Torts note cards

Special duties:

carriers, host drivers, landowners 1. Teacher-student 2. Employer-employee 3. Restauranteur-patron 4. Businessman-patron 5. School district-pupil 6. Custodian/guardian

Negligence intro:

duty breach of duty actual cause/ cause in fact legal (proximate) cause damages Duty is question for the judge, everything else is a question for the jury Negligence may be conduct that creates an unreasonable risk of harm to others. It is actionable as a tort when that risk comes to fruition in actual harm. 1. In Nevada negligence actions, the complaint must show a duty owing from the defendant to the plaintiff, a breach of that duty; that the plaintiff was injured and damaged; and that the defendant's negligence or breach was the proximate cause.

common carrier duties:

duty to anticpate and avoid dangers 1. Standard of care is exceedingly high 2. Traditional and small area where we have the highest possible care that one might be able to anticipate 3. Taxis, buses, trains, airlines, all are heavily regulated by telling them a. What you are supposed to do b. How you are supposed to do it. 4. Doser v. Interstate Power Co: Defendant's bus was involved in an car accident and bus passengers were injured. a. "Carriers of passengers for hire must exercise more than ordinary diligence for their protection. Its duty stops just short of insuring their safety. It is bound to protect passengers as far as human care and foresight will go and is liable for slight negligence." 5. The high degree of care must be exercised in foreseeing as well as in guarding against danger.

Nevada undertaking law

follows common law rules

Private necessity

i. Where the act is solely to benefit a limited number of people, the defense is qualified and the actor must pay for any injury he causes. 1. Necessity might justify entry onto the land for the safety of human life. A party who damages the property of another while acting out of private necessity must compensate the property owner for the resulting damage

allocation of fault should consider

i. Whether the conduct was inadvertent or involved awareness of danger ii. How great a risk was created iii. The significance of what was sought iv. The actor's capacities v. Any extenuating factors that may require the actor to proceed with haste

substantial factor test/

if (a) a negligent act was deemed wrongful BECAUSE that act increased the chances that a particular type of accident would occur AND o (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior cause the harm

damages (negligence)

need actual damages, nominal damages are not enough 1. Past and future medical expenses 2. Loss of wages or earning capacity 3. Pain and suffering (emotional harm) 4. Damages for any other specifically identifiable harm 5. No punitive damages. No willful, wanton, reckless state of mind. That would be an intentional tort.

Res Ipsa Loquitur (ask about this in class)

"the thing speaks for itself" "the mere fact of the thing having happened is proof" when the defendant has the means to explain what happened, and the plaintiff doesnt. when the judge allows this, the burden shifts to the defendant to prove it was not their fault. · 1. The event is of a kind which ordinarily does not occur in the absence of negligence · 2. Instrumentality or agent causing accident is under exclusive control of ∆ · 3. Circumstances indicate the event was not caused or contributed to by the negligence of the injured person § Three-part test established by restatement · 1. The event is of a kind which ordinarily does not occur in the absence of negligence · 2. Other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence · 3. The indicated negligence is within the scope of the defendant's duty to the plaintiff NEVADA: i. The defendant was in exclusive control of the instrumentality causing injury ii. The accident causing injury does not ordinarily happen in the absence of negligence, and iii. The defendant is in a better position than the plaintiff to explain the cause of the accident. plaintiff must show that negligence is mor eporbably than not

consent

(affirmative defense to intentional tort) 1. express consent- plaintiff expressly makes clear willingness to consent 2. implied consent- what a reasonable person would think given the circumstances (think like a date) this also applies to emergency situations 3. CAPACITY- need to be able to consent think alcoholics, incompetents, power relationships, young children 4. SCOPE- consent has a scope and you cannot exceed it 5. Fraud/duress- consent gained by fraud or duress is negated 6. consent can be revoked at ANY time NEVADA: 1. Lack of consent is an essential element in assault and battery. The defense of consent does apply in civil cases as it applies in criminal cases. 1. Offensive words do not constitute consent to engage in a fight a. The unclean hands doctrine generally bars a party from receiving equitable relief because of that party's own inequitable conduct. Basically you can't recover if you were at fault.

arrest and detention / shopkeeper's privilege

(defense to intentional tort) 1. reasonable cause 2. for a reasonable time 3. for the purpose of the investigation 1. In the NV statute, the purpose is to recover the merchandise, not to question the suspect. Must still be in a reasonable manner. 2. Merchant must have notice of the statute posted somewhere conspicuous.

Public Necessity

(defense to intentional torts) i. Interference with one's real or personal property that is necessary to prevent a disaster to the community or a large number of people. 1. Defendant must have had reasonable notice that the action was needed and the action was a reasonable response to the situation. The party who destroys the property of another on the basis of good-faith public necessity will not be liable for damages

federal immunity

1. Partially waived sovereign immunity in the Federal Torts Claim Act a. Makes the feds liable on the same basis as if it were an individual 2. Exceptions a. No pre-judgment interest in the award b. No punitive damages c. Activity causing liability has to be done in the course and scope of government activity

Self-defense

(defenses to intentional torts) ELEMENTS: (kinda) 1. Reasonably believe that he or she is about to be attacked or is being attacked · Words alone are not enough 2. The force used to avoid that attack is reasonable and reasonable amount of time NOTES: many states have stand your ground laws, meaning you are not obligated to retreat in many states you do not have to wait to be attacked, as long as you are sure the attack is immenent cannot be excessive NEVADA: 1. Self defense is justified when the defendant reasonably believes that they are about to be attacked. The defendant need not believe that they are in danger of great bodily harm and need not wait to be attacked before engaging in self defense.

Defense and repossession of property

(defenses to intentional torts) can use reasonable force to defend property the law values personal rights over property rights so nearly killing someone is not going to fly.

conversion of chattels - Trover (property

(intentional tort) ELEMENTS: 1. intentional act 2. to exercise substantial dominion 3. over the property of another FACTORS INCLUDE: 1. extent and duration of control 1. Defendant's intent to assert right of the property 2. The defendant's good faith 3. Harm done 4. Expense or inconvenience NOTES: still liable for transferred intent, aiding and abetting, honest mistake. REMEDIES: typical remedies are for the value of the thing converted, can have conversion even if you give it back NEVADA: 1. The wrongfully exerted dominion over personal property in denial of or inconsistent with title or rights therein or in derogation, exclusion, or defiance of such rights. a. Requires a physical act of dominion. b. Predicated on general intent, does not require wrongful intent. (Sounds like single intent)

Tresspass to land

(intentional tort) Elements: plaintiff owns land or has interest in the land defendant intentionally and tangibly invades entry onto the land invasion harms plaintiffs interest in exclusive possession NOTES: allowed to use reasonable force to get them off the property land can be above or below the ground def. liable for damages done to property INTENT: just have to intend to do the act that led to the tresspass DAMGES: restoration costs injunctive relief punitive damages NEVADA: Trespass is an action for injury to plaintiff's possession of land

trespass to chattel

(intentional tort) ELEMENTS: 1. itentional act 2. interferes without justification or consent 3. with use and enjoyment of property of another 4. causes harm

Assault

(intentional tort) Elements: 1. an act 2. with intent (intent to do the act) 3. causes reasonable (immenent) apprehension, needs to be words + something else 4. immenent harmful touching is about to occur DAMAGES: include mental trauma and distress

False Imprisonment Elements

(intentional tort) Elements: 1. intent to confine or do act that results in confinement 2. without lawful priviledge 3. without consent 4. confinement in a space fixed by defendant results 5. plaintiff is aware of confinement or harmed NOTES: False imprisonment does not require actual physical restraint, just facts that lead a reasonable person to believe they will be forced to stay if they try to leave. confinement can be done physically or verbally no reasonable means of escape exclusion from an area is not imprisonment NEVADA: has shopkeepers privledge- allows them to use reaonable means to collect an stolen item. 1. reasonable cause 2. reasonable time 3. for the purpose of te investigation

Battery

(intentional tort) Elements: a voluntary conscious action intends to cause harmful or offensive contact contact actually occurs CONTACT: offends a reasonable persons sense of dignity unusual offensive contact can count if def. knew or shouldve known that that contact wouldve offended (think nurse and muslim) INTENT: there is single and dual intent depending on the state: single: just have to intend to do the act double: have to intend to both do the act and expect that the act will be harmful or offensive transferred intent when you meant to harm someone by accidentally harm a 3rd person this counts as intent restatement 3rd has only single intent NEVADA: doesnt have definitive elements up to jury to decide nevada doenst have defined intent, generally kind of seems like single intent tho "if the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability." DAMAGES: nominal: 1$ economic: all expenses endured as result of the battery pain and suffering: not objective punitive damages: willful or malicious conduct: used to dissuade others from doing the same thing Children/phys disabled/mentally diabled: children can be liable in most states mentally disabled- can still have intent physically disabled: reasonable under the circumstances

sovereign immunity

(limits duties) 1. You can't sue the US unless you have permission 2. Or individual states without permission 3. Because they are sovereigns 4. But we still have suits against them a. But restricted immunity has been waived

Misfeasance

(negligence in doing something active) but

Intentional infliction of emotional distress

(people use this when they don't really have a better tort to use) Elements: a. Extreme and outrageous conduct - utterly intolerable in community b. Intent to cause, or disregard substantial probability c. Causal connection between the conduct and injury d. Severe emotional distress 1. Just because it is not something that should be accepted, does not mean it meets the extremely high standard of extreme and outrageous. a. Courts need to consider the relationship of the parties. b. Act may be outrageous if there is repeated conduct and/or abuse of power. c. If it is an IIED because someone else was killed, it typically must be a member of the family to the victim and that person must have been present during the outrageous conduct.

