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Intentional Torts ( is liable for X if:)

Battery:
Battery:

(1)

acted (2) intending
acted
(2)
intending

to (3)

cause (4) harmful or offensive contact
cause
(4)
harmful
or offensive contact

[1-(direct or indirect) 2-(intent v. dual intent, substantially certain) 4-(offensive to

reasonable sense of personal dignity, eggshell doctrine, contact to things closely attached to body)]

Assault:

(1)

acts

(2)

intending

to (3)

cause harmful or offensive contact or imminent apprehension

reasonably believes is a present ability to inflict it

.

of it and (4)

[2-(intent or S/C), 3-(be careful of indirect here, must be aware) 4-(apprehension of imminent not future

causes imminent apprehension

and (4)

∏

contact)] Go for assault on every battery. Intent xfers, need only show was aware of imminent battery.

FI:
FI:

(1)

acts
acts

with (2)

intent to confine

, which (3)

results in confinement

and (4)

is conscious of confinement or harmed

by it [1-(direct or indirect), 2-(confine within

boundaries fixed by actor), 4-(harm is dignitary, so conscious of confinement suffices) Shopkeeper Defense-(reasonable detain for reasonable time upon reasonable belief —mistake ok) susceptible to implied consent]

IIED: ∆, by
IIED:
∆, by

(1)

extreme or outrageous conduct

, (2)

intentionally or recklessly

(3)

causes
causes

(4)

severe emotional distress

[1-(transcends bounds of decency, objective

std. subject to some circumstances (racial slur in special relationship was enough, no eggshell, but knowledge of fragile state may apportion extreme/outrageous), 2-(reasonably certain works, intent may xfer to family if present & knows of presence), 4-(w/o bodily harm, courts more careful - tends to look for history of treatment not Jones)]

INTENT: Intent xfers between all to all, except IIED, eggshell all but IIED, intent vs. Insurance Intent xfers between all to all, except IIED, eggshell all but IIED, intent vs. Insurance or Workers Comp: [TX Ass&Bat: intend, know, reckless +harm]

Defenses to intentional torts (Most affirmative with preponderance burden, but consent sometimes attack against prima facie, instead of affirmative)

Implied Consent

- conduct reasonably understood as consent (circumstances relevant, reasonably understood as manifested. view from )

Medical/Informed Consent

- must show (1) failed to inform adequately of material risk before securing consent (2)being informed would have not caused no to

consent (3)uninformed risks manifested due to unconsented treatment

Emergency Action w/o consent:

Valid defense if: emergency makes it (1)necessary or apparently necessary, in order to (2)prevent harm, to (3)act before opp. to

get consent and actor has (4)no reason to believe that one unable to consent would not consent if had opportunity.

Scope of Consent:
Scope of Consent:

No more than consented to. EXCEPT: Medical -> internal: Dr. has implied consent for anything in area of orig. cut, when sound prof.

judgement determines correct surg. procedure is to extend scope. valid as consent

Consent in Custom

[sports] - Consent to near all in game, either allowed or tolerated by rules - but so reckless beyond range of ordinary in sport - no consent

- Some JX - Yes. Some JX: Cannot consent to criminal. Texas: Cannot consent to criminal (to avoid liability)

Consent to Crim behavior

Duress kills consent

: Duress and special relationship considerations. Fraud kills consent: Fraud as to act. inducement ok [i.e. Iʼ m rich, sleep with me - sex is act

- consented to sex. But fake Dr. get consent for exam. act is intercourse. consent by fraud]

Lack of Capacity kills consent

Lack of Capacity kills consent

Defensive Force

Lack of Capacity kills consent Defensive Force

[Intox, diminished mental ability, minors]

(self or others) [no deadly force]

: Actor can use (1)reasonable force (2)not intended or likely to cause dearth or serious bodily harm to defend

himself or others against unpriv. harmful or offensive contact or other bodily harm when he reasonably believes other is about to intentionally inflict on him. No

duty to retreat.

