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Torts 102
| Question | Answer |
|---|---|
| Damages | 3 Types: Nominal - to vindicate Plaintiff, Compensatory - make the plaintiff whole and Punitive - to punish the defendant. |
| Compensatory Damages | Compensatory: Economic and Non Economic Damages |
| Economic Damages | Past and Present Medical Expenses, Past and Present Lost Wages, Loss of Future Earning Capacity, Medical Monitoring |
| Non Economic Damages | Past and Present Pain and Suffering, Loss of Function or Appearance, Loss of Enjoyment of Life, Emotional Distress |
| Judicial Review of Damages | Remittur - new trial or reduction of damages to plaintiff because the jury award was too much. Additur (NOT IN FEDERAL COURT) new trial or additional damages paid by defendant because the jury award was too low. |
| Collateral Source Rule | Any payments for the plaintiff made on their behalf collateral to the def. is not admitted into evidence and does not reduce the damage award to the plaintiff. If the payment is made on behalf of the defendant is admitted and award is reduced by payment |
| Mitigation of Damages | Every Plaintiff is obligated to mitigate damages: PPERM Medical Procedure must be evaulated for the following: Probability of success, Pain Experienced, Money and Effort Required, Risk Involved |
| Physical Harm to Property | Replaced Market Value or Value a the time of the damage. |
| Punitive Damages | Compensatory Damages must be awarded, punishment for willful, wanton, offensive or reckless conduct. Proven by clear and convincing evidence. Vicarious Liability will not be awarded unless the employerr is proven agree with conduct. |
| North Carolina Punitive Damages | Three times the compensatory damages or $250,000, whichever is greater. No cap for Driving under the Influence damages (i.e. drinking, drugs, etc.) Plaintiff must demand punitive damages and provide the aggravating factors to support award in their claim. |
| Joint Tortfeasors | Parties who committ tortious conduct either through: acting in concert, indivisible acts creating an indivisible harm, or vicarious liability. Everyone is equally liable for damages, plaintiff can seek damages from one party or from all parties. |
| Contributory Negligence | All tortfeasors are jointly and severally liable for damages. If plaintiff is liable, no recovery unless last clear chance can be applied. Set Off by payments to reduce damages |
| Comparative Negligence | Several liability only, apportionment of the damages, no contribution because no one will pay more than their share of damages. No Set Off |
| Satisfaction | Where the plaintiff is paid partial or full damages by either a defendant or through a jury verdict. Can only be satisfied once. |
| Setoff | Only applies to contributory negligence, where a tortfeasor pays a settlment, the paid amount is reduced by the jury verdict. |
| Release | May be made for partial compensation or no compensation at all. Releases only the tortfeasor who |
| Covenant not to sue | The release of one joint tortfeasor is the release of all. If one tortfeasor pays entire damages, he can seek contribution from the other released tortfeasors. |
| Contribution (JOINT AND SEVERAL LIABILITY) | what one tortfeasor can recover from another, can NOT recover for intentional torts, may not seek contribution from settled or immune tortfeasors, equally divided amongst tortfeasors |
| Settled Tortfeasor | Can recover contribution from unsettled tortfeasors, is immune from paying contribution from unsettled tortfeasors unless fraud or bad faith regarding the settlement can be proven. |
| Indemnity | Vicarious Liability - where the employer found liable solely based on the relationship with the tortfeasor their employee, the employer can seek indemnity from the employee. Can seek contribution or indemnity, not both. |
| Apportionment of Damages | one injured by the negligence of another is entitled to recover the damages proximately caused by the act of the tortfeasor, and the burden of proof is upon the Π to establish that the damages he seeks were proximately caused by the negligence of the Δ. |
| Successive tortfeasors (unrelated accidents) | second tortfeasor is liable for the entire injury when the damages can not be apportioned. |
| Successive tortfeasors (related accidents) | Δ liable for all injuries directly resulting from his wrong doing, including negligent medical care, or getting hit by another car in the road. |
| Privity of Contract | Duty owed by defendnat, defendant is implicated in order to cut of liability, Δ raises it saying that since the Π was not a party to the K then the Δ is not liable to the Π. |
