Barbri Review
Quiz yourself by thinking what should be in
each of the black spaces below before clicking
on it to display the answer.
Help!
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| Introduction- Main question | Is this D going to be liable to this P for the tort at issue?
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| Introduction- Sub-questions | 1. Can the P prove the elements of the prima facie case?;
2. If yes, are there any good affirmative defenses?;
3. If no, then main question is answered, there is liability in tort;
4. If yes, then there is no liability in tort
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| Intentional torts- General observations; Super-sensitivities | The Ps super-sensitivities are NOT to be taken into account unless facts showing D knew of them in advance
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| Intentional torts- General observations; Liability | Everybody can be liable to intentional torts (i.e., intoxicated, minor, incompetent);
No such thing as lacking the capacity to have the intent
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| Intentional torts- General observations; Intent | A person "intends" the consequences of her action if it was her PURPOSE to bring about the consequences or if she knows with substantial certainty result will occur
Example: Ballplayer throws bat into stands hitting spectator. Intend contact? Yes, SC
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| Intentional torts- General observations; Transferred intent | Intent can transfer from victim to victim;
Intent also can transfer from tort to tort;
Example: C leaps fence landing on N's fiance. Prove intent in battery? Yes, tort (TL) to tort (B)
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| Intentional torts- Battery; Prima facie case | 1. Harmful or offensive contact;
2. With Ps person
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| Intentional torts- Battery; Prima facie case: Harmful or offensive contact | 1. Harmful- contact that harms;
2. Offensive- unpermitted;
P's super-sensitivities are NOT to be taken into account unless D knew of them in advance;
Example: Student taps you on shoulder to ask question. Unpermitted contact? No, not to ordinary pers
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| Intentional torts- Battery; Prima facie case: A P's person | Anything "connected with" the Ps body will suffice;
Example: D knocks plate out of Ps hand. Contact with P person? Yes;
Example: D shakes P car. Contact with P person? Yes
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| Intentional torts- Assault; Prima facie case | 1. Apprehension;
2. Of an immediate contact
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| Intentional torts- Assault; Prima facie case: Apprehension | 1. Must be reasonable apprehension,
2. Do not confuse apprehension with fear or intimidation,
3. Apparent ability creates reasonable apprehension
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| Intentional torts- Assault; Prima facie case: Apprehension, Reasonable apprehension | Reasonable or ordinary reaction then not reasonable apprehension;
Example: K reaches toward back pocket for wallet. Fear pulling gun. Reasonable apprehension? No
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| Intentional torts- Assault; Prima facie case: Apprehension, Confusing apprehension with fear and intimidation | Do not have to be scared or intimidating, reasonably apprehend unauthorized contact;
Example: W tries to punch PW. Even if not scared, does W reasonably apprehend intimidated contact? Yes
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| Intentional torts- Assault; Prima facie case: Apprehension, Apparent ability | Actual ability is not necessary;
Example: K points unloaded gun. Reasonable apprehension despite lack of ability to shoot? Yes
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| Intentional torts- Assault; Prima facie case: Immediacy | 1. Words alone are not enough,
2. Words coupled with conduct can be enough,
3. Sometimes "words coupled with conduct" undo the conduct and any reasonable apprehension;
Tip- if battery and assault both work on same fact pattern, choose battery
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| Intentional torts- Assault; Prima facie case: Immediacy, Words alone | Example: H says, "promise me a job or I will punch you." Immediacy? No, words alone not sufficient
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| Intentional torts- Assault; Prima facie case: Immediacy, Words coupled with conduct | Example: H shakes fist under chin and says "promise me a job, or I will punch you. Immediacy? Yes, words + conduct
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| Intentional torts- Assault; Prima facie case: Immediacy, Words coupled with conduct undo conduct and any reasonable apprehension | Example: H shakes fist under chin says, "if weren't my best friend, I'd punch you." Reasonable apprehension of immediate contact? No, words undid the conduct
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| Intentional tort- False imprisonment; Prima facie case | 1. Sufficient act of restraint;
2. To a bounded area
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| Intentional tort- False imprisonment; Prima facie case: Sufficient act of restraint | 1. Threats are enough,
2. Inaction is enough if understanding D would act for P benefit ,
3. The P generally must be aware of the confinement,
4. The confinement length of the time is irrelevant
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| Intentional tort- False imprisonment; Prima facie case: Sufficient act of restraint, Threats | Not an actual application of use of force
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| Intentional tort- False imprisonment; Prima facie case: Sufficient act of restraint, Inaction | "Witicker";
Example: R takes P across ocean but refuses to take ashore. R inaction sufficient act of restraint? Yes, imply D would do something for P, but failed to do that is sufficient act of restraint
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| Intentional tort- False imprisonment; Prima facie case: Sufficient act of restraint, P aware of confinement | Be aware they are confined as it is happening to take advantage of claim;
Exceptions: Physically harm someone by confinement
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| Intentional tort- False imprisonment; Prima facie case: Sufficient act of restraint, Confinement length of time | Helps to determine amount of damages, but does not help with actual claim
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| Intentional tort- False imprisonment; Prima facie case: Bounded area | 1. Mere inconvenience is not enough,
2. An area is not bounded if there is a reasonable means of escape of which a P is aware
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| Intentional tort- False imprisonment; Prima facie case: Mere inconvenience | More than mere inconvenience;
Example: Barricade force you to walk around. Bounded area? No, inconvenience
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| Intentional tort- False imprisonment; Prima facie case: Reasonable means of escape | P must know about a reasonable means of escape;
Example: P leave through rat-infested sewage pipe. Reasonable means of escape? No;
Example- P leave through hidden passageway in wall. Means of escape P is aware? No, did not know about means
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case | 1. Outrageous conduct;
2. Damages;
Shows up on bar most often b/c fallback position when other tort theories aren't working (even in real world) so look at before stating no liability
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case: Outrageous conduct | 1. Continuous conduct,
2. Type of P-
a. Young children,
b. Elderly
c. Pregnant women,
3. Type of D-
a. Common carriers,
b. Inn-keepers
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case: Outrageous conduct, Continuous conduct | Although not originally outrageous if keep it up enough it becomes outrageous
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case: Outrageous conduct, Type of P | The younger the child the most likely it is outrageous;
But, on the bar likely to be super-sensitive guy on the street;
Caution- P's super-sensitivities are not to be taken into account unless D knew of them
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case: Outrageous conduct, Type of D | "Screw them" on every opportunity;
Caution- P must be a passenger or a guest;
Example: C calls hotel guest name. Action for IIED? Yes, inn-keeper and guest;
Example: C insults P, random person. Action for IIED? No
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case: Damage | Proof of severe emotional distress;
Not physical harm
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case: Intent | 1. Recklessness can suffice for prima facie case,
2. Transferred intent is normally unavailable
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| Intentional tort- Intentional infliction of emotional distress (IIED); Prima facie case: Transferred intent | Example: D beats M while B watches. D intent to batter M transferred to B's IIED? No
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| Intentional tort- Intentional torts to property | 1. Trespass to land, and
2. Trespass to chattels and conversion
