Torts- Spring

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When does a person have a duty to act?: 1. Special Relationship
2. In control of the injury causing instrumentality
3. undertaken a rescue that either increases the risk of harm or leads to detrimental reliance on the part of the P
4. When the D has a special relationship to the person hwo causes the harm
Who is considered to have a special relationship giving rise to a duty to aid?: Invitors, familiy memebers, employer/employees, Innkeepers
What are the usual limitations placed on a physicians duty to warn: 1. Limited to people who know or should know of the seriousness of the threat
2.Usually limited to threats to identified persons,
3. , limited by the judgment that the doctor acted with the reasonable care necessary of a medical professional
When is a person liable for damages relating to pure economic loss?: 1. When there is physical harm to a person or property
2. That the P had a proprietary interest in
What is the impact rule/parasitic damages?: P can only recover for ED if they have been physically harmed by the actions of the D.
What is the critique of the impact rule: COurts relaxed the impact to include very minor injuries. Elephant case
What are some ways that the impact rule has been modified?: 1. P can recover for ED, but only if it results in a definite onjective physical injury
2. IN Ga, a person can recover for ED suffered b/c of witnessing another person's injury, but only if they too were injured in the accident
What are the requirements for bystander liability established by Thing?: a.P must be closely related to the injured party-(Increases the ED, decreases the # of people who can recover
b.They must be in close physical proximity/ Or under Thing be there and witness the event
c.There must be a contemporaneous sensory perception of the accident
What is the zone of danger rule?: P can only recover for ED for witnessing injury if they could have been injured by the N of the D
What is the direct victim theory?: P's ED was created by a direct action of the D, even though there was no physical injury. Basicall focused on the level fo foreseeability of the ED to the victim.
Syphilis case, child molestation.
Has been limited in some states to include only those people who had a pre-existing relatioship with the D before the injury ( Huggins case)
What is the general rule about recovery for exposure to a dangerous substance?: 1. THere has to be actual exposure
2. It must be through some medium that could have infected the person
IN Hartwig, the court allowed for recovery even though there was no way to prove exposure b/c the P had to live like she was infected
UNder the common law what duty did a LO owe to a person off of the property?: They did not owe a duty to protect people from conditions that occurred naturally, but there was a suty to protect people from artificial conditions created by the D
What was the general exception to the no duty for natural conditions?: started with trees in the city, and then expanded to include trees in urban areas as well
Out of the jxns that have gotten rid of the artificial/natural distinction, what is the limiting factor?: It is hard to prove breach on a lot of the naturally occurring stuff. BPL analysis will usualy fail if the expense is great and the chance of injury is low
What is the majority rule about duties owed to people on your property?: It is based on the person's legal status
What id the general duty toward trespassers?: There is no duty of reasonable care for the protection of trespassers
What are the limitations on the no-duty rule for trespassers?: 1. RC may arise once the TP is known
2. Kids were protected under the attractive nuisance doctrine
3. LO will be liable for wanton/willful injuries
4. LO may be liable ifthe TP was known to them (frequent Tp's, and tolerated intruders may become licensees)
wHAT IS THE attractive nuisance exception?: When it is foreseeable that a child may come onto the land and be inured, then the D has a duty to exercise RC to protect from harm.. eg swimming pools,
What is a licensee?: A person coming onto the land with the express or implied permission of the land occupier, for the entrantâ€™s own purposes, conferring no particular benefit on the land occupier or on any use to which the land occupier is putting the land
What is the duty owed to a licensee?: 1. D must exercise due care to warn the P of HIDDEN natural or artificial conditions involving a risk of harm that is known to the land occupier
What is an invitee?: Person who enters by the express or implied invitation of the LO for some purpose related to the activities or interests of the LO
What is the duty owed to an invitee?: D must exercise RC to prevent the invitee from being harmed
Can a person's status change while on the property?: Yup
Can a person warn away the duty to exercise reasonable care toward invitees?: In most jxns no. Wilk v Georges- Nursery warned of slippery floors but did nothing to correct them. Liable.
