Wrongful Death & Survival
Who recovers from wrongful death cause of actions
Beneficiaries
What are compensatory damages? What are punitive Damages? What are Nominal damages?
Compensatory- Make the plaintiff whole or restore to previous status as far as possible
Punitive- Damages other than compensatory or nominal, awarded against a person as punishment for outrageous conduct and to deter the person and others from similar conduct in the future
Nominal- Not much money but more of an affirmation of the P’s rights/win
What is Contribution
Defendant held fully liable can recover from other D found liable
Who are the plaintiff's in a product liability tort?
Purchasers/buyer
Consumer/user
Those who may foreseeable expected to use the product
What is Respondeat Superior
An employer is subject to liability for torts committed by employees while acting within the scope of their employment
What are examples of Loss of Consortium
What is the Collateral Source Rule
Only payments made by tortfeasor, representative of tortfeasor, or person who believes they are a tortfeasor, are credited against tort liability. Any other payments made/benefits conferred on the injured party from other sources are not credited against tortfeasor’s liability (insurance money does not get subtracted from D’s responsibility)
What is Dollar Amount Credit
Risk to the Defendants (other)
Whatever is left over from the jury's judgment the rest of the Defendant has to pay it in full
What are the possible Defendants for a product liability cause of action (6 possible)
Multi-factor Balancing Test (7 factors)
Who can recover from a Survival Statue
The P's estate
Limitations for Damages
Failure to mitigate, and statutory limits.
What is Proportional Credit
Risk of a low settlement is on the Plaintiff.
The D pays the amount that they are found proportionally liable for
Product Liability Cause of Action Requirements?
What is a non-delegable duty Rule?
An enterprise cannot discharge its obligation of reasonable care by hiring an IC to fulfill it
True or false; a Will shall determine who gets the money in a survival staute
False, ask west Academic LOL
What is Bifurcation?
dividing the trial into liability phase and separate damages phase; Protects defendants from jury hearing about net worth of D during liability phase of trial
Jack and Jill enter into a partnership to run a delivery service. The company is called “Jack and Jill Deliveries.” Jack and Jill hire Bob to be the primary driver for the delivery service. While making a delivery, Bob runs a stop sign and causes an accident.
The injured parties seek to sue Jack and Jill personally for the damages from the accident. The probable outcome of such litigation would be:
A.) Partners, just like investors in a corporation, cannot be held personally liable for acts of employees.
B.) Partners may be held personally liable for acts of employees acting within the scope of their employment.
C.) Partners may be held liable for acts of employees only if the partner is actually negligent in hiring that employee.
D.) Partners may be held liable for acts of employees only if the partner allows the employee to perform a non-delegable duty.
B.) Partners may be held personally liable for acts of employees acting within the scope of their employment.
Partners are liable for acts of employees. That liability may be based on vicarious liability under respondeat superior, negligent entrustment or attempts to delegate non-delegable duties.
Defenses to product liability
· Comparative fault/assumption of risk by P
· Misuse of the product that was objectively unforeseeable
· Statute of limitations
· Federal or state regulations (preemption and presumption of non-defectiveness)
· Causation
Holding out: Must have either held the agent out as having authority or knowingly permitted the agent to act on its behalf
Reliance: Meaning the P was aware of these representations of authority by the principal
Dr. Pam was standing on the street corner across from the hospital. Since she was the chief of surgery in the hospital, she had crossed this street many times. Dr. Pam carefully looked both ways before crossing the street, and then started to walk forward. A car pulled around the corner, speeding and running a red light, and hit Dr. Pam. The driver of that automobile was named Jack. Several other doctors saw the accident and immediately ran to Dr. Pam’s aid. The automobile had crushed most of her body including her skull. Unfortunately, Dr. Pam appeared to have died instantly from the injuries. Dr. Pam was married to Bill. Bill was a local investment banker and had substantial income of his own. Bill and Dr. Pam had three children. The children were ages 2, 5, and 7. Bill will seek recovery from Jack for medical bills and pain and suffering suffered by Dr. Pam. Most states would hold that:
A) Bill cannot recover medical bills and pain and suffering for Dr. Pam.
B) Bill can recover medical bills but not pain and suffering for Dr. Pam.
C) Bill can recover pain and suffering but not medical bills for Dr. Pam.
D) Bill can recover medical bills and pain and suffering for Dr. Pam.
A) Bill cannot recover medical bills and pain and suffering for Dr. Pam.
Pearson, a state prison guard, brought his pet rattlesnake, Fang, to work one day. Although Pearson honestly believed the snake would not bite, his supervisor objected to the idea that the snake should be allowed to just slither around all day. To satisfy the supervisor’s concerns, Pearson decided to put Fang into a cell. After some searching, Pearson found a cell with only one occupant, a man named Crookshank who had been convicted of forgery. Assuring Crookshank that Fang never bit anyone, Pearson put Fang into the cell with Crookshank and departed. At the end of his shift he noticed a commotion around the cell, and discovered that Fang, against all his expectations, had in fact bitten Crookshank. Crookshank sued Pearson, seeking both compensatory and punitive damages. Pearson moves to strike the claim for punitive damages. What is the proper ruling on this motion?