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| Intentional tort- Intentional torts to property; Trespass to land: Prima facie case | 1. Act of physical invasion,
2. Land
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| Intentional tort- Intentional torts to property; Trespass to land: Prima facie case, Act of physical invasion | 1. There is no need to show knowledge of crossing a property line,
2. Propelling a physical object onto property will suffice (physical invasion on land suffices, not intangible invasion)
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| Intentional tort- Intentional torts to property; Trespass to land: Prima facie case, Act of physical invasion- Knowledge of crossing a property line | Conscious decision to be on land whether or not you know the boundaries,
Example: K wanders onto private property while hiking through state park. Act of physical invasion? Yes
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| Intentional tort- Intentional torts to property; Trespass to land: Prima facie case, Land | Includes the airspace above and the sub-surface below so long as a distance where land owner could make reasonable use of space;
Example: A's jet flied over B at 35K feet. Trespass? No, too high;
Example: K throws ball across N's yard. Trespass? Yes
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| Intentional tort- Intentional torts to property; Trespass to chattels and Conversion: Prima facie case | 1. Act of invasion,
2. To personal property;
Hint: Some damages= trespass to chattels, a lot damage= conversion;
Hint: Conversion, "damage" can include serious interference with possessory rights
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| Defenses to intentional torts- Consent; Capacity | P must have capacity to consent
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| Defenses to intentional torts- Consent; Lacking capacity | Persons lacking capacity to consent include-
1. Child,
2. Mentally impaired,
3. Coercion,
4. Fraud or mistake
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| Defenses to intentional torts- Consent; Express | "Go ahead and do it!", words are used;
Hint: Look for facts relating to mistake, fraud, and coercion;
Example: C gives consent for Js mudpack with dog poop, which was unknown. Consent to offensive touching? No
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| Defenses to intentional torts- Consent; Implied | Arises through custom/usage, or through P's own conduct;
Example: H tagged. H sues for umpermitted contact. Implied consent? Yes;
Example: H doesn't know rules of touch football. Change result? No, reasonable D test did not exceed scope
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| Defenses to intentional torts- Self-defense | A person is justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her;
If on MBE reasonableness is standard, correct answer easy to identify
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| Defenses to intentional torts- Self-defense; Reasonable belief | Self-defense requires that a reasonable person in the D's position would have believed that he was in danger, must be subjective and objectively true;
Example: K sprays mace at man who reaches in his pocket. Reasonable belief of danger? No, sub or obj
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| Defenses to intentional torts- Self-defense; Reasonable force | A person may use only the degree of force reasonably necessary to avoid the threatened harm-
1. Deadly force, and
2. Retreat
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| Defenses to intentional torts- Self-defense; Reasonable factor: Deadly force | The use of force is "reasonable" only when the defender reasonably believes that faces threat of death or bodily harm of self;
Example: K throws wild punches. Shoot K in self-defense? No
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| Defenses to intentional torts- Self-defense; Reasonable factor: Retreat | Cts are divided on the question whether a retreat is required before deadly force may be used;
Modern trend requires-
Do need to retreat before using deadly force unless in own home
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| Defenses to intentional torts- Defense of others | A person may defense another person in the same manner and under the same conditions as the person attacked would be entitled to defense himself
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| Defenses to intentional torts- Defense of others; Mistaken belief | A defender is not liable if he reasonably believed that another person was endangered;
Example: C strikes undercover P, who is arresting woman. Defense of others? Yes, reasonable mistaken belief under attack
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| Defenses to intentional torts- Defense of property | A person may use reasonable force to defense his real or personal property. However, deadly force may never be used to protect property alone.
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| Defenses to intentional torts- Defense of property; Distinguish from other defenses | Do NOT confuse defense of property with self-defense or defense of others;
Examples: S shoots burglar in room. Sue S for battery. Defense? No, self-defense not protecting property
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| Defenses to intentional torts- Defense of property; Hot pursuit fact patterns | Can use reasonable force to recapture own property only when in hot pursuit of that property
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| Defenses to intentional torts- Defense of property; Shoplifter fact patterns | Shopkeeper can detain a shoplifter in a reasonable manner for a reasonable amount of time;
Use reasonable force to protect real or personal property, but never deadly force
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| Defenses to intentional torts- Necessity | Used only in conjunction with intentional torts to property (trespass to land or chattels, conversion);
Example: J fist raised to hit H. H hits J first. J sues H for battery. Defense of necessity? No, it was self-defense
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| Defenses to intentional torts- Necessity; Public | Unlimited privilege to protect a lot of people;
Example: Destruct row of houses to prevent fire spread through town. Public necessity? Yes
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| Defenses to intentional torts- Necessity; Private | Qualified privilege to protect a limited number of people, but must pay for damages caused;
Example: C in plane with engine trouble. So land in F land. Private necessity? Yes, but must pay for damages caused (value of crops destroyed)
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| Defenses to intentional torts- Discipline | Parent (teacher) can use reasonable force to discipline children when looking to age and nature of activity
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| Defamation- Common law; Prima facie case | Elements-
1. False defamatory statement,
2. Of and concerning P,
3. Published to third party,
4. Damages to P
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| Defamation- Common law; Prima facie case: Defamatory statement | One that injuries the P's reputation;
Example: Show host call Dr. "buffon". Defamatory statement? No, mere name calling;
Example: Show host accuses Dr. performing unnecessary surgery. Defamatory? Yes if false;
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| Defamation- Common law; Prima facie case: Of and concerning | D's statement must reasonable understood to refer to P;
Example: ...
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| Defamation- Common law; Prima facie case: Publication | Statement must be communicated to a third person;
Not meaning in newspaper or on tv;
Third person must be capable of understanding;
Publication must be at least negligent;
Example: Show host confronts Dr. in office and overheard. Published? Yes
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| Defamation- Common law; Prima facie case: Damages | Spoken (slander), P must prove special damages (monetary loss);
Written or broadcast (libel), juries may presume damages
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| Defamation- Common law; Defenses | 1. Truth,
2. Absolute privilege,
3. Qualified privilege
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| Defamation- Common law; Defenses: Truth | D bears burden of proving truth of statement
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| Defamation- Common law; Defenses: Absolute privilege | Allowed to defame others if-
1. Judicial proceeding,
2. Legislative proceeding,
3. Communication b/w spouses;
Tip: If absolute privilege applies, applies no matter how bad D behaves;
Example: Floor of debate, falsely makes statement. Defamation? No
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| Defamation- Common law; Defenses: Qualified privilege | Any time during course of legitimate public debate, to serve interest of person receiving info.;
Example: Reference letter then privilege to write on character without defaming
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| Defamation- Constitutional limitations; General rule | 1st amendment protects speech on matters of public concern. In cases involving such speech, the Supreme Ct has added two elements to P's prima facie case.
