Torts II Midterm Rule Statements

What counts as "chattel?"

"Chattel" refers to personal property, which includes movable objects that are not considered real property (land, buildings, and fixtures). Chattel can include items such as furniture, clothing, electronics, vehicles, and livestock.

When will a statute of limitations be tolled?

A statute of limitations may be tolled or temporarily suspended, which means that the clock for the time period during which the plaintiff must file their claim is paused or delayed. There are a number of circumstances that may result in a statute of limitations being tolled, including: 1. Minority: In some jurisdictions, the statute of limitations may be tolled while the plaintiff is a minor, meaning that the clock does not start running until the plaintiff reaches the age of majority. 2. Disability or incapacity: The statute of limitations may be tolled if the plaintiff is disabled or incapacitated, such as due to mental illness or imprisonment. 3. Fraud or concealment: If the defendant fraudulently conceals the existence of the plaintiff's cause of action, the statute of limitations may be tolled until the plaintiff discovers or should have reasonably discovered the fraud. 4. Absence from the jurisdiction: If the plaintiff is not present in the jurisdiction where the claim must be filed, the statute of limitations may be tolled for the period of the plaintiff's absence. 5. Bankruptcy: In some cases, the statute of limitations may be tolled if the plaintiff files for bankruptcy, as certain claims may be stayed or delayed during the bankruptcy process. The exact circumstances that may result in tolling of the statute of limitations can vary depending on the jurisdiction and the type of claim. It is important to consult with an attorney to determine whether any tolling provisions apply in a particular case. If the statute of limitations is tolled, the plaintiff may have additional time in which to file their claim, but they must still ensure that they file within the allowable time period once the tolling period ends.

What is the defense of statute of repose?

A statute of repose is a legal rule that limits the time period during which a claim may be brought, regardless of when the plaintiff discovered or should have discovered the injury. Unlike a statute of limitations, which begins to run from the time the plaintiff discovers or should have discovered the injury, a statute of repose typically begins to run from a fixed date, such as the date of the sale or manufacture of a product, or the date of completion of a construction project. The purpose of a statute of repose is to provide greater certainty and predictability for potential defendants by limiting their exposure to liability for events that occurred many years in the past. This can be particularly important in industries such as construction or manufacturing, where products or structures may have a long lifespan and potential defects or problems may not become apparent until many years after they were created. Statutes of repose can vary widely between jurisdictions, and can apply to different types of claims, such as product liability or construction defect claims. The specific requirements for a statute of repose defense will depend on the particular jurisdiction and the type of claim involved. However, in general, if the defendant can demonstrate that the claim is barred by the applicable statute of repose, the plaintiff may be precluded from bringing the claim, regardless of when the injury was discovered or should have been discovered.

What is a wrongful birth claim? Are these claims typically permitted? What damages would be available if permitted?

A wrongful birth claim is a type of medical malpractice lawsuit brought by the parents of a child born with a genetic or congenital defect, alleging that the physician or other medical professional failed to provide accurate information or made a mistake that deprived the parents of the opportunity to make an informed decision about whether to conceive or continue a pregnancy. The claim may also be brought by the child if they suffer harm due to the physician's negligence. Whether or not wrongful birth claims are permitted varies by jurisdiction. Some states recognize a wrongful birth claim as a legal cause of action, while others do not. In states that permit wrongful birth claims, damages may include the costs of caring for the child, medical expenses, and emotional distress suffered by the parents. In some cases, damages may also include compensation for the loss of the opportunity to make an informed decision about the pregnancy.

What is a wrongful pregnancy/conception claim? Are these claims typically permitted? What damages would be available if permitted?

A wrongful pregnancy or wrongful conception claim is a type of medical malpractice claim that arises when a healthcare provider fails to properly inform or advise a patient about contraceptive options or performs a procedure incorrectly, leading to an unwanted pregnancy or conception. These claims can also arise when a healthcare provider negligently fails to diagnose or treat a medical condition that prevents or reduces the chance of pregnancy. Whether these claims are permitted varies by jurisdiction, and some states do not recognize them at all. In some jurisdictions where they are recognized, they may be limited to certain circumstances, such as cases involving a failure to properly perform a sterilization procedure. If a wrongful pregnancy or conception claim is permitted and the plaintiff is successful, damages may be awarded for the costs associated with the unwanted pregnancy or conception, including the costs of pregnancy, childbirth, and child-rearing. In addition, damages may be awarded for emotional distress, lost wages or earning capacity, and other related expenses. However, the specific damages available and the rules governing these claims vary by jurisdiction.

When is an express assumption of the risk void due to public policy?

An express assumption of risk agreement can be declared void as against public policy in certain circumstances. Courts have held that public policy concerns may override an individual's ability to contract away their right to recover damages for injuries. One common example of when an express assumption of risk agreement may be declared void due to public policy is when the activity involves a duty of care that cannot be delegated or waived. For example, a hospital or doctor cannot require a patient to sign a waiver releasing them from liability for medical malpractice. This is because the duty of care owed by medical professionals to their patients is a non-delegable duty that cannot be waived by the patient. Another example is when the activity involves a public interest or a service that is essential to the public. For example, if a company that provides drinking water to a municipality requires residents to sign a waiver in order to receive water service, the waiver may be declared void as against public policy. This is because the provision of drinking water is an essential public service, and the company has a duty to provide safe and reliable water to its customers. Courts may also consider other factors, such as the bargaining power of the parties, the clarity of the agreement, and the relative knowledge and experience of the parties, when determining whether an express assumption of risk agreement is void due to public policy concerns. Ultimately, the determination of whether an agreement is void as against public policy will depend on the specific facts and circumstances of each case

What is the defense of assumption of risk and what are the two types?