What are the two instances where a person may be liable for the criminal/tprtious activities of a 3rd party?: i.When the invitor has failed to make the premises safe. Usually when the condition of the premises makes it more likely that the crime will happen
ii.The invitorâ€™s actions in face of the crime. Courts hesitant to hold liability here
Have the duties of care based on status changed over time?: Yes. Some jurisdctions (Ca) have abolished distinctions, whil others have collapsed licensee/invitee into one duty of RC, but retained a lower standard for TP's
What are the exceptions to the general rule that LL's do not have to exercise RC to protect people on their property?: 1.Undisclosed dangerous conditions that predate the lease and are known to the lessor
2.Conditions dangerous to persons outside the premises
3.Premises leased for admission of the public
4.Parts of land retained in lessor's control which lessee is entitled to use
5.Where the lessor K's to repair
6.Negligence by the lessor in repairs
How do jxn's that justify imposing RC on a LL justify their holdings?: a.Look to the lease more as a K, not a conveyance like it was when the rule was formulated
b.LL has a long term interest in the property renter does not, also better ability to know/care about problems, willing to invest in the property
c.Will make the world a safer place in the long run
Does a LL have a duty to protect against criminal activities.?: Usually when a LL retains control over certain areas they are treated as occupiers of land and owe whatever duty an occupier owes. Some court have expanded this to include a duty to TAKE REASONABLE PRECAUTIONS AGAINST FORESEEABLE CRIMINAL ACTS OF 3RD PARTIES.
What is the last clear chance doctrine?: Under CN a Pâ€™S negligence would not bar recovery if the D right before the accident had the LCC to avoid the injury and they failed to do so
Waht is the helpless/inattentive distinction for LCC?: A helpless P has more likelihood to recover than an inattentive one. D is judged under a should have known standard for a helpless P, but an actual knowledge standard for inattentive P's
What are the three possibilities for P's recovery under CF?: 1. Pure CF- P can always recover the amount of fault attributable to the D, even if it is only 1%
2.49% limit plans- If the Pâ€™s % is greater than or equal to that of the Dâ€™s then they are denied recovery
3.50% limit plans-If the Dâ€™s behavior is equal to or greater than that of the P then the P can recover. Majority Rule
How do states aporach a CF analysis when there are multiple parties.: 1. Most states when there are multiple Dâ€™s who are not jointly liable, use the partial approach, holding that a P can not recover if their negligence exceeds that of the Dâ€™s
2.Some states allow for a comparison of the total negligence
3.Some include only those Dâ€™s that are made a party to the suit
What are two questions a court will ask when deciding if an express AOR waiver is valid?: a. Is the subject matter of the K really important? e.g. Residential housing and medical treatment
b.Is it a K of adhesion or is there really an opportunity for bargaining?
Does an AOR clause have to be clearly noted?: In order to be considered part of the bargain, yes
When is capacity an issue for express AOR?: When the D knew or should have known that the P was impaired
What are the three elements of implied AOR?: 1. Actual subjective knowledge
2. Understanding
3. Voluntary undertaking
What are the policy reason behind a SOL?: 1.Keeps out stale evidence
2.Repose for the D
3.Insurance considerations ( premiums collected
What is accrual?: POint when the SOL begins to run
What is continuing tort?: IN some instances if there is ongoing injury, the court may allow for the SOL to accrue at the end of treatment not at the time of injury. Med/mal and abuse cases
When does the SOL get tolled?: Usually in cases where the P could not bring suit. Minors, insane people, people in comas
What is the discovery rule?: A rule that pushes the date of accrual back to the time when the P knows or should have known about the negligence of the D
What is res judicata/second disease?: When a person has two successive injuries caused by the same act of negligence they may be precluded from recovering for the second injury, unles they can prove that it is a SECOND DISEASE, distinct from the first injury. e.g. asbestosis and cancer
What is a statute of repose?: A time set by statute, after which a D can not be sued. It is based on when the act occurs.
What is the difference b/w a SOR and a SOL?: SOR fixes a time during which a person must be hurt in order to sue, a SOL fixes a time in which person has to sue AFTER they have been hurt
What is the general trend in interspousal immunity?: The general trend is toward abrogation. Some states have limited it only to auto accidents.
When is a court more likely to disregard parental immunity for tort?: When the harm is based on some sort of non-partental activity like driving. Curts are very hesitant to allow people to be sued for being bad parents
What are the 2 policy reasons behind charitable immunity?: 1.Implied waiver- Recipient of charity impliedly waives their claims. Equitable argument- People who do not pay should not be able to sue
2.Trust fund- Money given to charity is in a trust to further the charity not to pay out for accidents
What are the policy reasons for governmental immunities?: 1.King can do no wrong
2.Pragmatic decision to protect the public treasury
3. Govt has less latitude about what it has to do
4.Tort claims would put a burden on the govâ€™t making it impossible to provide the needed services necessary
Before the advent of TCA's when could a person recover in tort from a government?: When the injury resulted from a proprietary function instead of a municipal function. Very arbitrary
What is the public duty exception?: A government was not liable for harm based on a duty owed to everyone.
