Torts essay question prongs to cover:

Res Ispa Loquitur Elements

"the thing speaks for itself" Traditional Elements: 1. The type of harm would not have occurred if not for negligence 2. The defendant was in exclusive control of the instrumentality that caused the harm 3. P was not contributorily negligent 4. D had more knowledge of how the negligence happened Modern Elements: a and b. C is only taken into consideration when computing damages. If it is clear that negligence happened—like a barrel falling out of the sky—then the Pl. no longer has a requirement to prove how it happened or who did it Reasoning is that in a situation like this, the Def. is actually in a better position to know the truth and show what happened as a way to prove he was not negligence Thus, it is not on the Def. to show that there was no negligence The Def. does not need to be the one in control of the negligent object, but rather the last to control or maintain it Proof of negligence is usually based on a preponderance of the evidence (greater than 50% chance) -Usually proven through circumstantial evidence -Must be able to point to a certain Def. (must have certainty that a person or party was negligent)

Products Liability (Strict Liability)

(1) places an item in the market (2) knowing that it will be used without inspection (3) that proves to have a defect and thus (4) injures a human being Design Defect - there is no defect with regards to the way the manufacturer envisioned that it would come out; but rather the design itself is dangerous and likely to injure the user restatement 402A: strict liability for products with a "defective condition unreasonably dangerous to the user or consumer or to his property." risk-utility or consumer expectation Manufacturing Defect - where the design calls for one type of part, but then a different type are used, thus creating a danger Court held that the gloves were manufactured to specifications, but the company wanted to make them better; there is no legal requirement where a company wants to do better, as long as they are performing to the level promised Manufacturing defect claims are based on whether or not the product is manufactured to the designers specifications Generally, a "risk-benefit" test will be used to determine the fault of the manufacturer, retailer, or distributer Where the design of the item is complex or intricate, the court may use a "consumer expectation" test, based on what an ordinary user might expect in how the item performs Consumer Expectation - reliance on consumer expectation test can be precluded when the product has a complicated design, obscure components, or the circumstances surround the accident are limited to a specialized group

Professional Standard: Medical Malpractice

*TIP* Go through analysis for each type, if duty and breach no need to go through causation the court compares different types of "locality" with regard to who to compare the doctor to: 1.Strict locality - the physicians in this type are compared only to other doctors in the immediate locality (town, city, county) 2. Modified locality - here, physicians are compared to "like" localities 3. National locality - comparing to practitioners in the same class to which the physician belongs Expert testimony is usually used to establish these standards In medical malpractice cases. Common Knowledge Defense: If conduct is so gross, so as to be apparent, or the alleged breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay jurors by resort to common knowledge and experience, failure to present expert testimony on the accepted standard of care and degree of skill under such circumstances is not fatal to a plaintiff's prima facie showing of negligence Informed Consent Defense: PRUDENT PATIENT all risks potentially affecting the decision must be unmasked This prudent patient standard required that doctors divulge information that an average prudent patient would consider material to making his decision with regards to whether or not to have the surgery Pl. would have to prove that this information would have changed a reasonably prudent patient's mind about the surgery—providing proximate cause The causation requires that the patient show that they would have forgone the treatment if they would have known all the risks (what a reasonable patient would have done)

Defenses to battery and assault

1. Consent Consent refers to consenting to the type of touching that occurs, not necessarily consenting to the specific harm that might or does take place a. Implied consent occurs when one can infer that the consenter is taking on the risks of getting hurt b. Express consent is where one person tells the other of his consent Withdraw of consent must actually be communicated to the other party Consenting to one type of harmful touching (say, during a game of shooting paperclips at each other) is not consent to all types of harmful touching (there is no consent if someone throws a baseball at your head)

An actor is subject to assault if

1. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact 2. The other is thereby put in such imminent apprehension R2T21: 1)An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. R2T31: words alone are not enough to make an actor liable for assault "unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person. Comments: "even though the mental discomfort caused by a threat of serious future harm on the part of one who has the apparent intention and ability to carry out his threat may be far more emotionally disturbing than many of the attempts to inflict minor bodily contacts which are actionable as assaults." Mere words cannot constitute assault, unless together with acts or circumstances they put the actor in reasonable apprehension of an imminent harmful or offensive contact with his person

Additional tests for Battery:

1. Intent - the factfinder must conclude that the defendant desired to contact the plaintiff (or to cause the plaintiff to anticipate imminent contact) or was substantially certain that a contact (or anticipation of contact) would occur as a result of the defendant's act. 2. Offensiveness - the factfinder must evaluate a defendant's conduct in terms of societal standards and a "reasonable sense of dignity" An act can be offensive regardless of what the defendant personally thought about its character 3. Bodily harm - any physical impairment of the condition of another's body, or physical pain or illness There is impairment of the physical condition of another's body if the structure or function of any part of the other's body is altered to any extent even though the alteration causes no harm The minute disturbance of the nerve centers cause by fear, shock or other emotions odes no constitute bodily harm, unless some other effect on the body (such as an illness) results

Defenses to negligence: implied assumption of risk

1. Primary Implied Assumption of Risk - where a court concludes or a statute states that the Def. has no duty or did not breach a duty to the Pl. [the ski lodge case] Or, this risk was an inherent risk of the activity the Pl. chose to participate in 2. Secondary Implied Assumption of Risk - requires a subjective test of where the Pl. knew or created the risk Contributory Neg. Jurisdiction - assumption of the risk is a bar to recovery Comparative Neg. Jurisdiction - no longer a complete bar to recover, but rather put in the comparative negligence analysis and use it to determine percentages of fault 3. Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity. Where a Pl. has knowledge of and appreciates a risk, and they voluntarily encounter it, then they have "assumed the risk" and cannot bring a claim for any harm encountered because of it assumption of risk is a subjective standard and contributory negligence was based on an objective, reasonable person standard. Holding that assumption of risk still completely bars P's recovery. In a comparative negligence jurisdiction, where the Pl. assumes a risk—which in a contributory negligence jurisdiction would have barred recovery—We are no longer treating secondary implied assumption of risk as a separate defense in the majority. If a P knew the risk and confronted it, was negligent if you knew what the risk was and tried to confront it, those are just facts jurors can use to apportion fault]

Express assumption of risk: Waivers must be clear and precise about what liabilities are waived; as well, the courts look at the intent of the parties involved when they sign the waiver which are fairly and honestly negotiated six factors that should be considered when determine whether or not a waiver is valid;

1. The agreement concerns an endeavor of a type generally thought to be suitable for public regulation 2. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public 3. Such party holds itself out as willing to perform this service for any member of the public who seeks it or at least for any member coming within certain established standards 4. Because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services 5. In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence 6. The person or property of members of the public seeking such services must be placed under the

Strict Liability on Animal Owners

1. Wild Animals Even if an animal is raised as a "domestic" animal, it may still be wild by classification (tigers, bears, monkeys, etc) Wild animals are always subject to strict liability 2. Domestic Animals Domesticated animals have a higher level of proof for the Pl. to show that liability exists The Pl. must show that the animal was abnormal and dangerous Restatement: domestic animals that owners know or have reason to know its abnormally dangerous for their species(category/class) , then you will be strictly liable for the harms related to the vicious vicinities. If an animal is domesticated and the owner knew or had reason to know it was abnormally dangerous for its species and harm results relating to that characteristic owner is strictly liable; but if what happens does not correlate to a factor that made it abnormally dangerous just use a negligence standard. Only intervening act that matters are immense acts of nature Three classes of cases for owners of animals and liability (1) The owner of wild beasts, or beasts that are in their nature vicious, is, under all circumstances, liable for injuries done by them (2) If domestic animals, such as oxen and horses [and donkeys], injure anyone . . . if they are rightfully in the place where they do the mischief, the owner of such animal is not liable for such injury, unless he knew that they were accustomed to do mischief (3) The owner of domestic animals, if they are wrongfully in the place where they do any mischief, is liable for it, though he had no notice they had been accustomed to do so before