1. Falsity, and
2. Fault
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| Defamation- Constitutional limitations; General rule: Falsity | P must prove that statement was false
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| Defamation- Constitutional limitations; General rule: Fault | P must prove some level of fault regarding D's knowledge on whether statement was true or false
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| Defamation- Constitutional limitations; Damages | In matters of public concern, P must prove actual malice to recover presumed or punitive damages
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| Invasion of right to privacy- Appropriation | Use of the P's name or picture for commercial advantage without permission;
Example: Wheaties put celebrity picture on box. Appropriation? Yes
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| Invasion of right to privacy- Appropriation; Limitation | P likeness must be used for advertising, promotional or labeling purposes
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| Invasion of right to privacy- Intrusion | Interference with P's seclusion in a way that would be highly offensive to a reasonable person
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| Invasion of right to privacy- Intrusion; Limitation | P must be in place where she has an expectation of privacy;
Example: Celebrity swarmed by photographers on public street. Intrusion? No;
Fallback position: Possibly IIED
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| Defamation- Common law; Prima facie case: Defamatory statement, Truth | D bears burden of proving truth, so at common law truth is defense to defamation claim
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| Defamation- Common law; Prima facie case: Damages, Exceptions | A P can recover presumed damages in cases of slander per se. Traditional categories of slander per se are-
1. Impute P trade of profession,
2. Accuse P of committing serious crime,
3. Imply P has loathsome disease,
4. Impute unchasity to a woman
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| Defamation- Constitutional limitations; General rule: Fault, Public persons | Public P must prove falsity + actual malice (knew false or reckless disregard of truth);
Who?
a. Public officials,
b. Public figures
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| Defamation- Constitutional limitations; General rule: Fault, Private persons | Private P must prove falsity + fault amounting to at least negligence
Example: Talk show host "should have known"
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| Invasion of right to privacy- False light | The widespread dissemination of info. that is in some way inaccurate and that would be highly offensive to a reasonable person;
Example: Newspaper publishes false story for rescuing ten children. False light? Yes
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| Invasion of right to privacy- Public disclosure of private facts | Widespread dissemination of factually accurate info. that would normally be confidential, and in the disclosure of which would be highly offensive to a reasonable person
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| Invasion of right to privacy- Public disclosure of private facts; Newsworthy exception | If information is newsworthy through public interest then disclosure is not actionable
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| Invasion of right to privacy- Public disclosure of private facts; Examples | Example: N's embarrassing disease published. Public disclosure of private facts? Yes;
Example: Prints picture of you while playing hooky. Public disclosure? No, not private fact
Example: Discreet picture of Mayor in nude beach. Public disclosure? No
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| Invasion of right to privacy- Defenses | 1. Consent, and
2. Absolute and qualified privileges
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| Invasion of right to privacy- Defenses; Consent | Giving consent then no COA
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| Invasion of right to privacy- Defenses; Absolute and qualified privileges | Apply only to-
1. Defamation,
2. False light,
3. Public disclosure of private fact
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| Fraud- Affirmative misrepresentation | Silence generally will not suffice;
Example: K sells car, even though transmission shot but says nothing. Fraud? No, did not lie (secret)
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| Fraud- Fault | Scienter (statement was known to be false) must be shown. Fraud is an intentional cause of action.;
Example: Misstatement of fact, but did not know transmission shot. Liability? No, scienter missing
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| Fraud- Intention to induce reliance | Statement must be material;
Example: Car dealer says trunk is clean, but paint stain behind spare tire. Material misrepresentation? No, not a deal breaker for transaction at hand or true intent to induce reliance
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| Fraud- Justifiable reliance | It is normally justifiable to rely on the opinion of one who was superior skill or knowledge in the subject matter of the transaction;
Example: Car dealer opines car gets 20 miles to gallon, but really gallon to mile. Reasonable reliance on opinion? Ye
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| Fraud- Damages | Fraud is a "no harm, no foul" cause of action;
Must have experienced actual damages from fraud
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| Fraud- Comparison with negligent misrepresentation; Commercial transactions | Business person
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| Fraud- Comparison with negligent misrepresentation; Particular P | Statement made directly P
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| Intentional interference with business relations- Inducing breach of contract | An intentional action that causes third person to breach an existing contract with the P;
Example: T co. contract with W by date. H interfered by paying T to delay. Induce breach? Yes to W
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| Intentional interference with business relations- Interference with contractual relations | A D may be liable if interference with P's contractual relations makes performance more difficult, even if the interference does not actually cause a breach;
Example: Hires workers in effort to prevent T from finishing contract on time. Interfering? Ye
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| Intentional interference with business relations- Interference with prospective economic advantage | A D may be liable for interfering with P's expectation of economic benefit from third persons, even in absence of contract;
Example: A convincing people not to use taxi co. Interference? Yes;
Caution- Hard to prove, plus lenience to those in competitio
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| Wrongful institution of legal proceedings- Malicious prosecution | Criminal and civil proceedings brought against someone without PC or for improper purpose
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| Wrongful institution of legal proceedings- Abuse of process | Claim against someone for wrongfully using legal process for interior motive or improper purpose
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| Fraud- Prima facie case | 1. Affirmative misrepresentation by D,
2. Fault,
3. Intention to induce P to rely,
4. Justifiable reliance,
5. Actual damages;
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| Fraud- Comparison with negligent misrepresentation | Also claim for negligent misrepresentation for careless misrepresentation (difficult to prove),
1. Be aware cts limit to commercial transactions,
2. Only where knew P was someone who would rely
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| Intentional interference with business relations- 3 levels | 1. Intentionally induce breach of contract,
2. Interferes with contract without cause actual breach,
3. Interferes with prospective economic advantage
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| Negligence- Prima facie case | 1. Duty,
2. Breach of duty,
3. Causation-
a. Cause in fact,
b. Proximate,
4. Damages
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| Negligence- Duty; To whom a duty is owed?: Foreseeable victim | To all people who are foreseeable victims of failure to take precautions;
Duty of care to those in/around action;
Example: Drive 90 mph. Pedestrian foreseeable P? Yes;
Example: Falling scales hit P on head from accident few miles up. Foreseeable P?
