torts shorty

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Author:
krozan
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272078
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torts shorty
Updated:
2014-04-27 11:20:44
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torts
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torts shorty
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  1. Goals of the tort system:
    • whole
    • allocating
    • deterrence
    • punish
    • own hands
    • values
    • culpable
    • certainty
    • losses
  2. Four forms of liability:
    • intentional torts
    • negligence
    • vicarious
    • strict
  3. Negligence:
    liable w/ no intent
  4. Elements of negligence
    • duty
    • breach
    • cause in fact
    • proximate cause
    • injury
  5. Four issues in duty
    • general standard
    • Hand Test
    • Limited duty
    • Rescue Doctrine
  6. General standard of duty
    • reasonable prudent
    • same/similar circumstances
    • minimize risk
  7. Special considerations to general duty in negligence liability
    • skills
    • disabilities
    • mental
    • minors
    • emergency
    • mental illness
  8. Mental illness exceptions for general duty in negligence liability
    • Breunig = ability (understand OR control) + forewarning
    • Gould = precautions + knowingly
  9. Limited duty rule in negligence
    no duty to act
  10. Limited duty - exceptions to no duty rule
    • imperiled
    • voluntarily assumed
    • special relationships
  11. If voluntarily assume duty
    • carry
    • reasonable
    • discontinue
  12. Special relationships that form a duty
    • companions
    • doctor
    • landowner
    • spouse
    • etc.
  13. landowner's duty, liable if:
    knew + concealed + no care + no warning
  14. Rescue Doctrine of duty
    caused the need for rescuer
  15. Breach of duty
    • foreseeably caused +
    • unreasonable harm
  16. Five ways to find D's act was unreasonable fo breach element
    • Hand Test
    • custom
    • statute
    • res ispsa loquitur
    • induce 3rd party negligence
  17. Four considerations when using custom to show duty
    • view (4)
    • related
    • industry (size/coordinated.age)
    • medical industry rules
  18. Four views of customs in breach of duty:
    • jury decide Sullivan
    • not done, don't do Titus
    • customs informative, so imperative TJ Hooper
    • simple, cheap, harmless Helling
  19. medical customs w.r.t. duty
    • avg. qual. practioner
    • duty to disclose
  20. Rules for duty to disclose
    • custom OR
    • patient-focussed (subjective + objective)
    • exceptions
  21. Rules for statute as evidence of duty
    • views
    • similar P + similar injury + connection
    • not shield
    • can't relax
    • safer not to?
  22. res ipsa loquitur
    • rebuttable presumption
    • not ordinary + exclusive control + no contribution + physical/right to control
    • loosened (duty to control)
  23. Three issues of cause in fact
    • but-for
    • multiple causes
    • joint liability
  24. If multiple causes:
    • non-separable = substantial factor approach
    • separable = liable for "share"
  25. Five forms of joint liability (cause in fact):
    • but-for
    • concert (all wrongdoers/agreement/aid)
    • enterprise (joint control risk/small group)
    • alternative (only one wrongdoer/sue ALL possible)
    • market share (maybe <100%/burden shift/(most D's + fungible + uniform risk)
  26. Four issues for proximate cause:
    • sufficiently important = legal cause
    • direct test (OLD), foreseability (NOW)
    • intervening cause
    • slip & fall
  27. foreseeability rule for proximate cause
    • type of P
    • type of harm
    • extent/eggshell
  28. intervening cause rules for proximate cause
    • unforeseeable = superseding
    • always/never/sometimes
  29. slip & fall rules for proximate cause
    • existed
    • known
    • reasonable care
    • cause
  30. Three issues for injury
    • legally recognized
    • define
    • loss of opportunity?
