Term
| A statute can expressly prohibit the creation of a common law duty, but can it also create a duty? |
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Definition
| Yes, of course it can. Statute will trump common law every time unless unconstitutional. |
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Term
| What is the Sheehy test for when a statute is silent about whether it creates a duty? |
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Definition
1. Is P in the protected class?
2. Would imposing a duty be consistent with the legislative purpose?
3. Would it be consistent with the legislative scheme? (enforcement/conflicts) |
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Term
| Name two systems of determining the source of the duty in premises liability. |
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Definition
| Unified system and Tripartite system. |
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Term
| What are the three classifications in the tripartite system? |
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Definition
| Trespasser, Licencee, Invitee |
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Term
| Describe the Trespasser classification |
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Definition
| When P had no permission: Landowner generally has only a duty to prevent willful or wanton dangers/traps. No duty to warn or make safe, UNLESS owner has knowledge of a continuing trespass, then must use reasonable care. |
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Term
| Describe the Licensee classification |
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Definition
| P has permission: Landowner has a duty of reasonable care for dangers it is aware of. She need not inspect for dangers. |
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Term
| Describe the Invitee classification |
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Definition
| P has permission and an expectation of safety (usually when material benefit goes to the landowner): Landowner must use reasonable care to warn and fix dangers, and inspect for dangers (constructive notice). Must make even open and obvious dangers safe. |
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Term
| What is the Uniform system of premises liability? |
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Definition
| Says that landowner owes a duty of reasonable care to all, particulars are handled in breach. Possibly a lower standard for business owners, but higher for private land owners. |
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Term
| What are the 4 factors in determining the scope of the landowner's duty? |
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Definition
| His control of the land, foreseeability, ability to mitigate, cost of mitigation vs. risk |
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Term
| Emotional Harm: what policy factors do courts cite as reasons to limit damages for emotional harm? |
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Definition
| 1. Weak P's (don't have to take P as you find him mentally) 2. Fakers 3. Flood of litigation (happens all the time) 4. Difficult to measure and put a $$ value on. 5. Proof of causation issues |
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Term
| What are the elements of IIED? |
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Definition
1. Outrageous Act
2. Intentionally caused
3. P objectively felt distress
4. Severe |
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Term
| When will derivative emotional harm be awarded? Pure? |
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Definition
Derivative: when reasonably related and reasonably provable or certain.
Pure harm is generally not recoverable. |
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Term
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Definition
| No recovery for emotional harm w/o physical impact on P. |
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Term
| What is the Falzone rule for ED w/o impact? |
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Definition
| P may recover from reasonable fear of immediate personal injury if ED is demonstrated by physical sickness that would be proper if there had been actual contact. |
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Term
| What is the policy for the "zone of impact" or Falzone rule? |
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Definition
| Courts now recognize that ED is legitimate harm in medical community, and the fear of increased litigation is not enough to preclude recovery. Proof is always a concern, however, thus ED shown by actual physical injury is usually required. |
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Term
| What is the Dillon ROL for Bystander ED? |
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Definition
1. Other person must have been seriously injured or killed.
2. P must have had intimate familial relationship with other person.
3. P must witness the incident.
4. ED must be severe. |
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Term
| Are friends or cohabitors allowed recover in Bystander ED? |
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Definition
| Nope, see policy concerns for awarding ED damages |
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Term
| "Lost enjoyment of life" refers to... |
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Definition
| standard derivative recovery for personal injury. Includes subjective and objective losses resulting from the injury. |
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Term
| "Lost consortium" refers to... |
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Definition
1. Lost affection and sexual companionship
2. Lost fun/companionship/society
3. Lost advice
4. Lost services, contributions
5. Only for spouse, not children or parents. |
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Term
| What is the first thing to look to in deciding who can sue in a Wrongful death action? |
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Definition
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Term
| What damages are/are not recoverable in wrongful death? |
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Definition
1. Medical costs and funeral expenses.
2. Wages, dependent care, tangible services, (most JDs)intangible servies.
3. (some JDs)Consortium/Companionship
4. (rarely) ED because of lost decedent |
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Term
| What are the policy concerns in allowing Pure Economic Harm? |
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Definition
1. No prior agreement between actors (social contract only)
2. Overdeterance of activity
3. No limitation on unpredictable and crushing liability. |
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Term
| The majority rule is that Pure Economic Harm is not recoverable unless there is a special relationship, what is the minority rule? |
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Definition
| People's Airlines Express ROL: Duty for identifiable class of people that are likely to incur damage from negligent activity. |
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Term
| What is the Federal Tort Claims Act (Idaho Tort Claims Act) |
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Definition
| Limitation of liability for governmental actors. Intentional torts by government employees usually not recoverable. Policy decisions usually only negligent in the bad decision making process, not the ultimate bad result. |
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Term
| Why do courts generally distinguish between government activities that displace proprietary functions and traditionally public services? |
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Definition
| The court feels that is should not redistribute public funds because the legislature could do so. Only when the government starts acting like a private business do courts start to step in. |
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Term
| What is the basic idea behind determining breach? |
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Definition
Establish:
