Torts

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Author:
jrok6661
ID:
252610
Filename:
Torts
Updated:
2013-12-11 21:11:55
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terms
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Names first then definitions
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  1. Nominal Damages
    • A trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled
    • to compensatory damages
  2. Special/pecuniary/economic









    Compensatory
    Damages
    • Anything of value
    • Bills, wages, things with past and future value
    • damages awarded to a person as compensation, indemnity or restitution
  3. General/non-pecuniary/non-economic
    • Things that are hard to place an absolute value on 
    • pain and suffering, loss of enjoyment, embarrassment
  4. Punitive damages
    Damages other then compensatory or nominal that are awarded to punish
  5. Remittur
    • Push down award by judge
    • Done right after jury has awarded
  6. Loss of Consortium
    Loss of spousal services, like companionship, comfort, sex and other household duties
  7. Wrongful death
    • Lord Campbell's act in UK
    • Can receive damages for the death of a loved one
    • States determine who can collect
  8. Damages and interest
    • After trial interest goes down
    • Damages are subject to interest
    • $4M=5M needs to be posted if you appeal
  9. Caps on Damages
    How much you are allowed to sue for is capped
  10. Malice
    • Worst
    • Desire to cause pain, injury or distress
  11. Reckless
    • Middle- worst
    • Without thinking or caring about consequences
    • Conscious disregard of a high degree of risk
  12. Negligence
    • Bad, but least worse of MR in Torts
    • Failure to exercise the care a RPP would exert
  13. To prove a case
    Show causal connection between damages and the act
  14. 1st party insurance
    • Money paid to you or others for you
    • Life, medical
  15. 3rd party insurance
    • Liability
    • Protects others from you
    • Auto, home, business
    • Lots covered, but not often used
  16. Collateral resource rule
    • Tortfeasor can't benefit from 3rd party contract benefit payments to the injured party
    • Can't pay less just because insurance of the injured person pays for some
  17. Subrogation
    • Insurance will want its money back
    • After you are given an award, insurance will want compensated for what they paid to you
  18. Duty to defend
    • Insurance companies have a duty to defend you
    • They don't have discretion about who the can defend.
  19. Duty to pay/indemnify
    Insurance doesn't always have to pay, but if its within policy limits and you are covered then they should pay
  20. Duty to settle
    Insurance has a duty to settle your claim within your policy limits
  21. bad faith-breach of contract
    If Insurance does a bad job on paying or not paying for a claims they should pay you can sue them for more then contract breach
  22. Insurance negligence
    • if they don't have a  good reason for not paying
    • Like malpractice
  23. Insurance implicit duties
    • Investigage
    • Timely 
    • pay if appropriate
  24. 3rd party insurance bad faith
    Your entitled to the benefit of the doubt
  25. 1st party bad faith
    • refuse to pay or delay paying
    • Reasonable time period
  26. Underwriting
    Prior to getting insurance they can find ways to not except you
  27. Post claim underwriting
    You lied now we won't pay
  28. Insurance Quasi-feduciary duty
    • Some duty to us, if you don't use it they will decide
    • They have to consider you in the settlement
    • if they fuck up they are on the hook
    • You break you buy!
  29. Negligence& Negligence per se
    Should always be pled together
  30. Hand Formula
    • If burden is less then the probability of loss times the likely hood of injury = negligence
    • You have to fix it if it doesn't cost that much, especially if it's likely some one will get hurt.
  31. Feasonce
    Doing something
  32. Non-feasonce
    • Did not do something
    • No duty unless you created the danger
  33. Standard of care
    • Several standards
    • RPP most used
    • Professional
    • Disabled
    • Child
    • Adult for kids
  34. Professional standard
    • Custom
    • What ever is commonly done
    • Not always reasonable
    • Can insulate negligent practices
  35. RPP
    • man who mows his lawn in his shirt sleeves
    • cuz getting cut hurts
  36. People w/disabilities standard
    Reasonable person w/ disabilities
  37. Child standard
    Reasonable child
  38. Adult standard for kids
    • When engaged in adult activities
    • Driving n shit
  39. Violation of statute
    Negligence per se
    • test
    • 1. statute says you do or do not do something
    • 2. Show violation by defendant
    • 3. Plaintiff must be the person statute is meant to protect
    • 4. Harm must be the harm that the statute is meant to guard against
  40. Contributory negligence
    If plaintiff is at fault at ally the plaintiff losses.
