Fall 2009 Torts Wypadki

From Torts Wypadki

Contents 1 'Black Letter Law' 2 The Prima Facie Case for Negligence 2.1 Subpart A: The Duty Element 2.1.1 Module 5: Foreseeability 3 Defenses to Negligence 4 Liability Relating to Medical Care

'Black Letter Law'

Part I: Preliminaries'

Module 1: Models of Tort Law and Context of Torts

Elements of a Tort

1. Act
2. Causation
   1. actual causation - "but-for" - it wouldn't have happened "but for" this happening . . .
   2. proximate causation - "close to" - causation must be closely related to act
3. Damages
4. Culpability

TERMS

• cause of action - legal entitlement to sue someone
• prima facie case - P can prove all elements of a cause of action (if all elements are NOT present=no case)
• defenses

1. disprove one of the elements in the prima facie case
2. assert a defense

Module 2: Overview of Tort Law

Generally

1. Act
   1. Volitional movement
   2. Not reflex
2. Intent
   1. Standard of intent differs from tort to tort
   2. Substantial certainty sufficient for intent
   3. Intent can be transferred person to person and tort to tort
   4. Motive is irrelevant
3. No issue of incompetence - children as well as mentally ill, developmentally disabled, and demented can commit intentional torts
   1. Example - Garratt v. Dailey - 5 year old pulled chair out from under older woman
4. Causation - Important in all torts. Considered in-depth under the heading of negligence (same concepts apply)
   1. Actual
   2. Proximate

[A] ASSAULT

General

• Statement: An intentional creation of an immediate apprehension of a harmful or offensive touching

Elements

1. Act
   1. Example: faking to hit someone, don't actually have to hit
2. Intent
   1. can be intent to effect an assault
   2. or intent to effect a battery
3. Causation: There is 'factual' + 'legal' causation.
   1. Factual Causation: Did the plaintiff's loss come from Def.'s Act? -- "The BUT FOR TEST" = Would the harm have happened if Def.s act had not happened?
      1. Legal Causation: One is liable for things that are foreseeable. PROXIMATE CAUSE functions as a legal limit on results of factual causation. Causation of an act alone does not make legal liability.
4. Apprehension (believing you will be hit or even touched)
   1. Fear distinguished from apprehension, not the same as fear
   2. Apparent ability sufficient-looks good enough to happen.
   3. Examples: finger in pocket looking like a gun; pretending to hit someone but stopping before
5. Words alone are not sufficient
   1. Must appear about to do something
   2. But words can negate the effect of conduct
   3. Example: saying, "This is just my finger in my pocket, but if it was a gun I'd shoot."
6. Immediacy - threat to assault later is not sufficient
   1. has to happen right away
   2. Example: saying, "I will beat you up later tonight" is not immediate, so not assault

[B] BATTERY

General

• Statement: An intentional infliction of a harmful or offensive touching of a person
• Examples: poking stranger's shoulder not battery, but grabbing someone inappropriately is

Elements

1. Act
2. Intent
   1. Can be intent to effect a battery
   2. or intent to effect an assault
3. Causation
   1. Defendant need not actually contact the victim.
4. Touching
   1. Can be direct or indirect (e.g., setting something in motion, laying a trap)
   2. Touching of a person includes anything connected to the person (e.g., a person's car while they are in it)
5. Harmful or Offensive
   1. Judged by a reasonable-person standard

Issues

• "Eggshell plaintiff" rule
  • Liable even if the victim suffers unusual damages due to a pre-existing vulnerability or medical condition
  • Example: tapping shoulder breaks arm
  • Another example: if you tap someone on the head and that person has a soft head shell and you cause damage, you are responsible

[C] FALSE IMPRISONMENT

General

• Statement: The intentional confinement, experienced or harmful, of a person to a bounded area
• Example: Locking someone in a car trunk

