Torts

QuickStudy Laminated Reference Guide

• Publisher: QuickStudy Reference Guides
• Year: 2018
• ISBN:
  9781423240778
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

BarCharts, Inc was founded on our law guides created by the owner, designed to understand the significance of details within the larger scheme of the law, as a daily refresher, and to review before the Bar Exam. Twenty five years later we keep those guides up to date for students of law and criminal justice, paralegals and practicing lawyers to have the most handy legal reference to the most important points of the law possible in 6 laminated pages.
6-page laminated guide includes:

• Intentional Torts
• Negligence
• Duty of Care
• Nuisance
• Defamation
• Invasion of Privacy
• Misrepresentation
• Special Issues
• Strict Liability
• Tort Reform

Suggested uses:

• Students – with the sheer volume of facts to learn as a student of law, use this quick reference tool to find essential answers fast and review and refresh until you know you are prepared
• Exams – use as the last review for tests or even the Bar exam
• Professionals – use for employee reference in the office or use to refresh for yourself

tort reform

LIMITATION OF DAMAGES

• Congress
  1. No cap on medical malpractice cases
  2. Changes currently under consideration
• States
  1. 33 states have caps to damages in medical malpractice cases
  2. 24 states have caps on non-economic damages
• Contract and duty
  1. Independent duty doctrine: An injury is remediable in tort if it traces back to the breach of a tort duty arising independently from the terms of the contract
  2. If there is no duty independent of the contract, then there can be no tort claim
• Duty to protect from third persons
  1. General rule: A private person has no duty to protect another from a criminal attack by a 3rd person absent a special relationship
• Duty created by a promise
  1. Voluntarily undertaking a duty creates a promise
  2. Detrimental reliance on the promise creates a duty
• Special relationship doctrine (majority)
  1. When there is a special relationship between parties and a risk is foreseeable, there is a duty to act/ inform against known harms
     1. Common carrier and passenger
     2. Innkeeper and guest
     3. Business owner and invitee
     4. Voluntary custodian and protectee
• Landlord duty (majority)
  1. Landlord has no duty to protect
  2. Exceptions:
     1. Landlord creates, or is responsible for, a defective condition on the premises that enhances the risk of criminal attack
     2. Landlord who provides security must do so with reasonable care
• Defendant’s relationship with dangerous person
  1. General rule: One owes no duty to control the conduct of a third person for the benefit of the plaintiff
  2. Exception: Special relationship
     1. Duty to protect not only plaintiff, but all those “directly and foreseeably exposed to risk of bodily harm”
  3. Balancing considerations
     1. Foreseeability of harm to plaintiff
     2. Degree of certainty that plaintiff suffered injury
     3. Closeness of connection between defendant’s conduct and injury suffered
     4. Moral blame attached to defendant’s conduct
     5. Policy of preventing future harm
     6. Extent of the burden to defendant and consequences to community
     7. Availability and cost of insurance
• Duty on therapist
  1. Once a therapist determines that a patient poses a threat to others and harm is foreseeable, a duty arises
• Negligent entrustment
  1. Vendor of alcohol has a duty to plaintiff and public at large if vendor knows that a customer will drive drunk
• Duty to control employees
  1. Respondent superior: Employers are generally liable for torts employees commit within the scope of employment
• Negligent infliction of emotional distress (NIED)
  1. Elements
     1. A negligent act that causes (but for) serious emotional harm to another
     2. The defendant is liable if:
        1. Zone of danger: Defendant’s negligence placed the plaintiff in danger of immediate bodily harm and emotional harm OR
        2. Relationship rule: The negligence occurs in the course of specific categories of activities, undertaking, or relationships
  2. Emergent trend: Conventional negligence analysis
     1. Add new prongs
        1. Serious or severe emotional harm AND
        2. Expert testimony or medical proof
  3. Physical impact rule (in a minority of states, including Florida)
     1. Plaintiff must suffer a physical injury
     2. Plaintiff ’s physical injury must be caused by the psychological trauma
     3. Plaintiff must be involved in some way in the event causing the negligent injury to another
     4. Plaintiff must have a close personal relationship
  4. Bystander rule
     1. Close relationship between the victim and the third party claiming NIED
     2. Present and aware at time of injury to victim
     3. Aware that victim is being injured—as a result, the third party suffered emotional stress
  5. Thin skin plaintiff
     1. Take the plaintiff as they are—liable for all damages regardless of the sensitive condition of the plaintiff
• Loss of consortium
  1. Elements: Claim for damages suffered by spouse or family member of a person injured or killed as a result of the defendant’s negligent or intentional act
  2. Modern Rule: Includes not only the loss of support or services, it also embraces elements such as companionship, affection, society, sexual relations, and more
• Prenatal harm
  1. General Rule: Unborn fetus is barred from bringing forth negligence claims against the mother
  2. Wrongful birth claim
     1. Plaintiff is the parent that had the child
     2. If the plaintiff would have been informed of the fetus’ congenital disease, then they never would have had the baby
     3. Similar to a negligence claim, the duty would be on the doctor to have informed the mother of the child’s issues
     4. Damages related to the handicap can be recovered— not damages associated with raising a child in general
     5. The parents of a congenitally diseased child can claim:
        1. That their doctor failed to properly warn them of their risk of conceiving OR
        2. That their doctor failed to properly warn them of the risk of giving birth to child with serious genetic or congenital abnormalities
  3. Wrongful life claim
     1. Plaintiff is the child that would not have been born but for the doctor’s negligence in birth control measures (e.g., tubes tied, vasectomy, etc.)
• Wrongful death
  1. Tort claim brought by a close relative of the decedent
  2. For the wrongful death of the decedent
  3. Pursuit of damages suffered by survivors
  4. Damages go directly to the survivor for prospective lost earnings, contribution, prospective medical and funeral expenses, lost services, loss of comfort, consortium, mental anguish, and grief
  5. Statutory—not common law
• Survival claims
  1. Tort claim brought by the representative of the estate
  2. Damages go directly to the estate to pay outstanding debts, then to the beneficiary of the estate
  3. Statutory—not common law
  4. For damages decedent would have recovered if decedent had survived
  5. Traditional rule: Claims by deceased plaintiffs died with them
  6. Modern rule: Claims surviv...