Intentional
Intentional tort doctrine regarding mental deficiency
If mentally deficient are to live in the world they should pay for the damage they do, better their wealth to compensate victims than remain with them
Their liability will mean those who have charge of them will be stimulated to look after them, keep them in order, and see they do no harm
Mental deficiency can be faked, difficult to ascertain
Difficult to draw lines between mental deficiency and variations in temperament
Duty comes from these sources
What is:
RPPSSC
Statutes/regulations
Evidence, inferences, RUA, custom and industry, Res Ipsa
The steps to determining whether or not RS applies
What is:
(1) was there a tort committed, (2) were they an employee of the company, and (3) was it within the scope of employment
Briefly describe the 3 types of SPL
Manufacturing defect: did not come off as manufacturer intended (need better quality control)
Design: (Pinto) where it came off exactly as the manufacturer intended, every single one is a ticking time bomb
Information defect: The product comes off the line as defendant intended and with a design that is not defective condition unreasonably dangerous as long as full information and warning is given
The eggshell skull doctrine
Take the plaintiff as you find them, doesn't matter whether or not you could foresee that they had a particular condition (i.e susceptible to heart attack)
Difference between harmful and offensive contact
How is Res Ipsa used (strategically/procedurally)
To avoid summary judgment.
The kinds of liability that describe the RS doctrine
Vicarious and strict liability
Describe the social policies behind RS
employers are efficient cost spreaders
Incentive to lower cost of accidents
In best position to prevent accidents when it's in their control
Not necessarily a deep pocket theory
Manufacturer places it on the market knowing it will be used without inspection for defect - implicit in its presence on market is representation is it will do job safely
Remittitur and additur
What are procedural device(s) to address the issue of excessive or inadequate jury awards
The public policy doctrine limiting what the court considers to be offensive contact. Please define the theory.
The glass cage theory - cannot erect a glass cage around oneself and insist the world abide.
Describe causation analysis for negligence
1. Cause in fact (but-for and substantial factor)
2. Proximate cause (direct cause or foreseeability)
3. Judy really wants you to talk about damages here
The two views on whether or not smoking falls within scope of employment. Run through social policies.
What is
1. Within scope because not done in furtherance of employer's interest and is a matter personal to employee.
2. Others say if it's done while engaged in business of employer, is within scope because it is a minor deviation from employee's work-related activities and merely an act done incident to general employment.
The two analysis to find DCUD and briefly describe them
What is CET and RUA
Why might someone bring a tort claim instead of breach of contract
What is damages (make whole/restoring the contract versus the eggshell skull doctrine)
Compare and contrast the kinds of necessity
What is: Public vs. Private necessity
Public necessity or sovereign immunity (link it back to the crown) is a complete privilege (doesn't have to compensate plaintiff), based on apparent necessity, linked to natural law
Private necessity is incomplete privilege (have to compensate for damage caused)
The negligence standard/social policies for children
Held to standard of care according to children of like age, intelligence, and circumstance. It is a more objective than subjective standard but hard to apply same standard to each case. Want to let them learn by messing up.
Test that limits activities that falls within scope of employment
What is:
Foreseeability test
Whether the accident is fairly said to be characteristic of its activities. It's about efficient allocation of resources
See Ira Bushey case
The two big reasons for duty to warn (specifically info defects)
Learned Hand's analysis of contributory negligence
What is the law and econ formula
If B<(P)(L) D pays
If B>(P)(L) D doesn't pay
Coase theorem: In a world of perfect info, parties who can most cheaply and efficiently prevent harm from happening, will do that especially if supported by other side
Name the public policy arguments for assault/battery.
Deter retaliation
Personal autonomy
Source of social distress/breach of peace
Freedom of choice
Between two innocent persons, must suffer loss, it should fall on one who caused the loss (Colman)
How does a causation analysis differ when there is a preemptive cause versus a concurrent cause, try to argue P and D sides
Preemptive cause is where one happens first and concurrent is at the same time
Cause in fact would not be present with preemptive cause (luck of timing if you're second)
Otherwise try to mitigate damages, say damage would have occurred anyway, you are the but-for cause but of what
The factors that distinguish between employee and independent contractor
What are:
Working at own convenience
Control of method and means by which work is to be done (this one is key)
Free to engage in other employment
Fringe benefits received
On employer's payroll
Fixed schedule
Describe the difference between negligence analysis and info defect SPL analysis
In negligence we are focusing on conduct in terms of what the defendant knew or should have known with RPPSSC whereas in SPL RUA you are focusing on the product - see the Liriano case. Burden also shifts to defendant in Cali.
What is a tort
?