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'''Welcome to ''Torts Wypadki''!'''
We hope you will contribute much and well.
You will probably want to read the [[Help:Contents|help pages]].
Again, welcome and have fun! [[User:Johnson.eric|Johnson.eric]] 16:25, 17 November 2009 (UTC)

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Fall 2009 Torts Wypadki

2009-11-17T15:22:20Z

The Prima Facie Case for Negligence:

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-	''''''Black Letter Law''''''	+	==''''''Black Letter Law''''''==

	'''Part I: Preliminaries''''''		'''Part I: Preliminaries''''''
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-	== The Prima Facie Case for Negligence ==	+	==The Prima Facie Case for Negligence ==
-	''Subpart A: The Duty Element''	+	===''Subpart A: The Duty Element''===

-	Module 5: Foreseeability	+	====Module 5: Foreseeability====

	'''Basics'''		'''Basics'''

Fall 2009 Torts Wypadki

2009-11-16T23:25:51Z

The Prima Facie Case for Negligence:

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	Module 14: The Place of Proxi: Plasgraf v Long Island Railroad		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		Module 15: Various Tests for Proximate Causation
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	*Conduct must be wonton, willful, reckless, or malicious		*Conduct must be wonton, willful, reckless, or malicious
	**The conduct for which the plaintiff being sued can be beyond the conduct at issue		**The conduct for which the plaintiff being sued can be beyond the conduct at issue
-
-

	== Defenses to Negligence ==		== Defenses to Negligence ==

Fall 2009 Torts Wypadki

2009-11-16T04:57:33Z

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	== Defenses to Negligence ==		== Defenses to Negligence ==

-	#'''Plaintiff's negligence'''	+	'''Plaintiff's negligence'''
-	~~##'''''Contributory Negligence'''''~~	+
-	###'''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.	+
-	~~###Complete bar to recovery- if plaintiff contributes to negligence, no recovery~~	+
-	~~###Most jurisdictions have rejected contributory negligence in favor of comparative negligence~~	+
-	~~##'''''Comparative Negligence'''''~~	+
-	~~###'''Pure comparative negligence'''~~	+
-	~~####Plaintiff's award is reduced by percentage of fault~~	+
-	~~####Example: If P is responsible for 90% of the negligence that caused his injuries, he may still recover 10% of his damages.~~	+
-	~~###'''Partial comparative negligence'''~~	+
-	~~####Plaintiff's award is contingent upon defendant meeting a certain threshold percentage of fault~~	+
-	~~####Plaintiff's award is then reduced by percentage of fault~~	+

		+	#'''''Contributory Negligence'''''
		+	##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.
		+	##Complete bar to recovery- if plaintiff contributes to negligence, no recovery
		+	##Most jurisdictions have rejected contributory negligence in favor of comparative negligence
		+	#'''''Comparative Negligence'''''
		+	##'''Pure comparative negligence'''
		+	###Plaintiff's award is reduced by percentage of fault
		+	###Example: If P is responsible for 90% of the negligence that caused his injuries, he may still recover 10% of his damages.
		+	##'''Partial comparative negligence'''
		+	###Plaintiff's award is contingent upon defendant meeting a certain threshold percentage of fault
		+	###Plaintiff's award is then reduced by percentage of fault

-	~~#'''Assumption of Risk~~
-	##'''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.
-	~~##''''''Elements''':'''~~
-	~~###Knowledge of a Particular Risk: plaintiff must have actual and conscious knowledge of the particular risk.~~
-	~~###Voluntary: plaintiff must voluntarily expose herself or her property to the risk to assume the risk.~~
-	~~###Assuming the risk: the defense of assumption of risk only applies to the particular risk which the plaintiff has knowingly and voluntarily assumed.~~
-	~~##''''''Classifications of Assumption of Risk'''''':~~
-	~~###Express agreement~~
-	~~####Not valid for certain defendants, including common carriers (like airlines)~~
-	~~####Not valid for gross negligence or willful acts~~
-	~~####Signing a release form is generally an acknowledgement of the risk rather than a contract.~~
-	~~###Implied: Based on the circumstances, plaintiff impliedly assumed the risk~~

