Torts Flashcards

Question

Torts: Negligence - Damages "Eggshell Skull Doctrine"

Answer 1

D is liable for all injuries suffered by P even if they are surprisingly great MD Distinction - cap for pain and suffering APPLICABLE FOR EVERY TORT

Answer 2

1. Contributory Negligence - Evidence that P did not exercise proper care for his own safety - absolute bar to recovery Exception: Last clear chance doctrine - After P's negligent act, D had a further opportunity to fix it and blew it 2. Implied Assumption of Risk - P KNOWS he is interacting with a negligent defendant and VOLUNTARILY chooses to encounter that risk 3. Comparative Negligence - Faulty P is assigned a percentage of blame by the jury; recovery is reduced based on the percentage of at fault

Answer 3

1. Not strictly liable for house pets or livestock unless animal is particularly viscious for an animal of its kind 2. If you keep a wild animal you are held strictly liable - regardless of the safety precautions you take

Answer 4

Strictly liable if engaging in activity that: 1. Creates a foreseeable risk of serious harm when reasonable care is exercised 2. Activity is not a matter of common usage in the community where defendant performs it (blasting, super dangerous chemical or biological materials, and anything involving nuclear energy)

Answer 5

4 Elements for strict liability 1. Defendant must be a merchant 2. Product must be defective (a) Manufacturing defect (b) Design defect (c) Failure to warn 3. Product has not been altered since it left the D's hands 4. P must be making a foreseeable use of the product at the time of the injury - MISUSE IS NOT THE TEST

Answer 6

Variation on comparative negligence Any P's stupidity or carelessness will result in an assignment of percentage numbers and a reduction in recovery

Answer 7

D unreasonably interferes with P's right to use and enjoy his property Look for the answer that says "P wins if his ability to use and enjoy his land has been interfered with to an unreasonable degree" OR look for the answer choice balancing the interests

Answer 8

Always about 4 kinds of relationships 1. Employer and an employee - ---Frolic or detour - ---Normally outside the scope, unless the boss has granted the right of the employee to use force and employee uses excessive force 2. Hiring party and independent contractor 3. Car owner and driver - ---No vicarious liability unless the driver is running an errand for the owner 4. Parent and child - --Parent is NEVER held vicariously liable for child's torts

Answer 9

One defendant pays the judgment and wants to be reimbursed by the other defendants - Paying defendant recovers based upon 1. MBE - Assign each defendant a percentage based on their respective degrees of blame 2. MD - Even, fractional shares Can get full reimbursement if INDEMNIFICATION: 1. A vicariously liable defendant can be indemnified by the other defendant 2. In strict products liablity cases, a non-manufacturer, can get indemnification from the manufacturer

Answer 10

Where victim of tort is married, the uninjured spouse gets a derivative claim in his or her own name against all the same defendants ---Defendants can assert any defense against uninjured spouse that they could have asserted against the victim 3 situtations: 1. Loss of services – with my spouse injured there is nobody to cook the meals, do the laundry, mow the lawn 2. Loss of society (companionship) – with my spouse injured I have nobody to talk to 3. Loss of sex – with my spouse injured I’m not getting sex

Answer 11

D uses P's name or image for a commercial advantage

Answer 12

An invasion of P's physical seclusion in a way that is highly offensive to an average person

Answer 13

Widespread dissemination of a major falsehood about the P that would be highly offensive to an average person.

Answer 14

The widespread dissemination of confidential info about the P that would be highly offensive to an average person.

Answer 15

1. Consent | 2. Defamation privileges (absolute and qualified) are available to defend false light and disclosure claims

Answer 16

Remember: Dead Babies Can't Dance 1. Duty 2. Breach 3. Causation 4. Damages

Answer 17

Ask 2 Questions: 1. To whom do you owe a duty of care? - Foreseeable victims only- only those w/in Zone of Danger are foreseeable BUT, rescuers are always foreseeable, don't need to be in zone of danger 2. How much care must be exercised? - As much as would be exercised by a reasonably prudent person acting under similar circumstances - EXCEPTIONS: a. If D has superior skill or knowledge, the standard becomes an RPP w/ same skill or knowledge b. Where relevant the RPP is presumed to have same physical characteristics as the P.

Answer 18

- under age of 5 owe no DOC, - 5-18yo owe DOC of hypothetical child of similar age, experience and intelligence acting under similar circs. UNLESS, child is engaged in adult activity

Answer 19

Malpractice Claims- professional owes a client or patient the care of an average member of same profession practicing in a similar community

Answer 20

P encounters a dangerous or hazardous condition while on someone else's property. 4 SOC based on entrant: 1. Undiscovered Trespasser - No DOC 2. Discovered/ Anticipated Trespasser - Duty to protect if condition is ARTIFICIAL, HIGHLY DANGEROUS, CONCEALED, and property possessor KNEW about it in ADVANCE 3. Licensee - Enters land w/ permission, but no econ benefit conferred on possessor - Duty when condition is CONCEALED and possessor KNEW about it 4. Invitees - Enters w/ permission and confers econ benefit or land generally open to public - Condition must be CONCEALED and possessor either KNOWS or COULD HAVE DISCOVERED w/ reasonable inspection

Answer 21

``` When a criminal statute governs the conduct that leads to an accident that is now the action of a negligence lawsuit and P wants to borrow the statute as the standard DOC. - P can borrow if he shows he is a member of a class of persons the statute is trying to protect and that the accident is in the class of risks that the statute is trying to prevent ``` Exceptions: don't use if statutory compliance would be more dangerous that statutory violation or if compliance would have been impossible under the circumstances

Answer 22

There is never a duty to act affirmatively. - Good Samaritan: liable if they rescue carelessly or negligently - Good Sam laws: enacted b/c the law inhibits voluntary rescue, but MD only protects ppl in certain occupations Exceptions: 1. Pre-existing relationship can trigger a duty- Innkeeper/Guest; Business/Business Invitee 2. When D puts P in peril

Torts Flashcards

(46 cards)