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2014-04-24 01:25:19
torts weaver

Torts flashcards based on the 4th edition of the Torts casebook by Weaver et al and instructor packet.
Show Answers:

  1. What is a Tort?
    • A civil wrong for which the law
    • recognizes a legal remedy on behalf of a private individual; A
    • form of civil action where one person requests compensation from
    • another for a breach of a duty imposed by the law.
  2. What format does the exam answer have to be in?
    • Issue
    • Rule
    • Analysis
    • Conclusion
  3. True or false: The same facts may give rise to more than one action in tort and/or contract and/or criminal law.
  4. What were the original three forms of action in the King's Courts?
    • (1) trespass vi et armis (with force and arms) to protect one's interest in physical integrity;
    • (2) trespass do bonis asportatis (taking of goods) to protect one's interest in real property;
    • (3) trespass quare clausum fregit (breach of the “close”) to protect one's interest in real property.
    • (Trespass on the case later developed for indirect harms.)
  5. What was the holding in Brown v. Kendall?
    Plaintiff must show that intention was unlawful or that defendant was in fault. If the injury was unavoidable and the defendant's conduct was blameless, he should not be liable. 

    Plaintiff should, in essence, only recover if he was using ordinary care and defendant was not.
  6. What does every intentional tort require?
    Intent. Analyze this for EVERY exam answer.
  7. What are the intentional torts?

    • Battery
    • Assault
    • Trespass to Land
    • False Imprisonment
    • Intentional Infliction of Emotional Distress
    • Trespass to Chattels
    • Conversion
  8. What are the elements of battery?
    • (1) that the defendant acted;
    • (2) that the act was done with the intent to cause a harmful or offensive contact with another person; and
    • (3) that harmful or offensive contact actually resulted.
    • -Restatement (Second) of Torts, sections 13, 18.
  9. What is the standard for intent?
    Actor must purpose/desire OR have substantial certainty of the result of their action.
  10. Does reasonableness play a role in discussing intent?
    No. Intent is a subjective standard based on whether the individual actor desired or was substantially certain that the tortious conduct would result.
  11. True or False: A plaintiff must prove that the defendant intended to have contact with him/her specifically for a prima facie case of battery.
    False. It is not typically necessary for a plaintiff to prove that the defendant intended to have contact with her specifically in order to prove prima facie battery. Transferred intent allows for this. (Like Davis v. White, where bullet meant for Tipton his Davis instead and constituted battery)
  12. What were the facts and holding in SHAW v. BROWN & WILLIAMSON TOBACCO CORP?
    • -Shaw was a trucker who travelled with someone who smoked Raleigh cigarettes made by Brown & Williamson. Shaw did not smoke, but got lung cancer and brought suit for a number of charges, including battery.
    • -Battery requires the actor to have done some affirmative act and to have known that an unpermitted contact was substantially certain to follow the act. Separate from mere negligence.
    • -Manufacture and distribution of the cigarettes does not satisfy intent.
  13. True or False: Actual physical contact is required for battery.
    False. Actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. Knocking or snatching something from the plaintiff's hand is battery when done offensively. Contact does not need to be harmful for a battery--mere offensiveness is sufficient. (Fischer v. Carrousel Motor Hotel)
  14. When are exemplary damages for pain and suffering without physical injury allowable?
    In the event of a willful tort (like battery), exemplary damages are allowed without physical injury because the point of battery is to prevent affronts to bodily dignity.
  15. What is vicarious liability?
    Where one party can be found liable for the conduct of another based on the strength of their relationship, like the employment relationship in Fischer v. Carrousel Motor Hotel.
  16. What are the elements of assault?
    An act which causes imminent apprehension of harmful or offensive contact where the actor is able to carry out the contact AND the act actually causes the apprehension of the contact.
  17. How does transferred intent work in Torts?
    Generally, courts will transfer intent between assault, battery, and false imprisonment. Torts to the body transfer intent between one another and between victims. Torts to property will generally not transfer with torts against the person.
  18. True or false: Words alone can constitute assault.
    False. Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.
  19. What were the holdings in Holloway v. Wachovia Bank & Trust?
    The child being asleep or too young to understand meant he could not have experienced apprehension of harmful or offensive contact, so the assault claim was baseless. 

    The battery claim for contact which occurred by reaching over bodies constituted a prima facie case because hostile intent or a desire to do harm is not the issue; rather it is intent to bring about a result which will bring about a result that invades the interests of another in a way the law forbids.

    Assault is subject to transferred intent if an act is done with the intention of affecting a third person but puts another in apprehension of a harmful or offensive contact.
  20. What was the holding in Brower v. Ackerly?
    Brower contended that Ackerley made threatening phone calls. Did not count as assault because harm was insufficiently imminent.
  21. What was the holding in Conley v. Doe?
    Words alone are not assault. It's not even a threat unless communicated by Doe to Conley. A sixth grader does not assault a teacher by privately writing that he wants to kill her. Private thoughts are not tortious assault.
  22. For assault, must the reasonableness of the apprehension suffered be objective, subjective, or both?
    Reasonable is from the reasonable man's standard, but also from the individual's perspective. Need both objective and subjective.
  23. What are the elements of false imprisonment?
    • An actor is subject to liability to another for false imprisonment if he:
    • -Acts intending to confine the other or a third person within boundaries fixed by the actor, AND
    • -His act directly or indirectly results in such a confinement of the other, AND
    • -The other is conscious of the confinement or is harmed by it.
    • (Restatement [Second] of Torts, Section 35)
  24. What do most false imprisonment cases hinge on?
    Whether the plaintiff was truly “confined.” REASONABLE means of escape goes toward confinement. “You can go, but I'll shoot the kid if you do” is not reasonable, but a means of escape. Same deal with the yacht in open ocean with no rowboat.
  25. What was the holding in Teichmiller v. Rogers Memorial Hospital?
    Assumption that one would have to push the actor aside to leave is not enough to support false imprisonment. You must actually ask or try to leave the office to use the copier for your exit form or be threatened, otherwise you are not actually confined.
  26. What is the necessary intent for false imprisonment?
    Plaintiff need only prove defendant knew his conduct was substantially certain to cause false imprisonment or had a purpose to do so. Motive and malice are irrelevant.
  27. What is a circumstance under which a defendant might be privileged to detain another person?
    A reasonable suspicion of shoplifting coupled with reasonable manner of detention.
  28. What was the holding in McCann v. WalMart?
    • Confinement can be physical barriers or force, but much less can suffice. Implicit or explicit threats and forms of duress are enough. Employees would not let one of the kids go to the bathroom. Reasonable people would believe that they would be restrained physically if they tried to leave, that the store was claiming lawful authority, or both.
    • Threats to physically restrain or under claim of lawful right will sustain a charge of false imprisonment.
  29. What are the elements of intentional infliction of emotional distress?
    • 1. Intentional or Reckless Conduct
    • a. Recklessness defined as action in a complete disregard of a high degree of probability that emotional distress will follow (2nd Restatement)
    • b. Limitation: No transferred intent permitted

