Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
What are the two kinds of compensetory damages?
- Special: economic damages, objective loss like medical bills.
- General damages: Non-economic, subjective, pain and suffering, qualify of life damages.
Can you recover for increased risk or fear?
Yes, you can recover if it's more likely or not that you will contract the disease or be harmed by the toxic substance.
What are the two types of punitive damage?
- Specific: deters this particular party
- General: Deters all people from doing this.
What is the maximum recovery rule?
Judge takes measure of damages, determines reasonable maximum for each catergory, if it doesn't exceed the actual award, then reasonable damages.
What is remittitur and additur
When the judgement is so low or so high it shocks the conscience, and the judge adjusts it up or down accordingly.
What is the collateral source rule?
It means that tortfeasor is not entitled to set off any money that the plaintiff has received from other sources during the case.
What is the duty to mitigate in a permanant damages case?
If a reasonable person in the position would undergo a corrective procedure, and plaintiff choses not to, the plaintiff is not entitield to teh entirety of the award. Two things: defendant bears buredne of proof of what reaosnable person would do, and we look at the risks and costs involved in determioining reasonabless.
What is vicarious liability?
when a company has ratifid or sanctioned an act, they're vicariously liable if it's a tort.
What are the gore guideposts?
Reprehensbility, Ratio, other civil or criminal fines.
what do we look at for reprehensibility?
Did the conduct result in death or injury? Was the conduct profitable? Was it isolated or repeated?
How do you satisfy due process for punitive damages
Exacting jury instruction, trial court de novo review, appeallate court de novo review.
What are the ratio standards for puntive damages?
Single digits in most cases, double digits if the harm is very small but the behavior very reprehensible, one to one with massive compensetorys.
What is wrongful death?
A tort claim brought by beneficiaries of a person who has died, compensate beneficaries for pecuniary loss as a result of the death.
who qualify as beneficiaries for wrongful death?
Spouses, children, some states say next of kin. Step children and life partners are grey areas.
what must you show in a wrongful death claim?
that the tort was a proximate cause of the death.
What is a survivorship claim
A claim brought by the estate, it compensates the estate for the concious pain and suffering that the person had before their death.
What is the calculation for dividing wrongful death and survivorship?
Take a person's lost income that they would have used for their own matinance, that's wrongful death, everything they would have used on others goes into survivorship.
do you have to show that the tort was a proximate cause of death for survivorship?
No, only need to show that they suffered before death from the tort, doesn't need to be what killed them.
What are the interpersonal immunities
Used to be husband/wife and parent/child. Husband wife is completely gone, parent/child is very limited.
what are the four levels of parental immunities?
- Total abolition: very rare,
- Partial abrogation: intentional conduct/automobiles, etc.
- Reasonable Parent standard: conduct judged against reasonable parent.
Total perservation: in some jurisdictions.
What is a state tort claims act?
legislation that governs the parameters by which a plaitniff can sue state and local government.
Are police immune from liability?
In some case. If they use their discrestion to not investigate, they are. If they commit to action, though, they are liable.
What are the two more important exceptions to the federal tort claims act?
Discrestionary function exemption, and incident to military service exemption.
explain statute of limitations
Period of time in which a lawsuit must be filed after the cause of action has accrued. Threshold defense, if it's too late, no cause.
What is a statute of repose?
A statute that definitely closes the door on any tort action for some act, regardless of when it accrues. Most common in construction.
What is tolling?
When a statute of limitation is suspeneded until a disability that renders a person incapable of going to trial ends. Insanity and Age most common.
What are the two ways to triger the equitable discovery rule?
1. you don't know you're injured. 2. you don't know the condition you suffered is of tortious origin.
What is joint and several liabilty?
It means that you were only partially at fault with another person, but you're both liable for the entire indivisible harm.
what is the threshold in some jurisdictions for joint and several?
If defendant is more than 50%, joint and several, if not, no.
Explain pro rata vs pro tanto
pro rata is a percentage set off, reduce by the percentage fault that the settled defendent is at fault. Pro tonto is a dollar for dollar reduction.
Defendant has to pay, but shouldn't have had to pay, they ask for an indeminifcation from the person who should have paid, get reimursed.
What is contribution
an action where a joint and several liabile defendant tries to get the other defendants to pay their share. Doesn't work if defendant was immune to intial action.
explain frolic vs detour
frolic is doing something completely outside the scope of your employment while on the job, detour is a minor deviation from the ordinary course of your employment. Frolic is no vicarious liability, detour is.
What is the coming and going rule
employer not liable for employees commute. Only exception is if they cause the employee to get into accident because of something they did.
What are the exceptions to contractor liability rules?
If it's an inhernetly dangerous activity, if it's non-delegable, if you have a high degree of control.
What's the doctrine of apparent authority?
If you have apparent authority over a person, you can be held liable for the, even if they are techincally a contractor.
What's the difference between strict and absolute liability?
- Absolute: no defenses, no way out of it, if it happened, you are liable.
- Strict liability: Defenensible claims, only by defneses failure are you liable.
What are the rules for dogs?
Common law: either knew or should have known they would bite.
Dog bite statute: usually gets rid of "one free bite"
What are the six factors for abnormally dangerous activities?
- Existence of a high degree of risk of some harm to others.
- Likelihood that harm will be great
- Inability to eliminate the risk by reasonable exedrcise of care
- Extent to which the activity is unusual
- ?Inappropriateness of the acvitivity in that location
- Extent to which it's value to the community outweighs it's danger (utility test)
What's mink on mink crime
strict liability is limited ot the type of harm the possibilty of which makes the activity abnormally dangeorus.
