Final Exam Study Guide DAMAGES - RECOVERING 1) Wrongful Birth: but for the

s negligence, there would be no child a) Typically failure of sterilization or birth control or failure of doctor to provide timely advice b) NOT a bad baby case: a child is born w/ some health condition, disability, etc. which results from the physicians negligence c) Court outlines three possibilities for recovering damages (jurisdictions vary): i) Strict rule: pregnancy and childbirth only ii) Full damages (economic and non-economic) iii) Full damages minus benefits d) Courts usually vary in assessing a heathy child v. disabled child, using the Restatement of Torts 920 test of imputed benefit as a guide i) most jurisdictions recognize the right of the parents to recover for the extraordinary costs associated with the child's disability (1) there is potential for a much larger recovery for a case w/ a disabled child 2) Wrongful Life: a claim raised by a child w/ significant disabilities, saying that he or she would have been better off having never been born at all; childs life is a detriment to itself a) most courts have either refused to recognize this cause of action or have granted nominal damages (economic but not noneconomic) due to the difficulty of evalutating life v. nonlife b) Damages distributed only after child has reached age of majority b/c parents are awarded before age of majority (cannot double/overlap award) 3) Loss of Consortium: the loss of victims society and companionship; parasitic claim b/c injury is not direct a) Spouse can recover b) Most jurisdictions do not allow other family members or people to recover, though unsettled issue c) Examine policy and legislation for a rule 4) Bystander Injury: seeking compensation for the emotional distress, shock, and trauma of observing an accident a) Dillon v. Legg (two daughters and mother crossing street) i) Was the emotional injury to the & reasonably foreseeable? ii) Three factors to consider when evaluating if a bystander can recover damages: (1) Present at the accident scene (a) As contrasted w/ one who was a distance away from the accident (2) Direct and emotional shock (post accident shock; reliving of moment) (a) As contrasted w/ learning about the accident afterward (grief) (3) Close relationship b) Hegel v. McMahon (man refilling gas tank, family arrives shortly after he is hit) i) To recover bystander injury: (1) Objective medical symptomology (2) a family member may recover for emotional distress caused by observing an injured relative at the scene of an accident after its occurrence and before there is substantial change in the relatives condition of location c) Varies from jurisdiction to jurisdiction

DAMAGES CALCULATING 1) Excessive Damages a) Major area of tort reform b/c personal injury awards seem excessive i) Awards are deemed excessive if awarded w/ passion or prejudice and no substantial evidence exists to support such an award (1) Substantial evidence standard used in both economic and non-economic damages b) Jurisdictional variance i) Many jurisdictions have legislation regulating awards, especially for pain and suffering ii) Some of these "caps" were held to be unconstitutional due to the right to a trial by jury or a violation of the open courts promise in a state constitution iii) Some jurisdictions found caps to be constitutional and appropriate 2) Collateral Sources a) & is compensated by a source other than a tortfeasor, such as an insurance company i) most jurisdictions do not allow the to reduce his or her liability by this amount (1) usually has to pay as if no payment had already been made ii) insurer usually gets the to reimburse it for the amount it paid out (through subrogation) (1) prevents & from double dipping b) reform statutes sometimes allow the jury to hear evidence concerning the benefits the & had already received to pay for the injury and reduce the s liability accordingly (jurisdictional variance) 3) Permissible Jury Arguments a) Some arguments are not allowed due to their tendency to inflame the passions of the jury beyond just compensatory considerations i) send a message: jurys award should send a message to the s industry to deter such behavior in the future (1) nature of a punitive damages argument ii) per diem: how much would you pay per day for this injury? (1) Some jurisdictions allow per diem arguments and some dont (a) Perhaps reason some dont is b/c the impact of the injury diminishes over time (b) Perhaps the reasons some do is b/c both sides have an opportunity to make their arguments IMMUNITY 1) Some members of society have immunity from liability for public policy reasons a) Immunities are established by common law and statutes b) Some immunize the completely c) Some place limitations on the &s ability to recover 2) Governmental: most jurisdictions have statutes that waive sovereign immunity in whole or in part a) Statutory waiver i) Ex: Federal Tort Claims Act (1946) ii) REMEMBER: each jurisdiction is sovereign (1) Just b/c the federal gov. has waived immunity in an area does not mean that a state (or Native American tribe) has done the same iii) Key elements of statutory waivers: (1) Negligence: is liability based on proof of fault? Does strict liability apply? (a) The Federal Tort Claims Act has been interpreted to limit liability to cases where fault can be established, despite its language that makes the standard equivalent to what is used against private persons (2) Broad statutory waiver v. Narrow statutory waiver (a) Broad: waive immunity and list exceptions where immunity exists (generous) (b) Narrow: retain immunity and list exceptions where immunity is waived (not generous) (3) Damage Limitations: may be an upper limit that the & can recover regardless of the amount of injury

