Term
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Definition
| Casual comments from people on the street may have a 1st A privilege for their comments. In the workplace, b/c the EE is at a power disadvantage and is not always able to walk away from the insult, that may add to the extremity and outrageousness of the ER's conduct. |
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Term
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Definition
| Old common law ruled there could be no recovery for fright or its consequences (miscarriage) without physical contact (no proximate cause existed). |
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Term
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Definition
| To establish a cause of action for IIED in the workplace, an EE must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct. |
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Term
| Grube v. Union Pacific RR |
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Definition
| Under the "zone of danger" test, a worker at risk of physical impact may recover for emotional injury caused by his apprehension, whereas a worker outside the zone will not. Fear for one's safety must be expressed at or near the time of danger in order to prevail. |
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Term
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Definition
| CA went beyond the zone of danger rule by permitting recovery for emtional harm to persons who were merely bystanders. |
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Term
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Definition
Dillon was too broad. Now, P may recover damages for emotional distress caused by observing the negligently inflicted injury of a 3rd person, but only if said P:
1. is closely related to the injured victim;
2. is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and
3. as a result, suffers serious emotional distress - a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. |
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Term
| Burgess v. Superior Court |
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Definition
CA split emotional harm cases into 2 categories:
1. P is a bystander, with no preexisting relationship with D (no duty to protect existed), and LaChusa rules apply;
2. P is a direct victim, had preexisting relationship with D (duty to protect existed), and LaChusa rules do not apply. |
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Term
| Boucher v. Dixie Medical Center |
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Definition
| Unsuccessfully attempted to extend the loss of consortium concept to an adult child. |
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Term
| Washington v. John T. Rhines Co. |
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Definition
| P claimed emotional distress for funeral home's lack of professionalism and due care in her husband's funeral arrangements (rotting green cadaver). The courts dismissed the complaint, since P was not in the zone of danger. |
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Term
| Potter v. Firestone Tire & Rubber Co. |
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Definition
| A toxic exposure P need not meet the "more likely than not" threshold for fear of cancer recovery in a negligence action if the P pleads and proves oppression, fraud, or malice by the D's conduct. |
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Term
| Hartwig v. Oregon Trail Eye Clinic |
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Definition
| P who sustains a minimal physical injury caused by D's negligence may recover damages for anxiety and mental suffering occasioned by her fear of AIDS or HIV infection, even absent a showing of actual exposure to blood or body fluid so infected. |
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Term
| Edgewater Motels, Inc. v. Gatzke |
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Definition
| An EE does not abandon his employment as a matter of law while temporarily acting for his personal comfort when such activities involve only slight deviations from work that are reasonable under the circumstances, such as eating, drinking, or smoking. An ER can be held vicariously liable for his EE's negligent smoking of a cigarette if he was otherwise acting in the scope of his employment at the time of the negligent act. |
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Term
| Lisa M. v. Henry Mayo Newhall Mem. Hosp. |
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Definition
| In addition to but for causation, vicarious liability requires the risk of the tort to have been engendered by, typical of, or broadly incidental to, or a generally foreseeable consequence of, the enterprise. |
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Term
| Rodebush v. Oklahoma Nursing Homes, Inc. |
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Definition
| ER was held vicariously liable for EE's slap of a resident b/c it arose from some impulse of emotion which naturally grew out of, or was incident to, the attempt to perform the master's business. |
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Term
| Fahrendorf v. North Homes, Inc. |
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Definition
| Vicarious liability is a jury question. |
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Term
| Lee v. Crookston Coca-Cola Bottling Co. |
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Definition
| A case may be submitted the the jury under both negligence and strict liability theories even though all the P's evidence is strictly circumstantial, i.e., the defect may be inferred. |
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Term
| Mexicali Rose v. Superior Court |
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Definition
| A bone is naturally occurring in the food, so it can't be a defect. (Dissent: the consumer expectation test would reason that the bones should have been removed.) |
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Term
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Definition
| A product may be found to be defective in design if it is shown that the product failed to perform as safely as an ordinary consumer would expect when used in the intended or reasonably foreseeable manner. |
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Term
Knitz v. Minster Machine Co.
(not Monster Machine, Marsha!) |
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Definition
The consumer expectation test is inadequate for all situations. The risk utility test is an alternative. 7 factors:
1. the usefulness and desirability of the product.
2. probability and magnitude of potential injury.
3. availability of substitutes.
4. manufacturer's ability to eliminate unsafe characteristics of the product.
5. consumer's ability to avoid danger.
6. consumer's probable awareness of the danger.