Assumption of risk is a legal defense that can be used by a defendant to avoid liability for injuries sustained by a plaintiff. The defense asserts that the plaintiff voluntarily assumed the risks associated with a particular activity or situation, and therefore the defendant should not be held liable for any injuries that resulted. There are two types of assumption of risk: Express assumption of risk: This occurs when the plaintiff explicitly agrees to accept the risks associated with a particular activity. For example, signing a waiver before participating in a dangerous activity, such as skydiving or bungee jumping, is considered an express assumption of risk. By signing the waiver, the plaintiff acknowledges the risks and agrees to accept responsibility for any injuries that may occur. Implied assumption of risk: This occurs when the plaintiff's conduct suggests that they voluntarily assumed the risks associated with a particular activity, even if they did not explicitly agree to do so. For example, if a person attends a baseball game and is hit by a foul ball, they may be found to have impliedly assumed the risk of being hit by a ball because they were aware of the risks associated with attending a baseball game. To successfully use the assumption of risk defense, the defendant must show that the plaintiff had actual knowledge of the risks involved in the activity, and that the plaintiff voluntarily assumed those risks. The defendant must also show that the plaintiff's injuries were caused by the risks that were assumed. If the defendant can prove these elements, then the plaintiff may be barred from recovering damages for their injuries.

How does comparative fault interact with apportionment between multiple defendants? Who is counted? How does the division work?

Comparative fault and apportionment between multiple defendants interact to determine each defendant's share of liability and the amount of damages that they must pay. Under comparative fault, the plaintiff's degree of fault is compared to the degree of fault of each defendant who contributed to the plaintiff's harm. Each defendant is then assigned a percentage of fault based on their contribution to the harm. If there are multiple defendants, each defendant's percentage of fault is determined separately. The total percentage of fault for all defendants must add up to 100%. Once each defendant's percentage of fault is determined, the damages are apportioned among the defendants in proportion to their degree of fault. Each defendant is responsible for paying damages in proportion to their percentage of fault. For example, if a plaintiff is found to be 30% at fault for their injuries, and there are two defendants who are found to be 40% and 30% at fault, respectively, then the damages are apportioned as follows: The plaintiff is responsible for 30% of the damages. Defendant 1, who is 40% at fault, is responsible for 40% of the damages. Defendant 2, who is 30% at fault, is responsible for 30% of the damages. If any defendant is unable to pay their share of the damages, the other defendants may be held responsible for that portion of the damages as well, depending on the jurisdiction's rules regarding joint and several liability. In summary, comparative fault and apportionment between multiple defendants work together to allocate responsibility for harm among all parties who contributed to it, based on their degree of fault. Each defendant is responsible only for their proportionate share of the damages.

What are the elements of conversion? (Provide examples) What damages are recoverable?

Conversion is an intentional tort that involves the unauthorized and wrongful exercise of control over another person's property, depriving them of their right to use and enjoy the property. The elements of conversion are: 1. The plaintiff had a right to possess the property at issue 2. The defendant exercised control over the property inconsistent with the plaintiff's right of possession 3. The defendant's act was intentional 4. The plaintiff suffered damages as a result of the conversion Examples of conversion include stealing a car, selling someone else's property, or refusing to return property that was loaned or leased to you. Damages recoverable in a conversion claim typically include the value of the property converted, plus any additional damages caused by the wrongful conversion, such as lost profits or emotional distress. In some cases, punitive damages may also be awarded if the defendant's conduct was particularly egregious.

What tests will a court use to determine if strict liability should be applied to determine whether the D is liable to the P?

Courts may use different tests to determine if strict liability should be applied, depending on the context of the case. Here are a few examples: 1. Abnormally dangerous activities: Courts will use the Restatement (Second) of Torts factors to determine if an activity is abnormally dangerous and therefore subject to strict liability. These factors include the existence of a high degree of risk of harm, the likelihood that the harm will be great, the inability to eliminate the risk through reasonable care, and the extent to which the activity is not a matter of common usage. 2. Products liability: Courts may apply strict liability in cases involving defective products. Here, the focus is on the product itself and whether it was unreasonably dangerous due to a design defect, a manufacturing defect, or inadequate warnings or instructions. 3. Animals: Strict liability may be applied to cases involving wild animals, such as lions or bears, or domesticated animals with known vicious propensities, such as pit bulls. In all of these cases, the key question is whether imposing strict liability will serve the policy goals of deterrence, compensation, and risk allocation. Damages that may be recoverable under strict liability include compensatory damages for any harm suffered by the plaintiff, such as medical expenses, lost wages, and pain and suffering. In some cases, punitive damages may also be available to punish the defendant and deter others from engaging in similar conduct.

