Blaw CH 7

Punitive Damages

Compensation awarded to a plaintiff that goes beyond reimbursement for actual losses and is imposed to punish the defendant and deter such conduct in the future

negligence

The Unintentional Tort where harm arises by accident

When is future injury compensation determined

all injury past, present and future in determined at the time of trail

What does Texas use for negligence

-Modified Comparative Negligence -if you are more than 50% at fault you cannot recover damages

Landowners duty to licensees

-high liability -this person has right to property and the landowners duty is to warn of known, but hidden dangerous conditions licensees are unlikely to discover themselves -no duty to warn about obvious dangers ex; warning social guest about rotted balcony railing

Contributory Negligence

-in a few states, if the plaintiff is AT ALL negligent(at fault) for own injury , he cannot recover damages from the defendant -all or nothing -if you contribute to fault you get nothing -rarely used

Negligence Per Se

-in special cases legislatures set a minimum standard for certain groups of people (esp. children). -when a violation of a statute that hurts a member of that group the duty is breached -negligent as a matter of fact automatic guilty plea and admittance of negligence -saftey regulations ex; safety regulations; speeding and getting in a wreck due to speeding

Landowners Duty to invitees

-landowners highest liability -duty to exercise reasonable care to protect persons against dangerous conditions possessor should know of but invitees are unlikely to discover -public place/business/social highest level of protection -owner is liable even if they had no idea something posed danger

Landowner duty to trespassers

-lowest liability -not to injure intentionally; only liable if injury was intentional

Landowners duty to children

-mid-level liability -duty to protect -if a man-made(artificial) item on the land attracts children, landowners may be liable for harm -assume they don't know better -ex; swing sets, pools, tree house

Special Duty: Landowners

-owners duty depends on person being injured -different duty to trespassers, children, licensees and invitees

Strict Liability

-some activities are so dangerous that the law imposes a high burden on them -no exceptions; always wholly liable -it doesn't matter how much care was taken or that it was not intended in you engage in activity or use you are liable no matter what -future harm is assumed -Comparative Negligence does not apply in these situations -Harm caused by using defective products; engaging in ultra hazardous activities--using harmful chemicals, explosives, and keeping wild animals EX; Snake escapes from petstore (or home) and injures or kills someone you are at fault. You take the risk and blame of pets actions with purchase.

What are the 5 elements of negligence

1. Duty of Care 2. Breach 3. Factual Cause 4. Proximate Cause 5. Damages

Who do special duties exist for

1. People on the job 2. Landowners 3. Employers

Mechanic fails to fix costumers brakes, which causes an accident, noise startles someone and they fall from a window is the mechanic liable for the fall

factual cause--car accident fall was not foreseeable so no proximate cause -not libel for fall

Causation

plaintiff must show the defendants breach of duty CAUSED the plaintiffs harm two types; -Factual Cause--breach lead to harm -Proximate Cause--type of harm was foreseeable

each of us has a duty to behave as a ____ would under circumstances

reasonable person -ex; when you drive a car you have the duty to all other people near you to drive like a reasonable person

Mechanic fails to fix costumers brakes, which causes an accident, car hits bicyclist is the mechanic liable to biker

yes ; factual and proximate cause

Which of the following must the plaintiff prove in an action for negligence? a. Harm. b. A reasonable person. c. Res ipsa loquitur. d. Strict liability.

a. Harm.

The duty of a possessor of land to persons who come on the land usually depends on whether those persons are: a. invitees, trespassers, or licensees. b. fiduciaries. c. reasonable persons or children. d. involved in abnormally dangerous activities.

a. invitees, trespassers, or licensees.

Breach of Duty

(element of negligence) when a defendant fails to behave the way a reasonable person would under similar circumstances -must prove defendant failed to meet responsibility

Special duty: Professionals

While on the job she/he must act as a reasonable person in her profession -a heart surgeon must perform bypass surgery with the care of a trained specialist in that field Ex; Malpractice suits -a dr prescribes a powerful drug without asking about other medicines patient is taking. Patient suffers serious drug reaction..dr didn't perform duty and is liable -if a patient dies in the emergency room and the dr followed normal procedures dr is not liable

What characteristics of an activity bar it from imposing a standard of strict liability? a. The person engaging in the activity is highly trained. b. The activity is a commonly-occurring activity. c. Emergency medical personnel are available in case of injury. d. The danger was unforeseen.

b. The activity is a commonly-occurring activity.

Affirmative Duty to Act

common law does not require bystander to assit person in danger

Which of the following is/are considered in determining the application of the reasonable person standard? a. Physical disability. b. Emergency circumstances. c. Superior skill or knowledge. d. All of the options are considered.

d. All of the options are considered.

Which of the following are activities that give rise to strict liability? a. Performing abnormally dangerous activities. b. Keeping animals. c. Selling defective, unreasonably dangerous products. d. All of these activities give rise to strict liability.

d. All of these activities give rise to strict liability.

What must the plaintiff prove to win a negligence case

that the defendant failed in ALL five elements of negligence to prove liability:

A Bystander, unharmed physically, may recover for emotional distress if...

1. she was near the scene of the injury 2. seeing the injury caused immediate shock and... 3. she is a close relative of the (physical) victim

Res Ispa Loquitur

"the thing speaks for itself" -in a few cases, the defendant must prove he was NOT negligent or the facts imply that his negligence caused the injury -negligence is the only rational explanation -*defendant must have exclusive control of thing that caused harm and the harm normally would not have occurred without the negligence and plaintiff had no role in cause of harm* ex; you buy a new car wheel falls off on way home; dealership is negligent

What is duty of care

(element of negligence) -if a defendant could have foreseen injury or misconduct to a particular person -defendant had legal responsibility to plaintiff -must prove the defendant owed this to the plaintiff

Factual Cause

(element of negligence) -must prove action by defendant caused plaintiffs injury -if the defendants breach ultimately led to the injury, he is liable -action does not have to be the immediate cause of injury but must be the first in the direct line -if the defendants action wouldn't have happened would the injury still have occurred? -set of dominos; defendant is first domino

Proximate Cause

(element of negligence) -the plaintiff must prove it was reasonably foreseeable that the action would cause this kind of harm -the defendant doesn't have to know exactly what might happen—just the type of event

Damage

(element of negligence) -the plaintiff must prove to court that he has suffered genuine harm 0r emotional distress (in some cases) that was foreseeable -"no harm no foul" -compensatory or punitive

Compensatory damages

-A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party -designed to restore what was lost

Assumption of Risk

-A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured -this rule applies to a situation where the danger is well-known and the participant willing chooses to be present -if you engage in risky behavior you are at fault ex; walking out onto a frozen lake and you slip and fall..you are at fault

Special Duty: Hiring & Retention

-companies/employers must beware because they can be liable for hiring or retaining violent employees -ex; Company doesn't report an employees violent behavior and employee injures another employee. the action was foreseeable and the employee was negligently retained so CO is liable

Comparative Negligence

-compare fault/negligence and reward damages based on that -In most states if the plaintiff is negligent, percentage of negligence is applied to both the defendant and the plaintiff -Pay the amount at fault; receive amount you are not at fault -most states use this