| Nonfeasance | Non-performance of contract occurs when the party does not perform according to the contract. Where there is only the promise and the breach, only the contract action will lie and no tort action can be maintained. EX: Common Carriers or Public Utility |
| Misfeasance | MISPERFORMANCE – when the Δ misperforms the K. Takes steps to perform but fails to do so. When Δ’s wrongful conduct is only a breach of K, and the Π is not a party to the K, then the Π can not recover from the Δ. (Δ not liable to parties outside the K) |
| Breack of Contract - Defendand owes a duty when: | Π can recover under K or tort action for misfeasance when the good is dangerous and the manufacturer knows that it will be used by other persons |
| Attorney Exception | Atty has no duty besides to the client, unless 3rd party beneficiary – if 3rd was intended to benefit under the K then that party may have an action against the attorney. |
| Failure to Act | There is no duty to rescue unless: a. If the Δ is in control of the instrumentality causing the harm b. If the Δ has invited a person their house (invitor/invitee) c. Or a master/servant relationship exists (employer/employee) |
| Exceptions to Failure to Act | Employer's Duty, Common Carrier, Inkeeper, Termporary Legal Custody, Family, |
| When the injury is caused by the Δ | when Δ injures another by his negligence then he is under a duty to take reasonable affirmative action to aid the person. If Δ is aware that he has harmed the Π then there is duty to take steps to prevent further harm. |
| Detrimental Reliance | 1. a duty to act may be imposed whenever 1) Δ assumes a responsibility to act and 2) such undertaking increases the risk of such harm OR 3) is relied upon by the Π to her detriment |
| Good Samaritan Law | a person who in good faith renders emergency care at the scene of an emergency, shall not be liable for any civil damages as a result of any acts or omissions by the person rendering emergency care. |
| Negligent Infliction of Emotional Distress | 1.The defendant negligently engaged in conduct, 2. It was reasonably foreseeable PRO that such conduct would cause plaintiff SED, and 3. The conduct did in fact cause the plaintiff SED |
| PRO | 3 factors to be considered for the issue of foreseeability: i. The plaintiff’s proximity to the negligent act ii. The relationship between the plaintiff and the injured person; and iii. Whether the plaintiff personally observed the negligent act. |
| Wrongful Death | Yes, in NC - where the defendants acts causes the injury to the plaintiff and the plaintiff dies, the estate can bring suit against the defendant. Money does to the plaintiff's aires, not distributed. |
| Wrongful Conception | Yes in NC, will be liable for the cost of the medical expenses for the pregnancy only. |
| Trespassers (Lowest Duty) | person without expressed or implied permission of the owner, no duty. EX: Once Owner know of trespasser, has duty to avert harm |
| NC Statute Wrongful Death | SOL 2 years at the time of death Money use for court costs and necessary expenses not atty fees. Once recovered: money spent for case then atty fees. Money not liable for debts except for burial, hospital and medical <$4500 and not to exceed 50% of total |
| Viable Fetus Damage - Unborn Children - Wrongful Death | Fetus must be viable >7 months, can it live outside the womb. Pain and suffering, through MD expert, medical, hospital, funeral, punitive (w/evidence). No Punitives |
| NC Statute Survivor | Decedents control how the estate is distributed once all claims against the estate have been settled. |
| Licensee (Moderate Duty) | Visitor has sole benefit to be on property. Owner has duty of ordinary care, warn against known, dangerous conditions that are UNKNOWN to guest. Does not apply to natural, obvious conditions. EX: trees, hidden and artifical conditions. |
| Invitee (Highest Duty) | Mutual benefit btwn owner and guest. Owner owes duty to inspect for hazards and remedy safe conditions. Duty to warn and keep guest safe on premises. |
| NC Owners/Occupiers | Duty to trespassers - same Duty to Licensees and Invitees equal - exercise reasonable care in the maintenace of the premises for the protection of lawful visitors. Owner is liable only for KNOWN or should have known conditions and UNKNOWN by the visitor. |
| Landlord (Lessor)/Tenant (Lessee) | Landlord NO liability for injuries by tenants/guest. Tenant control over the property and must maintain. EX: dangerous conditions outside premises or in common area, failed to disclose defects, public property, fails to repair or makes repair negligently. |
| Landlord and Criminal Acts by Third Parties |
Created by:
mserica99
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