Chapter 7 - Tort Law (pg. 135-146)
LITERAL meaning of res ipa loquitur
"the thing speaks for itself"
Duty
The plaintiff must establish that the defendant owes a duty first.
1) duty 2) breach of duty 3) causation 4) damages (if a plaintiff cannot prove all four of these they will be denied recovery)
To win a negligence case, the plaintiff must prove FOUR elements...
1) res ipsa loquitir 2) negligence per se
two doctrines to aid plaintiff's in establishing negligence claims
1) contributory negligence 2) comparative negligence 3) assumption of the risk 4) other special negligence defenses
FOUR defenses to use for negligence..
1) the statute or regulation clearly defines the required standard of conduct 2) the statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused 3) the plaintiff must be a member of the class of persons the statue or regulation was designed to protect 4) the violation must have been the proximate cause of death
FOUR elements to prove negligence per se... (in o guin v binham county - boys dying from trespassing and falling in a hole where no sign was placed)
proximate cause (legal cause)
refers to the extent to which as a matter of policy, a defendant may be held liable for the consequences of his actions (foreseeability needed)
TRUE
T/F - the plaintiff has the BURDEN of proving all four elements of a NEGLIGENCE case
Negligence
a behavior that creates an unreasonable risk of harm for others
invitee
a person who enters another's premise as a result of an express or implied invitation of the owner for their MUTUAL benefit
licensee
a person who enters another's premises with the occupier's consent for his or her benefit ALONE (door to door salesman)
good samaritan statues
a special defense to negligence ; helping someone out of a fire car and accidently breaking their foot cannot hold them liable
breach of duty
someone had a duty of care and didn't do it (driver driving safe bc in care of passengers)
1) involves a risk of serious harm to people or property 2) it is so inherently dangerous that it cannot ever be safely undertaken 3) it is not usually performed in the immediate community
strict liability has three conditions...
1) compensatory (to make the plaintiff whole again) 2) nominal (to recognize the defendant committed a tort against plan.) 3) punitive (to punish the defendant)
three types of damages available in tort cases
the reasonable person standard
In most cases, courts use what (term) to determine the defendant's duty of care?
punitive damages (exemplary damages)
RARELY if ever awarded in negligence
last clear chance doctrine
allows the plaintiff to recover damages despite proof on cont. negligence as long as the defendant had a FINAL CLEAR opportunity to avoid the action that injured plaintiff (if the defendant could have avoided the case all together)
gross negligence
an action committed with extreme reckless disregard for the property of life of another person
Cooper Industries Inc V Leatherman
appellate courts must review the trial court's decision on consitutionality of an award DE NOVO
Clark v Chrysler Corp.
five criteria are used: 1) the harmed caused was physical as opposed to economic 2) the tortious conduct evinced an indifference to or a reckless disregard for the health or safety of others 3) the target of the conduct had financial vulnerability 4) the conduct involved repeacted actions or was an isolated incident 5) the harm was the result of intentional malice, tickery, or deceit or mere accident (husband in car accident and wife sued car company - punitive damages were trying to be 3 mil but comp. was only $471,258.76)
NOT be sustained bc it LACKS the element of PROXIMATE CAUSATION
if the defendant could not reasonably foresee that damages that the plaintiff suffered as a result of his action, the plaintiff's negligent claim will..
1) severity of the wrongful conduct 2) wealth of the defendant
in awarding punitive damages two things must be considered..
foreseeability
in most states, proximate cause is determined by..
business invitee
invited onto property for the purpose of doing business
strict liability
liability without fault - responsibility for damages is imposed regardless of the existence of negligence
negligence per se
literally means "negligence in or of itself"
Palsgraf v. Long Island Railroad Company
majority opinion set forth the rule of foreseeability in DETERMINING proximate cause
res ipa loquitur
more likely than not, the defendant's negligence was the cause of the plaintiff's harm (even though there is NO DIRECT EVIDENCE)
1) the plaintiff was injured by an instrumentality that was under the def's exclusive control 2) the injury would not have occured in the absence of negligence
morris v walmart concluded that the plaintiff had to demonstrate two things to use res ipsa loquitur..
comparative negligence
most states have replaced contributory negligence with...
trespasser
on the property w/ the owners permission
tortfeasor
person who committed a tort
assumption of the risk
plaintiff VOLUNTARILY and and unreasonably encountered the risk of the actual harm
express assumption of the risk
plaintiff expressly agrees (usually in contract) to assume risk posed
implied assumption of the risk
plaintiff implicitly assumed a known risk
damages
plaintiff must have sustained COMPENSABLE INJURY as a result of the defendant's actions
true ; malpractice cases
professionals cannot claim ignorance (t/f) when someone is hurt and pertains to their field of training (ex. doctor) (what can they be sued for if they don't help?)