    • 2.Extreme and Outrageous Conduct 
    • a. Must go beyond all bounds of what is expected in a civilized society (2nd Restatement)
    • b. Relationship between parties is considered (Figuereido-Torres)
    • c. Example of extreme & outrageous
    • conduct: Describe facts of Figuereido- Torres

    3. Severe Emotional Distress

    4. Causal connection between act and harm
  30. True or false: Conduct which is merely unlawful will sustain a claim for IIED.
    False. Merely being unlawful does not necessarily get us to the necessary "extreme and outrageous" standard.
  31. What is needed to show severe emotional distress for an IIED claim?
    IIED requires severe distress which hinders ability to carry out daily activities. Reasonable man cannot be expected to endure. Total disablement is not required, but impairment of daily functioning considered in light of the circumstances is.

    Torres developed severe hypertension and an eye twitch and needed WAY more therapy, representing an actual loss in Figuereido-Torres.

    Plaintiff in Caldor lost because he only had one psych visit and was too busy with school activities to do more.
  32. What are the elements of trespass to land?
    • One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
    • -(a) enters land in the possession of the other, or causes a thing or third person to do so, or;
    • -(b) remains on the land, or;
    • -(c) fails to remove from the land a thing
    • which he is under a duty to remove.
  33. What is the intent for trespass to land?
    Intent to be on the property. You can believe it's your own and be on it, as long as you intended to go on there. Can't trip and fall on it or otherwise go on unintentionally.
  34. What are the elements of trespass to chattel?
    • A trespass to chattel may be committed by intentionally:
    • -a. dispossessing another of the chattel,
    • OR
    • -b. using or intermeddling with a chattel in the possession of another
  35. What are the elements of conversion?
    • Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
    • --Restatement 2d of Torts section 222A(1)
  36. What are the defenses to intentional torts?
    • Consent
    • Self-Defense
    • Defense of Property
    • Necessity
  37. What are the elements of a consent defense?
    • (1) CONSENT (with capacity) AND
    • (2) that the action be under the SCOPE of that consent.
  38. What happened in Doe v. Johnson?
    In Doe v. Johnson, policy issues associated with HIV outweighed the privacy issues. Claim of battery succeeded because sex with a person with HIV is “fundamentally different” than sex with a person without HIV. Johnson had a duty to disclose and suggest condom use.
  39. True or False: Consent is never a defense to a tort arising from an illegal activity.
    False. Consenting to an illegal activity in the event of statutory rape might be invalid because of public policy preference against sexual assault, but consent would likely be valid for something like adultery. Validating or invalidating consent based on illegal acts is not uniform across all illegal acts. Public policy dictates.
  40. What was the holding in Smith v. Cavalry Christian Church?
    Plaintiff consented to religious discipline imposed on him, so he is not able to recover —EVEN if the religious clauses of the Constitution are not a defense.
  41. What was the holding in Hackbart v. Cincinnati Bengals?
    In a regular season professional football game, an injury which is inflicted by one professional football player on an opposing player can give rise to liability in tort where the injury was inflicted by the intentional striking of a blow during the game. The war-like nature of the game was not a bar to recovery.
  42. What are the elements of self-defense?
    An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
  43. True or false: Self-defense is only a defense after a blow has been struck.
    False. Defendant using self defense need not wait until a blow is struck.
  44. What was the holding in Roberts v. American Employers Insurance Company?
    The officer reasonably believed he was in danger of substantial physical harm and the force (shot fired) used to resist was not unreasonably excessive, so self-defense is accepted and tort is rejected.
  45. Does a guilty plea in criminal proceedings create preclusive evidence of liability in a tort case?
    No. In Klein v. Shamrock Tavern, judicial estoppel failed because a guilty plea is not “preclusive evidence” of any fact in subsequent litigation and defendant never asserted that he didn't hit plaintiff for making a racial slur about his wife, which created reasonable apprehension of harm.
  46. If two methods can repel a given attack equally well...
    ...the defendant must use the one that will cause the least damage.
  47. True or false: Defense of a third person has the same conditions as self defense.
  48. What are the elements of defense of property?
    In general, a person may use reasonable force to protect property when she reasonably believes that force is necessary to prevent the intrusion. The use of force must be proportional to the threatened interest.
  49. What was the holding in Katko v. Briney?
    An owner may not protect personal property in an unoccupied boarded-up farmhouse against trespassers and thieves by a spring gun capable of inflicting death or serious injury. There is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels unless there is also such a threat to personal safety as to justify a self defense.
  50. When is there a duty to retreat?
    If using non deadly force, then the courts are not requiring a retreat. However, if you are use deadly force or serious injury, the courts are split on the issue of retreat. The courts will not require a retreat in the home or in the workplace.
  51. When is the necessity defense available?
    Intentional torts to property: trespass to land, trespass to chattels, and conversion.
  52. What are the elements of the private necessity defense?
    One is privileged to commit an act which would otherwise be a trespass to the chattel of another or a conversion of it, if it is or is reasonably believed to be reasonable and necessary to protect the person or property of the actor, the other, or a third person from serious harm, unless the actor knows that the person for whose benefit he acts is unwilling that he shall do so. Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege.
  53. What was the holding in Ploof v. Putnam?
    • -Putnam owned an island and a dock. Ploof was sailing when a storm came in and docked on Putnam's property to save family. Putnam's servant unmoored the boat, which caused it to crash and be destroyed. Ploof, wife, and kids were tossed into the lake and injured.
    • -The doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assault.
  54. What is the difference between public necessity and private necessity?
    Public necessity, at times of War or peace, may require the taking of personal property for public purposes; but under the law, compensation must be paid. Private necessity is a qualified privilege, but if you cause damages by making use of their property, than you have to pay for it. The property owner cannot stop you from entering though.
  55. What are the elements of negligence?
    1. A Duty of Reasonable Care. In most cases a person must behave as a reasonably prudent person under the same or similar circumstances. A person has a duty to conform their behavior to a reasonable standard of care.