  41. Comparative fault
    Compare the fault of all parties
  42. Res ipsa loquitur
    • The accident causing harm was probably due to negligence
    • Defendant probably the culpable party
  43. Medical Malpractice
    Very small amount won. Don't bother unless you got a slam dunk
  44. Informed Consent
    • Here are the risks and you decide to be treated or not
    • Materiality
  45. Materiality
    • How important is it to the patient's decision making that you tell them
    • New SOC for consent
  46. Medical battery
    Do something to you that you didn't want done
  47. Causation
    • Cause in fact
    • Proximate cause
  48. Cause in Fact
    • Gold standard
    • But for, Breach of SOC caused injury
  49. Substantial factors test
    Bad stuff done but not quite equal to but for
  50. Multiple sufficient causal sets
    • Lots of fuckers did shit
    • rule
    • A but for cause of injury
    • A necessary component of a causal set that probably would have caused injury in the absence of the other cause
  51. Joint & Several liability
    • Court relaxed but for causation 
    • Burden flipped from plaintiff to defendant to prove that they didn't do it
  52. Contribution
    Get money from dude with money and dude with money has to try and get the other fuckers to pay him the money he already paid
  53. Alternative liability
    • Applies sometimes for product suppliers
    • If suppliers are all negligent
    • All of them fuckers sold bad shit and should have known
  54. Concerted design/Concerted action
    • They all were in it together
    • Show but for causation of the group
  55. Market share theory
    • Bring in portion of the market ad sue for portion that they sold
    • Only works in bad act
    • Must still show causation
    • When allowed burden shifts to defendants
    • Only can use when there is really no way to tell who did it
  56. Lost opportunity
    • Must show that chance survival was really good
    • 75% good
    • 35% not good enough
  57. Proximate cause
    • About something starting the chain of causation
    • Must be harm that results from the hazard that made the defendants conduct tortious in the first place
    • Different from Duty
    • More fact - More analysis
  58. Duty
    • More of an general inquiry then Proximate cause
    • Several catertogories
    • Anyone with a special relationship
    • Anyone whom one party has control over the other party
    • Heaven v. Pender - When active be reasonable
  59. Landowner duties
    • 1. Invitee - Bidness
    • 2. Licensee - for fun
    • 3. Trespass
  60. Invitee
    • Duty to inspect
    • Have reason to know about condition
    • Should have known
  61. Licensee
    • Duty to Warn
    • Actual knowledge of the condition
  62. Trespass
    • No duty to but,
    • Cant intentionally harm
    • Child exception
    • Attractive nuisance
    • Anything kids will want to play on or around
  63. Negligent entrustment
    Give dangerous stuff to an idiot or a child
  64. Special circumstances of duty
    Improper disposal of a corpse
  65. Duty to rescue
    • When you start to rescue, you must finish it
    • Good samaritan
    • If you start you deter others from helping
  66. Created the peril
    If you created the peril you have a duty to fix it
  67. Acceptance rule
    Cant sue a 3rd party for work that has been accepted
  68. Misfeasance
    Done something
  69. Humanitarian exception to Acceptance rule
    • If the work the contractor produced is dangerously defective, inherently dangerous, or imminently dangerous = created a risk of imminent person injury
    • Bush v. Seco
  70. Mental and emotional stress
    • Need to be touched 
    • Zone of danger
    • Russlism
    • Law not the guarantor of and emotionally peaceful life = life sucks, get the fuck over it
  71. Zone of danger
    • Must see it and many JD's want a physical manifestation of injury
    • 3 factor test
    • 1. near; and
    • 2. Seen it; and
    • 3. Close relationship to victime
  72. Pure economic losses
    • More for economic damages; like an oil spill
    • Foreseeable = on the hook if the oil touched them
    • Fiduciary duty
    • Doctor, Lawyer, Architects 
  73. Vicarious Liability
    • Employer liability
    • Negligent:
    • Hiring,
    • Supervision,
    • Retention 
    • Entrustment
  74. Vicarious liability for independent contractors
    • Course and scope test
    • Does the employer have control over?
