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Torts SB

QuestionAnswer
I. The Main Question: Is THIS defendant going to be liable to THIS plaintiff for the tort at issue II. The Sub Questions: a. Can the plaintiff prove the prima facie case at issue (the elements of the claim) b. Are There Any good affirmative defenses available to the D?
Transferred Intent: i. Intent can "transfer" from intended and actual victim ii. Intent can also "transfer" from intended to actual tort
Battery 1. An act by the defendant which brings about HARMFUL OR OFFENSIVE CONTACT to the plaintiff's person 2. Intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff's person Causation
Assault An act by the D creating a reasonable apprehension in P of immediate harmful or offensive contact to P's person Intent on the part of the D to bring about the P's apprehension of immediate harmful or offensive contact with the P's person; and Causati
Apprehension It must be REASONABLE apprehension Do not confuse apprehension with fear or intimidation You don't have to be scared or intimidated, you just have to reasonably apprehend an immediate contact Apparent ability creates reasonable apprehension
False Imprisonment 1. An act or omission to act on the part of the defendant that confines or restrains the P to a bounded area: 2. Intent on the part of the defendant to confine or restrain the P to a bounded area and 3. Causation
A. Sufficient Act of Restraint: physical barriers, physical force, direct threats of force, indirect threats of force, failure to provide means of escape, invalid use of legal authority THREATS are enough Inaction is enough IF there was an understanding that the D would act for the P's benefit The plaintiff generally must be aware of the confinement at the time it is taking place to prove. The confinement's LENGTH OF TIME is irreleva
Intentional Infliction of Emotional Distress: - An act by D amounting to Extreme and Outrageous Conduct - Intent on part of D to cause P to suffer Severe emotional distress or Recklessness as to the effect of defendant's conduct - Causation and Damages- severe emotional distress
1) Intent/Causation Requirements in Bystander Cases a) The P was present when the injury occurred to the other person b) The P was a close relationship/relative of the injured person and c) The D knew that the P was present and a close relative of the injured purpose
WY: Intent/Causation Requirements in Bystander Cases P is not required to have seen the outrageous act to satisfy the requirement of being 'present' when an injury occurs to another person. It is sufficient if she gained personal and contemporaneous knowledge of the act through her other senses-
Trespass to land 1. An act of physical invasion of P's real property by D 2. Intent on D's part to bring about a physical invasion of P's real property and 3. Causation
An act of Physical Invasion a. There is no need to show knowledge of crossing a property line i. Intent to enter onto the land is sufficient b. Propelling a physical object onto property will suffice Rocks, water, other people- tangible Odors or light don't count- intangible.
Trespass to Chattels 1. An act of D that interferes with P's right of possession in the chattel 2. Intent to perform the act bringing about the interference with P's right of possession 3. Causation and 4. Damages
Prima Facie Case Conversion (mere intent to perform act is only required, even if conduct is wholly innocent, liability may attach where interference is serious) 1. An act by D interfering with P's right of possession in the chattel that is SERIOUS ENOUGH in nature or consequence to warrant that the defendant pay the full value of the chattel 2. Intent to bring about the interference P's possession 3. Causation
Hint: If there is SOME DAMAGE, choose trespass to chattels. If there is a LOT OF DAMAGE. Choose conversion. Hint: For conversion, "damage" can include serious interference with possessory rights. Damages for conversion includes damages and serious interference with possessory rights. For conversion, get fair market value of chattel at time and place of conversion
Acts of Conversion: - Wrongful acquisition - Wrongful transfer - Wrongful detention - Substantially changing - Severely damaging or destroying - Misusing the chattel
I. Consent: (also works for defamation and privacy) Capacity, Express, Implied
Capacity: the plaintiff must have CAPACITY to consent. Those who lack capacity include i. Children ii. Mental Impairment iii. Coercion or Force iv. Fraud or Mistake
Express consent: "Go ahead and do it" Hint: look for facts relating to mistake, fraud or coercion EX: Mudpack with dog poop, not consent, fraud by person.
Implied consent Arises through CUSTOM and USAGE or through PLAINTIFF'S OWN CONDUCT i. EX: Tagged during touch football- not unpermitted contact. ii. EX: Didn't know the rules of football- doesn’t' change things still not unpermitted contact
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. Belief must be: Subjectively true and objectively reasonable
Deadly Force the use of deadly force is "reasonable" only when the defender reasonably believes that she is facing a threat of deadly force herself. It that isn't the case, it is not justified.