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| Negligence- Duty; To whom a duty is owed?: Foreseeable as a matter of law | P foreseeable as a matter of law-
1. Rescuers engaged in rescue operation,
2. Viable fetus (always duty to child in womb)
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| Negligence- Duty; How much care must you exercise?: Poindexter rule | Must exercise the amount of care that would be taken by a reasonably prudent person under same or similar circumstances;
Defined by behavior so objective;
On bar do not have sympathy for P
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| Negligence- Duty; How much care must you exercise?: Poindexter rule, Superior skill or expertise | D expected to use superior skills or expertise for P's benefit;
Inexperience and "smarts" irrelevant
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| Negligence- Duty; How much care must you exercise?: Poindexter rule, Physical disability | D physical disability attributed to reasonably prudent person;
Impute physical disability so act as reasonably prudent "blind/deaf" person
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| Negligence- Duty; How much care must you exercise?: Poindexter rule, Fixed constant | Reasonably prudent person standard is a fixed constant in negligence law;
Example: M expected to use "extreme care" while driving in blizzard? No, must exercise reasonable care under the circumstances because standard fixed
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| Negligence- Duty; How much care must you exercise?: Special duty standards | 1. Children,
2. Professionals,
3. Owners and occupiers of land
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Children- Majority rule | A child must exercise the degree of care that a reasonable child of like age, intelligence and experience would exercise under circumstances
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Children- Traditional (minority) | "Rule of sevens" so children-
1. Under 7= incapable of acting negligent,
2. Between 7 and 13= presume incapable, but rebuttable,
3. 14 and older= presume capable, but rebuttable
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Children- Exception | Exception: Child engaging in adult activity is held to the adult standard;
Example: 10 yr old drives into house. Child liable? Yes, engaged in adult activity and did not act in reasonably prudent manner within circumstances of driving
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Professionals | G/R: A professional is required to possess and exercise the knowledge and skill of an ordinary member, in good standing, of that profession;
Ordinary= typical, usual
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Professionals, Medical fact patterns | Standard= w/in community of doctors;
Medical malpractice dealing w/ informed consent;
No informed consent alternatives= negligence;
No consent= battery;
WY- Medical review panel for malpractice (begin SOL), unless arbitration agreement (not first file
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Professionals, Legal fact pattern | Standard (WY)= Reasonably prudent lawyers in Wyoming community;
P must prove causation;
Prove mistake actually caused damages because result would have been different
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land | Injured on land so duty owed by landowner;
WY- this includes sidewalks if city ordinance
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Source of the injury | Did the injury result from the-
1. Conduct of activity, or
2. Encounter with a static condition on the land;
WY- doesn't include protecting from naturally obvious hazard
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Status of P | Is P-
1. Undiscovered trespasser,
2. Discovered trespasser,
3. Licensee,
4. Invitee
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Undiscovered trespasser status | Unlawfully on land without permission;
Engaging in activity while on land- No duty;
Condition- No duty
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Discovered trespasser status | Know of presence, but no permission;
Engaging in activity while on land- Standard is reasonable care (reasonably prudent person);
Harmed as result of static conditions on land- "Man made death traps", a.k.a Artificial, highly dangerous, concealed
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| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Licensee status | Social guest invited to land (WY does NOT have);
Engaging in activity while on land- Standard is reasonable care;
Harms as a result of static condition on land- Protect against any condition concealed & known to owner/occupier of land (artificial/natura
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|
||||
| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Invitee status | Land held open to public at large(WY this is licensee/invitee);
Engage in activity while on land- Standard reasonable care;
Harms as result of static condition on land- Protect against concealed condition knew or could have known, by reasonable inspecti
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|
||||
| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Tips 1 and 2 | 1. In a static condition question, a land possessor can satisfy her legal obligations by 1) making condition safe, or 2) giving a warning;
2. If a question involves a child trespasser, use the reasonable prudence (person) standard of care;
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|
||||
| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Tips 3 and 4 | 3. If an entrant is injured by an open and obvious condition the entrant will almost always lose negligence lawsuit;
4. Strong minority of state abolished distinction between licensee and invitee (WY)
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|
||||
| Negligence- Duty; How much care must you exercise?: Special situations | 1. Negligence per se (criminal or regulatory statute),
2. Affirmative duty to act rule,
3. Negligent infliction of emotional distress
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|
||||
| Negligence- Duty; How much care must you exercise?: Special situations, Negligence per se (statutory standard of care) | Test: Use statute if designed to protect- 1) Class of person P within, and 2) Class of risk harm within;
Example: D smokes weed & room blows up. Statute prohibits smoking weed. Class of person, risk? No, statute has nothing to do with facts so no per se
🗑
|
||||
| Negligence- Duty; How much care must you exercise?: Special situations, Negligence per se exceptions | 1. Compliance with the statute is more dangerous than violating the statute,