    2. Breach of Duty. P must prove D failed to use reasonable care to avoid causing harm. Sometimes referred to as negligence by itself. “Little n negligence.”

    3. Actual Causation. Cause in fact: prove that breach of duty in some way scientifically brought about plaintiff's injury. But-for causation.

    4. Proximate Cause. That causal connection between conduct and injury was sufficiently close to hold D liable. Significant enough connection between defendant's wrongdoing and plaintiff's harm suffered.

    5. Damages. Actual damages. Nominal damages are not awarded for negligence that does not cause injury.
  56. What was the holding in Cordas v. Peerless Transportation?
    • -Negligence is not absolute or intrinsic, but relevant to circumstances of time, place, or person
    • -You can't act rationally when you're terrified and running from a carjacker. The law does not hold one acting in an emergency to the same standard required where he has an opportunity for deliberate action.
  57. What was the holding in Vaughan v. Menlove?
    The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question. The fact that Menlove isn't the brightest bulb in the box doesn't excuse his failure to move his haystack, especially after having been warned that it was a fire hazard.
  58. Is the reasonably prudent person standard for negligence objective or subjective?
    • The reasonably prudent person standard is objective. The standards of the law are standards of general application. It doesn't attempt to see men as God sees them, taking account for infinite differences in temperament and limitations. There is a presumption that every man knows the law and is equal in that regard.
    • Subjectivity sometimes creeps in under things like holding an expert skier to a higher standard of care by reason of his special training, knowledge, and expertise. The law expects the expert to use his/her skills to benefit others.
    • Physical attributes also considered under reasonable person standard.
  59. To what standard of care are minors held in a negligence case?
    • -Usually children are held to the standard of other children (Briese test from Charbonneau), unless engaged in an adult activity. Rule of 7s is a minority approach, saying that kids under 7 can't be negligent.
    • -It makes no sense to hold a minor operating a motor vehicle to a lower standard than an adult because the dangers to others are the same. All licensees with the same license should be held to the same standard of care. When a minor is doing an adult activity, they should be held to an adult standard of care. (Daniels v. Evans)
  60. To what standard of care are the elderly held in a negligence action?
    • -Senior citizens generally held to adult standard of care as defendants, but may be subject to a different standard as plaintiffs based on disability rather than age.
    • -In determining contributory negligence, court may measure his conduct against the standard of conduct of the ordinary person suffering from the same or similar infirmities of old age. The weakness of age is treated as part of the “circumstances” under which a reasonable person must act.
    • -Absent evidence that an individual suffered from an age-related disability, the individual's age (“I'm not as sharp as I used to be”) should not be considered when assessing his negligence.
  61. How does mental disability impact tort liability?
    • To escape liability, the illness must either affect ability to understand the duty OR to complete duty AND defendant must have inadequate forewarning to know hat they would suffer from such an illness.
    • -This standard asks a person to do things
    • that they cannot do, essentially. In Breunig, prior treatment counted as forewarning.
  62. What is the policy basis for holding a permanently insane person liable for his tort and what is an exception?
    • -(1) Where one of two innocent persons must suffer a loss if should be borne by the one who occasioned it;
    • -(2) to induce those interested in the estate of an insane person (if he has one) to restrain and control him; and
    • -(3) the fear an insanity defense would lead to false claims of insanity to avoid liability.
    • -Gould provides an exception because when injured party is a caregiver, the tortfeasor/defendant is NOT the one who could have prevented it. Or when the person is already institutionalized. Or when he's had Alzheimers for years.
  63. What is the holding of United States v. Carroll Towing?
    The owner's duty in the event of a runaway barge is a function of (1) the probability that she will break away; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions. If the burden is less than the probability and the liability, the bargee should probably be liable. (Hand Test)
  64. What is the Hand test for calculus of risk?
    B < PL, where B is the cost (burden) of taking precautions, and P is the probability of loss (L). L is the gravity of loss. The product of P x L must be a greater amount than B to create a duty of due care for the defendant.
  65. True or false: Failing to take a cost-justified precaution is necessarily negligent.
    False. Failing to take a cost-justified precaution is not NECESSARILY negligent. Taking the precaution is not NECESSARILY not-negligent. Both are strong evidence.
  66. What was the holding in The TJ Hooper?
    • -Just because other ships aren't equipped with radios doesn't mean they shouldn't have been. There's no rule about it, but the injury was a direct result of not having working radios, so ships are liable.
    • -There are precautions so imperative that even their universal disregard will not excuse their omission.
