Term
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Definition
| Based on the concept that the sovereign was immune from liability. Today most jurisdcitions have adopted specific statutes that waive sovereign immunity in whole or in part. Statutes should be read carefully, can vastly vary depending on where you are at. |
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Term
| Federal Tort Claims Act of 1946 |
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Definition
| Most influential act waiving sovereign immunity. Provides that the federal government is liable for: injury, loss of property, personal injury, or death caused by NEGLIGENT OR WRONGFUL ACT OR OMISSION of any employee of US govt. acting w/n scope of office/employment. Govt. is not liable for punitive damages or prior interest on an award of compensatory damages. |
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Term
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Definition
| Traditionally - parents were immune from libility actions brought against them by their children or third parties injured by their children's negligent/wrongful acts. |
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Term
| Parental Immuity Exceptions |
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Definition
| Suit by child herself and suit by 3rd party alleging negligent supervison of child caused injury to 3rd party (only applies in extreme circumstances). |
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Term
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Definition
| Employer pays for employees injury claims in exchange for limited liability. In most jurisdictions this is mandatory. Immunity extends only to accidental injuries in the work place. |
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Term
| Exceptions to Workers Compensation |
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Definition
| Injuries caused intentionally by the employer do not quailfy for the preclusion from independent civil action. |
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Term
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Definition
| negligence on the part of the plaintiff. 2 main theories - Contributory Neg & Comparative Neg. |
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Term
| Contributory Negligence Bar |
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Definition
| Theory that a plaintiff's negligence will bar recovery from a defendant even when a defendant was grossly negligent and the plaintiff was only slightly negligent. |
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Term
| Last Clear Chance Doctrine |
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Definition
| Exception to contributory neg bar- belief that neg on the part of the plaintiff will not bar recovery from defendant if the defendant has the last opprotunity to prevent harm by failed to use reasonable care to do so. |
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Term
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Definition
| Adopted by most states. 2 main types - Pure and Modified (broken down further) |
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Term
| Pure Comparative Negligence |
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Definition
| Theory that a plaintiff's negligene will not bar recovery from a defendant, but instead that the recovery must be apportioned to the fault of each party. Not always easy to determine. Jurie sometimes use it to give excessive damages. A lot of litigation resulted from the adoption of it. |
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Term
| Modified Froms of Compartative Negligence |
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Definition
| 3 types- slight, Less than 49%, greater that 50%. Was adopted as a result a a legislative compromise. Insurance companies resisted the pure theory due to extra costs. |
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Term
| Slight - Modified Comparative Negligence |
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Definition
| Idea that the plaintiff's negligence must be slight as compared to the defendant's, or the plaintiff is barred from recovery. |
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Term
| Less than 49% - Modified Comparative Negligence |
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Definition
| Plaintiff's negligence must be less than the defendants, or recovery will be barred. |
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Term
| No Greater than 50% - Modified Comparative Negligence |
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Definition
| Plaintiff's negligence may be as great as the Defendant's, but no greater, or recovery is barred. |
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Term
| Exceptions to Federal Governmental Immunity |
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Definition
| 1. No Strict Liability. 2. No liability for performance or lack there of proper discretion in execution of governmental employment duties. 3. No intentional torts except those commited by federal law enforcement officers. |
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Term
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Definition
| 3 categories - primary, secondary unreasonable, secondary reasonable. |
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Term
| Primary Assumption of Risk |
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Definition
| A situtation in which the defendant is excused from liability because the plaintiff asks for or seeks the risk. Can be Express or Implied. Elements - 1. Voluntary act of plaintiff, 2. Appreciation of Known Risk, 3. Plaintiff must appreciate Nature, Character, and Extent of risk. This assumes that the plaintiff is menatlly capable of making choices about risks. |
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Term
| Secondary Unreasonable - Assumption of Risk |
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Definition
| Plaintiff voluntarily but negligently encounters a risk negligently created by the defendant, but does not consciously choose to relieve the defendant of his duty to use reasonable care (i.e. passenger in a car driven by intox. driver). This situation results in Contributory Negligence. Damages are reduced by a percentage basis rather than barred altogether. |
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Term
| Secondary Reasonable - Assumption of Risk |
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Definition
| Defendant acts negligently, but Plaintiff has consciously chosen to engage in risky behavior in a manner that is not negligent. Cheerleader injured while doing stunt on Astroturf acting reasonably). Effect on Recovery includes 3 views. 1. No Effect - Behavior is reasonable, and therefore no reduction in recovery should occur. 2. Total Bar -Conscious decision to engage in risky behavior is more culpable than mere negligence, therefore total bar. 3. Parallel to Secondary Unreasonable Assumption of Risk (DeWolf) - Analogous to assuming a specific risk but risk combines with ∆’s negligence and produces injury; award should be reduced proportionately (i.e. contributory negligence). |