Elements

1. Act (or omission to act)
   1. Keeping someone confined
   2. OR Failure to release
2. Intent
3. Causation
4. Confinement
   1. Sufficient methods of confinement
      1. Physical barriers
      2. Physical force
      3. Threats of force (Ex. "You move & I'll shoot you")
      4. Invalid assertion of legal authority (Ex. A fake cop arresting you)
   2. Insufficient methods of confinement
      1. Moral pressure
      2. Future threats (Ex. "If you leave, I'll come tonight and hurt you")
   3. Duration of confinement is irrelevant
5. Bounded area
   1. Movement must be limited in all directions
   2. Any reasonable and reasonably knowable means of escape negates this element (Ex. If your locked in a house, you need to check all the doors)
   3. 3. The bounded area cannot be the rest of the world
6. Awareness or harm
   1. Person must be aware of confinement OR be harmed by it.
      1. Ex. If someone is sleeping in their hotel and you weld the door shut, and while they are still sleeping someone fixes the door, and they wake up unharmed and unaware of what happened, it is not a tort
   2. If plaintiff is unharmed, but is aware of the confinement, this element is satisfied
   3. Likewise, if plaintiff is unaware of the confinement, but is harmed by it, the confinement, this element is satisfied

[D] OUTRAGE / IIED

General

• Also known as "intentional infliction of emotional distress" or "IIED"
• Statement: The intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional distress

Elements

1. Act
2. Intent or recklessness
   1. Note that recklessness counts as "intent" for outrage
3. Extreme and outrageous conduct
   1. The standard here is high
   2. Must be truly outrageous
      1. Ex. Telling someone their family died and they did not
4. Causation
5. Severe emotional distress
   1. Must be enough that plaintiff sought medical attention-for example obtaining a prescription.

Issues

• The "eggshell plaintiff" doctrine does not apply to allow unusually sensitive plaintiffs to recover for act that would not cause severe emotional distress in persons generally
• However, if the defendant knows about the unusual sensitivity, a cause of action will lie

[E] TRESPASS TO LAND

General

• Statement: An intentional physical invasion of a person's real property
• counts if you invade someone's possessory interest(tenants may recover...but landlords may not have a possessory interest)

Elements

1. Act
   1. Example: Includes failure to leave
2. Intent
   1. The only intent needed is the intent to do the act that results in the physical invasion
   2. Not knowing that the land belongs to another person does not negate the intent element. Not knowing doesn't excuse! ...Did you intend it?
      1. Example: Throwing a baseball too far
3. Causation
4. Physical invasion
   1. Person or object (example: walk on lawn or throw ball on lawn)
   2. Does not include intangibles, like vibrations or odors. Smoke doesn't count.(these are actionable under "nuisance")
5. Real property
   1. Surface
   2. Subsurface, down to center of earth
   3. Airspace to a reasonable distance-Here is your throwing a ball over is trespass example.

[F] TRESPASS TO CHATTELS

General

• Statement: An intentional interference with plaintiff's chattel by physical contact or dispossession
  • This is "stuff"(not real property) and stuff attached to land.
• Defendant need not act in bad faith or intend to interfere with rights of others
• Chattel
  • Includes objects not attached to land (e.g. pets)
  • Not people
  • Not real property
  • Not intangible property, like intellectual property
    • Unless reduced to a tangible form (example: bonds)

Elements

1. Act
2. Intent
   1. The only intent needed is the intent to do the act that results in the physical invasion
3. Causation
4. Interference
5. With right of possession
   1. Physical contact
   2. Dispossession(take it away from someone and act like you own it)
   3. Interference with use
6. Chattel

Issues/Examples:

• Distinguish from conversion - difference is remedy
• Different examples of chattels v. conversion:
  • Borrowing/stealing burberry coat (trespass to chattels) v. altering coat (conversion)
  • Neutering cat v. Neutering champion stud cat
  • Borrowing car for 20 minutes (trespass to chattels) v. Taking car for 1 year (conversion)

[G] CONVERSION

General

• Statement: An intentional exercise of dominion or control over a chattel which so substantially interferes with the plaintiff's rights as to require defendant to be forced to purchase it
  • "You break it, you buy it"
• Defendant is liable for the entire market value of the chattel and not simply a small repair or rental cost (Trespass to chattels)
• Example: ∆ borrows coat from P and alters so no longer fits π. Another example would be taking a payloader to a car. (must buy a new one).

