Tort II Darcy Review Damages, 3 types o (1) Compensatory Purpose: Put the P back in their pre-tort position Factors

ors to collect compensatory damages/Rules to Collect: (1) Maximum recovery rule: Judge sets the highest value of the injuries which the P incurred, jurys amount found cannot exceed that o Future pain (physical/mental) discount to present value (interest accrued) o Past pain o Permanent disability/disfigurement o Medical expenses discount to present value o Lost wages/lost earning capacity (2) Medical monitoring rule: o Significant risk to contract disease o Likely to reduce/eliminate disease upon early detection (3) Per Diem- used to calculating damages o Breaks down your future physical/mental pain can be broken down by days/hours/mins etc o Advantage: Allows counsel to calculate what damages will be, even if inaccurate o Disadvantages: Assumes consistent pain (this is false, you become accustomed to it) Attempts to give to mathematical precision to something which is not mathematical nor precise This should be left to the jury to decide (4) Collateral source rule: o D cannot into evidence any money received by the P from a 3rd party (collateral to the wrong doer) o Exceptions, where it can be entered: Rebut testimony of financial necessity Attributed condition to another cause Impeach testimony of medical expenses paid by P To show that P actually continued to work (5) Duty to Mitigate/Doctrine of Avoidable Consequences: duty to avoid permanent disability/injury o (1) Risk * most important If you have to undergo a surgery/treatment o (2) Probability of success

o (3) Money or Effort o (4) Pain- depends on jurisdiction o (5) Public Policy (6) Wrongful death claim o Claim brought by beneficiaries for all injuries occurring after death o Cannot be touched by Creditors Things you can recover for: (1) Loss to dependence o Services/finances (2) Loss to estate o lost savings/income (3) Loss to inheritance o combination of (1) & (2) (4) Loss of consortium o loss of love/affection/guidance (7) Survival Claim o Claim brought by estate o Allows recovery from time of injury until death o Can be touched by creditor You can recover for: (think, decedent would have brought these claims) (1) Pain and Suffering o Decedent must have been conscious prior to death (2) Lost wages (3) Medical Expenses (4) Loss of property Time of loss (2 rules) Applies to property Rule of Highest Intermediate Value o From the point of injury until the time of trial, to determine the worth of the item/property o What would you have had to pay to replace this item between this time Rule of Highest Replacement value (New York Rule) o From the time of loss/conversion until any reasonable period which the injured party could have reasonably replaced the item, the worth of the item o (2) Nominal Vindicate rights o (3) Punitive Purpose is to Punish/Deter conduct Factors to determine whether or not punitive damages are appropriate

(1) How great was danger that D exposed public to? (2) Cost/feasibility of reducing danger? (3) Manufactures awareness: o (1) Of the actual danger, o (2) The magnitude of danger, o (3) Awareness of feasible alternatives of reducing that danger (4) Nature/Duration/Reasons for failure (to act appropriately reduce danger) (5) Extent to which danger was purposefully created? (6) Federal Safety Regulations (7) Probability that damages were awarded in other cases against D (8) Amount of time passed since actions occurred o has D already corrected the issue/etc? Grossly excessive Punitive Damages The constitution prohibits granting excessive/arbitrary damages o Factors to look at: (1) Reprehensibility: you can only collect for the conduct which directly/closely related to the injury (2) Look at the Ratio: Multipliers 10x or less then compensatory are likely to be in accord with due process (punitive damages will likely be appropriate) (3) Compare & Contrast other cases of similar circumstances Statute of Limitations o How long you can bring a claim to recover damages (time period allowed to bring claim for injury) o Everything has a SOL, SOL is STRICTLY based on injury o Tolling for minors/military Tolling means that youre adding time on If youre 16 w/a valid claim which expires in 2 yrsthen once youre 18 you will be allowed your 2 yr time frame o Discovery rule Clock start ticking at the time which you discovered/ reasonable person should have discovered injuries & must know that D/Ds instrumentality is the cause of your injury Statue of Repose o D is only liable for so long regardless of when youre injured or not (law states that D is only going to be liable for X amt of years/time) o Generally only used for products o This is STRICTLY based on the Ds act Between SOL and SOR use the lesser time frame to determine liability