What is the exception to the public duty rule?: - When the govt has undertaken to protect someone and that person relied to their detriment on the undertaking. Usually 911 cases.
What is the most common exception invoked to stop liability for tort claims against the govt?: The discretionary function exception
What are the two things that must be satisfied in order for something to fall within the discretionary function exception?: 1. THere must have been some choice.
2. It must have been based on a social, economic, or political policy
What are the special procedural elements built into the Ga/federal tort claims act?: Have to file notice of the claim
i.Timing and content restrictions on the notice
b.Venue restrictions, GCTA- must be where the injury occurred, FTCA- Where the P resides or the accident occurred
c.No punitive damages
d.Trial-GCTA- Jury trial, FCTA- Bench trial
e.Ga has a limit on recovery. 1 mil per person, and 3 mil per accident
f.FCTA limits amount that can be charged yb attorneys
What are some of the oter exceptions to the FTCA beside the discretionary function exception?: i.Mail
ii.Tax collection
iii.Quarantines
iv.Fiscal operations of the treasury
v.Intentional torts
vi.Military service
What are the 3 possible times when a person may be on the hook for joint/several liability?: i.Tortfeasors acted in concert
ii.Defendants fail to perform a common duty to the plaintiff
iii.Defendants who acted independently to cause an indivisible harm,
What is contribution?: When a D gets a judgment agaisnt them and they go aftr other people who might have cuased the harm.
What must be proven in order to get contribution?: a.Common liability
b.That they paid more than their share
Is a person who is immune from suit usually liable for contribution?: NO
Can a non-settling D get contribution from a settling D?: No, but the settlement is subject to a good faith analysis
What is indemnity?: When a person is on the hook becuase of derivative liability, and they sue to get all of the money they owe paid back by the other party.
What is a covenant not to sue?: K agreeing not to sue usually based on a settlement
What happens when a judgment is satisfied?: Then the non-paying D's are off the hook to the P, but thye may still be liable for contribution
What is the collateral source rule?: Damages awarded to the P should not be reduced by any amount that the P has recovered from sources collateral to the D, like insurance, WC, medicaid, etc.
If a P gets a low judgment satisfied can they go after other people for more money?: NO, the only recourse there is to appeal and try to get more damages
What is a Mary carter agreement?: When one D settles but agrees to stay in the suit to help the P. If the judgment is higher than their amount they get reimbursed.
What are the arguments for a MC agreement?: May encourage parties to tell the truth, this is what happens under CF anyway
What are the arguments against the MC agreement?: jury confusion, possibility for fraud/collusion, actually increases litigation.
WHAT are the two types of injury causing activies that are likely to be held to strict liability?: 1. INjury caused by animals
2. Injuries caused by abnormally dangerous activities
What is the duty owed by the owner of a wild animal?: Owner will be strictly liable for any injuries, UNLESS they keep the animals pursuant to a public duty (like a zoo keeper)
When is the owner of a domestic animal held to strict liability?: When the animal has a history being vicious.
What is the excpetion to the domestic animal SL regime?: If the animal is one that is vicious by nature (like a bull) the owner will only be liable for negligently containing the animal
What are the factors to be considered to decide if an activity qualifies as abnormally dangerous?: (a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Are there defenses to SL?: Yes, SL is not absolute liability.
What defenses are there to SL?: 1. Proximate cause/Risk rule- THe harm caused must be the risk that made the activity fall within the SL category to begin with.
2. SL will not cover acts of god. Golden v Armory
3.Assumption of the Risk is still viable.
4. Comparative fault is generally not a defense, but a few jurisdictions do allow it.
What are the three possible theories of recovery under products liability?: Negligence, warranty, and strict liability
When is a manfacturer liable under a negligence regime?: 1.If a reasonable person could foresee that the chattel would create a risk of harm if not carefully made or supplied, the manufacturer or supplier is under a duty of care in its manufacture and supply
How does a seller make an express warranty?: 1. Affirmation of fact or promise
2. Relates to the goods
3. Becomes part of the basis of the bagain
What are the questions that need to be asked in order to decide if a manufacturer is SL under an express warranty theory?: 1.Was there a promise?
2.What was it?
A. ARguments about the scope of warranties here-
3.Was it kept?