2. Compliance is impossible under the circumstances.
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|
||||
| Negligence- Duty; How much care must you exercise?: Affirmative duty to act rule (no duty to rescue rule) | There is not duty to rescue;
Example: Dr learns injured child. Owed child duty of care to come to aid? No, no duty to act
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|
||||
| Negligence- Duty; How much care must you exercise?: Affirmative duty to act rule, Exceptions | 1. D put P in peril then D has duty to act,
2. Relationships-
a. Close family,
b. Common carrier or inn-keeper,
c. Invitee/invitor,
3. Duty to control third persons
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|
||||
| Negligence- Duty; How much care must you exercise?: Affirmative duty to act rule, Duty put P in peril exception | Example: K car skids on black ice. P injured. K drives away. Owe P duty to act? Yes, failed to affirmatively come to K aid since put K in peril so duty to act
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|
||||
| Negligence- Duty; How much care must you exercise?: Affirmative duty to act rule, Relationships exception | Strong relationship between parties;
WY- Tavern innkeeper owed duty of reasonable care to invitee to protect from assault by another invitee if alerted in time to prevent assault
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|
||||
| Negligence- Duty; How much care must you exercise?: Affirmative duty to act rule, Duty to control third persons exception | D must have actual ability and authority to control;
Example: Mom sees child run toward S back in store. Duty to act? Yes, ability and authority to stop child so duty to act
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|
||||
| Negligence- Duty; How much care must you exercise?: Negligent infliction of emotional distress (NEIID) | Majority: No duty to avoid "upsetting" people
🗑
|
||||
| Negligence- Duty; How much care must you exercise?: Negligent infliction of emotional distress, Exceptions | 1. Zone of danger, and
2. Bystander recovery;
WY exception- Recovery absent showing physical injury where contractual relationship to provide services that carry deep emotional response in event of breach ["Gates", child switched at birth]
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|
||||
| Negligence- Duty; How much care must you exercise?: Negligent infliction of emotional distress, Zone of danger exception | D conduct exposes P to physical risk, later suffer physical manifestations from emotional stress then NIIED b/c "mere miss" in zone of danger;
Example: P standing next to Z who hit by D car. P suffers emotional distress. Duty of care? Yes, zone of danger
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|
||||
| Negligence- Duty; How much care must you exercise?: Negligent infliction of emotional distress, Bystander recovery exception | If outside zone of danger, recover if at scene of accident and close relationship with victim and now suffers physical manifestation;
Example: P child hit by car and now suffers emotional distress breaking out into hives. D duty of care? Yes
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|
||||
| Negligence- Duty; How much care must you exercise?: Negligent infliction of emotional distress, Special situations | Cts liberalize rules where D's negligence creates great likelihood of severe emotional distress (i.e., mishandling corpse, misdiagnosis of disease);
WY- Spouse, child, parent, sibling observed serious bodily harm/death or immediately after= recovery
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|
||||
| Negligence- Breach of duty; General rule | P must point to specific conduct that is alleged to violate the duty standard (i.e., exactly what D did wrong)
🗑
|
||||
| Negligence- Breach of duty; Proving "specific conduct": Evidence of custom | Always admissible, never conclusive;
Reasonableness + typicality of D conduct whether should have or should not have acted differently
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|
||||
| Negligence- Breach of duty; Proving "specific conduct": Res ipsa loquitur | Used by desperate Ps who do not know what happened;
P must prove two substitute facts-
1. Event is one that does not normally occur in absence of negligence (usu. expert testimony),
2. The injury-causing instrumentality was under exclusive control of D
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|
||||
| Negligence- Breach of duty; Proving "specific conduct": Res ipsa loquitur examples | 1. P hit on head by falling flour barrel. Normally fall in absence negligence? No;
2. D hits F sitting on bench with car. Neither knows what happen.
a. Normally happen in absence of negligence? No,
b. Car in D exclusive control? Yes, her car
So, res
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|
||||
| Negligence- Breach of duty; Proving "specific conduct": Res ipsa loquitur consequence | P gets to the jury, no directed verdict;
Ultimate outcome is jury decision NOT an automatic win by showing res ipsa
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|
||||
| Negligence- Causation; Cause in fact: But-for test | D conduct is cause in fact of injury when injury would not have occurred but-for D conduct;
Example: Did not keep life reserves on boat. Falls into shark water. Failure cause in fact of death? No
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|
||||
| Negligence- Causation; Cause in fact: Alternative tests, Substantial factor test | Use in cases with multiple Ds and a COMMINGLED cause;
Standard- Whether conduct of each D was substantial factor in bringing conduct about?;
Example: A and B negligently start fires. Combine going into P house. No, "but-for" so use substantial factor.
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|
||||
| Negligence- Causation; Cause in fact: Alternative tests, Burden shifting | Use in cases with multiple Ds and UNKNOWN cause (not merged into one);
Standard- Joint and severable liable, Ds responsible paying P harm
Example: "Summers," M, L shoot birds. Piece of bird falls C's eye. "But for" won't work, shift burden of proof to
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|
||||
| Negligence- Causation; Proximate cause: General principle | Proximate cause is a limitation on D's liability;
A person is only liable for those HARM that are WITHIN the RISK of his activity.
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|
||||
| Negligence- Causation; Proximate cause: Direct cause fact patterns | No intervening cause;
If result of D's negligent conduct is foreseeable, the D will be liable;
Hint: Err on the side of finding for P in direct cause fact patterns
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Foreseeable result | Ds act negligently then intervening cause creating subsequent act creates Ds harm;
Foreseeable intervening cause= D loses;
Unforeseeable intervening cause= D/P wins/loses
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Unforeseeable result | Foreseeable intervening cause= D/P wins/loses;
Unforeseeable intervening cause= D wins
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Intervening cause ALMOST never cut off liability in- Subsequent medical malpractice | Almost always foreseeable;
Example: D hits P with car and breaks his leg. Dr set leg improperly causing infection. D negligence proximate cause of infection? Yes, subsequent act
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Intervening cause ALMOST never cut off liability in- Negligent rescue | Almost always foreseeable;
Example: D hits P with care and breaks his leg. Rescuer attempts to drag P out of harm, but P hit with another vehicle. D negligence proximate cause of further harm?
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Intervening cause ALMOST never cut off liability in- Reaction forces | Almost always foreseeable;
Example: D negligence causes crowd to flee knocking over P, breaking arm. D negligence proximate case of broken arm?
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Intervening cause ALMOST never cut off liability in- Subsequent diseases or accidents | Almost always foreseeable;
Example: D hits P with car and breaks leg. P slips off crutches and breaks arm. D negligence proximate cause of broken arm? Yes, subsequent accident
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Intervening cause will NOT cut off liability if D can anticipate intervening cause in- Negligence of third party | Example: D negligently blocks sidewalk forcing P to walk in street. P hit by car. D negligence proximate case of injury?
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Intervening cause will NOT cut off liability if D can anticipate intervening cause in- Criminal conduct | Example: O negligently fails to secure door with lock. D attacks P. O negligence proximate cause of P injury?
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|
||||
| Negligence- Causation; Proximate cause: Indirect cause fact patterns, Intervening cause will NOT cut off liability if D can anticipate intervening cause in- Acts of god | Foreseeable;
Example: W leaves material on roof despite prediction of windstorm. Material blown off roof and hit P. W failure to remove proximate cause of P injuries? Yes
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|
||||
| Negligence- Damages; Elements | P must prove damages as part of her prima facie negligence case;
Elements of typical personal injury award are-
1. Past and future medical expenses,
2. Past and future lost income,
3. P pain and suffering
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|
||||
| Negligence- Damages; Elements: Past and future medical expenses | ...
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|
||||
| Negligence- Damages; Elements: Past and future lost in income | ...
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|
||||
| Negligence- Damages; Elements: P pain and suffering | ...