Negligence

1. duty: did the D have a duty to exercise reasonable care in order to avoid unreasonable risk of harm to others? Cardozo: you owe a duty to victims in the foreseeable zone of danger. Andrews: you owe a duty to the whole world 2. breach: Did D's conduct, by action or omission, fall below applicable standard of care? everyone held to a reasonable person standard of care with certain exceptions: children, higher ability in the specific action that caused harm, physically disabled -for especially dangerous instrumentalities care is reasonable person standard, but the greater the danger, the greater the reasonable care required. balancing costs and benefits: economic reasonable person standard: -Hand formula: B<PL B= burden of prevention PL=expected accident cost, P= probability of loss, L- magnitude loss would be avoided 3. cause A. Cause-in-fact: but-for "But, for" test used to prove that but for the Def. action, the Pl. would not have been injured (3 alternatives) B. Proximate Cause 3 tests and Restatement: 1.Restatement (Third) sets out three factors when determining if there was proximate cause 1. The relationship between the parties 2. Reasonable foreseeability of harm to the person who is injured 3. Public policy consideration 2. directness -If there was a direct connection between act and injury ii. Treats Def. actions as proximate cause if there are no intervening actions in between the Def.'s action and the harm 3. foreseeability: Type of harm was reasonably foreseeable consequence of def conduct -Eggshell P: Restatement (Second) of Torts §461 comm. a. - A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent Pl with unusual weakness requires def to pay damages for injury not foreseen (must take pl as you find them) 4. substantial factor -1. Number of other contributing factors and their relative importance 2. Did the Def.'s conduct create a natural, continual sequence of events that led to the Pl. harm 3. The lapse of time -Restatement - foreseeability of harm to someone in def position is irrelevant to determining whether the def act is substantial factor ii. May be many substantial factors contributing to accident, thus multiple proximate causes Restatement (Second) of Torts §433(c) - ...where it is evident that the influence of the actor's negligence is still a substantial factor, mere lapse of time, no matter how long it is, is not sufficient to prevent it from being the legal cause of the other harm. c. As length of time increases (act and injury), more likely other acts contribute sig to harm, thus original act less likely to be substantial factor 4. damages: general, specific, punitive

Statute of Repose

A statute of repose limits claims to a certain number of years after the negligence occurs, although new harms might arise after that period (begin to run from time of tortious conduct)

respondeant superior doctrine

An employer can be held liable for the negligence of their employees within scope of employment based on respondeat superior a. (1) Negligence committed within the scope of their employment b. (2) Employer was negligent somehow such as negligent supervision or hiring. (pl must show employers supervision was worse than supervision a reasonable employer would have provided) ii. Contribution: Majority rule: no right to contribution between employer and employee. An employer can be held liable for the negligence of their employees based on respondeat superior, even if the employer is not negligent in some way, like in supervising the employee holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency. Typically when respondeat superior is invoked, a plaintiff will look to hold both the employer and the employee liable. As such, a court will generally look to the doctrine of joint and several liability when assigning damages. Under respondeat superior, an employer is responsible for the actions of their employee whilethe employee is under the scope of their employment 1. The employer is not liable for any actions from the point when the employee leaves work, until he returns the next time SPECIAL ERRAND EXCEPTION 1. The intent of the employee 2. The nature, time, and place of the employee's conduct 3. The work the employee was hired to do 4. The incidental acts the employer should reasonably have expected the employee to do 5. The amount of freedom allowed the employee in performing his duties 6. The amount of time consumed in the personal activity

Negligence per se

Elements: 1. There was a statute 2. D violated that statute 3. That statute was designed to protect the class P is in from the type of harm that occurred Negligence per se does not apply where the statute does not protect against the harm that occurred( case where minors had cigs and burnt down something on accident. The statute was to promote health and lower addiction rates, not to protect against accidental fires.

Defenses to Negligence: Express Assumption of Risk

Express assumption of risk Releases are valid if... (1) it covers the of activity for which we will allow waivers 2) this particular waiver is enforceable . . . Did the Def. define what type of negligence they were not liable for Is it something that was freely negotiated the more factors that are proven in the affirmative, the more likely the waiver is invalid 1. The agreement concerns an endeavor of a type generally thought to be suitable for public regulation 2. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public 3. Such party holds itself out as willing to perform this service for any member of the public who seeks it or at least for any member coming within certain established standards 4. Because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services 5. In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence 6. The person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the party of the furnisher, its employees or agents

Defense of Self and Others - The Proportionality Principle

Generally, it is not justifiable to use a dangerous weapon in self-defense if the attacking party is not armed, but only commits battery with his fists or some manner not inherently dangerous to life. However, resort to dangerous weapons to repeal an attack may be justifiable in certain cases when the fear of danger of the person attacked is genuine and founded on facts likely to produce similar emotions in reasonable men. Under this rule, it is only necessary that the actor have grounds which would lead a reasonable man to believe that the employment of a dangerous weapon is necessary, and that he actually so believes. Restatement - if you can, you are under a duty to retreat from a possible battery that could result in death or serious bodily harm, unless you are in your own home, in which case you are not under a duty to retreat. Various factors relied upon by courts to determine the reasonableness of the party being attacked are (1) the character and reputation of the attacker (2) the belligerence of the attacker (3) a large difference in size and strength between the parties (4) an overt act by the attacker (5) threats of serious bodily harm (6) the impossibility of a peaceful retreat

