Bevans Torts Chapters 8-14
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1. What are the different types of special damages?
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lost wages, medical bills, future losses
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2. What is the purpose of compensatory damages?
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they are designed to compensate the victim for losses caused by the defendant's negligent conduct
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3. What is the purpose of punitive damages?
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to deter others from taking that same action against others, to teach a lesson to the tortfeasor, to restore equity in the lots of the tortfeasor and the injured plaintiff.
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one of the two types of compensatory damages. Special damages are tangible quantifiable damages such as medical bills, property repair, and future lost earnings.
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What are special damages?
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a court created doctrine that states that if the plaintiff is even one percent at fault for the damages he suffered , the plaintiff is barred from recovering from the defendant. Thus used as a defense to negligence.
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What is contributory negligence?
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a doctrine that relieves a person o the normal standard of care because of a swiftly developing and dangerous event
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6. What is the sudden emergency doctrine?
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Certain activities are found to be so inherently hazardous that there is no way to take reasonable care in doing them, so as to prevent harm. Thus one who undertakes them is found liable for harms they cause, regardless of fault.
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What is strict liability?
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Courts had started with contributory when american indutry was young to protect it from lawsuits, exceptions to the contributory negligence defense developed in the courts to make it more just, then, in California, Li v. Yellow Cab the Supreme Ct. of CA switched to comparative negligence.
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8. What had been the trend in comparative and contributory negligence?
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The plaintiff can recover from the defendant reduced by the percentage of fault the plaintiff had in the harm. (10% at fault, will get 90% from defendant)
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What is comparative negligence?
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include blasting, fumigation, crop dusting, manufacturing explosives, using radioactive materials, and storing large amounts of rockets.
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9. What are the different types of ultrahazardous and dangerous conditions?
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the implied promise that a product will perform normally and safely
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10. What is warranty of merchantability?
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an implied promise that the product will perform the duty for which it has been advertised
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11. What is warranty of fitness of purpose?
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those promises stated by manufacturers to consumers in the stream of commerce
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What are express warranties?
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under strict liability laws, liability is assigned without having to prove negligence. Under the UCC, manufacturers and retailers participating in the stream of commerce will be found strictly liable for injuries caused by products they make or sell.
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13. How do you determine liability under strict liability analysis?
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(the reservoir builders whose water got into the neighbor's abandoned mine shaft) Rule(s): A person, who lawfully brings on his land something which though harmless, but will do mischief if it escape, must keep it at his peril, and if he does not, he is answerable for all the damage. But for the df's act in constructing the reservoir no mischief could have accrued, and he must answer for the natural and anticipated consequences. This principle applies to beasts, or water, or filth, or stenches.
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14. What was the holding in Rylands v. Fletcher?
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made it not just dangerous things but normal things that wrecked havoc if escapted
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15. What was its impact on U.S. law?
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the unpriveleged publication of false defamatory words that tend to expose the plaintiff to ridicule or contempt that cause injury to the plaintiff's reputation
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16. What are the elements of defamation?
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Defaming someone in writing is libel, defaming someone by speaking is slander
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17. What is the difference between libel and slander?
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the defendant, who is a professional, injured the plaintiff while performing his profession. A person who claims to have special knowledge or skill injures that plaintiff during the execution of that skill
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What is professional malpractice?
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when it subjects the plaintiff to public ridicule, hatred or contempt, humiliation and injures the plaintiff's reputation.
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When is language defamatory?
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it is used in ascertaining the "breach" part of negligence. The expert testifies as to what the standard of care for a reasonable doctor (etc) what a reasonable doctor would do.
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How is expert testimony used in medical malpractice cases?
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a patient was supposed to have been rendered infertile by surgery but conceived after the surgery
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What is a wrongful birth action?
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it is up to the jury to see if it applies. must prove that the defendant was the last person who had the last opportunity to avoid the event that caused the plaintiff's injuries and therefore he should pay.
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32. What do you need to prove in last clear chance?
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In an answer to a negligence suit, you say the plaintiff contributed to her harm
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How do you raise a contributory negligence defense?
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It excludes the plaintiff from recovery
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What is the legal effect of the contributory negligence doctrine?
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under this, the plaintiff must take reasonable steps to obtain medical treatment and protect damaged property. If not, not entitled to recover.