You are a wonderful wife for doing this for me. I really appreciate it. I love you very much.
What is the affirmative defense to an abnormally dangeorus activity strict liablity?
Acts of god
What are the three kinds of defects?
- Manufacutring defect: one unit of otherwise good product line manfunctions due to bad materials or quality control lapse.
- Design defect: Faiiure to use an alternative design based on state of the art technology and information
- Warning defect: Either failure to warn or inadequate warning.
What is the implied warranty of merchantibility?
Warranty that naturally extends out from contract, it says that what you're buying is safe for it's intended purpose.
What is breach of express warranty?
When a manufactuer or seller makes a claim about a product, that you reasonably rely on, and it proves untrue, that's a breach of express warranty.
What is the defense of substantial alteration?
When the user has changed the product in such a way that it's no longer the manufactuere's origional design, no products liablity.
What are the risk utility factors for design defect?
- Usefulness and desiribilty of the the product
- Safety aspects of the product
- Manufactuere's abilty to eliminate the unsafe characracter without impairing the usefulles
- Avaliabilty of a substitute product
- Users ability to avoid danger with due care
- Users anticipated awarness of the inhernet dangers of the product.(consumer expectations test)
- The feasibility of spreading the loss by setting the price higher or carrying insurance
Does custom in the industry set the standard?
No, state of the art is often ahead of custom, and that's the standard.
What is the foreign natural test?
In food, if there is a foreign object in it (screw), it's strict liabilty. If it's a natural object (bone), it's merely a neglignece analysis.
What are the two kinds of design defect in a car?
- Accident causing defect
- Crash worthiness.
What's the defenition of a failure to warn case?
Based on state of the art information at the time of manufactuer, did the defendent either fail to warn despite a duty to do so, or did they provide a warning that failed to convey the magnitude of the known risk?
Does a good warning insulate liabilty in design defect?
No, if there is a reasonble altenraitve, safer design, no warning will suffice.
What is a complete defense in failure to warn cases?
open and obvious dangers. (e.g. knives are sharp and might cut you._
Where do many warning cases fall apart?
Proving that they would't have heeded the warning anyways (firestone case)
What's the sophisticated user rule in failure to warn?
They need a lesser warning, because they know more about the dangers of the product.
What is the learned intermediary rule?
Most often, manufactuers can't delegate duty to warn. Only exception is when a learned intermediary is giving the product, e.g. a doctor giving a presecipriont. then the duty falls on the intermediary to warn, not the manufactuer.
What is a heeding presumption
If a defendant provides a warning, they are entitled to a rebuttable presumptiopn that they will read and heed it. Burden of proving that it wouldn't be read falls on defendant.
How do we treat plaintiff's neglignece in a products liabilty case?
treat it like comparitive neglignece, reduction in damages based on how much the neglignece caused the accident.
What is actual malice?
Knowingly making a false statement or turning a blind eye to the truth in such a way that a person's reputation is injured
Who are the two kinds of public figures?
Universal and Vortex
How did the constitution change defamation law?
Since speech is protected, you need to show actual malice when dealing with a public figure or a matter of public concern.
What is the actual injury requirement?
In order to succeed in a defemation case against a private person, they need to show that they suffered an actual injury, even though that's broadly defined.
What are the three types of defemation
- Public person in public conern: show actual malice
- Private preson in public concern: show neglignece, falsity, actual injury.
- Private person in private matter: no constitional restrictions, pure defamation law
What is the prividge of fair comment?
An honext expression of opioion of public issue based on a true fact is protected.
what are the three kinds of privlidges?
- Defamation privlidges: judges, legislatures, witness textimony are absolute privilidges.
- Qualified privlidges: accurate, truthful information that has been solicited from you
- Reporter's privildge: If a report goes to a public hearing and reports on an allegation made in that public forum, that's protected.
How do you get punitive damages in defamation?
Literal malice/ill will
What are the four branches of privacy?
Commercial approrpriation (if you have no value to your name, emotional distress, if you do have value, commercial damages)
Intrusion upon seclusion: A person enters a semi-public place and intrudes on your privacy, invades your zone of privacy.
Public disclosure of private facts (publicity of private facs that are offensive with absesne of legitimate public concern)
False light: discussed more later
Explain false light
A broad disemination of material that shows a person in a light that is inaccurate, must show actual malice, similar to a defamation, but not as damaging to reputation.
What are the two kinds of misuse
extention of the intended misuse and total misuse
what are the catergories of preemption?
express peemption, miplied field preemption, implied conflict preemption, implied purpose preemption.
what is the government contractor defense?
government gives exacting specifications, contractor follows them, share with government knowledge of hazards, they get the government's immunity
What are the four kinds of misrepresentation?
- Failure to speak: contracts issue
- Neglignet misrepresentation: can be liable
- innocent misrepresentation: no liablity
- Intentioanl misrepresentation, always liability
What are the elements of misrepresentation?
- say something that's false
- intend for it to be relied on
- it gets relied on
- reliance was reasonable
- damages occur
Libel per se vs. libel per quod
- per se: defamatory words published which mentioned defendant by name.
- per quod. not libel on face, Inducement ( additional facts make it libel), colloquium (reasonable person would konw who you were talking about) innuendo( ties the original statement and an inducement together)
Group libel rules?
If more that about 25 or so, not individualized enough to know who was being talked about.
What are the two terms of art for computer libel?
Interactive computer service vs. information content provider.