Torts: JT-very focused on Wyoming
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| Torts |
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| Intentional Torts: General Elements | (1) Act: volitional movement
(2) Intent: Specific or general: everybody is capable of having intent
(3) Causation: Substantial factor
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| Transferred Intent | G/R: Occurs when: (1) D intends to commit a tort against a PER; (2) Commits a diff. tort a/g that PER OR (3) commits same tort but a/g diff. person OR (4) diff. tort against diff. person.
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| Transferred intent may only be invoked if.... | ...If both the intended tort and resulting tort is : (1) Assualt, (2) Battery, (3) False Imprisonment, (4) trespass to chattel or land.
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| List of Intentional Torts | (1) Batter (2) Assualt (3) False Imprisonment (4) Intentional Infliction of Emotional Distress (5) Trespass to land (6) Trespass to Chattels (7) Conversion
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| Battery | (1) Harmful or Offensive Touch (2) To the PLA's person (or anything attached to it) (3) Intent (4) Causation Note: No dmgs req.
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| Harmful or Offensive | (1) Reasonable Person Standard (2) No consent=offensive touch but there is implied consent for everyday touching (3) May be direct or indirect (i.e. setting a trap)
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| Assault | (1) An act creating reasonable apprehension (2) Of immiediate harmful or offensive contact to PLA's person (3) Intent (4) Causation Note: D must have apparent ability. Also, words alone cannot create apprehension but may dispel it. No dmgs req.
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| False Imprisonment | (1) An act/ommission that confines/restrains (2)to a bounded area (no means of reasonable escape known to PLA) (3) Intent (4) causation---dmgs NOT req.
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| False Imprisonment: Restraint | Restraints consists of: barriers, physicial force, threats, invalid use of legal auth. BUT NOT moral or future threats. Time is irrelevant. PLA must be aware of restraint or harmed by it.
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| Intentional Infliction of Emotional Distress (IIED) | (1) An act amounting to extreme & outrageous conduct (2) Intent or recklessness (3) Causation (4) DMGS-Severe Emotional Distress. Bystanders may recover under IIED
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| Extreem and Outrageous Conduct==== | Conduct outside the bounds of decency: Factors (1) Continuous (2)Type of PLA (3) Type of Def (innkeepers etc)
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| Bystander IIED | D causes phys harm to a 3rd person & PLA suffers severe emotion distress: PLA has IIED COA or a bystander coa if (1)present @ the scene (exp. the event, seeing not req. in WY) or shortly after(2) PLA is close relat to 3rd person (3) DEF knew about 1 and 2
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| Trespass to Land | (1) Physical invasion of real property (2) Intent--D need only intent to enter the land (3) Casusation. No dmgs req. Anyone in actual or construct possession may recover under this tort.
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| Trespass to Chattels | (1) An act by the D that interferes w/PLA's right of possession (dmging or dispossession) (2) Intent (3) Causation (4) Dmgs: actual dmgs req.
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| Conversion | (1) An act by the D that interferes w/PLA's right of possession (2) that is so serious, PLA is entitled to the chattels full value from D (theft, wrongful transfer, substantial) (3) Intent (4) Causation. Remedy: FMV @ time of conver.
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| Defenses to Intentional Torts | (1) Consent (2) Self-Defense of self or other (3) Defense of Property (4) necessity (5) Arrest?
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| Consent | GR: Cannot consent to criminal act. Elements: (1) Valid Consent (must have capcity and express or implied consent) (2) Def must within bounds of consent
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| Express consent | Types: (1) Express: Mistake will unue consent if DEF knew or PLA's misapprehesion or fraud (if fraud goes to essential matter) or Duress (cannot be future threats or economic harm)
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| Implied Consent | Reasonable person standard determines apparent consent (may be implied by law as well
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| Self Defense of self or others (issue spotting) | Issue typically present:
(1) Availability (2) Is a mistake permissible that a tort is occurring permissible under the circumstances? (3) Amount of Forces
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| Self Defense (applying issues) | (1) Available: Reasonable Belief (RB) that DEF is about to attack and force is necess. to prevent injury (2) reasonable mistake allowed (3) Reasonable necessary force to prevent injury.Note: Defense of others same standard: RB other PER couldve used force
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| Defense of Property (1) | (1) Avail: May use force to prevent tort a/g property (does not apply once tort has been committed unless in HOT PURSUIT) (2) Mistake allowed as to whether intrusion occurred or request to desist req. (mistake as to privilege not allowed....
