Unit 4 Seminar

December 1, 2010Torts

Unit 5: Mid-Term Research Assignment 2

3 – 5 pages Application

Facts Cases

What are your Torts Sources

Case Law Statutes

Four Elements Duty Breach of Duty Causation

Actual Proximate

Damages

P gets nothing if negligent at all Four states (change since 1968) Used to be main rule Problem: Worthy plaintiffs are often

denied recovery and blameworthy D’s get away

1% negligent?

Alternative to all-or-nothing approach of contributory negligence

Reduces by percent Types

Pure 50%

Not as great as Not greater than

Assumption of Risk P who volunteers to take the chance that

harm will occur Last Clear Chance

Limits Contributory Negligence D has an opportunity that is not available to P

to prevent harm and does nothing then still liable

Complete 100% Defense Government Spouse Parent-Child Charity

Duty of Care Negligence does not equal unfavorable

outcome Key = Reasonable

Reasonableness Skill and learning commonly possessed by

members in good standing IN COMMUNITY

Must use diligence and care Professional negligence must be

proximate cause Specialists

Higher standard of care National Standard

Informed Consent Would reasonable person have submitted to

procedure if they knew risks involved Dr. has duty to warn patients of possible

issues with treatment Must state Alternative treatments

Actions Battery Negligence

Additional Tort Negligent or Intentional Elements pg. 260 Seller of car who turns back odometer Buyer Beware

Failure to Disclose Deliberate Concealment

Defendant State of Mind D must know of the falsity of statement or

acted with reckless disregard to the truth Reliance on Misrepresentation

Independent investigation Justifiable Puffery Proximate Cause

Now permitted Same Elements as Intentional

Except for Intent Liability

Negligent Intentional

Innocent Misrepresentation

Additional Tort Pg. 275

D’s interference with P’s interest Private

Enviornmental Public

Unreasonable interference with P’s use and enjoyment of land

Unreasonable: P’s harm outweighs D’s utility Harm caused is substantial

Trespass: Interference with P’s right to possession of property

Nuisance: Interference with right to enjoy property Do not need to physically enter property

Interference with existing contractual relations Lumley v. Gye

Merely offering better price not enough Interference with prospective contractual

relations

Examples

Questions