Manufacturing defects

(products liability) strict laibility § . Unreasonably dangerous defective condition § 2. Defective condition when left manufacturer (∆)'s control 3. Proximate cause 1. Production Flaws a. Can occur even if there is nothing wrong with the product design, the product simply comes off the production line containing some flaw. 2. Consumer Expectations Test a. Asking whether the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it. 3. Elements a. Must show the product was defective, and the product was the actual and proximate cause of injury. b. Lee v. Crookston Coca-Cola Bottling: Coke bottle exploded in hand. No evidence that anything happened to the bottle that would cause it. i. The court found that circumstantial evidence would be sufficient to show strict liability for a dangerously defective product. Plaintiffs usually have the most difficulty in proving that a product was defective when it left the defendant's control. A plaintiff must eliminate the probability that conduct by parties other than the defendant caused the defect. The trial court should have allowed the jury to determine whether it was more probable than not that the defect existed when it left the company's control. c. Mexicali Rose v. Superior Court: Person ordered chicken enchilada. He swallowed a one-inch chicken bone. i. If the injury-producing substance is natural to the preparation of the food served, it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective. What the consumer expectation of something is could change overtime.st

impoundments and nuisances

(strict liability) 1. Escaping impoundments a. Escape of something held on land by defendant that was likely to harm others if escaped. b. Rylands v. Fletcher: Plaintiff operated a mine. Defendant operated a mill in the vicinity and had contracted to build a pond to supply water. The pond broke the weak ground underneath and flooded the plaintiff's mine. i. The plaintiff's right then has been infringed; the defendant's in causing water to flow to the plaintiff have done that which they had no right to do. 2. Nuisance A defendant's acts - often a use by the defendant of his own land - substantially interferes with the plaintiff's use and enjoyment of her land

Animals

(strict liability) 1. Trespassing Animals a. Owner of livestock or other animals (other than cats and dogs) that intrude on another person's land, is subject to strict liability for physical harm caused by the intrusion. i. Extends strict liability to any injury resulting from animal intrusion upon land that is characteristic of such intrusion, which may include personal injuries. 2. Abnormally dangerous animals a. Strict but limited liability for owner of an animal that has "dangerous tendencies abnormal for the animal's category." i. Imposed only if the owner knows or has reason to know of the abnormally dangerous tendencies and liability attaches only if the harm ensues from that dangerous tendency. 1. One bite Rule 3. Wild Animals a. Wild by nature animals have strict liability imposed for injuries connected to the wild characteristics of the animal i. Person in charge will be liable despite all possible care

Abnormally dangerous activities

1. 2 Part Test a. The activity must create "a foreseeable and highly significant risk of physical harm and even when reasonable care is exercised by all actors" and b. The activity is not one of common usage. 2. Restatement 2nd a. Activities must be i. Inherently dangerous ii. Can't be mitigated by care iii. No common usage b. Dyer v. Maine Drilling: Dyer and sons' house was damaged by the drilling company blasting rock nearby. i. Court adopts 2nd Restatement. Reynolds held that blasting was a reasonable and lawful use of land. However, the court realized that blasting is inherently dangerous. It was remanded for a strict liability analysis. 3. Common Usage Rule: a. If the activity is normal, there is no strict liability, so long as appropriate care was taken.

i. School-Student

1. A child while in school is deprived of the protection of parents or guardian. Therefore, the actor who takes custody of a child is properly required to give him protection which the custody or the manner in which it is taken has deprived him.

Negligent entrustment

1. A person in control of a chattel owes a responsibility not to entrust that chattel to a person whom the entruster knows, or should know, at the time of entrustment, is likely to use it in a dangerous way.

prenatal and preconception injury

1. A pregnant mother does not owe a duty of care to her unborn child and cannot be liable in tort for her negligence that harms the unborn child. A court determines whether a duty exists by examining social values, public policy, and current customs. Potential liability would be limitless and there is nothing to enforce it. a. Remy v. MacDonald: Mother is sued by child because mother negligently caused a car accident, causing child to be born premature. i. The court held a pregnant mother owes no duty of care to unborn child and cannot be liable for negligence that harms the child. A court determines whether a duty exists by examining social values, public policy, and current customs. The court argues that the potential liability would be limitless and there are no social policies or customs to enforce this claim. 2. Others may be liable for injury to an unborn child so long as it was foreseeable. Foreseeability alone does not establish duty, but a duty of care may be owed to someone who may foreseeably be harmed even if the person is unknown or remote in the time or place. There must be a clear line/causal link.

Dram Shop Statutes

1. A statute that provides a cause of action against a vendor of alcohol for injuries caused by serving alcohol to a visibly intoxicated person. a. Brigance v. Velvet Dove Restaurant: Party was served alcohol even though employees knew he drove to the restaurant. He left and got in a car crash. i. The court held that even without a dram shop statute, one who sells intoxicating beverages for on premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. NEVADA: 2. Nevada cuts off liability entirely and says the only person liable for injury is the person using the alcohol, not the person who provided the alcohol.

Nonfeasance in performance of a contract

1. A tort duty arises out of a contractual relationship where one party fails to fulfill the contract duties. a. Langlois v. Town of Proctor: Plaintiff arranged with the town to turn off the water to her building. The Town sent a notice the water was shut off. It actually wasn't and the building was damaged. i. The court found the Town failed to perform a promise so they could be liable because the Town employee undertook the duty by promising to turn the water off.

Undertaking

1. An actor ordinarily has a duty to exercise reasonable care when he creates the risk of physical harm. 2. There is a duty to continue conduct to protect a class of persons where one has begun the protection and not continuing that action may cause harm to the intended protected person.

alternative liability (factual cause)

2 independent tortfeasors may be held jointly liable if it is not possible to tell which defendant caused the injury. Defendants have to absolve it themselves. a. Summers v. Tice: Quail hunting, defendants negligently shot birdshot, both hitting plaintiff, but it was unclear which one did more damages (grazed shot v. shot to eye).

Defenses to products liability

1. Comparative fault and assumption of risk a. Comparative fault is only relevant if the plaintiff agreed to assume risk or misused the product in an unforeseeable manner. i. Bowling v. Heil: Dump truck made by Heil would not descend. Plaintiff crawled underneath to reach a lever and the truck bed fell, killing the plaintiff. The defendant claimed contributory negligence. 1. The court ruled contributory negligence is not a defense. It is only relevant if there was an agreed assumption of risk or the product was misused in an unforeseeable manner. 2. Misuse a. Misuse is not a defense, it is part of the cause of action. The plaintiff needs to show they were not misusing the product or using it in a reasonably foreseeable way. i. Hughes v. Magic Chef: A stove exploded in a mobile home when the pilot lights were out. The court allowed a misuse instruction and the jury found for Magic Chef. 1. This court reversed based on the assumption of risk being included in the contributory negligence instruction. Misuse defense should not have been used in strict liability. Misuse will only come into play when the injured party uses the product in an unforeseeable and wrong way.

inkeeper

1. Duty to protect in addition to heightened standard 2. The common law principle is when something is missing in your room, the innkeeper is liable for it. 3. 2 components a. Special relationship duty to protect i. In Nevada it's to those that are foreseeable b. Innkeepers were insurers for property their guests have i. In Nevada it is limited to $750 c. Estate of Smith ex re. Smith v. Mahoney's Silver Nugget: Smith got shot by 3rd party at Silver Nugget. Smith tried to argue the murder was foreseeable and that Silver Nugget owed a duty of care. i. The court found Silver Nugget did not owe a duty because the murder was not foreseeable based on the prior similar incidents test (there had only been other smaller crimes in the parking lot, not a shooting in the casino). 4. Nevada Notes: a. NRS Foreseeable i. The owner or keeper failed to exercise due care for the safety of the patron or other person on the premises; or ii. Prior incidents of similar wrongful acts occurred on the premises and the owner or keeper had notice or knowledge of those incidents

Negligent Misrepresentation

1. Elements a. Misrepresentation or omission of a fact b. That is material or significant c. That the defendant failed to exercise a degree of diligence and expertise the public is entitled to expect d. The plaintiff reasonable relied on the representations e. Plaintiff suffered damages as a direct and proximate result of reliance

Malicious Prosecution

1. Elements a. A prosecution b. The defendant instigated c. Defendant acted with actual malice d. Defendant acted without probable cause e. plaintiff won thhe case 2. Probable cause and Actual Malice are difficult standards to overcome. 3. Recovery is typically only available when there is an arrest or other special damages.

intentional misrepresentation (fraud)

1. Elements a. A representation, or where there is a duty to disclose, concealment of fact, b. Material to the transaction c. Made falsely with knowledge of falsity or recklessness, d. With intent of misleading another into reliance, e. Justifiable reliance upon the representation or concealment, and f. Injury proximately caused by reliance.

i. Commercial Disparagement (Slander of Title)

1. Elements a. Some interest in the property b. That the words published were false c. That the words were published with malice, and d. That the plaintiff suffered pecuniary loss or injury as a result of the false statement 2. Interference with contract a. Inducing breach of contract is a tort b. There must be intent to induce breach c. Good faith is a defense 3. Commercial publicity (privacy) a. Court recognizes the fame or celebrity status someone has built an asset or some kind of property that can be damaged. b. The right of publicity protects the right to control the commercial value of one's identity. c. The person could recover for the damage.

Fear of toxic exposure

1. More likely than not rule a. A plaintiff may recover damages for fear of cancer or other injury relating to toxic exposure alone if the plaintiff proves the defendant's negligence exposed the plaintiff to toxic exposure and the plaintiff's fear stems from a knowledge that it is more likely than not that the exposure will cause future injury. i. Potter v. Firestone: Defendant improperly disposed of toxic substances. Plaintiffs did not have any present injuries other than fear of developing cancer, and sued for NIED. 1. The court held a plaintiff may recover damages for fear of cancer alone if the plaintiff proves the defendant's negligence exposed the plaintiff to a carcinogen and the plaintiff's fear stems from a knowledge that it is more likely than not that the carcinogen will cause the plaintiff to develop cancer in the future. ii. Norfolk and Western Railway v. Ayers: Fed employers liability against railroad because negligently exposed to asbestos and contracted disease. Had mental anguish and fear of cancer. 1. Once liable for bodily harm, answerable for damages and emotional disturbance from bodily harm. Concern of bankrupting asbestos companies so the people who actually develop cancer won't get recovery.