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| ....mistake allowed as to privilege is allowed if D reasonably believes no privilege existed. (3) Force? Reasonable force allowed---NEVER DEADLY |
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| Defense of Property: Recapture/Reentry | GR: NO Self help as to REAL property. GR:Only peaceful means allowed to recapture chattel unless in hot pursuit. MUST MAKE TIMELY DEMAND unless futile/dangerous-only recover from wrongdoer or 3rd party who knows or should know chattel obtained thru tort.
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| Entry onto land to remove chattel? Privilege to enter land | Chatter is on (1) wrongdoer land: may reasonably reenter after making timely demand (2) Land of innocent party: same but liable for any dmgs (3) On land thru owners own fault: no privilege to enter. No mistake allowed-reasonable force ok (no deadly/SBH)
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| Privilege of Arrest | Allows entry onto another's land to affect arrest, but still liable for misconduct.
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| Mistaken Arrest | Mistaken arrest allowed (2) MISDEMEANOR: allowed if for breach of the peace offense and action took place in front of Def. FELONY: A POLICE OFFICER may make a reas. mistake. A citizen may make a reas. mistake as to identity but whether felony occured.
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| Arrests without a warrant: When privileged for Felony | Felony Arrest by Police officer: allowed if PO has RB felony occurred and arrestee comitted it. By Private Citizen: felony must've been comitted & there is RB arrestee comitted it.
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| Arrests without a warrant: Misdemeanor arrest | Arrest is privileged if the misdemeanor is a breach of the peace and committed in arrestors presence
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| Force allowed in affecting arrests | Reasonably necessary to make the arrest. Deadly force only when subject poses threats of serious harm. No deadly force allowed for for misdemeanors
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| Necessity (property torts only) | Person may interfere w/property of another when reas and apparently necess. to avoid threatened natural injury--which is substant. greath than invasion. Types: Public: necess. for public good. Private: few benefit-liable for dmgs caused by invasion.
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| Harm to Economic and Dignitary Interests | (1) Defamation (2) Invasion of Right to Privacy (a) appropriation of PLA's name/pic (b) Intrusion on P's affairs (c) False Light (d) Public Disclosure of Private Fact
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| Defamation-elements | (1) Defamatory Lang. (2) of or concerning the PLA (3) publication to 3rd party (4) Dmgs to PLA's rep. Matter of Public Concern (MOPC) then (5) falsity (6)Fault
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| Defamatory language | This is lang. tending to adversely affect one's reputation: name calling insufficient. Must be specific and actionable but may allege inuendo. Only living person may be defamed.
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| Of and Concerning the PLA | If not prove on its face to relate to P, statement may be linked trhu extrinsic evidence---called colloquium
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| Group Defamation | (1)If def. statement refers to ALL mems of a small group, each mem. is of and concerning(2) if LARGE group no memb is of and concerning (3)small group and statement only refers to some, PLA may bring action if Reas P would view statement as refer. to PLA.
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| Publication | Communication of defamation to a 3rd party. May be done negligently or intentionally. Primary publishers (T.V., newspapers) liable to same extent as authors
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| Dmgs to PLA's repuation | Depends on type of defmation: (1) Libel: Printed/Tv: no special dmgs need be prove, presumed(2) Slander: Spoken-Most prove special dmgs unless per se--(1) remark on profession (2) loathsome disease (3) crime (4) a woman is unchase.