4.(was it unconscionable- see below)
wHAT ARE THE two types of implied warranties?: Implied warranty of merchatnability, anf fitness for purpose
In order to be merchantable what must a good be?: (a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promise or affirmations of fact made on the container or label if any
What is necessary to form an implied warranty of fitness?: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods
How can a seller opt out of the warranty of merchantability?: 1. By disclaiming a warranty (as is, with all faults)
2. IF the buyer has examined the goods before he buys them and the defects are such that they should have been revealed then the warranty is disclaimed 2-316
What is the final check on the exclusion of warranties?: The court will not ecnforce the exclusion of warranties if they find that it is unconscionable- 2-302
What are the three possibilities for the exension of waranties to third parties?: 1. Any natural person who is in the family or household of the buyer( majority rule)
2. Any natural person who may reasonably be expected to use, consume or be affected by the goods
3. Any person
What are the three possible defects that might allow a person to recover under SL in products liability?: 1. Manufacturing defect
2. Design defect
3. Failure to warn
When does a product have a manufacturing defect?: A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product (RST 3rd PL §2(a))
When does a product have a design defect under the RST?: i. A product if defective in design when the FORESEEABLE RISKS could have been reduced or avoided by the adoption of a REASONABLE ALTERNATIVE DESIGN by the seller or the other distributor, or a predecessor in the commercial chain of distribution, and the OMISSION OF THE ALTERNATIVE DESIGN RENDERS THE PRODUCT NOT REASONABLY SAFE- RST 3rd PL § 2(b)-
How do courts determine if a product was defective?: 1. Most courts use a risk/utility analysis
2. Some courts use the consumer expcetations test
3. Others use a modified consumer expectation test that is basically a combo of one and two
What are some of the possible factors to analyze a defect under a risk utility?: 1.Usefulness of the product
2.Likelihood/severity of the danger
3.RAD
4.Cost of a RAD
5.Ability to reduce the product's danger without impairing its usefulness or making it too expensive
6.Feasibility of spreading the loss
7.Customer Expectations
What is the relevance of a reasonable alternative design?: 1. Most courts look to it as a factor in the risk utility test.
2. The RST requires it in order to recover
Can there be a claim for a product defect if there is no RAD?: Under the RST no, but some courts may allow it if the risk is so high that the product should not have been produced at all.
What are the two possible defintions of SOTA?: 1. INdustry standards
2. The best possible technology that is feasible at the time of manufacture
What if the danger from the product is open and obvious?: Most courts hold that if the danger if open and obvious then the consumer can not sue for a design defect
When does the RSt allow for an inference of a design defect?: When the injury was one that normally occurs as a result of a product defect and the injury was not the resuly of causes other than a product defect existing at the time of sale.
When is a prescription drug defective b/c of a DD?: A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by them is SUFFICIENTLY GREAT IN RELATION TO ITS FORESEEABLE THERAPEUTIC BENEFITS THAT REASONABLE HEALTH CARE PROVIDERS, KNOWING OF SUCH FORESEEABLE RISKS AND BENEFITS, WOULD NOT PRESCRIBE THE DRUG OR MEDICAL DEVICE FOR ANY CLASS OF PATIENTS
When is the seller of a defective product liable for increased harm due to the product defect?: 1. If it is possible to porve what the harm would have been without the defect, then the seller is just liable for the increased harm.
2. If it is not possible ot prove, then the seller is liable for all of the harm.
When is a product defective b/c of a failure to warn?: when the FORESEEABLE risks of harm posed by the product could have been reduced or avoided by the PROVISION OF REASONABLE INSTRUCTIONS OR WARNINGS by the seller or other distributor, or a predecessor in the commercial chain of distribution, and THE OMISSION OF THE INSTRUCTIONS OR WARNINGS RENDERS THE PRODUCT NOT REASONABLY SAFE. RST 3rd PL §2(c).
What are the two ways to fail to warn?: 1. INADEQUATE INSTRUCTIONS- Not litigated as often as the failure to warn
2. FAILURE TO ISSUE AN APPROPRIATE WARNING- Most often litigated
What is the learned intermediary rule?: 1. For Medical stuff, if the doctor/medical personnel is the one who will give the medication/medical device, the manufacturer is off the hook if they give the LI adequate warnings
a. Doctor is usually in a better position to communicate effectively with the patient
i. Warnings from the M would have to be in writing
What is the exception to the learned intermediary rule?: when the product is directly marketed to the patient, then the M still has a duty to warn them , or as the RST says, when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings.