		+	'''Assumption of Risk
		+
		+	#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.
		+	#'''''Elements''
		+	##Knowledge of a Particular Risk: plaintiff must have actual and conscious knowledge of the particular risk.
		+	##Voluntary: plaintiff must voluntarily expose herself or her property to the risk to assume the risk.
		+	##Assuming the risk: the defense of assumption of risk only applies to the particular risk which the plaintiff has knowingly and voluntarily assumed.
		+	#'''''Classifications of Assumption of Risk'''''
		+	##Express agreement
		+	###Not valid for certain defendants, including common carriers (e.g. airlines)
		+	###Not valid for gross negligence or willful acts
		+	###Signing a release form is generally an acknowledgement of the risk rather than a contract.
		+	##Implied: Based on the circumstances, plaintiff impliedly assumed the risk

	Module 20: Statutes of Limitations and Repose		Module 20: Statutes of Limitations and Repose
		+
		+	'''Statute of Limitations - Limits the time available to commence an action.
		+	#Rationales
		+	##Deterioration of evidence
		+	##Avoiding the re-ignition of conflicts quieted by time
		+	##Peace of mind for potential defendants
		+	##Ability to throw out trash
		+	##Promotes forward-looking investments
		+	##Avoids cost to society through increased insurance costs
		+	##Social value of stable transactions and relationships
		+	#Criticisms
		+	##Irrational
		+	##Bars otherwise just claims
		+	##Inflexible
		+	##Prevents some kinds of torts from being compensable at all
		+	#When Does the Statute Start Running?
		+	##Accrual Rule
		+	###Harm (vs. act) - starts when the harm occurs, not when the harmful act occurs
		+	###When damage is done and you can sue
		+	##Discovery Rule
		+	##When relevant facts are discovered (or should be discovered by the reasonable person)
		+	###I.E., foreign object left by a surgeon in someone's body
		+	#Tolling
		+	#Legal Doctrine that allows for the delay or pause of the running time in a "Statute of Limitations."
		+	##Examples of Tolling
		+	###Minority age
		+	###Prison
		+	###Military service
		+	###Mentally incompetent
		+	###Another suit pending on same subject matter
		+	###Administrative proceedings prerequisite to suit
		+	###Defendant's agreement
		+
		+
		+	'''Statute of Repose'''
		+	#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.
		+	#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'''.
		+	#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.
		+	#Courts hold a Statute of Repose much more stricter then a "Statute of Limitations"
		+	#There is no "Accrual" or "Discovery" rule.
		+	##i.e. a "Statute of Repose" is triggered when a blender is made, not when it injuries the plaintiff.
		+	#Defendants helped:
		+	##Architects
		+	##Engineers
		+	##Product Manufacturers
		+	##Physicians

	Module 21: Immunities and Exemptions		Module 21: Immunities and Exemptions

-	'''~~Part IV~~: Liability Relating to Medical Care~~'''~~	+	'''The Firefighter's Rule
		+	#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
		+	#The generally accepted rule that firefighters are excluded from suing for injuries sustained while fighting "negligent" fires.
		+	#Arsonists can be sued by firefighters
		+	#in essence, a form of assumption of risk.
		+	##Firefighters have assumed the risk and their compensation already reflects the ordinary risks of negligently created fires inherent in their job
		+	##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.
		+	#Charitable Immunity
		+	##Historically, charitable organizations were immune from tort liability.
		+	##Today, many state laws have abolished the charitable immunity. Most of the remaining states have only partially retained the immunity.
		+	###This has evolved this way because of prevalence of liability insurances and the business-like operations of large charities.
		+	## Policy Reasons
		+	###A means to protect the important work done by charities.
		+	###Funds given to the charity are meant to forward that work, not defend against litigation.
		+	#Spousal Immunity
		+	##Historically, spouses could not sue each other; many said such suits would damage marital harmony.
		+	##Today, the majority of states have eliminated spousal immunity and those that have retained it tend to impose limitations upon it.
		+	#Parent Child Immunity
		+	##Historically,this immunity was created in the U.S. Precludes tort actions between parents and non-adult children.
		+	##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.
		+	##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
		+	#Governmental Immunity
		+	##Under the common law, immunities were complete and prevented any tort suits against the government.
		+	##There is Immunity for discretionary (policy-making)functions but not ministerial (policy implementation) acts.
		+	###Cannot sue the government for its "negligent" policy-making decisions
		+	###Can sue the government for "negligent" ministerial acts
		+	####Ex: Government decides to build a bridge, and the bridge is built negligently. A person injured by the negligently built bridge can sue.
		+	##The federal government is also immune from claims based on strict liability.
		+
		+
		+
		+	==Liability Relating to Medical Care==