YES
professionals have more training then others.. do they have a higher duty for care bc of it?
Honda Motor v. Oberg
provided tort reformers with their first judicial victory (court finally struck down a punitive damage award as being a violation of due process)
both the plaintiff and the plaintiff's damages were reasonable foreseeable at the time the def. breached his duty to the pla.
proximate cause is said to only exist when...
superseding cause
unforeseeable event (storing ammonia in garage then METEOR hits and will two doors down drinks some ammonia from stream - defendant is not at fault)
1) pure comparative negligence 2) modified comparative negligence
what are the two forms of COMPARATIVE NEGLIGENCE?
BMW v Gore
what case set up a test that was supposed to substantially curb punitive-damage awards but did not really help
the reasonable person standard
what is a measurement of the way members of society expect an individual to act in a given situation?
negligence per se
when a defendant has violated a statute enacted to prevent a certain type of harm ex. selling alcohol to a minor and then minor gets in car wreck - the seller of alcohol can be sued
1) the event was a kind that ordinarily does not occur in the absence of negligence 2) other responsible causes, including the conduct of third parties and plaintiff, have sufficiently been eliminated 3) the indicated negligence is within the scope of the defendant's duty to the plaintiff PERMITS a finding of negligence (but does not guarantee it)
3 things most states want the plaintiff to establish res ipa loquitur with...
contributory negligence
both defendant and plaintiff were negligent
State Farm v. Campbell
case for determining punitive damages properly; award should be from actual harm NOT how much money the defendant has
Escola v. Coca Cola (waitress had a coke explode on her)
case: one of the earliest uses of res ipsa loquitur (defendant's best response to this doctrine is use "other possible causes")
compensatory damages ( a person needs to bring this action to negligence, not just nominal damages )
damages intended to reimburse a plaintiff from his or her losses
yes
do businesses have a duty of care to customers who enter business property?
yes
do the courts generally hold that businesses have a duty of care to protect their customers against foreseable risks?
NO
does compensatory damages cover attorney fees?
no
does the law hold strangers accountable to rescue others from dangerous situations? (a baby drowning)
Sandra Morris V Walmart
she slipped and fell due to water at walmart case provides an illustration of type of conditions that can lead a jury to infer negligence
discourage innovation
some argue that the main effect of punitive damages is to..
PURE comparative negligence defense
the court determines the percentage of fault of the defendant - he then is liable for that percentage of the damages
modified comparative negligence defense
the defendant must be more than 50 percent at fault before the plaintiff can recover
1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm 2) the plaintiff's failure was a contributing cause of the plaintiff's injury
the defendant trying to defend w contributory negligence must prove..
actual cause (referred to as "but for")
the determination that the defendant's breach of duty resulted directly in the plaintiff's injury ;
Unlike intentional torts (which result from a person's willful actions), negligent torts involve...
the failure to exercise reasonable care to protect another's person or property
1. invitee (inspects land to warn for any hidden dangers) 2. licensee (warn of any hidden dangers of which he knows but does not need to inspect) 3. trespassers (no duty) THIS WAS UNDER COMMON LAW
the level of care ranking
1) actual cause 2) proximate cause (must prove both to be able to recover damages)
two elements of causation
1) express assumption of the risk 2) implied assumption of the risk
two types of assumption of the risk are..
1) how likely was it that the harm would occur? 2) how serious was the potential harm? 3) how socially beneficial was the defendant's conduct that posed the risk of harm? 4) what costs would have been necessary to reduce the risk of harm?
when courts attempt to determine whether a reasonable person would have owed a duty to others, they consider FOUR questions...
California Supreme Court 1998 (they said everyone should be cared of the same and 25 other states copied this unitary rule)
who / when reject rigid form or care for people on land property?