Misfeasance in the performance of a contract

1. Everyone has a duty to act as a reasonable person under the circumstances, but if you are hired to do something, you must act as a reasonable professional under the circumstances or you may be held liable for tort. a. Affiliated FM Ins. V. LTK consulting: An electrical problem caused a fire to break out on a monorail car while in motion. LTK was contracted to examine and recommend repairs of the monorail system (before the accident). AFM sued LTK alleging they failed to make the repairs. i. Independent duty doctrine: an injury is remediable in tort if it can be traced back to a breach of a tort duty arising independently from the terms of a contract. 2. Economic Loss doctrine a. Bars negligence claims if the plaintiff has suffered only economic loss, even if there is no privity of contract between the plaintiff and defendant. i. We don't allow people to bring tort suits because tort is about injury and we want to limit injury ii. Always look for an injury if not there is no proximate cause.

states and supremacy clause

1. Fed law is supreme over state law 2. Fed gov. can only use the power it has, it has abrogated state sovereign immunity under the commerce clause. 3. The immunity won't apply when a. The officer acts in an individual capacity but exercises state power b. State authority is done when a state officer does things illegally i. Ex. Sue Gov. Sandoval as the gov. of NV vs. Suing Gov. Sandoval the person 4. Equal protection/due process a. Suits brought against states for constitutional violations (due process) can still be brought without sovereign immunity if you have a fed claim 5. Government contractor immunity a. If the contractor fulfills the contract, you can't sue him for damages that occurred within the contract itself. You can if the damages went outside the scope of the contract.

Exceptions to the no duty to act rule

1. If a person knows or has reason to know that his conduct whether tortious or innocent, has caused harm to another person, he then has a duty to render assistance to prevent further harm. 2. If a person has created a continuing risk of harm, even innocently a duty arises to employ reasonable care to prevent or minimize that risk from coming to fruition. 3. If a statute or ordinance requires a person to act affirmatively for the protection of another. 4. Liability exists where the individual undertakes care for another. a. Wakulich v. Mraz: 16 y/o dared by Mraz brothers to drink entire bottle of liquor. She got sick and vomited on herself. They cleaned her up and put her downstairs on the couch. They prevented others from calling 911 and brought her to a friend's house. The friend took her to the hospital and she died. i. Undertaking doctrine: liable for the harm for failure to provide reasonable care. Need to begin affirmative conduct to begin undertaking. They took on the obligation to rescue, so they have a duty to rescue safely/reasonably. 5. Nonfeasance does not typically produce liability, but a court must determine the existence of a duty by balancing notions of fairness, public policy, common sense, and morality. a. Podias v. Mairs: Drunk underage kids hit a guy on a motorcycle and did not take any action to help him. They did make a lot of phone calls to other people. The passengers urged the driver to not take action. They ultimately fled the scene a while later. i. The court determined that the driver and passengers had a duty to act. The driver had a duty because he caused the accident. The passengers had a duty because they affirmatively intervened in action and the harm that might occur was foreseeable.

Intentional torts of employees

1. Intentional torts of employees can be within the scope of employment but the act must have a causal nexus to the employee's work. a. Was it incidental to the employee's duties or reasonably foreseeable in light of the employer's business? b. Montague v. AMN Healthcare: Drummonds was hired as a medical assistant. Plaintiff was also a medical assistant. They had a disagreement one day and a few weeks later, Drummond admitted she poured acid in plaintiff's water. i. Did not fall in the scope of her employment because it was not incidental to the employees duties or reasonably foreseeable in light of the employer's business.

Evidence of conduct in regards to breach

1. Plaintiff must present sufficient evidence of existence of material issue of fact. plaintiff must show def. knew or should've known of te danger i. The plaintiff must present sufficient evidence of a material issue of fact in a negligence claim and did not do so here. Can't infer negligence. 2. Jury is the fact finder and the court will not overturn the jury verdict unless it is contrary to the overwhelming weight of credible testimony. . i. Court held that the jury determines the weight of testimony and credibility and it is not for the court to overturn the verdict. 3. Circumstantial evidence may be presented as inference of a fact, and generally is entitled to as much weight as direct evidence. a. Thoma v. Cracker Barrel: Thoma slipped and fell in Cracker Barrel. i. The court held the defendant need only have caused or have had actual constructive notice of a dangerous condition to be negligent. Constructive notice occurs when the defendant would have discovered a dangerous condition upon exercising reasonable care. Circumstantial evidence can establish this.

Governmental Actors (duty)

1. Public entity owes no duty unless they exercise substantial control over the victim. a. DeShaney v. Winnebago County: Social services had reason to think child was being harmed and abused. Sued because they were violating his rights to due process. i. No restriction on his freedom because he was not in a worse position than if they did act.

Abuse of process

1. Requires a willful use of process in an irregular way with some ulterior motive (other than money). 2. SLAP Suits: Strategic Litigation Against Plaintiffs a. Motive for ordinary civil litigation is a strategic attack based on some unrelated dispute (Ex: trespass suits against environmental protestors). b. Many states have adopted anti-slap suit legislation

Negligent infliction as ordinary negligence

1. Some jurisdictions hold that NIED should be analyzed under a general negligence approach. The plaintiff still needs to prove the 5 negligence elements (duty, breach, actual harm, factual cause, proximate cause). There must be severe emotional distress, but abandons the physical manifestation rule. a. Camper v. Minor: Camper was driving a cement truck. A 16 y/o had been stopped at a stop sign but pulled out in front of the plaintiff. The vehicles collided and 16 y/o was killed and Camper went to the front of his vehicle and saw her dead. i. NIED should be analyzed under a general negligence approach. Plaintiff must prove 5 elements of negligence. Severe emotional distress required.

Recreational statutes

1. Some states have statutes which immunize landowners from liability when they open their land up to public use for free.

states duty immunities

1. Sovereign immunity for the state a. NV has not waived sovereign immunity vis a vis the fed gov b. BUT NV has waived immunity for itself and its political subdivisions i. In many states, political subdivisions are just corporations (public corporations) and not instrumentalities of the state 1. The city can't claim sovereign immunity c. But here in NV, cities are instrumentalities of the state of NV and can exercise sovereign immunity (but they have waived it) 2. Can bring actions against a city/county/authority/board but your recovery is capped at $100,000. You can get interest but not punitive damages. 3. NV vigorously embraces common law immunities. a. Absolute immunity i. No suit at all ii. Judicial immunity - within the judicial capacity iii. Legislative immunity - within legislative capacity b. Qualified immunity i. Good faith immunity ii. Applies to all executive officials while fulfilling their role (police) iii. Unless reasonable officers in their circumstances would know it was illegal. iv. Discretionary decisions--where a state official has a choice of how to do things, you can't sue them for making a choice that is discretionary action: if they have the power to make the choices, that could be sued. v. Public Duty doctrine 1. Police are not required to help you 2. Can't typically bring an action for them not providing their services to the general public 3. These services are to the general public and not any particular person vi. NV is active in identifying individual immunities 1. Employers who provide childcare 2. Employers who make recommendations for employees 3. Sports officials 4. Owners of public art 5. Food banks/people who make good faith donations to food banks 6. Victims of felonies are immune from suit from the felon 7. Charitable organizations c. State employees are subject to a $100,000 cap when they are sued 4. NV does not embrace immunities of parents and spouses

Survival statute

1. Suits against decedent or survival of decedent's debt a. If suits are still viable and haven't been dismissed, then those suits can go forward and plaintiffs can recover all damages except punitive against the dead person's estate. Meant to change behavior, not to punish the dead. 2. Suits by decedent's estate, then all damages are available. a. Legislation distinguishes those suits and wrongful death suits. If injury causes death, the representative brings a wrongful death suit for injuries that cause death. b. There are no restrictions on survival actions. The heirs of decedents will say the accident was linked to death. Even if it restricts damages, it permits them to recover for their own damages they normally would not recover because consortium is not permitted in non-death cases.

Vicarious liability "respondeat superior"

1. The employer could be liable for torts committed by employees within the scope of employment. 2. Policy: a. To prevent recurrence of tortious conduct b. To give greater assurance of compensation for the victim and c. To ensure the victim's losses will be equitably borne by those who benefit from the enterprise that gave rise to injury. 3. Scope of employment - fact question a. Did the injury arise under the course and scope of employment? b. Employee's conduct is within the scope of employment if it is of the same general kind as authorized or expected, and the employee was acting within authorized time and space limits. c. Some courts impose a purpose or motive - that the employee's action was motivated at least in part to serve the employer. d. Scope of employment does not have a definitive measure anywhere. e. Scope of employment is not temporarily suspended when the employee briefly and reasonably acts for their own personal comfort (smoke breaks) f. Riviello v. Waldron: Waldron was employed as a cook at a pub, and was talking to a customer and flipping around a knife. The knife accidentally hit the customer in the eye. i. The test has come to be whether the act was done while the servant was doing his master's work no matter how irregularly or with what disregard of instruction. This was found to be in the scope. g. Fruit v. Schreiner: Life insurance salesman goes to convention he was required to go to. He was drinking and hit someone driving from a bar. i. Found the employer liable because it was within the scope of employment. He was motivated in part to meet out of state guests and learn about their sales tactics. h. Edgewater Motels v. Gatzke: Gatzke was on call 24 hours while supervising a new restaurant. After working into the night, he returned to the motel and smoked a cigarette. A fire started because of the cigarette. i. The court found that smoking could be in the scope of employment because reasoning that employment is not temporarily suspended while an employee briefly and reasonably acts for his own personal comfort. There is no precise rule and scope of employment is determined on a case by case basis. Here, it could be for employers benefit because employee was filling out an expense report. COMING AND GOING RULE: 1. Employer is not responsible for employee actions on the typical commute. 2. Exceptions: a. When the commute is for the benefit of the employer b. Where the employee is on call as long as the particular tortious act was otherwise within the scope of employment c. Where the employer requires the employee to drive his or her personal vehicle to work so the vehicle may be used for work related tasks d. Where the employer, either by general policy or specific directive, instructs the employee to carry out some job-related errand during the commute 3. Hinman v. Westinghouse Electric: Hinman was employee of Westinghouse, was driving home from a job site when he collided in the car. Hinman received compensation for his travel time and community expenses. a. An employee going to or from work is considered outside the scope of employment, unless the trip involves and incidental benefit of the employer. If employee contracts for pay during driving then employer is liable during their driving time. INDEPENDENT CONTRACTORS 1. Subject to limited exceptions, a person who hires and independent contractor to perform work is not vicariously liable for the torts committed by the independent contractor. a. The company is not liable for negligent acts if they do not exert control over the equipment used, manner of work, or direction or management of employees. b. Possibly liable if dangerous work creates a risk of harm that is foreseeable. c. Mavrikidis v. Petullo: Petullo brothers hired to supply asphalt. Drove truck through red light, striking plaintiff. Asphalt was negligently filled in the truck and it spilled, causing damage. i. The company was not liable for negligent acts if they do not exert control over the equipment, manner of work, or direction of employees. Petullos had a separate business and retained control over their equipment and method of use. No vicarious liability here. d. Pusey v. Bator: Hired armed security guard. Did not instruct on methods to protect. Shot and killed someone and brought an action against the brothers. i. The court said they were vicariously liable because dangerous work creates risk of harm. The work must involve inherent and foreseeable risk of physical harm to others. e. O'Banner v. McDonalds: O'Banner used the bathroom and slipped. A franchisee owned the restaurant. i. The mothership can be liable for the agent's negligence if the injured party relies on that agency. O'Banner did not rely on that agency when he came to restaurant because they were just using the bathroom. A brand relationship can exist - if he went to McDonalds because they always have the cleanest bathrooms and market it, but that was not the case.