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|
||||
| Negligence- Damages; The "Eggshell Skull" P rule | D is liable for the full extent of the damage he causes, even if the extent was unforeseeable;
Example: K cuts person leading to death. Liability for all consequences? Yes, medical expenses, pain and suffering, + lifetime of lost earnings
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|
||||
| Defenses to Negligence | 1. Contributor negligence,
2. Assumption of risk-
a. Expressed,
b. Implied,
3. Comparative negligence
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|
||||
| Defenses to Negligence- Contributory negligence ("Traditional common law defenses") | A P's failure to use relevant degree of care for his or her own safety;
Standard is dependent on the P (adult, child, etc)
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|
||||
| Defenses to Negligence- Contributory negligence; Consequences | If P is contributorily negligent then absolute bar from recovery
🗑
|
||||
| Defenses to Negligence- Contributory negligence; Ameliorating doctrines | 1. Last clear chance doctrine: Recover damages despite contributory negligence, if D had last clear chance to avoid the accident but failed to do so
🗑
|
||||
| Defenses to Negligence- Assumption of risk; Express | "I'll take my chances...";
Expressly states assuming risk
🗑
|
||||
| Defenses to Negligence- Assumption of risk; Express: Consequences | Also completely bar recovery because expressly assuming risk;
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|
||||
| Defenses to Negligence- Assumption of risk; Express: Exception | Cts can disregard if complying with rule would violate notions of public policy;
Example: P signs assuming risk of negligent medical treatment. Bar to recovery? No;
Example: S signs assuming risk of neg. groomed slopes. Bar recovery? Yes, recreational
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|
||||
| Defenses to Negligence- Assumption of risk; Implied: Test | Implied assumption of risk only when evidence of two things-
a. P has knowledge of risk, and
b. Voluntary encounter by P;
WY- Failure to wear seat belt, not introduced in civil action
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|
||||
| Defenses to Negligence- Assumption of risk; Implied: Hints | 1. The absence of an alternative destroys voluntariness,
2. Emergency situations destroy voluntariness (esp. save or rescue)
🗑
|
||||
| Defenses to Negligence- Assumption of risk; Implied: Consequence | Traditionally, absolute bar from recovery;
Today, comparative negligence reducing recovery rather than absolute bar (WY)
🗑
|
||||
| Defenses to Negligence- Comparative negligence; Types | 1. Pure comparative negligence (system where P will always recover something even if predominate negligent actor in case),
2. Modified (partial) comparative negligence (P recovery reduced up to threshold, but after threshold recovery barred)
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|
||||
| Defenses to Negligence- Comparative negligence; Application | Example: Jury finds P 70% fault and D 30%.
a. Pure= recover 30% from D,
b. Modified= P barred;
Where it exists, comparative negligence supplants all other affirmative defenses, except for an expressed assumption of the risk
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|
||||
| Strict Liability- Animals; Trespassing | Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault;
Strict liability for foreseeable harm cause by animals (other than household pets);
WY- livestock break lawful enclosure= liable
🗑
|
||||
| Strict Liability- Animals; Personal injury: Domesticated | No strict liability, unless you know of the animals dangerous propensities in advance;
Can be liable for pets first bite if you know of dangerous propensities
🗑
|
||||
| Strict Liability- Animals; Personal injury: Wild | Strictly liable, unless antagonize animal (put hand in cage)
🗑
|
||||
| Strict Liability- Abnormally dangerous activities; Attributes | 1. Activity incapable of being conducted except w/high risk (can't be made safe);
2. If harm occurs, likely to be severe;
3. Activity uncommon, unusual in community it takes place;
Example: A tank leaks toxic waste, effort to stop. P injury recoverable
🗑
|
||||
| Strict Liability- Abnormally dangerous activities; Limitation | Limited liability in strict liability action;
So, only covers activities that are caused to be abnormally dangerous in the first place;
Harm still must be within risk
🗑
|
||||
| Strict Liability- Product related injury; Warning | Look carefully at what theory you are asked to apply;
Products liability can be brought into ct through a wide range (i.e., negligence, breach of warranty, strict liability);
SO PAY ATTENTION;
WY- electricity is service not produce
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|
||||
| Strict Liability- Product related injury; Prima facie case | 1. D a merchant of types of goods involved;
2. Product defective-
a. Manufacturing defect,
b. Design defect;
3. The defect existed when product left sellers hands (presumption if in ordinary channel of distribution);
4. P made a foreseeable use of pr
🗑
|
||||
| Strict Liability- Product related injury; Product must be defective: Manufacturing defect | Product is an anomaly, and difference between product in hand and all others that came from same seller is exactly the difference that made the product dangerous
🗑
|
||||
| Strict Liability- Product related injury; Product must be defective: Design defect | Problem common to each unity that seller could have eliminated through a reasonable cost effective alternative design (i.e., all toasters are defective)
🗑
|
||||
| Strict Liability- Product related injury; Defenses: Traditional jurisdiction | 1. Conduct that is the equivalent of contributory negligence will not bar recovery, and
2. Conduct that is the equivalent of assumption of risk will bar recovery;
Example: P ignores instructions and injured. Defense? No, oblivious hazard in manuel
🗑
|
||||
| Strict Liability- Product related injury; Defenses: Comparative fault jurisdictions (WY 1-1-109) | A majority of comparative fault jurisdictions now apply comparative fault principles in strict products liability cases;
May reduce P's recovery
🗑
|
||||
| Strict Liability- Product related injury; Hints | 1. Negligence, wholesalers/retailers off hook,
2. Adequate warning usu. insulates D from SL,
3. Feasible alt. signals D liable on design defect,
4. FORESEEABLE USE not same intended use,
4. Product use incidental to performance of service SL unavailab
🗑
|
||||
| Strict Liability- Private nuisance | Conduct that causes a substantial and unreasonable interference with the use and enjoyment of land
🗑
|
||||
| Strict Liability- Private nuisance; Substantial and unreasonable interference | Substantial interference such as physical interference or interfering w/comfort of occupant;
Example: N plays low classical music that bothers M sensitive ears. Private nuisance? No;
Example: N plays heavy metal at full volume. Private nuisance? Yes
🗑
|
||||
| Strict Liability- Private nuisance; Remedies | Very fact specific so in reaching decision ct will WEIGH the equities of the parties in deciding whether to enjoin a D's activity
🗑
|
||||
| Strict Liability- Public nuisance | Conduct that causes physical or moral harm to the public in general;
A private P can maintain public nuisance action if suffers a harm that is different in character than general public
🗑
|
||||
| Vicarious liability- Employer-Employee | Employer is vicariously liable for employees' torts committed within the scope of employment;
WY- unless unauthorized guest of employee then not liable for negligence resulting in harm
🗑
|
||||
| Vicarious liability- Employer-Employee; "Frolic and Detour" Rule | Liable= major departures from work;
Example: D in accident when heading to diner 2 miles off route. Vicariously liable? Yes, not substantial deviation (detour);