  67. What was the holding in Doe v. Cutter Biological?
    • -Industry standards are not proof of reasonableness, particularly where all four defendants worked closely to create those standards.
    • -Doe and Smith sued because clotting factor taken for hemophilia gave them HIV. 4 companies sued, not sure which one caused. Summary judgment granted to defendants.
    • -GIMFs about negligence in failure to warn about HIV risk.
  68. What is the proper standard of care in a medical malpractice case?
    • The proper standard of care is if a general practitioner has exercised the degree of care and skill of the average qualified practitioner taking into account the advances in the profession. One holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession. (Brune v. Belinkoff)
    • -Helling v. Cary suggested that the TJ Hooper standard should apply, however this was limited to its facts about that particular case of glaucoma.
  69. What is the duty to disclose in most jurisdictions?
    • -The standard measuring performance of the duty to inform of risks is conduct which is reasonable under the circumstances.
    • -No duty to disclose when patient is unconscious/can't consent and imminent harm from failure to treat. 
    • -No duty when risk-disclosure poses such a threat of detriment to patient that it's medically contraindicated.
    • -The test for determining whether a particular peril must be divulged is its materiality to the patient's decision. Viewed from the point at which he had to decide, would the patient have decided differently had he known something he did not know?
    • -Canterbury v. Spence
  70. What is the role of statutes in establishing negligence?
    • -Criminal statutes which address blameworthiness of same or similar conduct are a tool to establish breach of duty because a reasonable person follows the law
    • -You can use failure to comply with a statute as a sword to claim negligence, but you cannot use compliance as a shield against the reasonable person standard.
    • -Must remember causal connection between negligence and injury—defendant traveling without lights does not have to pay damages for his fault unless the absence of lights is the cause of the disaster. (Martin v. Herzog)
  71. How do you determine if a statute was designed to protect a given plaintiff from a given risk?
    • Examine: 
    • 1.) Whether the statute is designed to protect a person similar to the plaintiff from
    • 2.) a risk of injury that is similar to that suffered by this plaintiff.
  72. What was the holding in Osbourne v. McMasters?
    • -McMasters' drug store clerk sold poison without labeling as poison and Osborne died.
    • -Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent and which were proximately produced by such neglect.
  73. What are the excuses for statutory violations in a negligence action?
    • Unless statute is construed not to permit such
    • excuse (from Restatements):
    • -where reasonable because of actor's incapacity
    • -where the actor neither knows nor should know of the occasion for compliance
    • -where the actor is unable to comply after reasonable diligence or care to comply (not all courts recognize this)
    • -where the actor's violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public (3rd Restatement)
    • -where the person is confronted with an emergency not due to their own misconduct
    • -(Tedla exception) where compliance would involve a greater risk of harm to the actor or others
    • -“I thought what I did was reasonable” and “This is a stupid statute” are not excuses in either restatement.
  74. What was the holding in Brown v. Shyne?
    • -If violation of statute was proximate cause, plaintiff may recover on proof of violation. If violation has no bearing on proximate cause, violation becomes irrelevant.
    • -Unless plaintiff's injury was caused by carelessness or lack of skill, violation doesn't matter.
    • -Basically, this rule allows for unlicensed practice so long as that practice conforms to the standard of care taken by someone who IS licensed.
  75. What does "res ipsa loquitur" mean and how does it function in negligence law?
    • -If someone tells you this applies, it's probably bologna. It's a VERY RARE exception.
    • -Allows plaintiff to survive defendant's motion to dismiss at the close of plaintiff's case. Means that the court feels that the jury, having heard the facts, could reasonably
    •  conclude that there is negligence on the part of the defendant. The facts speak for themselves.
    • -(From Wigmore on Evidence: ***MOST COMMON DEFINITION***)
    • -The event must be one that doesn't ordinarily happen in the absence of someone's negligence
    • -Must be caused by agency solely controlled by defendant
    • -Must not be due to voluntary action or contribution from Plaintiff
  76. What was the holding in Byrnes v. Boadle?
    • -There are certain cases where the mere fact of the accident having occurred is evidence of negligence.
    • -A barrel could not roll out of a warehouse without at least some negligence because someone is duty bound to keep that from happening.
  77. What was the holding in Larson v. St. Francis Hotel?
    • -Res ipsa loquitur does not apply where the accident could have happened even if defendant was using ordinary care. Also does not apply where defendant did not have exclusive control of the object/instrumentality causing incident.
    • -Hotel could not have controlled armchair in guest room.
  78. True or False: A negligence suit can survive without factual cause.
    False. With the element of causation lacking, even the most egregious negligence cannot result in liability. 