Landlord duties:

1. The landlord has a duty to exercise ordinary care in maintenance of leased premises. The court abandoned the rule of reasonable safe condition for the lessee. a. Pagelsdorf v. Safeco Insurance: Helped move furniture when porch collapsed. Railing was defective so sued the landlord. Landlord found to have no knowledge of the issue. i. Landlord has a duty to exercise ordinary care in maintenance of leased premises. Court abandons rule for reasonable safe conditions because it is an outdate rule from England. 2. Exceptions: a. Liable for dangerous condition if landlord contracts to fix it b. If he knows the defect existed at the time the tenant took possession c. When it is leased for public use d. Retained in the landlord's control e. Landlord makes negligent repairs

Action as a promise or undertaking

1. There is a duty to continue conduct to protect a class of persons where one has begun the protection and not continuing that action may cause harm to the intended protected person. a. Florence v. Goldberg: School normally provided crossing guards and had done so consistently for 2 weeks, so mother let child walk to school alone. That day, there was no crossing guard, and child was hit. i. Normally, a municipality would not be liable for failing to protect, but here the school district was liable because they failed to continue a protection they had previously engaged in. The mother relied on this protection.

Defendant's relationship with dangerous persons

1. There is generally no duty to control conduct unless there is a special relationship. The duty of care is "directly and foreseeably exposed risk of bodily harm." a. Dudley v. Offender Aid: Career criminal engaged in starting fights and setting fires is permitted to live in halfway house. He broke into near apartment and brutally raped someone. i. No duty to control conduct unless in a special relationship, the duty of care is "directly and foreseeably exposed risk of bodily harm" 2. Courts look at professional standards to determine what people might be liable for. 3. For a doctor to have a duty to warn, there must be an identified person. a. Tarasoff v. Regents of University of California: Person killed plaintiff. Plaintiffs parents alleged that killer confided in psychologist employed by the University. The psychologist allegedly had campus police detain killer but released him when he seemed reasonable. i. When a therapist learns from patient about intent to do harm on a 3rd party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger. Court says the psychologist had a duty to warn here. Look at the professional standard to see if the psychologist is liable.

landowner duties:

1. Traditional scheme classifies entrants on the land to define duty owed. a. Trespassers i. No legal right to be on another's land and enters the land without owner's consent. ii. Landowners don't owe anything to trespassers except to refrain from willful or wanton conduct. iii. Attractive Nuisance: 1. A possessor of land is liable for harm to a child trespasser caused by an artificial condition: a. Invitee i. Any person on the premises (1) at least in part for the pecuniary benefit of the landowner or (2) who is on premises held open to the general public. ii. Example: Social guests (has a duty to warn of known dangers - these used to be licensees, but now are generally considered invitees) iii. Landowners owe a duty of reasonable care b. Licensee i. Duty to warn but no duty to avoid harm ii. Someone who is on the land with permission, but with limited license to be there. a. Many jurisdictions (including NV, total about 12 ish states) decided to get rid of the 3 entrant categories, so the duty of care is just the reasonable person under the circumstances for everyone. i. The categories still matter to inform what a reasonable landowner under the circumstance would do, but they do not set the official standard duty of care. 1. Open and Obvious Hazards - Comparative Fault a. A condition that is obvious when, objectively, both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and judgment. b. Precludes liability UNLESS the landowner could anticipate the harm would occur. If the landowner could anticipate harm, open and obvious danger will not automatically relieve the landowner from the general duty of reasonable care.

i. Firefighter Rule

1. When firefighters/police officers are hurt on the job, they can't sue the person who caused the negligence that injured them. a. Minnich v. Med-Waste: Minnich, a public safety officer, was injured by a truck owned by Med-Waste and Minnich tried to bring a negligence claim against them for his injuries. i. Some jurisdictions adopt the firefighter rule, which precludes public employees from recovering for defendant's negligence that cause the injury. Many states have limited the rule by imposing a duty owed to firefighters to warn of reasonably knowable dangerous conditions. Many states have abolished the rule because they think it can be handled under tort law. 2. Policy: a. They are paid and trained to take these risks and workers comp is provided to handle these kinds of claims. b. We don't want to hold people liable for negligence or else they might not call for help.

Negligence per se

4 PART TEST · 1. Regulations clearly defines the standard of care · 2. Harm is of the type regulation was meant to prevent · 3. Class of persons applicable to · 4. Violation is proximate cause of injury CANNOT BE USED AS AFFIRMATIVE DEFENSE · Five Categories of Excuse for violation of legislative enactment is not negligence · Violation is reasonable because of actor's incapacity · Neither knows nor should know of the occasion for compliance · Unable after reasonable diligence or care to comply · Confronted by emergency not due to his own misconduct · Compliance would involve greater risk of harm to the act or others NOTES: Violation of a statute is negligence per se where the plaintiff will have established a conclusive presumption of duty and breach of duty when the defendant violated a statute. 1. Under negligence per se, the statute creates the duty and the violation of the statute is the breach of duty. Nevada Notes: 1. Violation of statute establishes duty and breach elements of negligence only. a. Anderson v. Baltrusaitis: Pedestrian sues driver when driver hit him while pedestrian was outside crosswalk. NV has law that pedestrians must stay in crosswalk. i. Plaintiff did not violate statute (negligent per se) but this violation does not preclude him from recovery. Additionally, the jay walking statute was not meant to protect drivers. b. Ross v. Carson Construction: Plaintiff went to work site and drove into big ditch and broke his neck. He sued for negligence for failure to barricade a hole per NV statute. i. Statute was meant to protect people from falling into unprotected holes, so the defendant was negligent per se unless the plaintiff was a trespasser. Jury question.

Negligent Infliction of Emotional Distress

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct: places the other in danger of immediate bodily harm and the emotional harm results from the danger. 1. Zone of Danger Test a. Usually requires plaintiff to prove he was immediately threatened with physical injury. b. The plaintiff must have been very close to the possible injury and had great fear of it. c. Historically, you were only harmed and could recover if you were actually touched. i. Stacy v. Rederiet Otto: Plaintiff owned a small fishing vessel, came close to being hit by a big freighter, and then watched said freighter hit another small fishing boat. 1. A tort is committed by a defendant subjecting a plaintiff to emotional harm within the zone of danger created by the conduct of the defendant. Here plaintiff was within the zone because he was almost hit and witnessed the other boat get hit. 1. Foreseeability test: adopted by most states a. Whether plaintiff was located near the scene of the accident b. Whether the shock resulted from a direct emotional impact on the plaintiff from a sensory and contemporaneous observance of the accident. c. Whether plaintiff and victim were "closely related" i. Dillon v. Legg: Mother and infant sister saw a vehicle strike young child. Sued driver for NIED. The trial court granted motion for judgment because plaintiff was not in the zone of danger. 1. Eliminates the zone of danger test as artificial. Adopts the foreseeability test.

Breach

Breach of duty is the negligent act that was within the person's duty of care · Negligent only if his conduct created a foreseeable risk and the actor recognized, or a reasonable person would have recognized, that risk An actor is negligent if the conduct created a foreseeable risk. If a reasonable person in the defendant's circumstances would not foresee any danger, the defendant is not negligent. real life is not valued over property is is not a breach to not risk ones life to save property Employers are generally liable for injuries due to an unsafe workspace but liability is ended if the employee's knowledge of the dangers is equal to or greater than that of the employer. The employee would more reasonably foresee the danger over the employer. NEVADA: Drivers of emergency vehicles must exercise reasonable precaution against the extraordinary dangers of the situation which his duty compels him to create. If Driver's can't anticipate or foresee danger, they won't be liable private standard or common custom: Industry customs are not binding in a court, but they are persuasive evidence of negligence but not definitive. Customs (like handbooks or employee manuals) do not set higher standards of care over the reasonable person standard. Higher standards can only be evidence to show what ordinary care is, but it does not set a higher standard. The court is not limited to the customary behavior because a reasonable person under the circumstance can act higher than the custom. Failure to use technology that promotes safety is negligent when the technology is relatively cheap and readily available, even it the use was not common custom of the industry. compliance with a statutory is the standard, and will not work as affirmative defense.

duplicative vs. preemptive causation

Duplicative is when 2 harms are coming, one does the harm before the other, but the second would do the harm if the first hadn't done so already. think starting the fires Preemptive is where the harm of one party cuts off the harm of the other. shooting and the cup of tea

libel and slander

ELEMENTS o Defendant negligently published o Plaintiff must show false and defamatory statement o Concerning the plaintiff o Damages (not always) Libel & Slander 1. Libel is printed, slander is spoken 2. Both require publications but now how we always ordinarily know it a. Telling a third party in any way, usually has to be a large enough number of people to cause harm. 3. The reference to the plaintiff does not have to be overt just has to suggest harm to their reputation. a. Jury question, unless it is so obvious or not that it was harmful to reputation. 4. Recover is most often available for serial publication 5. Presumed damages a. You don't have to show damage, damage is not part of the prima facie case. b. You will get nominal damages and the jury will be charged with making up a number (similar to punitive damages) c. Very close to strict liability 6. Defenses a. Lack of truth as part of the prima facie case. The plaintiff has to show the claims are not true rather than the defendant using truth as a defense. 7. Privileges a. Litigation i. In NV, there is a broad approach, participating in litigation lets you make up stuff without making you potentially liable for libel or slander. b. Executive i. Only qualified privilege, the privilege is revoked if the act is with malice. c. Legislative i. Federal legislators have the privilege to make defamatory statements in the course of official duties. d. Privilege to communicate one's own interest, interest of third persons, or in common interest of publisher and recipient. i. Permits defendants in some cases to indulge in self-defense, protection of loved ones, and sharing of important information within a group. e. Privilege to report information pertaining to crime to appropriate officers. f. Privilege to report a public document, meeting, or activity. g. Fair comment i. Privileged to comment about accurately stated facts concerning some matter of public concern, including political, social, and artistic matters. h. Statutory privileges or immunities i. Statutes can make more privileges. 8. Public figures have a hard time suing for libel or slander because they have to prove the publication was false and made with malice or reckless disregard - New York Times case a. Typically only applies to politicians and celebrities, not just well known people.