or serious bodily injury which can safely be prevented only by immediate use of such force. [no retreat in dwelling place-unless also place of others][duty to retreat if accurate or reasonable belief that, with complete safety, retreat or relinquish exercise of right or priv. (other than as above)][force not in excess relative to attack]

[deadly force]

same statement but, to use deadly force must reasonably believe other about to inflict intentional contact that will put in peril of death

JX SPLIT of Defense of Others

JX SPLIT of Defense of Others

Defense of Property:

JX SPLIT of Defense of Others Defense of Property:
Majority :
Majority
:

if defense of other is mistaken belief, defense not avail.

Minority
Minority

: Mistaken belief re: need to intervene is avail

Privilege to use force necessary for protection of property, must request desist or believe request will be useless or substantial harm done

before can be made (force to cause death or serious bodily harm never ok) ((spring gun)

Necessity: Parental : Legal Auth:
Necessity:
Parental
:
Legal Auth:

(in saving life or property) justifies entry onto another ʼ s property. Where such necessity taken, actor likely liable for actual damages for use

Priv. by parents to use reasonable force. Some JX extend to teachers and schools officials

Public officials have priv to detain, contact, trespass w/ limits: police restrained to detain by reasonableness(4th amnd), harm to prop may be subject

to comp under takings clause

Imputing CIF (Liability) Cause in Fact / Actual Causation general - act can cause specific
Imputing CIF (Liability)
Cause in Fact / Actual Causation
general - act can cause specific - did cause harm
Proving General Causation
(Scientific)
Dauber
t (no longer
frye
, where evid. must be generally accepted by experts) - admitted when: evid. based on
Overdetermined
Underdetermined
Market Share Liability
testable theory or technique, which has undergone peer review, technique - has known error rate and
standards of control?, underlying science generally accepted) - General is threshold, must still prove specific
Proving Specific Causation
Housley:
good health->accident then bad health. if reasonably possible causal connection between accident
and injury. “actual causation met”
Probabilities:
Circumstantial
Not enough to show CIF
may be enough w/ general
Strict Liability
Look for when: Animals, dangerous substance or instrument, or something escaping form land
(A or B, not both cause)
2 nearly simultaneous,
similar neg. causal. Indep
committed, only 1 of 2
caused, but nature of ∆s
acts prevents ∏ from
knowing which caused:
Strictly Liable when: ∆ʼ s conduct caused the harm
Policy:
Who should bear expense of the injury?
- Or, what company in best position to assess risk and determine insurance need
(A&B Cause)
2 or more indeterm, neg.
acts (i.e. delete one harm
same) - indep, actual
cause - each sufficient to
cause
THEN Joint and Several
Liability (check compare/
contrib neg)
Burden Shifts to ∆s
(Summers v. Tice)
If ∏ cannot prove which of
three or more “persons”
caused the injury but that all
could have; court require
each ∆ to pay percentage
based on their market share
at the time of the injury.
(Pharma and few other uses)
(Sindell)
Market def (US, state, or
area)
- Essentially negligence, where duty breached upon causing harm.
- Distributive Justice
Animals:
Common law
: those that possess, confine, manage animals capable of harm to persons/property held strictly
Vicarious Liability
liable when animals escape and cause harm
-
2-3 Categories = Wild Animals, Livestock, Domestic (dog, cat, housepets) - domestic maybe not strict unless
owner knew of dangerous propensities of animal
-
Rstmnt 3d
is strict liability on wild animals and abnormally dangerous animals
-
Livestock and domestic prob. not strict liability w/o knowledge that abnormally dangerous
-
Must still cause harm (tripping on lion not strict liability alone)
Escape from Land
-
If bring something on land, strict liability to keep it contained (i.e. water reservoir)
- UNLESS done out of necessity or contemplated in original grant
- Cases: Strict liability yes - built reservoir, broke, caused water damage off property. no - well site run-off
