Affirmative Defenses
What are the three general categories of affirmative defenses? Identify all scenarios relating to defendants.
1. Those relating to the plaintiff's conduct
2. Those relating to the defendant's identity; Exemption based on role defendant plays in society-too big to let fail so let them off the hook and sovereign immunity
3. Those operating as a matter of law
What are the characteristics of pre-existing special relationships?
1. Authority/Vulnerability
2. Control/Lack of Control of General Surroundings/Situation
3. Knowledge/Naivete of potential risks
Explain how industry custom can affect breach analysis?
Industry custom is not dispositive of reasonableness but can demonstrate reasonableness however failure to comply with a professional custom is breach
Explain Multiple Sufficient Causes including: What is it (major problem), the but-for test, and any other important factors
1. Each exposure was sufficient to cause the injury so it is impossible to determine who is the liable actor
2. But-for test works as normal for both; use traditional test
3. Allows us to hold either actor fully liable because they both pass the but-for test
How are statute of limitations used as an affirmative defense?
Defendant must raise and prove them because they are not automatic, default, or self-executing
What are the two forms of assumption of the risk (describe them), what are we looking for to prove it, and what does it do to recovery?
1. Express (writing) or Implied (via conduct)
2. Looking for plaintiff to have encountered risks fully conscious of them, doing that willingly, and being reasonable in doing so
3. Complete bar to recovery
What are two special groups of trespassers where a different duty is owed than to other trespassers?
Child trespassers and known trespassers
Explain the hand formula by describing what B, P, and L mean. Assess the following scenarios: B<PL, B=PL, B>PL.
P is probability that injury would have resulted with/without the breach behavior, B is burden (typically financial) needed to prevent loss, and L is the loss or injury potential
B<PL: Must take precaution
B=PL: Do not need to take precaution because no preponderance of evidence
B>PL: Do not take precaution; too costly
Explain Insufficient Evidence including: What is it (major problem), the but-for test, and any other important factors
1. Might have multiple causes but cannot prove anything with a preponderance of evidence as the but-for cause
2. Use regular but-for but none of the causes will pass
3. Need to at least prove sufficiency of evidence for one actual cause but each has to be independently sufficient to begin with
What is the difference between a statute of limitation and a statute of repose? What does tolling do?
Statute of limitations does not start until plaintiff knows or should know of injury; statute of repose starts the minute the tortious act occurs regardless of knowing about the injury
Tolling pauses the running of the clock
If dealing with express assumption of the risk, what 3 factors might allow us to void it?
1. Contract of adhesion
2. Unclear exculpatory clause
3. Violates public policy
What is the current general rule for child trespassers?
If a possessor of land has reason to foresee minors entering the property for any reason AND has reason to foresee a condition on the property that would endanger them, have a duty to take reasonable care to avoid harm to minors by either preventing them from entering property or fixing hazard.
What are the two pieces of evidence a Res Ipsa victim will have?
1. That the defendant acted in some undetermined manner toward the plaintiff
2. During or subsequent to the interaction, the plaintiff suffered an injury
Explain Alternative Causation including: What is it (major problem), the but-for test, and any other important factors (specifically its required elements and how this affects the burden of proof)
1. It is no more likely that one party caused the injury than the other so there is no preponderance of evidence for either cause
2. But-for test as normal means neither can pass
3. Injury occurred in a closed universe where all actors who could have caused injury are identified, each defendant is equally likely to have committed injury, and cannot be the fault of plaintiff; Shifts burden of proof to defendants to disprove own fault or share liability since they have the evidence and desire to get off the hook
What is the difference between the accrual rule and the discovery rule?
Accrual rule starts clock when defendant acted carelessly and the act caused harm
Discovery rule starts clock when the plaintiff knows or has reason to know that an injury was suffered and inquiry into injuries is warranted and would produce evidence of connection
Describe the three types of comparative fault regimes and which should we use in class?
1. Contributory negligence: If you are at fault at all, no recovery
2. Pure Comparative negligence (USE THIS): Whatever percent you are at fault, damages are reduced that percent
3. Modified Comparative negligence: Bars recovery if you are equally or more at fault (depending on jurisdiction), otherwise reduces damages proportional to fault
What are the three categories of entrants on to property: define them and what duty is owed to each? What are minority approaches to these three groups (there are 2)
1. Trespassers: People with no permission to be on property; generally no duty owed except refrain from intentionally injuring
2. Licensees: People with permission to be on property as social guests; duty to warn of known and hidden dangers that possessor knows or should know of
3. Invitees: People on property to further business purposes; duty to keep premises in reasonably safe condition.
Some jurisdictions conflate lump licensees in with invitees and some eliminate all three categories
What are the three features of a Res Ipsa Loquitur analysis and when the pieces are proven what does it do in a negligence case?
1. Injury happens in a way that ordinarily does not occur absent carelessness on someone's part
2. Instrumentality causing the injury was in the defendant's exclusive control
3. Injury was not the result of any acts or carelessness on the part of the plaintiff
--Earns a jury instruction that the jury may infer breach unless the defendant presents evidence proving otherwise.
Explain Concert of Action including: What is it (major problem), the but-for test, and any other important factors
1. Two defendants independently engaged in same breach conduct jointly but we can't find the one who caused the actual injury
2. But-for test works for someone we can't find so we allow it to transfer to the person we can find
3. Allows plaintiff to recover against a person who was negligent without them needing to have actually caused the injury
What is respondent superior (when does it apply) and what type of liability is it?
The employer is subject to liability for tortious conduct committed by employees. Need an employer-employee relationship and the act needs to have occurred within the scope of employment. It's a form of vicarious liability.
Explain sovereign immunity (including trial and damages) and how this works with the FTCA and the Westfall Act.
The government (sovereign) cannot be sued; no juries, some general exclusions of wrongdoing, and no punitive damages
FTCA: Can sue government under respondent superior for torts of government employees but with exceptions (such as discretionary functions)
Westfall Act: Individual government employee immunity for tortious acts within the scope of employment
What must be proven to claim duty to prevent a slip or fall?
What are the two interpretations of assessing whether medical treatment was reasonable?
1. Professional standard based on what other medical professionals would say is reasonable care
2. Prudent patient standard based on informing of ALL material risks
Explain the Successive/Preempted Causes/Doomed Plaintiff rules
These are one off cases where someone's negligence interceded with Mother Nature or another act of negligence that would have resulted in death
Plaintiff would be injured/dead either way and the but-for test is impossible because of the intervening act
Jury gets to decide how to award damages: maybe cost of death vs severe injury or value in suffering different types of death...
What does it mean to be within the scope of employment and what is the difference between a frolic and detour?
1. Must be characteristic of employment (defined broadly)
2. Detour is slight deviation from expected course or route but still on employer business; frolic deviates employee so far from employment they are on own business.