Torts II-SW

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Duty to rescue (landowner): -Landowner has no duty to warn a trespasser of existence of a dangerous condition or object (even where trespasser is child)
-A duty to warn of an existing danger must be carried out in a manner reasonably calculated to prevent harm
Doctor's duty: A physician is not required to treat anyone who requests medical attention
Duty to resuce those you have harmed (R2d): If actor knows, or has reason to know, that by his conduct, intentional or accidental, he has caused bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent further harm
Duty of one who takes charge of another who is helpless (R2d): One who, being under no duty to do so, takes charge of another who is helpless to aid or protect himself, is subject to liability to others for bodily injury caused by:
-failure ro exercise reasonable care
-discrimination of aid or protection if injred person is left in worse position
Preventing 3rd party from rendering act (R2d): Renders any person who knows, or has reason to know, that a 3rd person is giving or ready to give another aid necessary to prevent physical harm to an endangered person tortiously laible if he negligently prevents or disables the 3rd person from giving such aid
Invitees: Person who is invited onto the property by the owner for a specific transactional purpose
-owner owes highest duty of care (duty to taked reasonable care that premises are safe)
-E.g., business, commercial, financial
Licensees: Mainly social guests
-duty is less stringent
-common law view-> no duty to ensure that premises are safe, but bound not to create a trap or allow a concealed danger to exist upon the premises, which is not apparent to visitor, but which is known (or ought to be known) to the occupier
Trespassers: On the property without permission or consent of owner
-lowest duty of care
-must refrain from wanton or wilfull injury, deliberate intention to do harm, or an act done with reckless disregard of presence of trespasser
Attractive Nuisance Doctrine: Allows infant trespassers to recover when lured onto D's premises by some tempting condition created and maintained by D
-Restatement approach-> only applies when the child is not able to recognize when the child is not able to recognize the risk involved, and applies only to artificial conditions on the land
Contracting without consideration: A person may be held liable if they promise to help you, you rely on that promise, then they don't help you (to your detriment) - prevents others from helping you
Promissory Estoppel: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or 3rd person and which does induce such action or forebearance, is binding if injustice can be avoided only by enforcement of the promise
Special Relationships (R2d): There is no duty so to control the conduct of a 3rd person as to prevent him from causing physical harm to another unless:
-a special relationship exists between actor and 3rd person which imposes a duty upon actor to control 3rd person's conduct, or
-a special relationship exists between actor and other which gives the other a right to protection
Conversion: Exercising an unjustifiable and unwarranted domination and control over another's property which causes injury to the property owner
-can include intangible property
Animals (General rule): -Wild animals-> owner is liable for injuries caused by the animal
-Domestic animals-> owner is liable if he knows or has reason to know that the animal has vicious propensities, regardless of amount of care exercised by owner
Cattle Trespass: An owner or possessor of livestock or other animals, except dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm by the intrusion
Distress Damage Feasant: The taking of chattel that are doing damage to or encumbering land, or depasturing chattels, and the retaining of them by way of security until compensation is paid
Free Range Rule: Owner of domestic animal has duty to prevent it from wandering onto private property, but no duty to prevent it from trespassing onto a public roadway (unless owner has knowledge of vicious propensities)
Mississippi Rule: Owner of animal has burden to show he took reasonable care when animal strayed onto paved federal or state highway, but on unpaved roads the burdun is on the P to show negligence
Ultrahazardous or Abnormally Dangerous Activities: Blasting & Dynamite
Reciprocity: We impose risks on others all the time, and others impose risk on us - so there are certain risks we all live with and accept
R3d Torts: An activity is abnormally dangerous if:: -the activity creates a foreseeable and highly significant risk of physical harm even when physical care is exercised by all actors, and
-the activity is not a matter of common usage (not a reciprocal risk)
Nuisance (Remedies): -Injuntion
-Periodic/temporary damages
-compensation for past harm
-Permanent Damages
-compensation for part of future harm in one award
Warranty: Implied or express promise by seller that the product will be free from defects
Economic Loss Rule: Prohibits tort recovery when product damages itself, but does not cause personal injuries, or damage to other properties
Who is a supplier? (Four part test): 1. Availability of the entity for redress
2. Whether imposing liability would provide an incentive for safety
3. Whether supplier is in better position than consumer to prevent dispensation of defective products
4. Whether entity can distribute cose of compensation for injuries by spreading changes through its business
Used and Reconditioned Products: -E.g., "as is" products
-In general, used seller not going to be held liable for strict products liability
-exception-> if seller does something to change the product before reselling it
Successor Liability: Whether a corporation that acquires either the assets or shares of a product seller can be sued for its predecessor's torts after the liquidatoin of the original corporation
Manufacturing Defects: May be inferred that harm sustained by P was caused by product defect existing at time of sale or distribution, without proof of specific defect, when incident that harmed P:
-was of kind that ordinarily occurs as a result of a product defect, and
-was not solely the result of causes other than product defect existing at time of sale or distribution
Circumstantial evidence: In order to proceed in absence of evidence identifying a specific flaw, P must prove:
-that product didn't perform as intended, and
-exclude all other causes for products failure that are not attributed to D
Vehical Manufacturers: Liable for additional injuries which an accident victim sustains as a result of defective design of vehicle
-should anticipate (foresee) that their vehicles will be involved in accidents and are therefore obligated to make vehicle reasonably safe even if collisions occur
"Crashworthiness" cases: 2nd collision injuries
State of the Art: More stingent than the "common practice" in the industry, and to embrace scientific, technological and safety standard that are reasonably feasible at the time of product design
-facotr to consider on issue of "unreasonably dangerous"
Product Modification: Manufacturer can be held liable if someone modifies their product if:
-there is still a proximate cause defect, or
-if it is foreseeable to the manufacturer that people will make certain modifications to their product
Government Contractor Defense: Liability for design defects in military equipment cannot be imposed pursuant to state law when:
-the U.S. approved reasonably precise specifications
-the equipment conformed to those specifications, and
-the supplier warned the U.S. about the danger in the use of the equipment that were known to the supplier but not known to the U.S.