What are the arguments for/against extending the LI rule to other fileds beyond medicine?: i. Employer may be in a better position to communicate with the employee
ii. Unlike a doctor, the employer may not have the employeeâ€™s safety/health as the motivation for their actions
Whan does a seller have a post sale duty to warn?: RST §10 Seller has a post sale duty to warn if a reasonable person in their position would warn about the product
(b) A reasonable person in the seller's position would provide a warning after the time of sale if:
(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of providing a warning.
When does the RSt state that a seller has a duty to recall?: 1. RST Â§11 only forces a recall when
a. It is directed by the govâ€™t
or The seller undertakes to recall voluntarily and bunks it up
What are the defenses to PL?: CF, product misuse, federal preemption
How does the RST treat the misuse of a product as a defense to PL?: When the product is misused, then the seller is not liable ( product is not defective)
What is the excpetion to the misuse is a bar to recovery doctrine in the RST?: If the misuse was foreseeable, then the D will be liable. Actual cause of harm may not be important as long as some harm was possible. (Cinderblock case)tHIS WILL HAVE IMPLICATIONS FOR WARNINGS AS WELL( d HAS TO WARN OF DANGERS FROM POSSIBLE MISUSE)
What are the two presumptions in a preemtption case for PL?: 1. Court will presume that the state law is not pre-empted
2. THere must be strong evidence of a congressional intent that the draftors intended for the law to preempt
Who other than the manufacturer may be liable for a PD?: 1. Wholesalers
2. Retailers
3. Lessors
4. Manufacturers of component parts that are not substantially modified
UNder the minority/GA rule when is the seller of a defective product liable to the P?: Only when they were negligent or the manufacturer went out of business
When will the seller be liable for a defect in a used product?: If the product was defective when it left the M or if they were negligent in the sale
What is the service/product distinction?: The D will not be strictly liable if they were performing a service. Doctors and dentists are usually shielded by this.
When can the P recover for purely economic loss caused by a defective product?: If the product caused damage to their property or person, then the P can recover for this, but if the only harm was a loss of money, then the only recourse is a breach of warranty claim
What are the two types of compensatory damages?: Special(economic) and general(everything else)
How can a P prove future medical expenses?: Two experts, a doctor to testify about the likely procedures and an economist to testify about the future cost
What is the problem with lost future earnings?: It is no problem if the P had a job, gets much trickier if they were unemployed, or a child. For a child the court can look to life expectancy and average earnings
What are the three ways courts have come up with to control amounts awarded for future specials?: a.Inflation discount method- P gets the award amount, then it is adjusted upward for inflation, and then downward for interest
b.â€œReal interestâ€ method- The courts determine what the difference between inflation and the interest rates will be and then makes one calculation based on the difference
c.Total offset method- The inflation and the interest will offset each other so no adjustment needs to be made. This is the method endorsed by the US SC
How do taxes affect damages?: There is no tax for compensatory damages ( but there will be tax for any interest earned from them), punitive damages are taxed
What is a remittitur?: Procedural mechanism for decreasing the jury award. Courts are hesitant to set aside jury awards, but it can be done when the court finds that the award was excessive
What are the three ways a court might analyze a jury award?: 1.Maximum recovery rule- The judge will set aside a verdict if it exceeds what the court and the expert testimony has shown to be the maximum possible award.
2.Shocks the conscience- Does the award shock the conscience
a.Is it against the weight of the evidence
b. Was it the result of prejudice
3. Court could compare the case to similar ones- No good b/c all Pâ€™s are different, so it is not going to be very effective
What happens procedurally when a court grants a remittitur?: They offer it to the P and if they refuse the judge orders a new trial
When are punitive damages available?: When the D has acted intentionally, or willfully, wantonly, recklessly or with fraud or malice
What are some of the procedural safeguards that are provided for in a puniitve damage action?: 1. Higher standard of proof
2. Bifurcated trial
3. Statutory caps, limits on the # of awards
What are the three Gore guideposts?: 1. Degree of reprehensibility
a. If the injury is physical, the P is more likely to get an award
2. Disparity b.w actual/potential harm suffered by the P and punitive damages
3. The difference between punitive damage award and the civil penalties authorized and imposed in comparable cases
What is the general rule set up by the SC regarding the amount of punitive damages?: Usually it has to be a single digit multiplier, unless the compensatory damages were very low or the D was engaged in intentional activities that involved a high degree of risk

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