Legal malpractice

ELEMENTS: 1. Attorney-client relationship 2. Duty owed to client 3. Breach of the duty 4. Breach as proximate cause of client's damages 5. Plaintiff must demonstrate that the claim underlying the malpractice action would have been successful if the attorney had acted in accordance with his or her duties. i. Policy favors limiting litigation malpractice claims to cases where evidence can be discovered to show that a better result would have been achieved "but for" the attorney's malpractice. 1. Wacht v. Peel & Brimley: Wacht sued attorneys for malpractice alleging their negligent failure to conduct discovery leading him to lose his case and settle. a. The court found they could not conclude it was the attorney's fault he had to settle because the Bank could have foreclosed anyway and Wacht himself agreed to the settlement, so the attorney was not the but for cause of the settlement. ii. Violation of ethics rules do not create a cause of action, only relevant to determine if the standard of care was breached. iii. SOL do not begin to run until the underlying legal matter is concluded.

Privacy

ELEMENTS: · Plaintiff as expectation of privacy · Invasion · That is highly invase to reasonable person 1. Privacy is limited to reasonable expectations 2. Intrusive Invasion a. Only available in limited spaces where there is a reasonable expectation of privacy. b. Most invasion of privacy cases are trespass cases so damages that flow are typically connected to trespass. 3. Public revelation of private facts a. You get things not expected to be public but are published (hacking) 4. False Light a. Elements i. The defendant published some information about the plaintiff ii. The information must portray the plaintiff in a false or misleading light iii. The information is highly offensive or embarrassing to a reasonable person of ordinary sensibilities iv. The defendant must have published the information with reckless disregard as to its offensiveness b. When a person is depicted in a way that inaccurately characterizes them i. Begs remedy for photoshop ii. Many states are moving away from this because it is basically defamation 1. ****Prof White's favorite tort

Medical Malpractice:

Elements are the same as negligence i. Duty is of a reasonable doctor/professional under the circumstances. 1. The standard of care is the degree of care, skill, and proficiency which is commonly exercised by ordinary careful, skilled, and proficient physicians, at the time of the operation and in similar localities (modified locality rule. 2. Requires expert testimony to establish the standard of care, whether there was breach, and if the breach was the actual cause. Medical standards almost always reflect particular customs or procedures under very particular circumstances. a. Walski v. Tiedenga: Defendant removed plaintiffs thyroid and instead of locating the nerve, he made a wide cut to avoid area but hit the nerve anyway, causing paralysis of vocal cords. i. In med mal, a plaintiff must establish a generally accepted standard of care by which to measure the defendant doctor's conduct through expert testimony. Expert testimony here did not establish the standard of care universal throughout the medical community. Medical standards almost always reflect particular customs or procedures used under very particular circumstances. 3. Locality rules tried to balance the differences between rural and urban medical practice. 4. Locality rules are typically not applicable in today's society because of modern technology. a. Factors to consider are the locality, advances in the profession, availability of resources and facilities and whether the doctor is a specialist or a general practitioner. b. Vegara v. Doan: Plaintiff was born, had complications supposedly due to doctor's negligence. i. Standard of care is the degree of care, skill and proficiency commonly exercised by ordinary careful, skilled, and proficient doctors at the time of the operation. 5. Specialists are held to the standard of care of other specialists. ii. Good Samaritan Statute: 1. All states have some form of this statute but the scope of immunity granted by such statute varies from state to state. a. Some include hospital care b. Some exclude hospital care c. Others don't say one way or another. 2. Liability for gross negligence: A milder version of the Good Samaritan statute leaves open the possibility of liability for gross negligence or for wanton conduct or intentional wrongdoing. a. Gross negligence has been defined as "the absence of even slight diligence" iii. Informed Consent 1. Courts can recognize a medical battery claim against a doctor however it is not usually used because there is no insurance in battery claims. 2. A physician owes his patient the duty to disclose, all significant medical info that the physician possesses or a reasonable physician should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure. a. This requires expert testimony as to what the doctor should know and about what is material for the patient to know. b. Material information is what would be significant to a reasonable person in deciding whether to submit to surgery or treatment. 3. Professional Standard (used by NV) a. Disclose risks based on industry custom, those that would have been made by a reasonable medical practitioner. 4. Emergencies a. The common law emergency exception has been said to apply when i. A medical emergency exists ii. Treatment is required to protect the patient's health iii. It is impossible or impractical to obtain consent from either the patient or someone authorized to consent for the patient; and, iv. There is no reason to believe that the patient would decline the treatment, given the opportunity to consent. b. Johnson v. Kokemor: The patient is entitled to information from surgeon that more experienced brain surgeons were available and had substantially better success rates than an inexperienced surgeon. c. Arato v. Avedon: Plaintiff diagnosed with cancer. Even though he indicated that he wanted to know, the doctor did not tell him that death was almost certain. He did not have time to get his things in order before he died. i. There is no duty to disclose statistical life expectancy. Just because a patient asks, it does not raise the duty of disclosure. d. Truman v. Thomas: Woman died of cervical cancer. Doctor told her she should get a pap smear but she refused but the doctor did not inform her of why she should get one. i. If a patient indicates that she is going to refuse a risk-free test or treatment the doctor has a duty to advise of all material risks of which a reasonable person would want to be informed. e. Brown v. Dibbell: After conference with defendant doctors, Brown underwent double mastectomy with some unfortunate results. She sued on informed consent theory. i. The jury found the doctor was not negligent in performing the surgery but was negligent in obtaining Brown's consent to surgery. the jury found a reasonable patient in the circumstances, if adequately informed, would have refused to undergo the surgery that was performed. The jury also found Brown was 50% negligent for failing to exercise care for her own health. Comparative fault was reversed on appeal. iv. Res Ipsa Loquitur in Medical Malpractice 1. The plaintiff's injury is more likely than not to have resulted from some negligence. 2. Where the plaintiff is unusually injured while unconscious in the course of medical treatment, all those defendants who had any control over the body or instrumentalities which might have caused the injuries may be properly called upon to meet the inferences of negligence by giving an explanation of conduct. 3. Without res ipsa, plaintiff would not be able to recover from defendant unless defendant voluntarily chose to disclose the identity of the negligent person and the facts establishing negligence. a. Ybarra v. Spangard: Plaintiff had surgery on appendix and after, had shoulder pain and lost use of arm. i. Court says the doctor in the operating room is the "captain of the ship" and is responsible for all negligence that takes place. This court decided the plaintiff did not show what happened or who was negligent, but unusual injuries while unconscious while the doctor controls the body, can properly infer negligence. b. States v. Lourdes Hospital: Surgery getting rid of ovarian cysts. Unexpected injury to arm being bent at an extreme angle. i. The plaintiff may use expert testimony in med mal to establish likelihood of injury in absence of negligence when a basis of common knowledge is lacking. The burden shifts to the defendant. May be used to bridge the gap with lay persons knowledge and specialized knowledge. v. Nevada Notes 1. Med Mal Statutes a. Cap on non economic damages is $350,000 per incident, no matter how many defendants. b. Liability is several, entitling defendant to instruction on the percentage of fault of settling defendants. c. Requires a claim to be dismissed unless accompanied by expert affidavit supporting allegations of negligence. i. Does not apply in res ipsa cases ii. Applies to claims against each defendant iii. Need only corroborate claims, not establish each element of negligence d. Rejects locality rule for judging malpractice e. Res Ipsa: Will get res ipsa instruction if: i. Foreign substance left in body ii. Explosion or fire during course of treatment iii. Unintended burn by heat, radiation, or chemicals iv. Injury to part of the body not initially in course of treatment v. Surgical procedure on wrong patient, limb, or organ f. Informed consent: Requirements i. Explain procedure in general terms ii. Explain alternative methods of (if applicable) treatment in general terms iii. Explain general nature and extent of risks, without enumerating such risks iv. Obtain signature of patient on statement explaining procedure, alternatives, and risks. g. Implied Consent: Emergencies i. The proposed treatment is reasonably necessary and delay could be reasonably expected to result in death, disfigurement, impairment, or serious bodily harm AND ii. A person authorized to consent is not readily available. h. Statute of Limitations i. Medical malpractice actions must be filed within 3 years of the injury date and within 1 year of the injury's discovery. Both deadlines are tolled when the health care provider has concealed. i. Tam v. Eigth Jud. Dist: Conrell died, alleging med mal that he was discharged without medications or subscriptions for essential medications, including insulin. He did not have access to insulin. He was awarded damages, but they were lowered to meet the cap. He tried to argue the cap was unconstitutional by violating the right to jury. i. The statute does not violate right to jury because it guarantees all factual issues are tried by jury. It does not violate equal protection because it is based on legitimate public policy concerns (limiting doctor insurance, medical innovation, limiting over-testing). j. Winn v. Sunrise Hospital: Patient's father filed med mal suit against hospital and surgeons after patient suffered extensive brain injury during heart surgery. Lower court entered summary judgment based on statute of limitations. i. The plaintiff argued the hospital withheld the records which limited his ability to secure an affidavit. The court held it was a fact issue to determine when the SOL began to run based on when he received the full medical records and whether the hospital hindered the pursuance of a claim. Tolling cannot be applied to the doctors because they did not hide the information and doctors are essentially independent contractors.

joint and several liability

Joint and several liability- when plaintiff picks one person to pay, then that person can try to collect from someone else

Assumption of the risk:

Many courts have abandoned and just use comparative fault when it comes to implied assumption In appropriate situations, the parties to a transaction should be able to agree which of them should bear the risk of injury, even when the injury is caused by a party's legally culpable conduct. That policy is not altered or undermined by the adoption of comparative responsibility. (Restatement 3rd) contractual or express assumption of risk: 1. Waivers are upheld typically for sport activities where the waiver was "freely bargained for even though it was a contract of adhesion. You can choose to do the activity or not. 1. However, waivers are not upheld when the party cannot really voluntarily contract to shifting the risk because they are seeking a public necessity that they can't get elsewhere, thus no free bargaining/consideration. (like hospitals) 1. Waivers and releases will not preclude liability if the negligence that caused injury was unrelated to the inherent risks of the activity that could have been easily mitigated through reasonable care. · It must be clear and unambiguous. · Held to higher standards/stricter scrutiny than other contractual terms · Must be conspicuous · Scope of the clause must expressly cover the claim being asserted · (1) Type of business generally thought suitable for public regulation · (2) Party seeking exculpation is engaged in performing a service of great importance to the public · (3) Service is often a matter of practical necessity for some members of the public · (4) Party hold himself out as willing to perform the service for anyone who needs it · (5) Because service is essential, providing party has advantage in bargaining strength · (6) Exercising bargaining strength, has contract of adhesion · (7) Purchaser is subject to risk of carelessness Primary 1. Assuming the risks inherent in the activity · Sports · Doing a dangerous job Seconday: 1. Voluntarily Encounters a known risk created by the defendants negligence · Dora climbing a tree 2. Plaintiff unreasonably accepts a known threat of danger in pursuing a particular course of conduct · You adopt the risk and take it on for yourself NEVADA: just uses comparative fault whhen it comes to implied assaumption these dont work for children Can't waive liability for reckless or intentional torts

Design defects

More like negligence Defective designs cause larger liability for companies because all of the products made that way are defective. It follows the consumer expectations test. 2. Proof of design defects a. Show the design defect b. Show the product was manufactured as designed c. Show the defect in the design was the actual and proximate cause of injury i. A design may be defective if it failed to perform as safely as an ordinary consumer would expect and it is dangerous to an extent beyond the ordinary consumer expectations. ii. An unreasonably dangerous defective design would either cause or enhance plaintiff injuries. iii. Typically need to show there is a safer alternative design. d. Leichtamer v. American Motors: Plaintiffs were passengers in a Jeep driven by Vance. Got in an accident and severely injured. Plaintiffs sued that though Vance was negligent, their injuries were enhanced by the roll-bar's displacement on the car. i. The court found the design is defective if the product failed to perform as safely as an ordinary consumer would expect and it is dangerous to an extent beyond the expectations of an ordinary consumer. An unreasonably dangerous defective design would either cause or enhance plaintiff's injuries. 3. Risk-Utility Test a. Is it more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner? Or b. If the benefit of the challenged design does not outweigh the risk inherent in such design c. Knitz v. Minster Machine: Defendant manufactured press. Defendant's machine usually required both hands out of the way for operation, but they designed a foot pedal that prevented that. Plaintiff lost fingers. i. A product design is defective and strict liability applies, if the design is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or if the benefits of the design do not outweigh the inherent risks of the design. The die press was defective because Minster failed to provide barrier around the danger to keep hands safe. d. Barker v. Lull Engineering: Plaintiff, inexperienced operator of an industrial loader, was hit by lumber falling off the loader when it began to tip. i. The product was defective when the plaintiff can show the product's design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design. Further, the burden shifts to the defendant to justify the design with the risk-utility balance. e. 5 Factors for analysis i. Risk utility - analysis the court is making about the design itself ii. Whether there is a substitute that would fit the same needs iii. Whether there is a safer alternative design iv. The risk of misuse v. The ordinary consumer's expectation f. Genie Industries v. Matak: Workers in a church were using an industrial lift when they used it the wrong way and it tipped over, causing Matak to die. i. A product manufacturer is not liable for a design defect unless a safer alternative design existed at the time of the incident and the defect at issue rendered the product unreasonably dangerous. Plaintiff could not show that there was a safer alternative design than the one that they were using so Genie was not found liable. g. McCarthy v. Olin Corp: Special bullets were designed to be extra dangerous, to tear open flesh. Sued for dangerous product. i. Manufacturers do not have duty to protect others from criminal misuse. Imposing a duty of care would be unlikely to prevent actions of third party. No special relationship existed so no control of the actions. Some jurisdictions say that even if the product is not defective, your insurer for what the cost of use is. o "RAD" - Reasonable alternative design - must also retain effectiveness/safety for all other users. [R3d] Costly expert testimony § 1. Economically AND Technologically feasible § 2. Would have saved this person from injury § 3. Wouldn't infringe on effectiveness of product § 4. Wouldn't make it less safe for others [equally protective for all]

Nevada fault system

Nevada uses modified comparative fault: more than 50% at fault then cannot recover

Public Duty Doctrine

No duty to specific individuals of the public unless the duty is assumed. The duty only arises once the undertaking occurs. (The police officer doesn't have a duty, even if you ask for help, unless he actually starts helping you.)

Nonfeasance

One person does not owe a duty to another to take active or affirmative steps for the other's protection. 1. People might be deterred by threat of liability from putting themselves in a position where they might be called upon to attempt a rescue, especially since failure to rescue might give rise to liability on the theory that a clumsy rescue attempt may have interfered with ta competent rescue by someone else. 2. There are boundless liability concerns if we require people to act. 1. An actor who has not created a risk of harm to another has no duty of care to the other unless a different affirmative duty applies (special relationship duty) a. Estate of Cilley v. Lane: Lane and Cilley broke up. Lane went to a neighbor, Ciley got a gun out of car and shot himself. Lane did nothing because she thought it was a joke. He could have lived if he got to the hospital earlier. There was summary judgment for defendant for negligent failure to assist. i. The court found that as a trespasser, she only had a duty to refrain from willful, wanton, or reckless conduct. She did not breach any duty here. It is not good for public policy to require people to assist others, even if contacting 911 is extremely easy. There would be boundless liability concerns.

implied assumption of risk

Primary: 1. Assuming the risks inherent in the activity · Sports · Doing a dangerous job Seconday: 1. Voluntarily Encounters a known risk created by the defendants negligence · Dora climbing a tree 2. Plaintiff unreasonably accepts a known threat of danger in pursuing a particular course of conduct · You adopt the risk and take it on for yourself 1. Primary: Inherently dangerous activities. Defendant has no duty to protect plaintiff. a. Complete bar to recovery. Plaintiff impliedly assumes risks inherent in a particular activity, so defendant owes no duty to guard against a particular risk of harm. BUT it does not bar recovery where the defendant's actions have unreasonably increased the risk of injury beyond those inherent in the activity for sports: If the conduct does not fall outside of the ordinary activity of the sport, there is an implied assumption of risk and no liability.

Wrongful death

The death of a human being; Caused by another's negligence, or with intent to cause harm; The survival of family members who are suffering monetary injury as a result of the death, and; The appointment of a personal representative for the decedent's estate. 1. The heir is the one entitled to succeed to the property of decedent. 2. Can sue person who caused the wrongful death on behalf of the estate or sue the representatives of the estate. 3. Can be joined with other actions that arose out of the same wrongful act 4. Can award grief and sorrow, loss of support, companionship, society, comfort and consortium, pain, disfigurement 5. Recovery by personal representatives include a. Special damages like medical expenses b. Punitive damages c. Does not include pain and suffering and the representative is liable for debts to be paid unless exempted by law. 6. Damages include: a. NOT the value of life b. Present net cash value of life expectancy c. Loss of companionship and society d. Pain and suffering of decedent between injury and death e. Punitive damages

Statute of Limitations

The goal is to allow people to move on with their life after a certain amount of time. You can't sue for injury after a certain amount of years. It also helps stopping stale evidence from polluting the court. The SOL typically runs from the date of injury and is not tolled during negotiations. The SOL for a tort claim runs from the date of injury and is not tolled during negotiations. The statute of limitations accrues beginning on the date of injury, and any subsequent treatment is immaterial. Statute of Repose a. The total amount of time in which you can bring an action. b. Tolling will not apply. i. Durre v. Wilkinson Development Inc: Pickup truck parked under sign and the sign fell. Sign was put up more than 10 years ago. 1. Summary judgment was granted because the statute or repose was 10 years. Repose is measured from the date of last culpable act of the defendant (putting up the sign). 4. Discovery Rule a. Where the SOL will not begin to run until at least i. All the elements are present and ii. The plaintiff discovers, or a reasonable person should have discovered, that 1. She is injured, and 2. The defendant has a causal role, or there was enough chance that the defendant was connected to the injury to require further investigation. 3. Discovery of the injury, not discovery of the cause of the injury b. Many courts say the plaintiff has a duty to investigate once they have notice of some facts and injury means an actionable injury. c. There is a focus on the injury itself, not the cause, and discovered in fact, or when a reasonable person should have discovered the injury. 5. Latent potential harm a. Accrual of the claim under the discovery rule is not delayed simply because the plaintiff doesn't know the full extent of the injury. b. Suing now means you are limited to only the damages you can currently prove. i. A growing number of jurisdictions are allowing a second suit for damages if a different kind of injury occurs later, caused by the same exposure. 6. Tolling and Grace periods a. Statutes of limitations may be tolled (paused) so that the clock is not running at all until some impediment to suit has been removed. b. Tolling for minors: i. State laws generally toll the SOL on a child's injury claim until the child has reached the age of majority. ii. Repressed memories: 1. When victims of child abuse repress memories so they do not sue until later. Some courts accept this with expert testimony, others reject. c. Tolling for unsound mind: i. An individual might be deemed of unsound mind if he is a danger to himself or others. In the context, however, unsound mind usually means that the individual is unable to manage his or her business affairs or estate, or to comprehend his or her legal rights or abilities. d. Grace Periods: i. Extends the SOL, it does not stop the clock. e. Dasha v. Maine Medical Center: Defendant erroneously diagnosed the plaintiff as having a fatal brain tumor. The treatment allegedly caused severe brain damage and the plaintiff became incompetent. After 2 misdiagnosis and treatments, another physician reviewed it and discovered that it was erroneous. i. Case was not tolled because it was not fraud because plaintiff was mentally sound during misdiagnosis. i. Nevada SOL 1. Within 6 years a. Contract Action in writing 2. Within 4 years a. Action for goods sold and delivered b. Action for charges on account c. Contract not founded on writing d. Action against fraud in business (accrue upon discovery) 3. Within 3 years a. Negligence per se action other than a penalty b. Conversion c. Waste or trespass of real property d. Fraud or mistake (accrue upon discovery) e. Damages to sustain loans because of fraud (accrue upon discovery) 4. Within 2 years a. Action against police b. Negligence per se on a penalty c. Libel, slander, assault, battery, false imprisonment, seduction d. Against police for prisoner escape e. Personal injury or wrongful death 5. Within 1 year a. Action against police or tax collector to recover goods seized b. Action against police or tax collector to recover money seized c. When a person dies, they have one year to bring any kind of claim after their death, or for any claim to be brought against their estate. 6. Malpractice SOL a. Lawyers and Vegs i. 4 years after damage OR within 2 years of discovery ii. Tolled for any period if there is concealment b. Accountants i. 2 years after date of alleged act discovered or should have been discovered ii. 4 years after completion of performance of service for which the action is brought iii. 4 years after date of initial issuance or report iv. Tolled for concealment 7. Sexual abuse of minors a. Under 18, and trying to recover for sexual abuse injury, must be commenced within 20 years after turning 18 or 20 years after reasonable discovery, whichever occurs later. b. If there is a criminal case, the action has to be commenced, or the victim reaches 18. 8. Statute won't run if a. Person injured was under 18, or otherwise legally incapacitated then you can recover for real property 9. Actions by or for state a. No limitations for actions brought in the name of the state other than for the recovery of real property 10. Inaction by opposing party will toll statute ii. Nevada Repose 1. 6 years after substantial completion of improvement to property can recover for: a. Design defect, negligent planning and supervision b. Injury to real or personal property caused by defect c. Injury or wrongful death because of defect d. DOES NOT APPLY TO i. Indemnity or contribution ii. Action against owner or innkeeper iii. Any person because of product defect 2. Clock starts ticking a. Upon substantial completion of final building inspection or improvement b. Notice of completion issued for improvement c. Certificate of occupancy issued i. Whichever occurs later iii. Federal Preemption 1. Supremacy of Federal Laws a. Supremacy clause provides that the federal constitution and laws shall be supreme law of the land. Congress has the power to override state law as long as it acts within the limits of its own constitutional powers. b. If the intent is to preempt state law is the clear and manifest purpose of Congress, then state laws in conflict with those federal provisions cannot be enforced. i. Vreeland v. Ferrer: Defendant leased plane and pilot and passenger died in plane crash. Defendant said the claim was preempted by federal law. Federal law may preempt state law when it conflicts with federal law, Congress explicitly intends for preemption in the statute's language, or Congress implicitly expressed intent to occupy the field