Liability to tenants and their guests

Generally, there is no liability on the landlord to the tenant or others entering the land for defective conditions existing at the time of the lease This is because the tenant is said to be the "owner" of the property for the time of the lease—the tenant is in a better position to negate the dangers and harm EXCEPTIONS: 1. Undisclosed dangerous conditions known to the lessor and unknown to the lessee 2. Conditions dangerous to persons outside of the premises 3. Premises leased for admission to the public 4. Parts of land retained in lessor's control which lessee is entitled to use{ Classic example is offices inside a building leased to individual persons, where hallways and stairwells are common areas still retained by lessor} 5. Where lessor contracts for repair This is where the lessor contracts with the tenant to fix the repairs; the tenant is responsible for his repairs 5. Negligence by lessor in making repair

Transfer of Intent

If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact (causing assault), and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm. If you meant to assault someone, but actually touch them, then you have committed battery. If an act is done with the intention of affecting a certain person in the manner stated above, but causes a harmful bodily contact to another (a third party), the actor is liable to such third party as fully as though he intended so to affect him. R2T16 1. If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm. 2. If an act is done with the intention of affecting a third person in the manner stated in Subsection (1), but causes a harmful bodily contact to another, the actor is liable to such other as though he intended so to affect him.

Defense of Land and Personal Property

If there is no reasonable belief that there will be damage to property, then there is still a right to use reasonable force to prevent trespass Deadly force is never allowed to be used in defense of land or property

As you read, write down what you are going to analyze except negligence then pick what you want to do your negligence analysis on last

Issue spot: add relevant facts: go through and make sure IRAC for each item in list, then go back if you have time to add relevant facts, cases, or analysis.

last clear chance doctrine

Last clear chance is another form of recovery for a contributorily negligent Pl. (Exclusively for contributory negligence jurisdiction). Here, the Pl. must prove 5 factors i. Plaintiff, by her own negligence, placed herself in a position of peril from which she could not escape ii. Defendant saw, or by the exercise of reasonable care should have seen and understood, the perilous position of plaintiff iii. Defendant had the time and the means to avoid the accident if defendant had seen or discovered plaintiff's perilous position iv. Defendant failed or refused to use every reasonable means at his command to avoid impending injury to plaintiff v. Plaintiff was injured as a result of defendant's failure or refusal to avoid impending injury If the Pl. can prove these facts, that the Def. saw a chance to avoid accident but did not take it, then the Pl. is not barred from recovery under contributory negligence (full recovery)

Land Liabiltiy approaches:

Modern: rejects three class system and opts for trespasser and not trespasser as qualifications. All Persons Who Are Not Trespassers Reasonable care must be taken to all those who are not trespassers Trespassers Land owners must only refrain from committing willful injury against the trespasser exceptions to liability: Open and Obvious; natural accumulations Natural Accumulation: Absolves the duty/liability for natural condition that is obvious. Open and Obvious Dangers Landowners intensifies the risk then it doesn't apply. Some jurisdictions apply this to artificial and natural Modern trend to do away with this rule. Comparative negligence

Rescue Doctrine

Rescue Doctrine: To achieve rescuer status one must demonstrate (1) the defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued (2) the peril or appearance of peril was imminent (3) a reasonably prudent person would have concluded such peril or appearance of peril exist (4) the rescuer acted with reasonable care in effectuating the rescue

Traditional three class system:

Restatement (Second) of Torts § 332 defines invitee 1. An invitee is either a public invitee or a business visitor. i. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. ii. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. b. Anyone else would be a licensee Trespassers: Duty to protect R: Cannot be artificial, knowledge of the condition, probability of serious bodily injury or death, condition cannot be hidden. The standard of care for trespassers is that the land owner will not act wanton or reckless against the trespasser However, when that person trespasses with intent to commit a crime, then that standard is even lower; now that standard is just to not intentionally harm the trespasser Duty to exercise ordinary care against risks landowner is aware or should be aware. a basic reasonable person standard Elements to recover for invitee: 1. had actual or constructive knowledge (knew or should have known) of some condition on the premises; 2. that the condition posed an unreasonable risk of harm; that the landowner did not exercise reasonable care to reduce or eliminate the risk; and 3. that the landowner's failure to use such care proximately caused the plaintiff's injuries or Restatement three elements 1. knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and 2. should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and 3. fails to exercise reasonable care to protect them against the danger Anyone else would be a licensee the duty that an owner owes to a licensee is to not injure him by "willful, wanton or grossly negligent conduct, and that the owner use ordinary care to either warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not." [(a standard of care not to be reckless towards licensee)] In order to establish liability, a licensee must prove 1. that a condition of the premises created an unreasonable risk of harm to him; 2. that the owner actually knew of the condition; 3. that the licensee did not actually know of the condition; 4. that the owner failed to exercise ordinary care to protect the licensee from danger; and 5. that the owner's failure was a proximate cause of injury to the licensee "Open and Obvious Dangers" and "Natural Accumulations" doctrines hold that when dangers are present that should be obvious to the Pl., then it is their job to protect themselves from the harm 1. Some jurisdictions hold the open and obvious danger rule applies to all hazards that are open and obvious, even those that are man-made.

Strict Liability for Abnormally Dangerous

Restatement § 519 - one who carries out an abnormally dangerous activity is subject to liability for harm resulting from the activity, although he has exercised the utmost care to prevent such harm Restatement § 520 sets out six factors to consider when determining if an activity is "abnormally dangerous" (a) whether the activity involves a high degree of risk of harm to the person, land, or chattels of others (b) whether the gravity of the harm which may result from it is likely to be great (c) whether the risk cannot be eliminated by the exercise of reasonable care (d) whether the activity is not a matter of common usage (e) whether the activity is inappropriate to the place where it is carried on (f) the value of the activity to the community When there are reciprocal risks, the courts should not impose strict liability - i.e., driving a car, all drivers share and impose the same risk on one another and thus no driver can be held in strict liability against another

Battery

Subject to battery if: 1. He acts intending to cause a harmful or offensive contact with the person of the other . . . , and 2. A harmful contact with the person of the other directly or indirectly results [; or] 3. An offensive contact with the person of the other directly or indirectly results 1. Act Requirement -A muscular reaction is always an act unless it is a purely reflexive reaction in which the mind and will have no share The act must be an external manifestation of the actor's will An external manifestation is something that can be perceived (standing still or doing nothing) The movement or failure to move must result from the actor's will An insane person may have an intent to invade the interest of another, even though his reasons and motives for forming that intention may be entirely irrational 2. Intent Requirement Two approaches: Dual Intent - intent to cause actual contact and that the contact will result in offense or harm Single Intent - intent only to cause the actual contact Intent denotes that the actor desires to cause consequences of his act, or that he believes with substantial certainty that the consequences are substantially certain to result from it In battery, the Pl. must show that the Def. intended to cause a contact that is harmful or offensive; which may be shown by demonstrating that the actor either a. Desired the harmful or offensive contact; or b. Believed that the harmful or offensive contact was substantially certain to result Offensive contact is contact which is offensive to a reasonable sense of personal dignity Offensive means disagreeable or nauseating or painful because of outrage to tastes and sensibilities or affronting insultingness *It is not essential that the precise injury that was done be the one intended; the tort of battery only requires that the actor intend a conduct that is harmful or offensive Battery can occur through direct or indirect contact Direct contact - person A hitting person B with his fist Indirect contact - person A firing a bullet that hits person Battery requires only intent to unlawfully invade (act) another's physical well-being through a harmful or offensive contact or an apprehension of such a contact Thus, if the actor engaged in volitional activity and intended to violate the legally protect interest of another in his person, then it doesn't matter how he does it You are liable for all the harm caused by your intentional tort

Sovereign Immunity

The court describes two situations, one in which the government can have a claim brought against it, and one where they cannot 1. The Discretionary Function Exception (DFE) - When the action is one that is based on the "judgment" of the agent of the US, then no action can be brought against the US (judgement must be grounded in public policy) i. Bars recover when the claim is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty 2. When the action is one that is based on a regulation or statute that requires performance, than an action can be brought against the US i. For example, when prison rules require that the equipment be inspected, but the employee is lazy and signs off on the inspection without actually inspecting it