A.) The motion should be denied because Pearson’s actions created an unreasonable risk of harm.
B.) The motion should be denied because Pearson acted with reckless disregard of the safety of the prisoner.
C.) The motion should be granted because under federal law state prison guards are immune from awards of punitive damages.
D.) The motion should be granted because punitive damages are awarded only upon a showing of actual malice, which requires a subjective intent to cause harm, which Pearson lacked.
B.) The motion should be denied because Pearson acted with reckless disregard of the safety of the prisoner.
Correct. Punitive damages are warranted when the defendant has an actual desire to cause harm, but they are usually also awarded when the defendant’s conduct evidences a reckless disregard of the safety of others. Putting a live rattlesnake in a small, enclosed space with a human being would qualify under that standard.
Bill was having trouble with his automobile. It was about 6 years old and had around 50,000 miles on it. He noticed that when he tried to stop, the brakes did not seem to hold well and they made a screeching noise. Bill took his car to the First Rate Automobile Dealership where he had originally bought the car when it was new. He felt that the dealership would be the best place to have it repaired. He took the car in and the service manager said they would take care of it. Bill left the car for the entire day and returned to pick it up around 4:30 in the afternoon. The service manager said the car had needed a full brake job, and it had been completed. Bill paid for the repairs and drove away. As Bill approached the first stop sign on the road out in front of the dealership, he put his foot on the brake pedal to stop. The pedal went all the way to the floor and the car kept moving right into the intersection. Another car had already entered the intersection and Bill’s car hit the other automobile. The driver of the other automobile, Sarah, wants to recover from Bill for the injuries to herself and her car. The most likely result of an action against Bill is:
A.) Bill is not liable since he did not do the repairs to his car.
B.) Bill is not liable since he had the repairs done by a reputable dealership.
C.) Bill is liable for the damages since maintaining working brakes on an automobile is a “non-delegable duty.”
D.) Bill is liable in strict liability since automobiles are abnormally dangerous instrumentalities.
C.) Bill is liable for the damages since maintaining working brakes on an automobile is a “non-delegable duty.”
Correct. This set of facts is one to consider the issues of vicarious liability. Bill is the “employer” of the dealership. The dealership, however, is clearly an independent contractor. They supply their own tools, determine the method of work, hire assistants, and have the appearance of independent contractors. Maintaining brakes on an automobile, however, would be considered a non-delegable duty. Such duties usually arise where there is a statutory duty by the person or the activity creates a high risk of harm. Most states have statutes which require the owner of a car to maintain working brakes. In addition, the failure to maintain working brakes creates a great risk of harm. Although vicarious liability looks like strict liability, the answer that relies upon strict liability in incorrect. Bill would only be liability for the nondelegable duty if negligence on the part of the repair company could be shown. Bill is, in fact, being held liability for the negligence of anothe
What is a breach of warranty?
Bonus 250 if you can describe the difference between Implied and Expressed breach of warranty
When a product doesn't meet the standards or promises made by the manufacturer or seller
Implied: are unwritten and unspoken promises that are automatically included in some contracts, regardless of whether the seller explicitly stated them. They are not expressed but are implied by law.
Expressed: expressly stated in the warranty
Carl was a plumber. He found an advertisement for a new job with Acme Plumbing Company. Acme Plumbing would do all of the advertising for new customers, would set up a phone line to take calls for jobs and then contact a plumber to go out to do repairs for the new customers. Acme would also have the contracts with credit card companies so customers could pay with credit cards. When Carl asked about working for Acme, he was told that he would have to be “on call” three days a week and one weekend a month. He would have to furnish all of his own tools, his own transportation to jobs, and maintain his own plumbing certification and license. Carl would be expected to follow local plumbing codes when doing repairs, but he would be responsible to make sure he carried out the work properly. He would charge customers at the rate of $65 an hour for labor, plus the cost of any parts. He would turn all of the money over to Acme Plumbing. On the first of each month, Acme would reimburse Carl for all of the cost of parts plus 60% of the money brought in for labor for the previous month. In addition to all of the above details, the contract stated, “All plumbers are to understand that they are Independent Contractors.” Carl signs up with Acme Plumbing and takes his first assignment. When he gets to the home of Mr. and Mrs. Smith, he is asked to repair a hot water heater. While doing the repairs, Carl negligently connects the gas line and an explosion occurs just as Carl is leaving the house. There is no doubt that Carl’s negligence caused the explosion.
Assume that the court determines that Carl was an independent contractor. The Smith family would still like to hold Acme liable for the damages. The court would rule:
A.) The action against Acme would be dismissed since an employer is never liable for the conduct of an independent contractor.
B.) The action against Acme can continue if the conduct of Carl concerned a “non-delegable” duty.
C.) The action against Acme can continue if Acme was negligent in allowing Carl to be out on the job.
D.) Both B and C.
D.) Both B and C.
Correct. Although some liability is relaxed for the employer of an independent contractor, there are still times when such an employer may be liable for the acts of such an employee. The best examples of when an employer of an independent contractor may still be liable are when the employee is engaged in a “nondelegable duty” or where the employer was also negligent. Examples of those conditions will be explored in other questions.