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| If the defamation concerns a matter of Public Concern | (1) Falsity of statement must be prove (2) Fault on D's part. If PLA is a public figure/official malice must be prove (knowing or reckless)--subjective test. If P=private citizen only negligence req but dmgs presumed if malice proven.
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| Defenses to Defamation | (1) Consent (2) Truth (3) Absolute and Qualified privileges
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| Appropriation of PLA's name or picture | (1) Unauthorized use (2) of PLA's name or picture (3) For Def's commerical advantage : mere economic benefit not enough. (4)Def's actions proximately caused use.
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| Intrusion on PLA's affairs or seclusion | The act of prying or intruding must be highly offensive toa reasonable person. The thing into which there is an intrustion must be private. Proximate cause must exist
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| Publication of facts Placing PLA in a FALSE LIGHT | exts where one attributes to PLA views he does not hold or actions he did not talke---must be highly offensive to a reasonable person under the circ. There must be publicity and proximate cause as well. IF MOPC male on D's part must exist.
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| Public Disclosure of Private Facts about the PLA | (1) Public disclosure of private fact (2) must be highly offesnive to a reasonable person (3) proximate causation. Liability may attach even if fact is true. IF MOPC then malice must be proven.
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| Invasion of a Right to Privacy- Dmgs and Defenses | No dmgs must be proven in the above COA. Defenses? Consent and Priviliege----TRUST or lack of Malice, accident, is NOOOT a defense.
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| Misrepresentation (Fraud/Deceit) Elements | (1) Misrerpresentation of a material fact (silence not enough) (2) Scienter (3)Intent to induce action by PLA (4) Actual reliance (5) justifiable reliance (6) dmgs.
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| Negligent misrepresentation | (1) Misrepresenation by Def in a business or professional capacity (2) breach of duty to PLA (3) causation (4) justifiable reliance by that particular PLA (5) dmgs.
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| Interference with a business relationship | (1) existence of a valid contract. relations btw. PLA and 3rd party or valid business expectation. (2) Def. knows of relations/expect. (3) intentional interference (4) dmgs. Interference may be privileged
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| Wrongful institution of Legal Proceedings | (1) Malicious Prosecution
(2) Abuse of Process
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| Malicious Prosecution | (1) Institution of criminal proceedings a/g PLA (2) termination in PLA's favor (3) absence of probable cause(4) improper purpose (5) dgms. Prosecutors are immune from liability but been extended to civil actions
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| Abuse of process | (1) wrongful use of process for an ulterior purpose and (2) definite act or threat against PLA in oder to accomplish an ulterior purpose.
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| Negligence | (1) Duty of Care to conform to a specific standard of care (2) Breach (3) actual and proximate cause of PLA's injury (4) Damage
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| Duty of Care:General | ..Is owed to all foreseeable plaintiffs and if they were located in the foreseeable zone of danger (Cardozo view-Wyoming/Majority view)
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| Duty of Care: Specific Situations | (1)Rescuers are foreseeable PLA where DEF negligently put himself in danger---Firefighters/Police barred from recovering under this. (2) Prenatal injuries (3) Intended Beneficaries of Economic Transactions
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| Duty of Care: Standards of Care-General | Basic Standard-Reasonable Person. A defendant's mental deficiencies not taken into account but physical characteristics are.
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| Duty of Care: Professional standards | Professionals: In Wyoming: doctors just by similar community standard: lawyers by statewide standard. Note, a medical review board must review a malpractice claim against a a health care provider.
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| Duty of Care: Children-standard of care | Children are held to the standard of a child of like (1) age (2) edu. (3) intellegence and (3) experience. Subjective test. Children in adult activities must meet adult standard.
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| Duty of Care: Carriers and Innkeepers | Very high standard of care
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| Duty of Care: Automobile Driver to guest | Duty of Ordinary Care
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| Duty of Care: Bailee | (i)if for sole benefit of the bailor (must inform bailee of known dang. defect in chattel), there is a low standard of care (ii) sole benefit of bailee-high care (iii) mutual=standard care.