Independant contractor respondeant superior doctrine

The courts show that there are eight factors to consider when determining if a person is an independent contractor whose actions are not liable to the employer 1. Extent of control exercised by the master over details of the work and the degree of supervision 2. Distinct nature of the worker's business 3.Specialization or skilled occupation 4. Materials and place of work 5. Duration of employment 6. Method of payment 7. Relationship of work done to the regular business of the employer 8. Belief of the parties

Statutes of limitations

The statute of limitations runs from the point at which a reasonably prudent person in the plaintiff's position would have discovered that another party might be liable for their injury Where one party against whom a cause of action accrues prevents the one entitled to bring the cause from obtaining knowledge thereof by fraudulent concealment, the statutory limitation on the time for bringing the action will not begin to run until the right of action is discovered, or, by the exercises of ordinary diligence, could have been discovered a. To toll the statute of limitations, the patient has the burden to show 1. (1) that the physician knew of the alleged wrongful act and concealed it from the patient or had material information pertinent to its discovery which he failed to disclose; and 2. (2) that the patient did not know, or could not have known through the exercise of reasonable diligence, of his cause of action within the statutory period

Immunities: statutes of limitation

The statute of limitations runs from the point at which a reasonably prudent person in the plaintiff's position would have discovered that another party might be liable for their injury Statute of limitations starts at the time your claim comes into existence. Clock starts ticking when it accrues. Can have or not have a discovery rule: cause of action does not accrue until you know or reasonably should have known -typically within 3 years

Intrafamilial Immunity

Traditionally: Interspousal Immunity was a common law doctrine based on the legal fiction that husband and wife share the same identity, the husband's. c. Modern: Interspousal Immunity is not recognized by all states. Here the court said that spouses can bring suits against each other; the court describes the two main reasons why these suits were not allowed and how those reasons have changed today 1. First, the courts believed that spouses might engage in fraud against the insurance companies i. The court reasoned that spouses are no more likely to commit fraud than any other two people; insurance agencies have the ability to investigate and determine if fraud exists on their own 2. Second, the courts believed that not allowing spouses to sue each other would keep the marriage more harmonious i. The court opines that instead, allowing a suit so that one spouse's insurance can cover the medical costs of the other could actually attribute "parental immunity . . . is limited to conduct constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody" d. Some states have no parent-child immunity or abolished it with regards to certain activities (auto accident)

Joint and Several Liability

Under joint and several liability, once a Pl. gets an award from a jury against a Def. that has two or more parties, she can enforce her judgment against each one of the defendants (must equal total award) ii. Def may sue other def for contribution if paid more than proper share plaintiff-friendly rule; the plaintiff can recover everything from any one of the actors involved 1. However, the Def. can enter into a contribution action against the other Def. to make them pay their percentage of fault (though it is sometimes unlikely this other party can pay up) The court reasoned that in a comparative negligence jurisdiction, each of the Def.'s faults are measured as a percentage of total fault; thus, once the total damages award is set, then each Def. must pay their portion based on their percentage of fault. The P can still collect from any single D, but the D can then recover amongst themselves.

Several Liability

Under several liability, the percentages of fault attributed to each tortfeasor is determined, and then each of them owes their percentage of the award Several liability refers to multiple defendants all being liable, but the damages are not "joint," thus the damages can be apportioned to each of the Def. Plaintiff can NOT collect all damages from 1 party c. Divisible injuries- pl must est which def caused which harm or recover nothing (each actor pays for injury caused) d. Indivisible injuries- def must est which def caused which harm or share liability between them

Warnings and instructions in product liability cases

Warnings - under this test, manufacturers are allowed to show where a warning sticker accompanied the product to reduce the dangers; the courts can determine where the sticker is actually useful in preventing harms Risk-Benefit Test - the court weighed the options of using the extra cylinders and the amount that it would have reduced the risk; as well, the truck company could have raised the price of the truck to cover the cost State of the Art: Manufacturers must keep abreast of the current state of knowledge of its products as acquired through research, adverse reaction reports, scientific literature, and other available methods We don't require a warning when the danger is open and obvious Having a warning does not preclude liability when the danger could have been averted through some design If there is no warning, bring it up because open and obvious do not require warnings, also warning does not avoid liability if the harm could have been avoided through proper design. State of the art: was the knowledge available at all at time of manufacturing and distribution.