b) Exceptions: some statutes remove liability from particular activities of the government i) Examples: fire protection, police protection, highway maintenance ii) The Federal Tort Claims Act excludes intentional torts, except when committed by law enforcement personnel c) Discretionary functions: immunity statutes usually retain immunity for government policy decisions i) Policy Making: planning (Ex: city decides not to put up a specific stop sign) (1) Typically no liability ii) Operations: application (Ex: workers forget to put up the sign and someone is injured) (1) Typically liability d) Proprietary Functions: immunity statues usually retain liability for proprietary functions i) Proprietary: income generating activity (Ex: hospitals, schools, libraries) (1) Typically liable ii) Governmental: activities not aimed at generating income but may do so indirectly (Ex: police, firefighting, taxes, etc.) 3) Parental a) Cannot hold parents liable for being bad parents! b) Liability to child: child alleges that parents negligence resulted in injury to child his/herself i) Two kinds: (1) Parent breaches a duty to exercise reasonable parental care (a) Ex: child playing in the street is hit by a third party in a car (b) In most jx, parents immune to claims by child and claims by third parties (driver of car) (i) Some jurisdictions permit the allocation of fault to an immune party, providing to the codefendants (driver of car) a chance to reduce their liability in proportion to the amount the parents are found at fault (2) Parent breaches a duty that is owed independent of a family relation (a) Ex: parent is driving child and due to parents poor diving, both are injured in an accident (b) In most jx, child can recover damages and parents are not immune c) Liability for child: Parents negligent supervision caused injury to a third party i) If the parent knows of a childs dangerous propensity, parent may be liable to the third party for failing to use reasonable care (1) Ex: counseling? Warning others? 4) Employer: most employers have immunity due to workers compensation policies a) Workers Compensation Exclusion: most jurisdictions have a mandatory system where all employers are required to participate in the worker's compensation program, i) employer pays insurance premiums and receives coverage for worker injuries, regardless of fault ii) Some jurisdictions allow the employer or employee to choose to be covered by workers compensation iii) Intentional injuries caused by the employer are not covered under workers compensation (1) Ex: racial or sexual harassment CONTRIBUTORY FAULT 1) Contributory Negligence: & was negligent, failing to use reasonable care for his or her own safety a) Jurisdictions use different types of contributory negligence policies (look for a statute) i) Common Law Bar: if & was negligent at all, recovery is barred (1) Only four states followed this rule as of 1996 (Alabama, Maryland, N. Carolina, Virginia) (2) NOT &-friendly ii) Modified Comparative: allows & to recover if & is less negligent than the and operates as a pure comparative negligence system (liability in proportion to fault) (1) Typically enacted through legislation (2) Important to find out if the comparison is b/t the & and the s as a group, or b/t the & and each (a) Most jx group s

