torts rules midterm

Question 1

Contributory negligence

Answer 1

older, minority approach; any negligence by P results in total bar to recovery

Question 2

comparative negligence

Answer 2

majority view; negligence by P results in reduced recovery

Question 3

assumption of risk [AoR]

Answer 3

mostly abandoned; express v. implied; total bar to recovery

Question 4

immunities

Answer 4

judicial proceedings, employer, families, charities, governments, tribes, public officers

Question 5

Pure [Full] Comp. Negligence

Answer 5

no threshold; % of fault reduces

Question 6

Modified [Partial] Comp. Negligence

Answer 6

50% allowed rule [tie to P; majority]
50% Bar rule [tie to D; minority]

Question 7

express AoR

Answer 7

requries an explicit agreement in words assuming the risk; majority of jurisdictions still recognize with limits

Question 8

Implied AoR

Answer 8

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

Question 9

general elements of AoR

Answer 9

1. knowledge - P knows and appreciates the risk, including its nature and severity [subjective standard, requires actual knowledge and true appreciation of the risk]
2. voluntariness - P takes on risk in an entirely voluntary way [genuine choice]

Question 10

Issues with express AoR

Answer 10

1. whether jurisdiction considers exculpatory contracts unenforceable due to lack og genuine voluntariness
2. most jurisdictions: public necessities [i.e. hospitals, doctors, etc]
3. other problem areas: products liabilities cases, employment injury cases

Question 11

Issues with Implied AoR

Answer 11

1. traditional approach - implied = complete bar to recovery [affirmative defense]
2. comparative negligence/modern approach

Question 12

primary implied under comparative negligence

Answer 12

no duty; trreatment of “obvious and necessary” risks compared to “obscure or unobserved” ones when establishing existence of duty = complete bar to recovery

Question 13

secondary implied under comparative negligence

Answer 13

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]

Question 14

what are other immunities

Answer 14

1. tribal sovereign immunity
2. public officers
3. The FTCA through the Westfal Act

Question 15

“Clean Hands” rationale

Answer 15

one justification for the rule is that a court will not aid a plaintiff without “clean hands”. the doctrine discourages plaintiffs from being negligent

Question 16

proximate cause rationale

Answer 16

the general justification is that the plaintiff ebcomes the proximate cause of his own injuries

Question 17

standard of care

Answer 17

the plaintiff is thus held to the same standard of care as the defendant

Question 18

what are claims that defense is not usable

Answer 18

contributory negligence doctrine wont work for: intentional torts, willful and wanton negligence; or negligence per se

Question 19

what is willful and wanton negligence

Answer 19

when the defendant is “willful and wanton” or “reckless” in his negligence, contributory negligence does not apply

Question 20

what is negligence per se

Answer 20

if a statute was enacted to protect a class of which the plainitff was a member, contributory negligence does not apply

Question 21

define last clear chance

Answer 21

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

Question 22

who can recover when the plaintiff is helpless and the defendant is conscious

Answer 22

If P is unable to avoid the injury, and the D is aware of the danger but negligent, the P may recover

Question 23

who recovers when the P is helpless and the D is inattentive

Answer 23

Nost courts allow the P to recover when the D could have but did not see the P

Question 24

who recovers when the P is inattentive and the D is conscious

Answer 24

Most courts allow the P to recover when the P was not helpless but the D still could have avoided injury

Question 25

who recovers when both parties are inattentive

Answer 25

few courts apply last clear chance where both parties were negligently inattentive

Question 26

what is qualified assumption of risk

Answer 26

conduct was unreasonable and bars recovery

Question 27

discovery rule

Answer 27

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

Question 28

immunities for the parent-child relationship

Answer 28

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

Question 29

define limited to agency

Answer 29

agent is acting within its function

Question 30

does the police have immunity

Answer 30

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

Question 31

28 U.S.C. 2680

Answer 31

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

Question 32

restatement (Third) of Torts: Liability for physical and emotional harm §37

Answer 32

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

Question 33

whats the differnce between act and failure to act

Answer 33

• 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)

Question 34

what is the general rule for failure to act

Answer 34

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”

Question 35

what are special affirmative duty situations

Answer 35

(1) voluntarily undertaking a duty of care and (2) special relationships
- parent/child
- employer/employee
- common carrier/passenger
- shopkeeper/patron

Question 36

restatement 2d of torts §323

Answer 36

“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”

Question 37

describe special relationships

Answer 37

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

Question 38

damages; general rule

Answer 38

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

Question 39

pure economic loss: damages rule

Answer 39

pure economic losses that are not accompanied by physical damage to person or property are not compensable

Question 40

elements for IIED

Answer 40

(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

Question 41

restatement third of torts: liability for physical and emotional harm §37

Answer 41

“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

Question 42

NIED that causes physical harm

Answer 42

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

Question 43

NIED that does NOT cause physical harm

Answer 43

“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

Question 44

restatement second, §436(1)

Answer 44

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

Question 45

restatement second §436

Answer 45

(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

Question 46

bystander emotional distress

Answer 46

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

Question 47

exceptions where emotional distress often allowed without observation

Answer 47

(1) negligent mishandling of a relative’s corpse
(2) negligent mistaken report of terminal diagnosis
(3) neglgient mistaken report of a relative’s death

Question 48

damages general types

Answer 48

nominal damages, compensatory economic losses, compensatory non-economic losses, punitive [exemplary] damages

Question 49

compensatory damages economic losses

Answer 49

lost wages [past and future]; medical care and rehab

Question 50

compensatory damages non-damages

Answer 50

mental anguish; pain and suffering; life enjoyment; impairement or loss of ability; disfigurement; loss of consortium

Question 51

under economic lossees what do states recognize about medical monitoring

Answer 51

doizen states have recognized medical monitoring in the absence of physical injury, but about twice as mant have rejected it

Question 52

most jurisdictions require the amount of the award be __

Answer 52

present value of the future losses (principal plus interest will equal amount awarded)

Question 53

what are the non-economic losses

Answer 53

loss of function/appearance; loss of enjoyment of life; and per-diem argument

Question 54

remittitur

Answer 54

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

Question 55

additur

Answer 55

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

Question 56

generally, what does the court hold about remittitur

Answer 56

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

Question 57

motion in limine

Answer 57

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.

Question 58

common law collateral source rule

Answer 58

applied when the P recieves compensation from any source other than the tortfeasor

Question 59

loss of consortium

Answer 59

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

Question 60

market value

Answer 60

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

Question 61

what are the rules for harm to property

Answer 61

-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”

Question 62

duty to mitigate damages

Answer 62

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

Question 63

punitive [exemplary] damages

Answer 63

to punish

Question 64

three guideposts from BMW

Answer 64

(1) degree of reprehensibility
(2) no bright line ratios involved
(3) disparity between punies and authorized civil penalties