BREACH/STANDARD
RES IPSA ELEMENTS
1. event of kind ordinarily doesnt occur without negligence
2. defendant & 3rd parties sufficiently eliminated by evidence
3. (3) options by judge
* interference of negligence
* rebuttable presumption
* rebuttable presumption with shift of burden to defendant
DEFAULT RULE?
ordinary reasonable person under the circumstances
3 LIMITATIONS FOR PHYSICAL HARM?
1. FORESEEABILITY
2. POLICY
(social host, crushing, Pharma)
3. NONFEASANCE
4 UNEXPECTED CATEGORIES? (PROXIMATE CAUSE)
1. UNEXPECTED EXTENT OF HARM RECOVERY
2. UNEXPECTED TYPE OF HARM
3. UNEXPECTD PLAINTIFF (NO RECOVERY)
4. UNEXPECTED MANNER
COMPENSATORY DAMAGES CATEGORIES?
ECONOMIC LOSSES
-- MEDICAL BILLS
-- LOST WAGES
NON-ECONOMIC LOSSES
--PAIN AND SUFFERING
Duty outside premises? (premises liability)
Generally, no duty on owner to protect persons outside premises.
Plaintiff cannot recoer if negligent in causing harm?
Contributory Negligence
Elements of Assault
1. intentional (dual intent)
2. apprehension
3. of an imminent threat of harmful or offensive contact
must be severe, requires expert testimony or objective evidence, or both
(element of IIED)
severe emotional distress
Trespassing Animals rule
owner/possessor of livestock or barnyard animals that intrude upon another's land is subject to strict liability for harm caused therefrom.
BREACH ELEMENTS?
1. RES IPSA
2. CUSTOM
3. HAND TEST
4. COMMON SENSE
PROFESSIONAL RULE?
Ordinary reasonable member of same profession under the circumstances
EXCEPTIONS TO THE LIMITATIONS OF PHYSICAL HARM?
1. CAUSING THE PERIL/CONTINUUING RISK
2. SPECIAL RELATIONSHIPS
3. VOLUNTARY UNDERTAKING
CAUSE IN FACT TEST:
BUT FOR TEST?
GOAL OF PUNITIVE DAMAGES?
DETERRENCE
Duty on premises? (Premises liability)
Duty varies on entrant status and can change
Exceptions to contributory negligence
1. Greater degree of blame
2. Safety statutes
3. Last clear chance
Single Intent is...
Intent for the act
purpose / goal
Substantial certainty / knowledge to a near certainty
Elements of Trespass to Land
Intent (single)
Entry upon Land in possession of another by self or object
or remaining on another's land
or failing to remove object from another's land
Wild Animals rule & elements
Owner/possessor of wild animal subject to strict liability for harm caused therefrom.
1. wild animal belongs to a category of animals not generally domesticated in general locale likely to cause harm unless restrained
2. possession required.
B<PL
Professional rule does not apply to...?
Police ~ 5-0
Clergy
Teachers
DUTY OR NO DUTY FOR PHYSICAL HARM?
GENERALLY, THERE IS A DUTY.
FOR CAUSATION WAHT TWO TYPES OF CAUSATION ARE REQUIRED?
CAUSE IN FACT AND PROXIMATE CAUSE
REQUIREMENT FOR PUNITIVE DAMAGES?
CLEAR AND CONVINCING EVIDENCE
EXCEPTIONS OF NO DUTY OF OUTSIDE PREMISES?
Trees: if owner knew or should have known the tree is defective and fails to take reasonable precautions
Artificial Land: if owner alteres land, they must exercise reasonable care for those outside the premises.
Plaintiff may recover even if negligent in causing harm
Comparative negligence
Intent for the harm/offense
purpose/goal
substantial certainty/knowledge to a near certainty
Elements of trespass to chattels
intent (single)
intermeddling with another's chattel
causing dispossession, damage, deprivation of use for a substantial time, or harm to body or property.
Domestic animals rule and elements
owner possessor that knows or should know of animal's viciousness subject to SL for harm caused
1. viciousness
dangerous tendencies abnormal to animal's category cannot be due to particular breed.
WHAT DOES RES IPSA GET YOU?
GETS CASE TO A JURY
Professional conduct questioned...?