1. What is the standard of care?
2. What did D do?
3. Did D meet the standard? |
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Term
| What is the judge's role? |
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Definition
| Decide duty, the standard of care, and whether there is a question of fact. |
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Term
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Definition
| Decide questions of fact from the evidence according to the standard of proof. |
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Term
| What are some general methods of determining the standard of care? |
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Definition
1. Reasonable Care / Reasonable Person
2. Hand formula / Risk Calculus
3. Custom
4. Statute / Negligence Per Se
5. Circumstantial Evidence
6. Res Ipsa Locquitur
7. Medical Malpractice / Expert in "same or similar" communities |
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Term
| When determining reasonable care, do physical conditions of D count? Mental conditions? Professional expertise? |
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Definition
| Physical conditions do count in general, such as age, blindness, and external factors like it was really hot that day... Mental factors usually don't count because they are hard to measure and easy to fake. Professionals are held to a higher standard. |
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Term
| What is the Hand formula? Problems with it? |
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Definition
| Probability and magnitude of loss against the burden of avoidance. Difficult to calculate at times, may not consider other relevant factors |
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Term
| When custom is used to show D is negligent, does that automatically establish breach? |
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Definition
| No, it is evidence for his reasonable care. Majority rule of custom is not always right. |
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Term
| When does violation of a statute establish negligence per se? |
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Definition
If: 1. it clearly defines a specific standard of care. 2. its purpose is to protect P's class of people from 3. the same type of harm.
4. The violation was a proximate cause of the harm. |
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Term
| Does violating a statute determine Breach? |
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Definition
| Usually yes, but some JDs only establish evidence of breach or shifts the burden of proof. |
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Term
| What is circumstantial notice? |
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Definition
| When D should have known of a dangerous condition that was apparent and existed long enough to correct, there is evidence of breach |
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Term
| When is res ipsa locquitor appropriate? |
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Definition
When:
1. The type of harm doesn't occur w/o negligence.
2. The instrumentality of the harm was under D's complete control
3. P wasn't contributory negligent |
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Term
| What is the affect of RIL? |
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Definition
Majority: creates a permissible inference of of negligence.
Minority: creates a rebuttable presumption of negligence. |
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Term
| Name 3 standards for determining whether D was an actual cause? |
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Definition
1. But for
2. Concurrent Cause
3. Substantial Factor |
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Term
| What are the Daubert Factors for admitting expert testimony? |
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Definition
1. Whether the theory has been tested according to the scientific method
2. Whether the theory has been peer reviewed.
3. known or potential rate of error
4. whether the theory is generally accepted
*not exclusive and is flexible... |
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Term
| What is the Summers ROL for a small number of negligent defendants? |
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Definition
| If only one D could be the actual cause, but all are negligent all are liable. However, if one or more D's are not negligent than cannot hold any liable. |
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Term
| When assessing PC for an unforeseeable type of harm, what are the Polemis and Wagonmound views? |
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Definition
Polemis: If the injury is directly caused by a negligent act, foreseeablility is immaterial.
Wagonmound: Liability is based on whether the damage could have been reasonably foreseen. |
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Term
| What are the goals of tort law? |
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Definition
Deterring harm and wrongful acts.
Compensating victims of wrongful acts.
Distributing risk |
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Term
| When the extent of the harm is not foreseeable, is foreseeability or directness used to determine liability? |
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Definition
| Eggshell P rule: foreseeable doesn't matter w/respect to extent of harm, only directness in time and space. |
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Term
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Definition
Reasonably foreseeable and direct in time and space
Policy is that liability needs limits and fairness is ultimate goal, so foreseeability is generally important. |
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Term
| Summarize Proximate Cause |
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Definition
1. Unexpected type/manner/occurance of harm - look to foreseeability and to a lesser degree, directness.
2. Intervening cause is largely a foreseeability question, intentional wrongdoers generally are not.
3. Extent of harm is eggshell P rule
4. The more wrongful the act, the less foreseeable or direct in needs to be. |
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Term
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Definition
| Manufacturuers, retailers, wholesalers, component manufacturers, distributes... As long as the product reaches them unchanged. |
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Term
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Definition
| A condition that makes a product unreasonably dangerous, even if designer exercised the utmost care in its design. (Problem is this definition seems to contradict itself) |
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Term
| How might the contradiction of "unreasonably dangerous despite utmost care" be resolved? |
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Definition
| Although the dangerousness of the defect is assessed after its creation using a reasonableness standard, this standard does not consider the designer's reasonableness at the time - therefore it is not contradictory, but serves the goal of preventing harm while still limiting liability for products that are reasonably dangerous. |
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Term
| Define the Ordinary Consumer Expectations test |
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Definition
| Defective if the product failed to perform as an ordinary consumer would expect when used as intended or reasonably expected. |
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Term
| What are the considerations of the Excessive Preventable Danger or Risk/Benefit test |