What are the requirements for express assumption of the risk? (Known each element in detail)

Express assumption of the risk is a legal defense in which the plaintiff explicitly agrees to accept the risks associated with a particular activity. In order for the defense to be successful, the defendant must establish the following elements: 1. The plaintiff had knowledge of the risk: The defendant must show that the plaintiff had actual knowledge of the risk associated with the activity. This means that the plaintiff must have been aware of the potential danger, and must have understood the nature and extent of the risk. 2. The plaintiff voluntarily assumed the risk: The defendant must show that the plaintiff voluntarily assumed the risk associated with the activity. This means that the plaintiff must have made a conscious decision to engage in the activity, knowing that there was a risk of harm. 3. The assumption of risk was expressed: The defendant must show that the plaintiff expressly agreed to accept the risks associated with the activity. This can be done through a waiver or release form that the plaintiff signed prior to participating in the activity. 4. The assumption of risk was not the result of fraud, duress, or undue influence: The defendant must show that the plaintiff's decision to assume the risk was not the result of fraud, duress, or undue influence. This means that the plaintiff must have made the decision to assume the risk of their own free will, without any coercion or deception by the defendant. If the defendant can establish all four of these elements, then the plaintiff may be barred from recovering damages for injuries sustained during the activity. However, it is important to note that even if the plaintiff signed a waiver or release form, the defendant may still be liable for injuries caused by their own negligence or recklessness. Additionally, some jurisdictions may impose limits on the enforceability of waivers or releases, particularly if they are found to be against public policy.

For trespass to land, what counts as "land"?

For the purpose of a trespass to land claim, "land" generally refers to any area that is owned or possessed by the plaintiff. This can include not only the ground itself, but also any buildings, structures, or other improvements on the land. In addition, the airspace above the land and the subsurface beneath it may also be considered part of the land for the purpose of a trespass claim.

How has the law treated the following immunities historically and now? Which are viable defenses today and under what circumstances? (spousal immunity, parental immunity and charitable immunity)

Historically, spousal immunity, parental immunity, and charitable immunity were recognized as legal doctrines that provided immunity from liability for certain types of conduct. Spousal immunity refers to the legal principle that one spouse cannot be compelled to testify against the other in a criminal trial. Historically, this doctrine was extended to also provide immunity from civil liability for certain types of conduct, such as tortious acts committed within the marriage. However, in many jurisdictions, spousal immunity has been abolished or significantly limited, and it is no longer a viable defense in most cases. Parental immunity refers to the legal doctrine that a parent is immune from liability for certain types of conduct involving their children, such as negligence in supervision or discipline. This doctrine was based on the idea that parents should be allowed to exercise their parental authority without fear of liability. However, in many jurisdictions, parental immunity has been abolished or significantly limited, particularly in cases involving serious injury or abuse of the child. Charitable immunity refers to the legal doctrine that provided immunity from liability for charitable organizations, based on the idea that charities should be encouraged to provide services to the community without fear of being sued. However, over time, the doctrine came under criticism for protecting charities from accountability for their actions, and many jurisdictions have abolished or significantly limited charitable immunity. Today, spousal immunity and charitable immunity are no longer viable defenses in most jurisdictions, although there may be some limited exceptions. Parental immunity remains a viable defense in some jurisdictions, but it has been significantly limited in many others, particularly in cases involving serious injury or abuse of the child. The specific requirements for each immunity defense will depend on the particular jurisdiction and the type of claim involved.

What is Illinois' approach to comparative fault?

Illinois follows a modified "comparative fault" system, specifically a "50% bar rule." This means that a plaintiff's recovery may be reduced in proportion to their degree of fault, but only if the plaintiff's degree of fault is less than 50%. Under Illinois law, if the plaintiff's degree of fault is 50% or more, the plaintiff is barred from recovering any damages. However, if the plaintiff's degree of fault is less than 50%, their recovery will be reduced in proportion to their degree of fault. Illinois also follows a modified joint and several liability system, which means that in cases where there are multiple defendants, each defendant may only be held responsible for their percentage of fault, unless they acted with a deliberate intent to cause harm or their conduct was substantially more egregious than that of the other defendants. In summary, Illinois follows a modified "comparative fault" system with a "50% bar rule," where a plaintiff's recovery may be reduced in proportion to their degree of fault only if their fault is less than 50%.

What as the effect of plaintiff's negligence (lack of reasonable care for her own safety) in a MODIFIED "less than" comparative fault system?

In a modified "less than" comparative fault system, also known as a 50% bar system, the plaintiff's negligence can have a significant impact on their ability to recover damages. Under this system, the plaintiff's recovery is barred if their degree of fault is found to be equal to or greater than a certain threshold, typically 50%. For example, if the plaintiff is found to be 50% or more at fault for an accident, they may not be entitled to recover any damages under a modified "less than" comparative fault system. This is because their degree of fault meets or exceeds the threshold of 50%. However, if the plaintiff's degree of fault is found to be less than the threshold, their recovery may still be reduced in proportion to their degree of fault. For example, if the plaintiff is found to be 30% at fault for an accident, their recovery will be reduced by 30%. So, in a modified "less than" comparative fault system, the plaintiff's negligence may prevent them from recovering any damages if their degree of fault is found to be equal to or greater than the threshold of 50%. If their degree of fault is less than the threshold, their recovery may still be reduced in proportion to their degree of fault.

What as the effect of plaintiff's negligence (lack of reasonable care for her own safety) in a MODIFIED "not greater than" comparative fault system?

