Torts II Midterm Flashcards
1
Q
Contributory negligence
A
older, minority approach; any negligence by P results in total bar to recovery
2
Q
comparative negligence
A
majority view; negligence by P results in reduced recovery
3
Q
assumption of risk [AoR]
A
mostly abandoned; express v. implied; total bar to recovery
4
Q
immunities
negligence: affirmative defenses
A
judicial proceedings, employer, families, charities, governments, tribes, public officers
5
Q
Pure [Full] Comp. Negligence
A
no threshold; % of fault reduces
6
Q
Modified [Partial] Comp. Negligence
A
50% allowed rule [tie to P; majority]
50% Bar rule [tie to D; minority]
P- “is not greater than” D- “is less than”
Additional consideration: Multiple D’s: collective defendants [majority] & Defendant-by-defendant
7
Q
express AoR
A
requries an explicit agreement in words assuming the risk; majority of jurisdictions still recognize with limits
8
Q
Implied AoR
A
by conduct or actions P assumed the risk; majority of jurisdictions no longer recognize; may be subsumed in comparative negligence, leading to primary/secondary implide AoR analyses
8
Q
Seigner v. National Fitness Holding
A
P’s AoR of injury through a pre-injury release from liability will be enforced if the injury is within the scope of the terms of the release aned the release is not in violation of public policy
8
Q
Rush v. Commerical Realty holding
A
P’s actions are not voluntary if P has no choice
9
Q
general elements of AoR
A
- knowledge - P knows and appreciates the risk, including its nature and severity [subjective standard, requires actual knowledge and true appreciation of the risk]
- voluntariness - P takes on risk in an entirely voluntary way [genuine choice]
9
Q
Issues with express AoR
A
- whether jurisdiction considers exculpatory contracts unenforceable due to lack og genuine voluntariness
- most jurisdictions: public necessities [i.e. hospitals, doctors, etc]
- other problem areas: products liabilities cases, employment injury cases
9
Q
Issues with Implied AoR
A
- traditional approach - implied = complete bar to recovery [affirmative defense]
- comparative negligence/modern approach
10
Q
primary implied under comparative negligence
A
no duty; trreatment of “obvious and necessary” risks compared to “obscure or unobserved” ones when establishing existence of duty = complete bar to recovery
11
Q
secondary implied under comparative negligence
A
finding of fault reduced or bars percentage of recovery [D created the risk through negligence but the P appreciated the risk and still assumed it = reduction in damages]
12
Q
Teeters v. Curry holding
A
for purposes of the statute of limitations, the cause of action accrues when the P discovered or should ahve discovered the negligently inflicted injury rather than the time of the injury
13
Q
Freehe v. Freehe holding
A
interspousal immunity is no longer recognized in washington
14
Q
Zellmer v. Zellmer holding
A
Washington decides to retain parental immunity in a case arising out og negligent supervision by a stepparent after having previously abandoned it with respect with intentional torts and situations, like automobile accident cases, where the parents were acting outside their parental capacity
15
Q
Abernathy v. Sisters of St. Mary’s holding
A
the traditional common law doctrine of charitable immunity no longer is recognized in most jurisdictions
16
Q
Riss v. New York holding
A
no duty is imposed on the police that can be enforced through the tort system to protect citizens from crime
17
Q
DeLong v. Erie County holding
A
tort liability against a municipal governmental unit for negligent conduct may be imposed where the government unit negligently provided the service and the P had persoally relied on the government’s assurances
18
Q
Deuser v. Vecera holding
A
the P’s wrongful death action against the U.S. under the Federal Tort Claims Act must fail b/c the actions of the agents of the U.S. the park rangers, fell within the discretionary function exception to the waiver of sovereign immunity
19
Q
what are other immunities
AoR
A
- tribal sovereign immunity
- public officers
- The FTCA through the Westfal Act
public officers - common law official immunity
FTCA - remedy against the US for neglgient acts of its employees is exclusive of any remedy against the employee
20
Q
Bierczynski v. Rogers
Joint Tortfeasors
A
Tortfeasors who engage in concerted action that injured P are bth liable to P
21
Coney v. JLG
## Footnote
Joint Tortfeasors
In IL, tortfeasors will continue to be jointly and severally liable for all plaintiff's damages even after the adoption of comparative negligence principles