Example: D in accident in Las Vegas. Vicariously liable? No, substantial deviation (frolic
🗑
|
||||
| Vicarious liability- Employer-Employee; Intentional torts | An employer is not liable for employees' intentional tort;
Exception: Vicarious liability will extend to intentional torts if violence (or a lot of controversy) is part of the job
🗑
|
||||
| Vicarious liability- Employer-Employee; Independent contractors | Generally no vicarious liability;
Exceptions-
1. Hired to engage in inherently dangerous activity,
2. Public policy exception;
Example: C slips on mess from IC at G store. G vicariously liable? Yes, landowners cannot insulate liability to invitee b/c
🗑
|
||||
| Vicarious liability- Automobile owner-Automobile driver | Generally no vicarious liability
🗑
|
||||
| Vicarious liability- Automobile owner-Automobile driver; Conceptual exception | When driver is performing an errand for owner, liability may be premised on agency principles
🗑
|
||||
| Vicarious liability- Automobile owner-Automobile driver; Minority rules: Family car states | Owner is vicariously liable for the torts of any household member driving the car with the owners permission
🗑
|
||||
| Vicarious liability- Automobile owner-Automobile driver; Minority rules: Permissive use states | Owner is vicariously liable for the torts of any one using the car with permission
🗑
|
||||
| Vicarious liability- Parent-child | No vicarious liability
WY Exception: Parents liable for up to $2000 in property damage for child 10-17 if willfully or malicious destroys property (statutory liability)
🗑
|
||||
| Vicarious liability- Warning (negligent entrustment) | Look for direct liability first;
Example: J give car keys to drunk D. D gets in accident. J vicariously liable? Yes, but directly for negligent conduct;
Example: Parents give 8 yr old gun. Vicariously liable for shooting N dog? Yes, but direct for neg
🗑
|
||||
| Adjustment of rights between multiple Ds- Joint and several liability | Each D can be liable to P for the entire damage incurred;
WY Exception: Abolished, so responsible for proportional share of damages assigned by jury w/o credit of other tortfeasors payments, at which time P cannot receive $ from other tortfeasors
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|
||||
| Adjustment of rights between multiple Ds- Joint and several liability; Concert of action | According to express or agreed agreement;
Example: T and R drag race. T hits P. P can sue T and R.
🗑
|
||||
| Adjustment of rights between multiple Ds- Joint and several liability; Indivisible harm | Independent acts by each D, but unable to divide the harm to specific Ds;
Example: R and P negligently driving and collide injuring R's passenger. T can sue R and P.
🗑
|
||||
| Adjustment of rights between multiple Ds- Indemnity | Passive D receives full reimbursement from active D;
Example: D car hits P. P sues D and employer. E pays full. Employer can seek full amount back from D;
WY- only when independent legal relationship (i.e., employment, product retail-manufacturer)
🗑
|
||||
| Adjustment of rights between multiple Ds- Contribution; Traditional rule | Paying D recovers proportional shares from other Ds (not in WY);
Example: A, Bl and C co-Ds. A pays P. A can seek 1/3 back from B and C.
🗑
|
||||
| Adjustment of rights between multiple Ds- Contribution; Comparative contribution | Recovery is based on relative fault of each tortfeasor (not in WY);
Example: J finds A 50% fault, B 25%, and C 25%. A can recover percentage of B and C fault.
🗑
|
||||
| Wrongful death and survival actions | Wrongful death and survival actions are not separate causes of action. They are labels that apply to tort actions when the tort results in the victims death
🗑
|
||||
| Wrongful death and survival actions- Wrongful death actions | Wrongful death actions are lawsuits brought by a decedent's beneficiaries (child/spouse) for own loss of support or companionship that deceased would have provided;
Subject to comparative fault of decedent;
WY- brought in name of personal representative
🗑
|
||||
| Wrongful death and survival actions- Survival actions | Survival actions are lawsuits brought by a decedent's estate based on claims that deceased could have brought had he lived;
Subject to comparative fault
🗑
|
||||
| Immunity- Family | Abolished in majority of states;
Wyoming has only eliminated child/parent immunity in automobile cases, otherwise traditional view
🗑
|
||||
| Immunity- Governmental | Soverign immunity in lawsuits except-
1. No immunity when gov't is engaged in proprietary function (i.e., municipal parking garage);
2. Gov't retains immunity when engaging in discretionary gov'tal activity (i.e., police protection activity)
🗑
|
||||
| Immunity- Charitable | Abolished in most jurisdictions
🗑
|
||||
| Negligence- Duty; How much care must you exercise?: Special situations, Negligence per se (statutory standard of care) | Wyoming- Evidence of negligence, but NOT per se because NOT presuming duty and breach
🗑
|
||||
| Negligence- Duty; How much care must you exercise?: Negligent infliction of emotional distress, Bystander recovery exception (WY) | Only P who are spouse, child, parents, or siblings can bring this exception for NIIED
🗑
|
||||
| Defenses to Negligence- WY is modified comparative negligence; | Fault does not exceed 50%, then can recover;
If fault more than 50%, then absolute bar;
Fault= willful and wanton conduct
🗑
|
||||
| Intentional tort- Intentional infliction of emotional distress (IIED); Intent/causation requirements in bystander cases in WY | P is not required to have seen outrageous act to satisfy requirement of being "present" when an injury occurs to another person;
Sufficient=gained personal and contemporaneous knowledge of act through other senses ["Bevan" heard mom being beat]
🗑
|
||||
| Harm to economic and dignitary interests- Breach of duty of good faith and fair dealing; Insurance contracts | Ins. co. owes duty of good faith to its policy holders not to unreasonably deny a claim for policy benefits, breach of which gives rise to independent tort action
🗑
|
||||
| Harm to economic and dignitary interests- Breach of duty of good faith and fair dealing; Insurance contracts: Prima facie case | P must show-
1. Absence of reasonable basis for denial of benefits,
2. Knowledge of, or reckless disregard to, lack of reasonable basis
🗑
|
||||
| Harm to economic and dignitary interests- Breach of duty of good faith and fair dealing; Insurance contracts: Third-party bad faith | Liability for insurer's bad faith failure to settle third-party claim within policy limit;
Bad faith= judgment in limits excess obtained b/c insurer fail exercise intelligence, good faith, and conscientious fidelity to common interest of insured/insurer
🗑
|
||||
| Harm to economic and dignitary interests- Breach of duty of good faith and fair dealing; Employment contracts | Employee owes duty good faith when special relationship of trust and reliance b/w employer-ee;
Breach=employee terminated to avoid payment of commissions or benefits earned, or avoid payment of benefits scheduled in future
🗑
|
||||
| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- WY Residential and Rental Property Act | Requires residential lessors to maintain rental units in safe and sanitary conditions fir for human habitation;
Standard= reasonable care in personal injury cases occurring on rental property
🗑
|
||||
| Negligence- Duty; How much care must you exercise?: Special duty standards, Owners and occupiers of land- Vendor of realty | Implied warrant of fitness for habitation, limited to latent defects that manifest themselves after purchase for a reasonable period of time;
Builder liable for foreseeable damages caused by negligence, even if work accepted
🗑
|
||||