In a modified "not greater than" comparative fault system, the plaintiff's negligence may have a more significant impact on their ability to recover damages. Under this system, the plaintiff's recovery is barred if their degree of fault is found to be greater than a certain threshold, typically 50%. For example, if the plaintiff is found to be 60% at fault for an accident, and the defendant is found to be 40% at fault, the plaintiff may not be entitled to recover any damages under a modified "not greater than" comparative fault system. This is because the plaintiff's degree of fault exceeds the threshold of 50%. However, if the plaintiff's degree of fault is found to be less than the threshold, their recovery may still be reduced in proportion to their degree of fault. For example, if the plaintiff is found to be 30% at fault for an accident, their recovery will be reduced by 30%. So, in a modified "not greater than" comparative fault system, the plaintiff's negligence may prevent them from recovering any damages if their degree of fault is found to be greater than the threshold. If their degree of fault is less than the threshold, their recovery may still be reduced in proportion to their degree of fault.

What is the effect of plaintiff's negligence (lack of reasonable care for her own safety) in a PURE comparative fault system?

In a pure comparative fault system, the plaintiff's negligence, or lack of reasonable care for their own safety, will be taken into account when determining the damages awarded to them. Specifically, the damages awarded to the plaintiff will be reduced by the percentage of fault that can be attributed to them. For example, suppose the plaintiff is found to be 30% at fault for an accident, and the defendant is found to be 70% at fault. In a pure comparative fault system, the damages awarded to the plaintiff will be reduced by 30%, reflecting their share of the fault. So, in a pure comparative fault system, even if the plaintiff is found to have been negligent, they may still be entitled to some compensation for their damages. However, the amount of compensation they receive will be reduced in proportion to their degree of fault.

What is the effect of plaintiff's negligence (lack of reasonable care for her own safety) in a traditional contributory fault system?

In a traditional contributory fault system, any degree of negligence by the plaintiff that contributes to her own injury completely bars her from recovery. This means that if the plaintiff's negligence was even 1% responsible for her injury, she would not be able to recover any damages from the defendant. This is known as the "all-or-nothing" rule of contributory negligence.

In trespass to land, What damages are recoverable?

In a trespass to land claim, the plaintiff may be able to recover both actual damages and/or nominal damages. Actual damages may include compensation for any harm that was caused to the land, such as physical damage or destruction. Nominal damages, on the other hand, may be awarded even if no actual harm was suffered, as a way of acknowledging that the defendant committed a wrongful act by entering onto the plaintiff's land without permission. The plaintiff may also be entitled to injunctive relief, which would require the defendant to stay off the plaintiff's land in the future.

What are other exemptions to the FTCA?

In addition to the discretionary function exception, there are several other exemptions to the Federal Tort Claims Act (FTCA), which provide immunity to the federal government from certain types of claims. Some of the most common exemptions are: 1. Intentional Torts: The FTCA does not waive the government's immunity for claims arising from intentional torts committed by federal employees, such as assault, battery, false imprisonment, and defamation. 2. Contract Claims: The FTCA does not apply to claims arising from breach of contract by federal agencies or employees. 3. Admiralty and Maritime Claims: Claims arising from torts committed on navigable waters or involving vessels are generally governed by federal maritime law, which provides its own procedures and remedies. 4. Claims Arising in Foreign Countries: The FTCA does not apply to claims arising from torts committed outside the United States, except in limited circumstances. 5. Claims Arising from the Administration of Social Security Benefits: The Social Security Act provides its own procedures and remedies for claims arising from the administration of social security benefits. 6. Claims Arising from the Administration of Tax Laws: The Internal Revenue Code provides its own procedures and remedies for claims arising from the administration of tax laws. 7. Claims Arising from the Performance of Military or Intelligence Activities: Claims arising from the performance of military or intelligence activities are generally governed by separate legal regimes that provide their own procedures and remedies. It is important to note that even if an exemption applies, there may be other legal avenues for seeking redress, such as suing individual federal employees or pursuing claims under state law.

How is the element of intent for trespass to land different from the other intentional torts?

In most intentional torts, the element of intent requires that the defendant intended to cause the resulting harm or injury to the plaintiff. However, in a claim for trespass to land, the element of intent only requires that the defendant intended to enter or cause an object to enter the plaintiff's land. The defendant does not need to intend to cause harm or injury to the plaintiff, or even be aware that they are entering the plaintiff's land. This means that a defendant may be liable for trespass to land even if they did not realize they were entering someone else's property, as long as they intended to enter the land or cause an object to enter the land. This is because the focus of the intent element in trespass to land is on the act of entering the land, rather than on causing harm or injury to the plaintiff.

What is joint and several liability?

Joint and several liability is a legal principle that holds multiple defendants who are found liable for the same harm or injury responsible for paying the full amount of damages awarded to the plaintiff. Under joint and several liability, each defendant is considered jointly liable for the full amount of the damages, regardless of their individual degree of fault. This means that if one defendant is unable to pay their share of the damages, the other defendants may be held responsible for the full amount. It also means that the plaintiff can choose to pursue the entire amount of damages from any one defendant, rather than having to collect a portion of the damages from each defendant. Joint and several liability is commonly applied in cases where multiple parties are involved in causing the same harm or injury, such as in cases involving product liability, medical malpractice, or toxic torts. It is intended to ensure that the plaintiff is fully compensated for their injuries, regardless of the defendants' ability to pay. However, joint and several liability can also result in defendants being held responsible for damages that are not entirely their fault, and can lead to disputes among defendants over the allocation of damages. As a result, some jurisdictions have adopted modified joint and several liability or several liability systems.