basin built, leaked onto other property with damage run-off basins necessity of TX oil biz
Abnormally Dangerous Activity
-
∆ does abnormally dangerous activity strictly liable for all harm resulting to kind of harm that makes activity
abnormally dangerous (gas truck crashes - strict liability if explosion, not if damage only from truck impact)
Joint Enterprise
Two or more join together
in enterprise, which each
has equal right to control
others conduct.
Negligent conduct of one
is imputed to all others
Elements:
-
Factors
to determine “abnormally dangerous” -
agreement
(express or implied to do
-
Existence of high degree of risk - of some harm to person, land, chattels
enterprise)
- likelihood that harm that results from it will be great
manifest intent
to be associated as join
- inability to eliminate risk by reasonable care
joint interest
, by contribution
- extent to which activity is not a matter of common usage
degree
of joint proprietorship
- inappropriateness of activity to place it is being done at
provisions
for sharing profits and losses
- extent to which value to community is outweighed by dangerous attributes
-
Not applicable if but-for ∏ʼ s abnormally sensitive character there would be no harm
Generally: formal K establishes biz
(sharing of profits and mutual control)
-
Rstmnt 3d
: abnormally dangerous = strict liability for harm resulting from activity
-
abnormally dangerous
is: activity creating foreseeable & highly significant risk of harm even under
reasonable care AND activity is not one of common usage
Theories of Tort Purpose and Policy
BUT: Injured ∏ from car crash - ∏ trying
to hold passengers responsible for driver ʼ s
neg. Defense use also: ∆ use to
establish contrib. neg. against ∏ʼ s
passengers
Corrective
- one who wrongfull injures another must make them whole
Instrumental
-
Incentives to act carefully in future
Law and Econ
-
about reducing cost of accidents efficiently
Family Purpose:
Many states - Judicially
Social Justice
-
Public policy / Social control - police conduct of others
Distributive Justice
-
Aim to restore individuals that which they are entitled
Enterprise liability
-
accident cost should be internalized by activity and distributed among participants in it
Pragmatism
-
Tort law is product of each situation - No robots on bench, personalities matter
Respondeat Superior
Master/Servant
“Masters held vicariously liable for torts of their
servants committed while in scope of employment”
M/S relationship - consensual, where one performs
services for another and master controls/right to
control conduct of servant. (Need not be paid. )
Generally no indep contractors
Indep or Emp: distinct op or biz, skill req. in part.
operation, time employed, method of payment and by
time or by job
Scope of Emp test (factors): act commonly done by
servants of sort in part. case, previous M/S
relationship, if master has reason to expect action,
similarity in quality of act to authorized act, belief in
M/S relationship?
Master liable for indep. K when - negligent in
choosing, training or supervising, some duty out of
relation, work specifically, pecularly, or inherently
dangerous
Critical Theorists
- tort law dominated by [
feminist
- gender roles & power] [
race
- racial dynamics and power]
developed special rule, which under
certain circumstances, imposes vicarious
liability upon automobile owners for harm
caused by persons to whom the cars have
been loaned or made available
Duty Reasonable Person Possessors of Land Generally, must conform to that of a reasonable person
Duty
Reasonable Person
Possessors of Land
Generally, must conform to that of a reasonable person
under the circumstances (composite of community ʼ s
judgement)
Circumstances Considered:
Duty re:Land (Invitee/Licensee/trespasser most->least)
Special relationships that up duty
I.
Invitee
(Pub invitee- member of public invited to enter for purp. for which land is open biz invitee -
invited to enter/remain purp. direct/indirect connected w/ biz dealings with possessor)
Common Carrier
-
protect against unreasonable harm and give first aid after
A.
liability for condition that caused physical harm if:
