Term
| TORTS. What are the three types of damages in tort law? |
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Definition
1. Nominal damages.
2. Compensatory damages.
3. Punitive damages. |
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Term
| TORTS. What are nominal damages? |
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Definition
| A small sum of $ awarded to P to vindicate rights, make judgment available as a matter of record to prevent acquisition of prescriptive rights, & to carry partial costs of the action. |
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Term
| TORTS. What are compensatory damages? |
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Definition
| An award of $ intended to represent the closest possible financial equiv. of the loss or harm actually suffered by P, to make him whole again, or to restore P to the state he was in before tort occurred ("status quo ante"). |
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Term
| TORTS. What are punitive damages? |
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Definition
| An additional award to P to punish D and make an example to deter others from engaging in such conduct. |
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Term
| TORTS. Define the "maximum recovery rule" of damages. |
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Definition
| D may challenge a jury award by a motion for remittitur. Judge must then determine whether verdict is as a matter of law excessive. If so, P must accept lesser amount or agree to new trial.Determined by whether jury verdict exceeds the max amt which it could reasonably find given the evidence. |
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Term
| TORTS. Define "remittitur." |
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Definition
| A motion brought asking for a finding that a trial jury's damage award was excessive *as a matter of law.* |
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Term
| TORTS. Give the underlying issue, rule, and holding developed in Anderson v. Sears, Roebuck & Co.. |
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Definition
Issue: Whether the trial jury's damage award to child P, severely burned by a defective water heater sold by D, was excessive.
Rule: Determine whether award w/in the amt. range jury could reasonably find, given the facts.
Holding: No, jury award not excessive. |
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Term
| TORTS. Give the underlying issue, rule, and holding developed in Richardson v. Chapman. |
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Definition
Issue: Was jury award of $22m to motorist and $100k to passenger for being rear ended excessive?
Rule: Whether jury could properly find for this amt., given the facts.
Holding: $22m to motorist not excessive. $100k to passenger excessive. |
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Term
| TORTS. What are the four types of non-economic losses compensatory damages can remedy? |
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Definition
1. Past and future physical and mental suffering and pain.
2. Loss of enjoyment of life (pleasure foregone).
3. Emotional Distress or Fear.
4. Loss of function or appearance. |
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Term
| TORTS. What are the four types of economic losses compensatory damages can remedy? (hint: one has 2 methods of calculation) |
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Definition
1. Property damage.
2. Past and future medical expenses.
3. Lost wages.
4. Loss or impairment of future earning capacity.
-Damage calculation (discounted present value)
-interest rate/inflation rate |
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Term
| TORTS. What is the collateral source rule? |
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Definition
| Payments made to P from sources independent of D/tortfeasor are not, under majority rule, credited against judgment (P may receive full compensation from D regardless of what anyone else has given him). Payments made on D's behalf *are* credited against the judgment. |
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Term
| TORTS. Define the "doctrine of avoidable consequences" and give its other common name. |
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Definition
aka "Duty to mitigate damages."
Ps may not recover damages P could have avoided by reasonable conduct after a legal wrong has been committed by D. (Not the same as contrib. neg., in which P's unreasonable actions help *cause* the injury in the first place.) |
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Term
| TORTS. What are punitive damages?When may they be awarded? What factors can juries consider? How much control do juries have over the award? |
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Definition
Punitive damages are awarded against a person to punish him for his outrageous conduct and to deter him and others from similar conduct in the future.
May be awarded when conduct is particularly evil or outrageous in its reckless indifference to the rights of others. Triers of fact can consider the character of D's act, nature and extent of harm to P, and wealth of D. Award is completely w/in discretion of the jury; failure to award not subject to judicial review. |
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Term
| TORTS. What three factors are used to determine whether the extent of punitive damages awarded exceeds what is allowed and violates Due Process? |
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Definition
1. Degree of Reprehensibility. Appropriateness of award as regards the actual "blameworthiness" of D.
2. Ratio. Whether the amt is excessive in comparison to the compensatory award.
3. Sanctions for Similar Conduct. if excessive compared with other remedies for similar behavior. |
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Term
| TORTS. What are the two types of intent? |
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Definition
1. A volition or desire that one's action will have some consequence (specific for each tort); or,
2. The knowledge with substantial certainty that some consequence (specific for each tort) will occur. |
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Term
| TORTS. Can children or insane persons be held liable for tortious conduct? Under what theory can they be held liable? |
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Definition
| Yes. The issue is whether they in fact had the required intent. It is not necessary that they be free to intend otherwise, as long as they are capable of forming an intent. |
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Term
| TORTS. What is the definition of "mistake"? |
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Definition
| An actor's error concerning the nature or identity of the person or property connected with an intended consequence (specific for each tort) of the actor's conduct does not provide a defense to tort liability. |
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Term
| TORTS. Are mistakes concerning privileges different from mistakes concerning the actor's intent? |
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Definition
| Yes. In some privileges, a reasonable, albeit mistaken, belief as to the existence of a privilege may sometimes provide a defense (e.g., self defense). |
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Term
| TORTS. Give the underlying issue, rule, and holding developed in McGuire v. Almy. |
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Definition
| Can an insane person be held liable for their tortious conduct? Rule: insofar as a particular intent is necessary to render a normal person liable, the insane person must be able to entertain that same intent and must have entertained it in fact. The law will not consider excusing him if it appears that delusion or other consequence of his affliction has caused him to entertain it or that a normal person would *not* have. |
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Term
| TORTS. What are the elements of "transferred intent" and to what does it apply? |
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Definition
The intent of the actor to commit one intentional tort can be "transferred" by operation of law to impose liability upon the actor:
1. for injury to third parties who suffer tortious consequences caused by the action of the actor, even when actor did not "intend" to cause such consequences to those third parties.