(3) Two types of modified comparative (depends on jx, look at statue): (a) 49.9%: & can recover if &s negligence is less than the s negligence (barred if equally at fault) (b) 50%: & can recover if &s negligence is not greater than the s negligence iii) Pure Comparative Negligence: apportions liability in direct proportion to fault (1) & can be up to 99.9% negligent and still recover (2) VERY &-friendly 2) Assumption of Risk: & voluntarily assumes a known risk OUTCOME & & consciously and voluntarily Not negligent & cannot recover; no liability assumes the risk (activity PRIMARY inherently risky), thereby relieving the s duty to use reasonable care Negligent or Treated the same as contributory & assumes the risk (risk not negligent negligence (%) negligently created by the ) but does not consciously Jury usually given instructions on CN relieve the of the duty of SECONDARY UNREASONABLE reasonable care. &s conduct in proceeding in the activity despite the existence of the risk was not reasonable (& is negligent) Jurisdictional variance: negligently creates a risk that Negligent 1. no fault, & can recover the & consciously chooses to SECONDARY 2. assumption or risk is more culpable engage in (risky behavior not REASONABLE than mere negligence and bars all considered negligent; & was recovery reasonable) 3. damage reducing form of fault a) Important note about Primary Assumption of Risk i) May have a combination: (1) inherent risk of an activity or sport (ex: steep ski slopes), which the & accepts (2) negligent act on the part of the (ex: failing to light part of the slope during night skiing) ii) the assumption of risk bars a claim for the portion of the activity which was consciously chosen by the & (ex: steepness of the ski slopes) (1) does not bar for the s negligent conduct that was not chosen by the & MULTIPLE TORTFEASORS: two or more s for the same injury 1) Indivisible injury: multiple causes producing the same result (no way to divide responsibility in terms of damage) a) Defendants can be held jointly and severally liable 2) Divisible injury: it is possible to divide the injuries into damages suffered as a result of separate acts (each individual tortfeasor) a) Defendants cannot be held jointly and severally liable 3) Joint and Several Liability: typically an issue when there is an insolvent . Some jurisdictions use a) Pure Joint Liability: each is responsible for paying the &s damages (minus the deduction for the &s own contributory fault, if there is any) i) s will a small % of fault may have to pay for liability of s who are mostly responsible but w/o resources ii) &-friendly

b) Mixed Systems (possible methods a statute may use) i) &s percentage of fault (1) fault-free &s can recover against any found liable (2) &s w/ fault may be left w/ the loss from an insolvent ii) Reallocation: reallocate the share of the insolvent defendant among the & and the solvent s, in proportion to fault iii) Economic v. noneconomic damages: some jurisdictions differ the treatment of joint and several liability according to the type of damages (1) Economic: typically joint and several liability (2) Non-economic: typically limited to the % share of fault attributed to the c) Pure Several Liability: each is only responsible for his or her percentage share (proportional liab.) i) & will not recover all damages if insolvent s ii) -friendly 4) Settlement Credit: one of the s is released from liability through settlement. Some jurisdiction use a) Dollar Reduction: & can recover damages from the non-settling party by taking the full amount of damages minus the amount received in settlement from the settling i) Non-settling may pay a disproportionate amount ii) Good-faith hearing is usually required to prevent sweetheart settlements b/t & and s that dont protect the rights of the non-settling party iii) &-friendly b) Equal Share Reduction: s share is equal, regardless of fault; not proportionate fault; settling s share is subtracted from damages c) Percentage Reduction: percentage share of the settling is subtracted from the full damages; non-settling pays his or her percentage i) Can be -friendly d) A phantom tortfeasor or immune party can be assigned a percentage of fault, even if they cannot or will not pay 5) Contribution and Indemnity: pays more than his or her fare share and seeks contribution from another co- for the overpayment (only applicable w/ joint and several liability) a) Indemnity: extreme form of contribution, permitting a party to recover 100% of their payment from another party b) Pre-Emptive Settlement: buys up the liability of the remaining defendants in order to settle the &s claim and then recovers the fair share of the s whose liability was eliminated i) To have the right of contribution after settling with the &, the must: (1) Extinguish the &s claim against the co- s (2) Settle the claim for a reasonable amount c) Joint Liability Overpayment: who was forced to pay more than his or her % share sues the co- s for their fair share i) needs to establish the right of contribution (1) can be done in the same action that determines liability (best way) (2) can be done by filing an action w/in one year of the time the judgment is entered STATUTES OF LIMITATION 1) Identifying the Correct Period: depends on the kind of claim being asserted (look at statute) a) Nature of the cause of action: may be more than one theory of recovery b) Gravamen of claims: i) Ex: Tort v. Contract 2) Time of Accrual: time accrues on the earliest date the & is legally able to seek compensation (many times begins accrual the day of the incident), begins when the cause of actions are ripened a) Statute of limitations does not usually run during minority (but it can, varies by jx, read statute)