Consumer Expectations Test: A products defectiveness is determined in accordance with the expectations of the ordinary consumer, but there may be instances in which the ordinary consumer can't form such reasonable expectations
Duty to warn: Deals with products that may be dangerous but can't be changed because doing so will alter their positive effects
-therefore, products must be accompanied by warnings
"Learned Intermediary" Doctrine: Manufacturer only has duty to warn the doctor, who will then pass the info on to the patient
-exception: birth control pills
Pharmacist's Duty to Warn: No duty to warn
-Exception: Pharmacists may be held liable for prescribing drugs that to his personal knowledge were contraindicated for this particular patient, or for dispensing drugs without a label indicating the max safe dosage, given standard practice to the contrary
Plaintiff's conduct: A Ps negligent conduct will reduce his recovery in strict products liability by an amount proportional to his fault
Federal Preemption: When state tort actions conflict with federal standards
-allowing the state tort action-> court will usually say that federal standard is the floor and the state standard raises the floor to increase safety
What does compensation include?: -pain and suffering
-medical expense
-lost earnings attributed to accident
Loss of enjoyment of life: -some degree of cognitive awareness is a prerequisite for recovery ("some level of awareness")
-it is permissible factor under pain and suffering
"Per Diem" Rule: Idea that pain and suffering should be calculated by breaking down each minute/hour/day into certain amounts of money
Scheduling Damages: -Can establish a matrix that classifies injuries by severity and age
-Can give jury a range of awards based on past experience in similar cases to serve as non-binding benchmarks for recovery
Increased risk of future injury: Majority of jurisdictions require "more likely than not"
Prejudgment Interest: Interest for succesful P ran only from time of judgment (when unliquidated amount of damages imposed by tort law was fixed by litgation)
Expected Life Calculations: Need to know:
-expected (discounted) earnings of each future year, and
-probability that P will actually be in the work force un that year
Mitigation of Damages: -P has to take measures to reduce the damages (minimize the expected losses from an accident)
-P has to submit to reasonable medical treatment (determined by trier of fact)
Taxation of Tort Awards: -damage awards recieved in compensation for personal injuries are not taxable
-punitive damages are taxable
Imputed Income: Imputed income from non-market activities (e.g., homemakers) must be included in damages
-value of lost services
Remittitur: Court gives P option to avoid cost and expense of new trial by accepting a reduction in the size of the jury award
Additur: D can avoid the cost of a new trial by consenting to a longer verdict equal to the smalles verdict the court would sustain a change of inadequacy
Structured Settlements: Ps damages are paid in periodic installments, rather than lump sum
-reduces need to estimate future inflation rate
Fee Shifting: Entitles winning party to recover its "reasonable" attorney's fees from the losing party as a matter of course
Collateral Benefits: P can recover from 3rd party (e.g., insurance agency), but can also recover from tortfeasor
-General rule-> collateral agencies won't reduce recovery
Government Exception: Just because P is being paid from same government doesn't mean it's from the same source - in order to determine whether collateral source rule is applicable, courts look to nature of payment and reason payment is being made rather than at whether D is paying twice
Statutory Modifications: Reduces Ps recovery from tortfeasor, but P doesn't get:
-cost of keeping the benefit in place previous years, and
-the projected contractual cost of keeping benefits in place in future
Purpose of Statutes: To place P in the same position that she would have been in if she had not procured any collateral coverage at all
Subrogation: Gives collateral source the power to participate in, or even control. the tort litigation, and to recover its expenses from tort claimant
-allows insurer to take over your claim
Reimbursement: Leaves injured party in full control over the litigation, and allows the insurer to recover its expenses from proceeds of recovery
Survival of Personal Injury Actions: Provided that any tort action, including for personal injuries or property damage, was extinguished by the death of either the P or D
-Allows for compensation for pain and suffering of decedent previous to death
What qualifies for Punitive Damages?: -Intentional torts
-Extreme recklessness
-Gross negligence
-Wanton, willful, wicked conduct
Statutory Reform and Punitive Damages: Some Legislatures have capped punitive damages as a multiple of actual damages
Bifurcation: First determine in a trial if compensatory damages are warranted, then have a separate trial if the conduct is reprehensible and warranting punitive damages
Determining Punitive Damages (factors): -Degree of reprehensibility of Ds conduct
-Disparity between actual or potential harm suffered by the P and the punitive damage award
Exposure (proration) Approach: Apportions the cost of indemnity over the entire period between the intitial exposure and the first manifestation of illness or disease
-problem-> insured may not have coverage for part of the time