7. manufacurer's ability to spread the loss. |
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Term
| Barker v. Lull Engineering Co. |
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Definition
A product is defective in design if the:
1. P demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, OR
2. D fails to prove that on balance the benefits of the design outweigh the risks of danger inherent is such design. |
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Term
| Wilson v.Piper Aircraft Corp. |
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Definition
| In order to get to the jury when alleging a design defect, a P must prove that the suggested alternatives are both technically feasible and practicable in terms of cost and overall design and operation of the product at the time it was manufactured. |
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Term
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Definition
| When a product is dangerous by design, the mere fact that someone is injured by it will not cause the manufacturer to be held liable. There must be something wrong with the product that causes injury, and if nothing is wrong there will be no liability. |
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Term
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Definition
| Obvious hazards still require warnings because the warning not only notifies the person of the hazard; it also provides notice of less dangerous ways of proceeding. |
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Term
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Definition
| Warnings must be reasonably clear, of sufficient intensity, and in such form to convey the types of risk and their extent to a reasonable person. |
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Term
| Bittner v. American Honda Motor Corp. |
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Definition
| In proving a product is unreasonably dangerous, a P may only introduce comparative risk evidence respecting substantially similar products and activities. |
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Term
| Turpin v. Merrell Dow Pharmaceuticals, Inc. |
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Definition
| Courts are required to closely scrutinize evidence and testimony by experts to assure that Ps have met their burden of proof before turning the issues over to the jury. |
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Term
| Daubert v. Merrell Dow Pharmaceuticals, Inc. |
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Definition
Scientific opinion can be admitted as trial evidence, even though it is not generally accepted. To admit evidence, a judge should consider:
1. whether the expert's theory has been tested,
2. whether it has been subjected to peer review,
3. whether it has a known potential error rate,
4. whether it is generally accepted. |
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Term
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Definition
| This case followed the minority view that contributory negligence by a P in a strict liability suit should not be considered in assessing liability for damages, but assumption of risk by a P is a complete affirmative defense for the D. (The majority of courts would apply comparative fault principles.) |
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Term
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Definition
| The 1st A provides a privilege to Ds in an action for defamation of a public official. |
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Term
| Gertz v. Robert Welch, Inc. |
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Definition
| The 1st A provides no privilege to those who negligently publish defamatory statements of public interest concerning a private individual. |
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Term
| Dun & Bradstreet v. Greenmoss Builders, Inc. |
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Definition
| States are free to impose strict liability for defamation of a private individual on a matter that is of private concern. |
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Term
| Ollerman v. O'Rourke Co., Inc. |
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Definition
| A seller has a duty to disclose known material facts that are known to the vendor and not readily discernable by the purchaser. Silence is equivalent to a misrepresentation of fact. |
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Term
| Hymowitz v. Eli Lilly & Co. |
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Definition
| In DES cases, where it is impossible to determine which D manufacturer's DES caused any given P's injuries, any D manufacturer that participated in marketing DES may be held liable proportional to its market share of the national DES market. |
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Term
| Cartel Capital Corp. v. Fireco of NJ |
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Definition
| If a joint tortfeasor settles with the P, and the P obtains a judgment against the other co-tortfeasors, the co-tortfeasors may seek contribution to the extent they paid more than their share of the responsibility, but the P's claim at trial must be reduced by the settling tortfeasor's share of the responsibility. |
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Term
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Definition
| Children under 6 years of age are incapable of negligence. |
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Term
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Definition
| A jury can find an express AOR even though there was no written document at all. |
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Term
| Tunkl v. Regents of the University of CA |
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Definition
| A compulsory AOR of another’s negligence will not be held to be a valid contractual shifting of the risk. |
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Term
| Ciafalo v. Vic Tanney Gyms |
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Definition
| Exculpatory clauses are closely scrutinized and in some cases will not be given effect, as where such clauses are asserted by common carriers or public utilities or by employers as conditions of employment. |
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Term
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Definition
| There is no distinction between contributory negligence and assumption of the risk when raised as a defense to an established breach of duty. |
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Term
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Definition
| A P who voluntarily consents, either expressly or impliedly, to exposure to a known risk cannot later sue for damages incurred from exposure to that risk. In deciding whether a P had knowledge and appreciation of a particular risk, we apply an objective standard. This is generally a question for the trier of fact (judge). |
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Term
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Definition
| Where primary assumption of the risk exists, there is no liability to the P, because there is no negligence on the part of the D to begin with. What the P assumes is not the risk of injury, but the use of reasonable care on the part of the D. |
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Term
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Definition
| If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, there can be no liability if he is injured as a result of those risks. |
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Term
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Definition
| Discovery doctrine: The SOL begins to run when a RPP associates his symptoms with a serious or permanent condition and at the same time perceives the role that the D has played in inducing that condition. |
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Term
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Definition
| Regarding the discovery rule, is there a difference between forgetting and repression? McG thinks the discussion should be whether the P would have an opportunity to make their case in court, not that the theory is a guarantee of collecting an award. |
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Term
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Definition