Elements

1. Act
2. Intent
3. Interference
4. Chattel
5. Substantiality
   1. so substantial, the act warrants a forced sale

Issues

• Distinguishing conversion from trespass to chattels (see notes above)
• In the remedy for conversion, ∆ retains converted property after paying damages
• Factors mitigating in favor of conversion
  • Length of time withheld
  • Amount and severity of damage
  • If chattel is "totaled"
• Factors tending to negate conversion
  • Repairable damage
  • Temporary nature of deprivation

Intentional Tort Defenses

1. Consent
   1. Scope: Must be within scope(within the boundaries of what you agreed)
      1. Ex- can't hit someone with a bat when they told you to punch them with your fist
   2. Types:
      1. Express: In writing or oral
      2. Implied in fact: assume one is ready
         1. Example: jumping into a boxing ring with gloves on and acting like a boxer
      3. Implied by law:
         1. Example: unconscious from car accident in ER and need surgery, it is performed -- /or/ If you are taken to a hospital and bleeding/unconcious there is implied by law concent.
2. Defense of self
   1. A person is entitled to use reasonable force (same level as what other person did to you) to prevent any reasonably believed threat of imminent battery or false imprisonment
   2. Retaliation is NOT a defense
3. Defense of others
   1. Similar to self defense
   2. BUT in a majority of jurisdictions, a mistake in perceiving a threat, even if reasonable, will void the defense
      1. Ex.-Keifer Sutherland defending someone that appeared to be harrassed on prank show...he was liable
4. Defense of property
   1. A person is entitled to use reasonable force to protect land and chattels
   2. Warning: there's more to this, so check local law before doing anything
5. Arrest
   1. Police
   2. Citizen
      1. privilege is much more limited than for police
6. Private necessity
   1. A person is privileged to invade the property rights of another to avoid injury to person or property, but must pay compensatory damages
   2. Note: Necessity is a defense to property torts only: trespass and conversion
      1. e.g.: if you use someone's car to save their life and bang the car up, you have to pay for the car's damages
7. Public necessity
   1. Doing something to protect the public at large, no compensatory damages are owed.
   2. Note: Necessity is a defense to property torts only: trespass and conversion
8. Recapture of Chattels
   1. Where another's possession began lawfully(ex:conditional sale), one may use peaceful means to recover chattel
   2. Force may be used to recapture a chattel only when in "hot pursuit" of one who has obtained possession wrongfully (ex:theft)
9. Discipline
   1. A parent or teacher may use reasonable force in disciplining children, taking into account the age and sex of the child and the seriousness of the behavior. (barbri book)

Things that are NOT Defenses:

1. Deserve-"he deserved to be slapped."
2. Retaliation- going at a person with a butcher knife if all they did was push you

• What must ∆ do to win?

1. Prove one of the elements in π's cause of action not there
2. OR prove affirmative defense

Module 3: Procedural Context for Torts

Module 4: Examples of a Tort Lawsuit: Walter v Wal-Mart

Walter v. Wal-Mart

Complaint

• Wal-Mart (D) pharmacist gave wrong prescription to Walter (P). Caused prolonged hospitalization and severe physical and emotional injuries.

Answer/Wal-Mart's Defense

• D denied negligence on behalf of pharmacist
• At a later point changed to a defense of contributory negligence,
  • P failed to seek timely medical help and blood test

Verdict

• Lower Ct granted $550,000.00 in damages
• Appellate Opinion
  • affirmed
  • D had a duty to P which was breached
  • Caused P harm
  • P was not negligent or not negligent as to add to harm
  • damages (determination of jury)

The Prima Facie Case for Negligence

Subpart A: The Duty Element

Module 5: Foreseeability

Basics

1. If the harm was a foreseeable result – act is negligent
2. Was the Δ negligent at all – unreasonably risked harming someone or some thing
3. Whether harm to a particular π (class) was a foreseeable result of negligence
   1. All-risks-considered whether the Δ was negligent
   2. Nature of the relation between Δ’s negligence and what actually happened to π

Harm-Within-The-Risk Test

• general risk foreseeable/imaginable by negligent act

1. Berry v. The Borough of Sugar Notch - whether negligence of operating a trolley above the speed limit was a proximate case of harm resulted when a tree fell on the speeding trolley as it passed by.
   1. Speeding did not increase risk (coincidence)
   2. Negligence issue was not a proximate cause of the damage