Physical (ie blind) - yes vs. mental (low iq) - no
- but if mental illness sudden w/ no warning - likely
1. knows or by reasonable care would discover condition and that it involves unreasonable
risk
know or reason to know ill or injured and to care until cared by others
(Innkeeper)
Assumption of duty
- required by law or voluntarily takes custody under
Emergencies
-
yes (conform to act as reasonable
2.should expect invitee not discover or realize danger or fail to protect themselves
would under emergency
3.and fails exercise reasonable care to protect
Knowledge & Skill
-
If so possessed beyond most
II.
Licensee
(consent to be on property)
others, then are circumstances
A.
liability for condition that caused physical harm if:
circumstances such as to deprive of normal opp. for protection under similar
duty
Master/Servant, Fam., Store/Customer, hotel/guest, school/pupil, Jailor/
Prisoner
Kids
-
<5 - no negligence, >5 then act as reasonably
1.
knows or reason to know (reasonable person can infer) of condition and should realize
Reliance creates duty
- if practice known, educated reliance upon, any
careful kid of same age, intelligence, experience: BUT
when child in dangerous activity chara. taken by adults,
held to adult standard
ill rule - >14 - rebuttable presump. of adult, 7-14 -
presump of unable to meet adult std., under 7 - no
negligence
unreasonable risk to licensee, and should expect they not discover or realize
unreasonable practice or abandonment w/o notice violates duty
2. fails to exercise reasonable care make condition safe or fail to warn of condition and risk
Duty to rescue
- no general duty, but act w/ due care if undertaken (deters
3. licensee not know or have reason to know of condition and risk
others from rescue)
III. Trespasser
(no priv. to enter or remain)
Duty when you cause harm
- If you cause harm, duty to assist (liable as to this
A.
refrain from wanton and willful (no duty to unknown trespasser)
duty only if/for injures directly result from failure of this duty)
B.
Constant trespasser
(artificial conditions only)
Duty to Warn othe
rs - Tarasoff - Dr. duty to warn 3rd about threats - dr. held to
1.
liability for bodily harm from artificial condition if (1)poss. created or maintains (2)to his
reasonable similar professional under similar circumstances
knowledge likely to cause death or s.b.h. to tress. and (3) such a nature reason to believe tress.
not discover it. AND possessor failed to exercise reasonable care to warn of condition and risk
Statutorily Imposed Duty
C.
Known Trespasser
(artificial condition which involves risk of death or s.b.h only)
Limitations of duty
Nuances to Possessor duty
1.
liability for s.b.h. from artificial condition if (1)knows or reason to know of presence in
dangerous proximity to condition, and condition of such nature he reason to believe tres. not
Despite clearly foreseeable harm, duty lowered where:
Firefighter rule
-
licensee, may bar recovery if in official
discover or realize risk
Guest Statutes (lowered duty of operators of motor vehicles to passengers)
capacity
IV.
Attractive Nuisance:
liable for injury to trespassing kids (JX: Any v. under 14
some age diff)
No duty to rescue or prevent harm (where no relationship exists)
Recreational use
- allowing public use -> partially
immunized form liability
A.
know or reason to know kids trespass, condition know or reason to know unreasonable risk, kids
Minimized duty to prevent purely economic harm
Minimized duty to prevent emotional distress
Duty to Off-prop
(urban - natural cond. liable, rural -
no_
do not discover risk or realize risk (because of age), utility and burden slight v. risk, and possessor
fails to exercise reasonable care to eliminate danger or protect kids from
Lessor/Lessee
-
Generally no - but if warr. of habit,
"
Nuances
hidden dangers known to L but not T, lease for public
use, common areas (stairwells,etc), negligent repairs
Minimized duty to prevent harm to fetus
Actions of govt. officials in their official capacity lower duty to them
Lowered duty of family member to each other
Lowered duty of on-duty police or fire against negligent persons
Prox cause care about direct and foreseeable harm