When are prenatal injuries actionable? Who is bringing this suit and what is the nature of the suit? If child lives after birth? If child dies after a live birth? If child is stillborn or viable fetus does not survive for live birth?

Prenatal injuries may be actionable under certain circumstances. The nature of the suit and who may bring it depend on the specific jurisdiction and the facts of the case. If a child is born alive but with injuries caused by prenatal negligence or misconduct, the child may have a cause of action for personal injury against the party responsible for the injury. In some cases, the parents of the child may also have a cause of action for medical expenses, emotional distress, and other related damages. If a child dies after a live birth due to prenatal injuries caused by negligence or misconduct, the child's estate may have a cause of action for wrongful death against the party responsible for the injury. The parents of the child may also have a cause of action for emotional distress and other related damages. If a child is stillborn or a viable fetus does not survive for live birth due to prenatal injuries caused by negligence or misconduct, the parents may have a cause of action for wrongful death or other related claims, such as negligent infliction of emotional distress or loss of consortium, depending on the jurisdiction. In general, the specific circumstances and facts of the case will determine whether a cause of action exists and who may bring the suit. It is important to consult with an experienced attorney to understand the legal options and potential remedies available in each situation.

What is primary implied assumption of the risk? What is the effect of this defense?

Primary implied assumption of the risk is a legal doctrine that holds that a plaintiff has implicitly assumed the risks associated with an activity simply by participating in it. Unlike express assumption of risk, which requires a plaintiff to explicitly agree to accept the risks associated with an activity, primary implied assumption of risk is based on the idea that certain activities are inherently dangerous and that participants are assumed to understand and accept those risks. The effect of primary implied assumption of the risk is that the defendant is relieved of any duty to protect the plaintiff from the risks associated with the activity. This means that if the plaintiff is injured during the activity, they may be barred from recovering damages from the defendant, even if the defendant was negligent or acted recklessly. However, the doctrine of primary implied assumption of the risk is limited to activities that are inherently dangerous, such as contact sports or extreme activities like skydiving. In order for the defense to be successful, the defendant must show that the plaintiff was aware of the risks associated with the activity and voluntarily chose to participate in it anyway. It is also important to note that the doctrine of primary implied assumption of the risk has been criticized by some legal scholars as being overly broad and potentially unfair to plaintiffs. As a result, some jurisdictions have limited the scope of the defense or abolished it altogether.

What is proportionate share (or proportional) liability?

Proportional liability, also known as proportionate share liability, is a legal principle that holds each defendant in a case responsible only for their proportionate share of the damages, based on their degree of fault. Under proportionate liability, each defendant is responsible for paying damages only in proportion to their share of the fault, as determined by the court or jury. This means that if a defendant is found to be 20% at fault for an injury, they are responsible for paying 20% of the damages awarded to the plaintiff. Proportional liability is intended to promote fairness in allocating liability among defendants, and to ensure that defendants are held accountable only for the harm they have caused. This can help to avoid situations where one defendant is held responsible for more than their share of the damages. Proportional liability is often used in cases where there are multiple defendants who are found to be at fault for the same harm or injury. It is used in contrast to joint and several liability, which holds each defendant jointly and severally liable for the full amount of the damages, regardless of their individual degree of fault.

What are the requirements for secondary implied assumption of the risk? (What are the two sub-types?)

Secondary implied assumption of the risk is a legal doctrine that is similar to primary implied assumption of the risk, but applies in slightly different circumstances. Under this doctrine, a plaintiff is said to have impliedly assumed the risks of an activity because they knew or should have known of the risks, but chose to proceed with the activity anyway. The requirements for secondary implied assumption of the risk vary somewhat depending on the jurisdiction, but generally include the following elements: 1. Knowledge of the Risk: The plaintiff must have actual or constructive knowledge of the risks associated with the activity. This means that they must have known, or should have known, that the activity was dangerous and that there was a risk of injury. 2. Voluntary Participation: The plaintiff must have voluntarily chosen to participate in the activity despite the known risks. This means that they must have made a conscious decision to proceed with the activity, rather than being forced or coerced into participating. There are two sub-types of secondary implied assumption of the risk: 1. Primary Duty Rule: Under this sub-type, the defendant does not owe a duty of care to the plaintiff with respect to the risks associated with the activity. This means that the defendant is not liable for any injuries that the plaintiff may suffer as a result of those risks. 2. Comparative Negligence Rule: Under this sub-type, the defendant does owe a duty of care to the plaintiff with respect to the risks associated with the activity, but the plaintiff's own negligence in assuming the risks may reduce or eliminate their ability to recover damages. This means that the plaintiff's recovery will be reduced in proportion to their degree of fault for the injuries they suffered.

What is sovereign immunity?