    • is it stuff that is a non-delegable duty; stuff you can't say is someone else's duty
    • Foreseeability test
    • Things that will foreseeably happen
  75. Contributory negligence
    • Contribute a bit = lose completely 
    • Except for intential & Gross negligence
  76. Pure comparative fault
    0-99.9% can recover any where in here
  77. Modified comparative fault
    • 2 kinds
    • 1.>50% no recovery for plaintiff that is more negligent
    • 2. >50% no recovery when plaintiff's is greater then or equal to defendants
  78. Non party at fault
    • % allocated to a non party
    • They are not present and can't defend themselves
  79. Statute of limitation
    • To keep evidence fresh
    • To allows defendants to close their books
    • Clock starts at discovery of injury or upon reaching 18th birthday
  80. Statute of repose
    Like statute of limitations, but clock is really over
  81. Intentional infliction of emotional distress
    Like wife beating, can be argued as one continuous occurrence. 
  82. Judgment debtor
    Person who judgment is awarded to
  83. Assumption of risk
    Implied & Expressed consent
  84. Implied Consent
    No contract, but risk is known. Risky behavior
  85. Expressed Consent
    • Signed waiver
    • $&Waiver=Fund&Risk
    • Exculpatory agreements are disfavored by the law
    • Most states say parents can't waive their children's cliam
  86. Premitigation
    • Should have taken states to keep from harm
    • Like wear a seat belt. 
    • Some JD's have this rule, but how far down the rabbit hole should we go?
  87. Immunities
    Immuned from liability
  88. Governmental immunity
    • Cant sue the king
    • Discretionary function-Policy= Cant sue
    • Ministerial Acts-Maintanence= can sue
  89. Discretionary functions
    Decision maker can be held accountable in elections for bad policy decisions, so they are not liable for policy decisions
  90. Ministerial acts
    • Maintenance of government building and cars
    • Proprietary functions, things that can be contracted out
  91. Family immunity
    • Cant sue your spouse
    • Cant sue your parent
  92. Charitable immunity
    • Can't sue charities 
    • But law is changing, mostly gone now
  93. Intentional torts
    • Cant be a defense
    • Insurance has to defend, they might settle if you plead it right
    • Should plead as negligence if you can
    • MR in the touch not motive for touch
  94. Transferred intent
    Can intend to do one act and then that intent transfers to act that caused harm
  95. Battery
    Intentional touching
  96. Assault
    Intentionally cause immediate apprehension or harmful or offensive conduct
  97. False imprisonment
    • Not the cops.
    • Confinement within bounded areas
  98. Trespass to chattel
    Intentional interferes with personal property
  99. Conversion
    • Taking or stealing
    • Completely deprive or break
  100. Intentional infliction of emotional distress
    • Intentionally inflict distress 
    • Has to be really bad
  101. Incapacity
    • youth
    • Drugged
  102. Duress
    Can't consent under duress
  103. Self defence
    need immediate threat and reasonable response
  104. Defense of other
    Reasonable force to protect 3rd person from immediate harm
  105. Defense and recovery of property
    Reasonable force to protect property when in hot pursuite
  106. Merchants priviledge
    Allows merchants to detain you if they think you stole stuff
  107. Defense of habitation
    Can defend your home
  108. Necessity
    • Private
    • If your gonna die
    • Public
    • to save other people
  109. Strict liability
    • Inherently dangerous stuff
    • Animals
    • dynamite
    • product liability with some negligence
  110. Economic tort
    Interference with a contract
  111. Defamation
    • Liable or slander
    • Bad stuff about other in print or words

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