1. possession of knowledge
2. exercise of best judgment
3. use of due care
DUTY OR NO DUTY FOR PURE ECONOMIC HARM?
NO DUTY WHEN ECONOMIC HARM DOES NOT RESULT FROM PERSONAL INJURY OR PROPERTY DAMAGE
ALTERNATIVES FOR CAUSE IN FACT?
LOSS OF CHANCE
SUBSTANTIAL FACTOR/MULTIPLE SUFFICIENT CAUSES
ALTERNATIVE LIABILITY
MARKET SHARE LIABILITY
SPECIALS TIMES THREE IS FOR WHAT KIND OF DAMAGES?
NON-ECONOMIC COMPENSATORY DAMAGES
Duty for trespassers?
P recovers in proportion to defendant's negligence %
(comparative negligence)
Pure
Elements of Battery
Dual Intent (split)
Touching
That is harmful or offensive
Factors for element of chattels --> causing dispossession, damage, deprivation of use for a substantial time, or harm to body or property.
a. dispossession
b. impairment as to condition, quality, or value
c. deprivation of use for substantial time
d. bodily or economic harm caused
Abnormally Dangerous activities factors / element
1. inability to eliminate risk by due care
2. inappropriateness of locale
3. extent to which benefits outweigh costs
4. extent to risk and likelihood of serious harm
5. common usage
IS CUSTOM DISPOSITVE OF DUE CARE?
NO, BUT ITS RELEVANT
Standard for medical malpractice?
CUSTOM
1. same/similar locality rule
2. national standard rule
EMOTIONAL DISTRESS CASES, WHAT ARE THE DIRECT HARM RULES?
1. ZONE OF DANGER
2. PHYSICAL MANIFESTATION RULE (MOST JURISDICTIONS)
WHAT ARE CONCURRENT CAUSES?
WHEN SEPARATE ACTS OF NEGLIGENCE COMBINE TO PRODUCE A SINGLE INJURY, EACH TORTFEASOR FULLY LIABLE EVEN IF NEITHER ACT ALONE WOULD HAVE CAUSED THE INJURY
STANDARD FOR PAIN AND SUFFERING?
NO STANDARD
exceptions to duty for trespassers?
1. known presence
2. frequent trespassers/limited area
3. attractive nuisance (children)
P can recover as long as they aren't more than 30% responsible
slightly
Elements of False Imprisonment
Restraint
Unjustified
Elements of Conversion
Intent (single)
exercise dominion or control
that so seriously interferes with another's right that they receive the full value of it
Recovery of Property Elements
1. fresh pursuit
2. demand made
3. reasonable force
4. mistake
METHOD OF OPERATIONS? (CUSTOM)
Constructive notice of dangerous condition not required if entire method of operations is poor
Statute standard?
statute inserted into reasonable person standard
WHAT IS THE PHYSICAL MANIFESTATION RULE?
DEFINITE AND OBJECTIVE
PHYSICAL INJURY
PRODUCED DUE TO EMOTIONAL DISTRESS
ORDINARY PERSON WOULD SUFFER SUCH A REACTION
WHAT IS PROXIMATE CAUSE?
HARM WAS THE HARM WITHIN THE RISK OF TEH DEFENDANT'S CONDUCT
ONE LUMP SUMP PAST + FUTURE FOR WHAT KIND OF DAMAGES?
COMPENSATORY DAMAGES
Duty to warn of known dangers (including firefighters and police)
Plaintiff voluntarily exposed themselves to the risk
Assumption of Risk
Methods of restraint??
physical barriers
physical force
other duress
asserted legal authority
1. reasonably believed conduct necessary to prevent risk to life or health
2. reasonably believed necessary
3. had no reason to believe plaintiff would not have consented
that so seriously interferes with another's right that they receive the full value of it, what are the factors?
conversion
defendant's intent
defendant's good faith
extent and duration of interference
harm to chattel
inconvenience and expense to plaintiff
Applying Statutes.. Common law?
Compliance is evidence of due care, not dispositive of no negligence.
Requirements for statutes?