b) Discovery Rule: cause of action accrues at the time the & knew or should have known all of the essential elements of the cause of action, as opposed to a cause of action accruing at the time the act or omission occurs i) Applies to malpractice, occupational disease, product manufacturer, etc. (1) limited liability of the State under the discovery rule policy (Estates of Hibbard v. Gordon, et al.) ii) discovery rule is used against private defendants to permit claims well past the time that the statute of limitations well would rule, b/c the &, practicing due diligence would not have been able to know about a cause of action c) Product Liability: time may accrue years after product is sold i) Statues of Repose: freedom from suit, how long a must stand by what he or she did/created/delivered product (1) may require that the injury occurred w/in the useful safe life of the product in order for the & to bring suit against d) Construction Statutes: Some jurisdictions have statutes that do not apply action against an architect or contractor unless the cause of action accrues w/in a certain time period after the construction is completed i) Statues of Repose may apply 3) Tolling: sometimes a statute can be tolled by conduct on the part of that would make it inequitable to bar the claim (Ex: foreign object left in the body by a doctor; has fraudulently concealed the negligent act from the &) a) Infancy: statue of limitations may not run on a claim of injury of a child until the child is 21 (look for statute) i) Statutory change: statue may make parents an agent for the child, allowing the statute of limitations to run on the childs claim as long as the parents was on notice about the possibility of a claim and the right to sue (1) Parent doesnt pursue claim and the statute of limitations runs out, no recovery for the child b) Fraudulent Concealment: fraudulently conceals the existence of the cause of action i) Ex: doctor is negligent which results in an injury to the patient, but the doctor fraudulently tells the patient the conditions and symptoms are normal (1) Statue of limitations would not commence running until the patient is in a position to know the true cause of the injury PREMISES LIABILITY: &s right to recover when he or she sustains an injury as a result of visiting the s premises is affected by the nature of the relationship b/t the and the & 1) Status Classifications STATUS IDENTIFY DUTY Business: pursuant to a business interest of the owner Reasonable care Public: governmental or charitable owners (ex: (including reasonable inspection Invitee attending a lecture at a university or going to church; and repair) free attendance at a gov. or charitable event) Bare permission Social guest (usually pursuant to an invitation, though NOT an invitee) *permission may be implied No permission (may be innocent trespass) Warn of hidden perils known to the owner (the owner should not be expected to do more for a social guest or licensee than he does for himself) Dont shoot! (refrain from conduct designed to produce injury)

Licensee

Trespasser**
(trespasser does not need to be aware of trespass)