2nd Approach: Ties coverage to the moment at which P first manifested symptoms, and covers each tort dispute to a single insurance policy
Continuous (Triple) Trigger: Lets the insured elect to assign the loss to any policy in effect at the time of initial exposure, at first manifestations, or any time in between
Injury in Fact: Ties coverage to that point in time where some injury to the person can be identified
Assigned Risk Pool: Insurance companies must take in a certain number of people who otherwise would not be able to get insurance otherwise
Omnibus Clause: Insurance policy runs with the car
-Coverage for named insured and any resident of the same household, or any other person using the car with permission of named insured
Initial Permission: Once initial permission was given, persons used the car without them permission (or maybe knowledge)
"Drive the Other Car" Clauses: Runs with the person
-Gives owner of an insured car (and usually owners spouse) liability coverage while driving another car, usually on casual or occasional basis
Uninsured Motorist Coverage: Coverage runs in favor of the insured, his immediate family, and any other person injured while occupying insured's can
Duty to Defend: If offer to settle is maxing out the policy, and there is a chance they might win at tiral, insurers incentive is to go to trial because its the only way they won't have to pay full policy amount
-if they lose out trial, insured is liable for excess money beyond policy limit
Obligation to Act in Good Faith: An insurer should not be able to further its own interests by rejecting opportunities to settle within policy limit unless it is willing to absorb the losses which may result from its failure to settle
Good Faith Conduct (Insurer's Options): -Insurer treates case as if insured had no policy limits - as if insurer is on the hook for full amount
-If offer to settle is within policy limits and insurer rejects, then insurer is on the hook for award over policy limit
Workers' Compensation (Elements): -"arising out of"
-cause and origin of injury
-"but for" causation
-"in the course of" employment
-refers to time, place, circumstances
-While fulfilling duties of the employment K
"In the course of" (factors to be considered): -extent and seriousness of deviation
-completeness of deviation
-extent to which the activity had become an accepted part of the employment
-extent to which the nature of employment may be expected to include some horseplay
Acts of God ("Actual Risk" Test): Claimant allowed to recover only by showing that the employment increased the risk of harm beyond levels to which an ordinary member of the public in exposed
"Potential Risk" Test: Allows compensation under a "but for" test if it turns out that the activities of the employer required the employee to be in a position to suffer the harm
-P only needs to prove that his work brought him within range of the danger by requiring his presence in locale where peril struck
Special Hazards Rule (3-part test): 1. Must be a causal relationship between the employment and the injury
2. Hazard that causes injury myst because "distinctive in nature or quantitatively greater than risks common to the publi."
Exclusive Remedy: Intentional torts are not limited to what is desired (consequences) - if the actor knows that the consequences are "substantially certain" to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result
Exceptions to Exclusive Remedy (Intentional wrongs by employer): Must prove that employer knew, or was substantially certain that P would be injured
Automobile No-fault insurance: Insurance company takes care of injuries, including those that are not your fault
Fraud (elements): 1. False statements
2. Known to be false by speaker
3. Intended to be material and induce conduct by P to his own detrminet
4. Which in fact induces such conduct
5. Thereby causing damages
Opinion: An opinion may be fact when the parties are so situated that a buyer may reasonably rely upon the expression of a seller's opinion
Misrepresentations of Law: Traditionally, no action for deceit
-theory that everyone has access to public record information
Latent Virtue: -Generally, buyer is under no duty to disclose
-A buyer in sole possession of knowledge would affect the price of products he is dealing in is not obligated by law to divulge the information
Materiality in Fraud cases (Restatement): A matter is regarded as material if:
1. A reasonably man would attach importance to its existence or non-existence in determining his choice of action in transaction in question; or
2. Maker of representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable man would not so regard it.
Contributory Negligence in Fraud: Negligence on part of P in failing to discover the falsity of a statement is no defense when the misrepresentatoin was intentional rather than negligent
Measure of Damages in Fraud: Possible damages:
-Allows P to rescind the transaction and return to the status quo ante by awarding out of pocket losses
-Allows P to claim the benefit of her bargain, as if the fraud had never taken place
Negligent Misrepresentation: No liability for negligent misrepresentation without privity between the P and D
High Ranking Officials: Completely immune from tort liability for acts carried out within the scope of their duties, even if their conduct involves "malice" or "abuse of discretion"

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