Breach
Prox. Cause
Failure to act according to
Reasonable standard
- Was harm direct result of negligence?
- Was harm foreseeable? (Was ∏ foreseeable?)
Custom
- Negligence must CAUSE the harm.
TX Cause Std - substantial factor
Foreseeability (Varying Standards - Palsgraf most common
B<PL Test
Liability
Burden < Prob of Injury x gravity of Loss (injury)
If B<PL, then there is a duty to take on the burden, failing to
do so is a breach of duty
Breach of duty is shown if there is a customary practice, and it
was ignored
Not necessarily conclusive but: If proof of custom and it was
ignored, and departure was prox. cause of accident, may
establish liability.
Adhering to custom is not necessarily enough
Custom must have been current when act occurred
Policy may trump custom
Medical Profs: Custom less important. More of foreseeability
i.e. glacoma test case. Think defensive medicince
No harm foreseen
Causal connection ! -----|---------------------|----------------|------------
Exact harm foreseen
to harm
Some harm foreseeable
(Even a very small amount)
General type of
harm foreseen
" Foreseeable
harm
Foreseeability - duty or proximate cause?
Palsgraf - The risk reasonably perceived defines the duty owed.
Polemis
Wagon Mound II
Palsgraff (Cardozo)
Wagon Mound I
Negligence Per Se
!
Res Ipsa Loquitor (the thing speaks for itself)
Violation of statute serves to show duty/breach (subject to cause/
harm findings)
Accident alone is prima facie for duty/breach - show cause/carm
Trad: Fact finder may draw permissible inferences of neg. from
Restatement 2d
Palsgraff – Andrews dissent
Ask 2 questions
circum. when (1
)ordinarily does not happen
(2)
under exclusive
(1)Statute designed to protect against type of accident that actor ʼ s
conduct caused?
control of ∆-not always used
, and (3)
circum. not caused or
contributed to by any act or neglect by injured party.
(2)Was the accident victim within class of persons statute designed
to protect
Foreseeability Factors -Palsgraf-Cardozo
foresee of harm, degree certainty ∏ would be injured, causal
JX on Neg. Per Se:
proximity from act to injury, moral blame of ∆ʼ s conduct, policy prevent future harm, burden to ∆ and
community to impose duty, availability, cost, prevalence of insurance for risk.
Majority - Is negligence per say (as matter of law)
Minority - Evidence of negligence (Jury decides)
Small Minority - rebuttable presumption of negligence (prima facie)
May not apply where:
Foreseeability - Andrews Dissent
- If ∆ʼ s conduct is (1)substantial factor in bringing harm to another, that ∆
neither (2)did//should have foreseen extent of harm or manner it occured does not prevent liability. But
not legal cause if, ((1) looking back from harm, it appears (2)highly extraordinary that should have brought
about the harm.
vague or amorphous - OSHA reg - dry floors “so far as possible”
Disprop. liability - i.e. req ʼ ing person to report child abuse
Licensing Statutes - Failure to be licensed not usually neg. per se:
Most states - creates enough evid. to get to jury
(Third Rstmt Rule: Fact finder may infer that ∆ has been negligent
when accident causing ∏ʼ s physical harm is a type of accident that
ordinarily happens as a result of the negligence of a class of actors
of which the ∆ is a relevant member and )
Ybarra - burden shifting. Someone in room was negligent, every
instrument in control of∆s. Distributive justice.
However, Res ipsa only when ∏ can ʼ t know or doesn ʼ t have
access to facts.
If ∆ does not maintain a very high level of exclusive control, res
ipsa less likely
Lost Chance Doctrine
- Applies where ∆ is dying or already diminished chance of survival. Reduction or
However, will be held to standard of care of what you held self out
to be
Note: Statute giving private right of action
elimination of ∏ʼ s chance of better outcome, ∆ liable for that loss (“the lost chance”) - trad. 50% better of
living - JX, now: ∏ can recover either (1)loss of substantial chance, (2)increased risk (3) “pure chance or
proportionality, where ∏ recover on showing nexus btwn failure to diagnose pre-existing and lost chance
to recover to reasonable degree of certainty. Maj/TX: “more likely that not cause” Min: trad. - 51% rule