Retreat Courts are divided on the question whether a retreat is required before deadly force may be used. The modern trend requires you do have to retreat before using deadly force, unless you are in your own home.
Defense of Property: a person may use REASONABLE FORCE to defend his real or personal property. However, deadly force may never be used to protect property alone.
Hot Pursuit Fact Patterns you can only use reasonable force to recapture your property when you are in hot pursuit if that property. When not in hot pursuit, you can no longer use force.
Shoplifter Fact Pattern(Shopkeeper Rule) the rule is the same as the general defense of property rule. Shopkeeper can retain a suspected shoplifter for a reasonable time in a reasonable manner. JUST REMEMBER NO DEADLY FORCE
Necessity A. Necessity is used only in conjunction with intentional torts to property (trespass to land, trespass to chattels and conversion)
Public Necessity An unlimited privilege to protect a lot of people. i. EX: destroy a row of houses to stop fire from spreading through city- That is a necessity DEFENSE IS ABSOLUTE
Private Necessity a qualified privilege to protect a limited number of people. i. Defense is qualified, the actor must pay for any injury he causes. Exception, the defense is absolute if the act is to benefit the owner of the land.
Discipline A. A parent or teacher may use reasonable force when disciplining children, taking into account the age and sex of child and the seriousness of the behavior.
Defamation A. Common Law Elements 1. False and Defamatory statement by the D 2. Statement of or concerning the plaintiff 3. Publication of the defamatory language by the D to a third person who understands Damage to the reputation of the Plaintiff
Defamation public figure additional elements of proof NOTE: where the defamation refers to a public figure or involves a matter of public concern, two additional elements must be proven (see below in Constitutional limitations) 1. Falsity of defamatory language and 2. Fault on D's part
B. Defamatory Statement: a defamatory statement is one that injures the P's reputation. Name calling not enough,Truth:D bears the burden of proving -Of and Concerning: the D's statement must reasonably be understood to refer to the P: -Publication: the statement must be communicated in understandable fashion to a 3rd person Publication m
Defamation Damages when defamation is spoken (SLANDER) the plaintiff must prove Special damages (monetary loss). When defamation is written or broadcast (LIBEL), juries may presume damages (without showing economic harm).
A plaintiff can recover presumed damages in cases of slander per se. The traditional categories of slander per se are: 1. Statements that impute one's trade or profession 2. Statements that accuse P of committing a serious crime 3. Statements that imply that P has a loathsome disease 4. Statements that impute un chastity to a woman
Wyoming recognizes a tort cause of action for breach of implied covenant of good faith and fair dealing in the context of insurance contracts and employment contracts Breach of the Duty of good faith and Fair dealing
Insurance Contracts insurance co owes a duty of good faith to its policy holders not to unreasonably deny a claim for policy benefits, the breach of which gives rise to an independent tort action.
Third party bad faith consists of a likably insurer's bad faith failure to settle a third party claim within the policy limits. "Bad faith" exists when a judgment in excess of policy limits is obtained under which the insurer failed to exercise intelligence, GF and fidelity to
Employment Contracts employer owes a duty of good faith under an employment contract only when a special relationship of trust and reliance exists between the employer and employee. The duty is breached when an employee is terminated to avoid payment of commissions or benefit
Defamation Common Law: Defenses - Truth -Absolute privilege 1) Statements made in the course of judicial proceedings. 2) Statements made during the course of legis proceedings. 3) Comm.between spouses. If an absolute privilege applies, it applies NO MATTER HOW BAD the defendant beh
Qualified Privilege a person has a qualified privilege to make a defamatory statement during the course of a legitimate public debate or to serve the interest of the person receiving the information. Classic example- letter of reference, qualified privilege to speak about h
Public Persons: A public plaintiff must prove ACTUAL MALICE. The Supreme court defines malice as Defendant Knowing statement as false, or D had reckless disregard for the truth.
Private Persons A private plaintiff must prove(falsity) and fault amounting to NEGLIGENCE.
Damages In matters of public concern, all plaintiffs must prove actual malice to recover presumed or punitive damages
Invasion of Right to Privacy i. Approp. by D of P's picture or name for D's commercial advantage ii. Intrusion by the D upon P's affairs or seclusion iii. Publication by the D of facts placing the P in a false light and iv. Public disclosure of private facts about the P by the D.
I. Appropriation A. Definition: use of P's name or picture for commercial advantage without permission B. Limitation: P's likeness must be used for advertising, promotional or labeling purposes.
