Term
| What are the Torts actual cause tests? |
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Definition
1. But-for test
2. Substantial factor test- When but-for fails. Negligence inferred when.
a. Negligent act is deemed wrong b/c it increases a chance . of a particle type of mishap.
b. That type of mishap actually happens as a result of (a.)
2. Lost chance recovery- Dr. fails to conduct correct tests (or something like that) and P's chance of living decreases. Can recover for that lost chance.
3.Joint and several liability (separate card)
4. Alternative J&S liability
5. Market share liability |
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Term
| What is joint and several liability? |
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Definition
1.The defendants are individually and group liable.
2. One D can pay and demand pro rata contribution from other D's.
3. Some have divided into comparative negligence. |
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Term
| How have jurisdictions divided joint liability into comparative negligence? |
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Definition
1. D is liable for only his portion if another d is insolvent. or
2. If D is less than threshold responsible then no joint and several liability. or
3. Some states retain for traditional damages. (not pain and suffering etc) or
4. some abolish when P is at fault, but retain if P not at fault.
5. some relocate % share of insolvent defendants to non insolvent D's in propotion to their respective shares of fault
6. some have abolished in most torts but retain in a few areas such as environmental torts. |
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Term
| When can burden of proof be shifted to the D in joint and several liability? |
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Definition
1. All d's must be negligent in a similar way
2. must be a situation in which circumstances do not allow plaintiff to show which of the d's were negligent
3. number of d's should be small enough to allow a high probability that anyone of the D's would be negligent |
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Term
| What are the conditions of proximate cause? |
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Definition
1. V's injury has to be type foreseeable as a result of D's negligence.
2. P can recover for full extent of injury. -Eggshell plaintiff applies to physical personal and property injuries and rarely to emotional injury
3. A superseding cause breaks liability- A superseding cause is an injury that would be unforeseeable as a result of initial negligence.
4.Must be a foreseeable victim- Ct may find no duty to victims separated by space and time. |
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Term
| What are the defenses to non-intentional torts? |
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Definition
| Contributory negligence, Comparative negligence, Assumption of risk. |
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Term
| What are the elements and exceptions of contributory negligence? |
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Definition
Element
1. Traditionally, if plaintiff's negligence was partially responsible then no recovery for P.
Exception.
1. Not a defense to D's intentional or consciously reckless acts. (unless P contributorily reckless)
2. Last clear chance rule- If P negligently places himself in peril and D has opportunity to avoid harm by reasonable standard of care then P is NOT contributorily negligent. |
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Term
| What are the elements of comparative negligence? |
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Definition
1. percentage of damage applied to each party.
2. some jurisdictions have applied threshold of negligence at which P can't recover. |
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Term
| What are the tunkl factors under express assumption of the risk? |
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Definition
E-A-R is allowed if doesn't violate public policy under tunkl factors;
1.is business suitable for public regulation
2. service provided necessary to public?
3. does d offer service to everyone (within certain standards)?
4. Is their a decisive economic advantage over the custom?
5. does d allow p to pay more to avoid d's negligence?
6. is P placed under control of seller, subject to risk of carelessness by the seller? |
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Term
| What are the 3 elements of implied assumption of the risk? |
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Definition
1. P must have knowledge of the facts constituting a dangerous condition.
2. P must appreciate the nature and extent of danger
3. P must voluntarily expose himself to the danger |
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Term
| What is the difference between primary implied assumption of risk and secondary implied assumption of risk? |
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Definition
1. Primary inherent dangers.
2. Secondary, danger is result of operator's negligence. even if inherently dangerous activity.
3. If P knows of danger from negligence and unreasonably encounters it then no recovery. Maybe comparative negligence.
4. IF P REASONABLY encounters negligence then AR defense. |
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Term
What are the 6 factors in the test to determine if D should be held strictly liable for abnormally dangerous activities?
What does R2T say?
and R3T? |
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Definition
1. High degree of risk
2. Risk of SEVERE injury
3. inability to eliminate risk by reasonable care.
4. activity is relatively uncommon
5. activity is inappropriate in place where it occurs.
6. Risk outweighs benefit - to community.
R2T- duty is nondeligable to independent contractors. (land owner is responsible for injury caused by demolition company)
R3T- 1.foreseeable harm even when reasonable care. 2. relatively uncommon. |
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Term
| What are the types of product liability? |
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Definition
1. Manufacturing defect- not intended but came about during manufacturing.
2. Design defect -2 types; consumer expectation-risk v utility
3. Defect due to failure to warn
3.a Learned intermediary doctrine |
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Term
| What are the defective design tests? |
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Definition
1. Consumer expectations
a. product failed to preform as safely as ordinary customer would expect
b. defect existed when product left manufacturers possession
c. Defect was proximate cause of P's injury
d. Product was used in the intended or reasonably foreseeable manner
2. Risk/utility test
does the risk of design outweigh the benefit?
a. Cost of designing without risk?
b. Loss of utility due to redesign
c. extent of risk
d. most courts require proof of a reasonable alternative design |
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Term
| What are the 6 elements of a product defect due to failure to warn? |
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Definition
The warning label should;
1. warn adequately of danger
2. warning should be able to be read and understood
3. displayed prominently?
4. Consumer should be told how to avoid danger
5. No duty to warn of obvious or generally known dangers.
6. For product obtained through learned intermediary- only duty to warn learned intermediary. |
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Term
| What is the exception to the learned intermediary doctrine? |
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Definition
| FDA warnings on product for advertisements that go directly to consumer, and mass immunizations. |
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Term
| What is the defense of product misuse? (under product defect) |
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Definition
Majority: Manufacturers are not liable for design defects if the consumer substantially modified the product, even if the modification was foreseeable.
Minority: will find them liable if modification is foreseeable
Duty to warn against harm from foreseeable modification. |
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Term
| What are the types of intentional torts? |
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Definition
| Assault & Battery, false imprisonment, intentional infliction of emotional distress |
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Term
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Definition
| The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. Assault can occur without battery. Must be physical act. |
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Term
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Definition
| An intentional and offensive touching of another without lawful justification. |
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Term
| What are the 6 elements of false imprisonment? |
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Definition
1. intentional confinement without reason to do so.
2. Can be locking someone away, or
3. using force to confine or make someone go somewhere. 4. Can't be done accidentally.
5. No reasonable means of escape for P.
6. can recover for emotional harm- (punitive possible) |
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Term
| Intentional infliction of emotional harm |
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Definition
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Term
| What are the defenses to intentional torts? |
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Definition
| Consent, self defense, defense of property, and privilege |
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Term
| What are the 3 rules of consent as a defense to intentional torts? |
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Definition
1. Majority; No limitation on tort recovery for brawls or fights out of anger.
2. Minority;there is no recovery if the voluntary participation
3. usually an exception for things outside the agreement bringing a gun to a knife fight. |
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Term
| What are the 4 tort rules on self defense? |
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Definition
1. Threat must be immediate
2. must be sincere and reasonable belief that force is necessary
3. force must be proportional
4. Retreat- Majority; no retreat for non deadly force
Minority- only no retreat in dwelling and maybe business |
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Term
| What are the 3 rules on defense of property? |
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Definition
1.Reasonable force allowed after asking parties to cease and decist.
2. Can try to recapture property in reasonable time
3. No deadly force |
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Term
| What are the rules on the two types of privilege of necessity? |
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Definition
1. private- defendant injured someone else's stuff to save himself. Defendant still has to pay for damages.
2. Public- caused damage to other person's property for greater good. Defendant doesn't have to pay. |
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