Intro to Torts
This is the definition of a tort.
What is a civil wrong, other than breach of contract, for which the law provides a remedy?
Judge Learned Hand's formula holds that a failure to take precaution is negligent when the burden of precautions is less than this.
What is the probability of harm multiplied by the magnitude of harm (P × L)?
This default test for factual causation asks whether the plaintiff's harm would have occurred absent the defendant's negligence.
What is the but-for test?
This affirmative defense completely bars a plaintiff's recovery if they contributed to their own injury in any way, regardless of how minor their fault.
What is contributory negligence?
These are the three categories of product defects recognized under strict products liability.
What are manufacturing defects, design defects, and warning defects (failure to warn)?
These five elements must be proven to establish a negligence claim.
What are duty, breach, cause in fact, proximate cause, and damages?
This Latin doctrine, meaning "the thing speaks for itself," is a form of circumstantial evidence used to establish breach.
What is res ipsa loquitur?
Under this rule, if two separate acts of negligence combine to cause a single injury, each tortfeasor is liable for the entire result even if their act alone would not have caused it.
What is the rule of multiple necessary causes (from Hill v. Edmonds)?
Under this rule, a therapist who determines (or reasonably should determine) that a patient poses a serious danger of violence to others has a duty to exercise reasonable care to protect the foreseeable victim.
What is the Tarasoff duty (or rule)?
Under this test for design defects, a product is defective if it fails to perform as safely as an ordinary consumer would expect.
What is the consumer expectations test?
This tort remedy forbids or requires certain actions rather than awarding money.
What is an injunction?
These are the three elements a plaintiff must establish to invoke res ipsa loquitur.
What are: (1) the event ordinarily does not occur absent negligence, (2) the cause was under defendant's exclusive control, and (3) plaintiff did not contribute to the events?
In cases where two defendants each created an identical sufficient cause of harm but only one actually caused it, this doctrine shifts the burden to the defendants to prove who caused the injury.
What is alternative liability (from Summers v. Tice)?
These are the three forms of comparative negligence: pure, modified 50%, and this third form, under which a plaintiff may only recover if their fault is less than the defendant's.
What is the modified 49% (or "less than") form of comparative negligence?
This products liability doctrine allows a defect to be inferred from circumstantial evidence when the incident is the kind that typically results from a product defect and was not solely caused by factors other than the defect at sale.
What is the malfunction theory?
Under this standard, an actor is judged by what a reasonably careful child of the same age, intelligence, maturity, training, and experience would have done.
What is the children's negligence standard?
In medical malpractice cases, breach is assessed using these two standards rather than the ordinary reasonable person test.
What are customary practice in the industry and expert testimony?
This doctrine permits a defendant to be liable only in proportion to its share of the relevant market when the specific defendant who caused harm cannot be identified.
What is market share liability?
These are the three Gore guideposts used to assess whether a punitive damages award is constitutionally excessive under the Fourteenth Amendment.
What are (1) the degree of reprehensibility of defendant's conduct, (2) the disparity between harm and the punitive award, and (3) comparison to civil penalties in similar cases?
Under strict liability for abnormally dangerous activities, the plaintiff's recovery is reduced by this, even though there is no element of breach or duty to prove.
What is the plaintiff's comparative negligence (failure to take reasonable precautions)?
This doctrine holds that when a defendant faces a sudden, unforeseen emergency not of their own making, they are held to the standard of a reasonably prudent person in that same emergency.
What is the sudden emergency doctrine?
Under this disclosure standard, a physician must disclose what a reasonable patient would consider material to their decision, rather than what a reasonable physician would disclose.
What is the patient-centered standard of informed consent?
This proximate cause doctrine holds that a defendant must take the plaintiff as they find them, making the defendant liable even for unforeseeable aggravation of a pre-existing condition.
What is the eggshell skull (thin skull) doctrine?
Under respondeat superior, an employer is not vicariously liable when an employee deviates so substantially from employment duties that it constitutes this, as opposed to a mere detour.
What is a frolic?
This doctrine exempts a seller of an inherently unsafe but socially necessary product—such as a prescription drug—from design defect liability even though the product cannot be made safe.
What is the unavoidably unsafe products doctrine?