**exception for child trespasser

2) Exception for a child trespasser, or attractive nuisance (most jurisdictions) a) Most jx use RS 339 test for attractive nuisance i) Imposes liability for artificial conditions (1) Artificial may refer to unnatural or something that is brought on the land (depends on jx) ii) Five conditions: (1) Owner has reason to believe that children may trespass on the property (2) Owner knows or should know of an artificial condition that could cause grave danger, such as death or serious injury (3) B/c of their youth, children do not recognize the danger (4) Cheap fix to prevent injury; inexpensive safety measure (5) Failure to use reasonable care in implementing the safety measure or cheap fix b) Some jurisdictions require that the condition be one that attracts to the property, thereby causing the children to trespass (idea of allurement) i) Most jxs reject this doctrine 3) Jurisdictions Abolishing Rigid Status a) some jurisdictions (like CA) treat status as a factor of what reasonable care would be under the circumstances, but the status is not determinative i) reasonable care under all the circumstances PRODUCT LIABILITY 1) & usually given the higher standard of care when reviewing case b/c when & buys the product, there is an assumption that product is defect-free 2) Strict Liability a) Most jurisdictions follow RS 402A, which creates strict liability for defective products i) Two significant factors (1) Liability is imposed even if the used reasonable care (2) Privity requirements eliminated 3) Concept of a Defect a) Must be a defect that makes the product unreasonably dangerous b) Defect must be present at the time the product leaves the manufacturers hands i) Cannot be created by negligence of a middleman c) Some jxs use a statute that establishes one of the following methods to determine a defect: i) Consumer Expectations Test (1) Whether or not the level of safety provided by the product is deficient compared to what a reasonable consumer would expect (a) difficult to distinguish b/t what a reasonable consumer would expect and what a reasonable manufacturer would consider a reasonably safe design ii) Risk Utility Test (1) Like Learned Hand Test (a) Risk v. utility lost by eliminating the risk 4) Manufacturing Defects (construction defects) a) The product is out of spec i) That is, the product is different than the manufacturers design b) Ex: coke bottle explosion c) Subject to the standard of true strict liability i) & does not have to show the manufacturer was negligent ii) & does have to show the defect is due to the manufacturer and not some other cause or third party 5) Design Defects a) The product is made according to the manufacturers specifications but the design itself made the product unreasonably dangerous b) Subject to either strict liability or negligence

i) Depends on the jx; even courts get confused 6) Failure to Adequately Warn a) Product is sold without an adequate warning, making the product unreasonably dangerous i) A warning label costs essentially nothing but could save lives ii) & must still show but-for causation (but-for the s failure to adequately warn, the injury would not have occurred) b) Subject to either strict liability or negligence i) Depends on jx; even courts get confused 7) Strict Liability v. Negligence a) Applies to design defects and failure to adequately warn b) Only an issue when there is new information about a risk presented by a product c) Negligence (RS 3d) i) Whether or not the manufacturer acted reasonably in using this design/warning label d) Strict Liability i) the product is unreasonably dangerous even if the manufacturer was not negligent in using that design ii) Imputed Knowledge Test (1) jury "imputes" the knowledge that we have today to the manufacturer at the time of design, and if a reasonable manufacturer would have modified the design, then the product can be considered defective 8) Statutory Modifications a) Statue of Limitations b) Moving toward negligence standard c) Statues of Repose d) Retailer Relief i) RS 402A imposes liability on the seller of a defective product (1) Some legislation removes the seller as a , except in cases where the seller has an independent role in causing injury OR the & will be unable to recover from the manufacturer (due to bankruptcy, lack of jurisdiction, etc.) PROFESSIONAL MALPRACTICE 1) Medical a) Professional Negligence i) & must provide qualified, expert testimony that the doctor failed to use reasonable care (1) reasonable care is the care a reasonably prudent doctor would use in the same or similar circumstances, taking specialization and circumstances (rural, urban) into account (2) experts must be familiar w/ practice of medicine in the particular state of treatment (a) locality rule largely abandoned b) Lack of Informed Consent: a reasonably prudent physician informs patients of available options i) Material Facts Regarding Risks: physician must disclose the risk associated w/ a particular procedure (1) Ask, would a reasonable person want to have the information before making a decision to have the procedure? ii) Alternative Therapies: physician must inform the patient of alternative courses of treatment (1) Patient must be able to compare proposed course of treatment to alternatives in order to make an informed choice c) Statutory Modifications: alters common law standards i) Many jurisdictions place an outer limit (typically 8 yrs.) on the time period under which a patient can bring suit, even if a reasonable person could not have discovered the cause of action prior to that time ii) Some jurisdictions have explicit standards for informed consent

(1) patients can not recover under informed consent unless they show that a reasonable person would not have consented to the procedure if adequate information had been provided 2) Other: &s still must present expert testimony that establishes whether the was negligent a) Legal, Accounting, Clergy i) Modern trend is to relax the standards of privity to make the professional responsible to those who are expected to rely on the professionals services or would were intended to benefit from them