II. Intrusion A. Any interference with a P's seclusion in a way that would be highly offensive to a reasonable person i. Ex: telescope looking into someone's bedroom. B. Limitation: P must be in a place where she has an expectation of privacy
III. False Light The widespread dissemination of information that is in some way inaccurate and that would be highly offensive to a reasonable person. i. Malice on the part of D where the published matter is in the public interest. - Views that he does not hold or - Ac
IV. Public disclosure of Private Facts The widespread dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be highly offensive to a reasonable person. B. EXCEPTION: Newsworthy disclosures are not actionable.
I. Intentional Misrepresentation (FRAUD, DECEIT) 1. Misrepresentation made by D 2. Scienter (Fault) 3. An intent to induce P's reliance on the misrepresentation 4. Causation (ie actual reliance on the misrepresentation 5. Justifiable reliance by P on the misrepresentation AND 6. Damages
A. Affirmative Misrepresentation Must be of a material past or present fact. Comment: Silence Generally Will NOT Suffice EX: Sell car in classified section, know that transmission is shot, but says nothing to buyer- Liability for fraud? NO NO GENERAL DUTY TO DISCLOSE
Fault (Scienter) P must prove that D made the representation knowing it to be false or alternatively that it was made with reckless disregard as to its truth or falsity Comment: Scienter must be shown. Fraud is an INTENTIONAL cause of action.
Intention to Induce Reliance - Statement has to be material, about a central aspect or feature of the transaction, can't be collateral, extraneous or minor - Comment: the statement must be MATERIAL
D. Justifiable Reliance: must have been reasonable for P to rely on what D had to say - Most statements are those of opinion It is normally justifiable to rely on the opinion of one who has SUPERIOR SKILL or KNOWLEDGE in the subject matter of the transaction
Negligent Misrepresentation 1. Misrepresentation made by defendant in a business or professional capacity 2. Breach of duty toward particular defendant 3. Causation 4. Justifiable reliance by P upon the misrepresentation and 5. Damages
Intentional Interference with Business Relations - valid contractual relationship between P and third party or a valid business expectancy of P; -D's knowledge of the relationship or expectancy -Intentional interference by D that includes a breach or term.of the rship or expectancy AND - Damage to P.
IIBR THINK of it IN 3 Levels: A. Inducing Breach of Contract: an intentional action that causes a third person to breach an existing Contract with the P
Interference with Contractual Relations a D may be liable if interference with a P's contractual relations makes performance more difficult, even if the interference does not actually cause breach.
Interference with Prospective Economic Advantage: a D may be liable for interfering with a P's expectation of economic benefit from third persons even in the absence of a K.
Wrongful Institution of Legal Proceedings 1. Institution of criminal proceedings against plaintiff 2. Termination favorable to P 3. Absence of probable cause for prosecution 4. Improper purpose of D (ie malice) and 5. Damages
A. Malicious Prosecution: criminal or civil proceedings brought with out PC or for improper purpose Abuse of Process: claim against someone for using any legal process for improper purpose
Negligence (duty, breach, cause, harm) 1. Duty on the part of the D to conform to a specific std of conduct for the protection of the P against an unreas. risk of injury 2. Breach of duty by D 3. Breach by D was the ACTUAL AND PROXIMATE CAUSE of P's injury 4. Damage to P's person or prope
DUTY- of care A. You owe a duty to all people who are FORESEEABLE VICTIMS of you failure to take precautions.
Plaintiffs Who are Foreseeable as a Matter of Law Rescuers, Viable fetuses
III. How Much Care Must you Exercise? A. The Point Dexter Rule: YOU MUST EXERCISE THE AMOUNT OF CARE THAT WOULD TAKEN BY A REASONABLE PERSON ONUNDER THE SAME OR SIMILAR CIRCUMSTANCES
1. Children i. Majority Rule: a child must exercise the degree of care that a child of like age, education, intelligence and experience. This permits subjective evaluation of these factors.
Adult activities: a child engaged in an ADULT ACTIVITY is held to the adult standard. 1) EX: child drives father's car through neighbors bay window- Kid liable because she undertook an adult activity.
Professionals i. General Standard: A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.
WY Particular Standards of Conduct- Professionals 'similar communities' standard for medical professionals, attorneys are held to a STATEWIDE standard of care, WY attorney must exercise the degree of skill and knowledge commonly possessed and exercised by a reasonable and prudent lawyer in WY
WY Medical review panel In WY a medical review panel must review a malpractice claim against a health care provider, unless the claim is subject to an arbitration agreement. A malpractice complaint may not be filed before first presenting the claim to the review panel.