General Categories of Unforeseeableness

1. Unforeseeable P
   1. Palsgraf v. Long Island Railway - any person standing on the railway platform would be unforeseeable
      1. Reasoning - it was not reasonable to hold the railroad's alleged negligence was the cause of the passenger's injuries (under foreseeability test). The explosion was the proximate cause and the railroad could not have reasonably expected such a disaster.
2. Unforeseeable types of harm
   1. proximate cause determination
3. Unforeseeable extent of harm
   1. foreseeable P who suffers and unforeseeable extent of harm - not a valid defense that P had an unforeseeable weakness that caused injury
   2. Thin-Skull Rule ("Eggshell P Doctrine")
      1. rejection of the rule would create practical problems
      2. imposes a desirable kind of strict liability - promotes optimal deterrence
4. Unforeseeable manner of harm
   1. act is unforeseeable to P who is foreseeable and type of injury is foreseeable
   2. Marshall v. Nugent - D's driving forced P's car off the road. P was unharmed from initial accident and struck by second car while attempting to warn oncoming traffic of initial accident.
      1. General rule: unforeseeable manner of harm does not bar recovery if P and type of harm is foreseeable.

Module 6: Special Plaintiff Categories

Module 7: Failure to Act

Failure to Act

• ∆ may be liable if he had control or custody over a person, situation, or premises and acted negligently.

1. Nonfeasance: a failure to take positive steps to benefit others
2. Typically, no duty is found for these actions, but there are exceptions:
   1. Assumption of duty by acting (start helping someone)
   2. Once you undertake an attempt to rescue, the rescue has to be done reasonably
      1. Exception: good samaritan statutes exempting medical professionals from liability for ordinary, but not gross, negligence in voluntarily acting to help someone
   3. Peril caused by negligence - Defendant has a duty to assist someone in peril because of the defendant's negligence
      1. Duty to Aid Another Harmed by Actor’s Conduct
      2. If person knows or has reason to know that by his conduct he has caused bodily harm to another to make him helpless and in danger of further harm, the person is under a duty to exercise reasonable care to prevent further harm.
      3. South v. Amtrak - Plaintiff's view was obstructed while driving & collided with train. Court held that duty is owed to Plaintiff where Defendant knows or has reason to know his conduct, whether innocent or tortuous, has caused harm to another - has affirmative duty to render assistance to prevent further harm.
   4. Common carriers, innkeepers, shopkeepers
      1. Those who solicit and gather the public for their own profit owe a duty to aid patrons
         1. Ex.-If someone has a heart attack at Target, Target needs to help...But, you need to be in or on their property

    Subpart B: The Breach Element

Module 8: The Reasonable-Person Standard of Care

The Objective Standard

• General negligence standard is objective
  • Does not include the incapacity or limitations of the person who's behavior is under evaluation.
    • Defendant acting in good faith or trying their best is no defense.
  • How would the reasonable prudent person have acted under the given circumstances.

Children

• Children under the age of 5 are not negligent
• Children above 5 are expected to exercise the degree of care that would be reasonable of a child of similar age, intelligence, and experience.
  • There is usually little reason to sue a child as they often have few assets.

Infirm Adults

• Physical infirmities are visible, measurable and verifiable and are taken into account in judging the reasonableness of behavior.
• Mental infirmities are not visible and hard to measure, therefore, defendant are responsible and liable for their torts.
  • See - Breunig v. American Family Insurance Co. (no exception to objective standard of care for a mental deficiency)

Foreseeable Requirement

• Known or knowable possibility that there exists a risk that will result in harm.
  • Defendant is not negligent unless he knew or should have reasonably known that his actions posed a risk of harm.

Module 9: Custom and the Negligence Calculus

Learned Hand Calculus

• Liability depends upon whether B is less than L multiplied by P.
• The first two factors measure cost of taking risky action.
• The third factor, measures the cost of reducing or avoiding the risk of harm.
• B is the cost (burden) of taking precautions, and P is the probability of loss (L). L is the gravity of loss. The product of P x L must be a greater amount than B to create a duty of due care for the defendant.

Economic View of Negligence Calculus

• Plaintiff generally tried to prove that there was a particular precaution that the defendent should have taken, and if the precaution should have been taken, plaintiff would not have been harmed.
• The economic theory of negligence will be used by parties that engage in risky actions to determine whether or not the risk is worth taking.

The Untaken Precaution

• A precaution that the defendant should have taken and chose not to. Had the defendant taken that precaution, the plaintiff would not have been harmed.

Custom Application

• Relevant because it reflects the thoughts of a large number of people.
• Dispositive because a large number of people could be wrong.
• It does not have to be universal to be considered a custom, it can be specific to a certain area, industry, group etc.
• A reason for admitting evidence of compliance with custom is to inform jury that if it finds a party negligent, it is actually finding that entire community or industry that follows that custom as negligent. EX) Ford Pinto Case - If Ford was found negligent, all other manufacturers would be held to the same standard.
• Regardless of whether custom evidence is put in front of the jury, they will often have an idea of customs in their minds anyways.