Sovereign immunity is a legal doctrine that provides immunity from civil lawsuits for the government and its agencies. The doctrine is based on the idea that the government, as a sovereign entity, cannot be sued without its consent. Historically, sovereign immunity was an absolute defense, meaning that the government was immune from all civil lawsuits. However, over time, the doctrine has been limited by various court decisions and legislative actions. Today, many jurisdictions have waived sovereign immunity in certain circumstances, allowing individuals to sue the government for certain types of claims, such as personal injury or property damage caused by the government's negligence. However, the scope and limitations of sovereign immunity can vary depending on the jurisdiction and the type of claim involved. In some cases, sovereign immunity may still provide a complete defense to a lawsuit against the government.

What cases generally use strict liability?

Strict liability is most commonly applied in cases involving dangerous or hazardous activities or products. Some examples of cases that use strict liability include: 1. Products liability: Cases where a product is defectively designed, manufactured, or marketed, and the defect causes injury or harm to a user or consumer. 2. Ultrahazardous activities: Cases where inherently dangerous activities, such as blasting or storing explosives, are involved. 3. Animals: Cases where an animal, such as a dog or horse, injures someone. 4. Abnormally dangerous activities: Cases where a defendant engages in an activity that is not inherently dangerous but, because of the particular circumstances, poses an extreme risk of harm to others. For example, storing large amounts of flammable liquids in a residential area. In these cases, the plaintiff does not need to prove that the defendant was negligent, but only that the defendant engaged in the activity or produced the product that caused harm. The defendant is strictly liable for any harm caused by their conduct.

What is the FTCA and when does it apply?

The FTCA is the Federal Tort Claims Act, a federal law that waives sovereign immunity for certain claims of negligence against the United States government and its agencies. Under the FTCA, individuals can bring claims against the federal government for personal injury, property damage, or wrongful death caused by the negligence of federal employees while acting within the scope of their employment. However, the FTCA does not apply to claims of intentional torts, such as assault or battery, or to claims arising from the actions of independent contractors working for the government. To bring a claim under the FTCA, the claimant must first file an administrative claim with the relevant federal agency within two years of the incident. If the agency denies the claim or fails to respond within six months, the claimant can then file a lawsuit in federal court. The FTCA also imposes certain procedural requirements on these lawsuits, including limits on the amount of damages that can be recovered and restrictions on the types of evidence that can be introduced.

What is the accrual rule for the start of a statute of limitations?

The accrual rule is the point in time when the statute of limitations begins to run, meaning the clock starts ticking on the time period during which the plaintiff must file their claim. The exact accrual rule will depend on the type of claim being brought and the jurisdiction in which the claim is filed. In general, the statute of limitations begins to run from the date on which the cause of action accrues. This means that the clock starts ticking on the date that the plaintiff suffered harm or became aware of the harm. For example, in a personal injury case, the statute of limitations might begin to run from the date of the accident that caused the injury. In a breach of contract case, the statute of limitations might begin to run from the date on which the breach occurred. However, there are also exceptions to this general rule, which can vary depending on the jurisdiction and the type of claim. For example, in some cases, the statute of limitations may not begin to run until the plaintiff discovers the harm or should have reasonably discovered it. This is known as the discovery rule. It is important to determine the correct accrual rule and starting point for the statute of limitations in a particular case in order to ensure that the claim is filed within the allowable time period. If the claim is not filed in a timely manner, the defendant may be able to raise the defense of statute of limitations and have the case dismissed.

What is the impact on the defense of assumption of the risk, when states adopt comparative fault? Consider the impact on each type.

The adoption of comparative fault in a state can have an impact on the defense of assumption of the risk, depending on the type of assumption of the risk being asserted. With respect to express assumption of the risk, the impact of comparative fault will depend on the specific language of the statute or case law in the relevant jurisdiction. In some jurisdictions, express assumption of the risk is an absolute defense that completely bars recovery by the plaintiff. In others, however, the defense is subject to comparative fault principles, meaning that the plaintiff's recovery will be reduced in proportion to their degree of fault for the injuries they suffered. With respect to primary implied assumption of the risk, the impact of comparative fault is generally minimal. Because primary implied assumption of the risk is based on the idea that certain activities are inherently dangerous and that participants are assumed to understand and accept those risks, the plaintiff's own negligence is not relevant to the analysis. Therefore, even in a comparative fault jurisdiction, the defense of primary implied assumption of the risk may be available as an absolute defense. With respect to secondary implied assumption of the risk, the impact of comparative fault will depend on the specific sub-type of the defense being asserted. If the defense is based on the primary duty rule, meaning that the defendant does not owe a duty of care to the plaintiff with respect to the risks associated with the activity, comparative fault is not relevant. However, if the defense is based on the comparative negligence rule, meaning that the defendant does owe a duty of care to the plaintiff but the plaintiff's own negligence in assuming the risks may reduce their recovery, comparative fault principles will apply. In this case, the plaintiff's recovery will be reduced in proportion to their degree of fault for the injuries they suffered.

What is the defense of comparative fault (formerly contributory fault)? And, how do you determine if plaintiff was negligent?