22
Bartlett v. New Mexico
## Footnote
Joint Tortfeasors
in N.M., D's are no longer jointly and severally liable for P
s damages. Rather, each tortfeasor shall pay only that portion of the damages that represents the percentage that tortfeasor contributed to the accident
23
Bundt v. Embro
## Footnote
Joint Tortfeasor
P may file as many suits against potential D's as he chooses and may take as many to judgement as he chooses, but P may collect only one full satisfaction
24
Cox v. Pearl Investment
## Footnote
Joint Tortfeasors
The release of one joint tortfeasor releases them all, but a convenant not to sue is not a release and affects the liability only of the parties to it
25
Elbaor v. Smith
## Footnote
Joint Tortfeasors
Mary Carter agreements [whereby one D limits liability by settling with P but staying in the case] are void as against public policy even if they were disclosed to the court and the opposing party
26
Knell v. Feltman
## Footnote
Joint Tortfeasors
Any joint tortfeasor who pays more than his share of the P
s damages may seek contribution [partial reimbursement] from other joint tortfeasors. This right of controbution us not affected by the P's choice of D's and may be enforced through 3rd party claim or separate contribution action if P doesn't join all of the joint tortfeasors
27
Yellow Cab Co v. Dreslin
## Footnote
joint tortfeasors
non-immune tortfeasors cannot collect contribution from immune tortfeasors
28
Slocum v. Donahue
## Footnote
Joint Tortfeasors
Under MA contribution statute, D who has settledf with P is exempt from contribution claim of nonsettling D. Indemnity, which entitled party to full reimbursement of costs of suit, is available where one D is vicariously liable for another's action, but not where D's were concurrent tortfeasors.
29
"Clean Hands" rationale
## Footnote
Negligence Defenses
one justification for the rule is that a court will not aid a plaintiff without "clean hands". the doctrine discourages plaintiffs from being negligent
30
proximate cause rationale
## Footnote
negligent defenses
the general justification is that the plaintiff ebcomes the proximate cause of his own injuries
31
standard of care
## Footnote
negligent defenses
the plaintiff is thus held to the same standard of care as the defendant
32
what are claims that defense is not usable
## Footnote
negligent defenses
contributory negligence doctrine wont work for: intentional torts, willful and wanton negligence; or negligence per se
33
what is willful and wanton negligence
## Footnote
negligence defenses
when the defendant is "willful and wanton" or "reckless" in his negligence, contributory negligence does not apply
34
what is negligence per se
## Footnote
negligence defenses
if a statute was enacted to protect a class of which the plainitff was a member, contributory negligence does not apply
35
define last clear chance
## Footnote
negligence defense
if the defendant had the last conscious and actual opportunity to avoid the harm, and the plaintiff had no such opportunity, then the contributory negligence defense is negated. The doctrine depends upon whether one, both, or neither the plainitff and defendant were inattentive or helpless
36
who can recover when the plaintiff is helpless and the defendant is conscious
## Footnote
last clear chance doctrine
If P is unable to avoid the injury, and the D is aware of the danger but negligent, the P may recover
37
who recovers when the P is helpless and the D is inattentive
## Footnote
last clear chance doctrine
Nost courts allow the P to recover when the D could have but did not see the P
38
who recovers when the P is inattentive and the D is conscious
## Footnote
last clear chance doctrine
Most courts allow the P to recover when the P was not helpless but the D still could have avoided injury
39
who recovers when both parties are inattentive
## Footnote
last clear chance doctrine
few courts apply last clear chance where both parties were negligently inattentive
40
what is qualified assumption of risk
## Footnote
AoR
conduct was unreasonable and bars recovery
## Footnote
think Negligence of LL makes building flammable and man enters it to save his hate
41
discovery rule
## Footnote
AoR
modern courts have held that the statute does not begin running until the P knew or should have known of the injury under the discovery rule = the statute of limitations starts to run when P discovers or ought to have discovered the injury
42
immunities for the parent-child relationship