Undiscovered Trespassers - Duty: NONE - a landowner owes no duty to an undiscovered trespasser. He has no duty to inspect in order to ascertain whether persons are coming onto his property
Discovered Trespassers - Duty: Reasonable Care - Only have to protect against conditions that are artificial, highly dangerous concealed conditions that are known to you. ○ You only have to protect them against "man made death traps" No duty owed for natural conditions - T
Licensee (someone who you like!): - Duty: Reasonable Care - Must warn the licensee of dangerous condition KNOWN to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. -
Licensee Covers both manmade and natural and conditions dangerous or moderately dangerous as well as concealed conditions. ○ NO DUTY TO INSPECT, nor to repair known defects ○ Duty of Care for Active operations- duty to exercise reasonable care in the conduct of
Invitee:anyone who enters into the premises in response to an express or implied invitation of the landowner. Two classes 1. Those who enter as members of the public for purpose for a purpose for which the land is held open to the public- ie museums, churches and airports, AND Those who enter for a purpose connected with business
Invitee Duty: reasonable in ordinary care in keeping the property reasonably safe for the benefit of the invitee. Duty includes the duties owed to licensees PLUS a DUTY to make reasonable inspections to discover dangerous conditions and thereafter, make them safe
Invitee ○ Warning may suffice, the requirement to make safe dangerous conditions usually is satisfied if a reasonable warning has been given
Invitee ○ Obviousness of Danger: duty to warn usually does not exist where the dangerous condition is so obvious that the invitee should have been aware of it.
Attractive Nuisance i. There is a dangerous condition present on the land of which the owner is or should be aware ii. The owner knows or should know that young persons frequent the vicinity of this dangerous condition
Attractive Nuisance iii. The condition is likely to cause injury- ie is dangerous, because of the child's inability to appreciate the risk AND iv. The expense of remedying the situation is slight compared with the magnitude of the risk.
WY Standard of Care owed by owners and/or Occupiers of Land Duty of Possessor to those off the Premises- Natural Conditions If a city ordinance imposes a duty on the owner or occupier of property to keep the sidewalks in front of the premises safe and clear for pedestrians and to repair them from time to time, the owner must remove snow, ice, etc, with reasonable dispatch to
Duty of Possessor to Those on the Premises Modern Trend- Rejection of Rules Based on Entrants Legal Status Wyoming has abolished the classification of invitee and licensee, but retains the classification of trespasser. Under general negligence principles a landowner does not have a duty to protect a guest on the property from naturally occurring obvious haza
INVITEE STANDARDS APPLY TO ALL NON TRESPASSERS!! INVITEE STANDARDS APPLY TO ALL NON TRESPASSERS!!
Duties of a Lessor of Realty- Exceptions WY Residential Rental Property ActThe Residential Renal Property Act requires residential lessors to maintain renal units in a safe and sanitary condition fit for human habitation. This statute establishes the standard of reasonable care in personal injur
Duties of Vendor of Realty In WY, a home builder makes an implied warranty of fitness for habitation, which is limited to latent defects that manifest themselves after the purchase. This warranty extends to subsequent purchasers for a reasonable time. Also the builder is liable to
1. Statutory Standard of Care: "Negligence Per Se" a. Test: Class of Person, Class of Risk i. Plaintiff must show that she is in the class of person intended to be protected by the statute ii. Plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered
EFFECT of Establishing Violation of statute: P will have established a conclusive presumption of DUTY AND BREACH OF DUTY (P must still establish causation and damages to complete the prima facie case for negligence.) Effect of Establishing Violation of Statute In WY a statutory violation constitutes evidence of negligence rather than negligence per se.
Statutory Exceptions 1. Compliance with the statute is MORE DANGEROUS than violating the statute 2. Compliance is IMPOSSIBLE under the circumstances
1. The Affirmative Duty to Act Rule Rule: There is NO DUTY TO RESCUE! NOTE: Good Samaritan Statues: statute exemption licensed doctors, nurses, who voluntarily and gratuitously render emergency treatment from liability for ordinary negligence
Exception to duty to Act - Defendant put the Plaintiff in Peril -Relationships: close family relationship, common carrier, inviter/invitee -duty to control 3rd persons- must have actual ability and authority to control
2. Negligent Infliction of Emotional Distress P must usually satisfy two elements: i. P must be within the zone of danger AND ii. P must suffer physical symptoms from the distress a. G/R: NO DUTY!