  31. Three big topics for "damages"
    • compensatory
    • pecuniary
    • multiple tortfeasors
  32. Six issues for compensatory damages
    • general definition
    • pecuniary/non-pecuniary
    • failure to mitigate
    • collateral source rule
    • loss of consortium
    • loss of opportunity
  33. Non-pecuniary damages include:
    • pain & suffering
    • loss of enjoyment of life
    • may not be separable
    • "some degree of cognitive awareness"
  34. Rules for failure to mitigate
    • may reduce damages
    • f.t.m + unreasonable
  35. Loss of opportunity, definition
    P collects even when would probably be injured anyway, just reduced chance of better medical outcome
  36. Loss of opportunity, three types:
    • pure (any loss = FULL)
    • modified (loss x FULL)
    • substantial possibility (D's negligence caused/<50%/wrongful death)
  37. Five issues in punitive damages:
    • general definition (punish/deter)
    • prove...
    • limits...
    • considerations...
    • due process (grossly excessive, arbitrary, notice)...
  38. For punitive damages, D must show
    • r.i.c.a.d.d.
    • (reckless indifference to the rights of others, conscious action in deliberate disregard of risk)
  39. Limits to punitive damages
    • lawful?
    • where?
    • relation to this P?
  40. Considerations for punitive damages
    • seriousness
    • profitability
    • conduct
    • awareness
    • cover up?
  41. Due process issues for punitive damages:
    • grossly excessive (reprehensibility + ratio + civil)?
    • arbitrary?
    • notice?
  42. Punitive damage issues (three) for multiple tortfeasors
    • joint and several
    • indemnity
    • contribution
  43. Two ways multiple, indivisible tortfeasors are required to pay damages
    • pro rata (2 = 50%)
    • comparative fault (share of blame)
  44. Defenses to negligence, three categories:
    • P's negligence
    • assumption of risk
    • immunity
  45. P's negligence in defense to negligence:
    • general standard of self care
    • contributory (affirmative defense/complete bar + some ameliorating)
    • comparative (affirmative defense)...
  46. Four forms of comparative negligence as defense to negligence:
    • pure (if 95% collect 5%)
    • modified (P must be > sum D's)
    • <50% negligence
    • slight
  47. Assumption of risk
    • total bar (shows no breach)
    • aware + appreciated
    • express/implied (can apply both!)...
  48. Express assumption of risk, three conditions:
    • agreed in advance
    • scope
    • void for public policy?
  49. Implied assumption of risk, four conditions:
    • knew
    • appreciated
    • extent
    • voluntary exposure
    • (primary/secondary)...
  50. Primary implied assumption of risk
    • inherent risk
    • open and obvious
    • necessary
    • exceptions (obscure, serious danger, many accidents)
  51. Secondary implied assumption of risk
    • knowingly encountered
    • created risk
    • merged with comparative negligence
  52. Three categories of immunity:
    • parental...
    • charities (none)
    • governmental...
  53. parental immunity
    • reasonable
    • authority/discretion
    • Shoemake (survival action = bar, wrongful death = no bar)
    • Bonte - NO p.i.
  54. Governmental immunity
    • fed + state (FTCA...)
    • municipal...
  55. Municipal immunity:
    • special relationship = assumption + knowledge + direct contact + reliance
    • discretionary (judgment, balancing) = NO liability
    • ministerial (policy) = YES liable
    • proprietary = MAYBE liable
  56. FTCA:
    • reasonable care = NO liability
    • discretionary = NO liability
  57. vicarious liability
    • other than actual
    • respondeat superior...
  58. Doctrine of respondeat superior
    • control theory (authority) OR enterprise theory (benefit)
    • scope of employment (job + time/space + serves + not unexpectable)
    • dual purpose doctrine (venting + scope = still liable)
  59. Strict liability
    • prevail w/o breach
    • still need act + actual + proximate + injury
    • animals...
    • abnormally dangerous...
    • products...
  60. Animal strict liability:
    • wild: strictly liable
    • domesticated: aware of dangerous propensity?
  61. Abnormally dangerous activity, strict liability:
    • high risk
    • grave harm
    • eliminated w/ care
    • common usage
    • inappropriate place
    • value
  62. Product strict liability
    • defective design, manufacture, or warning
    • four conditions (seller + defective + unreasonably dangerous + physical harm)

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