Custom Rationale

• Evidence of non-compliance or compliance with custom is not only relevant but dispositive
• Compliance tends to prove reasonableness
• Non-compliance tends to prove negligence
• Evidence of industry custom as well as non-compliance aids in educating jurors of current custom and serves as a coordinating function.

Conclusion

• T.J. Hooper - Industry must adapt and acknowledge change as customs evolve.

Module 10: Negligence per se

• Negligence Per Se / Statutory Standard of Care

• Requirements for Statutory Standard to Apply – see Wawanesa Mutual Insurance Co.v. Matlock
  • Plaintiff must fall within the protected class.
  • Statute must protect against this kind of harm.

• If statute applies there is negligence per se
  • but NOT necessarily liability since there might be no damages

• Violation of some statues may be excused if:
  • Where compliance would caused more danger than violation.
  • Where compliance would be beyond defendant’s control.

Module 11: Res Ipsa Loquitor

• Res ipsa loquitor-thing speaks for itself
• Objective: it permits a jury to infer that the plaintiff's injury was caused by the defendant's carelessness even when the P presents no evidence of particular acts or omissions on the part of the D that might constitute carelessness(common sense theory)
• Special type of circumstantial evidence establishing defendant acted unreasonably without any other inferences needed
• The very occurrence of an event may rebuttably establish negligence, if:
  • The accident is of the type that would not normally occur absent negligence
  • The instrumentalities of the accident were in defendant's sole control

Elements

• The accident would normally not occur absent negligence: the injury must be of a kind that ordinarily does not result absent carelessness of D
• The Δ had exclusive control over the cause of the injury
• The π did not contribute to the cause of the injury, nor did a 3rd party.

Burden of Proof

• The π has the burden of proving that the Δ breached a duty
• The burden then switches to the Δ to prove that they acted reasonably
• Byrne v. Boadle - Guy walking down sidewalk gets hit with barrel of flour. Owner of flour warehouse is found negligent under res ipsa loquitor.

Application

“Smoking out the Evidence” from the Defendant

• The doctrine of Res ipsa Loquitor creates an artificial inference of negligence, in order to give the defendant the incentive to explain what actually happened.
• Therefore Res ipsa Loquitor can be use to “smoke out” or “give incentive” for the defendant(s) to divulge information that the Plaintiff would not have know/couldn’t obtain otherwise.

The Ybarra Problem

• Illustrates that in order for Res ipsa Loquitor’s “smoking out” device to activate, 2 basic elements must be meet:
  • One or more defendant must actually have some knowledge about the cause of the plaintiff’s injury.
  • Any defendant having evidence would be willing to lie under oath in a deposition, but willing to tell the truth under oath at trial.

• The Multiple Defendant Problem: See Yabarra v. Spangard
  • The source of the negligence falls within the scope of the duty owed by the defendant to the plaintiff; this usually (but not necessarily)arises where the instrument causing the injury was within the exclusive control of the defendant, or where there is an inability to identity the specific source of harm. [Frequently it arises where the source of negligence lies within a group of people who are unwilling or unable to divulge the actual source.]

    Subpart C: The Actual-Causation Element:

Module 12: But-For Analysis

• Short Intro: After finding there has been a breach of duty consider actual cause. Actual Cause is another way to say Cause in Fact.
• Tests to determine the Cause in Fact
  • But For Test
    • “But for” Defendant's conduct would the injury have occurred?
    • Example: Would the injury still occur, even without defendant's negligence?
      • Answer to the above question is Yes –> No to Causation → No to Liability
      • Answer to the above question is No → Yes to Causation → Yes to Liability
  • Substantial Factor Test
    • If multiple factors bring about an injury, and any one of those factors alone would have been sufficient to cause the injury, then it sufficient to show defendant's conduct was a “substantial factor.”
    • A cause can be a substantial factor without satisfying the “but for” test.

Module 13: Multiple Possible Causal Relationship

    Subpart D: The Proximate-causation element

Module 14: The Place of Proxi: Plasgraf v Long Island Railroad Railroad not liable for injury to P when fireworks went off and caused scales to move. Under foreseeability test, it was not reasonable to hold railroad's alleged negligence was cause of P's injuries. The explosion was proximate cause, and railroad could not have reasonably expected such a disaster.