Neg. Infl. of Em Distress Exceptions Zone of danger, near miss fact pattern
Bystander Not in Zone of Danger Seeing Injury to Another Wyoming allows recovery if the plaintiff observed the infliction of serious bodily harm or death, or observed the harm or death shortly after its occurrence without material change in the condition and location of the victim. The class of P's who ma
2. Bystander Recovery: can recover if she is outside the zone of danger if she was present at the scene and had a close relationship with the victim in the accident. i. P and person injured by the D are closely related ii. The P was present at the scene of the injury AND iii. The P personally observed or perceived the event.
Special Relationship Between P and D WY allows recovery for negligent infliction of emotional distress absent a showing of physical injury in LIMITED CIRCUMSTANCES where there is a contractual relationship to provide services that carry with them deeply emotional responses in the event o
Special Situations Courts liberalize rules where a D's negligence creates a great likelihood of severe emotional distress- ex erroneous report that relative died or mishandling in relative's corpse
Note in WY: Affirmative Duties to Act Duty of Places of Public Accommodation A tavernkeeper owes a duty of reasonable care to an invitee to protect him from an assault by another invitee if a disturbance alerted or should have alerted the tavernkeeper in time to prevent the resulting assault.
BREACH OF DUTY I. G/R: Plaintiff must point to SPECIFIC CONDUCT II. Proving "Specific Conduct" 1. Evidence of Custom: Always admissible never conclusive a. Custom or usage may introduced to establish the standard of care in a given case. However, customary methods of conduct do not furnish a test that is conclusive for controlling the question
Res Ipsa Loquitur: The event is one that does not normally occur in the absence of negligence b. The injury causing instrumentality was under the exclusive control of the Defendant.
The "But For" Test: A D's conduct is the cause in fact of an injury when the injury would not have occurred
II. Proximate Cause (Legal Causation) A. General principle: Proximate cause is a limitation on the D's liability. A person is only liable for those harms that are WITHIN THE RISK of his activity.
B. Direct Cause Fact Patterns: If the result of the D's negligent conduct is FORESEEABLE, the D will be liable - Facts present an UNITERRUPTED CHAIN of events from the time of the D's negligent act to the time of plaintiff's injury. NO EXTERNAL INTERVENING FORCE OF ANY KIND HINT: Err on the side of finding for the P in direct cause fact patterns.
C. Indirect Cause Fact Patterns Facts indicate that a force came into motion AFTER the time of D's negligent act and combined with the negligent act to cause injury to the P. In short, INDIRECT cause cases are those where INTERENING FORCES ARE PRESENT. Whether an intervening force wil
1. Dependent Intervening Forces: normal responses or reactions to the situation created by D's negligent act. DEPENDENT INTERVENING FORCES ARE ALMOST ALWAYS FORESEEABLE subsequent medical malpractice, negligence of rescuers, efforts to protect person or property, reaction forces, subsequent diseases or accidents
2. Cases in which an intervening cause WILL NOT cut off liability IF D can anticipate the intervening cause Negligence of third party, criminal acts and intentional torts of 3rd parties, acts of god
3. Foreseeable Results Caused by Unforeseeable intervening Forces- Defendant USUALLY Liable 4. Unforeseeable Results Caused by Foreseeable intervening Forces: Defendant NOT Liable 5. Unforeseeable Results Caused by Unforeseeable Intervening Forces: Defendant Not Liable
1. Superseding force: one that serves to break the causal connection between D's original negligent act and ultimate injury and itself becomes a direct, immediate cause of injury, thus reliving D of liability for consequences of his action. 6. Unforeseeable Extent or Severity of Harm: Defendant Liable ( eggshell skull plaintiff-)- take them as you find them
DAMAGES: Remember this is an essential element of P's claim for negligence. This means ACUTAL harm or injury. NOT like intentional torts where damages are presumed. So nominal damages not available, must prove them.