    (Lyons v. Midnight Sun Transportation, where jury found that Jette was negligent, but that his negligence was not the legal cause of the accident. Lyons pulling out into traffic was. The accident could still have happened if he had not been speeding.)
  79. What must the plaintiff show for a prima facie negligence case in a slip-and-fall?
    • -Plaintiff must establish that defendant either created the allegedly defective or dangerous condition (slippery plastic mat) or had actual or constructive notice thereof. (Dapp v. Larson)
    • -To avoid summary judgment, a plaintiff who alleges he slipped on a foreign substance must offer some evidence of a foreign substance on the ground where he slipped. (Williams v. EMRO)
    • -Circumstantial evidence which raises a reasonable inference of the cause of the fall, unrebutted by positive evidence, is sufficient to survive summary judgment. (Williams v. EMRO)
  80. What is the "substantial factor test" for multiple fires/causes?
    • -If plaintiff's property was damaged by fire set by one of the defendant's engines in combination with some other fire not set by one of its engines, then defendant is liable. Defendant's fire must be substantial and material to cause, though.
    • -Basically, with two fires combining where either one of them could have caused the damage, we treat both as if they are THE cause.
  81. How is liability calculated when two independent causes could have caused harm to the plaintiff?
    -To calculate damages, have to compare value life would have had if no electrocution and just fell—in which case he might have been maimed or died anyhow.  (DILLON v. TWIN STATE GAS & ELECTRIC CO.)
  82. How does the "concert of action" theory of joint liability work?
    -When two or more individuals are wrongdoers acting in concert and their actions injure a third party, all may be liable for concurrent negligence, regardless of which of the individuals directly caused the injury. (BIERCZYNSKI v. ROGERS)
  83. What is joint and several liability?
    -Both defendants are liable for the full value of the harm caused when defendants are acting in concert. Joint and several liability. This is the traditional rule and has changed in some states—particularly with percentages of fault and comparative negligence.
  84. On what grounds has joint liability been historically available?
    • 1. Actors knowingly join in the performance of the tortious act
    • 2. Actors fail to perform a common duty owed to plaintiff
    • 3. Special relationship (master/servant or joint entrepreneurs)
    • 4. No concerted action, but independent acts of several actors concur to produce indivisible, harmful consequences.
  85. How does the "enterprise liability" theory of joint liability work?
    • -Joint control of risk can exist among actors who are not bound in a profit-sharing joint venture (for blasting caps marketed to kids). This is a more open standard that an agreement to do the thing. Slightly easier standard to meet than concert of action. Differs from market share because it's not a percentage and everyone is liable for the full value of the harm.
    • -Should not shift burden to defendants
    • -To show joint liability, plaintiff must show defendants' joint awareness of risk and joint capacity to reduce or effect those risks.
  86. How does the "alternative liability" theory of joint liability work?
    • -If Defendants are independent tortfeasors, and thus each liable for the damage caused by him alone, but it is impossible to prove whose conduct actually caused the harm, many jurisdictions presume that each Defendant was the actual cause of the Plaintiff’s injury. The wronged party should not be deprived of his right to redress.
    • -In Summers v. Tice, the judgment of the lower court was affirmed because Defendants failed to meet their burden of proving who was responsible for Plaintiff’s injury; therefore, because each acted negligently with regard to firing their rifles on the hunting trip, each was responsible to Plaintiff for damages from the injuries Plaintiff sustained.
  87. How does the "market share liability" theory of joint liability work?
    • -In certain circumstances where the plaintiff is unable to identify the actual tortfeasor and it is unjust to preclude them from recovery, then the group responsible for the overall harm can be held liable. Where all defendants produced a drug from an identical formula and the manufacturer cannot be identified through no fault of plaintiff, modification is warranted. (Sindell v. Abbott Laboratories)
    • -Product must be fungible; pose the same risks
    • -If Hymowitz doesn't control, defendants must have substantial share of market
    • -Must not be able to identify manufacturer
    • -Depends on jurisdiction whether we look at national market or local
    • -Applicable mainly to DES cases
  88. How did Hymowitz change the application of market share liability?
    Hymowitz extinguished the defendant's ability to exculpate itself, because that's inconsistent with the whole market share theory. Also,in Hymowitz the defendants need not have a substantial share of the market.
  89. How does Palsgraf v. Long Island Railroad use foreseeability as a duty limitation?
    Plaintiff must be foreseeable. Must show that some wrong was done to herself, i.e., that there was a violation of her own rights causing the scale to fall on her, not merely a wrong done to someone else causing the fireworks to explode. The court reasons that had it decided that Defendant was negligent in respect to the Plaintiff, then a defendant would be liable for any and all consequences of its negligence, “however novel or extraordinary.”
  90. What did Andrews' dissent in Palsgraf say about proximate cause?
    • -Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. 
    • -When injuries do result from our unlawful act we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen and unforeseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.
  91. What was the holding in Wagon Mound 1?
    • -Need to avoid palpable injustice and it's not consonant with current ideas of justice to have a slight/venial act of negligence make a person liable for all consequences no matter how unforeseeable or grave so long as it is “direct.” A man must be considered to be responsible for the probable consequences of his act.
    • -Reasonable foreseeability corresponds with the common conscience of mankind. Directness is a bottomless pit of a test. It is not the hindsight of a fool, but the foresight of a reasonable man which alone can determine responsibility.
    • -If fire by welding near oil-soaked water is not foreseeable, then spilling oil is not negligence.
  92. How did plaintiffs win Wagon Mound 2?
    In Wagon Mound 2, the plaintiffs win because they introduced evidence that fire was foreseeable. This evidence was not admitted in Wagon Mound 1, because they were welding and contributory negligence would have barred recovery.
  93. What are the "eggshell plaintiff" rules?
    • -You take the plaintiff as you find him. Even if a normal person would have recovered completely after finding that the heart problem was environmental, Stoleson DIDN'T. If the government had been careful, she never would have visited the doctor who made her symptoms appear or get worse to begin with.
    • -In calculating damages in an eggshell skull case, the trier of fact must adjust for the possibility that the pre-existing condition would have resulted in harm to plaintiff even without the tort. Some lesser trauma would likely have set Stoleson off, so no recovery for her hypochondria.
  94. What are the rules for foreseeability in proximate causation?
    The degree or extent of harm does not need to be foreseeable (Stoleson) but the TYPE of harm does (Wagon Mound) and so does the plaintiff (Palsgraf).
  95. True or False: Original defendant may be liable for aggravation of harm caused by things like medical malpractice.
  96. Is liability for negligent action severed by an intervening cause?
    Not if it should have been foreseen. 