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| Duty of Care: Owners and Occupiers of land-WYOMING: Natural and Artifical conditions | Natural conditions (no duty to protect off premises): only liable if ordinance imposes a duty of care for those off the property (snow removal). Artificial conditions: duty to protect unreasonably dang. conditions. Ongoing activity=reasonable care.
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| Duty of Care: Wyoming: Owners and Occupiers | Wyoming abolished duty of care on entrants status-Trespasser retained: no duty to undiscovered trespasser. Duty to warn or make safe man made death traps for discovered trespasser. Reasonable person standard controls.
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| Duty of Care: Attractive Nuisance Doctrine (landowner has a duty to exercise ordinary care to unreasonable foreseeable risk to children). | Element imposing duty: (1) (should)/ known danger. condition(2) should/knows children freq. vicinity(3) condition likely to cause injury(4)the expense to mitigate is slight compared to magnitude of risk.
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| Duty of care: Lessor of Realty (WYomign Residential Rental Property Act) | -Imposes duty on landlords to maintain safe and sanitary conditions (imposes reasonable care).
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| Duty of Care: Vendor of Realty-Wyoming | Homebuilder makes an implied warranty of fitness for habitation, which is limited to latent defects that manifest after purchase, and a reasonable time to subsequent purchasers.
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| Duty of Care: Statutory Standards: violation thereof | Constitutes evidence of negligence rather than negligence per se
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| Duty of Care: Statutory standard of care applies when | (1) the statute provides a criminal penalty (2) the statute clearly defines standard of conduct (3) the PLA is within the protected class (4) the statute was designed to prevent the type of harm suffered by the PLA.
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| Duty Regard negligent infliction of emtion Distress | (1) PLA must be w/in zone of danger or sees injury or shorty thereafter sees the injury/death w/o material change in conditions (2) PLA must suffer physical symptoms.
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| Negligent Infliction of Emotional Distress---Bystander not in zone of danger Seeing Injury to Another | A COA arises here if (1) the PLA and injured party are siblings, children, spouses, or parents (2) the PLA was at scene or shortly thereafter of injury or death (30 physical symptoms
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| Duty of Care: Affirmative Duties to Act: | Generaly no affirmative duty to act unless: you assume the duty by acting, peril is the result of your conduct, Special relationship, Wyoming-Inkeeper has affirmative reasonable care to protect invitees if they know they are about to be assualted.
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| Breach of Duty | Proven by: Custom, violation of statute, Res Ipsa Loquitur.
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| Res Ipsa Loquitur (the very occurrence of an event may tent to establish a duty of care) | Reqs (1) the accident causing the injury doesnt occur in the absence of negligence (2)negligence is attributable to the def-this type of accident ordinarily only happens b/c of someone's negligence-i.e. instru. was in exclusive control of the defendant.
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| Res Ipsa establishes.... | a prima facie case of negligence.
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| Causation | Actual and Proximate
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| Actual Causation | Tests: (1) But For (2) Joint causes- anyone of which could've caused the injury- use substantial factor (3) Alternative causes: multiple causes, only one of which could've caused injury: burden on the defendants.
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| Proximate Cause | Limitation on liability---requires foreseeability. Liability differs in direct cause cases by whether the harm was foreseeable. Most are in direct causes action. Indirect causes cases are trickier.
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| Indirect Causes: an affirmative intervening force comes into motion after Def negligence and combines with it to cause injury | (1) Foreseeable results, by foreseeable intervening force=defendant liable E.g. (i) negligence of rescuers(ii) efforts to protect person/property (iii) reacting to defendant's actions(iv) subsequent diseases(v)subsequent accident substantially caused.
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| E.g. continued... | If defendant's negligence increased the harm from the following, then he's liable (1) act of god (2) crimes/intentional torts (3) negligent act of 3rd persons.
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| Foreseeable results by unforeseeable Intervening forces--- | Def. usuually liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced---gen. not crimes, intent. torts, acts of god.
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| Unforeseeable results cause by a foreseeable intervening force... | Defendant usually liable.