Negligent Infliction of Emotional Distress

Zone of Danger Test - "was the person within the zone of danger that causes emotional distress?" Within a close enough physical proximity to the defendant's negligence that it might be reasonable that she could have been injured Has to be foreseeable that even though she was not injured, she could have been Court broadened the rule to go beyond the "zone of danger" Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Any non-family relationship—anyone not related by blood or by marriage—as a matter of law, fails to qualify for negligent infliction of emotional distress Elements (1) the victim must have been killed or suffered serious injury (2) the plaintiff and victim must be related as spouses, parent-child, grandparent-child, or siblings (3) the plaintiff must have observed an extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene The courts have allowed for claims of negligent infliction of emotional distress for damage or destruction of property (like a dog); the court states six public policy factors that they must consider to determine the authenticity and fairness of such a claim (1) whether the injury is too remote from the negligence (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor (3) whether in retrospect it appears too extraordinary that the negligence should have brought about the harm (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor (5) whether allowance of recovery would be too likely to open the way to fraudulent claims (6) whether allowance of recovery would enter a field that has no sensible or just stopping point In this case, the court held that there would be no sensible stopping point if they allowed the claim to be heard

Attractive Nuisance: child trespasser

a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if 1. possessor knows or has reason to know that children are likely to trespass; and 2. which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children; and 3. the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it; and 4. the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved; and 5. the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children

Assault definition

a touching of the mind - the damages which are recoverable for an assault are damages for mental trauma and distress Any act of such a nature as to excite an apprehension of a battery may constitute an assault The apprehension must be one which would normally be aroused in the mind of a reasonable person Assault - puts someone in a reasonable apprehension (expectation) of imminent (almost at once) danger Conditional "assaults" are not assault - "if you don't leave my daughter alone, I'll shoot you" - the danger is not imminent since you must continue to see the daughter "Give me your wallet or I'll shoot you" is an assault - the party should not be inclined to do something that they have a legal right not to do, or not do something they have a legal right to do

Defenses to negligence: Pure contributory negligence

any negligence on the part of the Pl. will bar recovery

Risk-Benifit factors

developed for situations where the consumer has no idea what to expect from a product; "a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies 'excessive preventable danger,' or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design" (1) The usefulness and desirability of the product—its utility to the user and to the public as a whole (2) The safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury (3) The availability of a substitute product which would meet the same need and not be as unsafe (4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility (5) The user's ability to avoid danger by the exercise of care in the use of the product (6) The user's anticipated awareness of the dangers inherent in the product and their Avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings and instructions (7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product higher or carrying liability insurance

Recklessness

knowing of the facts that would alert someone to the risk Intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another Elements 1. The person knows of the risk, and a precaution would eliminate the risk 2. The Def. knows of the risk or has reason to know 3. The precaution that would eliminate or reduce that risk are burdens that are so slight that not adopting the precautions would show the Def. not caring about the risk

Traditional Strict Liability

liability without regard to the actor's fault The Pl. does not have to show that the Def. was at fault or engaged in tortious conduct, or intended the injury, or acted negligently

Secondary Implied Assumption of Risk

requires a subjective test of where the Pl. knew or voluntarily accepted the risk (defense) a. Risks created by def that pl knowingly encounters (neg for def to create additional risks) b. Contributory Neg. Jurisdiction - assumption of the risk is a complete bar to recovery c. Modern Jurs. - Not a separate defense; now the doctrine is merged with comparative neg. (walking across icy parking lot)Where a Pl. has subjective actual knowledge of and subjective actual appreciation of risk, and they voluntarily accept it, then they have "assumed the risk"; bars or reduces pl recovery even if acted reasonably In a comparative negligence jurisdiction, where the Pl. assumes a risk it is weighed in comparison to the negligence of the Def. in determining fault and damages 1. Pl. assumption of the risk is compared like his action is negligent

Immunities: Statutes of Repose

usually in construction context, usually applied by statutes. Case where put hand through wall in dorm) A statute of repose limits claims to a certain number of years after an event occurs, although new harms might arise after that period In this case, there was a ten year statute of repose from the date the building was completed Statutes of repose like this allow designers, contractors, and constructors the ability to try new designs and new building materials in the hopes of advancing their respective fields

primary assumption of risk

where caselaw or a statute states that the Def. has no duty or did not breach a duty to the Pl. (arg that def did not breach duty to pl) a. However, Primary Implied Assumption of the Risk will not be a defense for a D's negligence, just for a risk that was inherent risk of the activity the Pl. chose to participate in (risks that are obvious and necessary)