Immunities (4) o (1) Spousal Does not exist anymore o (2) Charitable Does not exist anymore (1) Implied waiver theory- if youre receiving a benefit from the charity you are waiving your right to bring suit against them o Problem: there are categories that do not allow us to put a BLANKET waiverthis is not a benefit to everyone.children/unconscious ppl etc o If everyone cant be held to it then no one can be held to it (2) Trust Fund theory o Any monies received by a charity cannot be used to pay off a law suit Problem: when it comes down to liability and where the money comes from, these are separate issues o (3) Parent/Child Parents are not liable for their acts of negligence amidst raising the child This can apply to step-parents etc but they MUST be IN THE SHOES OF THE PARENT Significantly fulfilling the role of the parent o (4) Governmental Immunities Federal & State- they are immune based upon statutes and the constitution Discretionary Function- federal employees are shielded so long as working w/in the scope of employment unless there is a statute/constitutional/stipulation which prohibits him using his own discretion (reasonable discretion) Federal will only be liable if they consent to the suit Local Immunity- bc they act like a corporation/for economic reasons and therefore are NOT generally immune Public Duty Doctrine- Police have a duty to all, but not to one specific person Exception: If there is a specific duty created, which is detrimentally relied on then the Police will be liable (they have consented to the suit) Vicarious Liability o Respondeat Superior: Employer is liable for the acts of the employee so long as their conduct falls w/in the scope of employment Factors to determine if they are acting w/in scope: (1) Type of work employed to do?

(2) did the act occur w/in the time/space limits authorized o at work/during work hrs? (3) Actuated at least in part w/purpose to serve the master (4) WHEN DEALING W/INTENTIONAL FORCE: is it not un-expectable? o Think of a bouncer, if he hits someone in the faceits not expectablebut its not unexpectable, so employer is liable! Health/comfort/convenience: employer is still liable when youre on your break at work (employer is liable to the employee during their breaks in terms of anything that is related to the employees health, comfort and convenience) Slight or Substantial Deviation: (1) Employees intent o What their intent for the deviation? Pure enjoyment/pleasure or for the business (2) Nature/Time/Place which the act occurred (3) Time consumed in deviation o 1hr/2hrs1min? (4) Type of work hired for o Is this one of your responsibilities w/in the scope of your employment (5) Reasonably expected by employer o Is this deviation reasonably expected (6) Freedom allowed to employee o Look at the general scope of employmentis the employer strict/lenient? Coming & Going rule: General Rule: Generally employer will not liable for acts occurring while employee is commuting to or from work Exception: if the employee contracts an illness/exposed to something harmful while at work which in turn causes injury to occur while coming/going then employer is liable Independent Contractors: o Independent Kror is liable for their own acts Factors to determine if they are an independent Kror: (1) Amount of control over this person (2) Is this a distinct occupation/business (3) Direction and Supervision given by employer (4) Skill required (5) Tools/instrumentalities/work place provided by employer (6) Length of time person is employed (7) Method of payment

o By time/by job? (8) Is work apart of the regular business? (9) Employer/Employee relationship o Would an outsider reasonably believe that this person is an employee to the employer? (10) Is the principal within the business? o Are they a shareholder/etc? Do they stand to gain an economic benefit? When you have an employer who tries to delegate a duty to an indep Kror, there are some where you can and some where you cantwhere you cannot delegate you will be held Strictly Liable Non-Delegable Duties occur when: o (1) If there is a statute in place for the safety of others you cannot delegate this duty o (2) If a person carries on an activity which threatens risk/deathyou cannot delegate these duties o Joint Enterprise How to establish there was a joint enterprise: (1) There was an agreement between group members (2) Common purpose to be carried out by group members (3) Common pecuniary interest ($money$ interest) (4) Equal control or rights o Bailment Bailment: you are giving someone possession for a period of time but not ownership/title Generally unless its the family car doctrinethe bailee will not be liable, the bailor will be Imputed Negligence: this will only happen w/employer employee relationship or a joint enterprise You are saying that you acted negligently bc of someone else (your employer/joint enterprise) Joint and Several Liability o If two or more ppl cause injury then they are all jointly and severally liable to the P, but P can only satisfy the judgment once o Apportionment: General rule: When the injury can be apportioned then the court will apportion it Exception: if you are acting in concert, even if it is divisible o Contribution: General rule: When one tort-feasor pays more than his fair share of liability then he may collect contribution from the other tortfeasors Exception: if you act intentionally then you cannot ask for contribution