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| Unforeseeable results, caused by a unforeseeable intervening force | Defendant gen. not liable. ---these acts are superseding.
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| Eggshell-skull plaintiff rule.. | DEF takes his PLA has he finds him, and is liable for any unique dmgs that occur to the PLA because of PLA's unique characteristics.
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| Damages | Economic and non-economic. Property=reasonable cost of repair or FMV at time of accident if destroyed. Punitive dmgs req. willful conduct. Attorney fees and interest on dgms from date of dmg not recov. Duty to mitigate exists.
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| Collateral Resource Rule | Damages are not reduced just because PLA received benefits from another source (i.e. insurance).
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| Defenses to Negligence | (1) Contributory Negligence
(2) Assumption of Risk
(3)Comparative Negligence
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| Contributory Negligence | PLA's negligence contributes to her injuries. Wyoming Abrogated
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| Assumption of Risk (Explicit) | PLA may be denied recov. if she assumed the risk of any dmg. caused by Def' act. Explicit reqs (1) PLA knows of risk (2) voluntarily proceeded in face of that risk. Not a defense to intentional torts, but it is to want and willful conduct.
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| Assumption of Risk: Implicit-Wyoming | Knowledge of a risk may be implied where the risk is one that the avg. person would clearly appreciate. Cannot be implied where there is no alt. availabe--in Wyoming a factor in comparative negligence.
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| Comparative Negligence | In Wyoming, partial comparative negligence controls. PLA's recovery is barred if his negligence was more serious than the fault of all the Defs (i.e. does not exceed 50%). Lack of wearing a seat belt not admissible as evidence of fault in Wyoming.
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| Liability W/O fault. Strict Liability | Elements: (1) Nature of Def's activity imposes absolute duty to make safe (2) the dangerous aspect of the activity was the actual and proximate cause of injury (3) damages. In wyoming, comparative fault controls strict liability.
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| Strict Liability and Animals | Trespassing Animals: An owner is strictly liable for reasonable foreseeable dmg done by a trespassing animal. Owner strictly liable for dmgs done by a wild animal (not to trespassers though)
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| Strict Liability and Abnormally Dangerous Activities: | Strict liability is imposed on abnormally dang. actictivities when (1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised (2) the activity is not a matter of common usage in the community.
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| Strict Liability: Extent of Liability | Duty imposed: absolute duty to make safe the dang. activity. Owed to all foreseeable PLAs
Defenses. Wyoming applies comparative negligence.
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| Products Liability: Types | (1)Intent(2) Negligence(3) strict liability(4) implied warrant of merchantability and fitness for a particular purpose(5) representation theories (express warranties/misrepresentation).
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| Product liability: Common Elements | (1) A defect (2) the defect existed when the product left defendant's control (inferred if the product move through normal channels of distribution). Comparative negligence applies to products liability too.
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| Types of Defects | (1) Manufacturing Defect: a product emerges diff. and more dang. than the other manufu. products. (2) Design defects- all product designed with a dang. propensities. (3) Inadequate warnings.
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| Manufacturing Defect: Test | The product fails to perform as an ordinary consumer would expect
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| Design Defect | PLA must show that Def could have made the product safer, without serious impact on the price or utility
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| Government safety standards | Non-compliance establishes a defect. Compliance is evidence, not conclusive, that the product is not defective. Def. will not be held liable for not foreseeable dangers at time of marketing or for unavoidably dang. products--obvious dang.
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| Intentional Product Liability | Elements: (1) and (2) above (3) Def. intended the consequences or knew they were substantially certain to occur. Privity not required. punitive dmgs available
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| Liability based upon negligence | Elements. (1) defect (2) defect existed when leaving def.'s hands (3) duty (4) breach ((i) negligent conduct and (ii) supplying def. product) (5) causes (6) dmgs. Any foreseeable PLA may sue on this theory.
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| Liability of Retailers and Wholesalers | It is very difficult to hold retailers and wholesalers liable for negligence b/c they can usually satisfy their duty thru a cursory inspection
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| Products liability and Causation. | An intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence.