2. for other torts, if the actor intended to commit one type of intentional tort but the consequences of the actor's conduct result in consequences proper to a different tort.
Applies to battery, assault, false imprisonment, trespass to land and trespass to chattels. |
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Term
| TORTS. What are the elements of battery? |
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Definition
An actor is liable for battery if he acts:
1. intending to cause contact with another person that is harmful or offensive, and
2. such harmful or offensive contact with the other person results. |
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Term
| TORTS. What are the elements of assault? |
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Definition
An actor is liable for assault if he acts:
1. intending to cause in another person an imminent apprehension of a contact that is harmful or offensive, and
2. imminent apprehension of such contact results. |
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Term
| TORTS. What are the elements of false imprisonment? |
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Definition
An actor is liable for false imprisonment if:
1. he acts intending to confine the other within boundaries fixed by the actor, and
2. his act directly or indirectly results in such a confinement of the other, and
3. the other is conscious of the confinement or is harmed by it. |
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Term
| TORTS. Give the underlying issue, rule, and holding developed in Parvi v. City of Kingston. |
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Definition
| Is it necessary for P to remember his imprisonment to have a cause for false imprisonment? Rule: the confined person must be aware he is confined. Holding: confined person only need to be aware of his imprisonment at the time he is imprisoned. He doesn't need to remember it later, and other evidence (witnesses, police reports, &c.) can support the finding. |
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Term
| TORTS. "Reasonable exit." When is an exit from false imprisonment considered "unreasonable"? |
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Definition
An exit is unreasonable if it:
1. is harmful to oneself, one's possessions, or third parties
2. risks any significant substantial criminal or civil liability to oneself.
3. is offensive to a reasonable sense of personal dignity |
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Term
| TORTS. "Reasonable exit." How does an unreasonable exit by P affect his legal rights for recovery in an action for false imprisonment? What, if anything, does the court consider in an unreasonable-exit situation? |
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Definition
| If P chooses an "unreasonable exit," the right to compensatory damages suffered due to the use of that exit depends on the totality of the circumstances. Courts consider if Ps use of the exit was justified under the circumstances (e.g., The Truman Show). If it was, damages may be sought for injuries. |
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Term
| TORTS. What constitutes "confinement" for the purposes of a false imprisonment action? What modes of confinement accomplish this? |
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Definition
Confinement must be complete. Modes of confinement sufficient for a false imprisonment action are:
1. Physical barrier.
2. Physical force
3. Duress, when:
a. physical force is threatened
b. monetary loss is threatened (limited)
c. legal authority is asserted |
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Term
| TORTS. True or false? Duress for the purposes of establishing "complete confinement" in an action for false imprisonment can include "moral persuasion." |
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Definition
| False. "Moral persuasion," for example, confinement to avoid defamation or to keep a job, is not sufficient to establish confinement in an action for false imprisonment. |
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Term
| TORTS. What are the elements of intentional infliction of emotional distress (IIED)? |
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Definition
An actor is liable for IIED if,
1. by means of extreme and outrageous conduct,
2. the actor intends to bring about (or recklessly risks bringing out) severe emotional distress in the other, and
3. severe emotional disress results. |
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Term
| TORTS. Can IIED be directed at a third party? If so, when? |
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Definition
Yes. An actor is subject to liability for IIED on a third party if:
1. the actor intends to bring about (or recklessly risks bringing out) severe emotional distress in P, and
2. severe emotional distress in P results, and
3. either:
-P is a member of third party's immediate family who is present at the time, whether or not such distress results in bodily harm, OR
-P is present at the time, and such distress results in bodily harm. |
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Term
| TORTS. Give the underlying issue, rule, and holding developed in Taylor v. Vallelunga. |
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Definition
Can a witness to a battery have a cause of action for IIED? Rule: For Ds to be liable for IIED, the battery must be done for the purpose of causing P emotional distress, or else Ds possess substantial certainty that the beating will cause P emotional distress.
Holding: Claim failed to allege either of these conditions were met. Judgment for Ds. |
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Term
| TORTS. What are the elements of trespass? |
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Definition
An actor is liable for trespass, irrespective of whether he causes damage, if he intentionally:
1. enters land in the possession of the other, or causes a thing or 3rd person to do so, OR
2. remains on the land, OR
3. fails to remove from the land a thing he is under a duty to remove. |
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Term
| TORTS. True or false? Liability for trespass depends on whether or not harm or damage has been done to possessor, possessor's land, or chattels. |
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Definition
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Term
| TORTS. True or false? A defendant's reasonable but mistaken belief (not induced by possessor) is a defense against trespass. |
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Definition
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Term
| TORTS. True or false? A trespass may be committed on, beneath, or above the surface of the earth. |
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Definition
| True (but only true for aircraft if they a) enter into the immediate reaches of the land's airspace or interferes substantially with the other's use and enjoyment of the land). |
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Term
| TORTS. What is the extent of a trespasser's liability for harm? |
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Definition
| A trespass on land subjects the trespasser to liability for physical harm to possessor of the land at the time of the trespass, or to the land or to his things, cause by any act done, activity carried on, or condition created by the trespasser, irrespective of whether his conduct is such as would subject him to liability were he *NOT* a trespasser. |
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