ELEMENTS: A plaintiff must prove damages as part of her prima facie negligence case. P is to be compensated for all damages (past, present, future) The elements of a typical personal injury award are: a. Past and future medical expenses b. Past and future lost income c. Pain and suffering
Includes fair and adequate compensation for economic damages, such as medical expenses and non economic damages such as pain and suffering a. Foreseeability Irrelevant b. Emotional distress damages: noneconomic damages include damages for ANY emotional distress suffered as a result of a PHYSICAL injury c. Property damage: cost of repair or fair market value at time of accident d. Punitive
Non Recoverable Items 1. Interest from date of damage in personal injury action 2. Attorneys Fees
Collateral source Rule: damages are not reduced or mitigated by reason of benefits received by P from other sources- ie sick pay from employer. NOTE these damages rules also are generally applicable to actions based on intentional torts.
Duty to mitigate duty to take reasonable steps to mitigate damages as a P
I. Contributory Negligence: A plaintiff's failure to use the relevant degree of care for his or her own safety. b. Consequence: If the plaintiff is contributory negligent, plaintiff will lose lawsuit and recover nothing
Last Clear Chance: i. Permits P to recover despite hos own contributory negligence. The person with the 'last clear chance to avoid an accident' who fails to do so is liable for negligence.
Imputed Contributory Negligence i. G/R: P may proceed against both negligent parties, P's action for his damages is NOT barred by imputed contributory negligence. See pg 70 Torts outline.
a. Express Assumption of the risk "I'll take my chances" (P must have known of the risk and voluntarily assumed it- irrelevant that P's choice is unreasonable) Consequence will ALSO completely bar recovery in negligence.
b. Implied Assumption of the risk i. P must have knowledge of the risk ii. There must be evidence that encounter was VOLUNTARY
i. The absence of an alternative destroys voluntariness i. P falls into excavation pit in an attempt to leave his office. If P had no other way out, was his encounter with the hazard voluntary? NO
ii. Emergency situations destroy voluntariness EX: P jumps in front of speeding car to push a child out of harm's way. Was his encounter with the hazard 'voluntary'? NO
Certain risks may not be assumed. i. Common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on sigh ii. When a statute is enacted to protect a class, member of that class will not be deemed to have assumed any risk.
TRADITIONALLY if you have knowing and voluntary assumption of the risk it has been a COMPLETE bar to recovery- HOWEVER- that rule changes as we move to comparative negligence. TRADITIONALLY if you have knowing and voluntary assumption of the risk it has been a COMPLETE bar to recovery- HOWEVER- that rule changes as we move to comparative negligence.
III. Comparative Negligence- will reduce recovery instead of barring recovery III. Comparative Negligence- will reduce recovery instead of barring recovery
Pure comparative Negligence: P will always recover something if the P is the majority negligence actor in the case.
Modified/Partial Comparative Negligence P's recover is proportionally reduced up to a threshold 49 of 50 % depending on state, after passing that threshold then P is precluded from recovery.
WY: "Partial" Comparative Negligence In WY a P may recover if his fault does not exceed 50% of the total fault of ALL actors, whether parties to the litigation or not. "Fault" under the statute encompasses willful and wanton conduct.
Implied Assumption of Risk WY treats assumption of risk as another form of comparative fault; ie it does not bar recovery unless it exceeds 50% of the total fault . Failure to Wear Seat Belti. Evidence of a person's failure to wear a seat belt, as required by law, may not be introduced into any civil action.
STRICT LIABILTY a. The nature of the D's activity imposes an absolute duty to make safe; b. The dangerous aspect of the activity is the ACTUAL and PROXIMATE cause of the P's injury AND c. The P suffered damage to person or property
Trespassing Animals a. Trespassing Animals: Strict liability for foreseeable harm caused by animals (other than household pets).
Domesticated Animals: No strict liability, UNLESS you know of the animal's dangerous propensities in advance Wild Animals: strict liability from the get go, so long as P did not do something knowingly to expose to harm- ie if someone sticks their arm in the tiger's mouth.
WY: Defenses: Comparative Negligence States WY applies its comparative fault rules to strict liability cases.
Abnormally dangerous Activities 1. The activity is incapable of being conducted except with high risk (cannot be made safe) 2. If harm occurs, it is likely to be severe 3. The activity must be unusual. Uncommon in the community where it takes place.