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Term
| Joint and Several Liability |
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Definition
| Only applies to indivisible injuries. 3 Types - Pure, Mixed, Several |
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Term
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Definition
| Each and every defendant is completely liable to the plaintiff for any indivisible injuries caused, minus the the % plaintiff's fault from the total award. |
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Term
| Mixed Systems - Joint and Several Liability |
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Definition
| 3 Categories - 1. Plaintiff’s % of Fault- Some jxs. look (at least in part) to whether the plaintiff was at fault. Fault-free Plaintiffs can recover in full against any ∆ found liable. Policy: As in the old days, fault free P has a good claim for avoiding financial responsibility for loss as b/n plaintiff and Defendant. Comparatively negligent Plaintiffs may have to bear the burden of an insolvent defendant. 2. Reallocation -A compromise solution to the dilemma of J&S liability is to reallocate the insolvent defendant’s share among plaintiff & the solvent defendants, in proportion to fault. 3. Economic vs. Non-Economic Schemes -Some jxs vary the treatment of J&S liability according to the type of damages: Typically in such a scheme economic damages are subject to J&S liability, whereas non-economic damages are limited to the percentage share of fault attributed to the defendant. |
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Term
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Definition
| The most defendant friendly solution to the problem of J&S liablity is to make the plaintiff responsible for any defedant's share that cannot be collected. This is done by limiting the plaintiff's to a recovery if each defendant's share. |
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Term
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Definition
| A tortfeasor's right to recover from other responsible tortfeasors any amount paid in excess of the tortfeasor's proportionate liability to the plaintiff after each judgment has been limited. |
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Term
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Definition
| An extreme form of contribution permitting indemitee to recover 100% of his payment from the indemintor. |
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Term
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Definition
| Owners may be held liable for injuries to persons that come upon their property. Liability is determined by the status of the person on the property. |
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Term
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Definition
| Duty owed is to prevent injuries to the person from conditions on the premises. Must reasonably inspect and repair premises. 2 types – Public and Business. |
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Term
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Definition
| person invited on the premises as a member of the public for a purpose for which the land is held open to the public. |
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Term
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Definition
| A person invited on the premises for a reason directly or indirectly connected w/business dealings of the owner/possessor. |
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Term
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Definition
| An invitee’s status is dependent upon the landowner’s invitation, and that status continues only so long as the invitee is using the premises for a purpose reasonably intended by the invitation (otherwise he becomes a licensee). |
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Term
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Definition
| A person who is privileged to enter/remain on the premises only by virtue of the possessor’s consent. Primary category – social guest. Duty owed is to warn or make safe unreasonably dangerous conditions known to the owner/possessor but unknown to guest. |
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Term
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Definition
| A person who enters/remains on premises without the consent (either express or implied) of the owner/possessor. No affirmative duty owed to such a person. Only must not to wantonly or willfully injure them. |
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Term
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Definition
| Known Tresspasser - once a tresspasser is known to the owner of the land, if the owner does not take affirmative steps to warn off tresspasser, then the tresspassers status may change to licensee, and with the status change the duty of care changes. |
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Term
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Definition
| Some jurisdictions have gotten rid of this. Under the inappositely named “doctrine of attractive nuisance”, land owners owe a duty of reasonable care to trespassing children if: the owner has a reason to know that children are likely to trespass upon their property, the owner has a reason to know that there is an artificial condition posing an the danger is hidden from the children because of their youth, The children must not realize the risk of harm. There is an inexpensive way to eliminate the danger relative to the risk the danger poses to children, and The owner/possessor failed to exercise reasonable care to implement the inexpensive fix. |
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Term
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Definition
| Change in the natrual environments do not create an artificial condition where the affected terrain duplicates nature, except if that an artificial condition will be found if there is some, type of trap or concealment. Some jurisdictions require that the condition that harms the child be one that attracted them on to the property -allurement doctrine. |
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Term
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Definition
| a law barring claims after a specified period, based on the date when the claim accrued. |
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Term
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Definition
| a law barring any suit that is brought after a specified time since defendant acted, regardless of whether plaintiff has sustained injury. |
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