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What is the doctrine of avoidable consequences?
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If the plaintiff was contributorily negligent under the doctrine she will be barred from recovering any award.
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What is the effect of contributory negligence on an award of the plaintiff's damages?
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It goes out the window, because if plaintiff contributed only 1 percent, he is the proximate cause of everything.
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How is proximate cause affected by contributory negligence?
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nothing if he was not in privity with the manufacturer, which most weren't. As the manufacturers and retailers were escaping liability and not fixing their dangerous products, the courts decided to force them to through strict liablity
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Prior to the introduction of strict liability, what was the plaintiff's remedy in the law?
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Defendant was negligent in the fact that it did not inspect the wheels prior to selling the vehicle for resale to the public. Defendant owed a duty of care to plaintiff, not only to the retailer as it should be obvious he will resell the car.
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What was the holding of McPherson v. Buick Motor Co.?
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design defects, manufacturing defects, defects in marketing
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Under product liability there are three types of defects, what are they?
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has to be false or else is not actionable, even if defamatory
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What is the "false statement" element of defamation?
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anything that makes them lose their status due to ridicule, humiliation, etc.
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What types of statements are considered an injury to someone's reputation?
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If its a large group, no, because cannot prove you as individual was defamed. If a smaller group, such as "the Wilson family" then yes, because the statement was made about a clearly ascertainable plaintiff, i.e. one of the members of the family.
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If a statement is made about a group of people, how does one of those people sue for defamation?
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individuals should be free to enjoy their reputations and good names without the stigma of false statements. An individual can protect her status in society.
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What is the theory behind having defamation as a cause of action?
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communicating the statement to someone other than the plaintiff.
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What does the publication aspect of defamation entail?
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a category of defamatory statements so serious that if the statement is made, damage to plaintiff's reputation can be presumed. specifically 1. crime involving moral turpitude 2. statements that plaintiff is unfit for his trade/business/profession 3. that plaintiff has a communicable sexual disease
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What is libel per se?
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where the statement has to be interpreted before it is considered defamatory. ex. birth announcement of baby boy born to mary jones, except she is a chaste nun, so to know it is defamatory, must know she is a nun
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. What is libel per quad?
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moral turpitude, std, unfit for profession or trade
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What are examples of liable per se?
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the law is vague on how much the jury should award for many general damages, "what a reasonable person thinks it was worth" (so attorneys do "day in the life" or per diem amounts.
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What is the problem in assessing damages in a medical malpractice case?
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to use reasonable skill, care and expertise to ensure the safety and well being of the patient, to diagnose the patient's sickness or injury, the obtain informed consent before treating, to outline various treatments and the benefits, risks of each, or of not getting treated at all.
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What is the duty element of medical malpractice?
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an agreement by a person to allow some type of action after having been fully informed and after making a knowing and intelligent decision to allow the action,
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What is informed consent?
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limited to what is related to or covered by what the plaintiff consented to, except emergency
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What is the scope of informed consent?
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a second trial is held for the plaintiff to prove the damages he would have received in the underlying case
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How do you calculate damages in a legal malpractice case?
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to exercise the same level of skill, legal knowledge, and ability for the client as is found in other members of the bar.
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What is an attorney's standard of care to her client?
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U.s. v. south-eastern underwriters association (1944) the court ruled that insurance was commerce, thus Congress then became able to regulate it federally
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What is the history of insurance law, specifically the supreme court's landmark ruling on insurance?
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1. duty to defend the insured 2. ins. co's right of subrogation 3. limit of liability provisions and stacking
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What are the typical automobile insurance provision on an insurance contract?
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means two or more policies are combined thus increasing the available pool of funds
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What is stacking insurance policies?
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she owes her duty to the insured
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If an attorney is hired by an insurance company who does the attorney owe her duty to?
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the persons, types of losses, or damages not covered by an insurance policy.
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What is an exclusion?
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the insurance company's right to sue the tortfeasor in its own right to recover the money it has paid out to the insured.
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What is subrogation?
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If it affects something material to the contract.
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How do you determine whether a fact is material under fraud?
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you relied on what someone told you was true about something and but for that reliance you would have been fine, but as you believed them and took action based on it, you suffered injury or loss.
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What is detrimental reliance?