If someone has settled you cannot collect contribution from them o Determining how to Credit for Partial Judgments: Pro Tanto Pure subtraction Reduction on % basis Amount owed is based solely on percentage determined by the courts o Releases and Covenants Covenant not to sue: then youre release one specific person, and still maintain the right to sue the other parties Release: then youve released all the parties and cannot maintain any further action o Mary Carter Agreement (MCA) P enters into an agreement w/1 D, they come to settlement but this D remains a party in trial, D attempts to help the P recover the amount in the judgment Majority jurisds- will allow for a MCA as long as they know this is in place o Indemnification Trying to impute your negligence onto a 3rd party Strict Liability: Liability w/out fault o Livestock- liability imposed on those keep, possess, harbor (need not be owner) (1) Intrusion (2) Harm that is caused which is EXPECTED to be caused from this intrusion Exception: o (1) driving cattle: land that is directly next to highway o (2) If there is a statute in place/Common law Fencing statute etc o Wild animal- any animal which is not by custom devoted to mankind at the place and time which it is kept Liable for ALL harm done by this animal, regardless. Limited to harm which is expected to be caused o Domestic Animal- any animal which by custom is devoted to mankind at the place and time which it is kept General Rule: Only liable for the acts which you know/should have reasonably known that your animal will do Strict Liability for non-natural use of land o Rylands Rule: D will be liable when he damages something by his unduly dangerous and inappropriate use of land Exception: when an act of god interferes w/the unnatural use of land, D will not be liable

Abnormally Dangerous Activities: you are strictly liable so long as the harm is one that could be expected from the inherently dangerous acts o Think about the minks eating their kids o Determining whether the activity is abnormally dangerous? (1) High degree of risk of harm? (2) Likelihood that resulting harm will be great? (3) Inability to eliminate risk w/reasonable care? (4) Common Usage? (5) Inappropriateness of activity in regards to place where it is carried on? (6) Value to community is outweighed by dangerous attributes? Products Liability o Any tangible, personal property distributed commercially for use or consumption o Used Products- any personal property which is commercially sold to a buyer but is not in the commercial chain of distribution, has been used for some period of time Test driver car vs. a Used vehicle bought from your neighbor Sellers are not liable for harm stemming from any used products o Liability for used Products, when defect exists: Though the seller is not generally liable for used products there are exceptions: (1) Injury arises from Sellers failure to exercise reasonable care (2) Seller has marketed the product in a way which it seems that this defect should never be an issue Item has been marketed as: like new /as new (3) Defect in product is due to remanufacturing by the seller (4) Product does not comply with used product safety regulations Manufacturing Defect- occurs when a product strays from consumer expectation, regardless of care, disappointing consumer expectation by departing from its intended design o Natural/Foreign- (Minority view) anything which is foreign to the product the manufacturer will be liable forif it is natural to the product then the manufacturer will not be liable for it o Consumer Expectation- anything which disappoints consumer expectation/not reasonably expected by consumer, manufacturer will be liable o Res Ipsa Loquitor: cases where we dont know what the actual defect is (1) This injury would not normally occur w/out a defect (2) This injury was not caused by any act other than the defect at the time of sale or distribution (Defect actually caused the injury) Design Defect: when foreseeable risks could have been avoided/reduced by a RAD (reasonable alternative design) & the current design renders the product not reasonably safe o Factors to determine whether or not a design defect exists: Risk/Utility Test (Dean Wade): (1) The usefulness and desirability of the product

(2) Probability and magnitude of potential harm (3) Availability of substitutes (4) Manufacturers ability to eliminate unsafe character (5) Users ability to avoid danger (6) Users awareness of danger (7) Manufacturers ability to spread the loss o Do they have product liability insurance? o Will it overly hurt them, and not put the out of business? ALL THE RISKS OF HARM MUST BE FORESEEABLE For Drugs: drugs will only be considered to have a design defect if the foreseeable risks are so great that no reasonable medical care provider would prescribe this drug to anyone Warning Defects: product is defective bc a warning fails to exist or when the warning is inadequate as to warn of specific foreseeable risk of harm o A warning defect will occur if: (1) Omission of warning of foreseeable risk (2) If there is a warning but it is inadequate o Factors that determine the inadequacy of a warning: (1) Not displayed to reasonably catch attention (2) Fails to fairly apprise of nature/extent of danger (3) Fails to instruct on how to avoid danger o Presumption Courts presume that if there were a warning, P would have read & followed it o Allergic Reaction Warnings: Must be an allergy which a substantial amount of people have an allergy towards (this also depends on how grave are the effects of this allergy) o Learned Intermediary Rule: prescription drugs If manufacturer has warned doctor, then doctor now has the duty to warn the patient, based on the doctor/patient relationship Exceptions to this: Mass inoculations: ex flu shot (there is not patient/doctor relationship) Birth control prescriptions and devices Prescription drugs that are advertised to the consumer o Exceptions to the Duty to Warn: not as much of a duty to warn bc these ppl are held out to have a specialized skill in these products (1) Sophisticated Users Selling a car to a mechanic Gun to a police officer (2) Raw materials and Component Parts

