Torts Bar Review

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Author:
jhallharris
ID:
13658
Filename:
Torts Bar Review
Updated:
2010-04-09 01:00:40
Tags:
Negligence
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Description:
Bar Exam July 2010
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  1. Define Release?
    Multiple D Issues-

    • Releases: A release dn release other tortfeasors unless it
    • expressly does so.
  2. Define Joint and Several liability
    • 1. Joint and Several Liability –Rule: Where multiple acts cause indivisible
    • injury, each D will be potentially liable for the entire judgment amt.
    • (on exam assume that Joint tortfeasors are J&S liable)
  3. Define Contribution and Indemnification. When is it used?
    • Contribution and Indemnification – When is this used?: It is used where a D because of
    • joint and several liability, has paid more than his fair share of
    • the judgment and wants the other Ds to contribute or indemnify.

    • ·
    • a. Contribution: Rule: where Ds are more or less equally
    • responsible, they will share the judgment amt equally.

    • Note: 1. D from whom contribution is sought must also be liable (for example, not have independent defense such as intra-family tort immunity)
    • 2. Not applicable to intentional torts.


    Indemnification: Can get EVERYTHING back from the other Ds.

    · Indemnification grounds:

    • 1. The other D is a lot more
    • responsible (Retailer getting it back from manufacturer)

    • 2. Vicarious L- you can get it
    • back from the actual tortfeasor

    3. SL in product cases. All the way up to manufacturer.
  4. What is comparative contribution? How does it work?
    Comparative contribution

    Rule: Ds will split up judgment according to relative fault (IL Rule) Hypo:

    • Adam is 24% responsible for injury. Buster 75%
    • responsible. P received $10,000
    • judgment. How do we split this up
    • bw them? ___________________________. They both owe P $100,000.
    • They can go back and get money from each other after P is paid. Tip: Comparative contribution effectively eliminates contribution
    • and the first ground for indemnification.
  5. Define the Survival and Wrongful Death Statutes.

    What are the tort Immunities?
    • Survival and wrongful Death: These are derivate
    • recoveries. This means you will stand in no better position than decedent would have stood in had he lived.

    Tort Immunities

    Intra-family- out

    Charitable- out

    • Governmental- statutory- can’t test this except: Governmental vs. Proprietary function – Rule: Immunity is available
    • for governmental functions; it’s
    • not available for proprietary functions.

    • To determine if function is proprietary, ask: Would a private business
    • normally perform this function? If yes, it is a proprietary function.
    • Hypo: City parking lot. Governmental or proprietary
    • function? It is a Proprietary function.
  6. Damages
    • There is duty 1. to mitigate 2. Collateral source Rule: Damages not reduced because of payments
    • from other sources, e.g., health insurance.
  7. Defenses- Contributory Neg, comparative neg, A/R
    • 1. Two types contrib. Neg fact patterns: knowing C/N/implied A/R and
    • Unknowing Contrib/Neg

    • · Knowing Contrib negl/implied assumption of the risk – hypo: Doofus runs across
    • street trying to beat negligently driven speeding car. He is struck and
    • injured. Will Doofus recover? No.
    • Contrib Neg. Was it reasonable care as he crossed the street? No. Tried to beat
    • a speeding car. Will Doofus recover? No.
    • Implied assumption of risk.

    · Two part test for implied Assumption of the risk:

    One knew of the risk.

    One voluntarily proceeded in the face of it.

    • To recognize the fact pattern where both contributory neg and implied
    • a/r are available. It is where the plaintiff 1. Unreasonable ; 2. Voluntarily;
    • 3. Takes on a known risk.

    • · Unknowing Contrib Neg:
    • Hypo: Doofus, while
    • daydreaming, steps off curb into street and is blindsided by negligently driven
    • car. Will Doofus recover? No. Contrib Neg- walking around crossing
    • streets daydreaming is not reasonable .
    • Watch where you are going. Do not write abour A/R- dn know of the risk
    • and dn voluntary take it on.
  8. · Knowing Contrib negl/implied assumption of the risk – hypo: Doofus runs across
    • street trying to beat negligently driven speeding car. He is struck and
    • injured. Will Doofus recover? No.
    • Contrib Neg. Was it reasonable care as he crossed the street? No. Tried to beat
    • a speeding car. Will Doofus recover? No.
    • Implied assumption of risk.
  9. · Two part test for implied Assumption of the risk:
  10. · Unknowing Contrib Neg:
    • Hypo: Doofus, while daydreaming, steps off curb into street and is blindsided by negligently driven
    • car. Will Doofus recover? No. Contrib Neg- walking around crossing
    • streets daydreaming is not reasonable .
    • Watch where you are going. Do not write abour A/R- dn know of the risk
    • and dn voluntary take it on.

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