Rescuers generally foreseeable
(reasonable act under circ. / similar manner of rescue) - if this, rescuer
not contrib. negligent.
Affirmative Defense to Negligence
Breaking Causal Chain:
-
intervening cause complicates - is a superseding cause if breaks chain
Foreseeability still measuring stick. Rescuers, med. negligence (not gross), ambulance acc. all
foreseeable. Criminal Conduct generally not foreseeable - but special relationships or prior notice change
Contributory Negligence
-
∏ totally barred from recovery, even if ∏ʼ s negligence far less than ∆ʼ s. (even 1% at fault)
- However, ∏ʼ s negligence must be actual and proximate contrib. cause of ∏ʼ s harm for claim to be barred or reduced
Court limiting liability on unforeseen harm - foreseeability is P/C issue. If harm foresee but no liability -
duty issue.
- Contrib not a bar when ∆ʼ s actions are = {intentional, reckless or grossly negligent, last clear chance applies, ∏ too remote or not PC}
-
Assumption of Risk - implied assumption of risk treated same as evaluating ∏ʼ s negligence vs. ∆ʼ s.
Negligence and foreseeability, but no liability (Limitations of foreseeability)
-
Last Clear Chance
-
Allows liability despite contrib negligence.
-
If accident victim by own negligence placed himself in danger of injury at hands of other when he is unable to prevent.
-
AND other knows or should know of victims peril in time to avoid injury and fairs to exercise ordinary reasonable care, then other is
Negligent Infliction of Emotional Distress
-
Prox. cause limited by different tests:
guilty of actionable negligence and V ʼ s actions will not bar recovery under contrib. negligence defense.
(1)Impact Zone Rule
- No duty to prevent emotional harm, needed impact - Found condom, stom. pain,
Comparative Negligence
-
Factors: (1)Nature of conduct of each party at fault, (2) extent of causal relationship btwn conduct & damages
faint now inclusive under broader view of test - Minority JX
-
Pure Comparative
-
allows damaged party to recover even if 99% at fault; Damages = 100% — ∏ʻ s fault
(Some JX)
(2)Zone of Danger
-
Modification of (1). must be in zone of danger of neg. act (physical harm close)
-
Modified Comparative Fault
- bar from recovery if ∏ʼ s comparative fault is either 50% or 51% - by JX
(3)By-Stander Liability
(Two Tests - Dillon (Maj JX) - factors, La Chusa - elements,
- If not barred, ∏ʼ s recovery reduced by degree of fault
Dillon
- Balancing: Is ∏ near scene of accident, did shock result from direct emotional impact (sensory
- Nuances
and contemporary observance, where ∏ and V closely related
- No Last Clear Chance Avail
La Chusa
- Elements (1)closely related, (2)present at scene at time and is aware of inj (3)suffers
- Joint and Severally Liable usually abrogated (though Uniform Comp. Fault Act keeps)
serious emotional disturbance
- Comparative no defense in intentional or reckless conduct by ∆
(4)Direct Victim
- ∆ owes direct duty of care - often where ∆ communicating with family re: injured
- If multiple ∆ʼ s, in modified comp. JX, ∆ʼ s combined fault must be more than ∏ʼ s (and not individ. more) to allow recovery
Used in negligent handling of corpses, or any where there is special relationship
- Comparative fault complicates determination (defense) of superseding causes. Jury can allocate fault and consider effect of
No Mental Anguish
superseding causes
Loss of Consortium
cause of action in TX, may get awards based on, but can ʼ t bring alone
- usually wrongful death. (wife & baby) Compensates spouse for loss or deprivation
- Crashworthiness and Product Liabilities - how comparative fault measured, if at all, when defect enhances injury in crash
of companionship/partnership. Non-economic damages. Not available if not married - Not available for
- Criminal conduct of ∏ may act as complete bar
child/parent.
Prenatal Harm
: trad rule - first breath, new rule: viable, wrongful death statute (TX use)
- If one of many ∆ʼ s is immune but partially at fault, his share apportioned to other ∆s equally (JX specific nuances, as well)
Wrongful birth/life
(w-full birth action by parents, w-full action by kids) - only awards special damages, not