| The statutory abolition of the assumption of risk defense did not implicitly abolish the defense that a landowner has no duty to warn of and open and obvious danger. Where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it and, therefore, the landowner is not required to give any further warning. |
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Term
| Pinter v. American Family Mutual Ins. Co. |
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Definition
| By public policy, the firefighter’s rule extends to an EMT who is injured while rendering aid at the scene of an accident. |
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Term
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Definition
Factors to determine whether immunity should be conferred upon landowners are:
1. Closeness of connection between the injury and the Δ’s conduct,
2. The moral blame attached to the Δ’s conduct,
3. The policy of preventing future harm, and
4. The prevalence and availability of insurance |
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Term
| Pagelsdorf v. Safeco Ins. Co. |
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Definition
Court overturned the traditional general rule of lessee’s duties (LL was not liable if a guest got harmed on the property), and held the LL liable because they felt it was a better public policy for the LL to a duty to exercise ordinary care in the maintenance of the premises. Exceptions:
1. If there was a contract for LL to repair or maintain
2. Latent defects remained with the LL’s duty
3. Leasing the land for public use. |
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Term
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Definition
| You must use expert testimony to establish the standard of care. It is insufficient for a P, in establishing a prima facie case, merely to present testimony from another physician that he would have acted differently from the Δ. |
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Term
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Definition
| The current trend is to hold doctors to a generally applicable standard, and use locality as a factor in determining whether there was a deviation from the standard. |
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Term
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Definition
| Expert testimony is required to establish that the Δ departed from the standard of care and that departure caused the P’s injury. |
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Term
| Kelly v. Hartford Casualty Ins. Co. |
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Definition
| RIL may be invoked in a medical malpractice action where a layman is able to say as a matter of common knowledge that the consequences of the treatment are not those which ordinarily result if due care is exercised. |
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Term
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Definition
| The use of RIL held the Δs hostage with the threat of liability until the negligent actor was exposed. In spite of the fact that some were hospital employees and some independent contractors, for purposes of the procedure, they were servants of the doctor in charge and respondeat superior would apply. |
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Term
| Name the 5 instances where the NRS allows RIL in medical malpractice cases. |
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Definition
1) Sponges and stuff left in the body
2) Explosion or fire in the course of treatment
3) Unintended burn by heat, radiation, or chemicals
4) Injury to part of body not intended to be treated
5) Surgery on wrong patient or wrong part of patient’s body |
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Term
| Harnish v. Children’s Hospital Medical Center |
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Definition
| A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure. |
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Term
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Definition
| Here, the issue of what a patient finds material is a question for the jury that need not be proved by expert testimony. (Some courts require an expert to determine what a doctor must disclose.) |
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Term
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Definition
| A doctor may also have a duty to disclose the risks of refusing to undergo a procedure, if the patient indicates that is her intention. |
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Term
| NV Good Samaritan law: NRS 41.500 |
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Definition
1. Any person is not liable for negligence, but they are liable for gross negligence while rendering emergency care gratuitously and in good faith.
2. NRS 41.505 - MDs Dentists, nurses (no mention of “gratuitously”) |
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Term
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Definition
| There is no duty to rescue or assist one who is in a position of peril. |
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Term
| South v. National RR Passenger Corp. |
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Definition
| A person who knows or should know that his conduct, whether tortious or innocent, has caused harm to another has an affirmative duty to render assistance to prevent further harm. If such duty is breached, liability exists. |
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Term
| Maldonado v. Southern Pacific Transportation Co. |
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Definition
| There is an independent duty to aid when harm is caused by Δ or his instrumentality, and if Δ’s failure to assist aggravates the injury, Δ can be held liable, even if his original conduct was not a legal cause of the aggravation and even if the P was guilty of contributory negligence in the original harm. |
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Term
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Definition
| Special relationships are an exception to the “no duty to act” rule and create a duty to aid in times of peril. |
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Term
| List 5 categories of special relationship |
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Definition
1. Carrier-passenger
2. Innkeeper-guest
3. Employer-employee
4. Landowner-invitee
5. Custodian-ward |
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Term
| DeShaney v. Winnebago Co. Dept. of Social Services |
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Definition
| A public entity must have custody of another to hold it liable for deprivation of federal due process rights by failing to prevent harm caused by a third person. |
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Term
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Definition
| There is a constitutional duty of due care, even in the absence of actual custody, where the public entity takes guardianship of a child and then fails to exercise appropriate supervision with respect to multiple placements in foster homes resulting in injury to the child. |
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Term
| How is KH v. Morgan different from DeShaney? |
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Definition
a) Custodial v. non-custodial
b) Discrimination
c) Entitlement to protection was taken without due process
d) Officials actively created the danger that resulted in the harm. |
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Term
| Sinthasomphone v. City of Milwaukee |
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Definition
| A city may be liable for constitutional violations where police affirmatively act in a manner that may create a special relationship with the victim and the victim is killed by a third person. |
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Term
| Posecai v. Wal-Mart Stores, Inc. |
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Definition
The balancing test was used to determine when business owners owe a duty to provide security for their patrons. Considerations include:
1. Security is a significant business expense
2. Businesses are not responsible for endemic crime
3. Businesses are in the best position to appreciate crime risks
a) A high degree of foreseeability is required to incur a duty for businesses to post security guards
b) A lower degree may support a duty to use surveillance cameras, improve lighting, fencing and landscaping.
