Unintentional Torts (Negligence)
Defenses (What defenses will be made by the defendant?)
-Assumption of risk "(Plaintiff) He assumed the risk" -intervening cause "You caused the accident, plaintiff need to get his spleen removed but during that process the doctor leaves the sponge inside and causes more harm, defendant will say that the doctor was responsible" -plaintiff's own negligence
Define Tort:
A civil wrongful act or infringement of a right that causes injuries/damages to another.
Tort Law is civil or criminal?
Civil NOT criminal!
What sources of law are involved?
Common law/case law
CA Test
A substantial factor is a factor that a reasonable person would consider to have contributed to the harm. Must be more than a remote or trivial factor. This factor doesn't have to be the ONLY cause of the harm!
Compensatory damages:
Actual loses that included economic & non-economic damages Anything you can put a value on $$$ EX: medical bills, repair bills, replacement bills
Intervening cause:
An event that occurs AFTER a tortfeasor' initial act of negligence and causes injury/harm to the victim
Plaintiff's own negligence: What are the 3 types of negligence?
Comparative negligence Contributory negligence Negligence Per Se
A state either has _ or _ negligence. Can they have both? Most states have which one?
Comparative or contributive No Comparative
Breach of duty Example
Any violation or omission (exclusion) of a legal duty EX: riding a bike and ignoring warning signs = breach of duty
Gross negligence define Example?
Beyond normal negligence. Extreme reckless behavior! Drunk driving
What are the elements of Unintentional torts/Negligence? Do you need all 4 or just 3/4?
Breach Causation Damages Duty Need all 4!!!
Torts don't include what?
Contracts/promises
Damages can be (3 things):
Plaintiff must show: -Loss -Injury (to self or property) -deterioration (worsen)
Define a "Substantial factor" (in causation)
Factor that a reasonable person would consider to have contributed to the harm. Not a remote/ insignificant factor.
Unintentional tort
Failure to use reasonable care to prevent harm
Suitable defense
Plaintiff was partially responsible for not wearing hard hat/ negligent
Comparative negligence:
Proportional reduction in recovery
Negligence Per Se
If driver runs a red light he violated the LAW. Since he violated a written LAW we don't use "Reasonable Person Standard"/ "would the reasonable person.."
Causation What 2 things do we use in Causation? Causation in Fact In causation you need _______ CAUSE OR ________ CAUSE
Injury must be a DIRECT result of the careless conduct (breach of duty). 1. Causation in fact 2. Proximate or legal cause "But for" the tortfeasor's action/inaction the injury wouldn't have happened. Ex: but for running the red light, the collision would not have happened Proximate or Legal
Punitive damages
Intended to punish defendant for his actions and stop him from doing the actions in the future
What are the 2 types of torts?
Intentional & Unintentional
Define common law
Judge's written opinions that explain their decisions. -It's a "Judge-made law" -Made by the the judicial branch.
What are the 2 types of damages?
Punitive and compensatory damages
Tort Reform
Laws that limit people's right to go to court/file lawsuit.
Negligent PROFESSIONAL activity is called
Malpractice
Unintentional tort is also known as
Negligence
Punitive damages are NOT available in ONLY in cases
Negligence cases Cases of intentional torts or GROSS negligence.
Is a breach (violation) of contract a tort?
No
Duty: (of care) Example:
Obligation to exercise care in interactions with others EX: staying awake while driving is a DUTY. Falling asleep is a BREACH of duty.
Explain action/inaction Give Examples of each:
Person is negligent if they do something that a reasonable careful person wouldn't do or if they fail to do something that a reasonably careful person would do. Buying the group of ppl drinks - action Failure to clean up the spill - inaction
"Bar to recovery" Define Ex)
Plaintiff can't recover anything from his injuries bc he was negligent / partially responsible for his own injury Using a cord that you know is damaged to bungi jump - shows plaintiff was negligent.
Tort Law is procedural or substantive?
Substantive
Contributory negligence: (Minority view) Ex)
This is a "complete bar to recovery". Even if plaintiff is a little bit negligent, he doesn't get anything/recovery defendant can argue that Bob wasn't wearing a hard hat so he was being negligent!
Sandy slaps Sam in the face and her ring cuts his face causing it to bleed Tort or not?
Tort bc caused injury
Define Proximate Cause:
Was the injury FORESEEABLE?! If not then there ISN'T negligence! Non-Foreseeable example: - getting fired: there was an accident which caused traffic which made you late which made you lose a business contract which made you get fired NOT FORESEEABLE!!!
Intentional torts Most intentional torts are civil or criminal?
When you INTEND to do the action even if you didn't intend to cause the injury (bleeding) Criminal
Can it be damages to property; like house/car?
Yes
What does the court provide?
a remedy in the form of an action for damages
What is a tortfeasor
person who commits a tort
Reasonable Person Standard: Example: Is it reasonable to leave a spill to help at the front desk? What about leaving the spill to help give CPR to dying person? Also known as: If you're dealing with professionals you can't use "would the reasonable person..." So you would use other professionals (other doctors-malpractice)
to determine if defendant acted negligently Judge/Jury asks: Would the reasonable person act the same way the defendant did under the same circumstances?" If NOT then the defendant is guilty of negligence! No! Yes! "Standard of care"