## Footnote
Immunities
limited to intentional, willful, or wanton injuries, wrongful death actions for another parent's death, step-parents, car accidents, or where the child has been legally emancipated
43
define limited to agency
## Footnote
Immunities
agent is acting within its function
## Footnote
judge would be immune only when acting in his capactiy as a judge
44
does the police have immunity
## Footnote
immunity
yes; liabilityexists only where the police undertook the act and created reliance, where they enlisted the aid of the plaintiff or increased the risk of harm to the plaintiff
45
28 U.S.C. 2680
## Footnote
immunities
United States has waived its immunities from most tort claims. liability occurs when the US or its agents act in the same manner as a private person towards the individual under thoe circumstances
46
restatement (Third) of Torts: Liability for physical and emotional harm §37
## Footnote
general duty rule
An actor whose conduct has not created a risk of phsycial harm to another has no duty of care to the other unless a court determines that an affirmative duty exists
47
Winterbotton v. Wright holding
## Footnote
privity of contract
the defendant could not be liable. liability rested soley in contract which could not extend beyond those in privity of contract
48
MacPherso v. Buick Holding
## Footnote
privity of contract
if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made and there is added knowledge that the thing will be used by persons other than the purchaser without new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully
49
Clagett v. Dacy holding
## Footnote
privity of contract
the court found that the defendant attorneys owed no duty of care to the plaintiff bidders
49
HR Moch v. Rensselaer holding
## Footnote
privity of contract
P owed D no duty of care in neglgience to provide the water at a sufficient pressure
50
Commonwealth v. Peterson
## Footnote
failure to act
even assuming that the commonwealth and employees had a special relationship with the p's no duty of care subsisted to warn of 3rd party criminal acts
51
Hegel v. Langsam holding
## Footnote
failure to act
the university of cincinnati owned no duty of care to protect the minor plaintiff from these influences: no duty was found to regulate the social activities of student
52
whats the differnce between act and failure to act
## Footnote
failure to act
- action = better seen as "conduct that creates a risk of harm" (duty);
- no action = better seen as "conduct that does nto create a risk of harm" (no duty)
53
what is the general rule for failure to act
## Footnote
failure to act
no act no duty; "An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that an affirmative duty exists"
## Footnote
Restatement third of torts: liability for phsycial and emotional harm §37
54
what are special affirmative duty situations
## Footnote
failure to act
(1) voluntarily undertaking a duty of care and (2) special relationships
- parent/child
- employer/employee
- common carrier/passenger
- shopkeeper/patron
55
restatement 2d of torts §323
## Footnote
failure to act
"one who undertakes, gratuitously or for consideration, to render services to another which he shold recognize as necessary for the protection fo the other's person or things, is subject to liability to the other for phsycial harm resulting frmo his failure to exercise reasonable care to perform his undertaking, if - (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered b/c of the other's reliance upon the undertaking"
56
describe special relationships
## Footnote
failure to act
if a defendant has a special relationship with the plaintiff, the defendant may be liable for failure to act if the plaintiff is in peril. such special relationships include parent-child, employer-employee, coon carrier-passenger, and shopkeeper-patron
57
Ayres v. Hicks holding
## Footnote
failure to act
a duty to rescue may be pwed a duty to take positive or affirmative steps where the defendnat controls the instrumentality causing the injury. the duty went to aggravation and damages were limited to the aggravation
58
JS and MS v. RTH holding
## Footnote
failure to act
the spouse of a child molester may have a duty to take reasonable steps to prevent or warn of the molestation
59
tarasoff v. regents holding
## Footnote
failure to act
a duty to exercise reasonable care to protect third persons will subsist once a therapist determines or should have determined that a patient poses a servious danger of violence to those third persons.