The defense of comparative fault, also known as comparative negligence, is a legal principle that allows a defendant to argue that the plaintiff's own negligence contributed to their injury or damages. Under comparative fault, the plaintiff's recovery is reduced by the percentage of fault that can be attributed to them. For example, if the plaintiff is found to be 25% at fault for an accident, and the defendant is found to be 75% at fault, the plaintiff's recovery will be reduced by 25%. To determine if a plaintiff was negligent, a court will typically apply the "reasonable person" standard. This means that the court will ask whether a reasonable person in the same or similar circumstances would have acted differently, and whether the plaintiff's failure to do so contributed to their injury or damages. The court will consider various factors, such as the plaintiff's knowledge and experience, the severity of the danger, and the feasibility of taking alternative actions. If the court finds that the plaintiff failed to meet the reasonable person standard, they may be found to have been negligent and their recovery may be reduced under the defense of comparative fault.

What is the defense of private necessity? How does this operate?

The defense of private necessity is an affirmative defense that can excuse liability for trespass to land or conversion when the defendant had to intrude on the plaintiff's property in an emergency to prevent significant harm or danger to himself, others, or property. To establish the defense of private necessity, the defendant must show that: 1. There was a sudden and urgent need to act to prevent harm to himself, others, or property; 2. The defendant reasonably believed that his actions were necessary to prevent the harm; 3. The defendant did not cause the harm intentionally or through recklessness; and 4. The defendant's actions were proportional to the harm that they were seeking to prevent. If the defendant successfully establishes the defense of private necessity, he may be excused from liability for the harm caused by his trespass or conversion. However, the defendant may still be required to pay for any actual damages caused by his actions or to restore the property to its prior condition, if possible.

What is the defense of public necessity? How does this operate?

The defense of public necessity is a legal doctrine that allows for the government or other authorized entities to take or use private property without compensation or liability for trespassing, when necessary to protect the public interest. This defense is based on the principle that in certain emergency situations, the greater good of the community takes precedence over individual property rights. Under the defense of public necessity, the government or authorized entity must show that the taking or use of the private property was necessary to prevent a significant harm or danger to the public, and that there were no reasonable alternatives available to avoid the harm. Examples of situations where public necessity might apply include natural disasters, military actions, and public health emergencies. Unlike private necessity, where the defendant is generally liable for any damages caused by the trespass, in public necessity cases, the government or authorized entity is not required to compensate the property owner for the use or damage of their property. However, in some cases, the government may choose to provide compensation as a matter of policy or to prevent public backlash.

What is the defense of statute of limitations?

The defense of statute of limitations is a legal doctrine that bars a plaintiff from bringing a claim after a certain period of time has passed. The statute of limitations is a deadline by which a legal action must be filed, and it varies depending on the jurisdiction and the type of claim being brought. The purpose of the statute of limitations is to encourage prompt resolution of legal disputes and to protect defendants from having to defend against stale claims. The specific time period for the statute of limitations will depend on the type of claim being brought. For example, the statute of limitations for personal injury claims may be different from that for breach of contract claims. In addition, some states may have different statutes of limitations depending on whether the claim is based on negligence or intentional misconduct. Once the statute of limitations has expired, the plaintiff's claim is said to be "time-barred" and the defendant can raise the defense of statute of limitations to have the case dismissed. It is important to note that the statute of limitations is an affirmative defense, which means that the defendant has the burden of proving that the plaintiff's claim is time-barred. In order to do so, the defendant must show that the time period specified in the relevant statute has elapsed since the cause of action accrued.

What is the discovery rule for the start of a statute of limitations?

The discovery rule is an exception to the general accrual rule for the start of the statute of limitations. It provides that the clock for the statute of limitations does not start ticking until the plaintiff discovers, or should have reasonably discovered, the harm or injury that forms the basis of their claim. The discovery rule is often applied in cases where the harm or injury is not immediately apparent or where the plaintiff may not have known that their injury was caused by the defendant's actions. For example, in cases involving medical malpractice or toxic torts, the plaintiff may not immediately realize that they have been harmed, or they may not know that their injury was caused by the defendant's actions. In such cases, the statute of limitations may not begin to run until the plaintiff discovers or should have reasonably discovered the harm or injury. The exact application of the discovery rule can vary depending on the jurisdiction and the type of claim. Some states have specific statutes that provide for the discovery rule, while others apply the rule through case law. In addition, some states may have different requirements for when a plaintiff should have reasonably discovered their injury. Overall, the discovery rule is intended to ensure that plaintiffs are not unfairly barred from bringing claims due to their lack of knowledge or understanding of their injuries. It is important for plaintiffs to be aware of the relevant statute of limitations and the potential application of the discovery rule in order to ensure that they file their claims within the allowable time period.

What is the discretionary function exception? When does it apply? (Provide examples of what might fit this exception and what would not)

The discretionary function exception is an exception to the waiver of sovereign immunity under the FTCA. It provides immunity to the government for claims that arise from discretionary decisions made by federal officials in the course of their duties. The exception applies when the challenged conduct involves a discretionary decision based on policy considerations. In other words, if the conduct involves the exercise of judgment or choice among competing policy considerations, then it may fall within the discretionary function exception. For example, if a federal agency decides to allocate resources to a particular program, the decision may be protected by the discretionary function exception because it involves policy considerations. Similarly, decisions related to national security or foreign affairs may be protected by the exception. On the other hand, if the challenged conduct involves purely operational decisions or actions that do not involve policy considerations, then the discretionary function exception does not apply. For example, if a federal employee causes a car accident while driving a government vehicle, the government may be liable under the FTCA because the decision to drive the vehicle was not a discretionary decision based on policy considerations. In summary, the discretionary function exception applies when the challenged conduct involves a discretionary decision based on policy considerations, and it does not apply when the conduct involves purely operational decisions or actions that do not involve policy considerations

What is the public "no duty" rule for local governments? When does it apply? Why does the FTCA not apply in these cases?