    • -One who by his negligent acts (selling an air rifle loaded when advertised as harmless) puts into operation a train of events which is likely to lead, in a continuous sequence, to an injury which is the natural and probable result of his original act, so that there is a natural causal connection between the two, is responsible for such injury—notwithstanding the fact that the latter may have been directly and immediately caused by the last link in the natural chain of events. (Herman v. Markham Air Rifle)
    • -Where the acts of an epileptic driver intervene between the defendant's unsafe worksite and the plaintiff's injury, the causal connection is not automatically severed. In such cases, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. (Derdiarian v. Felix Contracting Corp.)
    • -The act of a third person (railroad thief) intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer if such act ought to have been foreseen. (Brauer v. New York Central)
    • -If the owner is to be held liable for the sudden criminal acts of third persons (rape) there must be a showing that the owner was on notice in some manner of the imminent probability (available keys) of the act. (Doe v. Linder)
  97. True or False: Lack of foreseeability is a bar to recovery when an oil truck blocks the road while helping a stuck car and causes an accident.
    False. Lack of foreseeability is not in itself a bar to recovery in the chaos of a car accident. (Marshall v. Nugent)
  98. What breaks the chain of causation?
    -GROSS negligence breaks the chain of causation because it's not foreseeable. Knowledge of the danger (in the heat blocks) possessed by the original purchaser, knowledge actually brought home to him, might protect the manufacturer or distributor from liability to third persons harmed by the failure of the purchaser to warn, where the purchaser had the means and opportunity to do so. (McLaughlin v. Mine Safety Appliances)
  99. True or False: There are some criminal acts that the law will treat as foreseeable.
  100. When is the owner of land liable to business invitee for any physical harm caused by any
    artificial or natural condition upon the land? (Yania v. Bigan)
    • 1.) If, but only if, Bigan knew or could have discovered the condition which, if known to him, he should have realized involved an unreasonable risk of harm to Yania
    • 2.) if Bigan had no reason to believe Yania would discover the condition or realize the risk of harm and
    • 3.) if he invited or permitted Yania to enter upon the land without exercising reasonable care to make the condition reasonably safe or give adequate warning to enable him to avoid the harm.
  101. What was the holding in Weirum v. RKO General Inc.?
    • -It is of no consequence that the harm to decedent was inflicted by third parties
    •  acting negligently. An actor being entitled to assume that others will not act negligently is only applicable where the intervening conduct is not to be anticipated.
    • -No first amendment deference to contest. Entertainment value could have been obtained without posing a danger to the motoring public.
  102. What is the difference between malfeasance and non-feasance?
    -Malfeasance is where the defendant is responsible for creating a risk or otherwise making the plaintiff's position worse. Nonfeasance is where the defendant fails to aid plaintiff through beneficial intervention. Weirum v. RKO was malfeasance.
  103. True or False: Texting while driving is ALWAYS NEGLIGENCE on the exam.
  104. What are the exceptions to the "no duty" rule?
    • -Defendant's negligence places plaintiff in a position of peril (Day v. Waffle House)
    • -Voluntarily assumed duties (Florence v. Goldberg)
    • -Special Relationships (Farwell v. Keaton, Tarasoff v. Regents of the University of California)
  105. True or False: Rescue is a foreseeable consequence.
    • -True. (Day v. Waffle House)
    • -The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.
    • -Waffle House arguably breached its duty of reasonable care by serving glass-laden food and a rescue attempt was a foreseeable consequence.
    • -Waffle House owed a duty to all its customers to exercise reasonable care not to
    • serve them tainted or adulterated food.
  106. What was the holding in Florence v. Goldberg?
    A municipality may be held liable for injuries suffered by an infant struck by an automobile while attempting to negotiate a school crossing where the municipality's police department, having voluntarily assumed a duty to supervise school crossings (an assumption on which the infant's parent relied) negligently omitted to station a guard at one of the designated crossings or to notify the parents.
  107. What are some examples of special relationships which create a duty of care?
    Courts are reluctant to define, but common examples of special relationships are common-carrier-passenger relationships; business invitor-invitee relationships; custodial relationships; landlord-tenant relationships; and employer-employee relationships.
  108. What was the holding in Farwell v. Keaton?
    • -Implicit in companionship in a social venture is the undertaking that one will render assistance to the other when he is in peril if he can do so without endangering himself.
    • -Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself, he had an affirmative duty to come to Farwell's aid.
  109. What was the holding in Tarasoff v. Regents of the University of California?
    • -When a therapist determines (or pursuant to the standards of his profession should determine) that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.
    • -The single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to protect others against dangers emanating the patient's illness.
    • -Protective privilege of psychotherapy ends where public peril begins.
  110. What is the role of damages in a negligence action?
    • -Damages are a separate element of the causes of action in negligence and strict liability torts. They must be proved as an element, unlike with intentional torts (where general damages are awarded if jury finds that tort was committed).
    • -Damages seek to place the person injured in a position s/he would have been in had the defendant not injured her/him.
  111. When will an appellate court interfere with an award of damages?
    • -An appellate court will only interfere on the grounds that a judgment is excessive if it's so large that at first blush it shocks the conscience, and suggests passion, prejudice, or corruption on the part of the jury. (Seffert v. LA Transit Lines)
    • -The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor; the reason is that elementary notions of fairness enshrined in constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a state may impose. (State Farm v. Campbell)
  112. True or False: Awareness of one’s condition is a prerequisite for recovery of damages for loss of enjoyment of life and these damages are to be considered as part of the damages for pain and suffering.
    • True. (McDougald v. Garber.)  Court