60
damages; general rule
## Footnote
pure economic loss
a p should be compensated for all damages, whether past present or prosepctive:
-includes compensation for economic damages
- includes non-economic damages
- nominal damages are not available in negligence cases
61
pure economic loss: damages rule
## Footnote
pure economic loss
pure economic losses that are not accompanied by physical damage to person or property are not compensable
## Footnote
exceptions are accountants and attorneys
62
southern california gas leak
## Footnote
pure economic loss
economic losses caused by mere proximity to an industrial site damaged by negligent actions are not compensable in neglgience. in such cases, the negligent actor does not owe a duty of care to avoid pure economic losses
63
elements for IIED
## Footnote
negligent infliction of emotinal distress
(1) a volitional act
(2) act is "extreme and outrageous conduct" [objective]
(3) intent or reckless to cause severe emotioal distress [subjective]
(4) substantial cause of actual damage
64
restatement third of torts: liability for physical and emotional harm §37
## Footnote
negligent infliction of emotinal distress
"An acotr whose conduct has not crated a risk of physical harm to another has no duty of care to the other unless a court determines that an affirmative duty exists
65
Daley v. LaCroix
## Footnote
negligent infliction of emotinal distress
the court replaces the "physical impact" test with a "defintie and objective physical injury" or "phyical manifestation" test. the court adheres to the requirement that an ordinary person would have suffered such a reaction. P must prove causation, but. apost hoc propter hoc nexus is tolerated when expert evidence would usually be indispensable.
66
Thing v. La Chusa holding
## Footnote
negligent infliction of emotinal distress
court declares that "forseeability" hasn't crystallized unto any satisfactory doctrine and found that a firm-bright-line-rule is requried. damages for emotional distress are recovered if (1) P establishes a close familial relationship;
(2) P is present at the scene and is aware it is causing injury;
(3)P, as a result, suffers "serious emotional distress . . . beyond that of disinterested witnesses and which is not abnormal"
67
NIED that causes physical harm
## Footnote
negligent infliction of emotinal distress
there is a limited duty not to negligently inflict emotional distress where there is a foreseeability risk of physical injury to the plaintiff, PLUS (1) the plaintiff is within the "zone of danger"; and (2) the plaintiff suffers physical symptoms frmo the distress
68
NIED that does NOT cause physical harm
## Footnote
negligent infliction of emotinal distress
"If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotioal disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance
## Footnote
restatement second §436a
69
restatement second, §436(1)
## Footnote
negligent infliction of emotinal distress
if the actor neglgiently causes "fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability
70
restatement second §436
## Footnote
negligent infliction of emotinal distress
(2) if the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another..., the fact that sich harm results soley from the internal operation of fright or other emotional disturnace does not protect the actor from liability
(3) the rule... alos applies where the bodily harm to the other results frmo his shock or fright at harm or peril to a member of his immediate faimly occuring in his presence
71
bystander emotional distress
## Footnote
negligent infliction of emotinal distress
there is a limited duty to not inflict emotional distress on bystanders outside the "zone of danger" pf physical injury who see the defendant negligently injuring another so long as
(1) the P and the person injured by the D are closely related
(2) the P was present at the scene of the injury 9
(3) the P personally observed or perceived the event
72
exceptions where emotional distress often allowed without observation
## Footnote
negligent infliction of emotinal distress
(1) negligent mishandling of a relative's corpse
(2) negligent mistaken report of terminal diagnosis
(3) neglgient mistaken report of a relative's death
73
Endresz v. Friedberg holding
## Footnote
unborn children
no wrongful death action is maintainable b/c the twins were never alive
74
Procanik v. Cillo holding
## Footnote
unborn children
A wrongful life action was available where the D's negligence robs the mother of the choice to abort the child, thus obligating the child into a wrongful life. the damages cover special damages for extraordinary medical expenses during infancy and during majority