Module 15: Various Tests for Proximate Causation

Proximate Causation: When the cause is close enough to hold one liable A cause that does not neccessarily or immediately cause an event or injury Most issues of proximate cause can be resolved by the foreseeability test or by the harm-within-the-risk-test.

Foreseeability Test

• the basic test of proximate causation
• The defendant's negligence is a proximate cause of the plaintiff's harm if causing that harm was a foreseeable result of acting as the defendant did
• Ex: defendant fails to stop at a red light and collides with the plaintiff's vehicle
  • was the defendants negligence a "proximate" cause of the plaintiff's harm?
    • Yes - it was highly foreseeable that someone passing through the intersection would be harmed if the defendant did not stop at the red light

Harm-Within-The-Risk-Test

• this can be thought of as a way of clarifying the foreseeability test
• Did the defendant's negligence increase the risk that the same general type of harm that the plaintiff suffered would occur?
• Ex: A defendant negligently parks his car next to a fire hydrant. Suppose now that the plaintiff, driving by the hydrant where the defendant parked, skids on the road and collides with the defendant's parked car.
  • Is the risk of the injury the plaintiff suffered one of the risks that makes the defendant negligent for blocking access to the fire hydrant?
    • NO - because the act of parking by the hydrant instead of a dozen feet further down the street does not increase the risk of the harm materialized. A motorist passing by that spot is no more likely to skid into a car parked negligently than into a car parked a legal distance away from the hydrant.

    Subpart E: The Damages Element

Module 16: Compensatory Damages

• These are the most common form of damages

• Money given to make P whole again. Intended to represent the closest possible financial equivalent of the loss or harm suffered by P.

Sufficient kinds of compensatory damages

• Personal injury - physical pain and suffering can be included
• Property damage (tangible)
• Severe emotional distress (for NIED only)
• Not mere economic damages, harm to reputation, or other oblique injuries
  • But note that oblique injuries may create liability covered under the heading of oblique torts
• Pecuniary injury - damages include compensation for the victim’s medical expenses, lost wages or diminished earning capacity, and other economic expenses because of the injury.
• Non-pecuniary injury - pain, suffering, and other variations of mental distress.

Module 17: Punitive Damages

• Punishes defendant
• Compensatory damages are a prerequisite
• Conduct must be wonton, willful, reckless, or malicious
  • The conduct for which the plaintiff being sued can be beyond the conduct at issue

Defenses to Negligence

Plaintiff's negligence

1. Contributory Negligence
   1. Definition: Conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection; and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm.
   2. Complete bar to recovery- if plaintiff contributes to negligence, no recovery
   3. Most jurisdictions have rejected contributory negligence in favor of comparative negligence
2. Comparative Negligence
   1. Pure comparative negligence
      1. Plaintiff's award is reduced by percentage of fault
      2. Example: If P is responsible for 90% of the negligence that caused his injuries, he may still recover 10% of his damages.
   2. Partial comparative negligence
      1. Plaintiff's award is contingent upon defendant meeting a certain threshold percentage of fault
      2. Plaintiff's award is then reduced by percentage of fault

Assumption of Risk

1. Definition: A plaintiff who fully understands a risk of harm to himself or his things caused by the defendant's conduct or by the condition of the defendant's land or chattels, and who nevertheless voluntarily chooses to enter or remain, or to permit his things to enter or remain within the area of that risk, under circumstances that manifest his willingness to accept it, it not entitled to recover.
2. Elements
   1. Knowledge of a Particular Risk: plaintiff must have actual and conscious knowledge of the particular risk.
   2. Voluntary: plaintiff must voluntarily expose herself or her property to the risk to assume the risk.
   3. Assuming the risk: the defense of assumption of risk only applies to the particular risk which the plaintiff has knowingly and voluntarily assumed.
3. Classifications of Assumption of Risk
   1. Express agreement
      1. Not valid for certain defendants, including common carriers (e.g. airlines)
      2. Not valid for gross negligence or willful acts
      3. Signing a release form is generally an acknowledgement of the risk rather than a contract.
   2. Implied: Based on the circumstances, plaintiff impliedly assumed the risk

Module 20: Statutes of Limitations and Repose

Statute of Limitations - Limits the time available to commence an action.