1. party seeking to prove violation is member of class sought to be protected
2. hazard was one sought to be protected against
3. statute appropriate
RULES FOR INDIRECT HARM (emotional distress)
1. Plaintiff has close familial relationship
2. present and aware of injury being caused
3. Plaintiff suffers emotional distress beyond that of disinterested witnesses
4. emotional distress reaction is not abnormal
5. PHYSICAL MANIFESTATION RULE
ELEMENTS OF PROXIMATE CAUSE?
1. UNEXPECTED CATEGORIES
2. INTERVENING/SUPERSEDING CAUSE
3. PUBLIC POLICY
INDEMNIFY THE PLAINTIFF
Duty for invitees?
Duty of ordinary reasonable person under the circumstances, includes public employees and officials.
Elements & factors for express waiver (assumption of risk)
1. Did the exculpatory clause unambiguously excuse the defendant's negligence?
a. valid contract provision
b. clear language
c. scope of provision (language must excuse a specific type of harm)
2. Did the excuse violate public policy?
a. cannot be intentional, reckless, grossly negligent, willful and wanton
b. bargaing power is unequal
c. transaction involves public interest
what is not a reasonable means of exit?
exposure of person
danger of harm
harm to clothing
plaintiff doesnt know about it
Plaintiff was willing for the act to occur (defense)
Actual Consent
Self Defense/ Defense of others elements
1. reasonable/subjective belief of danger
2. objective circumstances support the belief
3. force proportional to threat
4. duty to retreat
(common law, stand your ground, caste doctrine)
Informed consent.. privilege exists if...?
2. disclosure is detrimental to care
3. emergency situation
What does not require expert testimony in medical malpractice?
1. leaving in scalpel/sponge
2. operating on the wrong party of body
3. harm to another part of the body
GENERAL RULE:
THERE IS A DUTY TO TAKE CARE TO AVOID PHYSICAL HARM
INTERVENING CAUSES INCLUDE?
IRRESISTIBLE IMPULSE SUICIDE
SUICIDE WITHOUT PLANNING
several defendants can be sued jointly with the others for damages, and each is individually liable for the full amount?
Joint & Several Liability
Duty of Landlords?
Generally, no liability to tenant/entrants for defective conditions existing at the time of lease.
Defendant is not liable because plaintiff negligence contributed to the harm
Secondary implied unreasonable
Elements of IIED :(
Intent (dual)
Reckless
Extreme and Outrageous
That Causes
Severe emotional distress :(
elements of actual consent
Capacity (age & sober)
Free of duress
subjective willingness
Defendant acted within scope of consent
Defense of Property elements
1. clear notice of danger
2. Prevention of commission of crime
Exception to duty of Voluntary Undertaking?
Abandoning rescue - no duty to rescue
SUPERSEDING CAUSES ARE ...
UNFORESEEABLE, EXTRAORDINARY, INDEPENDENT INTERVENTIONS
Each defendant is only responsible for their share of the harm/damages.
Several Liability
Exceptions to duty of landlords?
1. undisclosed dangerous conditions known to LL unknown to lessee
2. conditions dangerous to persons outside premises (trees)
3. premises leased for public admission
4. land retained in lessor's control (common areas)
5. LL contracts to repair
6. LL negligent in making repairs
Elements of Secondary Implied Unreasonable
1. actual knowledge of the risk
2. appreciated the magnitude of the risk
3. voluntarily encountered the risk
Extreme and outrageous factors?
relationship
abuse of power
known vulnerability
motivation of defendant
repeated conduct
elements of apparent consent
1. subjectively believed plaintiff consented
2. objective circumstances support the belief
3. conduct is within the scope of consent
Limitations on strict liability
1. Scope of liability - what caused harm must be what makes it abnormally dangerous
2. foreseeability - no SL if unforeseeable
3. comparative fault/reasoning
(loss of chance) P cannot recover if already less than 50% chance is what rule?
Traditional rule
Respondeat Superior Elements (Vicarious Liability)
1. apparent authority
2. control of means and methods
3. non-delegable duties
4. acting within scope of employment
differences between a licensee and an invitee?
licensee = guest
Examples: social guests, friends, someone cutting across property with permission
invitee = there for benefit of the owner
Examples: customers in a store, people in a public park, restaurant patrons
requirements for alternative liability?
1. All Defendants breached
2. All potential defendants that have breached ar sued