last clear chance

a. If peril is discovered or could have been reasonably avoided, plaintiff's earlier negligence would neither bar nor reduce recovery. b. Less generous version of discovered peril requires peril to be discovered. c. In states that have adopted comparative fault, last clear chance and discovered peril have been discarded. d. Nevada Notes: i. NV has abandoned the last clear chance doctrine as superseded by the state's comparative fault system. Allowed the negligent plaintiff full recovery when the plaintiff was left in a helpless position by his own negligence and the defendant, who had the last clear chance to avoid injury, negligently inflicted it anyway. No longer in Nevada.

Defendant's reckless or intentional misconduct:

a. No defense of comparative fault if defendant was willful, wanton, or reckless. Indifferent or conscious disregard of safety of others.

Exceptions to comparative fault defenses

a. Plaintiff incapacity b. Structural safety c. Role definition d. Process values e. Fundamental values f. Autonomy and self risk g. No victim blaming children at public schools do not have duty to protect themselves while at school

Plaintiffs illegal activity:

a. Plaintiff's unlawful acts do not bar recovery even though their unlawful acts contributed to their harm. i. Dugger v. Arredondo: Both parties were snorting heroin, smoking marijuana, and drinking tequila. Plaintiff started dying and defendant delayed calling 911 and did not inform them about the heroin. Plaintiff died. 1. The court held that damages should be apportioned and not barred. Unlawful acts doctrine is not available as an affirmative defense in personal injury and wrongful death cases. Plaintiff's acts should be compared to defendants. ii. States vary on this doctrine. Some states do say plaintiff unlawful act bars recovery and some states have statutes that determine recovery will be barred.

rescue doctrine:

a. Actor who attempts to rescue someone in imminent danger is not liable for injury unless they were reckless. b. Comparative fault regime might supersede this. c. Some people are obliged to rescue outside of good Samaritan statute (paramedics)

Loss of Consortium

a. Recognition of protected interest in personal relationships (emotional support, the warm fuzzy feelings) i. Boucher v. Dixie Medical Center: 18 y/o son had hand surgery. He went into surgery and went into coma. Woke up with severe brain damage. 1. Loss of consortium is the recognition of protected interest in personal relationships. Court declines to value father's relationship to his son. Consortium is like master-servant style value of damages. Loss of child meant loss of support historically. Now it is just about the warm fuzzy feelings.

i. Good-Samaritan Law

a. Volunteers who assist people are not liable for injury unless they act with gross negligence. i. Buck by Buck v. Greyhound: Buck driving her twins and car has a mechanical issue. Tried making a U turn but the car stalled and blocked the road. She got out to flag someone down. An off duty cop told her to turn off the lights and he would have his car and lights protect her. They got hit by a bus. 1. Cop was 25% negligent but wiped clean because he was a good Samaritan.

thin skin rule

a. You don't know how everyone will react to the same kind of harm. The defendant takes the plaintiff as he finds him. b. You are liable for the entire extent of injury if the manner of harm was foreseeable. i. Hammerstein v. Jean Development West: Plaintiff has diabetes, staying in a hotel. Fire alarm goes off and plaintiff has to go down 4 flights of stairs. He twists his ankle and gets a blister that turns into a serious infection due to pre-existing diabetes. 1. Here the hotel could reasonably foresee the fire alarm going off without reason and the twisted ankle injury was foreseeable, even if the extreme infection was not, so they were liable. Liable for the extent of injury if the manner of harm is foreseeable.

comparative fault

apportions fault among everyone, plaintiff doesn't get percentage that they are at fault

Duty:

generally people owe no duty to protect 3rd parties judge determines is a duty is owed as it is duty as a matter of law typically the standard of reasonable care People with physical disability are held to that standard of care as someone with their disability People with mental disability held to standard or care as people without the disability Duty is usually the reasonable person under the circumstance. 1. Dangerous instrumentalities a. The standard of care remains the reasonable and prudent person standard. b. BUT if the foreseeable danger is high, the reasonable person will ordinarily exercise a greater degree of care than if the foreseeable danger is low. 2. Emergencies a. If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor's resulting conduct is that of the reasonably careful person. i. Posas v. Horton: Defendant was driving too close when plaintiff stopped abruptly to avoid hitting a person. Tried to argue sudden emergency, can be held liable for the sudden emergencies you create. 3. Physical impairments a. The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability. i. Shepherd v. Gardner: A person who was basically blind tripped over raised concrete. b. This doesn't apply to mental disabilities (a reasonable person with the same mental disability). Just the reasonable person under the circumstances. A mentally disabled person is held to the standard of care of a reasonable person under like circumstances, regardless of the person's ability to understand or control his or her actions. c. Sudden Incapacitation Person's alleged negligence is caused by a sudden physical incapacitation that is not foreseeable, there should be no liability. 4. Adult Standard The adult standard is applied when a child is doing adult activities. Rule of 7s: Under 7, no negligence, 7-14 maybe negligent, 14 negligent for standards of care. This rule is less applicable today, only a few courts still use it. Most states do hold that children of very young years are incapable of negligence. NEVADA: No negligent supervision cause of action NV does not recognize negligent supervision as a cause of action. 2. Duty to third party Duty is limited to what the party has control over and what is reasonably foreseeable. Foreseeability is what a reasonable person under the circumstances would do and whether a reasonable person would have anticipated the event. 1. The court said duty is limited based on foreseeability. 3. Negligence as a matter of law Shorthand for the plaintiffs who have already established all the elements for the judgment to be entered for the plaintiff. Like if the defendant was already convicted of a crime, it is evidence of all facts for civil liability.

Duty to protect from 3rd persons

generally there is no duty unless there is a special relationship i. 4 tests 1. Specific Harm a. No duty to protect visitors unless landowner is aware of specific and imminent harm. b. This favors the landowner and is difficult to prove because you have to show evidence of actual knowledge of the actual thing that would cause injury. 2. Prior Similar Incidents a. Imposed a duty to protect when the plaintiff can establish there were previous similar incidents. b. This yields inconsistent results because there is no clear line on determining what is similar. 3. Balancing test a. Balances foreseeability of the incident with the gravity of the burden imposed on the defendant to protect. 4. Totality of the circumstances a. Takes into account all relevant factors to find if a duty was owed. balancing is probably the best in most circumstances NEVADA: 1. Nevada completely abandoned status based rules for landlords - only can be liable when they create a special duty by saying they are going to do something or it was built into the lease. 2. Landlords continue to have a duty of reasonable care for areas that are not expressly given over to the person in the lease like community areas.

i. Promises to third persons

i. 1. Liability can exist to third persons if they are reasonably connected and anticipated relationships. 2. When a defendant undertakes a duty to a contracting party, they can be liable for negligent conduct to the third party IF their conduct undertaking that particular services places plaintiff in an unreasonably risky situation. a. Palka v. Servicemaster Management: Hospital contracts with Servicemaster to manage maintenance. They did not exercise reasonable care when a ceiling fan fell on the plaintiff (nurse). i. Fans were within the scope of the contract and owed duty to individual outside of contract. 3. Historically, you did not have a duty to protect those or perform contracts for people who were not a party to the contract. However, that is no longer the common law today. a. Winterbottom v. Wright: Wright contracted postmaster to carry mail. Needed to keep coaches in good condition and repair. Defect causes coach to break and someone was hurt. i. Privity is someone with a legal relationship to the contract. Recovery if you weren't in the contract was difficult back in the day. b. HR Moch Co v. Rensselaer Water: Contracted city to supply water to fire hydrants. Plaintiff's house caught fire and hydrant was undersupplied. Brought suit as a third party beneficiary. Must show parties to contract intended third party to benefit and intended they would be answerable to third party. City is not answerable to every resident. Duty to public, not the individual.