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| Products Liability and Strict Liability | (1) Defect (2) defective when leaving merchants hand (3) strict duty owed by commercial supplier of a product (4) production or sale of a defective prod. (5) actual and prox. cause (6) dmgs. Privity not req. product must reach PLA w/o substantial altered
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| Disclaimers are.... | irrelevant in negligence or strict liability cases if personal injury or property dmgs occur.
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| Products Liability and Implied Warranties of Merchantability and Fitness....these two warranties are implied in the sale of every good | (1) Merchantability: gen. fit for the ord. purpose for which the goods ares used.(2) Fitness for particular purpose: aries when the seller knows or has reason to know of the part. purpose the buyer has & that the buy is relying on skill & judg. of seller.
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| Merchantability and fitness.... | horizontal privity req, but narrowly construed. so the buy, family, guests may sue.
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| Products liability and merchantibility or fitness case | (1) Breach (2) causation (3) dmgs. Disclaimers are generally rejected in personal injury cases but upheld for economic loss.
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| Products liability and Representation Theories....Express warranties and Misrepresentation of Fact... | Express Warranty: Any consumer, buy, or bystander---if buy, the warranty must've been part of the basis for the bargain. No fault needed for breach. Cause and dmgs must be proven.
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| Misrepresentation of Fact. | (1) the statement was of a material fact concerning quality or uses of goods and (2) the seller intended to induce reliance by the buy in a particular transaction (3) reliance was justifiable (4) causation and dgms. Assumption of risk not a defense.
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| Nuisance | Two types: private and public
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| Private Nuisance: | A private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that he possesses or has such a right to.
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| Substantial interference: | It is interference that is offensive, inconvenient, or annoying to the average person in the community. Objective person.
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| Unreasonable Interference: | To est. in negligent or intentional nuisance cases, the severity of the inflicted injury must outweigh the utility of the Def's conduct.
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| Public Nuisance: | It is unreasonable interference with the health, safety, or property rights of the community. Recovery is available to a private party only if they suffered unique dmg.
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| Remedies for Nuisance: | PLA typically awarded dmgs. Injunctive relief available if dmgs are inadequate or unavailable. Relative hardships determine if injunctive relief given.
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| Private Nuisance and Self-Helpt | Self-help abatement is available after notice to Def and his refusal to act. Only necessary force may be used.
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| Defenses to Nuisance | (1) Legislative Authority (2) Conduct of Others (3) Coming to the Nuisance (generally not a bar to PLA bringing an action unless they came to the nuisance for the sole purpose of bringing a lawsuit).
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| Vicarious Liability: | One person commits a tort a/g a 3rd party & another person will be liable to them for it.Types: (1) Respondeant Superior (2) Indep. Contractor Situ. (3) Partner & Joint Ventures (4) Auto driver (5) Bailor for Bailee(6) Parent for Child. (7) Tavernkeepers.
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| Doctrine of Respondeant Superior | GR: An EMP will be vic. liable for torts of EE if they are comitted w/in scope of employment. Frolics are minor deviations from scope, liability still attaches, major ones (detours) obviate liability. EM are still liable for negli. selection/supervising.
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| Respondeant Superior and Intentional Torts | Generally employers not liable for intentional torts of employees unless (1) Forces is authority in employment (2) Friction is generated by employment (3) The employee is furthering the business of the employer.
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| Independant Contractor Situations | GR: A principal not vic. liable for torts of agens who are independent contractors. Two broad exceptions :(1) IC engaged in inherently dang. activity(2) duty is non-delegatable. Moreover, principal still liable for own negl. in selection or supervision.
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| Partners and Joint Ventures | Each mewmber of a partnership or joint venture is vicariously liable for the tortious conduct of another committed in the course and scope of the affairs of the venture.
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| Automobile Owner for Driver | GR is that an auto owner is not vic liable for the torts of another person driving their auto. Caveats: Family car doctrine-owner is liable for torts of family members using car w/perm. Permissive use: liable for any dmg done by person who has perm.