    • says that pain and suffering and loss of enjoyment of life should not be split up because it's already convoluted to figure out pain and suffering and to do it twice is inefficient. The majority here errs on the side of leaving the plaintiff “a little bit hungry” so as not to over-deter (which would leave the plaintiff “overly full”).
  113. True or False: Plaintiff must always take a doctor's advised method of treatment in order to mitigate and retain eligibility to recover.
    False. The substantive law does not require an injured person to undergo an operation where the hazards to him are great. The burden of proving that the plaintiff should submit to an operation to mitigate damages is on the defendant. (Colton v. Benes)
  114. True or False: Collateral sources (like insurance payouts) are relevant to the calculation of plaintiff's damages.
    False. “The tortfeasor should not garner the benefits of his victim's providence.”--The Collateral Source Rule (Helfend v. Southern California Transit District)
  115. True or False: A majority of jurisdictions recognize a cause of action for the loss of an opportunity to avoid physical harm less than death.
    True. Courts have taken a variety of approaches to this issue (and Weymers v. Khera held the opposite). Still a developing area of the law. A majority of courts are now recognizing lost chance doctrine for injury once the malpractice takes the probability from “not probable” to “more than 50% likely.”
  116. When are punitive damages appropriate in a strict liability case?
    Where the plaintiff is able to plead and prove that the manufacturer knew that its product was defectively designed and that injuries and deaths had resulted from the design defect, but continued to market the product in reckless disregard of the public's safety, punitive damages may be awarded. (Sturm Ruger v. Day)
  117. What are the factors in establishing punitive damages?
    • 1. Amount of plaintiff's litigation expenses
    • 2. seriousness of hazard to the public
    • 3. profitability of marketing misconduct (increased by an appropriate multiple)
    • 4. the attitude and conduct of the enterprise upon discovery of misconduct
    • 5. the degree of manufacturer's awareness of the hazard and its excessiveness
    • 6. the number and level of employees involved in causing or covering up the marketing misconduct
    • 7. the duration of both the improper marketing behavior and its cover up
    • 8. the financial condition of the enterprise and the probable effect thereon of a particular judgment
    • 9. the total punishment the enterprise will probably receive from other sources
  118. Can punitive damages be imposed for harms done to non-parties?
    • -No.
    • -In State Farm v. Campbell, the Supreme Court of the United States considered what measure of punishment, by means of punitive damages, a State may permissibly impose upon a defendant in a civil case. The key to understanding the court’s decision is recognizing the court’s distinction between the divergent purposes for compensatory and punitive damages. Whereas compensatory damages are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct, punitive damages are aimed at deterrence and retribution. However, the Supreme Court also noted that there must be some correlation between the two, such that there exists a presumption against 145 to 1 ratio of punitive to compensatory damages.
    • -There is no “double jeopardy” to prevent another jury in another case from awarding another $145 million to another State Farm policyholder for the same corporate misdeeds.
    • -State farm refused to cover excess liability. Their misdeeds were part of a calculated decision to avoid having to pay. They told their client they didn't need outside counsel for a policy that didn't pay out and required the client to sue.
    • -After Philip Morris case, can no longer have punitive damages for ANY harms done to non-parties. After BMW, 1:9 ratio became the max
  119. What is indemnity?
    Indemnity is where one party agrees to completely reimburse another party for a damage or loss suffered. Common example is third-party insurance which agrees to indemnify insured for losses. Usually established by express contractual agreements. Can also come in where defendant's liability was predicated on vicarious liability. Can also come in where harms are of a different magnitude. Product retailers can also seek indemnity from manufacturers in products liability cases. Whose behavior was more blameworthy can be grounds for indemnification claims.
  120. What is contribution?
    Contribution is a way in which tort damages that have already been assessed against multiple tortfeasors can be allocated or distributed between or among such multiple defendants. A majority of states allow contribution on a comparative basis. Only available where tortfeasors have caused an indivisible harm to the plaintiff, however. Many states do not allow INTENTIONAL tortfeasors to seek contribution from a negligent tortfeasor. Most states allow contribution otherwise.
  121. What was the holding in National Health Laboratories v. Ahmadi?
    • -While a right to indemnity may extend to those personally at fault, it is granted in such circumstances normally only where a duty to indemnify may be implied out of a relationship between the parties to prevent an unjust result.
    • -Ahmadi suffered permanent paralysis because of misdiagnosis and sued medical group treating and laboratory that messed up the blood test. Jury found both negligent. Trial court refused to hold either solely responsible and, instead, imposed on each 50% contribution. This court affirms.
    • -If one paid all, it could sue the other for 50%. The rationale for this is that the plaintiff should be able to recover ASAP.
  122. Which defenses to negligence are based on the plaintiff's conduct?
    • -Contributory Negligence
    • -Comparative Negligence
    • -Exculpatory Contracts/Express Assumption of Risk
    • -Implied Assumption of Risk
  123. What are some exceptions to contributory negligence?
    • -Last clear chance is significant exception to the doctrine. If defendant's action is the last in a chain of causation where the defendant could have avoided the accident, plaintiff may still recover even if contributed.
    • -Other exceptions were imminent peril rule, exception for willful or wanton conduct, and less demanding standards of conduct for plaintiff.
  124. True or False: Contributory negligence is an affirmative defense for defendant to plead and prove.
    True. Plaintiff's due care is not part of a prima facie case.
  125. What is "pure" comparative negligence?
    “Pure” comparative negligence has defendant paying the damages for the percent of fault.
  126. What is the Bradley rule of comparative negligence?
    -A party is not barred from recovery by contributory negligence so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident. (Bradley v. Appalachian Power Company)
  127. What is the "Helmet Defense" from Stehlik v. Rhoads?
    • -Seat belt rule applies: The common law duty to exercise ordinary care for one's own safety extends to seat belts to protect against serious injury in an auto accident... and helmets on ATVs.
    • -No statutory cap for a helmet defense (whereas seatbelt defense is capped at 15%) so the jury can figure the percentages out.