We only have to warn you of what our small parts damage may causewe dont need to warn you about the danger associated with the ultimate product that you are creating (3) Bulk Supplier Exceptions: o (1) The bulk supplier seems inadequately trained o (2) Open and Obvious 402A (Complete this analysis after determining any defect exists) o Is this particular D liable for the defect in question. o Elements of 402A: (1) Is D in the business of selling these products? (2) D sold or otherwise supplied the product? (3) Product was expected and did reach P w/out substantial change? (4) Defect caused the harm? Talk about the DEFECT that caused the harmthe ultimate DEFECT that caused the harm (5) Product was defective when it left Ds hands? If Ps conduct causes the harm (P is using the product in a way they shouldnt be) that use will reduce the amount of damages P can claim Pre-emption o Express: federal regulation tells you specifically what is meant o Implied: federal regulation that is not black and white, look at congresss intent Defamation o (1) A communication thats intent is capable of harming someones reputation o (2) The communication must be OF and CONCERNING the P Need not state name, but a reasonable person (within Ps group) must be able to tell that they are talking about the P If identifiably reasonable, then its OF and CONCERNING P (NY times case) o (3) Publication: Was the disclosure intentional or negligent? The 3rd party must have HEARD & UNDERSTOOD it o (4) Was it Slander or Libel? Libel- written If you have libel you are always liable for defamation.it is presumed defamatory against that person Slander- oral o Slander per se: You will be instantly charged with slander per se if one of the following occursyou will automatically be charged with defamation w/out needing to prove special damages (pecuniary loss/ $$ loss) (1) Makes reference to being guilty of a criminal offense

(2) If you say anything about someone having a loathsome disease (3) A matter that is incompatible with business, trade, profession or office (4) Serious sexual misconduct Public Individual (official)/Public issue o Must prove actual malice (reckless disregard of the truth) o Must prove that the statement was false o Are there any applicable privileges? Absolute Conditional/Qualified Abuse of privilege? o If you can prove both (falsity & malice) you get actual/presume and punitive damages Private Individual/Public issue o P must prove falsity Objective test Must prove this did NOT happen o P must prove at least negligence Did D act reasonably/do their due diligence to determine whether the statement was false Remember, if there is a statute go w/thatotherwise apply negligence standard o Here you can only collect actual damagesif you can prove they did this w/knowledge (actual malice) then you can get presumed and punitive damages Private individual/private issue o Prove falsity? Depending on the statute the P must prove falsityif not fall back to CL where D must prove that the statement was true (substantial truth) o Actual and presumed damages o Under Common law youll also get punitive damages.if there is a statute then you have to prove negligence to get punitive damages Look for ill-will/bad motive Privileges o Absolute Privileges: (1) Judicial Proceedings Judges/Attorneys/Witnesses any participant (2) Legislative Proceedings Congress (3) Publications (1) Executive (2) Consented to publications (3) Spousal publications (4) Publication by law

(4) Affairs petitioning the govt (some states) o Conditional /Qualified privileges: to be determined by the Court (1) Public interest Reporting to cops (2) Shared common interest (3) Fair & Accurate report Official proceedings/public meetings (reporters privilege) Abuse of Privileges: to be determined by the Jury o To determine if someone is abusing their privilege look for the following: (1) Actual malice- knowledge of falsity/reckless disregard for truth (2) Purpose/Necessity If youre not telling someone with the purpose of helping, then youre abusing the privilege (3) Excessive Publication again, if youre not telling someone to help/someone who can help then youre engaging in excessive publication (4) Unprivileged matter in addition to privileged matter if youre telling someone Johnny stole youre purse, you cant also tell them how Johnny beat up your neighbor last year too Check for the relevancy of what is being said about the person vs. the defamatory statement in question Privacy: the unreasonable intrusion of the seclusion of another o Privacy is invaded by: (1) Intrusion is highly offensive to a reasonable person (2) There must have been a reasonable expectation of privacy (you need not be totally secluded) (3) Needs to be published o Methods to committing invasion of privacy: (1) Appropriation of ones name, likeness, image Identity theft/publishing ones information w/out their knowledge (2) Giving unreasonable publicity to ones private life Must show that information was wrongfully obtained (3) Unreasonably placing one in a false light under the public eye Must prove actual malice