Assumption of Risk
(AOR)= (a)
knowledge
, (b)
appreciation
, (c)
voluntary exposure of risk
No AOR defense for intentional torts
-
Express AOR
-
express, explicit agreement to risk (waivers, releases
general - will compensate for diff. between normal life and life got - not between life and no life. (i.e. if w/
special needs - compensation is for those needs, not for the birth/life itself).
-
Exculpatory Agreements disfavored. Alone, not violate public P. But if agreement includes AOR for intentional tort, gross neg.,
Purely Consequential Economic Loss
- when acting negligently - is pure economic loss foreseeable?
negligence to minors, or involves hospitals - may be violate public policy as matter of law and not valid.
Trad. rule for recovery (TX JX)
- no recovery for pure economic loss w/o physical injury or prop. damage
-
Agreement must (1)
Clearly spell out intention of parties
(2)
nothing in social relationship between parties militating against
Modern
: Recovery in some instances (i.e. oil spill in bay (distributive theory award), special relationship,
enforcement
, and (3)
not against public policy
-
Negligence which caused injury must be reasonably related to object or purpose for which release given
People express: reasonable measure to avoid risk to particularly foreseeable identifiable class of ∏ s
whom ∆ knows or reason to know likely to suffer such damages from conduct
-
Public Policy disfavors unequal bargaining power (housing, blanket waivers, medical consent(?))
-
Implied AOR
-
(Primary & Secondary)
More Affirmative Defenses to Negligence
-
Primary
- assumption of risks not created by negligence; engaging in activity that has known and commonly accepted risks
Avoidable Consequences
- After ∏ injured, some damages may be barred by ∏ failing to take reasonable
-
no liability to ∆ when ∏ chooses to engage in activity with inherent and commonly accepted risks
- i.e. Getting hit with baseball at ballpark.
- Affirmative Defense or Denial of Duty? If impliedly assuming known risk, argue abrogation of duty. (Strategic as to burden too)
steps to avoid aggravation.
Some states only to conduct after tort, others allow application to ∏ʼ s pre-injury avoidance measures
such as seatbelt use (JX)
-
Secondary
-
Assumption of existing negligently created risk May be avail. in comp. or contrib. JX
Premises Liability
-
Duty to secure against crime
Old rule:
duty again imminent harm from violent,
New
-
∏ , aware of risk created by ∆ʼ s negligence, continues voluntarily to encounter it (ice skating case - too slick, kept skating)
rule
: foreseeability vs. burden
- Two types:
Pure/strict
- Assumption is reasonable (running into burning house for kid)
Qualified
- not reasonable (same but for hat)
Statutes of Limitation and Repose - IF EXAM HAS DATES, check SOL/R
- Pure strict is AOR but not Contrib neg. / Qualified is AOR and Contrib. neg.
- SOL for negligence 2-3 years, depending on JX
- Pure/Strict - no fault, JX may still bar recovery / Qualified - fault and may be barred or proportionally reduced
- Discovery rule - extends SOL when negligence first discovered (not nec. when harm discovered)
Immunity
- (Exam Alert) Immunity also likely not available in intentional torts
- Statute of Repose - does not allow discovery rule (SOL begins on negligent act)
Govt Immunity
-
If decision discretionary, better chance of immunity, FTCA - federal tort immunity only for “discretionary acts”, state likely
- Usually for construction of buildings, I.e. if industries allow to use discovery rule may be excess. liab.
similar immunity to federal, municipality likely not as broad as (i.e. police failed to protect person from abusive friend - liability)
- Collateral Source Rule
-
Can ʼ t look at additional sources of compensation (why should ∆ benefit from
Charitable Immunity
-
Very few states (NJ, for one), theory - protecting financial assets of charities, AOR, also avoiding hurts to help
employer ʼ s ability to give health insurance)
Family Immunity
-
Not avail in most JX, but one spouse ʼ s behavior to another must be outrageous. Par. Discipline and Discretion is
usually immune. (i.e. choosing food/housing/medical services)