75
damages general types
## Footnote
damages
nominal damages, compensatory economic losses, compensatory non-economic losses, punitive [exemplary] damages
76
compensatory damages economic losses
## Footnote
damages
lost wages [past and future]; medical care and rehab
77
compensatory damages non-damages
## Footnote
damages
mental anguish; pain and suffering; life enjoyment; impairement or loss of ability; disfigurement; loss of consortium
78
anderson v. sears holding
## Footnote
damages
discussion of damages in burn injury to minor child as court considerse a motion for remittitur
79
richardson v. chapman holding
## Footnote
damages
damages awarded to Ps rae discussed and tested against the standard of review in IL
80
under economic lossees what do states recognize about medical monitoring
## Footnote
damages
doizen states have recognized medical monitoring in the absence of physical injury, but about twice as mant have rejected it
81
most jurisdictions require the amount of the award be __
## Footnote
damages
present value of the future losses (principal plus interest will equal amount awarded)
82
what are the non-economic losses
## Footnote
damages
loss of function/appearance; loss of enjoyment of life; and per-diem argument
## Footnote
non-economic losses
83
remittitur
## Footnote
damages/ judicial control of amounts recovered
in cases of excessive verdicts, grant a motion for a new trial that is conditioned upon the refusal of the P to accept a lesser amount
84
additur
## Footnote
damages/ judicial control of amounts recovered
when the verdict is inadequate, grant a motion for a new trial that is conditioned upon the refusal of the D to pay a larger sum set by the court
85
generally, what does the court hold about remittitur
## Footnote
damages
been held that remittitur doesn't violate right to jury trial in federal or state constitutions. but additur has been denied to the federal courts and state courts are split
86
collateral source rule v. anderson holding
## Footnote
damages
TF may not benefit from payments made to the P by sources collateral to the TF. a reduction in the amount of the bill frm the hospital for medical services rendered to P after an accident is a collateral source and thus is not admissible in evidence at trial
87
motion in limine
## Footnote
damages
motion made before trial to prohibit one side from referring to ir introducing evidence tha the other side believes is inadmissable and so prejudicial that th emoving party would not get a fair trial if it were mentioned before the judge had a chance to rule on its admissibility during the trial, at the point it was offered.
88
common law collateral source rule
## Footnote
damages
applied when the P recieves compensation from any source other than the tortfeasor
89
loss of consortium
## Footnote
damages
most states recognize a claim by the spouse of an injured person for loss of conjugal relations, society, companionship, household services, etc. the claim is deriviative of the injured person's and in most states must be joined in the cause of action of the injured person
90
market value
## Footnote
damages
what the property could have been sold for on the open market, in the ordinary course of a voluntary sale by a leisurely seller to a willing buyer at the time and place where the wrong occured ; the highest price that could have been realized, not the lowest price at which there reasonably could have been a sale
91
what are the rules for harm to property
## Footnote
damages
-some cases consider personal value
-not usually compesated for sentimental value of pets
-if property damages, compensated the difference in value
-if temporarily deprived, compensated for the rental value
-consequential damages recovered if they are "proximately caused"
92
duty to mitigate damages
## Footnote
damages
a rule that doesn't allow recovery of those damages that P could have avoided by RSBL conduct on the part of the P after a legal wrong has been committed by the D
93
punitive [exemplary] damages
## Footnote
damages
to punish
94
cheatham v. pohle holding
## Footnote
damages
Indiana statute that provides that 75% of every punitive damagse award is to be paid to the state to be used for a violent crime victims compensation fund, with only 25% going to the plaintff is not unconstitutional taking ofproperty without due process. legislature may eliminate or modify common law causes of action without violating the constitution
95
state farm v. campbell holding
## Footnote
damages
three guideposts from BMW:
(1) degree of reprehensibility
(2) no bright line ratios involved
(3) disparity between punies and authorized civil penalties