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Definition
1. Gravity of the danger
2. Likelihood of the danger
3. existence and feasibility of a RAD
4. Adverse consequences of an RAD for consumer.
5. Manufacturer's negligence in researching and selecting a RAD
6. User's ability to avoid danger by use of due care
7. Obviousness of the danger to the user.
8. Feasability of making the manufacturer basically an insurer through risk spreading. |
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Term
| How is STPL & Risk/Benefit different than negligence? |
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Definition
| 1. focus is on product no manufacturer conduct. 2. Cost and risk spreading is more greatly favored here because lack of consumer expertise 3. More abstract |
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Term
| What is the modern vs. classic view of patent defects? |
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Definition
Modern view: patent defects may be recoverable
Classic view: not recoverable if open/obvious or w/in contemplation of the ordinary user. |
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Term
| What are the two main questions of product warning liability? |
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Definition
1. Was a warning necessary?
2. If so, was the warning adequate? |
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Term
| When is a warning necessary? |
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Definition
If a product is unavoidably unsafe, must warn, but not if the danger is common knowledge.
1. Is the danger serious?
2. Is the danger likely
3. Could the manufacturer have done more research on customer use? |
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Term
| When is a warning adequate? |
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Definition
When it would alert a reasonably prudent person to:
1. The scope of the danger
2. The extent or seriousness of possible misuse.
3. Specific Consequences of failure to follow
4. Proper means of display |
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Term
| Is the manufacture responsible for consumer misuse? |
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Definition
| Only when it is foreseeable |
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Term
| What is the rule if a manufacturer didn't know of a defect? |
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Definition
| It is held to an expert standard, meaning that they must research and track possible problems and warn of them if they should have known. |
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Term
| What is the policy for and against holding a manufacturer strictly liable for defects it didn't know about? |
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Definition
1. Deterance is not promoted any more than under negligence. On the other hand,
2. Places the risk of doing business on the one who will profit from it.
3. |
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Term
| Name the major affirmative defenses discussed in class. |
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Definition
1. Contributory negligence
2. Assumption of the risk
3. Unforeseeable misuse
4. Preemption |
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Term
| Does P's failure to discover or guard against a product defect preclude liability? |
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Definition
| It is does NOT preclude liability under the restatement, but recovery may be limited by P's comparative negligence in that regard. |
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Term
| What are the policies for comparative negligence? Think drunk driver that hits a tree but airbag and seat belt fail. |
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Definition
We still want to deter wrongdoing on D's part, so D should not escape liability.
Also, P may also be punished criminally for his wrongdoing, and he deserves compensation for risk he didn't help cause.
Why give D incentive to "dig up dirt" on P?
We don't want P to recover for his own wrongful acts. |
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Term
| If a statute is not clear whether it preempts or saves tort recovery, how do you analyze? |
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Definition
1. Is there legislative intent to preempt the entire field?
2. If there is a conflict: Is there an impossibility problem in complying with both? Would tort recovery be an obstacle in the legislative scheme? |
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Term
| What is the policy for the rule that a manufacturer has no duty to prevent a product from damaging itself in tort law? |
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Definition
1. Cost of injury to persons is worthy of the increased transactional costs of holding manufacturer strictly liable.
2. K law is better suited because there is a sale where the parties may bargain for risk (warranty law). |
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Term
| Name four possible rules that dictate pure economic damage recovery? |
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Definition
| 1. Seely ROL: Pure economic harm is precluded by warranty law. 2. Santor ROL: Safety and insurance rationals apply just as much to pure econ harm, and it should be allowed 3. Russel intermediate approach: disappointment in a product is not recoverable, but potential endangerment of persons or other property is 4. Jones: consumer transactions should be STPL, but not business transactions |
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Term
| What are the factors for determining whether an activity is abnormally dangerous under TSL? |
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Definition
1. Probability of Harm
2. Severity of Harm
3. Ability to reduce harm through due care
4. Common Usage / Value of activity to the community
5. Ability to reduce risk by moving the activity |
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Term
| What factors does the intermediate Russel approach to STPL for economic harm look at? |
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Definition
1. Nature of the Defect
2. Type of risk
3. Manner in which the injury arose
Think: tiles catch fire in kitchen |
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Term
| What is required for P to have assumed the risk of his injury? |
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Definition
| When he has voluntarily and unreasonably proceeded in the face of a known danger |
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Term
| What are the Rest. 2d elements of STPL? |
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Definition
1. Recovery by a user or consumer who was physically harmed
2. from a seller engaged in the business of selling that product.
3. Where a defect makes the product unreasonably dangerous when viewed from hindsight, not the actions of the designer. |
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