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| Automobile Owner huge caveat | Negligent Entrustment: an owner maybe liable for their own negligence for entrusting the car to a driver.
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| Bailor for Bailee | GR: Bailor not vic. liable for the tortious conduct of his bailee. But may be liable for negligent entrustment.
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| Parent for Child | At common law not liability. In WY, children over 10 and under 17 liable for up to 2k prop. dmg. reqs wanton and malicious acts. Parent may be liable as princpal if child is an agent and Negligent entrustment
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| Tavernkeepers | At common law: no liability for vendees acts. WY: no dramshop liability---statute has coa for alcohol sales to minors and known habitual drunks--title 12.
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| Parties-Multiple Defendant Issues | Joint and Several Liability: abolished in WY. Satisfaction" Only one satisfaction is allowed---when a judgment determines the entirety of dmgs, payment thereof bars subsequent actions by making the PLA whole.
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| Release: | In WYoming, a nonsettling party does not get creit for amounts the PLA received from other parties in pretrial settlement. GR: a release of one tortfeasors does not discharge other tortfeasors unless it is expressely provided in the release agreement.
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| Contribution and Indemnity | Contribution: Both Defendants must have a measurable degree of culpability for the Tort. Indemnity: usually applies when of the parties is much more responsible than the others. Both deal w/much the of the total award eac DEF must pay.
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| Contribution: | -No right to contribution in Wyoming. It apportions responsibility among those at fault thru comparative negligence (similar to compartive contribution).
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| Indemnity | Involves the shifting of the entire loss btw. or among defendants. In Wyoming only available hwen there is an independent legal relationship btw. the parties (I.E. employer-employer, retailer-manufacturer).
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| Survival Acts | Survival Acts allow one's COA to survice death of the party. Only applies to property and personal injury torts.
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| Wrongful Death | A COA that grants recovery for pecuniary injury resulting to spouse and next of king. In WY must be brought in name of personal representative (doesnt have to be the executor or personal administrator of the estate).
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| Tortious Interferences with Family Relationships | (1)Husband-Wife (2) Parent-Child: A parent may maintain an COA for loss of child services as a result of DEF intentional or negligent acts. In WY, a minor child has an indep. COA for loss of parental consoritum. Should be combined with parents COA.
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| Tort Immunities | Types:
(1) Intra-family Tort Immunities
(2) Governmental Immunity
(3) Charitable Immunities
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| Intra-family Immunities: | At common law: family members immune from suit by other family members. Majority: husband-wife immunity abolished. Wyoming abolishes the parent-child immunity in auto accidents.
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| Federal Government Tort Immunity | Under the Federal Torts Claim Act, US has waived immunity for tortious acts except for (1) assualt (2) battery (3) False imprison. (4) mal. pros (5) abuse of process (6) libel/slander (7) misrepresentation and interference with contract rights.
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| Federval Government Tort Immunity not waived for.... | Discretionary acts. Ministerial Acts immunity is waived (day-day operations essentially).
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| State Government Immunity: Wyoming Government Claims Act--Wyo. Stat. 1-39-101 through 121 | Applies to all state and local gov. immunity is waived for: (1) negl. operation of vehicles (2) negl. maintenance/oper. of a park/rec. (3) negl. oper. of airports (4) negl. oper. of public utilities/services (5) Negl. operation of public hospitals, etc...
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| continued | (6)negli. healthcare providers employed by the government thru contracts (7) Tortious condut of law enforcement officers.
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| Wyoming, immunity retained for.... | Immunity is retainf ro Highway Department and Loacl Road and Bridge Departments...i.e. (1) defects in plan, design of any bridge or street, sidewalking, parking area (2) failure to construct a bridge or (3) maintenance thereof.
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| Notice of claim under the Wyoming Goverment claims act... | (1) must file notice w/in two years of event giving rise to COA-unless not reasonably discoverable then from date of discovery. Cannot waive this timely filing notice, its jurisdictional. lawsuit must be commenced w/in one year of filing notice.