III. Product Related Injury/ Products Liability a. Warning: Look CAREFULLY at what theory you are asked to apply! 1. Theories of Liability: i. P in products liability cases may have one of the five possible THEORIES AVAILBLE to them a) Intent b) Negligence c) Strict liability d) Implied warranties of merchantability and fitness for a particular purpose and e) Representation theories ( express warranty and misrepresentation)
Products Liability Defendant must be a MERCHANT OF THE TYPES OF GOODS INVOVED. The products must be DEFECTIVE. SAME CONDITION: The defect existed when it left the defendant's (seller's) hand. FORESEEABLE USE:
Defective Manufacturing Defect: the product is an anomaly, and the difference between the product in hand and all others is different from all others. Product may be so 'unreasonably dangerous' as to be defective. ii. Design defect: a problem common to each unit t
Feasible Alternatives i. Usefulness and desirability of the product ii. Availability of safer alternative products iii. The dangers of the product that have been identified by the time of trial iv. Likelihood and probable seriousness of injury v. Obvio
SAME CONDITION The defect existed when it left the defendant's (seller's) hand. If you can prove that product moved in ordinary channels of distribution can have benefit of doubt that defect existed when left the seller's hand.
FORESEEABLE USE: The plaintiff made a foreseeable use of the product. Proximate cause limitation.
Defenses Comparative Negligence States: WY applies its comparative fault rules to products liability cases based on strict liability.
1. Traditional Jurisdictions: in traditional jurisdictions, conduct that is the equivalent of CONTRIBUTORY NEGLIGENCE WILL NOT bar recovery; conduct that is the equivalent of assumption of the risk WILL BAR recovery. Comparative Fault Jurisdictions: A majority of comparative fault jurisdictions now apply comparative fault principles in strict products liability cases- so if you are in that jurisdiction, a P's negligence might reduce, but not eliminate recovery.
IV. Private Nuisance: Conduct that causes a substantial and unreasonable interference with the use and enjoyment of land. a. Substantial and Unreasonable interference b. Remedies: Courts will WEIGH THE EQUITIES of parties in deciding whether to enjoin a defendants 1. Damages 2. Injunctions 3. Abatement by self help
Public Nuisance: conduct that causes physical or moral harm to the general public in general. A PRIVATE PLAINTIFF can maintain a public nuisance action if the person suffers from an injury that is different in nature than the public at large.
VI. Defenses to Nuisance a. Legislative Authority b. Conduct of others c. Contributory Negligence- only in a suit with nuisance based on negligence theory. "Coming to the Nuisance"
a. Employer/Employee (Respondeat Superior): The employer is vicariously liable for employees' torts committed WITHIN THE SCOPE OF EMPLOYEMENT Doctrine of Respondeat Superior An employer is not vicariously liable for its employees negligence that results in harm to an unauthorized guest of the employee.
Independent Contractor Situations WY has adopted the apparent agency rule, which imposes vicarious liability on hospitals for the negligence of those practitioners who are apparent agents of the hospital regardless of whether they are employees or independent contractors.
b. Automobile Owner- Automobile Driver: Generally, no vicarious liability 1. Conceptual Exception: when diver is performing an ERRAND for owner, liability may be premised on agency principles.
Family Car States: Owner is vicariously liable for the torts of any household member using the car with the owner's permission.
c. Parent-Child: No vicarious liability WYOMING Parents of children over age 10 and under age 17 are liable for property damage up to $2,000 maliciously and willfully caused by the children. This liability does not apply if parental custody and control were judicially terminated before the destructive
Tavernkeepers Under the WY statue, no person who has LEGALLY provided alcohol to another person is liable for damages caused by that person's intoxication. This statute permits a tort action against one who provides alcohol in violation of Title 12 provisions regulating the sale of alcohol- ex by furnishing it to a minor or to a habitual drunkard whose family has given notice of his condition. However, "leg
Joint and several liability has been ABOLISHED in Wyoming. Joint and several liability has been ABOLISHED in Wyoming.
Joint and Several Liability: Each defendant can be liable to P for the Entire Damage incurred.Concert of action, indivisible harm
WY Satisfaction When a judgment determining the entirety of damages from an accident is assessed against the D, payment of the judgment makes the P, "whole" and bars subsequent actions against other tortfeasors for the same accident.
WY release IN WY a non-settling party does not get credit for amounts the plaintiff received from other parties in a pretrial settlement.
Indemnity:Passive defendant receives FULL REIMBURSEMENT from active defendant. WY allows claims for indemnity only when there is an independent legal relationship between the party seeking indemnity against whom indemnity is sought.
Contribution: all tortfeasors are active participants in leading to P's harm.