1. Rationales
   1. Deterioration of evidence
   2. Avoiding the re-ignition of conflicts quieted by time
   3. Peace of mind for potential defendants
   4. Ability to throw out trash
   5. Promotes forward-looking investments
   6. Avoids cost to society through increased insurance costs
   7. Social value of stable transactions and relationships
2. Criticisms
   1. Irrational
   2. Bars otherwise just claims
   3. Inflexible
   4. Prevents some kinds of torts from being compensable at all
3. When Does the Statute Start Running?
   1. Accrual Rule
      1. Harm (vs. act) - starts when the harm occurs, not when the harmful act occurs
      2. When damage is done and you can sue
   2. Discovery Rule
   3. When relevant facts are discovered (or should be discovered by the reasonable person)
      1. I.E., foreign object left by a surgeon in someone's body
4. Tolling
5. Legal Doctrine that allows for the delay or pause of the running time in a "Statute of Limitations."
   1. Examples of Tolling
      1. Minority age
      2. Prison
      3. Military service
      4. Mentally incompetent
      5. Another suit pending on same subject matter
      6. Administrative proceedings prerequisite to suit
      7. Defendant's agreement

Statute of Repose

1. Is a statute, similar to a "Statute of Limitations," that is designed to cut off certain legal rights if they are not acted on by a certain time.
2. Main Difference is that a "Statute of Limitations" is triggered by an injury, while a "Statute of Repose" is triggered by the completion of an act.
3. Unlike a "Statute of Limitations," a "Statute of Repose" is designed to bar actions after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim.
4. Courts hold a Statute of Repose much more stricter then a "Statute of Limitations"
5. There is no "Accrual" or "Discovery" rule.
   1. i.e. a "Statute of Repose" is triggered when a blender is made, not when it injuries the plaintiff.
6. Defendants helped:
   1. Architects
   2. Engineers
   3. Product Manufacturers
   4. Physicians

Module 21: Immunities and Exemptions

The Firefighter's Rule

1. Precludes firefighters (and other professionals) from suing for injuries sustained fighting negligent fires (or other incidents related to a profession)kind of a reverse immunity
2. The generally accepted rule that firefighters are excluded from suing for injuries sustained while fighting "negligent" fires.
3. Arsonists can be sued by firefighters
4. in essence, a form of assumption of risk.
   1. Firefighters have assumed the risk and their compensation already reflects the ordinary risks of negligently created fires inherent in their job
   2. the rule also helps address the concern that victims would be deterred from seeking assistance if liability to the firefighter was imposed on their negligent behavior which created the fire.

Immunities - Classes of individuals/entities immune from tort liability.

1. Charitable Immunity
   1. Historically, charitable organizations were immune from tort liability.
   2. Today, many state laws have abolished the charitable immunity. Most of the remaining states have only partially retained the immunity.
      1. This has evolved this way because of prevalence of liability insurances and the business-like operations of large charities.
   3. Policy Reasons
      1. A means to protect the important work done by charities.
      2. Funds given to the charity are meant to forward that work, not defend against litigation.
2. Spousal Immunity
   1. Historically, spouses could not sue each other; many said such suits would damage marital harmony.
   2. Today, the majority of states have eliminated spousal immunity and those that have retained it tend to impose limitations upon it.
3. Parent Child Immunity
   1. Historically,this immunity was created in the U.S. Precludes tort actions between parents and non-adult children.
   2. Today, Still kept in most states to prevent fraud and collusion; litigations that will deplete family resources; and destroy the harmony of the family. Some states have completely abolished parent-child immunity.
   3. Never held to bar property or purely economic torts, but does prevent intentional torts such as assault or battery and liability for personal injuries caused by negligence
4. Governmental Immunity
   1. Under the common law, immunities were complete and prevented any tort suits against the government.
   2. There is Immunity for discretionary (policy-making)functions but not ministerial (policy implementation) acts.
      1. Cannot sue the government for its "negligent" policy-making decisions
      2. Can sue the government for "negligent" ministerial acts
         1. Ex: Government decides to build a bridge, and the bridge is built negligently. A person injured by the negligently built bridge can sue.
   3. The federal government is also immune from claims based on strict liability.

Liability Relating to Medical Care

Module 22: Medical Malpractice/Professional Negligence

Module 23: Informed Consent

Module 24: Medical Battery

Module 25: Tort Reform and Medical Torts

Module 26: Liability to Health Insurers