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| Wyoming Government Claims act and Limitaitons on Liability. | government liability cannot exceed 250k for a single claim, or 500k for all claims arising out of a single transaction. If there is insurance coverage in excess of these limits then liability may be extended.
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| Wyoming Governments Claim Act and Limitation on Liability and Higher limits on claims for Physicians employed by the states | 1 million limit per single transaction or occurence.
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| Immunity for Peace Officers... | A peace officer is entitled to qualified immunity if (1) she was acting in good faith, w/in scope of employment (2) actions were reasonable under the circ. (3) the acts were discretionary and not ministerial
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| Municipalities: immunity abolished | Wyoming does not apply the public duty doctrine---except if a public school hosts an amateur rodeo event then they are not liable for injuries sustained.
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| Workers Compensation.... | If an en employee is covered by workers comp. recovery under the statutes is their exclusive remedy. In exchange, no fault need be proven.3rd parties do not share this immunity, but third parties may have an indemnity claim a/g the employer.
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| Notice of Claim against Third Party. | When EMP sues 3rd party, notice must be given to Direct of the Dept. of Employment and the AG. This is a jurisdictional req. to maintain the suit.
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| Notice of Proposed Settlement by 3rd Party | Prior to offering a settle. to emp. 3rd parties/insureres must give state 15 days notice to object. Failure raises a COA by the state. Notice is also req. for any judgment, compromise, settlement or release entered into by the emp. and 3rd party.
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| State's right to Subrogation | State is entitled to be reimbursed f for payments made to an emp, if emp recovers from the third party.
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| Right to File claim protected: | An emp may bring a retaliatory COA if he was fired for filing a worker's compensation claim.
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| Injury must arise in the Course of Employment: | An identifiable deviation from a business trip for personal reasons takes the emp out of the course of emplopyment and outside the scope of worker's comp. coverage.
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| Travel to and From Work.... | Generally not covered unless empl. is reimbursed for travel expenses or is transported by an emp. vehicle.
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| Co-Employee Liability | A covered employee must rely soley on the Works Comp Act as a remedy, against a co-employee acting w/in scope of employment, unless it was an intent. act (willful and wanton)
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| Wyoming Statutes of Limitations (snoresville) | Four years for: (1) Tresspass to land (2) recover personal property (3) other injuries to PLA's right-negligence claims
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| 2 year statutes of limitations.... | An action arising from an error in rendering professional service/healthcare services. Date is from alleged error. If the error is discovered during second year---the period is extended six months. Minors- must be within 2 yrs or 18th b-day.
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| One Year Statute of Limitations | (1) defamtion (2) Battery (3) assualt (4) malicious prosecution or (5) false imprisonment
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| Discovery Rule: | A COA accrues when the PLA knows or has reason to know of the existence of a COA. I.E. a medical malpractice begins to run when the PLA learns that her harms are the result of the wrongful conduct of that part. def.
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| Statute of Limitations and Wrongful Death... | Discovery rule not applicable to wrongful death, which must be brought w/in two years of the decedent's death. Nevertheless, the period does not run until the Dec. is id. b/c such an action cannot be brought until a P.R. is appointed.
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| WY: Breach of the Duty of Good Faith and Fair Dealing | -breach of the implied covenant of good faith and fair dealing in the context of insurance contracts and employment contracts
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| WY: Insurance Contracts: | -insurance company owes a duty of good faith to its policyholders not to unreasonalby deny a claim for policy benefits, the breach of which gives riese to an independent tort action
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| WY: Insurance Contracts: | P must show: 1.absence of a reasonable basis for denial of benefits; and 2. knowledge of or reckless
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| WY: Employment Contracts: | -employer owes duty of GF under employment K only when special relationship of trust & reliance exists btw. ER & EE
-duty breached when EE is terminated to avoid pymt of commissions or benefits already earned, to avoid pymt of benefits scheduled to arise
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|
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