Worker's compensation

i. Characteristics 1. Strict liability - employers are made strictly liable for on the job injuries. 2. Limited liability - liability is limited because compensation is in fixed amounts 3. Exclusive remedy - employees can't seek another remedy, but can still sue 3rd parties like manufacturers 4. Most defenses are abolished - statute of limitations still applies 5. Immediate and periodic payment 6. Enforcement and administration - worker will report directly to an administrative agency 7. Financing - essentially a compulsory scheme, some run through the state, others through private insurance 8. Courts have a limited role, generally only deciding the meaning of the statute and sufficient evidence ii. Coverage 1. Excluded from coverage a. Agricultural workers b. Domestic workers (maids, nannies, tutors) c. Casual worker (independent contractor, guy who does your lawn) iii. Benefits 1. Death benefits - based on earnings, given to dependents rather than heirs 2. More or less unlimited medical benefits 3. Disability benefits - no pain and suffering award, just replacement of lost wages 4. Limits on benefits - a. No statute gives 100% wage replacement (more like 2/3) to prevent incentive for fake injury b. Payments for personal injury are tax exempt iv. Arising out of and in the course of employment 1. The injury must arise out of and in the course of employment. a. Wait v. Travelers Indemnity Co of Illinois: Plaintiff worked at home, when she was preparing lunch someone knocked on her door and brutally beat her for no reason. She sought workers comp from her employer. i. The court found no evidence to prove the plaintiff was in any casual connection with the nature of her work. There needs to be an inherent connection with the workplace and this is not something she would normally encounter in the workplace. v. Horseplay 1. Factors: a. Extent and seriousness of deviation from work b. Completeness of deviation c. Extent to which the practice of horseplay had become an accepted part of employment d. Extent to which the nature of the employment may be expected to include some horseplay 2. Horseplay injuries can possibly arise out of the course and scope of employment. a. Carvalho v. Decorative Fabrics: Employee got air shot up his ass messing around with employees and his stomach blew up. i. The court recognized that fooling around could be part of the work environment. If horseplay is not customary and the incident was a substantial deviation from work, the plaintiff may not recover. vi. Violation of statute or workplace rule 1. Compensation should be rewarded regardless of statute - at most it would show that the employee was negligent and whether it was in the category of violations people would likely make. a. Union Colliery Co v. Industrial Commission: Guy was crushed in between a cage and a beam at a mining sight. A statute said that it was illegal to use the lift while there was operation, so there was a legal violation resulting in death. i. Compensation should be awarded - at most it could show negligence but there was no negligence here because it was standard work practice. This is within the category of violations people would likely make. vii. Accident, Injury, Disease 1. In unusual activity cases: a. That the accidental injury arises out of the course and scope of employment and b. That the accidental injury arises out of any "unusual activity" i. Works mainly with heart attacks ii. Harris v. Board of Education of Howard County - Plaintiff worked for 12 years when suddenly at work her back gave out while doing her standard job. 1. What must be accidental is the injury and not the activity giving rise to the injury. The activity giving rise to the injury need only arise out of and in the course of employment and not be otherwise excluded by the Act. c. The injury must be accidental, not the activity giving rise to the injury. The activity need only arise out of and in the course and scope of employment. i. Shealy v. Aiken County: Claimant working deep undercover had major stress and anguish that led to a heart attack. 1. Heart attack standard: must be induced by unexpected strain or overexertion in performance of duties of employment. a. Court wants an incident to occur for workers compensation to happen. 2. That standard was met here, but too many non-job related stressors like losing his kids and alcohol so could not prove a causal connection here. viii. Multiple Exposure 1. Place of last exposure a. The place of last exposure is the one liable for workers comp because the public policy. It is almost impossible to do the comparative fault analysis from multiple exposure cases. b. Still applies even if the place of last exposure was for an extremely small amount of time, even though such injuries develop over time. i. Union Carbide Corp v. Industrial Commission: Plaintiff worked as a uranium miner and died of lung cancer. Plaintiff was exposed to radiation at 2 employment locations, one for 4 years and one for only 8 days. 1. Union Carbide (8 day employer) is liable for death benefits because that is the last place of exposure. c. The last exposure might be unfair to employers where the injury has been developing over time and the subsequent exposure didn't make the condition worse. i. Bracke v. Baza'r: Bracke worked as a meat wrapper at 3 locations and claimed "meat wrappers asthma." She applied for workers comp from all 3, was denied from all 3. She did not request a hearing from the last injurious exposure one, where she would have won. 1. Last exposure can be unfair to employers where the injury has been developing over time. For this condition, subsequent exposure didn't make it worse, the multiple jobs didn't add to her condition. ix. Workers Comp as exclusive remedy 1. Forbids Tort recovery a. Bowden v. Young: Paralegals exposed to toxic mold in law office and wanted to make their claim separate from workers compensation. i. In order to be outside workers compensation, you need to allege the employer acted with actual intent to injure the employee (purpose). Plaintiff could not show intent to harm because they were trying to fix the problem. b. Kerans v. Porter Paint: Kerans alleged she was molested by her store manager. i. Workers compensation applies to physical injuries. The court deemed this an injury with purely psychological consequences so it is barred from workers compensation and she is allowed to sue in tort.

Wrongful birth

i. Not really an injury for wrongful birth. The birth of a healthy child is not a legal harm. A child is always a blessing. ii. A plaintiff may recover for birth of a child who is disabled due to some negligence. 1. The plaintiff could not recover for the whole expense of raising the child, just the extraordinary expenses that relate to the child's disability. a. Shull v. Reid: Doctor fails to diagnose virus during pregnancy and son was born helpless. Said they would have terminated the pregnancy. i. Law passed that disallowed damages for wrongful birth was passed after the birth. No recovery because unaware of injury at birth.

Discipline

i. Parents may use reasonable force they believe is reasonably necessary to discipline. ii. Nevada Notes 1. Parental privilege of discipline depends on the punishment, whether it was cruel or abusive or was reasonable for the circumstances. 1. Force used is reasonable 2. Force is related to the reason for imposing the discipline 3. Doesn't create substantial long term harm this relates to babysitters

Mitigation of damages

plaintiff is obligated to take steps to limit the total amount of their damages

Factual cause (ask about this)

prove that the harm was in fact caused by the plaintiff but-for test- what wouldve happen without the plaintiffs negligence. Almost all states use this test. there can be more than one but-for cause. if the harm wouldve occured anyways then you aren't the but-for cause. (think pregnant lady not know she was pregnant) · Duplicative causation- if both would've been responsible, both responsible · Preemptive causation- one who did it first is responsible (think tea and gunshot) · When the case is indivisible use joint and several liability not to distribute money but to say they both have cause in fact

Proximate (legal cause)

scope of liability- did the injury fall within the reasonable risks created by the defendants 1. Courts must look at all relevant facts and the possible risks associated to determine if the harm was a result of any of those risks. (Similar to a foreseeability test) 2. Is the harm something that could have been caused by the defendant's negligent act? 3. You can look pretty far down the line of harm, but the further you go down the successive line of events, court will start to say it is too far outside the scope 4. you need a real link between the injury and the conduct defendant take the defendant as he finds him suicide generally is not within this A superseding cause that breaks the causal chain. An intervening act of some second tortfeasors should relieve the first tortfeasor of liability ONLY when the resulting harm is outside the scope of the risk negligently created by the first tortfeasor. NEVADA: 1. Nevada Notes a. NV also holds that proximate cause is a fact question for jury. b. NV also holds that a defendant is liable for any extent of harm that follows a foreseeable manner of harm.

loss of chance

usually refers to a doctor more than 51% chance that the outcome would've been better off with a different doctor a. Limited to medical malpractice. Lost chance is the cause in fact and the injury itself. Must prove a factual cause by showing real reduction in the chances of recovery and opportunity. b. In med mal lost chance cases, the plaintiff can use the substantial factor test instead of the but for test to measure negligence. This is an exception to the general rule because the injury might have occurred anyway, regardless of doctor intervention. Substantial factor holds doctors more liable than the but for test. i. Mohr v. Grantham: Mohr suffered a brain injury, the doctor sent her home without performing enough tests. She became much worse and suffered permanent damage. 1. Court allowed the substantial factor test to apply in med mal cases. c. Nevada Notes: i. Nevada has adopted the lost chance of survival doctrine in medical malpractice cases.

Information defects

warning defect kind of negligent like · 1. No warning/bad warning · 2. Warning would have prevented harm o i.e. alternative course of action · 3. Warning is inexpensive Is this a thing that could be made substantially safer by the relatively small effort of making warnings? a. Typically following a risk utility analysis to determine if the effort to place a warning on the product would render it safer. i. Liaro v. Hobart Corp: Lost hand in meat grinder. Employee removed safety guard and no warning without safety guard. Sued for defective design. 1. The designer is liable for modifications if the product it renders is defective or unsafe. They are liable for failure to warn against latent dangers that would result from foreseeable uses. This follows a risk utility analysis and finds a small warning could have stopped someone from getting harmed and the warning creates a little burden. b. The defendant could be liable for failure to warn against latent dangers that would result from the foreseeable use of the product. c. Look at the obviousness of the warning/instruction relating to how the product will actualy/probably be uses. i. Carruth v. Pittway Corp: Family died in a house fire 2 days after installing Pittway smoke detectors. They were installed based on how they looked in a graphic in the manual, but a small type instruction said that location would be unsafe. The instructions did not point out any warnings. 1. A jury could reasonable infer that the user would be induced to only scan the pamphlet and not fully read it and find the information about dead air space. Jury question whether the pamphlet provided a legally adequate warning. 2. Post Sale Warnings a. There is a duty to warn of a known danger at the point of sale. b. There is a duty to convey a warning once a defect is discovered after sale. i. Comstock v. General Motors Corp: There was an issue with the brakes in a car brand and they did not warn the owners. They provided repair kits to shops, and told shops to fix the brakes without informing the car owner whenever that kind of car came in. There was an accident relating to the brakes while in the repair shop. 1. There is a duty to warn of a known danger at the point of sale and a duty to convey warning once a defect is discovered after the sale. ii. Gregory v. Cincinnati: Sheet metal press injured plaintiff when ram descended and amputated fingers. Said OSHA safety devices could have avoided the injury. 1. In order for there to be a continuing duty, it must be a defect or an actionable problem at point of manufacturer. If no defect at time of creation, no duty. This defect was indiscoverable until it was already manufactured so no duty. c. Special proof issues i. Bittner v. American Honda: Plaintiff was injured riding an ATV that overturned. 1. The court held that evidence that would show greater risks of acceptable activities was not admissible because it was not relevant.wa

Basic Torts concepts

wrongs recognized by law need a harm done goal of a torts case is to make those harmed whole again

NRS Good smaritan law

§ Licensed medical professionals working in a licensed medical facility who have no preexisting relationship with the patient will be shielded when they act negligently (but not grossly negligently) when gratuitously and in good faith attempting to help other persons