| Negligence- Duty; How much care must you exercise?: Statutory standards of care, Effect of establishing violation of statute | Statutory violation= evidence of negligence rather than negligence per se
🗑
|
||||
| Strict Liability- Defenses; WY: Comparative negligence | Comparative fault rules apply to strict liability cases
🗑
|
||||
| Vicarious liability- Employer-Employee; Independent contractors: WY apparent agency rule | Hospitals vicariously liable for negligence of those practitioners who are apparent agents of hospital, regardless whether IC or not
🗑
|
||||
| Vicarious liability- Tavernkeeper-customer | No person who legally provided alcohol to another person is liable for damages cause by that person's intoxication;
Tort action if to minor, or habitual drunkard given notice of condition
🗑
|
||||
| Tortious interference with family relationships- Child's action (WY) | Minor child has independent claim for loss of parental consortium against one who tortiously injured parent;
Claim joined with injured parents claim if possible
🗑
|
||||
| Immunity- Governmental; Wyoming governmental claims act | Applies to all unites of state and local gov't;
Immunity abolished only if Act contains express provision waiving immunity
🗑
|
||||
| Immunity- Governmental; Wyoming governmental claims act: Application | State and local gov't, and their employees acting within scope of duty, are immunity for tort liability
🗑
|
||||
| Immunity- Governmental; Wyoming governmental claims act: Waiver | Waived if negligence operating-
1. Vehicle,
2. Or maintenance building,
3. Airports,
4. Public utilities, services, ground transportation,
5. Public hospital/outpatient,
6. Of health care provider (even IC),
7. Tortious conduct of law enforcement
🗑
|
||||
| Immunity- Governmental; Wyoming governmental claims act: Immunity retained for highway depart. and local road and bridge depart. | Immunity not waived damages caused by-
1. Defects in plan of bridge, culvert, highway, etc.,
2. Failure to construct bridge, culvert, highways, etc.,
3. Maintenance of any bridge, culvert, highway, etc.
🗑
|
||||
| Immunity- Governmental; Wyoming governmental claims act: Notice of claim | Person alleging claim must file notice of claim within 2 years of event giving rise for COA, or date of discovery;
Lawsuit commenced within 1 year of filing; Must follow statutory filing requirements
🗑
|
||||
| WY Immunity- Governmental; Wyoming governmental claims act: Limitations on liability | May not exceed $250,000 for single claim, $500,000 for all claims;
If ins. coverage in excess liability extended to include coverage
🗑
|
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| WY Immunity- Governmental; Wyoming governmental claims act: Limitations on liability, Higher limit for claim against physical employed by state | Claim based on act, error, omission by physician by state, state's liability may not exceed $1 million for single claim or all claims
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| WY Immunity- Governmental; Wyoming governmental claims act: Immunity for peace officers | Qualified immunity if-
1. Acting in good faith and within scope of duties,
2. Acts were reasonable under circumstances,
3. Acts were discretionary, not merely ministerial
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| WY Immunity- Municipalities; Public duty rule limitation | Immunity abolished;
WY does not apply the "public duty" doctrine
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| WY Immunity- Amateur rodeo | Public school or non-profit organization that sponsors an amateur rodeo is not liable for injuries sustained by voluntary participant unless injuries cause by willful, wanton, reckless act of sponsors or its employees
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| WY Worker's Compensation- Exclusive remedy | Quick, efficient delivery of indemnity and medical benefits to injured/disabled worker;
If covered and employer current on contributions, employee's exclusive remedy against employer;
Entitled w/o establishing fault;
3rd-parties= N immunity, Y indemin
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| WY Worker's Compensation- Exclusive remedy; Notice of claim against third-party | Injured employee suing 3rd-party, employee must serve director of dept. of employment and atty. general, by certified mail, return receipt, & copy of complaint
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| WY Worker's Compensation- Exclusive remedy; Notice of claim against third-party, Notice of proposed settlement | Prior to offering settlement to injured employee, 3rd-party or insurers must notify state of proposed settlement, and give 15 days object;
Failure= State bring independent action
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| WY Worker's Compensation- Exclusive remedy; Notice of claim against third-party, Notice of disposition of case by employee | Director or atty general must be notified in writing, by certified mail, return receipt, of any judgment, compromise, settlement, or release entered by employee
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| WY Worker's Compensation- Exclusive remedy; State's right of subrogation | Employee recovers from 3rd-party or co-employee, state is entitled to reimburse for payment made or to be made;
If notice requirements met, reimbursement may not exceed 1/3 of total proceeds
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| WY Worker's Compensation- Exclusive remedy; Right to file claim is protected | Employee may bring retaliatory discharge action if he was fired for filing workers' compensation claim
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| WY Worker's Compensation- Exclusive remedy; Injury must arise in course of employment | An identifiable deviation from business trip for personal reasons take employee out of course of employment and outside scope of workers' comp. coverage
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| WY Worker's Compensation- Exclusive remedy; Travel to or from employment generally not covered | Unless employee is reimbursed for travel expenses or is transported by employer's vehicle
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| WY Worker's Compensation- Co-Employment Liability | Covered employee must rely solely on workman's comp act as remedy against co-employee acting within scope of employment, unless co-employee intentionally acted to cause physical harm or injury;
Intent= willful and wanton misconduct
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| WY Statute of limitations- Action must be brought within 4 years after COA accrues | 1. Trespass to land;
2. Recover personal property or taking, detention, damage of personal property;
3. Other injuries to P's rights (i.e., personal injury claims on negligence)
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| WY Statute of limitations- Action must be brought within 2 years after COA accrues | Act, error, or omission in rendering licensed or certified professional or health care services;
If minor, brought by later of 18th birthday or 2 years from date of alleged act;
6 mo. extension if discovered during 2 year of period
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| WY Statute of limitations- Action must be brought within 1 year after COA accrues | Defamation, assault, battery, malicious prosecution, false imprisonment
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| WY Statute of limitations- Discovery rule | COA accrues when P know or has reason to know of existence;
Period begins to run from date of injury, rather than time P knows unless medical malpractice
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| WY Statute of limitations- Discovery rule; Wrongful death | Discovery rule does not apply;
Must be brought within 2 years of decedent's death;
Period does not begin to run until decedent identified, since need personal representative appointed by ct.
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