The public "no duty" rule is a legal principle that generally holds that local governments and their agencies are not liable for failing to provide public services, such as police or fire protection. Under this rule, local governments have no duty to provide these services to individual members of the public, and therefore cannot be held liable for any harm that results from their failure to do so. The rule typically applies in situations where a government agency has failed to provide a particular service, or has provided the service in a negligent manner. For example, if a city fails to properly maintain a public sidewalk and someone is injured as a result, the city may not be liable under the "no duty" rule. The rule is based on the idea that local governments have limited resources and must make difficult choices about how to allocate those resources. Holding governments liable for failing to provide services would create an untenable burden and potentially divert resources away from other important public services. The Federal Tort Claims Act (FTCA) generally waives the government's immunity from liability for torts committed by federal employees acting within the scope of their employment. However, the FTCA specifically excludes claims arising from the exercise or performance of a discretionary function or duty by a government agency. This means that even if a local government's failure to provide a particular service might otherwise give rise to a claim under state law, the FTCA would not apply to that claim because it is based on the exercise of a discretionary function or duty. Therefore, the "no duty" rule for local governments is not affected by the FTCA.

What are the two systems of apportionment (division of liability where there are multiple tortfeasors)?

The two systems of apportionment or division of liability where there are multiple tortfeasors are: Joint and Several Liability: Under this system, each tortfeasor is individually responsible for the entire amount of damages awarded to the plaintiff, regardless of their individual degree of fault. This means that if one tortfeasor is unable to pay their share of the damages, the other tortfeasors may be held responsible for the full amount. Several Liability: Under this system, each tortfeasor is responsible only for their own share of the damages, based on their individual degree of fault. This means that a plaintiff must collect damages from each tortfeasor in proportion to their degree of fault, and if one tortfeasor is unable to pay, the plaintiff must bear the loss. In practice, some states have adopted a modified joint and several liability system, which combines elements of both joint and several and several liability. For example, some states hold each defendant jointly and severally liable for economic damages (such as medical expenses and lost wages), but only severally liable for non-economic damages (such as pain and suffering).

What are the elements of a trespass to land claim?

To establish a claim for trespass to land, the plaintiff must prove the following elements: 1. Intent: The defendant intended to enter or cause an object to enter the plaintiff's land. 2. Entry: The defendant or the object in question actually entered the plaintiff's land, or caused something to enter the land. 3. Possession: The plaintiff must have actual possession of the land, or a right to immediate possession, such as through ownership or a leasehold interest. 4. Interference: The defendant's entry onto the land interfered with the plaintiff's possessory interest in the land. If the plaintiff can prove all of these elements, then the defendant may be liable for trespass to land.

What are the elements of trespass to chattel? (Provide examples). What damages are recoverable?

Trespass to chattel is an intentional tort that occurs when someone intentionally interferes with someone else's personal property without their consent. The following are the elements of a trespass to chattel claim: 1. Intentional interference: The defendant must have intentionally interfered with the plaintiff's possession of the chattel. Example: A person takes someone else's phone without their permission. 2. Possession or right to possess: The plaintiff must have had actual possession or a right to possess the chattel. Example: A person who owns a car but has lent it to a friend can sue someone who takes it without permission. 3. Interference with use: The interference must have caused harm to the plaintiff's use or enjoyment of the chattel. Example: A person who steals someone else's bike and prevents the owner from using it can be sued for trespass to chattel. 4. Damages: The plaintiff must have suffered some type of harm as a result of the interference, such as loss of use, repair costs, or diminished value of the chattel. Example: If the phone taken in the earlier example was damaged in the process, the owner can sue for the cost of repairs or the decreased value of the phone. The damages recoverable in a trespass to chattel claim may include compensation for the actual harm caused by the interference with the property, such as the cost of repairs or loss of use. In some cases, punitive damages may also be awarded to punish the defendant for their intentional conduct.

What is Illinois' approach to apportionment of liability among multiple tortfeasors?

llinois follows a modified version of the comparative fault system, known as the modified comparative fault system with a 25% rule, when apportioning liability among multiple tortfeasors. Under this system, each defendant is only responsible for their proportionate share of the damages, based on their percentage of fault. However, if a defendant is found to be less than 25% at fault for the plaintiff's injuries, they are only responsible for paying their own share of the damages. If a defendant is found to be 25% or more at fault, they are responsible for paying their proportionate share of the damages, as well as any damages that are attributable to a defendant who is unable to pay their share. For example, if there are three defendants in a case and one is found to be 10% at fault, another 20% at fault, and the third 70% at fault, then the first two defendants would only be responsible for paying their own share of the damages. The third defendant, who is found to be 70% at fault, would be responsible for paying their proportionate share of the damages as well as any damages that are attributable to the first two defendants. Illinois law also allows defendants to pursue contribution claims against other tortfeasors who may have contributed to the plaintiff's injuries. This means that if a defendant is found to be liable for damages that were caused in part by another defendant, they may seek to recover a portion of those damages from the other defendant. However, the total amount of damages that the plaintiff can recover is still limited to the total amount of damages that were suffered.