	Module 22: Medical Malpractice/Professional Negligence		Module 22: Medical Malpractice/Professional Negligence

Fall 2009 Torts Wypadki

2009-11-16T04:24:24Z

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	Module 15: Various Tests for Proximate Causation		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''		''Subpart E: The Damages Element''

Fall 2009 Torts Wypadki

2009-11-16T02:10:06Z

←Older revision		Revision as of 02:10, 16 November 2009
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	**damages (determination of jury)		**damages (determination of jury)

-	~~'''Part II:~~ The Prima Facie Case for Negligence~~'''~~	+
		+	== The Prima Facie Case for Negligence ==
	''Subpart A: The Duty Element''		''Subpart A: The Duty Element''

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	#Whether harm to a particular π (class) was a foreseeable result of negligence		#Whether harm to a particular π (class) was a foreseeable result of negligence
	##All-risks-considered whether the Δ was negligent		##All-risks-considered whether the Δ was negligent
-	##Nature of the relation ~~b/w~~ Δ’s negligence and what actually happened to π	+	##Nature of the relation between Δ’s negligence and what actually happened to π

	'''Harm-Within-The-Risk Test'''		'''Harm-Within-The-Risk Test'''
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-	==~~=Negligence~~ Defenses===	+	== Defenses to Negligence ==

	#'''Plaintiff's negligence'''		#'''Plaintiff's negligence'''
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	####Plaintiff's award is then reduced by percentage of fault		####Plaintiff's award is then reduced by percentage of fault

-	~~Module 19: Assumption of Risk~~

-	#'''Assumption of Risk~~-"You assumed the risk."'''~~	+	#'''Assumption of Risk
	##'''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.		##'''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.
	##''''''Elements''':'''		##''''''Elements''':'''
	###Knowledge of a Particular Risk: plaintiff must have actual and conscious knowledge of the particular risk.		###Knowledge of a Particular Risk: plaintiff must have actual and conscious knowledge of the particular risk.
-	###~~Voluntariness~~: plaintiff must voluntarily expose herself or her property to the risk to assume the risk.	+	###Voluntary: plaintiff must voluntarily expose herself or her property to the risk to assume the risk.
	###Assuming the risk: the defense of assumption of risk only applies to the particular risk which the plaintiff has knowingly and voluntarily assumed.		###Assuming the risk: the defense of assumption of risk only applies to the particular risk which the plaintiff has knowingly and voluntarily assumed.
	##''''''Classifications of Assumption of Risk'''''':		##''''''Classifications of Assumption of Risk'''''':
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	####Not valid for certain defendants, including common carriers (like airlines)		####Not valid for certain defendants, including common carriers (like airlines)
	####Not valid for gross negligence or willful acts		####Not valid for gross negligence or willful acts
		+	####Signing a release form is generally an acknowledgement of the risk rather than a contract.
	###Implied: Based on the circumstances, plaintiff impliedly assumed the risk		###Implied: Based on the circumstances, plaintiff impliedly assumed the risk

Fall 2009 Torts Wypadki

2009-11-16T01:13:51Z

Nathan Gibbens contributed to all edits made by Harris.Lindsay

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