foreseeable
i. Fencing out laws - Strict liability if plaintiff has built a fence to “fence out” wandering animals and defendant’s animals cross the fence
ii. Fencing in laws – Must fence in animals, strict liability when escape
Strict Liability - abnormally dangerous activity 2 Requirements
i. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
ii. The activity is not a matter of common usage in the community
Strict Liability - factors to determine “abnormally dangerous activity
c. Rest 520 - Factors considered in determining abnormally dangerous activities
i. Existence of a high degree of risk of harm to the person, land or chattels of others;
ii. Likelihood that the harm that results from it will be great;
iii. Inability to eliminate the risk by the exercise of reasonably care;
1. (Most likely to be tested on)
iv. Extent to which the activity is not a matter of common usage
v. Inappropriateness of the activity to the place where it is carried out; and
vi. Extent to which its value to the community is outweighed by its dangerous attributes
Strict liability - Some activities courts have found to be abnormally dangerous
i. Pile driving
ii. Crop dusting
iii. Storage of toxic chemicals
iv. Fumigation with toxic chemicals
v. Testing of rockets
vi. Operation of plutonium production facility
vii. Operation of hazardous waste disposal sites
viii. Operation of oil wells
Strict liability - Proximate cause and scope
g. Proximate Cause is the same as in negligence—D’s liability can be cut off by unforeseeable intervening forces. (more likely to find it unforeseeable)
i. Scope/Limitations
1. Duty owed to foreseeable P (Golden): persons to whom a reasonable person would have foreseen a risk of harm under the circumstances
a. D is not liable if D had no reason to anticipate the harmful result (unprecedented earthquake).
b. Remember that proximate cause is narrower than in Neg.
c. Look for language like: Extraordinary/once-in-a-generation
d. Third Party Act cannot give rise to SL even though the harm was caused by the activity which made the activity abnormally dangerous.
2. The harm must result from the type of danger to be anticipated from the dangerous animal or abnormally dangerous activity (it must flow from the normally dangerous propensity of the condition or thing involved) (Foster: Mink mother); relates to Prox. Cause.
a. Knowledge that activity would result in normally unforeseeable harm does not affect SL but does for Neg.
Strict liability defenses
h. Defenses (Sandy)
i. Contributory Negligence—ONLY a defense if P knew of the danger and his unreasonable conduct was the very cause of the abnormally dangerous activity miscarrying.
ii. Assumption of Risk: affirmative defense in contributory neg. jx
iii. Comparative Neg. States: Same as Neg
Products liability - Negligence warranty
(McPhereson) – Standard Negligence analysis
i) Duty to inspect