Contribution:Traditional Rule: Paying defendant recovers PROPORTIONAL SHARES from other defendants Comparative Contribution. Recovery is based on the RELATIVE FAULT of each tortfeasors. 3. B/C WY does not proved for joint and several liability, there is NO RIGHT OF CONTRIBUTION
Wrongful Death Actions wrongful death actions are lawsuits brought by a decedent's beneficiaries for their own loss of support and companionship that the deceased would have provided. Subject to defenses that could have been asserted to decedent had he not died.
Survival Actions: Survival actions are lawsuits brought by a decedent's estate based on claims that deceased could have brought, had he lived. Also vested in the estate, includes all normal damage elements and is also subject to any defenses that could have been raised had
WY: Wrongful Death- who may bring action? A WY wrongful death must be brought in the name of the personal representative. The statute does not require the personal representative to be the probate estate's administrator or executor.
WY Tortious Interferences with Family Relationships In WY, a minor child has an independent claim for loss of parental consortium against one who tortiously injured her parent. Such claim should be joined with the injured parent's claim whenever possible.
Family Immunity: G/R no more family immunity. Intra Family Tort Immunities- Parent Child Immunity Limited WY eliminated parent child immunity in automobile accident cases.
Governmental Immunity G/R Government has sovern immunity from tort lawsuits. 1. There is no immunity when government is engaged in proprietary function, one that a private citizen would have normally carried. Governments retain immunity when discretionary activities.
Charitable Immunity Charitable immunity has been abolished in most jurisdictions.
The WY Governmental Claims Act applies to all units of state and local government. Immunity is abrogated only if the Act contains an express provision waiving immunity State and local government units, and their employees acting within the scope of duty, generally are immune from tort liability
Immunity retained for Highway Dept. and Local Road and Bridge Departments. Immunity is not waived for damages caused by any of the following: 1. Defects in the plan or design of any bridge, culvert, highway, street, sidewalk, or parking area 2. Failure to construct or reconstruct any bridge, culvert, highway, etc OR 3. Maintenance of any bridge, culvert, highway etc.
WY A person alleging a claim against the government must file a notice of claim within two years of the event giving rise to the cause of action. However, if the event was not reasonably discoverable within a two year period, or the claimant failed to discover it within a 2 year period despite the exercise of due diligence, the claimant has an additional 2 years after discovery to file
C. Limits on Liability Liability of a government entity may not exceed 250,000 for a single claim or 500,000 for all claims arising out of a single transaction If there is insurance coverage in excess of these limits or covering liability not authorized by the statute, liability is extended to include such coverage.
D. Immunity for Peace Officers A peace officer is entitled to qualified immunity if i. She was acting in good faith and within the scope of her duties ii. Her acts were reasonable under the circumstances and iii. Her acts were discretionary, not merely ministerial
WY Municipalities Immunity Abolished- Public Duty Rule Limitation Wyoming does not apply the 'public duty' doctrine
A. Exclusive Remedy The WY workers Compensation statutes provide for quick and efficient delivery of indemnity and medical benefits to injured and disabled workers. If an employees is covered by worker's compensation and her employer is current on his contributions, recovery under the statutes is the employees EXCLUSIVE REMEDY AGAINST THE EMPLOYER.
SOL 4 years ○ Trespass to land ○ Actions to recover personal property or for the taking, detention, or damage of personal property (ex conversion or trespass to chattels) AND ○ Other injuries to a P's rights not otherwise specifically enumerated (ex most person
SOL 2 years An action arisng from an act, error, or omission in the rendering of licensed or certified professional or health care services (ex medical, legal, or architectural malpractice) must be brought within two years of the date of the alleged act, error, or o
SOL 2 years Six month extension if discover occurs during second year If the alleged act, error, or omission is discovered during the second year of the two year period, the period for commencing the lawsuit is extended by six months.
SOL one year Actions for defamation, assault, battery, malicious prosecution, or false imprisonment must be brought within one year.
WY Discovery Rule: In WY a cause of action accrues when the P knows or has reason to know of the existence of a cause of action; ie- when the injury or its cause becomes apparent. In most instances, the period begins to run from the date of injury rather than the time at which the injured party knows or should know the identity of the tortfeasor. However, a medical malpractice stat
Professional Malpractice- Two years after Discovery The two year statute of limitations for professional malpractice actions may be extended under some circumstances. The cause of action may be brought within two years after discovery of the alleged act, error, or omission if the P can show the act, error
WY Wrongful Death The discovery rule does not apply to wrongful death actions, which must be brought within two years of the decedents death. Nevertheless, the period does not begin to run until the decedent id identified, because a wrongful death action cannot be brought
Created by: staciaberry
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