    • -Stehlik's accident negligence was added to the helmet negligence and the overall recovery was reduced by the combination of both percentages.
  128. When is an exculpatory contract invalid?
    • 1. Business is a type suitable for public regulation
    • 2. Party seeking exculpation performs a service of great importance to the public/practically necessary for some
    • 3. Party holds itself out as willing to perform this service for any member who seeks it or, at least for any member coming within certain established standards.
    • 4. Because of essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength
    • 5. In exercising superior bargaining power, party confronts the public with a standard adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees to obtain protection against negligence
    • 6. As a result of the transaction, the person or property of purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or her agents.
    • (Dalury v. S-K-I LTDSeigneur v. National Fitness Institute)
  129. Which cases are examples of implied assumption of risk?
    • MURPHY v.STEEPLECHASE AMUSEMENT CO.  One who takes part in a sport accepts the dangers that are inherent in it so far as they are obvious and necessary.
    • DAVENPORT v. COTTON HOPE PLANTATION: A plaintiff is not barred from recovery by the
    • doctrine of assumption of risk unless the degree of fault arising therefrom was greater than the negligence of the defendant was to be applied to the case at bar and all future suits. 
  130. What are the most common types of immunities?
    Family, charitable (minority), and governmental (but mainly in discretionary matters).
  131. True or False: a child born alive has a cause of action in tort against his/her mother for the mother's negligent conduct which results in prenatal injury.
    True. (Bonte v. Bonte)
  132. What was the holding in Shoemake v. Fogel LTD?
    A defendant in a survival action arising from the death of a child may not seek contribution from a negligent parent of that child if the parent's negligence involves only negligent supervision. Parental immunity bars contribution in this case.
  133. True or False: A municipality may be held liable for failure to provide police protection, even without a special relationship.
    False. Because it is ordinarily a duty to the public at large and not to specific individuals or class of individuals AND because it's a resource allocation question best left to policy makers. (Cuffy v. City of New York)
  134. What creates a special relationship between a municipality and a tort claimant?
    • 1. Assumption of the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party
    • 2. Knowledge on behalf of the municipality's agents that inaction could lead to harm
    • 3. Some form of direct contact between municipality's agents and injured party AND
    • 4. The party's justifiable reliance on municipality's affirmative undertaking
  135. True or False: Governments are typically immune for decisions which are discretionary, but liable for ones which are ministerial. 
    True. (Aguehounde.)
  136. True or False: The United States can be held liable for punitive damages.
    True, but ONLY where a person has died and the law of the place where the act or omission complained of only allows punitive damages.
  137. What is primary assumption of risk?
    Defendant was not unreasonable, injury arose from inherent quality of activity, plaintiff undertook reasonable risk
  138. What is secondary assumption of risk?
    Defendant did something unreasonable, but plaintiff knew and undertook.
  139. With what doctrine is implied assumption of risk commonly merged?
    Implied assumption of risk is merged with comparative negligence in most states.
  140. What is wrongful life?
    A child saying but-for someone's negligence, the mother would have terminated the pregnancy. Very few courts allow recovery because life itself is generally not a harm. 
  141. What is wrongful birth?
    Suit from mother of child saying but for lack of appropriate testing, she would not have given birth to a child with serious birth defects and would have terminated.
  142. What is wrongful conception?
    Medical provider was negligent in vasectomy/tubal ligation. Somewhat more popular than other two wrongfuls.
  143. What is the difference between vicarious liability and contributory liability?
    • Vicarious liability = person being held liable is innocent of wrongdoing.
    • Contributorily liable = some wrongdoing.
  144. When can an employer be vicariously liable?
    • -Under Fruit, can be vicariously liable under enterprise theory, where actor's activities benefit employer but for incident.
    • -Fruit's employer was not liable under control theory, which requires that the actor's duties are being controlled by employer.
    • -Under Sunseri: If the employee acts for boss AND self, boss may be liable. If just for personal vengeance, boss not liable. Restatement second of agency section 228: scope of employment. Particularly where employment created opportunity for tort, law has been willing to waive motive to serve master.
  145. What factors are considered to establish whether something is an abnormally dangerous activity?
    • -Whether the activity involves a high degree of risk of some harm to the person, land, or chattels of others
    • -Whether the gravity of the harm which may result from it is likely to be great
    • -Whether the risk cannot be eliminated by exercise of reasonable care (You can't deter a risk that you can't mitigate)
    • -Whether the activity is not a matter of common usage
    • -Whether the activity is inappropriate to the place where it is carried out
    • -The value of the activity to the community.
  146. When can animal owners be held strictly liable for their animals' acts?
    The owner of an animal can be held strictly liable for injuries caused by that animal. This depends on whether it's a wild animal or domesticated. If you are keeping a wild animal, you are strictly liable for the injuries that animal causes. For a domesticated animal, you are strictly liable for a domesticated animal ONLY if you are aware of its dangerous propensities. If you weren't aware, then you are not strictly liable for it. You can still be negligent/unreasonable, but every dog gets one free bite because until then you don't actually know if it's dangerous. The general rule for when something is domesticated is “in the service of people.” 
  147. What activity is ALWAYS abnormally dangerous?
  148. What are the rules of strict liability for products?
    Can occur for one of three things: defectively designed (every single product is defective), defectively manufactured (doesn't conform to manufacturer's specs), or failure to warn (product has a dangerous propensity but is not considered dangerous without warning).

    • FOUR
    • 1. Defendant must be a seller of that product.
    • 2. Product must be defective.
    • 3. Defectcmust be of a type that makes the product unreasonably dangerous. (seller may have used due care, but product is still dangerous)
    • 4. Only applies for physical harms (not economic).