4. McG thinks Sam’s mega $ corporate profits ought to be thrown in the mix. |
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Term
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Definition
| The general rule is that in the absence of some special relationship, a private person has no duty to protect another. A 3rd person actor breaks the chain of causation. Here, there was no duty because the host-social guest relationship is not such a special relationship as to impose a duty. |
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Term
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Definition
This case presented 3 issues:
1. The reporting statute did not support a private right of action for its violation because there was no express or implied legislative intent to create such civil liability.
2. There was no negligence per se because the statute on reporting abuse was considerably different than the duty to supervise.
3. Some employees owe a duty to protect, based on their relationships to the students. The scope of the duty imposed is limited by what risks are reasonably foreseeable. Factors to find a special relationship exists include:
a) School attendance is compulsory, and through in loco parentis, obligates the school to protect and supervise children as a parent would.
b) Expectations of students and parents that schools will be a safe place.
c) Importance of learning to society.
d) Society’s interest in protecting Ps is greater than the liability concerns of Δs.
e) The duty is limited to periods when parental protection is compromised.
f) Off premises or off hours harms may be covered if the Δ acted within the scope of his duty.
g) Liability may incur to the supervisor for negligent hiring, negligent retention, or failure to supervise.
h) These factors may create liability for failure to report under the statute. |
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Term
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Definition
| Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed arises from the doctrine of in loco parentis (the school standing in the place of the parents). |
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Term
| Fazzolari v. Portland School District |
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Definition
| The school’s liability was based on its relationship with the student (rather than the ownership of the property); the duty may apply both on the premises and off. The scope of the school’s duty does not exclude liability for acts inflicted by third persons. |
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Term
| Tarasoff v. Regents of University of CA |
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Definition
| The court found a special relationship existed between the patient and his doctor or therapist. That relationship supports affirmative duties for the benefit of 3rd persons. Hospitals must control patients who may harm others. Doctors must warn patients about medication hazards. The therapist owes a legal duty not only to his patient, but also to his patient’s would-be victim and is subject in both respects to scrutiny by a judge and jury. The ultimate question of resolving the interests of patient and victim is one of social policy, not therapist expertise. |
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Term
| Thompson v. County of Alameda |
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Definition
| 4 years after Tarasoff, the CA court refused to impose liability on a county that had released a dangerous criminal who threatened to kill an unnamed child, and after his release did so. “In those cases where the released offender poses a predictable threat of harm to a named or readily identifiable victim, a releasing agent may well be liable for failure to warn such persons.” |
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Term
| Eisel v. Board of Education of Montgomery County |
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Definition
| Students told counselors a girl was suicidal, the counselors talked to the girl, she denied it and later died in a murder-suicide pact. The MD court held the counselors were under a duty to use reasonable means to attempt to head off the suicide, and the risk did not disappear just because the girl denied it. [A CA court later refused to recognize a therapist’s duty to protect a suicidal patient.] |
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Term
| DiMarco v. Lynch Homes-Chester County, Inc. |
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Definition
| The doctor’s duty extends to those within the foreseeable orbit of risk of harm. The class of persons likely to be harmed includes anyone who is likely to be physically intimate with the patient. |
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Term
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Definition
| The court held the doctor was under no duty to warn. The patient was “in the best position” to know her vision was failing, and the injury was unforeseeable. The statute did not create a cause of action. DiMarco was not applicable, because this was not a contagious disease. |
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Term
| Brigance v. Velvet Dove Restaurant, Inc. |
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Definition
| The theory in the old days was that the person’s actions were voluntary (AOR), therefore the shop owner was not liable for selling them booze. Now days we recognize there can be more than one proximate cause, and the liability would extend to the tavern owner to reduce danger to the rest of the public, due to foreseeability. Once you see that foreseeability is the lynch pin it’s easy to justify today’s thinking. The old rule that the tavern owners were not liable is no good anymore. Third persons may sue the vendor of liquor for their injuries. Now social host liability is following in the same path. Tort goals are deterrence & compensation (not to be confused with retribution, which is a criminal concept). |
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